HALL V WELLINGTON STANDARDS COMMITTEE HC WN CIV-2012-404-002608

HALL V WELLINGTON STANDARDS COMMITTEE HC WN CIV-2012-404-002608 [16 July 2012]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-404-002608[2012] NZHC 1723UNDER the Lawyers and Conveyancers Act 2006IN THE MATTER OF the Law Practitioners Act 1982ANDIN THE MATTER OF an appeal against a decision of the NewZealand Lawyers and ConveyancersDisciplinary TribunalBETWEEN DONNA MARIA TAI TOKERAU DURIEHALLAppellantAND WELLINGTON STANDARDSCOMMITTEERespondentHearing: 16 July 2012Counsel: H A Cull QC for AppellantG L Turkington for RespondentJudgment: 16 July 2012In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.45 pm on the 16th day of July 2012.RESERVED JUDGMENT OF COLLINS JIntroduction[1] The respondent, Wellington Standards Committee (WSC), applies to strike out a notice of appeal filed by the appellant (Ms Hall). Ms Hall wishes to appeal a"determination" of the New Zealand Lawyers and Conveyancers DisciplinaryTribunal (Tribunal). The word "determination" is used in this judgment because the issue this Court is asked to resolve is whether the Tribunal made a "decision" withinthe meaning of s 253(1) of the Lawyers and Conveyancers Act 2006 (the Act) which is amenable to appeal to this Court. The determination which Ms Hall wishes to appeal was that she had a case to answer in a disciplinary hearing brought against her by the WSC.[2] Section 253(1) of the Act provides:253 Appeal against order or decision of Disciplinary Tribunal(1) Any of the persons specified in subsection (2) may appeal to the High Court against any order or decision made under [Part 7 of the Act] by the Disciplinary Tribunal.[3] It is accepted that the persons specified in s 253(2) of the Act includepractitioners in the position of Ms Hall and that the Tribunal's "determination" wasmade under Part 7 of the Act.[4] This judgment focuses solely on issues of jurisdiction. This Court makes no comment about the merits of the case against Ms Hall, or whether the Tribunal was correct when it determined there is a case for Ms Hall to answer.Background[5] Ms Hall faces a single charge before the Tribunal. The charge is that she:... with negligence or incompetence in her professional capacity, ... of such a degree as to reflect on her fitness to practise or as to bring the profession into disrepute ...(1) On or about 1 November 2006 until on or about 16 July 2007 she acted for a vendor, Hikuwai Hapu Lands Trust("Hikuwai") on the one hand, and a purchaser, TauharaMiddle 15 Trust ("Tauhara 15") and lender, Tauhara Middle 4A2A Trust, on the other, without the prior informed consent of each party; and/or(2) She failed to advise each party of the areas of conflict or potential conflict; and/or(3) She failed to advise the purchaser and lender that each should take independent advice and arrange such advice; and/or(4) She failed to decline to act further for the purchaser and lender where acting would or would be likely to disadvantage one or both of them.[6] The charge cites s 241(c) of the Act and the former rr 1.04 and 1.07 of the Rules of Professional Conduct for Barristers and Solicitors.[7] Ms Hall denies the charge.[8] On 2 April 2012 the Tribunal commenced hearing the charge against Ms Hall. The Tribunal received a number of affidavits. It also had the benefit of written submissions that had been filed on behalf of the WSC and Ms Hall. The written submissions from Ms Hall identified from the outset that she was urging the Tribunal to accept that the evidence relied upon by the WSC did not reach the threshold of establishing a case for Ms Hall to answer.[9] Mr Turkington, counsel for the WSC took the Tribunal through his submissions and the evidence relied upon by the WSC. At approximately 3.45pm Ms Cull QC, counsel for Ms Hall commenced her submissions. Those submissions took most of the following day. By 4.10pm on 3 April 2012 the Tribunal had heard all submissions on whether or not there was a case for Ms Hall to answer. The Tribunal adjourned for ten minutes, then resumed its sitting at 4.20pm when it said:The Tribunal does find that there is a case for the practitioner to answer. We will in due course provide reasons for that decision but we are mindful of the time constraints and we would prefer to press on with the matter at this stage. I thought perhaps if we could have a brief discussion with counsel about where that takes us to in terms of the hearing and the timing.[10] Discussions then took place about whether or not Ms Hall would be giving evidence. Ms Cull asked the Tribunal to give in writing its reasons for concludingthat there was a case for Ms Hall to answer and reserved the option of Ms Hallgiving evidence once she had an opportunity to consider the Tribunal's reasons forits determination.[11] On 16 April 2012 the Tribunal delivered written reasons for concluding Ms Hall had a case to answer. Those written reasons are headed:Decision of the Lawyers and Conveyancers Disciplinary Tribunaland comprised 48 paragraphs in which the Tribunal, inter alia:(1) explained the parties' competing submissions;(2) summarised the evidence; and(3) explained its reasons for concluding the evidence before the Tribunal met the threshold of establishing a case for Ms Hall to answer.