COMPLAINTS COMMITTEE NO 1 ADLS V "P" HC AK CIV-2007-404-004646

COMPLAINTS COMMITTEE NO 1 ADLS V "P" HC AK CIV-2007-404-004646 12 December 2007ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF RESPONDENT AND OF PERSONS NAMED IN THE DOCUMENTS ON THE COURT FILEORDER THAT FILE SHOULD NOT BE SEARCHED WITHOUT THE LEAVE OF THE COURT FIRST OBTAINED IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2007-404-004646UNDER the Law Practitioners Act 1982 IN THE MATTER OF of an appeal BETWEEN COMPLAINTS COMMITTEE NO 1 OF THE AUCKLAND DISTRICT LAW SOCIETY Appellant AND "P" Respondent Hearing: 28 November 2007 Appearances: D M Carden for the Appellant G E Minchin for the Respondent Judgment: 12 December 2007JUDGMENT OF DUFFY JThis judgment was delivered by Justice Duffy on 12 December 2007 at 11.30 am, pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date:Counsel: D M Carden P O Box 5444 Wellesley Street Auckland for the Appellant G E Minchin P O Box 78274 Grey Lynn Auckland for the Respondent[1] This is an application for leave to adduce fresh evidence in an appeal to this Court. The appeal is brought under the Law Practitioners Act 1982 and is against a decision of the Law Practitioners Disciplinary Tribunal. The appellant is a committee of the Auckland District Law Society that has responsibility for prosecuting complaints against legal practitioners of which the respondent is one. [2] Before the Tribunal the respondent faced five charges of professional misconduct: i) Acting as a solicitor when he was not the holder of a current practising certificate; ii) Misleading the Westpac Banking Corporation (Westpac) in relation to a transaction involving Mr and Mrs X; iii) Alternatively, failing to honour various undertakings given to Westpac; iv) Misleading Westpac in relation to a transaction involving Mr and Mrs G; and v) In the alternative, failing to honour certain undertakings given to Westpac in relation to the transaction involving Mr and Mrs G. [3] The respondent is someone who was admitted as a barrister and solicitor under the Law Practitioners Act. But at the time he gave the undertakings in the solicitor's certificates, the practising certificate he held permitted him to practise only as a barrister. [4] On 9 July 2007 the Tribunal dismissed the charges. On 15 August 2007 it issued its reasons for dismissing the charges. The Tribunal found that the appellant had failed to establish the respondent's conduct amounted to professional misconduct as defined in an earlier decision of the Tribunal: Atkinson v Auckland District Law Society NZLPDT 15 August 1990. The findings of the Tribunal are setout in paragraphs 30 to 38 of its reasons for decision. I am informed by counsel for the appellant that the grounds of appeal are that the Tribunal set the threshold for professional misconduct at too high a level and that what occurred in this case does amount to misconduct. [5] The application to adduce fresh evidence is related to the charges (ii) and (iv), misleading Westpac, and the alternative charges (iii) and (v), failing to honour undertakings to the bank. [6] At paragraph 30 of its decision, the Tribunal said the appellant had asked the Tribunal to infer that Westpac was misled by the fact that the respondent signed solicitor's certificates when he was not a solicitor. The undertakings in issue were described as the usual undertakings contained in a solicitor's certificate as to the completion of the conveyancing process. At paragraph 30 The Tribunal found that:There was no evidence before us that the bank was in fact misled.The Tribunal went on to say that it seemed to it that Westpac had understood the true position and had laid a complaint to the Auckland District Law Society. [7] The appellant has become concerned about the effect of this aspect of the Tribunal's finding on the outcome of the appeal. It seeks, therefore, to adduce fresh evidence in the form of two affidavits from Westpac officers. They depose, in essence, that Westpac was misled by the solicitor's certificates. [8] The authority to permit fresh evidence to be adduced on appeal is to be found in r 716 of the High Court Rules. A concise statement of the principles governing its exercise is to be found in Culverden Retirement Village Limited v McLuckie HC AK CIV 2007-404-000750 18 September 2007 Andrews J. Andrews J summarised the principles at [16]:The discretion is sparingly exercised and the presumption is that appeals will be heard on the record, as it exists. In order to satisfy the test the evidence must be cogent and likely to be material and could not reasonably have been produced at first instance.Is the fresh evidence cogent and material?[9] Before the Tribunal, the disciplinary prosecution of the respondent had proceeded on the basis that it was for the appellant to prove that the respondent had engaged in misleading conduct. The whole thrust of the appellant's case on the appeal will be that the Tribunal has set the threshold for what amounts to misconduct at too high a level. [10] It is difficult to see how the subjective knowledge of the victim of the conduct can assist an appellate court in determining whether or not the gravity of the respondent's conduct justified a finding of professional misconduct. That must ultimately turn on an assessment of the respondent's conduct. Counsel for the appellant very properly accepted that whether or not the victim of the alleged misleading conduct was in fact misled does not go to the nature of the offence itself, but rather to the gravity of the offending. Nonetheless, the appellant, out of what I assume to be an abundance of caution, wants to show in the appeal that the absence of evidence before the Tribunal on the bank being misled does not mean it was not misled. [11] While I can understand the appellant's cautious concern to cover the topic of whether or not Westpac was affected by the misleading conduct; the topic is not one that is likely to be material to the appeal's outcome. The extent to which misleading conduct achieves its intended effect cannot be relevant to whether the conduct justifies being categorised as professional misconduct. It follows that evidence on the topic is not likely to be material to the appeal's outcome. The fresh evidence may be cogent in the sense that it is convincing and clear but that does not make it likely to be material to the resolution of the appeal. The fresh evidence, therefore, fails to meet the first limb of the standard test for the admission of fresh evidence.Is the fresh evidence new?