Gazley v Lord Cooke of Thorndon CA182/97 [1999] NZCA 344 (26 April 1999)

Last Updated: 26 August 2018

IN THE COURT OF APPEAL OF NEW ZEALAND CA 182/97


BETWEEN WILLIAM VERNON GAZLEY

Appellant

AND THE RIGHT HONOURABLE THE LORD COOKE OF THORNDON

First Respondent

AND THE RIGHT HONOURABLE SIR IVOR LLOYD MORGAN RICHARDSON

Second Respondent


AND THE RIGHT HONOURABLE IAN LLOYD MCKAY

Third Respondent


AND THE HONOURABLE ROBERT ANDREW MCGECHAN

Fourth Respondent


Hearing: 26 April 1999

Coram: Thomas J Keith J Tipping J

Appearances: R B Squire QC for Appellant
J J McGrath QC for Respondents

Judgment: 26 April 1999

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

Introduction

[1] The appellant, Mr Gazley, seeks leave to appeal to the Privy Council against the judgment of this Court delivered on 11 February 1999 on the ground that the whole of the decision is wrong in law. Mr Gazley has hitherto appeared in person. But Mr Squire QC appears in support of the application today.

[2] There is no suggestion that Mr Gazley can appeal as of right. Leave is at the Court’s discretion. Paragraph (b) of r 2 of the New Zealand (Appeals to the Privy Council) Order, 1910, applies. It reads:
(b) At the discretion of the Court of Appeal from any other Judgment of that Court, whether final or interlocutory, if, in the opinion of that Court, the question involved in the appeal is one which by reason of its great general or public importance, or otherwise, ought to be submitted to His Majesty in Council for decision.

Thus, the appeal must be one which by reason of its great general or public importance ought to be submitted to the Privy Council or one which otherwise ought to be so submitted. We have reached the clear view that this is not a matter where leave should be granted.

The background

[3] In Black v Taylor [1993] 3 NZLR 403, this Court determined that Mr Gazley should not represent certain defendants in proceedings in the High Court on the ground that he had previously represented and acted for the plaintiff. The Court held that a barrister does not have an absolute and independent right to determine whether he or she will act in any proceeding subject only to obligations of confidence. It held that the power to restrain a barrister from so acting arose from the Court’s inherent jurisdiction where the interests of justice so require. The Court concluded that reasonable members of the public would not consider that justice would be done by permitting the barrister to act against the plaintiff and that Mr Gazley should therefore have disqualified himself from acting in the matter.
[4] Mr Gazley has strenuously declined to accept that ruling. His essential argument is that the exercise of the Court’s inherent jurisdiction cannot be invoked to defeat what is the statutory right of a litigant to have the counsel of his choice. He relies on ss 56, 57 and 61 of the Law Practitioners Act 1982. These sections, he argues, confer on counsel a right to accept instructions to act and appear for a client in legal proceedings and the Court has no jurisdiction to intervene in that right. In one respect or another this issue has been involved in a number of subsequent proceedings. See

[5] In the present proceeding, the respondents are the members of the Court who determined Black v Taylor and the Judge at first instance whose judgment was then under appeal. Damages are sought against those Judges on the basis that they improperly assumed or exercised a jurisdiction which they did not have.

[6] The respondents applied to the High Court to strike the proceeding out on the basis, first, that it was an abuse of process being a collateral attack on the decision of the Court in Black v Taylor and, secondly, that the Judges were protected by the doctrine of judicial immunity. McGechan J struck out the proceeding on the latter ground only and this Court upheld that decision. It was considered that it was within McGechan J’s jurisdiction to hear and determine whether he should deal with the interlocutory application which had been utilised to bring the matter before the Court. The question whether Mr Gazley should represent the plaintiff could, it was held, properly be brought before the Court in its inherent jurisdiction. The Judge had acted within that jurisdiction. This Court further held that it had power to hear and, indeed, that it was obliged to hear, the appeal from McGechan J’s judgment. Mr Gazley’s argument that the respondents had acted in the clear absence of jurisdiction was so untenable that it could not succeed. Other members of the Court also relied on the doctrine of judicial immunity to dismiss the appeal.

[7] It is against that decision that Mr Gazley seeks leave to appeal to the Privy Council.

