HARRISON v HARRISON [2020] NZCA 189

HARRISON v HARRISON [2020] NZCA 189 [28 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA57/2020[2020] NZCA 189BETWEEN PAULINE JANICE HARRISONAppellantAND ADRIENNE HARRISONFirst RespondentGRAEME ROSS HARRISONSecond RespondentCourt: French, Brown and Clifford JJCounsel: Appellant in personP M Webb for First and Second RespondentsR A Rose for ChildFundJudgment:(On the papers)28 May 2020 at 10 amJUDGMENT OF THE COURTThe application to review the decision of Cooper J declining to appoint a litigationguardian is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Ms Harrison, the appellant, has applied for an order appointing her daughterMs Angela Harrison as litigation guardian to conduct this appeal.[2] The application was declined by Cooper J on 28 February 2020.1 Ms Harrisonsubsequently filed further information and renewed her application. However, it wasagain declined by Cooper J on 1 May 2020.2[3] Ms Harrison now seeks a review of Cooper J's decision. She submitsthe decision was unfair and unreasonable and in breach of the New Zealand Bill ofRights Act 1990 and the Human Rights Act 1993. She also relies on the fact that inrelated High Court proceedings, her daughter has been appointed by Lang J as herlitigation guardian.3[4] As Cooper J noted, the Court of Appeal (Civil) Rules 2005 do not provide forappointments of litigation guardians. However, it is well established that where thereis a gap, the High Court Rules 2016 can be applied by analogy and in the manner thatthe Court thinks best calculated to promote the ends of justice.4[5] The relevant High Court rule is r 4.35(2). It states that the Court may appointa litigation guardian if satisfied of two requirements: first, that the person for whomthe litigation guardian is to be appointed is an "incapacitated person" and secondlythat the proposed litigation guardian is able fairly and competently to conductproceedings on behalf of the incapacitated person.[6] An incapacitated person is defined in r 4.29 as: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.[7] The reason Cooper J declined the application in this case is because on theinformation before him he was not persuaded that Ms Harrison was an incapacitatedperson within that definition.1 Harrison v Harrison CA57/2020, 28 February 2020.2 Harrison v Harrison CA57/2020, 1 May 2020.3 Harrison v Harrison HC Auckland CIV-2019-404-002566, 8 April 2020.4 Court of Appeal (Civil) Rules 2005, r 5(4).[8] In support of her application, Ms Harrison provided the following information(a) A statement from her daughter that on 25 January 2020 Ms Harrisonwas admitted to the coronary care unit at Christchurch having had"a near fatal complete heart block."(b) A medical certificate dated 7 February 2020 from a general practitionerwhich states that Ms Harrison is not currently medically fit to travel orto participate in person at court hearings and is unlikely to be inthe foreseeable future.(c) A medical certificate dated 28 February 2020 from a consultantcardiologist stating Ms Harrison is under his care in respect of a chroniccardiac condition and that undue stress would not be in the best interestsfor her health.[9] The first two pieces of information were before Cooper J on the first occasionhe considered the application. The medical certificate from the cardiologist was thebasis of the renewed application.[10] Ms Harrison undoubtedly has health issues. However, we agree with Cooper Jthat none of the information supplied whether viewed individually or collectivelysatisfies the definition of incapacitated. There is no suggestion that Ms Harrison isincapable of understanding the issues or incapable of giving instructions.[11] We acknowledge that Lang J reached a different conclusion in the High Courton the same information. However, we are not, of course, bound by that decision.Further, we note that the Judge did not engage with the definition of "incapacitated"and that the appointment he made was a limited one. It was for the sole purpose ofa fixture on 30 July 2020 which would otherwise have had to be adjourned. It is clearfrom the Judge's minute that his primary concern was not to jeopardise the fixture.[12] The application to review the decision of Cooper J declining to appointa litigation guardian is declined.[13] We make no award of costs because this is a matter for the Court and not theother parties.Solicitors:Denham Bramwell, Manukau for First and Second Respondents