T HAy and G MCNAB v Waitaki District Council and Oceana Gold Ltd

JurisdictionNew Zealand
CourtEnvironment Court
JudgeR G Whiting
Judgment Date14 March 2011
Neutral Citation[2011] NZEnvC 81
Docket NumberENV-2009-CHC-000002
Date14 March 2011

In the Matter of the Resource Management Act 1991


In the Matter of appeals under section 311 of the Act

T Hay and G McNab
Waitaki District Council


Oceana Gold Limited


Decision No. [2011] EnvC 81


Environment Judge R G Whiting




Application to prevent practitioners acting for the respondents due to alleged conflict of interest — substantive proceeding related to application for declaration against respondent as to the extent of its duty to monitor activities of gold mining company — practitioner from respondent's firm of solicitors had acted in family dispute concerning the estate of the applicant's brother — other practitioner's firm acting for gold mining company had previously acted for the applicant — whether there was a conflict of interest.


Mr T Hay and Mr G McNab for the applicant

Mr A Logan for Waitaki District Council

Mr S Christensen for Oceana Gold Limited

  • A. The applications to bar Counsel from continuing to act are dismissed.


On the 13 January 2010 Mr T Hay and G W McNab jointly filed an application under s 311 of the Act seeking a declaration against the Waitaki District Council as to the extent of the Waitaki District Councils duty to gather information, monitor and keep records concerning Oceana Gold Limited's recent practice of bringing gold — bearing rock powder from Reefton to the facility near Macraes, North Otago.


A further application for a declaration seeking similar relief was filed on the 27 January 2010.


Oceana Gold New Zealand Ltd made an application to the Court to join the proceedings and the application was granted by the court some time prior to April 2010.


The matter was then set down in Oamaru on 10 February 2011. Unfortunately the matter could not proceed that day because of a miscommunication between the Court and Mr Hay and Mr McNab. The matter was rescheduled for 14 March 2011 for hearing in Dunedin.


At the telephone conference that I held in Oamaru following the hearing in February, I indicated that Judge Jackson in his — minute of the 27 April 2010 had attempted to refine the applications and that if either Mr Hay or Mr McNab had any problem, they were to advise the Court. I gave them until 5pm on Tuesday 14 February to file any further amendments. No amendments were filed.

Conflict of Interest of Ross Bowling Marquet Griffin

On the Thursday before the hearing, the Court received a letter from Mr McNab by way of email dated 9 of March 2011. Paragraph 2 (b) of that email stated:

  • we have an objection to any partner of the law firm, Ross Dowling, representing the Waitaki District Council arising from the conduct of a partner of this firm during the time this partnership acted for Trevor Hay's sister, Dellene Burnside, one of the executors named in a dubious testamentary document purporting to be the last will of Trevor Hay's brother, Mervyn John Charles Hay, who died on 1 st April 2009. Trevor Hay wanted me to raise it initially, but, I would not do so, and we agreed to let it pass. However, the clear collusion and common front which has shown itself to be present between Mr Logan and Mr Christensen, and their respective clients, shown in recent papers requires that this now be raised as an objection, and, if possible disposed of by the Judge before our hearing.


I received a copy of that email while I was working in Hamilton and I indicated that I would hear submissions prior to the substantive hearing on 14 March 2011.


I have heard further submissions today from Mr McNab, Mr Hay, Mr Logan and Mr Christensen. Prior to today's hearing, Mr Logan filed a lengthy memorandum that sets out the facts as he understands them from enquiries he made from within his firm. I attach this memorandum as Appendix A


It would appear that in 2009 Mr Logan's firm was involved in attending on Mr Mervyn Hay, the brother of one of the applicants, for the purposes of the execution of enduring powers of attorney. The partner attended on instructions from solicitors of another firm. Shortly after Mr Hay died. The same solicitor instructed a partner of Ross Dowling Marquet Griffin to apply for a grant of probate.


An application for grant of probate was filed on the 8 May 2009 and granted on 29 May 2009 by the High Court. Probate was sealed on 7 July 2009.


On 3 August Ms Burnside, the executrix of the will, advised that she no longer required Ross Dowling Marquet Griffin to act in the administration of the estate and the file was forwarded to another law firm on 20 August 2009.


On 14 August Mr McNab spoke to a staff member of Ross Dowling Marquet Griffin and, among other things, said he was giving notification that there would be a substantial claim against the deceased estate and that consideration was being given to recall the grant of probate.


We have received no affidavit evidence from Mr McNab or Mr Hay. Mr McNab in his submissions agreed with most of the chronology of events detailed in Mr Logan's memorandum dated 11 March 2011, save that there was a difference of opinion on exactly what was said when he visited the firm on 14 August 2010.


It was Mr McNab's submission that it would be inappropriate, in the circumstances, for Ross Dowling Marquet Griffin to carry on acting for Waitaki District Council. He referred me, in particular, to the Imperial Rules Application Act 1988, and in particular to the statutes that have been incorporated into our law from English law entitling a litigant to due process. He also referred to s 27 of the New Zealand Bill of Rights Act 1990, which gives a litigant the right to natural justice.


I think it is trite to say, that in our law, litigants are entitled to a fair process, which forms the basis of natural justice. They are entitled to due process. The question is -whether the dealings that Mr Logan's firm had with the estate is such, that to allow a member of that firm to continue acting against this application by Mr Hay would be contrary to due process.


Mr Logan referred me to the High Court decision of Fisher J in Clear Communications Ltd v Telecom Corporation of NZ Ltd, 1 In that case Fisher J carried out an extensive analysis of the law relating to the principles that the Court should apply when removing Counsel, or circumstances where the Court may bar a lawyer from continuing to act for a party to a civil proceeding. The learned Judge then carried out a summary of what he considered to be the position and that is set out in pages 5 —7 of the decision. I in turn summarise his summary:

  • (a) The Court has jurisdiction to bar counsel and or solicitors from acting in a particular case where that step is necessary for the effective and efficient administration of justice;

  • (b) The removal of a lawyer is not a retrospective sanction of past conduct, but a prospective measure to safeguard future conduct of particular proceedings;

  • (c) If a removal has been ordered it has usually been for a conflict of interest but there is no limitation on what might jeopardise the future conduct of proceedings;

  • (d) A litigant should not be deprived of his or her choice of counsel as a tactical weapon;

  • (e) An application for removal requires that a balance be struck between the injustice of depriving a party of his or her lawyer of choice and the injustice of allowing that lawyer to continue in prejudicial circumstances;

  • (f) In view of a lawyers obligation of confidentiality and loyalty care must be taken not to visit upon the lawyer, sins, which may be essentially those of a client;

  • (g) There must be something extraordinary before removal could be contemplated. It could be justified only in cases of truly egregious misconduct likely to affect future proceedings.


That summary in my view sets out the parameters in which I should approach this matter. Mr McNab sought to distinguish the above case on the basis that it was a case that related to large corporate entities, where as this was a matter between a small law firm and two lay people with farming backgrounds.


I don't accept that. The principles are the same. I am bound by the High Court which in turn is bound by the Court of Appeal. Many of the principles set out by Fisher J came from his analysis of the Court of Appeal decision Black v Taylor. 2


In my view there isn't enough of a conflict of interest to warrant me barring Mr Logan from continuing. It is true that a partner in his firm was involved in the swearing of an enduring power of attorney and was involved in the application for probate. However, as soon as there was a conflict as between the executrix and Mr Hay, no further instructions were received by his...

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