Rule 2(b)

[8] The issues which are identified as the issues to be determined on appeal to the Privy Council are essentially the same questions which were resolved in Black v Taylor. At its base, Mr Gazley is still seeking to argue the question whether ss 56, 57 and 61 confer on counsel a right to represent his or her client which is beyond the jurisdiction of the Courts to inhibit or restrain. This is the question which it is contended is a matter of great general or public importance. His contention is enlarged by the claim that the “right of the public to have any contract (in this case a contract of retainer) free from destruction by interference from Judges is a matter of overriding public interest.” Further, it is argued that the issue of judicial immunity and whether or not it is available in the circumstances of this case may be similarly so regarded, raising as it does the question of whether immunity is lost if the decision is “so patently wrong it could not be said to be the product of a judicial act”.

[9] In oral argument, Mr Squire focused on the fact McGechan J initially described the application for an injunction to restrain Mr Gazley from acting as a “device”. Mr Gazley was not a party to the proceeding and for that reason had no independent right of appeal. But we do not appreciate that any perceived error in the way the issue of counsel’s claimed right to act came before the Court is anything other than a procedural irregularity which did not infect the Court’s inherent jurisdiction to control the conduct of practitioners appearing before the Court. We are content to adopt the reasoning of the Chief Justice on this point and move to the substantive issue. We do not imagine that their Lordships in the Privy Council would welcome an argument founded on the Judge’s description of the procedure which had been followed before moving to the question of the Court’s jurisdiction to restrain counsel from appearing.

[10] We do not consider that any question of great general or public importance is involved. In themselves, as Mr Squire argued, questions relating to the Court’s jurisdiction and judicial immunity may be of great importance. But
the questions must be placed in context. In the context of this proceeding Mr Gazley’s arguments are clearly untenable, so much so that the claim to general and public importance must be viewed as a false front for his underlying contention that counsel’s right to accept and act on a retainer is inviolate.

[11] In the proceeding in issue each Judge of the Court confirmed that the correctness of the respondents’ decisions is not in issue. This must be right. The issue is whether the Court had authority to hear and determine the matters before them in Black v Taylor. For this reason, any appeal from the decision of this Court would not put in issue the scope of the inherent jurisdiction of the Court, the right of the public to have counsel of choice, or the correctness of the decision in Black v Taylor.

[12] Although Mr Gazley previously accepted that the respondents have immunity for decisions that they had the power to hear and determine, it is now argued that the respondents lost their claim to judicial immunity by making a decision that is “so patently wrong it could not be said to be the product of a judicial act.” We reject this extreme argument. We regard it as beyond dispute that the respondents were obliged to determine the proceedings before them. To that end they had jurisdiction to determine the scope of the Court’s authority. It is simply not tenable to argue that in deciding the matters brought before them, they exceeded their jurisdiction simply because they were wrong. Jurisdiction does not depend on the Court being infallible.

[13] Mr Squire also argued that, in the event of this Court holding that there was no matter of great general or public importance involved, leave should be granted pursuant to the second limb of r 2(b). Leave was, he submitted, warranted as a matter of justice. His argument was that, as the proceeding was raised and pursued in the proceeding in which he was appearing, Mr Gazley was not able to pursue the issue in his own right. Mr Squire submitted that the present proceeding was the only way Mr Gazley could pursue these important issues.
[14] We are not satisfied this was or is the only way in which the issue could be pursued by Mr Gazley in his own right. Mr Gazley was appearing as counsel in Black v Taylor and it is not inappropriate that the question of his right to do so should be determined in the context of that proceeding. But even if Mr Squire’s point is well-founded, it does not detract from the fact that Mr Gazley’s basic argument is untenable. In Ryan v Hallum [1991] 1 NZLR 700, this Court said, at 702:

The “or otherwise” limb of r 2(b) on which he relied empowers the Court to grant leave to appeal in special cases not otherwise falling within para (b) where the justice of the case so requires. ... It cannot possibly be said that the justice of the case requires that he be allowed to pursue a hopeless appeal. (Emphasis added).

[15] As will be gathered from what we have already said we believe that Mr Gazley’s appeal is in this category and that it should not burden the Privy Council. Nor do we consider it is appropriate that the appeal should be used as a vehicle for testing the correctness in law of the Court’s decision in Black v Taylor. A proceeding against superior Court Judges as a means of challenging the correctness of their reasoning is self-evidently inappropriate.

[16] For these reasons leave to appeal is declined.

Costs

[17] There will be an award of costs against the appellant in favour of the Crown in the sum of $3,000.

Solicitors

G J Black, Wellington for Appellant
Crown Law Office, Wellington for Respondents