Corbett v Western HC Auckland CIV-2010-404-1495 [2011] NZHC 2120; [2011] 3 NZLR 41; [2011] NZFLR 776; (2011) 20 PRNZ 492 (18 April 2011)

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2010-404-1495}

BETWEEN JOHN HILLARY CORBETT Plaintiff/Respondent

AND ROBERT CORBETT WESTERN AND BRUCE REGINALD PATTERSON Defendant/Applicants

Hearing: 24 March 2011

Appearances: Plaintiff/Respondent in person

C J R Baird for Defendants/Applicants

Judgment: 18 April 2011

_{RESERVED JUDGMENT OF PRIESTLEY J}

This judgment was delivered by me on Monday 18 April 2011 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules and recalled by order of His Honour on 1 June 2011.

This judgment still dated 18 April 2011 supersedes the recalled judgment and was delivered by me on 1 June 2011.

Registrar/Deputy Registrar

Date.......................................

Counsel/Solicitors:

C J R Baird, P O Box 5444, Wellesley Street, Auckland 1141. Fax: [phone]. Email: [e-mail]

H L Quinn, Quinn Law, P O Box 25-608, St Heliers, Auckland 1071. Fax: [phone]. Email: [e-mail]

Copy to:

J H Corbett, 1/71 Uxbridge Road, Howick, Auckland 1705. Ph: 09 533 9667

_Email: [e-mail]

CORBETT V WESTERN AND ANOR HC AK CIV-2010-404-1495 [18 April 2011]

_{CONTENTS PAGE}

Paragraph

The application 1

What are courts to do about obsessed and/or querulous litigants? 6

What does the plaintiff want? 20

Has the plaintiff been involved in previous similar litigation? 32

What do the defendants want and why? 38

Is the plaintiff an incapacitated person for the purposes

of rr 4.29 and 4.35? 45

Should a guardian ad litem be appointed under r 4.35?

Is the plaintiff an ―incapacitated person‖? If so should the

Court, in its discretion ―otherwise order‖ that the plaintiff

should not have a litigation guardian? 81

Standing back 101

Results 104

Costs 105

Next call 106

The application

[1] Over a year ago, on 20 March 2010, the plaintiff (Mr Corbett) began this proceeding against the defendants. The plaintiff is a self-represented litigant. The defendants are the trustees (Mr Patterson being a solicitor) of a trust called the J M & J S Corbett Family Trust which was established by Mr Corbett‘s late parents in July

1998.

[2] The defendants‘ application is based on r 4.30 of the High Court Rules which

provides:

Incapacitated person must be represented by litigation guardian

(1) An incapacitated person must have a litigation guardian as his or her representative in any proceeding, unless the court otherwise orders.

(2) If a person becomes an incapacitated person during a proceeding, a party must not take any step in the proceeding without the permission of the court until the incapacitated person has a litigation guardian.

[3] It is the defendants‘ contention that Mr Corbett is an ―incapacitated person‖

for the purpose of the rule. Rule 4.29 defines an incapacitated person as follows:

Incapacitated 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 decision would be required as a litigant conducting proceedings; or

(b) unable to give sufficient instructions to issue, defend, or compromise proceedings ...

[4] The application gives rise to nice issues, in particular whether Mr Corbett is an ―incapacitated person‖ as defined, and whether it is appropriate for an opposing party (in this case, the defendants) to seek to have a litigation guardian appointed to represent the opponent.

[5] The structure of r 4.30(1) has some significance. It is obligatory for an incapacitated party to have a litigation guardian. However, the Court retains a discretion to ―otherwise order‖.

What are courts to do about obsessed and/or querulous litigants?

[6] The question posed in this heading is one which the legislative and judicial arms of government have failed to answer satisfactorily. I believe it is a pressing issue which needs to be addressed.

[7] Australasian judges in recent years have received and listened to papers addressing the phenomenon of a querulous litigant.¹ I do not intend to provide an exhaustive catalogue. No senior judge who has attended judicial conferences over the last decade would demur from the generalisation.

[8] Such research as there is tends to suggest that initially the querulous litigant had a legitimate grievance. The judicial or other resolution of that grievance, however, never satisfies or brings finality. The litigant will sue and re-sue. Attempts are made to circumvent matters which are res judicata by collateral attack. Judges and law officers become litigation targets. When there is some statutory complaints procedure against judicial officers, targeted too will be the complaints adjudicator. Appeal tracks are pursued and re-pursued.

[9] Sometimes, but not always, the querulous or persistent litigant will have a diagnosable mental illness. Sometimes the litigation becomes permeated with contempt issues.

[10] Whether or not the higher appellate courts are as robust as the situation may warrant is sometimes problematic. Judicial caution is essential to ensure that a person who is unwell or unrepresented is not denied the opportunity to litigate a real

_{justiciable grievance where a remedy may well be available. There is a legitimate}

¹ Ian Freckleton ―Vexatious litigant law reform‖ (2009) 16 J L & Med 721; Robert Nicholson ―Can

courts cope with self-represented litigants?‖ [2005] 7 Fin J L Rfm 139.

access to justice issue. Courts must be slow before they deny access to litigants who have genuine and meritorious claims.

[11] The rub, of course, is trying to assess at an early stage whether a claim is genuine and legitimate, or whether instead it is yet another attempt to revive and re- litigate a past grievance where prior litigation remedies have failed.

[12] Unfortunately, the phenomenon does not easily lend itself to traditional remedies such as a defendant‘s claim for summary judgment, a strike out application, a stay, or a declaration that a party is a vexatious litigant. It is tempting, and frequently accurate, to regard the terms ―querulous‖ and ―vexatious‖ as synonymous. But, as a matter of law, they are not.