[12] Counsel for the appellant responsibly accepted that this evidence is not new evidence; it was evidence that was available for proof before the Tribunal. I wasinformed that evidence was not called before the Tribunal because at that time the appellant saw no need to do so. Its case for the prosecution of the respondent focused on establishing that the conduct the respondent had engaged in amounted to professional misconduct. Whether or not the respondent's conduct had in fact misled Westpac was not considered to be relevant to proving the ingredients of the charge of professional misconduct based on misleading conduct. It follows that the fresh evidence sought to be adduced fails the second limb of the standard test for the admission of fresh evidence. [13] The appellant drew my attention to Comalco New Zealand Ltd v TVNZ Ltd(1996) 10 PRNZ 573 (HC). This is a judgment where Gallen J gave leave for the admission of fresh evidence. He referred to the general tests to be applied in applications of this type and then said (at 579): the test should not be put so high as to require the circumstances to be wholly exceptional. Every case must be considered in relation to its own circumstances.[14] In Comalco the appellant was exercising rights of appeal against a decision of the Broadcasting Standards Authority to the High Court. It was partially successful in obtaining leave to adduce some of the fresh evidence it ought to adduce. [15] However, in Comalco the grant of leave was made in part for evidence that, in one sense, was not available to Comalco New Zealand Ltd (Comalco) at the first hearing. Part of the fresh evidence Comalco sought to adduce was described in the judgment as pre-broadcast material. Comalco obtained the pre-broadcast material from TVNZ and this was only after it had pursued an appeal on the information's discoverability to the Court of Appeal. By the time the pre-broadcast material had become available the hearing before the Broadcasting Standards Authority had concluded. [16] In one part of the judgment the pre-broadcast material is treated as not available earlier: see 579-580. But later in the judgment Gallen J found merit in the argument for TVNZ that the pre-broadcast material could have been obtained sooner (presumably before the first hearing) had TVNZ exercised its appeal rights morepromptly: see 581. The question of the availability of the pre-broadcast material is then left while attention is turned to its cogency and materiality: see 581. [17] Some of the pre-broadcast material was referred to and assessed in the affidavits of four experts whose evidence Comalco also wanted to adduce. Gallen J found that their opinion evidence, including the reference to and assessment of the pre-broadcast material, had a direct bearing on the principal question in issue; and it was related to matters that were not before the Broadcasting Standards Authority and could not have been before the Authority. He allowed, therefore, the admission of fresh evidence but only in relation to the affidavit evidence of the four experts. [18] When the reasoning in Comalco is fully examined, it is clear that the fresh evidence permitted to be adduced was cogent, directly relevant and material to the resolution of the appeal (at 583) in my view there is sufficient relevance, cogency and possible effect on the outcome to justify it [the fresh evidence] being before the Court for consideration.[19] Secondly, the pre-broadcast material had only in fact become available to Comalco after the Court of Appeal had ruled against TVNZ's refusal to discover the material. The pre-broadcast material could only be described as reasonably available at the time of the first hearing if the view was taken that Comalco was dilatory in pursuing its discovery rights to the level of the Court of Appeal. [20] The circumstances in Comalco differ considerably from those before me. In addition, I do not understand Comalco to represent a significant departure from the standard principles applied to the exercise of the discretion in r 716. The case is a helpful reminder that applications to adduce fresh evidence should be considered in relation to their own circumstances, but it does not derogate from established principles. [21] There is always room for the special case where fresh evidence is admitted, even though it was reasonably available for the hearing at first instance. The discretionary power in r 716 is broad enough to permit a Court to allow such evidence to be adduced. Furthermore, discretionary authority should never befettered by fixed guidelines. But such exceptions would be rare and to occur, the fresh evidence would need to be cogent and material to the appeal's resolution, as was the case in Comalco. When the fresh evidence is neither relevant nor likely to be material and, as well as that, is not new (in the sense it was reasonably available at the first hearing) there is no apparent basis for departing from the standard tests for its admission. [22] It has always been said that the discretion to admit fresh evidence should be sparingly used and not to provide litigants with an opportunity to bolster their case on appeal. Here, the appellant is attempting to do just that. Furthermore, it is attempting to bolster the prosecution case by covering a point, which is only peripheral to the appeal's resolution. The appeal is from a disciplinary hearing. It is for the appellant as prosecutor to determine its case and to prove its case. To allow it the opportunity to bolster its case on appeal, by introducing new evidence to cover a matter that initially had not formed part of its strategy, would be contrary to the way the discretion in r 716 should be exercised. The appellant's caution may stem from the responsibility it believes it bears to protect the public from practitioners whose conduct departs from accepted standards. Nonetheless, there is nothing about the circumstances of this case that would warrant a departure from the usual approach. Since I have already found that the fresh evidence fails both limbs of the standard tests, the application to adduce it must be declined. [23] There appears to be no agreed position on costs or the appropriate scale of costs. The usual approach is for costs to follow the event. The parties can either resolve the question between themselves or seek a determination from this Court on costs. [24] At the conclusion of the hearing I was informed that the appellant sought orders suppressing the names of the respondent and the two parties whose properties were involved in the conveyancing transactions. These orders were not opposed.Result[25] The appellant's application to adduce fresh evidence is declined.[26] Unless the parties are able to resolve the question of costs between themselves, they have until 21 December 2007 to file memoranda on costs. [27] The names of the respondent and the respondent's clients to whom the original disciplinary charges relate are ordered to be suppressed until further order of the Court. Duffy J