NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE
FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/	
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE	
CIV-2023-454-014
[2023] NZHC 2249	

BETWEEN	P
Appellant	
AND	O
Respondent	

Hearing:	15 August 2023	
Counsel:	Appellant in person
C T C Bell for Respondent
G Niven for Chief Executive, Oranga Tamariki L M Faimalie – lawyer for the child
S E Hughes – counsel to assist the Court	
Judgment:	18 August 2023	

JUDGMENT OF RADICH J

[1]	The only issue before the Court at this point in the proceeding is whether P is an incapacitated person (as that term is defined in the High Court Rules) such that litigation guardian should be appointed as her representative in this appeal.

[2]	For the reasons I go on to give, I am satisfied that P is an incapacitated person and that a litigation guardian should be appointed to assist her.

[3]	The appointment of a litigation guardian in circumstances such as these has been described as being for the purpose of levelling the playing field to enable

P v O [2023] NZHC 2249 [18 August 2023]

someone who needs that assistance to be able to participate in a proceeding on equal terms with other litigants.1 That is what the Court is seeking to achieve here.

Background

[4]	P and O separated in June 2020 when their daughter (who I refer to in this decision as “A”) was 18 months old. Later that year, proceedings were commenced in the Family Court over contact on the part of O and P respectively with A.2

[5]	The Family Court proceedings have become complex. Interim contact orders were made in O’s favour in late 2021. The orders were not complied with by P. The overarching factor, from which the broad range of issues in the Family Court stem, was described in her Honour Judge Moss’ 9 December 2022 decision in the following way:3
[2]	The mother fervently believes the father has sexually assaulted A, and that he remains a serious risk to her safety. She will not communicate with the father, and will only enable contact if she is required to by Court order. She has previously thwarted court orders for contact.

[3]	The father wants to share the care of A with the mother; but is frightened that the mother’s beliefs about his assaulting A, which he rejects, will cause harm to A, because the mother will infect A with this belief.

[6]	Events, following from P’s beliefs, led, on 28 April 2022, to the Family Court making an order on a without notice application placing A under the guardianship of the Court, appointing Oranga Tamariki as agent and directing the transfer of A’s care to O.

[7]	Various applications from both parties followed in the Family Court. They included an application for a final order placing A under the wardship of the Court, an application by P to discharge wardship orders and applications by both P and O for the day-to-day care of A under the Care of Children Act 2004 (the 2004 Act).

1	S v Attorney-General [2012] NZHC 661 at [47].
2	The proceedings related to an extent also to another of P’s children not related by blood to O but the proceedings are concerned primarily with the interests of A.
3	[O] v [P] [2022] NZFC 12713.

[8]	Following a five-day hearing in late November and early December 2022, Judge Moss gave a detailed decision in December 2022. It is not necessary, for the purposes of determining the issue that is the subject of this decision, to describe the Judge’s reasons. Suffice to say that the Judge made orders:4

(a)	Continuing A’s placement under the guardianship of the Court pursuant to s 31 of 2004 Act, with Oranga Tamariki as the Court’s agent – on several conditions set out in the decision;

(b)	Granting interim day-to-day care of A to O;

(c)	Granting P contact with A as arranged and supervised by Oranga Tamariki on certain terms;

(d)	Granting a final protection order in favour of O against P subject to certain conditions.

(e)	Requiring both P and O to undertake programmes.

[9]	P’s notice of appeal was filed on 18 January 2023. After several preliminary matters were dealt with at case management conferences,5 a one-hour hearing to deal with procedural matters in advance of the hearing of P’s  appeal  was scheduled for   8 May 2023. Because, at that time, P had become subject to orders under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the 1992 Act), Grice J appointed counsel to assist the Court in making relevant inquiries to enable the Court to consider whether or not a litigation guardian should be appointed for P under r 4.30 of the High Court Rules 2016.6 Ms Hughes was appointed as counsel to assist and the Court is obliged to Ms Hughes for the assistance she has provided.