[13] Section 88B of the Judicature Act 1908 empowers the High Court, after the hearing of an application initiated by the Attorney-General (in respect of which the Solicitor-General has delegated authority), to order that no civil proceeding may be made without leave. It is a rarely exercised power. Certain principles have emerged so far as a s 88B order is concerned. As condition precedent to making such an order, the Court must be satisfied a litigant has issued proceedings in the High Court or any inferior Court which are vexatious, has done so without reasonable grounds, and has done so persistently. The courts have decided that the s 88B power is not one to be lightly exercised, and that preventing or inhibiting access to courts must be regarded as an unusual step justified only in extraordinary circumstances and on a properly established evidential basis. As will be apparent in a later section of this judgment (infra [48]), a psychiatric report, which might provide an evidential basis to establish a litigant is an incapacitated person, cannot easily be ordered under s 100 of the Judicature Act 1908 if the litigant opposes such an examination. In short, the tools available to a court to investigate whether a querulous or vexatious litigant labours under a significant personality disorder or mental illness are limited.

[14] The justification for a vexatious litigant order is not to avoid judicial stress and wrath. Rather, it is to protect defendants and conserve the limited resources of

the judicial system.² The issue was recently flagged by the Attorney-General, the Hon C F Finlayson at the August 2010 New Zealand Bar Association Conference. The Attorney-General stated: ³

The Bar Association‘s excellent submission on the duty to co-operate also referred to the need to deal with vexatious claims. I agree. I think the Rules Committee could usefully look at the ways in which unmeritorious proceedings can be brought to a speedy end. As you know, one can apply to strike out a proceeding, dismiss a proceeding because it is an abuse of process, or apply for defendant summary judgment. Perhaps these rules need to be revisited to ensure that they are effective.

I have doubts about their effectiveness. Take, for example, the rules relating to an application by a defendant for summary judgment. I thought the Court of Appeal set the bar too high in Westpac Banking Corp v MM Kembla New Zealand Ltd [2000] NZCA 319; [2001] 2 NZLR 298. There the court dismissed an appeal against the refusal of the Associate Judge to enter summary judgment against the plaintiff saying it was not enough to show that there are weaknesses in a plaintiff‘s case; the defendant had to prove on the balance of probabilities that the plaintiff could not succeed. Perhaps a more robust approach to defendant‘s summary judgment is required. I also think we could look at removing the requirement for all causes of action or parts of a claim to be dismissed before a defendant can bring a summary judgment application. I can see no logical reason for that constraint.

[15] The Attorney-General‘s comments focus, from a practical standpoint, on the need to modify the current judicial approach to defendants‘ summary judgment applications. However, it is noteworthy that the comments are, at a wider level, directed to ―vexatious claims‖ and that he suggests the need for a ―robust approach‖.

[16] At a time of economic constraint, particularly when large sections of New Zealand‘s population are ineligible for legal aid and where many grants of civil legal aid will eventually have to repaid, and when courts face increasing workloads, I consider that the absence of effective restraints on unmeritorious litigation by querulous and other litigants needs urgent examination and prompt action. A person on the recurring end of obsessive litigation is at financial risk. Judicial efficiency is

_impaired.

² See generally Attorney-General v Heenan [2009] NZHC 1070; [2009] NZAR 763 (HC); D v H [2002] 2 NZLR 242 (HC); Attorney-General v Brogden [2000] NZHC 816; [2001] NZAR 158 (HC); Attorney-General v Collier [2001] NZAR 137 (HC); Attorney-General v Hill (1993) 7 PRNZ 20 (HC).

³ Hon Christopher Finlayson, Attorney-General, Annual Conference of the New Zealand Bar

Association, 28 August 2010.

[17] Whether this task should be performed (initially) by the Law Commission, or be the subject of immediate legislative action, or should be left, as the Attorney- General in part proposed, to the Rules Committee, is not for me to decide. I see considerable merit in a structure whereby the High Court has power, on the application of a party, an official, or law officer, to prevent a specified litigant from commencing new proceedings in the High Court or lower courts without leave. Appointment of an amicus on such applications would be essential to ensure that the partisan interests of the applicant do not dominate. Essential too would be provision for a tight limit on subsequent leave application documents (say a one and a half page application and a four-page affidavit) with limited exhibits, to avoid the risk of the past grievances being regurgitated.

[18] Such a procedure, if it existed, would be more suitable than the problematic issue at the heart of this application of whether or not a litigant is incapacitated and needs assistance from a litigation guardian.

[19] I direct the Registrar to forward copies of this judgment, with this portion of it highlighted, to the Attorney-General, the Rules Committee, and the New Zealand Law Society for their consideration.

What does the plaintiff want?

[20] Mr Corbett explained his grievance to me clearly and with reasonable succinctness. The trigger of his stress is his perception that, around the time of his mother‘s death in 2005, his parents, who at that stage were being cared for, were subjected to undue influence from other members of Mr Corbett‘s family and by a solicitor. The result of that undue influence was that the plaintiff‘s parents did not implement what he considers they really intended, and that was to alter both their wills and the memorandum of wishes relating to the trust, so that the estates and the trust would be distributed equally between the plaintiff and his sister, rather than two thirds to one third in the sister‘s favour.

[21] The plaintiff believes that both his parents, before their deaths, had forgiven him for what they thought were his past transgressions. His mother forgave him

during a phone call in February 2005. On her death bed she was in a coma and was thus ―unable to confess she had done something terrible‖. Nonetheless, she smiled when, at a subconscious level presumably, she was aware the plaintiff was with her.

[22] The plaintiff believes that his father, in particular, was unduly influenced by a Panmure solicitor who acted for him, Mr Bruce Dell, as to how to invest his capital. Mr Dell has previously been sued by the plaintiff and those proceedings are apparently still afoot.

[23] Since his parents‘ deaths, the plaintiff has been represented by two counsel. He considers those counsel fell short in their responsibilities towards him and, in particular, were more interested in receiving their fees. They have not, he asserts, consulted with him properly over settlements.

[24] The plaintiff‘s current pleading is an amended statement of claim filed a few weeks ago. It is 87 pages long. It supersedes the plaintiff‘s original March 2010 statement of claim which was 28 pages long. It is badly organised, incoherent, fails to satisfy the basic requirements of pleadings, and, unfortunately, in many respects, is incomprehensible.

