Walker v Bale

[2013] NZHC 18

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-044-2721 [2013] NZHC 18

BETWEEN  ISOBEL ANNE WALKER, ALISON CLAIRE MACMILLAN AND DIANE WARDILL AS TRUSTEES OF THE SCIWI FAMILY TRUST

Plaintiffs

ANDRONALD FRANK BALE AND JOAN NORMA BALE

First Defendants

ANDRONALD FRANK BALE AND JOAN NORMA BALE AS TRUSTEES OF THE BALE FAMILY TRUST OF AUCKLAND Second Defendants

Hearing:         29 November 2012 (on papers) Appearances: Ms Murphy for Defendants Judgment:      29 January 2013

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on

29.01.13 at 11 a.m., pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

A MacMillan, Auckland – [email protected]

Shieff Angland, Auckland - [email protected]

WALKER & ORS AS TRUSTEES OF THE SCIWI FAMILY TRUST V BALE & ORS HC AK CIV-2008-044-

2721 [29 January 2013]

[1]      A dispute has arisen about the circumstances in which the plaintiffs arranged for a lawyer to represent them at a hearing of an interlocutory application in this proceeding.   Difficulties are said to have arisen because the  plaintiffs had filed pleadings on their own behalf.   That is to say the pleadings were not filed by a solicitor whom they had instructed.  The defendants say that the lack of clarity about representation in the proceedings has disadvantaged them.  They say that clarity is required. They seek a direction from the Court.

[2]      There is no doubt that the plaintiffs are entitled to file documents in person. They are entitled to engage a legal representative to appear on their behalf at some or all of the hearings during the life of the proceedings.  A barrister and solicitor has rights of audience in the Courts.  In effect, notwithstanding the fused profession in New Zealand, a legal practitioner who appears in Court functions as a barrister.  In accordance with the Rules of the profession a barrister who takes instructions (whether to appear in Court or otherwise) must comply with the intervention rule. He/she must be instructed by a solicitor, in other words.  Subject to that requirement though, a lawyer may appear even though he/she has not filed any pleadings on behalf of the client.

[3]      It happened that the lawyer who appeared to make submissions on behalf of the plaintiffs is both a barrister and solicitor.  That practitioner, it would seem, would not have needed to comply with the intervention rule and would not therefore have required his own instructing solicitor.

[4]      A distinction needs to be drawn between the part that a lawyer plays in appearing in Court as the advocate for the party and, on the other hand, filing pleadings.  A solicitor filing a document on behalf of a party must first be authorised to file the document.[1]     Not only must the solicitor be authorised but by filing a document he/she is taken to have provided a warranty to the Court “and to all parties

to the proceedings” that he/she is authorised by the party to file the document.[2]

[1] Rule 5.36.

[2] Rule 5.37.

[5]      The dual objects of these Rules are to ensure that persons who have no interest in the proceedings are not meddling in them without authority.   The other objective is to make it clear to other parties to the proceedings and to the Court that a lawyer had unquestioned authority to file the documents that he/she did.  Not only may a solicitor file documents, he/she may also sign them on behalf of the client.[3]

But authority to sign documents is not restricted to solicitors: counsel may also sign

them.[4]

[3] Rule 5.39.

[4] Rule 5.39 (2).

[6]      The third element that is dealt with in the Rules under Subpart 8 of Part 5 concerns the address for service.  An address for service must be supplied at the end of the first document filed by a party.  That address for service when an authorised solicitor has filed documents is to be at the post office box etc of the solicitor.  That would seem to follow from the provisions of Rule 5.44(1)(e).

[7]      Rule 5.40 envisages that if a change of representation is filed, for example where a party for whom a solicitor has acted now wishes to act in person, then it may be necessary ‘if the party’s address for service after the change of representation will be different from that which applied before the change”.[5]

[5] Rule 5.40(2).

[8]      Where a solicitor has obtained an order granting him/her authority to cease to act under r 5.42, it would appear that that solicitor’s address ceases to be the address for service from that point forward.   This is subject to certain requirements as to serving notice of steps being taken to discharge the solicitor under r 5.41.

[9]      In this particular case, there has been no appointment of a solicitor who has the necessary authority to sign or file documents on behalf of the plaintiffs.   The defendants would therefore be entitled to disregard any documents filed by lawyers in circumstances where the authority of that lawyer has not been established.

[10]     Beyond that, it may be that if there are further instances of counsel being given additional limited authority to deal with discrete parts of the proceeding, then

it will be a question of the width of the counsel’s authority.   For example, if the

plaintiffs advise that counsel had been instructed to appear to make submissions on behalf of the plaintiffs at a hearing, then the defendants may well wish to query the authority  of  counsel  to,  for  example,  go  further  than  that  and  put  forward  a settlement offer on part of the plaintiffs.   Obviously counsel has certain implied authority though.  It is not possible for the Court to lay down firm guidelines as to the circumstances in which there would be a lack of certainty about the extent of counsel’s responsibilities.

[11]     The final matter I deal with concerns the submission that has been made for the defendants that they were, in effect, surprised by the appearance of counsel making submissions on behalf of the plaintiffs at the interlocutory hearing of 9 July

2012.    It  is  at  least  implicit  in  the  defendants’ counsel’s  submissions  that  the

defendants were prejudiced by this occurrence.

[12]     It seems difficult to understand why there should have been any prejudice. Questions about whether a party should oppose an interlocutory application or not would seem to depend upon the content of the submissions that have been forwarded in advance of the hearing rather than the personal identity of counsel who will be appearing in support of those submissions.  Obviously it is preferable though, that counsel and other practitioners communicate openly with each other about their involvement in the case.  That should not be read as expressing the conclusion that

counsel who was briefed in this case failed to meet that standard.

J.P. Doogue

Associate Judge