BARRY JOHN HART V AUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY HC AK CIV-2012-404-5076

BARRY JOHN HART V AUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY HC AK CIV-2012-404-5076 [26 September 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-5076CIV-2012-404-5528[2012] NZHC 2496IN THE MATTER OF the Lawyers and Conveyancers Act 2006BETWEEN BARRY JOHN HARTApplicantAND AUCKLAND STANDARDSCOMMITTEE 1 OF NEW ZEALANDLAW SOCIETYRespondentHearing: 25 September 2012Counsel: J M Bioletti and M J Porner for ApplicantM J McCartney SC and M A Treleaven for RespondentJudgment: 26 September 2012JUDGMENT OF LANG J[on applications for special leave to bring appeal out of timeand for interim relief]This judgment was delivered by me on 26 September 2012 at 3 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 2 August 2012, the New Zealand Lawyers and Conveyancers DisciplinaryTribunal ("the Tribunal") found Mr Hart guilty of three charges of professional misconduct ("the liability decision") laid by a Standards Committee of the New Zealand Law Society ("the Standards Committee).[2] The first of these arose out of the circumstances surrounding Mr Hart'sengagement, and subsequent failure to pay, a private investigator who had provided services to him in connection with a legally aided client facing criminal charges. The second related to an allegation that Mr Hart had obstructed a complaints committee of the Auckland District Law Society by refusing to produce his file relating to a former client after having been required to do so by the committee. The third charge related to an allegation that Mr Hart had grossly overcharged a client whom he had been representing on serious criminal charges.[3] On 27 August 2012, the Tribunal heard submissions as to penalty from counsel for Mr Hart and the Standards Committee. The Tribunal delivered a further decision on 14 September 2012, in which it made an order under s 244(1) of theLawyers and Conveyancers Act 2006 ("the Act") striking Mr Hart from the roll of barristers and solicitors ("the penalty decision"). The Tribunal also made awards ofcosts against Mr Hart totalling approximately $160,000. In addition, it made an order by consent that Mr Hart was to pay the sum of $20,000 to the complainant in the charge relating to overcharging. The Tribunal required Mr Hart to pay that sum by 10 September 2012.[4] Mr Hart has now appealed to this Court against both decisions of the Tribunal. He contends that the Tribunal was wrong to reach the conclusions contained in its liability decision, and that it was equally wrong to make an order striking him from the roll of barristers and solicitors. The substantive appeals will be heard by a Full Court of this Court on 10 December 2012.[5] Mr Hart now applies for two interlocutory orders. The first is an order that he be granted special leave to file his first appeal, that relating to the liability decision,out of time. He also seeks a stay of the Tribunal's order striking him off until hisappeals have been determined.The application for special leave to appeal out of time[6] The procedure for filing an appeal against a decision or order of the Tribunal is governed by s 253(3)(b) of the Act. It requires an appeal against any order or decision of the Tribunal to be "made within such time and in such form as may be prescribed by rules of Court". It follows that the High Court Rules prescribe the time and manner within which Mr Hart was required to file his appeal against theTribunal's liability decision.[7] Rule 20.6 governs the manner in which an appeal is brought. It provides:20.6 When appeal brought(1) An appeal is brought when the appellant—(a) files a notice of appeal in the court; and(b) files a copy of the notice of appeal in the administrative office; and(c) serves a copy of the notice of appeal on every other party directly affected by the appeal.(2) Service at the address for service stated in the proceedings to which the appeal relates is sufficient service for the purposes of subclause(1).[8] The present application is necessary because, although Mr Hart filed his appeal against the liability decision in this Court and served a copy on the Standards Committee within time, he failed to file a copy of the appeal in the administrative office of the Tribunal as he was required to do by r 20.6(b).[9] Mr Hart appears not to have appreciated this defect in procedure until shortly before the appeal was called in this Court for the first time on 11 September 2012. On that date, Ellis J directed that the appeal was to be adjourned for a week to enable Mr Hart to file a copy of his application with the Tribunal's Secretariat, and also toenable him to file an application for special leave to extend the time for bringing the appeal.[10] The time within which an appeal is to be filed is governed by r 20.4 of the High Court Rules, which provides:20.4 Time for appeal if there is right of appeal(1) This rule applies if a party has a right of appeal to the court.(2) An appeal must be brought—(a) within the specified period if the enactment that confers the right of appeal specifies a period within which the appeal must be brought; or(b) in every other case, within 20 working days after the decision appealed against is given.