Gilbert [2014] NZHC 22 (29 January 2014)

Last Updated: 18 August 2017

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-000029 [2014] NZHC 22

IN THE MATTER OF the estate of Bede William Gilbert, deceased, application for appointment of litigation guardian

INGRID ANNE NICHOLSON Applicant

Hearing: On the papers

Judgment: 29 January 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 29 January 2014 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date..............................}

GILBERT [2014] NZHC 22 [29 January 2014]

[1] This is a without notice application for the appointment of a litigation guardian to represent an infant in proposed litigation. Under r 4.31 of the High Court Rules a minor must have a litigation guardian as his or her representative in any proceeding unless the Court orders otherwise. The appointment should precede the bringing of the proceedings.¹

[2] The child is 11 month old Lydia Grace Nivick. She is the younger daughter of Bede William Gilbert, who died intestate on 1 April 2013. Mr Glibert’s adult daughter and Lydia’s half-sister, Ingrid Anne Nicholson, intends to apply for letters of administration in respect of her father’s estate.

[3] The litigation guardian Ms Nicholson seeks to have appointed is a solicitor, Giles Brant, of the firm Stace Hammond Lawyers. Although Lydia’s mother, Stacey Nivick, is still alive the basis for the application is that she would be unsuitable to act as a litigation guardian. In particular, there is concern that Ms Nivick could not be relied on to make decisions objectively in favour of Lydia and a significant risk that she would put her own interests ahead of those of her child.

[4] Two affidavits filed in support of the application canvass the reasons for this assertion. The affidavit evidence comes from Ms Nicholson and from a friend of Mr Gilbert’s, Ms Malins. They say that Ms Nivick has been and was as recently as Mr Gilbert’s funeral in April 2013, a drug user. Ms Nicholson knows Ms Nivick personally as an acquaintance of Ms Nicholson’s mother and knows her to be a habitual drug user. Her evidence includes a statement that Ms Nivick was “high on morphine” on a visit to Ms Nicholson’s mother prior to the funeral and, in that state, breastfed Lydia. Ms Malins gives evidence of statements by Mr Gilbert to her about Ms Nivick’s drug use. Both Ms Nicholson and Ms Malins describe inappropriate behaviour by Ms Nivick at the funeral. Ms Malins was sufficiently concerned about this aspect of Ms Nivick’s life that she notified Child Youth & Family following the funeral.

[5] I am satisfied from the evidence before me that it would not be appropriate to

_{appoint Lydia’s mother as her litigation guardian. A person independent of the}

¹ C v S [2007] NZFLR 583.

family is appropriate. Counsel, Mr Quinn, has provided a memorandum confirming that Mr Brant is willing to accept appointment. I therefore make an order that Giles Brant is appointed litigation guardian for Lydia Grace Nivick in proceedings to be brought by Ingrid Anne Nicholson for letters of administration in respect of the

_{estate of Bede William Gilbert.}

P Courtney J