[25] Paragraph 1.1 on the document‘s first page give the flavour:

[1] As previously provided the defendant associated parties as time dated email transmission extensive exhibit evidence documents substantiate and support, the plaintiff has earlier requested on numerous occasions commencing through his previous acting lawyer in a letter dated on or about 5 May 2006 sent to the instructing solicitor Ms Quinn and or other respective lawyer associated representing parties, requesting a copy of the Baileys Realty agents

2006 marketing agreement.

...

[1.3] the trustee non responded to numerous emails requests sent to them from the plaintiff commencing from early November 2007 through to 2008, requesting final beneficiary entitled trust documents specifically identified and double check original ink certified verified.

...

[26] A substantial portion of the document relates to the plaintiff‘s version of what occurred at a judicial settlement conference on 24 January 2007. (This, of course, is privileged). The plaintiff‘s affection for Barley Life Green Powder is referred to (as, indeed, did the plaintiff refer to it in his oral submissions dealing with his mother‘s last few days). The plaintiff pleads that this powder was responsible for the brain repair of an Australian Wallaby winger whom a car injury had allegedly left in a vegetative state. There is reference to cost provisions.

[27] One bolded heading on page 75 perhaps hints at what the plaintiff conceives is his cause of action.

Cause of action – involving breach of trust and acts of deception and dishonesty and unfair and unreasonable treatment of a family trust final beneficiary pursuant to fundamental principles of natural justice and New Zealand law respectively breached trustee fiduciary duty/final beneficiary associated best business practice and lawfull [sic] protocol.

[28] The final paragraph of the amended statement of claim reads:

Pursuant to the fundamental best interests pursuant to logic common sense proficient natural justice exercised, I respectfully request leave of this Court to accept all aforesaid claimed documented statements, of which where found may be considered not immediately recognised relevant to this civil case proceeding of which may by way of association as is in criminal law, be considering to hold merit and be allowed/permitted to stand purely on the bases as a point of quick chronology cross reference during these court proceedings whilst bearing in mind the fact, society‘s fabric of crucial law and order respect is being tourn (sic) apart in this age of understanding evolutionary cause and effect paradigm actions upon us in this financial dependent, commercial driven, economic reliant equasive reality we all live and are dependent for tangible life advancement opportunity, how can it be expected of the masses at the bottom end of this socio-economic pyramid of society living a quagmire of negativity, confusion and chaotic understanding, be expected to fall into a fair and reasonable orderly law abiding line, if our leaders representing expected proficient fair and reasonable law of justice exercised, themselves are out of order protocol?

[29] In very broad and general terms, a statement of claim is an initiating pleading designed to inform the defendants and the Court what relief the plaintiff is seeking and on what basis. Mr Patterson, for the defendants, has filed affidavits setting out the impossibility of trying to discern what the basis of the plaintiff‘s claim is. Mr Baird, counsel for the defendants, was none the wiser. Nor am I and nor will be the Court of Appeal.

[30] Mr Baird submitted the traditional approach of seeking a strike out will not succeed, as quite simply, the kernels of a possible cause of action may be buried amongst the undisciplined welter of factual assertions.

[31] The plaintiff‘s approach to a question I asked him during the course of argument is illuminating and must, the amended statement of claim being his document, be given great weight. I asked him what exactly it was he hoped to achieve with his 87-page document. His answer was that he wanted to force the trustees to provide more information and more particulars so that he can ―find out what to sue them for‖.

Has the plaintiff been involved in previous similar litigation?

[32] The answer to this question is unquestionably yes.

[33] Reference can be made to the judgment of Woodhouse J in Corbett v Bolesworth, Western and Patterson⁴ delivered on 9 September 2009. The plaintiff commenced proceedings against the trustees of the same J M and J S Corbett Family Trust in 2005. He sought the removal of his niece, Ms Bolesworth, as a trustee. There was a judicial settlement conference in January 2007 at which the plaintiff was represented by counsel. At the conclusion of the conference a document was signed

entitled ―Joint memorandum of counsel regarding settlement of proceeding‖. Part of the settlement was that Ms Bolesworth resign as trustee, which she did. The plaintiff was also required to file a notice of discontinuance. He did not.

[34] Woodhouse J found that there was a fully binding settlement in respect of all the plaintiff‘s claims and that he should have filed a notice of discontinuance. The proceeding was struck out. The plaintiff was ordered to pay costs.

[35] The plaintiff sought leave out of time, almost seven months after Woodhouse

J delivered his judgment, to appeal to the Court of Appeal. It came to the

_{defendants‘ attention that the plaintiff had been filing documents with the Court of}

⁴ Corbett v Bolesworth, Western and Paterson HC Auckland CIV-2005-404-7172, 9 September

2009.

Appeal (some incomplete) without serving those documents and communications with the Court of Appeal on the other side. The plaintiff‘s leave application was 56 pages long.

[36] The plaintiff apparently appealed that judgment unsuccessfully to the Court of Appeal and went further, unsuccessfully seeking leave to appeal to the Supreme Court.⁵

[37] Mr Baird‘s submission was that, in addition to this current proceeding, other sets of related proceedings are extant. A search of the Auckland High Court Register suggests that, since 2005, there have been six proceedings, including one appeal from the District Court, and two judicial review applications against the Legal Complaints Review Officer. This current proceeding against the trustees and another proceeding against Mr Dell remain undetermined.

What do the defendants want and why?

[38] The defendants, relying on psychiatric evidence to which I shall shortly refer, assert that the plaintiff is caught by the r 4.29 definition of ―incapacitated person‖. Their application seeks to have a highly respected Auckland barrister, Mr Simon Jefferson, appointed as the plaintiff‘s litigation guardian. The Court accepts that Mr Jefferson, who is senior and well-known for his forensic competence and skills in the family law area (where an ability to deal with distressed and over-wrought people is a desirable attribute), would be an ideal litigation guardian if one is to be appointed.

