BRILL v AUCKLAND STANDARDS COMMITTEE 2 [2023] NZHC 929

BRILL v AUCKLAND STANDARDS COMMITTEE 2 [2023] NZHC 929 [28 April 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-000217[2023] NZHC 929BETWEEN BARRY EDWARD BRILLAppellantAND AUCKLAND STANDARDSCOMMITTEE 2RespondentHearing: On the papersJudgment: 28 April 2023JUDGMENT OF DOWNS J(Application for leave to appeal)This judgment was delivered by me on Friday, 28 April 2023 at 12 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Manukau.Copy to: Appellant.[1] The Lawyers and Conveyancers Disciplinary Tribunal1 found Barry Brillmisconducted himself by providing regulated services to the public other than in thecourse of his employment. At all relevant times, Mr Brill was an employee of his owncompany, B E Brill Ltd, and held a practising certificate as an in-house lawyer only.Despite this, Mr Brill acted for his wife and neighbours in litigation; litigation thatgrew and reached the Court of Appeal.2 The litigation was unconnected to Mr Brill'semployment with B E Brill Ltd.[2] The Tribunal censured Mr Brill; fined him $7,000; and ordered he pay75 percent of related costs. Mr Brill appealed both liability and penalty. I dismissedthe liability appeal but allowed the penalty appeal by quashing Mr Brill's censure.3I observed:4Censure is an unremarkable response to a practitioner who has misconductedthemself. This case is unusual, however. While Mr Brill should not haveacted for parties in the Bridgewater litigation, he did not solicit that role orbenefit financially from it. The combination diminishes seriousness.There is no need for personal deterrence. Mr Brill is, I gather, 82. He is onthe cusp of, if not beyond, retirement. There is little prospect he willmisconduct himself again.[3] Mr Brill seeks permission to bring a second liability appeal to theCourt of Appeal. Permission is required because of s 254 of the Lawyers andConveyancers Act 2006,5 which reads:254 Appeal to Court of Appeal on question of law(1) Any party to an appeal under section 253(1) who is dissatisfied with anydetermination of the High Court in the proceedings as being erroneousin point of law may, with the leave of that court, or, if the High Courtrefuses leave, with the leave of the Court of Appeal, appeal to the Courtof Appeal against the determination; and section 56 of the Senior CourtsAct 2016 applies to any such appeal.(2) In determining whether to grant leave to appeal under this section, theCourt of Appeal must have regard to whether the question of lawinvolved in the appeal is one that, by reason of its general or public1 The Tribunal.2 Wheeldon v Body Corporate 342525 [2016] NZCA 247; Butcher v Body Corporate 342525 [2017]NZCA 423; Wheeldon v Body Corporate 342525 [2017] NZCA 424; Butcher v Body Corporate342525 [2018] NZCA 19; and Wheeldon v Body Corporate 342525 [2018] NZCA 20.3 Brill v Auckland Standards Committee 2 [2022] NZHC 3036.4 At [92]–[93].5 The Act.importance or for any other reason, ought to be submitted to the Courtof Appeal for its decision.(3) The Court of Appeal, in granting leave under this section, may, in itsdiscretion, impose such conditions as it thinks fit, whether as to costs orotherwise.(4) The decision of the Court of Appeal on any appeal under this section isfinal.[4] As will be observed, s 254 identifies a test by which the Court of Appeal mustdetermine permission (s 254(2)), but no such test when this Court determines it.A string of High Court decisions hold the test "is essentially the same".6 Mr Brillagrees. I proceed accordingly.[5] The key provision before me was s 9(1) of the Act. It provides a lawyer isguilty of misconduct "who being an employee, provides regulated services to thepublic other than in the course of his or her employment". Mr Brill identifies fourproposed questions for the Court of Appeal, the first two of which directly concerns 9:a. Whether s 9(1) extends to a lawyer who is not "being an employee"(ie is acting in a different capacity) in providing the regulated servicesin question?b. Whether a co-owner and/or a co-litigant of an employed lawyercomprises "the public" within the meaning of s 9(1)?c. Whether a legal practitioner may enter two or more part-time in-housecontracts at the same time?d. Whether an in-house lawyer is entitled to practise on his or her ownaccount if so authorised under s 22 of the Law Practitioners Act 1955?