(3) By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—(a) permits the extension; or(b) does not limit the time prescribed for bringing the appeal.(4) An application for an extension—(a) must be made by an interlocutory application on notice to every other party affected by the appeal; and(b) may be made before or after the expiry of the time for appealing.[11] As counsel for the Standards Committee points out, there are conflicting High Court judgments as to whether the Court has jurisdiction to grant special leave to extend time for bringing an appeal in this context. In Sidney v Auckland District Law Society,1 a Full Court2 held that the Court had the necessary jurisdiction to make such an order. The Court explained the reasons for its conclusion succinctly in the following passage:3We deal now with the application for leave to appeal against the suspension and costs orders. Section 118(2) of the Law Practitioners Act 1982 (the Act)4 provides that every such appeal shall be made within such time as may be prescribed by rules of Court. Rule 704 of the High Court Rules5 provides that in the absence of any time specified in any enactment an appeal shall be1 Sidney v Auckland District Law Society [1996] 1 NZLR 431 (HC).2 Comprising Barker, Tompkins and Cartwright JJ.3 Sidney v Auckland District Law Society, n 1 at 433.4 The equivalent provision is now s 253(3) of the Lawyers and Conveyancers Act 2006.5 The equivalent rule to r 20.4 of the current Rules.filed and served within one month after the date of the decision from which the appeal is brought.Rule 705 provides that the Court may extend the time for appealing if "the enactment conferring the right of appeal does not limit the time prescribed for appeal". That is the position here. The Act does not limit thetime for appeal. It follows that under R 705, the Court may extend that time.[12] Venning J took a different approach in the later case of Dorbu v New Zealand Law Society.6 In that case, the Judge dismissed an application for special leave to extend the time for filing an appeal against an order of the Tribunal striking apractitioner off. The Judge's reasoning on the point was as follows:[14] The real issue in the present case is whether the enactments conferring the right of appeal limit the time prescribed for bringing the appeal. Neither of the sections refers to a period of days within which the appeal must be brought. However, they do in effect limit the time prescribedfor bringing the appeal by directing that the appeal "shall" (in the case of theLaw Practitioners Act) and "must" (in the case of the Lawyers andConveyancers Act) be made within such time as may be prescribed by rules of Court. There is a mandatory requirement in each statutory provision that the appeal must be brought within such time as may be prescribed by the rules of Court.[15] Rule 20.4 is itself mandatory in that r 20.4(2)(b) provides, in these circumstances, that the appeal must be brought within 20 working days after the decision appealed against is given. On that basis then, s 20.4(3) does not apply, and there is no jurisdiction for the Court to extend the time prescribed for appealing.[13] In resolving this issue, I respectfully prefer the reasoning of the Full Court inSidney. I note also that Venning J does not appear to have referred to the FullCourt's judgment in Sidney.[14] As the Full Court noted in the passage set out above, s 253 requires anyappeal against an order or decision of the Tribunal to be made "within such time as may be prescribed by rules of Court". Because the Act does not specify the periodwithin which any appeal must be brought, the time limit is governed by r 20.4(2)(b), which requires the appeal to be brought within 20 working days after the delivery of decision appealed against. That general requirement is, however, subject to r 20.4(3) which provides:6 Dorbu v New Zealand Law Society [2011] NZAR 174 (HC).(3) By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—(a) permits the extension; or(b) does not limit the time prescribed for bringing the appeal.[15] The Court therefore has jurisdiction to extend the time prescribed for appealing in the present case if the Act either permits the extension, or does not limit the time prescribed for bringing the appeal. Section 253 of the Act neither expressly provides the Court with power to grant an extension, nor expressly limits the time for bringing an appeal. It does no more than prescribe that an appeal must be brought within such time as may be prescribed by the High Court Rules. In the absence of an express limitation in the Act restricting the time within which an appeal must be brought, I take the view that an appeal must be brought within 20 working days unless the Court grants special leave to extend the time within which that is to be done. It follows that the Court may exercise its powers under r 20.4(3) to grant special leave to extend the time for bringing an appeal under s 253.[16] The Standards Committee accepts that the problem probably arose in the present case through oversight. The situation is far different from that which pertained in Dorbu, where there was a complete failure to file the appeal in the High Court for a period of many months. In the present case, Mr Hart filed the appeal within time and also attended to service of the appeal on the Standards Committee within time.