[39] The defendants do not base their application on what would be an understandable hope that Mr Jefferson would discontinue the plaintiff‘s proceeding. Rather, their hope is that the litigation guardian will be able to sift through the plaintiff‘s voluminous documentation, assess his grievances, and come to a detached

_{and professional judgment as to whether the plaintiff has any tenable cause of action.}

⁵ Corbett v Western [2010] NZSC 95.

[40] The defendants have economic and practical concerns which I consider are legitimate. The current corpus of the trust is modest – at or just under $300,000. Litigation costs have been high. Their duties as trustees oblige them to defend the plaintiff‘s claims. They are not in the position of some commercial litigants who can afford expensive litigation to inflict economic damage on an opponent. Their position is perhaps akin to that of Brer Rabbit and the Tar Baby (my simile, rather than counsel‘s) inasmuch as every procedural or substantive strike they launch results in them becoming more enmeshed in litigation instigated by the plaintiff.

[41] The fact that the defendants are trustees aggravates the dilemma. I accept the concerns voiced by Mr Patterson. There are but two discretionary final beneficiaries of the trust: the plaintiff and his sister. The sister suffers from an advanced form of Alzheimer‘s disease and has a pressing need for assistance as her health deteriorates. The trustees‘ objective is to make a prompt and final distribution of the corpus of the trust. Yet, the corpus is being eroded by ongoing legal costs incurred by the need to deal with the plaintiff ‘s litigation. No constructive dialogue with the plaintiff has been possible. Settlement offers have been rejected by the plaintiff, his stance being that issues can only be resolved by court orders. Any discussions the trustees have had with the plaintiff have usually ended with the plaintiff making allegations of fraud and conspiracy.

[42] I record that Mr Patterson, now a retired solicitor, has a history of acting for the Corbett family. Mr Western is a cousin of the plaintiff‘s deceased father.

[43] It is the perception of both defendants, who have sworn affidavits, and also of

_{the defendants‘ niece:}

That the plaintiff may ultimately lose all his claims, which he does not appear

_{to understand or appreciate;}

The plaintiff has no appreciation of the adverse impact on the trust fund of

_{ongoing litigation and the financial effect that has on the two beneficiaries;}

That the plaintiff is often dogmatic and irrational;

That his oral and written communications are often confused; and

_{That his mental health appears to oscillate.}

[44] I accept the supporting affidavits raise genuine concerns expressed by responsible trustees. I detect no animus to the plaintiff or partisanship.

Is the plaintiff an incapacitated person for the purposes of rr 4.29 and 4.35?

[45] The defendants rely on two affidavits sworn by Dr P M J Brinded, a consultant forensic psychiatrist of Christchurch. Dr Brinded has complied with the code of conduct relevant to expert witnesses contained in Schedule 4 of the High Court Rules. Dr Brinded frequently gives evidence in the High Court in both the civil and criminal arena. He is well qualified and his opinions are respected.

[46] Dr Brinded‘s first affidavit was sworn in May 2010. His opinions were the result of what Mr Baird terms a ―desktop review‖ of the plaintiff‘s mental state. Dr Brinded was supplied with all affidavits and exhibits which the plaintiff had filed in this proceeding, and numerous documents drafted by the plaintiff which had been filed both in the Court of Appeal and in another proceeding. He was asked to provide his opinion on whether or not, on the balance of probabilities, the plaintiff was currently an incapacitated person within the meaning of rr 4.29, 4.30 and 4.35, and generally on the desirability or need for the appointment of a litigation guardian.

[47] Dr Brinded‘s second affidavit, sworn on 7 September 2010, was the result of a judgment of Hugh Williams J dated 25 May 2010 which ordered the plaintiff to attend an independent medical examination by Dr Brinded pursuant to s 100 of the Judicature Act 1908 and r 9.31. On that basis, Hugh Williams J (now retired) adjourned the defendant‘s application for the appointment of a litigation guardian part-heard.

[48] It is significant, as noted by His Honour at [24]-[25] of his judgment, that the plaintiff did not decline or ―necessarily oppose‖ the proposed s 100 medical examination. He did, however, require his own expert or doctor to be present. In the

event he was accompanied at the examination, conducted by Dr Brinded at an Auckland hotel, by his general practitioner, Dr Young, of whom there will be later mention.

[49] I do not intend to deal extensively with Dr Brinded‘s affidavits which effectively are unchallenged. The medical reports provided (in breach of timetable orders) by the plaintiff do not address Dr Brinded‘s conclusions. Dr Brinded‘s first affidavit properly states that it is not possible to make a definitive clinical diagnosis solely on an assessment of written documents. It was possible, however, to draw

―reasonable conclusions from written documents in the case of persons with identified mental illness that may point to the fact that their mental state is currently (temporarily or permanently) fragile or unstable‖.

[50] Dr Brinded found the documents to be largely unintelligible and incomprehensible, confused, confusing, rambling, lacking in structure, without clear identification of issues, prolix, and containing large tracts of irrelevant material. (This description of the plaintiff‘s documents is self-evident). He considered the plaintiff‘s documents to be ―very concerning from a forensic psychiatric assessment perspective‖. His conclusion was that there was a strong probability that the plaintiff was currently suffering from an unstable mental state which was impacting on his capacity to represent himself. He saw a ―great advantage‖ in the plaintiff and defendants having a litigation guardian appointed to assist the plaintiff in addressing and resolving his grievances and concerns.

[51] At that stage, Dr Brinded was aware from Clare Bolesworth‘s affidavit that the plaintiff had an apparent past history of mental disorder and had at one stage been a psychiatric in-patient at Kingseat Hospital. It was Ms Bolesworth‘s belief that the plaintiff had been diagnosed with a bi-polar disorder which had first manifested itself in his teenage years. Ms Bolesworth had attached Wikipedia details of bi-polar disorder to her affidavit which, as Hugh Williams J commented, could hardly constitute a satisfactory basis for a personal diagnosis of the plaintiff.

