M v HAWKE'S BAY STANDARDS COMMITTEE [2013] NZHC 3176

M v HAWKE'S BAY STANDARDS COMMITTEE [2013] NZHC 3176 [29 November 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-481[2013] NZHC 3176IN THE MATTER OF the Lawyers and Conveyancers Act 2006BETWEEN MApplicantAND HAWKE'S BAY STANDARDSCOMMITTEERespondentHearing: (On the papers)Counsel: Applicant in personP N Collins for RespondentJudgment: 29 November 2013JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 29 November 2013 at 4.30 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Counsel: P N Collins, AucklandCopy for: ApplicantNew Zealand Law Society, Hawke's Bay Branch, NapierIntroduction and background[1] The Applicant seeks leave to appeal a judgment I gave in this matter on 30 August 2013.1 In that judgment I dismissed the Applicant's appeal from adecision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal("Tribunal").2[2] The Applicant faces a charge of misconduct laid by the Hawke's Bay Standards Committee ("charge" and "Committee"). The Committee alleges that in 2008 the Applicant acted for a client, Ms H, on a transaction when he knew he had a conflict of interest, without obtaining Ms H's prior informed consent and withoutdisclosing to her all information available to him relating to her affairs. The Applicant disputes many of the matters alleged against him and denies that he is guilty of misconduct.[3] The appeal before me arose from the Tribunal's dismissal of fourinterlocutory applications that the Applicant had filed. Those applications were for dismissal of the charge of misconduct; alternatively a stay of the disciplinary proceedings; for further discovery; and seeking name suppression. I declined theApplicant's appeal.[4] The application for leave has been made out of time, and so the Applicant also requires leave to apply out of time. If he obtains leave to appeal the Applicant also seeks orders that he not be required to lodge security for costs or pay any other filing fees or costs. These applications are made on the ground of impecuniosity.[5] The Respondent opposes all applications and seeks an award of costs.[6] I have considered the parties' submissions3 and decline leave, for the reasons given below.1 M v Hawke's Bay Standards Committee [2013] NZHC 2219.2 Hawkes Bay Standards Committee v M [2013] NZLCDT 1.3 Submissions on [Applicant's] Application for Leave to Appeal on Certain Questions of Law to the Court of Appeal dated 30 October 2013; and Respondent's submissions in Opposition to the Applicant's Application for Leave to Appeal to the Court of Appeal dated 11 November 2013.Relevant principles[7] The application for leave to appeal is made pursuant to s 254 Lawyers and Conveyancers Act 2006 ("Act"). Section 254 allows for leave to be granted only if the Applicant seeks to appeal on a point of law arising from a determination of the High Court. Section 254(1) provides: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.[8] In Hart v Auckland Standards Committee 1 of New Zealand Law Society, Lang J said that the principles applying to applications for leave to appeal to the Court of Appeal under s 67 of the Judicature Act 1908 are relevant to applications pursuant to s 254 of the Act.4 A distinction between s 67 and s 254 is that leave may only be granted under s 254 on a point of law, whereas under s 67 leave may be granted on points of both fact and law.5[9] The Court of Appeal discussed the effect of s 67 of the Judicature Act 1908 inWaller v Hider and said: 6The appeal must raise some question [of law] capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal:Rutherfurd v Waite [1923] GLR 34; Cuff v Broadlands Finance Limited[1987] 2 NZLR 343, 346-7. In the latter case the Court also remarked that in the end the guiding principle must be the requirements of justice.[10] Given that, an application for leave to appeal under s 254 must raise a question of law that is capable of bona fide and serious argument and must involve some interest of sufficient importance to outweigh the cost and delay of a further appeal.4 Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 1331 at [5].5 Ibid at [6].6 Waller v Hider [1998] 1 NZLR 412 at 413 and Snee v Snee (1999) 13 PRNZ 609 at 612–613.Grounds of application for leave to appeal and proposed questions of law[11] The matters on which the Applicant seeks leave are not set out in the application, as they should be, but in his affidavit sworn 11 October 2013. They are:(a) Can an agent properly in law execute or sign a consent to act on behalf of a client as a matter of law;(b) Is the power to make rules concerning discovery by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal subject to an overriding duty to observe the rules of natural justice;(c) Are persons, in particular lawyers, under threat of prosecution in respect of charges laid pursuant to the