BARRY JOHN HART v AUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY [2013] NZHC 1331

BARRY JOHN HART v AUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY [2013] NZHC 1331 [7 June 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-5528[2013] NZHC 1331BETWEEN BARRY JOHN HARTApplicantAND AUCKLAND STANDARDSCOMMITTEE 1 OF NEW ZEALANDLAW SOCIETYRespondentHearing: 4 June 2013Counsel: J Bioletti for ApplicantP Collins for RespondentJudgment: 7 June 2013JUDGMENT OF LANG J[On application for leave to appeal to Court of Appeal]This judgment was delivered by me on 7 June 2013 at 4 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] In a decision delivered on 2 August 2012, the New Zealand Lawyers andConveyancers Disciplinary Tribunal ("the Tribunal") held that the AucklandStandards Committee No 1 had proved three out of four charges it had laid against Mr Hart under the Lawyers and Conveyancers Act 2006 ("the Act") and the Conductand Client Care Rules 2008.1 After hearing submissions as to penalty, the Tribunal delivered a further decision on 14 September 2012 in which it ordered that Mr Hart be struck off the roll of barristers and solicitors. The Tribunal also ordered him to pay costs of just over $116,000, and to pay the sum of $20,000 to the complainants in relation to one of the charges.2[2] Mr Hart appealed against both decisions. In a judgment delivered on 5 February 2013, a Full Court of this Court3 dismissed the appeal.4 Mr Hart now seeks leave to appeal to the Court of Appeal against that decision.Relevant principles[3] There is no dispute regarding the principles to be applied in considering an application for leave to appeal to the Court of Appeal in the present context.[4] The application is governed by s 254 of the Act, which provides as follows:254 Appeal to Court of Appeal on question of law(1) Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that Court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 66 of the Judicature Act 1908 applies to any such appeal.(2) An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.1 Auckland Standards Committee No 1 v Hart [2012] NZLCDT 20.2 Auckland Standards Committee No 1 v Hart [2012] NZLCDT 26.3 Comprising Winkelmann and Lang JJ.4 Hart v Auckland Standards Committee 1 of the New Zealand Law Society [2013] NZHC 83.[5] In applying s 254, the principles established in cases dealing with applications for leave to appeal to the Court of Appeal under ss 66 and 67 of the Judicature Act 1908 are relevant. They relevantly provide as follows:66 Court may hear appeals from judgments and orders of the High CourtThe Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.67 Appeals against decisions of High Court on appeal(1) The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—(a) to the Court of Appeal; or(b) directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003)..[6] The principal distinction between s 67 and s 254 is that, whereas leave to appeal can be granted under s 67 on points of both fact and law, leave can only be granted under s 254 on a point of law.[7] In Waller v Hider,5 the Court of Appeal emphasised that a second appeal must raise a question of law or fact that is capable of bona fide and serious argument, and that the case must involve some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.6 Blanchard J, who delivered the decision of the Court, described the function of the Court of Appeal in determining a second appeal as follows:7Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the5 Waller v Hider [1998] 1 NZLR 412.6 Ibid, at 413.7 Idem.parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.[8] The Court of Appeal confirmed these principles in Snee v Snee.8The proposed questions of law[9] Counsel for Mr Hart submits that two questions of law arising out of thisCourt's judgment satisfy the requirements of s 254. He formulates these as follows:(i) Under New Zealand law, does a defendant waive the right to be present at his or her trial if he or she does not know that the hearing may proceed in his or absence?(ii) Was this Court correct to reject the proposition that a charge could only be referred to the Tribunal where it was sufficiently serious to give rise to a real risk that, if the charge was proved, the practitioner might be suspended or struck off?The first proposed question[10] This issue arises as a result of the fact that Mr Hart was not present during thehearing that led to the Tribunal's decision that the charges had been proved. At thecommencement of the hearing, counsel for Mr Hart had sought an adjournment on the ground that Mr Hart was too ill to attend. Counsel produced a medical certificatefrom Mr Hart's doctor in support of his submission that an adjournment should begranted.[11] The Tribunal took the view that Mr Hart had elected not to attend the hearing, and observed that the procedural history of the charges demonstrated an"extraordinary history of delay and prevarication" by Mr Hart. The Tribunal declined to grant an adjournment, and then proceeded with the hearing in Mr Hart'sabsence. Mr Hart's counsel did not have instructions that extended to defending thecharges, and the Tribunal granted him leave to withdraw.8 Snee v Snee (1999) 13 PRNZ 609 at 612–613.