[10]	In a memorandum of 1 June 2023, Ms Hughes explained that P had been an inpatient at Palmerston North Hospital for a time but had, on 25 May 2023, returned

4	At [221].
5	[P] v [O] HC Wellington CIV-2023-454-14, 21 March 2023 (Minute of McQueen J) and [P] v
[O] HC Wellington CIV-2023-454-14, 26 April 2023 (Minute of Gwyn J).
6	[P] v [O] HC Wellington CIV-2023-454-14, 8 May 2023 (Minute of Grice J).

home. A compulsory treatment order in the community was granted for P on 1 June 2023. P authorised applications and reports relating to her hospital admission to be sent by the hospital to Ms Hughes.

[11]	On 16 June 2023, Ms Hughes, having then received relevant records from   Te Whatu Ora, filed a further memorandum attaching the following documents:

(a)	An oral judgment of Judge Broughton of 10 May 2023;7

(b)	A Certificate of Final Assessment of 23 May 2023 under s 14 of the 1992 Act;

(c)	An application for a Compulsory Treatment Order dated 23 May 2023;

(d)	A clinical report for the Director of Area Mental Health Service dated 23 May 2023;

(e)	A Notice to Patient Subject to s 13 Assessment Notice directing change from inpatient to outpatient status dated 24 May 2023; and

(f)	A psychiatric assessment report/treatment plan dated 16 December 2022.

[12]	Judge Broughton’s 10 May 2023 decision followed an application by P under s 16 of the 1992 Act to be discharged from care under the 1992 Act. The issue in the case was whether P was subject to a mental disorder as that term is defined in the 1992 Act. The Judge found that she was.8

[13]	As Ms Hughes observes, the documents provided were prepared for different purposes than assessing capacity under r 4.30 of the High Court Rules. They related to assessment and treatment under the 1992 Act and to ACC issues. However, I accept Ms Hughes’ submission that the information provided is relevant to a consideration of

7	Te Whatu Ora v [P] [2023] NZFC 4907.
8	At [23].

incapacity under the High Court Rules and that no further reports need be ordered by the Court.

[14]	While noting that the decision on whether or not P is an incapacitated person for the purposes of rr 4.29 and 4.30 of the High Court Rules is a question for the Court to determine, Ms Hughes concluded, based upon her assessment of the documents, as follows:

The fact of [P] being the subject of a Compulsory Treatment Order albeit in the community, along with her diagnosis recorded in the ACC Psychiatric Assessment/Treatment Plan which includes a likely delusional disorder but not schizophrenia would in counsel’s view tend to suggest that she is indeed incapacitated.

[15]	In a minute of 26 June 2023, Robinson J made arrangements for this hearing on the basis that all parties needed to be present and to have the opportunity to be heard when the Court was considering the potential exercise of its powers under      rr 4.29 and 4.30.9

Legal principles

[16]	Under r 4.30 of the High Court Rules 2016 an incapacitated person must have a litigation guardian as his or her representative in any proceeding unless the Court orders otherwise. These terms are defined in r 4.29 in the following ways:

For the purposes of these rules,—

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

litigation guardian

(a)	means—

(i)	a person who is authorised by or under an enactment to conduct proceedings in the name of, or on behalf of, an

9	[P] v [O] HC Palmerston North CIV-2023-454-014, 26 June 2023 (Minute of Robinson J).

incapacitated person or a minor (but only in a proceeding to which the authority extends); or

(ii)	a person who is appointed under rule 4.35 to conduct a proceeding; and

(b)	has the same meaning as the expression “guardian ad litem”

minor means a person who has not attained the age of 18 years; and a person is of full age if he or she has attained the age of 18 years.

[17]	Under r 4.35(2) the Court may appoint a person as a litigation guardian if it is satisfied that:

(a)	the person for whom the litigation guardian is to be appointed is an incapacitated person; and

(b)	the litigation guardian—

(i)	is able fairly and competently to conduct proceedings on behalf of the incapacitated person; and

(ii)	does not have interests adverse to those of the incapacitated person; and

(iii)	consents to being a litigation guardian.