Act entitled to the same rights of suppression as others in a more general context at law and does it make any difference whether they are practising or not voluntarily or by suspension;(d) Is the policy about expediency referred to in the Act as to the disposal of hearings before the relevant Tribunal subject to the general right to preserve silence in respect of other proceedings of a summary or criminal nature in respect of the same or similar matters before the District Court or the High Court in New Zealand; and(e) Whether, in the circumstances, the Learned Judge was correct to offer an adjournment of a hearing of the appeal matter when the Applicant could not be represented by competent counsel but emphatically deny any right of stay before the Tribunal of a hearing of the substantive charges.[12] The Respondent submits that the questions raised do not satisfy the criteria on which leave to appeal may be granted. The Respondent also submits that the Applicant should not be allowed the indulgence of appealing out of time and submits that disciplinary proceedings in the legal profession should not be unduly delayed by interlocutory litigation.[13] I turn now to consider the various questions raised and then the application for leave to appeal out of time.Question 1: Can an agent properly in law execute or sign a consent to act on behalf of a client as a matter of law?[14] This question has its genesis in a form of consent on which the Applicant relies. The Applicant's case is that, by that consent, Ms H waived any conflict of interest and that the same constitutes a complete answer to the case against him. It was on this basis that the Applicant sought the dismissal of the charge.[15] The Tribunal refused the application to dismiss. As it said, there are obvious issues with the consent, one of which is that it was signed by a Mr Foote, described as Ms H's "agent". Ms H was the vendor, Mr Foote was associated with the proposed purchaser, and the Applicant had acted for Mr Foote previously.[16] I upheld the Tribunal's ruling that the effect of the consent, if any, was amatter to be determined having heard all of the evidence from the relevant witnesses. The Tribunal had determined that there was a prima facie case against the Applicant and that many of the matters on which the Applicant relied were critical areas of factual dispute.[17] Given those reasons, I do not consider that the question posed arises from my decision. Nor do I consider that the question meets any of the other criteria on which leave may be granted.Question 2: Is the power to make rules concerning discovery by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal subject to an overriding duty to observe the rules of natural justice?[18] The parties have given discovery in accordance with the Tribunal's usual procedure. Also, at the Applicant's request, the Respondent had made its correspondence file available for the Applicant's inspection.[19] The Applicant applied to the Tribunal for an order for further discovery. The Tribunal dismissed the application on the basis that the Respondent had made fulldisclosure of its case, had gone beyond what was required by making its correspondence file available, that the discovery provided by the Respondent fully and fairly informed the Applicant of the charge and evidence against him and, most importantly, that the further discovery was irrelevant to the issues before the Tribunal.[20] I upheld the Tribunal's refusal to order the additional discovery for the same reasons and particularly because I considered the Tribunal correct in holding that the further discovery sought was irrelevant.[21] Given the basis on which I determined this matter, I am not satisfied that question 2 arises from my decision and I decline leave accordingly.Question 3: Are persons, in particular lawyers, under threat of prosecution in respect of charges laid pursuant to the Act entitled to the same rights of suppression as others in a more general context at law and does it make any difference whether they are practising or not voluntarily or by suspension?[22] The Applicant sought an order suppressing publication of his name and any particulars which might identify him as the practitioner against whom the charge was brought. The Tribunal was not satisfied that there were sufficiently compelling grounds for suppression and I upheld that decision. The Tribunal's decision wasmade on the evidence before it.