[12] When this Court heard the appeal, both counsel accepted that the principles governing the exercise of the discretion to proceed in the absence of a defendant were those identified by the English Court of Appeal in R v Hayward,9 and approved by the House of Lords in R v Jones.10 The Tribunal did not refer to either of those cases when declining the application for an adjournment.[13] Applying the principles identified in Hayward and Jones, this Court held thatthat the Tribunal was "well justified" in concluding that Mr Hart was not medically unfit to attend the hearing, and that his absence was "consistent with his earlierdelaying and obstructive conduct."11 The Court noted that the Tribunal had taken a cautious approach, and concluded that it had been entitled to refuse the adjournment.[14] Counsel for Mr Hart now seeks to refine his argument regarding the manner in which the principles identified in Jones should be applied in this country. As noted above,12 Jones came before their Lordships after the appellant, Mr Jones, had absconded before his criminal trial. The trial proceeded in his absence, and he was found guilty. The English Court of Appeal dismissed Mr Jones' appeal againstconviction, and in doing so identified factors that may be relevant when a trial Judge must determine whether to proceed with a trial in the absence of the accused.13[15] When the case proceeded to the House of Lords, their Lordships were divided on the question of whether the Court of Appeal had been correct to conclude that Mr Jones had waived his right to be present at the trial. The majority, comprising Lords Bingham, Nolan and Hutton, upheld the decision of the Court of Appeal on thispoint. They considered that a person who "voluntarily chooses not to exercise aright cannot later be heard to complain that he has lost the benefits which he mighthave expected to enjoy had he exercised it."14[16] The minority, comprising Lords Hoffman and Rodger, took the view that a defendant could not be considered to have waived the right to attend a hearing unless9 R v Hayward [2001] 3 WLR 125. This judgment dealt with three appeals by defendants who had absconded before trial, and had subsequently been tried and found guilty in their absence.10 R v Jones [2003] 1 AC 1 (HL). Mr Jones was one of the appellants in Hayward.11 Hart v Standards Committee 1 of the New Zealand Law Society, above n 4 at [50].12 R v Hayward, above n 9.13 R v Hayward, above n 9 at 872-873.14 Ibid, at [11].he or she knew of the possibility that the trial might proceed notwithstanding his or her absence. Lord Rodger explained his reasoning as follows:These facts certainly justify the inference that the appellant knew that he would not be present when his trial was due to take place. That does not, in itself, justify the conclusion that he had waived his right to be present or to be represented at any trial of the charges against him. Such an inference could be drawn only if one could be satisfied that the appellant not only knew that the trial was due to take place when he would be absent, but also knew that it could take place even though he was not there and even thoughhe was not represented. [17] Counsel for Mr Hart contends that the courts in New Zealand should adopt the approach advocated by the minority of their Lordships in Jones. He frankly concedes that he did not advance this argument at the hearing in this Court. He contends, however, that it is such a fundamental point that it warrants consideration by the Court of Appeal.[18] Counsel for Mr Hart also points out that, in a case decided after judgment in this Court was delivered, the Court of Appeal has hinted that it might be persuaded to adopt the minority view in Jones. In Kumar v R,15 the appellant, Mr Kumar, had removed an electronic bracelet and absconded on the morning his trial was due to commence. The trial then proceeded in his absence, although he was represented by counsel who had unsuccessfully sought leave to withdraw. Mr Kumar was convicted, and subsequently appealed to the Court of Appeal. One of his grounds of appeal was that the trial Judge should not have permitted the trial to proceed in his absence.[19] The Court of Appeal noted16 the division between the minority and majority speeches in Jones. The Court then observed17 that future cases of this type will in the future be decided in this country under s 121 of the Criminal Procedure Act 2011("CPA"). The CPA proceeds on the basis that the defendant will usually be presentduring his or her trial, but also prescribes factors that the trial Judge will need to take into account when considering whether a trial should proceed in the absence of the15 Kumar v R [2013] NZCA 77.16 Ibid, at [22] – [24].17 At [26].defendant. 