[52] There is also a reference in a 2001 discharge summary of the plaintiff‘s late

mother to the effect that the plaintiff suffered from bi-polar affective disorder.

Certainly, having been alerted to that possibility, Dr Brinded‘s first affidavit deposed that some of the evidence seemed to point to the plaintiff exhibiting symptoms which were consistent with the elevated mood state of a bi-polar affective disorder. In fairness, however, Dr Brinded commented that any diagnosis based on a review of the documents was ―constrained‖ by the lack of clinical contact and the opportunity to interview the person concerned and personally assess their mental state.

[53] Dr Brinded‘s second affidavit, sworn in September 2010, follows his examination of the plaintiff pursuant to Hugh Williams J‘s orders. The plaintiff related to Dr Brinded his mother‘s psychiatric history and also his own admission to Kingseat Hospital in the 1990s, which he described as an ―emotional, alcohol- related, psychological breakdown‖.

[54] Dr Brinded‘s opinion was that the plaintiff presented with signs of an abnormal mood which he believed was best characterised as a cyclothymic disorder being a recognised DSM-IV disorder.

[55] Dr Brinded regarded the plaintiff‘s presentation during his interview as being consistent with descriptions and behaviours deposed to by previous affidavits in support of the defendants‘ application.

[56] Dr Brinded described the plaintiff as being an ―intense and forceful man who had difficulty answering questions‖. He seemed to have unshakable views. He was at times irritable and somewhat excitable. His answers to questions were lengthy, often tangential or apparently muddled, but his views were held with great conviction and not amenable to change. He was not able to describe or discuss the legal issues pertaining to his case in an ordered, logical, or rational manner. Throughout the interview Dr Brinded often found it difficult to understand the point the plaintiff was trying to make.

[57] On Dr Brinded‘s observations, the plaintiff, throughout the interview, exhibited flight of ideas or flight of mind (one of the symptoms of cyclothymic disorder). His answers were loquacious, rambling, and tangential, Dr Young (the plaintiff‘s general practitioner who accompanied the plaintiff) frequently had to stop

him and remind him to answer the question. He was rigid in his views, untrusting of others (including lawyers and judges) and dogmatic. He expressed a deep sense of grievance, considering that he had been deprived of his rightful inheritance. He described his sister‘s Alzheimer‘s illness as ―hearsay‖. He appeared to be oblivious to or unconcerned about ongoing legal costs being incurred by the trust fund. His stated intention was ―the fair thing is to contest all the way to the full extent of the law‖.

[58] Dr Brinded referred again to the fact that the plaintiff‘s deceased mother suffered from bi-polar affective disorder which diagnosis made it more likely (presumably for genetic reasons) that her children might suffer from the same illness. That, however, was not Dr Brinded‘s diagnosis. Rather, he saw bi-polar disorder as being a major disorder, with cyclothymic disorder being a less severe part of the bi- polar disorder spectrum. Elevation of mood tends, in bi-polar disorder, to be on a spectrum with mania at the more severe end and hypomanic episodes at the lesser end of the spectrum, such as in cyclothymic disorder:

The key presentations are significant elevations of mood (hypermania) and significant episodes of depressed mood, all of which occur in a cyclical nature.

[59] After dealing with the various DSM-IV diagnostic criteria for a hypermanic episode, Dr Brinded commented that:

The elevated mood states of these disorders alter a person‘s thinking. Their thought processes become more rapid, they develop a plethora of ideas and plans, with thoughts occurring too rapidly for them to be auctioned sensibly or logically. Persons in that mental state, when writing documentation and speaking, display the same confusion of thought with rambling, tangential, disorganised documentation that reflects their racing thoughts and confused and disorganised mental state.

[60] Dr Brinded‘s prognosis was that the plaintiff‘s condition was unlikely to change, and that he would, over time, experience fluctuations of mood consistent with those described as part of the cyclothymic disorder. Although medication might assist as a mood stabiliser, there is no evidence at the interview that the plaintiff would accept such a proposal.

[61] Dr Brinded‘s relevant conclusions were:

(a) On the evidence he had seen (which must include his desktop review) and taking into account the plaintiff‘s presentation at the 22 July interview, his opinion was that it was reasonable to conclude the plaintiff was suffering from an unstable mental state in the form of cyclothymic disorder which was significantly impacting on his capacity to represent himself in litigation;

(b) The plaintiff was currently mentally impaired with respect to ongoing legal proceeding, in particular in his ability to understand the complex issues raised by his litigation and to make decisions about them, and more generally in relation to the affairs of the Corbett Family Trust. His impairment extended to his ability to represent his rights or protect his position in a legal forum and to manage his financial affairs in the event of any distribution to him of trust monies; and

(c) It was ―likely to be of great advantage to [the plaintiff] and to the Court and to the [Trust] to have a litigation guardian appointed to assist him in addressing and resolving his grievances and concerns and the litigation.

[62] Without appointment of a litigation guardian Dr Brinded held ―very substantial doubt‖ that the plaintiff would be able to:

(a) Present his case in a comprehensive and rational way;

(b) Understand and comply with the rules of Court and the applicable law;

(c) Consider the factual and legal issues before the Court in a reasoned manner;

(d) Deal rationally and in a reasonable way with the litigation; and

(e) Understand and make sound rational decisions on the issues arising from and in relation to the litigation.

[63] It goes without saying that Dr Brinded‘s opinion of the plaintiff ‘s psychiatric state fits squarely inside the first limb of the ―incapacitated person‖ definition in r 4.29(a). Dr Brinded‘s second report squarely addresses the aspects of the r 4.29 definition of ―incapacitated person‖. The report focuses on important aspects of the litigation and demonstrates the difficulties under which the plaintiff labours in those critical areas.

[64] In September 2010 the plaintiff filed an affidavit in opposition from his general practitioner, Dr Trevor Young. Dr Young had been the medical consultant of the Corbett family for a number of years. Dr Young states that he has been a doctor for 45 years, that he did three months of psychiatric training, and since being in general practice from 1972, has had to treat patients with psychiatric problems each day at work.