[17] It would be a wholly disproportionate outcome, in my view, for the Court to decline special leave when the defect in procedure was relatively inconsequential and caused no prejudice to the opposing party. The consequences of declining leave would also be significant, because it would prevent Mr Hart from challenging theTribunal's liability decision. I therefore grant the application for special leaveextending the time within which to bring the appeal against the liability decision.[18] I do not consider it necessary to determine the alternative argument for Mr Hart, which was to the effect that r 1.19 of the High Court Rules also permits the Court to extend the time for bringing an appeal.Application for interim relief[19] Once Mr Hart filed his appeal against the Tribunal's penalty decision, he wassuspended from practice as a barrister by virtue of s 244(3) of the Act, which provides:244 Making of order for striking off roll, cancellation of registration, or suspension from practice(3) Where the Disciplinary Tribunal makes an order, under section242(1)(c), striking the name of a practitioner off the roll or an order, under section 242(1)(d), cancelling the registration of a practitioner, the order is, until the expiry of the time allowed for appeal under section 253 or, if an appeal is commenced, until the determination of the appeal, to take effect only as an order that the practitioner be suspended from practice as a barrister or as a solicitor or as both, or from practice as a conveyancing practitioner, as the case may require.[20] The power of the Court to grant relief once an appeal has been filed is contained in r 20.10, which relevantly provides:20.10 Stay of proceedings(1) An appeal does not operate as a stay—(a) of the proceedings appealed against; or(b) of enforcement of any judgment or order appealed against.(2) Despite subclause (1), the decision-maker or the court may, on application, do any 1 or more of the following pending determination of an appeal:(a) order a stay of proceedings in relation to the decision appealed against:(b) order a stay of enforcement of any judgment or order appealed against:(c) grant any interim relief.(3) An order made or relief granted under subclause (2) may—(a) relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:(b) be subject to any conditions for the giving of security the decision-maker or the court thinks just.[21] Mr Hart seeks an order staying his suspension in reliance on the Court'spower to grant interim relief to an appellant under r 20.10(2)(c). He does not, however, seek to be wholly released from suspension pending determination of his appeals. Rather, he asks the Court to permit him to honour his existing commitment to appear on behalf of clients in 22 court fixtures that have been scheduled for hearing in the District Court, High Court and Court of Appeal between now and the end of the year.The arguments[22] Mr Hart says that his clients will be relying on him to appear on their behalf at the hearings, and that they will be significantly prejudiced if he is unable to do so. He submits that in all likelihood the fixtures will have to be abandoned if the present application is dismissed. In that event, his clients will need to find alternative counsel to represent them. This will inevitably lead to substantial delays for both the courts and his clients. It will also result in Mr Hart losing the income he would otherwise have derived as a result of appearing for his clients at the fixtures.[23] Counsel for Mr Hart also reminds me that none of the charges against Mr Hart alleged that he was an incompetent advocate. Further, counsel advised me that Mr Hart is prepared to accept that he should be subject to stringent conditions if his application is granted. These could include, for example, a requirement that his activities are to be the subject of close oversight by a senior practitioner.[24] The Standards Committee opposes Mr Hart's application. It points out thatthe Tribunal has now determined that Mr Hart is not a fit and proper person to be on the roll of barristers and solicitors. Furthermore, Parliament has determined that allpersons in Mr Hart's position should remain suspended pending determination of anyappeal against the Tribunal's order. Although counsel for the Standards Committeeaccepted that the Court might have jurisdiction to grant interim relief to an appellant who has been struck off in exceptional cases, she submits that the circumstances in the present case are wholly unexceptional.[25] Counsel for the Standards Committee also submits that it would be extremelydifficult to adequately monitor Mr Hart's activities on a day-to-day basis. In particular, it would be impossible to prevent him from accepting instructions from new clients, and from obtaining payments in advance from those clients. She reminded me that the focus in the Act is on the protection of the public, and there is a substantial risk that Mr Hart would continue to engage in conduct similar to that which led to the present charges being laid. If he did, members of the public were likely to suffer further loss as a result of his conduct.Decision[26] The enactment of s 244(3) demonstrates that Parliament has expressly turned its mind to the status that a law practitioner should hold pending determination of anappeal against an order striking that person off the roll of barristers and solicitors.Parliament has determined that such persons should ordinarily be suspended duringthat period.