[12] On 4 May 2012 Ms Hall filed a notice of appeal in the High Court. That notice of appeal identifies the following grounds of appeal. She pleads, that the Tribunal:(1) wrongly applied the principles of "strike out" to a prima facieapplication;(2) failed to consider whether the charge of negligence and/or incompetence of such degree as to reflect on fitness to practise can succeed on the basis of the evidence presented by the WSC;(3) focused only on part of the particular, namely whether "there is prima facie evidence of a conflict", without regard to the other particulars;(4) failed to consider whether the engagement of other law practitioners meant the test for obtaining informed consent to a conflict or potential conflict of interest had been met;(5) wrongly focused on the absence of evidence from the practitioner both before and during the hearing;(6) wrongly permitted an application to strike out two paragraphs in an exhibit of an affidavit filed on behalf of Ms Hall; and(7) wrongly implied that pages missing from an agreement for sale and purchase had been removed by Ms Hall.[13] On 18 June 2012 the WSC filed an application to strike out Ms Hall's noticeof appeal. The WSC has pleaded that the determination of the Tribunal that Ms Hallhas a case to answer is not a "decision" within the meaning of s 253(1) of the Actand that the Tribunal should be directed to resume the hearing.No case to answer in a disciplinary context[14] Professional disciplinary proceedings draw on procedures and principles found in both the criminal and civil jurisdictions. It is unusual for a defendant in a disciplinary proceeding to argue that there is no case for them to answer. There is, however, authority for recognising that in appropriate cases a practitioner may submit at the close of the prosecution case that there is no case to answer. An example of such a case is Malfanti v The Legal Professional Disciplinary Tribunal1in which the Court of Appeal of New South Wales said they found it difficult tounderstand why a submission analogous to a "no case" argument should not beentertained at the conclusion of the prosecution case where the practitioner wished to submit that there was no evidence to support any of the grounds in the charge.Analysis[15] I have undertaken a three pronged analysis of the issue I am required to resolve.1 Malfanti v The Legal Professional Disciplinary Tribunal (1993) 4 LPDR 17 (NSWCA).Natural and ordinary meaning of s 253(1) of the Act[16] First, I have focused upon the natural and ordinary meaning of the language Parliament has used when passing s 253(1) of the Act.[17] Parliament has said that persons in Ms Hall's position "may appeal to theHigh Court against any ... decision made ..." by the Tribunal under Part 7 of the Act.[18] The natural and ordinary meaning of the word "decision" includes "a conclusion or resolution reached", the "settlement of a question" and a "formal judgment".2[19] The determination of the Tribunal which Ms Hall wishes to appeal fits all ofthe standard definitions of the term "decision". The Tribunal:(1) reached a conclusion that Ms Hall had a case to answer;(2) settled the question raised by Ms Hall, namely whether she had a case to answer; and(3) delivered a formal judgment recording its reasons for reaching the conclusion that Ms Hall had a case to answer.[20] Although not determinative of the issue, it is notable that the Tribunal itselfdescribed its determination as a "decision" when it announced the outcome of Ms Hall's application and when delivering its written reasons for determining shehad a case to answer. The Tribunal was chaired by a District Court Judge and includes a Queen's Counsel. For its part it appears the Tribunal was in no doubt itwas delivering a decision. The Tribunal's view it was delivering a decision reflectsthe natural and ordinary meaning of the word "decision".2 Concise Oxford Dictionary (9th ed).Nature of the Tribunal's determination[21] Second, I have found it helpful to focus on what the Tribunal did when it decided that Ms Hall had a case to answer. The Tribunal:(1) considered the evidence relied upon by the WSC to support the charge brought against Ms Hall;(2) considered submissions it received from the parties;(3) applied its understanding of the law to the evidence before it;(4) reached a conclusion in the form of a judgment.[22] The process followed by the Tribunal was a judicial process. The Tribunal'stask involved the application of judicial reasoning to resolve an issue. The Tribunal was not engaged in an administrative or procedural exercise. The task which theTribunal was engaged in was determinative of Ms Hall's rights and interests.3Indeed, the Tribunal would have determined the outcome of the charge brought against Ms Hall had it acceded to her submission that there was no case to answer.[23] The submission from the WSC that the Tribunal did not deliver a decision that is amenable to appeal faces other difficulties. If the approach advocated by the WSC is correct and, if the Tribunal had ruled in Ms Hall's favour, the WSC wouldhave been forced to argue that such a determination was a decision for the purposes of s 253(1) if it wished to appeal that determination. This in turn would have raisedthe spectre of the Tribunal's determination being considered by the WSC to be a decision for some purposes (if the Tribunal found for the practitioner and dismissedthe charge) but not for other purposes such as (where the practitioner's applicationfailed). I doubt Parliament envisaged such subtle distinctions when it passed s 253(1) of the Act.3 New Zealand Bill of Rights Act 1990, s 27(2).The Authorities[24] Counsel for the WSC relied upon the Court of Appeal judgments of Winstone Pulp International Ltd v Attorney-General,4 Association of Dispensing Opticians of New Zealand Inc v The Opticians Board5 and Attorney-General v W6 to support theproposition that the Tribunal's determination in this case was not an appealabledecision. Mr Turkington submitted that those cases, which advocated a