HART v THE STANDARDS COMMITTEE (NO 1) OF THE NEW ZEALAND LAW SOCIETY SC 129/2011

HART v THE STANDARDS COMMITTEE (NO 1) OF THE NEW ZEALAND LAW SOCIETY SC 129/2011 13 February 2012IN THE SUPREME COURT OF NEW ZEALANDSC 129/2011[2012] NZSC 4BETWEEN BARRY JOHN HARTApplicantAND THE STANDARDS COMMITTEE (NO 1)OF THE NEW ZEALAND LAWSOCIETYRespondentCourt: Elias CJ, Blanchard and William Young JJCounsel: R J Katz QC for ApplicantP N Collins for RespondentJudgment: 13 February 2012JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B In place of the order made by McGrath J on 21 December 2011 in relation to the searching of court files, we order that the Supreme Court file in relation to the application not be searched without the permission of a Judge.REASONS[1] The applicant faces charges (not involving criminal conduct) which are to be dealt with by the Lawyers and Conveyancers Disciplinary Tribunal. In a decision dated 18 March 2011,1 but not emailed to the applicant until 4 May 2011, the Tribunal rejected an application for an order suppressing publication of theapplicant's name. He unfortunately overlooked the email of 4 May and thus did notdirectly challenge the Tribunal's decision. Instead, and in the context of judicialreview proceedings filed just before the scheduled substantive hearing of the1 Standards Committee (No 1) v Hart [2011] NZLCTD 5.charges,2 he sought a suppression and some associated orders directly of the High Court. The application for suppression was rejected by Toogood J in a judgment delivered on 13 December 20113 and a subsequent appeal to the Court of Appeal4was largely unsuccessful.[2] The primary basis for the proposed appeal is the contention that the usual open justice approach adopted in cases such as R v Liddell5 should not apply in the case of a professional person with a high public profile facing disciplinary charges, particularly where, as here, criminal offending is not alleged.[3] A Tribunal or Judge deciding whether to order suppression is exercising a discretion which, in a disciplinary context, must allow for any relevant statutory provisions as well as the more general need to strike a balance between open justice considerations and the interests of the party who seeks suppression. The likely particular impact of publicity on that party will always be relevant, but it is untenable to suggest that professional people of high public profile, such as the applicant, have anything approaching a presumptive entitlement to suppression.6 The applicant'srequests for suppression have been fully and independently considered by both the Tribunal and Toogood J and Toogood J's judgment, in turn, has been reviewed by theCourt of Appeal. We see no arguable error in the approach taken in the Court of Appeal. It follows that the application for leave to appeal must be dismissed.[4] This means that the interim order for suppression made by McGrath J on 21 December 2011 lapses. In place of the order made by McGrath J in relation to the searching of court files generally, we order that the Supreme Court file in relation to the application not be searched without the permission of a Judge. This is to give effect to the orders in favour of the applicant made by the Court of Appeal, which, of2 As it turned out, that hearing did not proceed. So the charges against the applicant have yet to bedetermined.3 X v Standards Committee (No 1) of the New Zealand Law Society HC Auckland CIV-2011-404-7750, 13 December 2011.4 Hart v Standards Committee (No 1) of the New Zealand Law Society [2011] NZCA 676.5 R v Liddell [1995] 1 NZLR 538 (CA).6 Compare s 200(3) of the Criminal Procedure Act 2011 which is yet to come into effect.course, stand. Given the dismissal of the application for leave to appeal, the issues associated with the search of the High Court and Court of Appeal files should be determined by judges of those courts.7Solicitors:N Cooke, Solicitor, Auckland for ApplicantM Treleaven, New Zealand Law Society, Auckland for Respondent7 Toogood J made an order limiting the search of the High Court file. No corresponding order wasmade in the Court of Appeal.