Du Preez v Estate of Doornekamp-Wellman

[2022] NZHC 1278

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-14

[2022] NZHC 1278

BETWEEN

WILLEM DU PREEZ

First Plaintiff

GETTA SNIJDERS

Second Plaintiff

AND

ESTATE OF BARBARA ANNE DOORNEKAMP-WELLMAN

First Respondent

PETER CRELLAN KELLY (as executor) Second Respondent

PETER CRELLAN KELLY,

PPPRA Property & Welfare (discharge) Third Respondent

PETER CRELLAN KELLY (as nephew)

Fourth Respondent

On the papers:
Appearances:	First and Second Plaintiffs in Person First Respondent in Person
Judgment:	1 June 2022

JUDGMENT OF CHURCHMAN J

[1]    By minute of 12 April 2022,1 Johnston AJ made directions timetabling an application to strike out these proceedings. That matter is now being set down to proceed to a fixture on Monday 27 June 2022.

1      W Du Preez & Anor v P C Kelly & Ors CIV-2022-485-014, Minute of Johnston AJ, 13 April 2022.

DU PREEZ & ANOR v ESTATE OF BARBARA ANNE DOORNEKAMP-WELLMAN & ORS [2022] NZHC 1278 [1 June 2022]

[2]    By memorandum dated 27 April 2022, the first and second plaintiffs requested that the Court appoint an amicus “…to perform an array of roles normally performed by plaintiffs’ counsel…”.

[3]    The grounds relied on in support of this application were that the plaintiffs were self-represented and could not afford to employ a lawyer. The plaintiffs had previously engaged a lawyer and had had to take out a loan to meet the lawyer’s costs and the memorandum indicated they were struggling to pay the interest on the loan.

[4]    The application is opposed by the first defendant. The first defendant is an estate of which Peter Kelly is the executor, the other three defendants appear to be Mr Kelly sued in different capacities.

[5]    The memorandum filed by Mr Kelly addresses issues additional to the request for appointment of an amicus. These include:

(a)amendment of the Minute [of Johnston AJ dated 13 April 2022] to record the appearance at the case management conference by Peter Kelly for the First to Fourth named defendants;

(b)the appropriate intitulment [sic] for the proceeding; and

(c)minuting the oral order made by consent for a “tae ho” on further applications and procedural steps.

[6]I will address these miscellaneous matters first.

[7]    The minute of Johnston AJ of 13 April 2022 correctly records that the appearance on behalf of the second and third defendants was in person. While it is understood that Mr Kelly may be a law student, he is not a lawyer and, without leave of the Court, is only able to represent himself in the High Court and no other party. No such leave has been obtained.

[8]    The intituling of the proceeding is determined by the parties identified either in the original statement of claim or any amended statement of claim.

[9]    The latest iteration of the statement of claim would appear to be the amended statement of claim dated 23 March 2022. That document seeks relief against the four

named respondents. Unless the Court approves the removal, addition, or alteration of the identity of a party, that document records the current parties to the proceeding.

[10]   The written minute of Johnston AJ dated 13 April 2022 is the only record of the directions made by the Court on that day.

[11]   If Mr Kelly believes that the minute is inaccurate, the proper course to follow would seem to be an application for recall, supported by affidavit evidence.

Amicus curiae

[12]   It is unusual for the Court to appoint an amicus for plaintiffs in a civil proceedings. The sorts of circumstances where an amicus might be appointed to assist the Court include where the proceedings affect interests of parties who are not involved in the proceeding; there are matters of public interest that need to be properly argued, or important issues of human rights arise. None of these factors are present here.

[13]   There is a system of legal aid available to impecunious plaintiffs who qualify for it. Mr Kelly submits that the plaintiffs in the present case have assets in which they have equity. If that submission is correct, then the plaintiffs may not qualify for legal aid.

[14]   Where plaintiffs have assets which they choose not to utilise to assist them to pursue litigation, they cannot expect the Court to use public funds to appoint an amicus to represent them, other than in the limited circumstances set out above.

[15]   The application for appointment of an amicus to appear at the strike out hearing is therefore declined.

Churchman J

cc:        W D Preez and P C Kelly