[23] Quite aside from the fact that the decision was made on the basis of evidence, the issue of name suppression in disciplinary proceedings under the Act has recently been the subject of consideration in the High Court,7 the Court of Appeal8 and the Supreme Court.9 Question 3 does not meet the criteria on which I may grant leave.7 X v Standards Committee (No 1) of the New Zealand Law Society HC Auckland CIV-2011-404- 7750, 13 December 2011.8 X v Standards Committee (No 1) of the New Zealand Law Society [2011] NZCA 676.9 Hart v Standards Committee (No 1) of the New Zealand Law Society [2012] NZSC 4.Question 4: Is the policy about expediency referred to in the Act as to the disposal of hearings before the relevant Tribunal subject to the general right to preserve silence in respect of other proceedings of a summary or criminal nature in respect of the same or similar matters before the District Court or the High Court in New Zealand?[24] Section 120 of the Act provides that a disciplinary charge is to be heard and determined expeditiously.10[25] The Applicant faces a second disciplinary proceeding and criminal charges arising from events that are unrelated to the disciplinary proceeding with which this application is concerned. The Applicant applied for a stay of the present disciplinary proceeding pending determination of those criminal charges. The Tribunal declined the application because the two matters are unrelated and I refused the appeal on the same basis. The matter was not determined on the basis of s 120 but on the grounds that the two matters were entirely separate.[26] Given the basis on which the determination was reached, I do not consider question 4 arises from my decision. Alternatively, I do not consider question 4 meets the criteria on which I may grant leave.Question 5: Whether, in the circumstances, the Learned Judge was correct to offer an adjournment of a hearing of the appeal matter when the Applicant could not be represented by competent counsel but emphatically deny any right of stay before the Tribunal of a hearing of the substantive charges?[27] At the commencement of the hearing before me, the Applicant advised that he had been informed the previous day that the Legal Services Agency ("LSA") had recently granted him legal aid but that his (Rotorua based) counsel of choice was ill and that, in any event, there was some uncertainty as to whether that counsel would be of a sufficiently senior category for the matter. The Applicant also advised that he was in a position to present his argument and proceed, but that he had intended to be represented by counsel and he preferred to have an adjournment.[28] Counsel for the Respondent had not been notified in advance of this development and he opposed any adjournment. Counsel for the Respondent advised10 Lawyers and Conveyancers Act 2006, s 120(3).me that the High Court had stayed the proceedings before the Tribunal pending determination of the appeal and that it was important that the proceedings were not further delayed, particularly as the required witnesses of fact were available to give evidence.[29] I informed the Applicant that I would grant an adjournment if he wished but that I would not continue to stay the disciplinary proceedings before the Tribunal because of the need for the matter to progress.[30] I allowed the Applicant time to consider the matter and he subsequently advised that he would proceed with the hearing before me.[31] The Respondent submits that the question now sought to be appealed cannot be the subject of an application for leave under s 254 of the Act because it is not concerned with an appeal against an order or decision of the Tribunal under s 253. Ido not accept the Respondent's submission. Section 254 of the Act is concernedwith "any determination of the High Court". I am not satisfied that it necessarily precludes an appeal from a determination of a procedural issue.[32] Regardless, I accept the Respondent's submission that the Applicant was required to take steps well before now if he wished to appeal against the refusal to grant both an adjournment and a continued stay. It is now more than six months since that decision was made and well past the point in time at which the issue might be revisited. I decline leave to appeal accordingly.Result[33] To conclude, I am not satisfied that the proposed appeal raises any question of law that meets the criteria on which leave to appeal may be granted. I decline the application accordingly. That makes it unnecessary to determine the application for leave to apply out of time and the other applications as to security and the like.Costs[34] The Respondent seeks costs. The Applicant submits that he is not able to pay costs. He also submits also that it is in the wider interests of justice that litigants who pursue genuine and important points of law should not face the threat of costs.[35] The Applicant has provided no evidence of impecuniosity. Nor am I satisfied that any of the other matters raised should lead to me refusing costs to the Respondent.[36] I order the Applicant to pay the Respondent's costs on a 2B basis, along withdisbursements, to be fixed by the Registrar...................................................................M Peters J