[18]	The Court may have regard to any other matters as it considers appropriate, including the views of the person for whom the litigation guardian is to be appointed.10

[19]	A litigation guardian may do anything in relation to a proceeding that the incapacitated person could do if he or she were not incapacitated.11

[20]	A robust case is needed to satisfy a court that a person is incapacitated. Affidavits, annexing reports from doctors who are familiar with the person, have been accepted as sufficient evidence.12

[21]	The High Court Rules were amended in August 2007 to preclude the presumption that a person subject to a compulsory treatment order was incapacitated but it is one of the factors to be taken into account alongside others.13 The changes

10	High Court Rules 2016, r 4.35(3).
11	Rule 4.38; and S v Attorney-General, above n 1, at [33].
12	See Cade v Cade [2016] NZHC 1624; and Causer v Causer HC Whangarei CIV-2008-488-830, 13 September 2010.
13	Amended by s 8 of the High Court Amendment Rules 2007.

reflected then recent decisions on the capacity to conduct proceedings, including Masterman-Lister v Brutton and Co and Dalle-Molle (By His Next Friend Public Trustee) v Manos and Anor, and were consistent with procedural provisions that now apply in England and a number of Australian States.14

[22]	However, it has been said that the fact that a person is subject to compulsory treatment or an order for compulsory treatment would usually be a sufficient basis for finding the person is an “incapacitated person”.15 Ultimately, incapacity is a question of fact for the Court.

[23]	The principles that should be taken into account in considering whether a person is “incapacitated” were expressed by the Court of Appeal in Corbett v Patterson in the following way:16

(a)	the starting point is a presumption of capacity;

(b)	the burden of proof, on the balance of probabilities, is on the party asserting incapacity;

(c)	the enquiry should focus on the subject parties’ role in the specific litigation at issue and the complexity of the litigation will be relevant;

(d)	the enquiry is not concerned with the sanity of the subject party. Nor is it concerned with the capacity of the subject party to make other legally effective decisions such as the making of a contract or will. The general approach is that capacity is to be judged in relation to the decision or activity in question and not globally. Evidence of the capacity to make decisions which have legal consequences and to conduct ordinary day to day affairs will be relevant but must be weighed with other evidence;

14   High Court Amendment Rules (explanatory note), referring to  Masterman-Lister v Brutton and  Co [2003] 3 All ER 162; and Dalle-Molle (By His Next Friend Public Trustee) v Manos and Anor [2004] SASC 102.
15 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR4.29.01].
16 Corbett v Patterson [2014] 3 NZLR 318 (CA).

(e)	something more is required than mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise the proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and its risks, including the prospect of an adverse costs award; and

(f)	the fact that the subject party is vulnerable to exploitation or prone to rash or irresponsible decisions may be relevant but it does not necessarily follow that the party is unable to understand the issues or give sufficient instructions.

[24]	It is important also to recognise that in some cases a person’s right to access to justice may be impeded if they cannot appear and conduct litigation in their own right or with the assistance of counsel.17

Discussion

[25]	Robinson J made, by consent, orders that counsel for the respondent should not receive the attachments to Ms Hughes’ 16 June memorandum and I agree it is appropriate to proceed on that basis.18 The attachments contain highly sensitive information, personal to P.

[26]	I have read and considered carefully the oral judgment of Judge Broughton and the reports referred to in paragraph [11] above. The reports themselves span approximately 45 pages. For the same reasons as those relating to the restrictions on distribution of the reports, it would not be appropriate for me, in this decision, to recount their details. I can say that, from the clinical findings in the reports and the delusional disorder diagnoses expressed in them, the definition of “incapacitated person” in r 4.29 can readily be met.

[27]	P has at least a temporary mental impairment, the features of which reduce her insight and judgment in relation to the particular litigation in issue. That is not to say that P is incapacitated in a broader sense. As Ms Hughes has said, in other respects, P

17	At [34].
18	Minute of Robinson J, above n 9.

is able to cope adequately. She can manage her household, provide parenting care for her other children and deal with day-to-day decisions.