18 For the most part, these correspond to the factors identified in Jones, although the nature and seriousness of the offence with which the defendant is charged is also included.19[20] The Court of Appeal then analysed the facts of the case having regard to the factors identified in Jones. In particular, the Court noted that Mr Kumar's counselhad conceded that he may have given Mr Kumar advice to the effect that the trial would be adjourned if he did not appear. This led the Court to observe:[49] In these circumstances, at least if the approach of Lord Hoffman and Lord Rodger in Jones is adopted, Mr Kumar did not waive his right to be present at his trial. That is because he did not know that his trial could take place even although he was not there. However, we need not go further into the difficult question of waiver because, ultimately, the Crown did not advance its case on that basis. As Lord Hoffman observed:20The question in my opinion is not whether the defendants waived the right to a fair trial but whether in all the circumstances they got one.Ultimately, that was the question all five of the Law Lords in Jonesaddressed and answered. It is also the way we have framed the question raised by this appeal.[21] The manner in which the Court of Appeal approached this issue in Kumar is, in my view, instructive. It suggests that in cases where a defendant deliberately elects not to be present at the trial, the court should not focus on the issue of whether or not the defendant has waived the right to be present. Instead, the court should determine whether the defendant received a fair trial notwithstanding his or herabsence. The Court of Appeal ultimately held that Mr Kumar's absence had resultedin an unfair trial because of several factors.21 These led the Court to allow the appeal and direct a retrial. In doing so, the Court said22 that it had attached some significance to the fact that, contrary to the situation in Jones, there had been no earlier adjournment or other delay in the prosecution of the case.[22] Against that background it is necessary for me to determine whether this point is of sufficient public or private importance to warrant leave being granted.18 Criminal Procedure Act 2011, s 121(4).19 Ibid, s 121(4)(d).20 R v Jones (Anthony), above n 8 at [20].21 Set our at [55] – [64] of the judgment.22 Kumar v R, above n 13 at [75].Counsel for the Standards Committee submits that it is not, and that the facts are overwhelmingly against Mr Hart in any event.[23] Several points can be made about the probable impact on the present case of the minority view in Jones and the comments made by the Court in Kumar. First, the factual situation in those cases was vastly different. The appellants in Jones andKumar had absconded before trial, with Mr Kumar doing so in the likely belief that his trial would be adjourned if he did not appear. Mr Hart, on the other hand, knew that his hearing before the Tribunal was likely to proceed on the date allocated. The Tribunal had made that fact clear in earlier Minutes issued after Mr Hart had dispensed with the services of his former counsel. Mr Hart was in Auckland at the time of the hearing, and was presumably in contact with counsel whom he had instructed to apply for the adjournment. Once his counsel advised him that the Tribunal had refused the application, Mr Hart could have attended the hearing and conducted his defence himself. For that reason I do not consider the view taken by the minority in Jones would assist Mr Hart even if it was applied in the present case.[24] Secondly, as the Court of Appeal noted in Kumar, the factors to be taken into account after 1 July 2013 will be those contained in s 121(3) and (4) of the CPA. The Court must not proceed with the trial if it is satisfied that it would be contrary to the interests of justice to do so.23 In considering that issue, and without limiting the matters the court will be required to take into account, the Court may have regard to the factors listed in s 121(4). They are:121 Non-attendance of defendant charged with offence in category 2, 3, or 4: after plea is entered but before trial or sentencing(4) Without limiting the matters the court may consider in making its decision under subsection (3), the court must consider the following factors:(a) any information available to the court about the reasons for the defendant's absence:(b) any issues that the defendant has indicated are in dispute and the extent to which the defendant's evidence is critical to an evaluation of those issues:23 Criminal Procedure Act 2011, s 121(3).(c) the likely length of any adjournment, given the particular interests of victims and witnesses that a trial takes place within a reasonable time of the events to which it relates and the effect of any delay on the memories of witnesses:(d) the nature and seriousness of the offence:(e) the interests of any co-defendant..[25] The new statutory regime applies only to criminal proceedings, and does not apply to disciplinary proceedings such as those with which this case is concerned. Nevertheless, it is likely that the statutory test will inform the decisions made by disciplinary bodies in the future.[26] The new regime will supersede the common law principles developed by the courts to deal with the issue their Lordships confronted in Jones. The issue of waiver in a technical sense will have no relevance in the future. The focus will instead be upon whether it would be contrary to the interests of justice for the trial to proceed in the absence of the accused. That factual assessment will need to be made having regard not only to the factors listed in s 121(4), but also any other factors relevant to the particular case. These may or may not include the state of knowledge of the defendant at the time he or she elects not to attend the trial.