REMNANT v MILLS [2020] NZHC 1937

REMNANT v MILLS [2020] NZHC 1937 [4 August 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-268[2020] NZHC 1937BETWEEN HEATHER IRENE REMNANTPlaintiffAND JEFFREY HARGEN MILLSDefendantHearing: On the papersCounsel: C M Hanafin and A G Needham for PlaintiffS J Layburn and T J Flintoff for DefendantJudgment: 4 August 2020JUDGMENT OF ASSOCIATE JUDGE LESTER(on application to appoint litigation guardian)This judgment was delivered by me on 4 August 2020 at 4.15 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy Registrar4 August 2020[1] The plaintiff, Ms Remnant, seeks summary judgment in respect of amountspayable under a relationship property agreement entered into at a mediation convenedon 17 February 2020. The defendant, Mr Mills, was served on 22 June 2020. Thefirst call of the summary judgment application is on 6 August 2020.[2] Mr Mills' present wife, Fleur Mills, has applied on a without notice basis to beappointed litigation guardian for her husband and to extend time for filing papers inopposition to the summary judgment application. That application was filed with theCourt on 31 July 2020. Ms Mills calculates the notice of opposition had to be filed on31 July 2020.[3] Ms Mills explains in her affidavit (affirmed 31 July 2020), that Mr Mills wantsto set aside the agreement reached at mediation on the grounds that at the time of themediation his decision making capacity was impaired. Ms Mills seeks to be appointedlitigation guardian on the grounds that she believes Mr Mills is not capable ofunderstanding the issues involved in the litigation to be commenced in the FamilyCourt or to give instructions to defend the present proceedings. The application toappoint a litigation guardian is made pursuant to r 4.30(1) High Court Rules 2016which provides "an incapacitated person must have a litigation guardian as his or herrepresentative in any proceeding, unless the court otherwise orders".[4] Rule 4.29 defines "incapacitated person" as:1incapacitated person means a person who by reason of physical, intellectual,or mental impairment, whether temporary or permanent, is—(a) not capable of understanding the issues on which his or her decisionwould be required as a litigant conducting proceedings; or(b) unable to give sufficient instructions to issue, defend, or compromiseproceedings.[5] Ms Mills has obtained a specialist report from Dr Dominic Lim who isa Consultant Psychiatrist of Christchurch. Dr Lim's scope of practice includes generaland old age psychiatry. He has provided a lengthy report dated 13 July 2020 intoMr Mills' capacity. Dr Lim was asked to address a number of specific questions, some1 High Court Rules 2016, r 4.29.of which go back to Mr Mills' mental state at the time of the relationship propertyagreement, but there is a specific question as to Mr Mills' present capacity is to makeinformed decisions and give instructions in respect of litigation covering financial,relationship and trust matters. Dr Lim at para 13.5.1 of his report says:I consider that currently Jeff still retains overall the capacity to make suchinformed decisions and in particular, to give instructions on these matters; ifhe is in an optimal mental space and not under stress. However, he will needclose supervision and assistance from a trusted individual, E.g. Fleur, to assistin arriving at such decisions. He will need time to work through options. Hewill need reminders regarding his vulnerability particular at the time when heis tired or on treatment.[6] Accordingly, while the medical evidence does not in some ways meet thedefinition of incapacitated person, it identifies that when Mr Mills is under stress, ashe is likely to be in the course of litigation, he may be unable, without assistance, tomake informed decisions and give instructions in respect of the litigation.[7] Mr Mills has filed an affidavit (affirmed 31 July 2020) supporting theapplication. He says he is not confident he can instruct his lawyer to run his case andthat he has to rely on his wife. He expressly consents to his wife being appointed aslitigation guardian in this proceeding and in an application to the Family Court to setaside the relationship property agreement.[8] I do not have jurisdiction to appoint Fleur Mills litigation guardian in respectof the proposed Family Court application. There will need to be a separate applicationto that Court.[9] It is clear Mr Mills seeks the assistance of his wife on a formal basis. Mr Millsmay only need that assistance when under pressure or under the stress of litigation.[10] In all the circumstances, I consider it appropriate that there be an orderappointing Fleur Mills litigation guardian for Jeffrey Hargen Mills in respect of thisproceeding. That order is made on the condition that while Mr Mills is lucid and ableto make his own decisions, as appears will be the case in the absence of the stressesand pressures of litigation, Ms Mills is to defer to Mr Mills' wishes.[11] I am not prepared to deal with the application to extend time for filing of papersin opposition on a without notice basis. This matter is for call on Thursday6 August 2020 and the timing of future steps is a matter on which Ms Remnant shouldbe heard. A copy of this judgment is to be sent to Ms Remnant's solicitors.[12] Documents filed after this judgment should in the intituling, refer to Mr Mills,by his litigation guardian, Fleur Mills.[13] Counsel for Mr Mills should be in a position, when this matter is called, toadvise Ms Remnant's counsel and the Court when the application to set aside therelationship property agreement will be filed.__________________________________Associate Judge LesterSolicitors:Wynn Williams, ChristchurchLayburn Hodgins, ChristchurchCopy to counsel:Tracy Flintoff, Barrister, ChristchurchCopy to:Fleur Mills, Litigation Guardian for Mr Mills