[27] The rationale underlying s 244(3) is clear. The Act is protective in nature, in that two of its primary purposes are to maintain public confidence in the provision of legal services and to protect consumers of legal services.7 Once a properly constituted Tribunal has concluded8 that a person is not a fit and proper person to be a practitioner, the need to protect the public from that person becomes paramount. Parliament has sought to achieve that outcome by prohibiting such persons from practising law pending determination of any appeal against the Tribunal's order.[28] To the extent that the Court has power to grant interim relief under r 20.10, it must exercise that power having regard to the purposes of the legislation. It cannot grant an order for interim relief in circumstances where members of the public may be placed at risk. It follows that the Court will exercise the power to grant interim relief from suspension sparingly, and only in circumstances where it can be confident that any order it might make will not place members of the public at risk.7 Lawyers and Conveyancers Act 2006, s 3(1)(a) and (b).8 Under s 244(1).[29] Such an approach is likely to result in significant hardship for an appellant, because continued suspension will remove the ability to work and earn a living in the legal profession. It is also likely to result in a degree of hardship for the appellant'sclients, because they will be forced to seek alternative representation with the attendant costs and delays that may entail. Parliament must, however, have been aware of those outcomes. It clearly chose to introduce a regime designed to ensure that the community was protected notwithstanding the consequential hardship for an appellant and his or her clients.[30] Bearing those principles in mind, I consider, largely for the reasons advanced by the Standards Committee, that the circumstances of the present case do not justify granting the interim relief Mr Hart seeks. In particular, I do not consider it possible to adequately manage or guard against the risk to members of the public that relaxation of the current suspension would create. This is because there is noadequate means of monitoring Mr Hart's activities on a day-to-day basis. It would be impossible for example, to ensure that he does not take on new clients and/or provide additional forms of advice or services to those whom he is currently representing in the forthcoming fixtures.[31] To the extent that Mr Hart relies on the hardship that continued suspension will produce for himself and his clients, the observations I have already made are sufficient to dispose of his argument. To the extent that he relies upon the problems that it will pose for the courts, I take the view that it will be up to both Mr Hart and the courts to ensure that any future disruption to hearings is minimised as a result ofMr Hart's continued suspension.[32] In any event, more than half of Mr Hart's scheduled fixtures appear to be hearings of less than one day's duration in the District Court. Some are merelycallovers. It should not be unduly difficult for Mr Hart to find alternative representation for his clients in relation to those hearings.[33] The most significant fixture is a drugs trial scheduled to commence in this Court on 29 October 2012. It has been allocated four weeks. I note, however, thatMr Hart's client in that proceeding has sought a sentence indication, and this is to begiven on 5 October 2012. There is therefore at least a prospect that the proceeding may resolve without the need for a trial. In any event, there is sufficient timebetween now and 29 October 2012 for Mr Hart's client to obtain the services of newcounsel should that be required.[34] The only other fixture of any significance is a one week jury trial due to commence in the Hamilton District Court on 2 December 2012. That fixture, too, issufficiently in the future to enable new counsel to be instructed.Conclusion[35] Whether viewed individually or collectively, the factors relied upon by Mr Hart do not justify interim relief being granted. The need to protect the public is paramount. This requires Mr Hart to remain suspended pending determination of his appeals.Result[36] The application for special leave to extend the time within which to bring the appeal in CIV-2012-404-5076 is granted. Time is extended to 26 September 2012.[37] The application for interim relief is dismissed.Costs[38] Given that Mr Hart has succeeded in relation to one application and failed in relation to the other, my preliminary view is that costs should lie where they fall. If counsel take a different view, they should file a memorandum within seven days to advise me of that. I will then give directions for the filing of memoranda in response and reply.Lang JCounsel:J M Bioletti, AucklandM J Porner, AucklandJ McCartney SC, AucklandNew Zealand Law Society, Auckland