[65] I doubt whether it was professionally wise for Dr Young to enter the lists in this fashion. His affidavit is clearly partisan and, although it purports to attack some of Dr Brinded‘s conclusions, he does not have the necessary basis of specialist professional expertise to do that. Dr Young comments that Dr Brinded was ―a psychiatrist flown in from Christchurch chosen by Duncan Cotterill not very ethical‖. Dr Young opines that the plaintiff is ―untrusting of lawyers‖ because ―if you see how many lawyers have been employed and how far he has got, you must wonder how much money is leaching out of his inheritance especially when it is obvious (deponent‘s emphasis) what needs to be done. He wants justice‖.

[66] Dr Young confirms that the plaintiff suffers from episodes of elevated mood. He says the plaintiff has not developed the paranoid thought disorder that would distort his ability to get on with his landlord, neighbours, people he comes into contact with on a daily basis ―and the police have not been notified of public concern about his ‗paranoia‘. He may have a ‗bee in his bonnet‘ about his legal ideas but he is not mentally incompetent or a danger to the public‖.

[67] Dr Young does not consider the plaintiff (who is his patient) needs any further psychiatric treatment. He considers that conclusionary aspects of Dr Brinded‘s opinion have been exaggerated.

He is not mentally deficient and is not in need of a power of attorney. He can make competent financial judgments. He lives by himself – he buys food and cooks. He is not malnourished. He is clean and looks after his self-appearance. He does not neglect his appearance. He pays all his purchases and has no debts. He can handle money. He is not confused. He knows what time it is, what day it is, and got to the hotel for his appointment by public transport at an appropriate time. He is not confused. He knows that he is entitled to his inheritance and is confused by all this legality and different lawyers who are delaying settlement and who are trying to

―railroad‖ him by labelling him mentally incompetent to manage his affairs and he does not want or need a legal guardian. Please remember he has purchased and has continued to use a computer, he is not intellectually deficient, don‘t ruin his life.

[68] I have set out extensive portions of Dr Young‘s affidavit (who in addition to his basic qualifications has a diploma in obstetrics and is a Fellow of the Royal College of General Practitioners), to make apparent Dr Young‘s partisanship and in particular his perception that in most respects the plaintiff is able to lead a normal life. What Dr Young fails to do on an objective or professional basis is to focus on the plaintiff‘s ability to conduct litigation in a rational and discerning way. Dr Young cannot do that because he appears to have swallowed, hook, line, and sinker, his patient‘s assessment of his litigation grievances.

[69] Further materials were filed by the plaintiff literally on the eve of the hearing. These materials were filed in breach of timetable orders made by Lang J on 22

November 2010. It is notable (with regard to whether the plaintiff has the ability to follow litigation rules) that the plaintiff totally ignored helpful advice proffered by Lang J as to the need for expert witnesses to comply with the code of conduct prescribed by Schedule 4 of the High Court Rules and the r 4.29(a) issue with which they would have to grapple.

[70] Mr Baird submitted strongly that I should not read or accept these later materials which failed, in all respects, to comply with Lang J‘s direction. I ruled, nonetheless, that I would accept and consider the materials, partly because they appeared to me to deserve limited weight, and partly so that historical senses of grievance exhibited by the plaintiff were not aggravated.

[71] The materials relating to the plaintiff ‘s mental state are unsworn. They do not grapple with the opinions of Dr Brinded which I suspect the writers were not shown.

[72] The first is a letter dated 21 March 2011 addressed to the plaintiff by Annamarie Lowndes, the team manager of the mental health service of Counties Manukau District Health Board. The letter does no more than relay the information that Dr Rhajendra Pavagada had assessed that, on the information available to him, he did not observe any indication that the plaintiff was currently suffering from a major mental disorder. Nor did the history and examination suggest generalised anxiety disorder.

[73] Dr Pavagada, a consultant psychiatrist with the same DHB, wrote a letter on the same date to Dr Young, the general practitioner who had referred the plaintiff. Dr Young‘s referral significantly stated that the plaintiff suffered from severe anxiety, aggravated by a court case to remove his rights regarding financial matters to do with his inheritance.

[74] The plaintiff for his part requested from Dr Pavagada a ―competency assessment‖ which the DHB was not equipped to do. Nonetheless two assessments were carried out in November 2010 and February 2011 of 90 minutes and 60 minutes duration respectively. The plaintiff correctly told the interviewing psychiatrist a previous assessment of him had found him to be legally incapacitated to represent himself in court proceedings and to access funds from a family trust.

[75] The plaintiff told the interviewing clinician that he did not experience suspicious thoughts, but when specifically asked about hearing voices he said he did not want to comment and he did not want to answer that aspect further. The plaintiff self-reported that in the past he had used hallucinogens, magic mushrooms, LSD, cocaine, and marijuana. He had not used drugs or alcohol for a long time.

[76] The clinician (the plaintiff was for some reason tape recording the assessment) observed that the plaintiff brought a photograph of Sai Baba, an Indian guru or mystic to the interview. (The plaintiff informed the Court that Sai Baba

represented the ―highest vibration‖). The clinician considered the plaintiff‘s speech was ―excessive at times and difficult to interrupt‖. His thought process ―appeared over inclusive and circumstantial in nature‖. No self-harm, suicide, or homicidal thoughts were expressed. He exhibited no obsessions or phobias. He did ―have ideas of persecution about the justice system and inflated ideas about self‖. The plaintiff did not want to answer a question about perceptual abnormalities.

[77] Dr Pavagada‘s opinion was that, based on his limited contact in November

2010 and February 2011, he did not observe any indication the plaintiff was currently suffering from an Axis I disorder. The examination did not suggest any generalised anxiety disorder, but Dr Pavagada comments that his conclusion was limited by the duration of his contact. His cognitive functions were within normal limits. Continuation of Diazepam medication was recommended.