[27] The fact that an entirely new regime is about to come into force means that there would be little or no utility in now requiring the Court of Appeal to consider whether the courts in this country should follow the majority or minority views inJones. It seems inherently unlikely, in any event, that the Court of Appeal would adopt a fixed approach to deal with an issue that will inevitably arise in many forms. This may explain why the Court did not take the opportunity in Kumar to express a preference for either view.[28] Moreover, the issue that the courts ultimately decided in both Jones andKumar was whether the defendant had received a fair trial notwithstanding his absence during the hearing. That issue will always require a fact specific enquiry, and the conclusion will be one of fact. In the present case, therefore, it cannot form the basis of a further appeal to the Court of Appeal.[29] The issue of whether or not the decision to proceed in Mr Hart's absencewould produce a miscarriage of justice was, however, fully considered by theTribunal before it decided to proceed in Mr Hart's absence. That decision was alsoconsidered by this Court, because it formed one of the grounds of his appeal. This Court concluded24 that no miscarriage of justice flowed from the Tribunal's decision to proceed in Mr Hart's absence.[30] For these reasons I do not consider any issue of public or private importance arises under this proposed ground of appeal that justifies leave being granted.The second proposed question[31] This issue arises because one of Mr Hart's grounds of appeal to this Courtwas that the Standards Committee had wrongly referred one of the charges to the Tribunal for determination. The charge alleged that Mr Hart had obstructed the Standards Committee investigating a complaint against him by refusing to provide the committee with his file relating to the services he had provided to the complainant.[32] This proposed ground of appeal relies upon the reasoning contained in Orlov v New Zealand Law Society.25 In that case Heath J had held that a charge should not be referred to the Tribunal unless there was a real risk that, if the charge was proved, the practitioner might be suspended from practice or struck off the roll of barristers and solicitors.26 One of the charges that he held ought to have been referred to the Standards Committee, and not the Tribunal, was a charge of obstructing the Standards Committee by refusing to hand over a file.[33] In the present case, the Court declined to follow the approach taken inOrlov.27 It took the view that there was no threshold requirement for referral of a charge to the Tribunal, and that Standards Committees will generally be best placed to determine whether a charge should properly be referred to the Tribunal for24 Hart v Standards Committee 1 of the New Zealand Law Society, above n 4 at [67].25 Orlov v New Zealand Law Society [2013] 1 NZLR 390.26 Ibid, at [80].27 Hart v Auckland Standards Committee 1 of the New Zealand Law Society, above n 4 at [101] –[109].determination.28 Counsel for Mr Hart submits that this issue is a matter of public importance, and that it warrants referral to the Court of Appeal for resolution.[34] Counsel for the Standards Committee accepts that the issue is one of public importance. He points out, however, that the Standards Committee in Orlov cross-appealed against Heath J's conclusion on this issue. The appeal has now been heardby the Court of Appeal, and judgment is presently reserved. He submits that there is no utility in asking the Court of Appeal to re-consider an issue it has just determined.[35] I accept this submission. The issue will be resolved when the Court of Appeal delivers its judgment in Orlov. There is no point in asking the Court of Appeal to reconsider it again in the context of the present litigation.[36] In addition, this Court observed in its judgment that the seriousness of the circumstances giving rise to the obstruction charge was such that it warranted referral to the Tribunal for determination.29 The statements of principle in Orlovcannot be taken as having universal application to every charge alleging that a practitioner has obstructed an investigating authority by refusing to hand over a file. The facts giving rise to such a charge may vary infinitely. Even on the approach taken in Orlov, a charge may be referred to the Tribunal if there is a real risk that, if the charge is proved, the practitioner in question may be suspended or struck off.This Court's view of the seriousness of the charge means that the outcome of theOrlov litigation in the Court of Appeal will not assist Mr Hart.Result[37] The application for leave to appeal is dismissed.28 Ibid, at [102] and [105].29 Hart v Standards Committee 1 of the New Zealand Law Society, above n 4 at [110].Costs[38] The Standards Committee has succeeded, and is entitled to an award of costs and disbursements in its favour. The award is to be on a category 2B basis, together with disbursements as fixed by the Registrar.Lang JSolicitors:Glaister Ennor, AucklandCopy to:B J Hart, Auckland