[28]	As the Court of Appeal said in Corbett, capacity for the purposes of rr 4.29 and
4.30 is to be judged in relation to the decision or activity in question and not globally; it is not concerned with the sanity of a person.

[29]	I am satisfied on the basis of the detailed information available to the Court that P is not, as a result of conditions affecting her, able to understand fully the nature of the litigation, its purpose, its possible outcomes or risks, including the prospect of costs awards. This is a complex proceeding. A broad range of applications were in issue in the Family Court and the notice of appeal in this Court raises multiple grounds. A range of issues with the judgment under appeal are raised. The grounds of appeal allege a number of statutory breaches arising from the Family Court decision, including provisions in the United Nations Convention on the Rights of the Child. Twenty-four different questions of law are posed.

[30]	It will be most important, in A’s interests19 and in the interests of the just and expeditious management and disposal of the appeal, that the appeal is, as Ms Faimalie put it, able to proceed streamlined way. The issues need to be organised and each of the procedural matters identified in sch 6 of the High Court Rules needs to be addressed. Schedule 6 requires the Court to give directions, for example, on the categorisation of the proceeding for costs purposes, on the payment by an appellant of security for costs, on the filing of points of appeal, on the filing and service of a common bundle of paginated and indexed copies of relevant documents from the Family Court and on the exchange of written legal submissions. I am satisfied that P is not capable of understanding the issues that need to be addressed in order to comply with these interlocutory obligations or to conduct the appeal as a whole.

[31]	O does not take a position on this application. Nor does the Chief Executive of Oranga Tamariki. Similarly, Ms Faimalie does not take a position but does emphasise that, in A’s interests, the appointment of a litigation guardian would assist in ensuring that the proceedings are dealt with as expeditiously as is possible. Ms

19	Having regard in particular to s 4 of the Care of Children Act 2004.

Faimalie referred to the evidence in the Family Court as having been significant, and therefore, to the need to be well organised in an appeal of this sort.

[32]	P is deeply concerned about the way in which she perceives she has been treated in the justice system as a whole. She feels she has been treated poorly, and that she has been wronged, by all participants in the process. She referred to having lost all trust in the system. She is wishing to reflect further on her position in the litigation.

[33]	The sense I have, from discussions with P during the hearing of this application, is that, while not consenting to the appointment of a guardian, it is not something that she actively is opposing and that she understands the nature of the appointment.

[34]	In all of these circumstances, I find that P is an incapacitated person under     r 4.29, and that it is necessary for the Court to  appoint a litigation guardian under     r 4.30.

[35]	It will be important, given the concerns P has expressed, for the litigation guardian to be someone who has relevant expertise but who has not been involved in the proceeding before. I have, with assistance from Family Court coordinators, given careful thought to who might be an appropriate person and I have concluded that   Ms Kelly Neill should be appointed. Ms Neill is a barrister and solicitor with family law expertise who practises from Levin. She meets in all the relevant ways the criteria for appointment in  the facts and circumstances  of this case.  It is understood that  Ms Neill is available for this appointment and the Court thanks her for that.

[36]	The appeal should now be the subject of a case management conference under r 7.14 of the High Court Rules. The conference should address each of the matters set out in sch 6 of the High Court Rules.

Orders

[37]	I make the following orders:

(a)	Ms Kelly Neill is appointed as the litigation guardian for P in the conduct of this proceeding.

(b)	A case management conference is to be convened, under r 7.14. I ask the Registry to liaise with Ms Neill, Mr Bell, Mr Niven, Ms Faimalie and Ms Hughes over an appropriate date and time. One hour should be allocated for the conference.

(c)	The costs on this application are reserved.

Radich J

Solicitors/Counsel:
Cullinane Steele, Wellington for Respondent
Jacobs Florentine, Palmerston North – lawyer for child Crown Law Office, Wellington – for Oranga Tamariki S E Hughes, Johnsonville – counsel to assist Court