restrictive interpretation of s 66 of the Judicature Act 1908 should be relied upon by this Court to read down the effect of s 253(1) of the Act in order to avoid practitioners frustrating the disciplinary process by challenging findings of the Tribunal that a practitioner has a case to answer.7 Mr Turkington acknowledged during the course of oral submissions, however, the force of the Supreme Court decision in Siemer v Heron.8 In that judgment the Supreme Court expressly overturned a series of Court of Appeal cases concerning the scope of the ability of the Court of Appeal to entertain appeals under s 66 of the Judicature Act 1908 on interlocutory issues. The Supreme Court said:9The Court of Appeal is a very busy Court. It is understandable that it should wish to avoid being burdened with multiple and possibly unnecessary appeals arising from one piece of litigation. The Court has no doubt beentroubled by the broad language ("judgment, decree or order") of s 66 and the absence of any rules or orders controlling when and how interlocutory appeals may be brought. So it has endeavoured to provide its own solution by reading down the words of the section. The Court's attempt to putinterlocutory decisions into various classes has not, however, led to a stable jurisprudence.We consider that the Court should not have embarked on this exercise and should instead have accepted that s 66 does give an appeal as of right against interlocutory decisions of all kinds made in the High Court unless the Judicature Act itself or a rule or order made pursuant to the Act creates a restriction. The words "any judgment, decree or order" must be held tomean what they say. The statutory language does not support any other interpretation.4 Winstone Pulp International Ltd v Attorney-General (1999) 13 PRNZ 593 (CA).5 Association of Dispensing Opticians of New Zealand Inc v The Opticians Board [2000] 1 NZLR158 (CA).6 Attorney-General v W (2007) 18 PRNZ 673 (CA).7 Section 66 of the Judicature Act 1908 empowers the Court of Appeal to hear appeals from any"judgment, decree, or order" of the High Court.8 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.9 At [30] – [33].It is not for this Court to say whether this position should be modified by the legislature or whether regulating rules or orders should be made (noting, however, that the power to make rules or orders would not appear to extend to any outright prohibition of an appeal).10 If there are any undesirable consequences of this interpretation, the Court of Appeal should be able to mitigate them. Although the Court, in our view, must under s 66 receive all interlocutory appeals, it may in its discretion decline to hear them in advance of trial (or the substantive hearing of an appeal from the District Court) if it considers that they may be overtaken by the trial (or hearing) or that the appellant is unlikely to be prejudiced by such a postponement.11 It is in this connection to be borne in mind that it has long been the case that upon a substantive appeal, interlocutory rulings can be reviewed if they remain material. In Paper Reclaim this Court observed that there is an established practice that it is not generally necessary to appeal against an interlocutory order made during the course of the proceedings until after the substantive decision in the proceedings has been delivered.12 Unnecessary or vexatious appeals can also be discouraged by appropriate awards of costs to the respondents.But where an interlocutory decision which is the subject of an appeal would be dispositive of the case either in law or as a practical matter, the Court of Appeal would ordinarily proceed to hear and determine it before the substantive issue is addressed by the High Court, just as in practice it has done in the past, as the cases referred to at [20]–[29] demonstrate.[25] In my assessment the Supreme Court judgment provides a complete answer to the issue I have to determine.[26] The words "any order or decision" found in s 253(1) of the Act are at leastequivalent to, or possibly even broader than the words "any judgment, decree or order" found in s 66 of the Judicature Act 1908.[27] This Court is in no doubt that if the reasoning of the Supreme Court in Siemer v Heron is applied to the circumstances of this case it is apparent that Ms Hall has a right of appeal.10 The existence of the express leave requirement in s 67 suggests that "regulating" in s 66 does notextend to requiring leave for appeals.11 In Attorney-General v W, where the trial was already underway when the interlocutory appealswere brought, the Court of Appeal said that it was possible that evidence whose admission wasin issue might not be accepted by the Judge as it might prove not to be material or the appellantmight succeed in any event: at [12]. The Court also pointed to the practical difficulty anddisruption if it were to proceed to hear the appeals: at [15]. It reserved leave to apply for anurgent hearing if subsequent developments in the trial justified that course or if the High Courtrefused to extend interim name suppression: at [18]–[19].12 Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59,[2007] 2 NZLR 1 at [14], citing Crowley v Glissan (No 1) (1905) 2 CLR 402 and Gerlach vClifton Bricks Pty Ltd (2002) 209 CLR 478 at 483.[28] In addition, the factors I have considered in [16] – [23] reinforce this conclusion.Conclusions[29] The application to strike out Ms Hall's appeal is dismissed.[30] Costs are reserved.[31] The High Court will hear Ms Hall's appeal as soon as a hearing date can be arranged.____________________D B Collins JSolicitors:Lawyers Complaints Service, Wellington for Respondent