[78] The third report from Dr Dath, a senior clinical psychologist, dated 14 March, was also placed before the Court by the plaintiff. The referral to Dr Dath was from Dr Pavagada. Testing was conducted over three periods. The report writer stated the plaintiff:

... was prone to be irritable while describing his present circumstances but not directed towards the assessor. He appeared to be mistrusting of others including justice system (blaming lawyers for malpractice, corruptions, angry towards justice system) and seemed to have inflated ideas about what he intended to do (e.g. ―clean up justice system‖). Mr Corbett thought process appeared to be over inclusive (excessive details), circumstantial (nondirective) in nature. At time he seemed quite needy, self-centred (not pushy) however, he maintained good boundary. No overt sings (sic) of any perceptual disturbances present (during assessment), mood was stable ...

Mr Corbett persevered with difficult items and seemed motivated to do well. Mr Corbett appeared to tolerate the sessions well and showed no indication of fatigue. His overall insight seemed limited?

[79] Dr Darth‘s conclusion was the plaintiff‘s overall general behaviour and thought processes seemed suggestive of ideas of mistrust, over inclusive/circumstantial nature of thought process which in the clinician‘s view

―appears to be his personality nature‖. Nonetheless there was no evidence of

ongoing difficulties or dysfunctions with his general cognitive functions.

[80] Thus, in general terms, the late reports submitted by the plaintiff, which I have read and set out where relevant, point to a man who at most levels of everyday life is functioning normally. There is nothing, however, inconsistent with Dr Brinded‘s more focused assessment. Indeed some aspects of Dr Dath‘s assessment are consistent with Dr Brinded‘s observations.

Should a guardian ad litem be appointed under r 4.35? Is the plaintiff an “incapacitated person”? If so should the Court, in its discretion “otherwise order” that the plaintiff should not have a litigation guardian?

[81] The substantive requirement under r 4.30(1) (supra [2]) is that an incapacitated person must have a litigation guardian. Rule 4.35 sets out the process whereby litigation guardians for incapacitated people may be appointed. I record, for the purposes of r 4.35(2)(e)(iii), that Mr Jefferson has consented to being appointed a litigation guardian. I also record, for the purposes of r 4.35(3), that the plaintiff has expressed the strong view that he does not wish to have a litigation guardian appointed for this proceeding.

[82] The starting point must be the obvious presumption that a litigant, including a litigant in person is competent: see generally Erwood v Maxted.⁶ From that starting point there is an inquiry as to whether the litigant is able to understand the nature of the litigation, its possible outcome, and its associate risks.⁷ This approach has been endorsed by the Court of Appeal in Erwood⁸ with reference in particular to Masterman-Lister v Brutton & Co⁹ and the South Australian authority to which counsel referred, Dalle-Molle (by his Next Friend Public Trustee) v Manos.¹⁰

[83] The analysis and approach of Debelle J in Dalle-Molle was a central plank of this part of Mr Baird‘s submissions. Debelle J‘s judgment is lucid and sensible. This is a first instance judgment of one of the smaller Australian States which determines civil appeals by a Full Court of the Supreme Court rather than by a dedicated Court

_{of Appeal, but the judgment is persuasive.}

⁶ _{Erwood v Maxted [2008] NZCA 139.}

⁷ _Ibid.

⁸ _{At [5].}

⁹ _{Masterman-Lister v Brutton & Co [2003] 1 WLR 1511 (CA).}

¹⁰ Dalle-Molle (by his Next Friend Public Trustee) v Manos [2004] SASC 102.

[84] The relevant South Australian legislation related to appointment of a ―next friend‖ for a ―person under disability‖. The relevant Australian rule defined a person under a disability as a person suffering from physical weakness or intellectual mental impairment who was ―unable to give sufficient instructions to take, defend, or compromise proceedings‖. These words mirror almost exactly the provisions of the r 4.29(b) definition of an incapacitated person.

[85] The plaintiff in that case was 38. Twenty years previously he had sustained serious head injuries and brain damage as a result of a motor vehicle accident. He suffered from extensive neurological impairment which caused epilepsy and some loss of intellectual and cognitive ability. He also suffered from various emotional and personality changes, yet he was able to hold his job as a security guard, was able independently to organise his basic daily affairs and financial affairs, and had been able to give previous instructions in both Family Court litigation and litigation arising out of the motor vehicle accident. On the other hand he demonstrated emotional instability, was incapable of assessing complex financial transactions, and when under stress or without sufficient sleep had compromised mental capacity.

[86] Debelle J held the impairment flowing from the motor accident affected the plaintiff‘s cognitive and intellectual skills to the extent that he was unable to give sufficient instructions.

[87] Arguing from the facts of one case by analogy to the facts of another case is rarely helpful and Mr Baird did not attempt that exercise. Rather he pointed to

_{various dicta in Dalle-Molle which I accept are equally applicable to r 4.29.}

The inquiry must be directed to the particular transaction for which a person must have the necessary mental capacity.¹¹ In that regard the Judge referred to the High Court of Australia decision of Gibbons v Wright:¹²

The law does not prescribe any fixed standard of sanity as a requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall

¹¹ _{At [16] and [19].}

¹² Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423 at 437.

have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation.

_{The test is effectively ―issue-specific‖.}¹³

The issue of ―instructions‖ related not only to prosecuting or defending proceedings but also compromising them. The underlying policy here was protection of both parties.¹⁴ The Judge referred to dictum of Chadwick LJ in Masterman-Lister at [65]:

The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; the Court is concerned not only to protect its own process but provide protection to both parties to litigation which comes before it.

As to the issue of ―sufficient instructions‖ Debelle J considered¹⁵ that the level of understanding of legal proceedings needed to be greater than ―the mental competence to understand in broad terms what is involved in the

_{decision to prosecute, defend, or compromise those proceedings.}

[88] An analysis of Dalle-Molle does not make any easier the evaluation which the defendants‘ application requires. There is no need to repeat the available evidence. The ―issue-specific‖ test is whether the plaintiff is an incapacitated person for the purposes of this proceeding.