[6] The first proposed question seeks to repeat one I answered against Mr Brill.Essentially, the argument is this: "being an employee" in s 9(1) means "as part of hisor her duties to an employer". So, when Mr Brill provided legal services to his wifeand neighbours in the Bridgewater litigation, Mr Brill was not "being an employee"of B E Brill Ltd; he did not appear in the litigation qua in-house counsel for6 Hong v Auckland Standards Committee No 5 [2020] NZHC 1572 at [3]. See also Morahan vWellington Standards Committee 2 [2018] NZHC 1583 and Deliu v National Standards Committee[2018] NZHC 2873.B E Brill Ltd. Mr Brill said this interpretation was consistent with a brochurepublished by the New Zealand Law Society for in-house lawyers.[7] I held s 9(1) meant what it said:7 a lawyer is guilty of misconduct who, being an employee, providesregulated services to the public other than in the course of his or heremployment. The section creates a general prohibition against in-houselawyers providing regulated services to the public. It ensures lawyers whoprovide regulated services to the public are either qualified to do so on theirown account or supervised as an employee. Public protection, not privity ofcontract, is the decisive concern. ...[8] The second proposed question repeats another I answered against Mr Brill.It concerns the meaning of "the public" in s 9(1). Mr Brill argued "the public" carriedits usual meaning of "people in general, rather than a particular group", and his wifeand neighbours could not be regarded as members of the public given their connectionto Mr Brill and each other. I held:8The Act does not define the phrase, "the public". In the context of s 9(1),I consider it means anyone other than the employer of the lawyer. To concludeotherwise would undermine the purpose of, and protection afforded by, s 9. Asobserved earlier, s 9 prohibits a lawyer from provided regulated services to thepublic other than in the course of his or her employment. The prohibitionprotects consumers of legal services—another explicit purpose of the Act.[9] I acknowledge the first two questions are questions of law which could, inprinciple, constitute ones of general or public importance. However, I am notpersuaded the facts of Mr Brill's case are a suitable vehicle for a second appealconcerning s 9(1). It is beyond argument Mr Brill acted for his wife and neighboursin litigation, while holding a practising certificate as an in-house lawyer only.It follows no realistic basis exists upon which Mr Brill's liability under s 9(1) couldbe impeached on the facts.[10] Unsurprisingly, Mr Brill contests this reasoning. He argues a second appeal isneeded to clarify what s 9(1) means, especially as my decision appears to be the onlyone (of a senior court) on point. I remain unpersuaded. That there are no other caseson point tends to confirm the section means what it says.7 Brill v Auckland Standards Committee 2, above n 3, at [39].8 At [46].[11] The third proposed question does not appear to constitute a question of law.But, even if it is, it could not be one of general or public importance.[12] The fourth proposed question concerns the effect of s 31 of the Act, and in turn,s 55 of the Law Practitioners Act 1982 and s 22 of the Law Practitioners Act 1955,which I call the earlier enactments. I rejected Mr Brill's interpretation of s 31 and theearlier enactments, namely that he was entitled to practise on his own account andtherefore had not infringed s 9(1) of the Act. This question is also a question of law.However, as Mr Radich observes on behalf of the respondent, the question only affectspractitioners admitted under either of the earlier enactments who have not practisedon their own account for more than 10 years and who wish to do so. Few lawyers arelikely to be within this category. For this reason, I am not persuaded the proposedquestion constitutes one of general or public importance.[13] For completeness, Mr Brill also wishes to contend aspects of the judgment"provide ill-advised precedents for the lawyers' regulatory system".9 This argumentappears to be directed at concurrent factual determinations. In any event, it raises noquestion of law.Result[14] Permission is declined. The application is dismissed.[15] Mr Brill must pay the respondent 2B scale costs...Downs J9 Applicant's submissions, para 106.