[89] At one level the plaintiff is clearly able to lead a self-sufficient life unimpaired by the disorder which Dr Brinded has diagnosed.

[90] At a second level, the plaintiff is well able, as I observed when he addressed me at length, to articulate his concerns clearly. For some of the minutiae of the litigation history, such as the dates and times of letters and emails, his memory was prodigious.

[91] But there is clearly a lack of focus, an inability to articulate or identify objectives, an inability to ascertain matters of relevance and weight, a total inability

¹³ _{See Masterman-Lister supra 11 at [27] and [62].}

¹⁴ _{At [21].}

¹⁵ At [26].

to understand such concepts as res judicata and the function of appellate courts, and an inability to present pleadings and documents in a concise and effective manner.

[92] The plaintiff‘s cyclothymic disorder and the related phenomenon observed and reported by Dr Brinded coupled with the plaintiff‘s determination to act for himself produce, so far as this proceeding is concerned, a seething incomprehensible mess.

[93] I unhesitatingly conclude that the plaintiff is an incapacitated person in the narrow and specific area of conducting this proceeding. His current mental impairment, being rooted in a cyclothymic disorder, renders him incapable of understanding the issues on which decision and judgment are required as a litigant.

[94] My conclusion is that it is essential for a litigation guardian to be appointed. This is not a case where, in terms of r 4.30(1), I would contemplate for one moment

―otherwise ordering‖.

[95] Obviously it is necessary for a Court faced with this situation to consider the overall justice of the situation. I consider it would be wrong in principle for a court to alight on the appointment of a litigation guardian as a convenient remedy to deal with querulous or obsessive litigants. I have not done so here. I also consider courts need to be very cautious in areas of mental disorders before making an order which would disempower personally the litigant. The authorities to which I have referred stress the importance of caution.

[96] As the plaintiff is a self-represented litigant, the appointment of a litigation guardian essentially to stand in his stead in these proceedings will have a profound and disempowering effect. It is a fundamental tenet that any person may bring or defend a claim in person in any court.¹⁶ The Court of Appeal has noted that ―a natural person of sufficient age and capacity cannot be denied the right to present his case in person‖.¹⁷ Also of relevance is s 27(1) of the New Zealand Bill of Rights Act

_{1990, which provides that every person has the right to observance of the principles}

¹⁶ For further discussion of the right, see William Fotherby ―Law that is Pro Se (Not Poetry): Towards

_{a System of Civil Justice that Works for Litigants Without Lawyers‖ (2010) 16 Auckland U L Rev 54.}

¹⁷ Re G J Mannix Ltd [1984] 1 NZLR 209 at 312 (CA).

of natural justice by any tribunal which has the power to make a determination in respect of that right.

[97] However, this right is not an absolute one. In both the criminal and the civil context, the fact of mental impairment may override a person‘s right to appear pro se. In a civil sphere, this right is also qualified by the vexatious litigant process (supra [6] onwards). This is proper, as a mentally impaired self-represented litigant will run the real risk of subverting his own case. It is therefore clear that properly justified limits may be placed on this principle. Thus, the plaintiff ‘s mental impairment is coupled with persistent and querulous litigation against the defendants. It is therefore in the best interests of both parties that a litigation guardian be appointed.

[98] The starting point, as I have stated, is the presumption that the plaintiff has capacity. It is for the defendants to prove his incapacity on the balance of probabilities. My determination to appoint a litigation guardian and not to order otherwise is reinforced by three considerations. The first is that one of the purposes of appointing a litigation guardian is to protect not only the incapacitated litigant but the other parties (supra [40]-[41]). The defendants need protection.

[99] The second is I consider, as a matter of policy (rather than administrative convenience), that courts, the arbiters of justice, have a duty to ensure that litigation does not become distorted, delayed or abused at the behest of incapacitated people, particularly incapacitated litigants in person.

[100] Thirdly, and most importantly, the defendants are trustees. They are subject to rules and obligations which courts of equity will enforce. Unlike many litigants, the defendant trustees are not pursuing their own interests. They are instead discharging their obligations as trustees to guard the equitable interests of the beneficiaries. It is very easy to lose sight of these truisms. I have the firm view that any court of equity which permits the plaintiff to continue litigating in the haphazard and undisciplined way he has, would be failing to discharge the obligations which Chancery courts have developed over the centuries.

[101] I now stand back to assess my conclusion against the all-important constitutional background. Access to justice rides high. So too does the plaintiff‘s right to represent himself. But, as is clear from the previous section of this judgment, those rights must be balanced against the rights of other parties and the core interest of courts to ensure that their processes are not paralysed or abused. Standing back, I believe that, in the unusual procedural circumstances of this case, the right balance has been struck.

[102] I have some uneasiness about r 4.35 being the vehicle for striking the balance. It is fortuitous that there is available evidence demonstrating the plaintiff‘s unfortunate mental health, which qualifies under the r 4.29 definition. A better procedural remedy is required, for the reasons set out in the second section of this judgment (supra [6]-[19]). Not all obsessive, querulous or vexatious litigants can be described as incapacitated, although doubtless most will labour under some form of mild or moderate personality disorder.

[103] My uneasiness, however, cannot be a valid reason, in the circumstances of this case, to exercise my discretion against appointing a litigation guardian.

Result

[104] Satisfied as I am that the plaintiff is an incapacitated person for the purposes of this litigation, I appoint Mr Simon Jefferson, Barrister of Auckland, to be the plaintiff‘s litigation guardian in this proceeding.

Costs

[105] Prima facie the defendants are entitled to costs. However, given the complexities of the issue, the need to consider the overall situation of the Trust and the beneficiaries, and what I fear will be an inevitable appeal, costs are reserved.

[106] I list this proceeding in the Duty Judge List to monitor progress and consider whether further timetable orders and directions are necessary at 10 am on Wednesday 18 May 2011. Obviously Mr Jefferson will need to attend.

..........................................
Priestley J