NAME SUPPRESSED v NATIONAL STANDARDS COMMITTEE (No. 1) OF THE NZ LAW SOCIETY [2021] NZHC 1205

NAME SUPPRESSED v NATIONAL STANDARDS COMMITTEE (No. 1) OF THE NZ LAW SOCIETY[2021] NZHC 1205 [27 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-656[2021] NZHC 1205UNDER Section 253 of the Lawyers andConveyancers Act 2006BETWEEN NAME SUPPRESSEDAppellantAND NATIONAL STANDARDS COMMITTEE(No. 1) OF THE NEW ZEALAND LAWSOCIETYRespondentHearing: 4 May 2021Appearances: J Long and J Grimmer for the AppellantD La Hood for the RespondentJudgment: 27 May 2021REASONS JUDGMENT OF HINTON JThis judgment was delivered by me on 27 May 2021 at 12;00 noonpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Duncan King Law,Julian Long, Barrister, AucklandLuke Cunningham & Clere, Barristers & Solicitors, Wellington[1] On 12 May 2021 I delivered a results judgment on an appeal by a legalpractitioner regarding the expiry date of an interim name suppression order.1 TheLawyers and Conveyancers Disciplinary Tribunal in a decision dated 14 April 2021had granted name suppression down to 9:30 am on 17 May 2021, the first day of thehearing of professional disciplinary proceedings, rather than to the date ofdetermination, as sought.2 I allowed the appeal by the practitioner and extended thesuppression order down to the date of the Tribunal's determination.[2] These are my reasons.Background[3] Following an investigation of almost three years the appellant was served withdisciplinary charges on 2 November 2020. The charges relate to sexual misconduct(or alternatively unsatisfactory conduct) as a practitioner.[4] On 9 December 2020 the appellant applied for non-publication orders whichthe National Standards Committee (the Committee) did not oppose, but rather abided.The primary ground relied on was risk of harm to the appellant's young partner andbaby as a result of publication.[5] At a hearing on 11 February 2021 the Tribunal indicated the evidence fell shortof that required to tip the balance against openness but allowed 14 days to filesupplementary evidence including a specific current assessment of the appellant'spartner's mental health. The Tribunal also required the appellant to put in place aprocess to inform his clients, present and potential, of the charges he was facing.[6] The appellant provided the supplementary evidence including further affidavitsfrom himself, his former wife and an expert affidavit from clinical psychologist, EstherYong.[7] On 14 April 2021 the Tribunal granted name suppression down to thecommencement of the substantive hearing before them. In their reasons judgment of1 Name Suppressed v National Standards Committee (No 1) [2021] NZHC 1053.2 National Standards Committee (No 1) v Name Suppressed [2021] NZLCDT 14.that date they said that they found Ms Yong's psychological evidence as to the negativeeffect that publication would have on the partner's health "compelling, particularlysince any risk to the mother must also pose a significant risk to the young baby forwhom she is the primary caregiver".3 The Tribunal found there was a "real risk ofpsychological harm to both the practitioner's partner and her baby if the practitioner'sname were published".4[8] The Tribunal also said that the appellant's reluctance to divulge details aboutthe charges to his partner, on their assessment, had significantly increased the risk ofharm she may suffer as a result of name publication.[9] It is clear that this factor is taken into account in the decision. Inter alia at[28(b)] the Tribunal said expressly that the likelihood of harm to the practitioner'spartner from publication:"has arisen out of the failure of the practitioner to explain the nature and extentof the alleged conduct to his partner. The situation has been exacerbated bythe practitioner's partners need to act frequently as sole caregiver while thepractitioner is away on business. The practitioner has not seemed to haveplaced much emphasis on the need for support for his partner during thosetimes".[10] The Tribunal concluded that with just over a month remaining before thesubstantive hearing began, there was sufficient time for full disclosure of theallegations of fact to be made by the practitioner to his partner and if done promptlythere was also time for appropriate support to be put in place to assist her as fromcommencement of the substantive hearing. The Tribunal then determined that theperiod of interim suppression should be extended to the morning of the hearing toensure there was such time.[11] The Tribunal referred to other factors as follows:(a) concerns over the practitioner's lack of timely disclosure (to clients),particularly in the context of a scheduled substantive hearing of thecharges just over one month away;3 At [23].4 At [24].(b) the practitioner and his former spouse (that is not his current partner)had been subject to media attention back in 2018, which indicatedexisting knowledge of his identity at least in Wellington and alikelihood that his name was already in the public domain particularlyin the relevant legal community;(c) the majority of the alleged victims' wish for the process to be open andtransparent (four out of five victims opposed name suppression, theother victim was neutral);(d) the appellant's former firm, Russell McVeagh, does not have namesuppression and publication would ensure that other male partners (oremployees) of the firm at the time of the allegations are not at risk ofbeing incorrectly identified as the person facing charges;(e) although the practitioner's former wife would undoubtedly sufferembarrassment and additional stress from publication, her evidencewas insufficient to displace the presumption of open justice.Approach on appeal[12] Appeals in cases involving name suppression in professional disciplinaryproceedings have for some time been treated as appeals against the exercise of adiscretion.5 To succeed in an appeal against discretion the appellant must show thatthe Tribunal acted on a wrong principle, failed to take into account a relevant matteror took into account an irrelevant matter or the decision was "plainly wrong".6 Thenthe appellate court may come to its own assessment of the merits of the case.[13] More recently in a number of decisions of this Court it has been held that suchan appeal is a general appeal by way of rehearing to which Austin, Nichols shouldapply.75 See Hart v Standards Committee (No. 1) [2011] NZCA 676, at [16].6 May v May (1982) 1 NZFLR 165, at 170.7 See in particular J v New Zealand Institute of Chartered Accountants [2020] NZHC 1566, at [73]referring to Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.[14] I had extensive and careful submissions on this point from Mr La Hood for theCommittee but I do not consider it necessary to resolve that issue in this case becauseeven applying the stricter test to which those appeals have traditionally been subject,I consider the appeal should be allowed.The relevant law[15] Section 240(1) of the Lawyers and Conveyancers Act 2006 provides:240 Restrictions on publication(1) If the Disciplinary Tribunal is of the opinion that it is proper to do so,having regard to the interest of any person (including (withoutlimitation) the privacy of the complainant (if any)) and to the publicinterest, it may make any 1 or more of the following orders:(a) an order prohibiting the publication of any report or account of anypart of any proceedings before it, whether held in public or inprivate:(b) an order prohibiting the publication of the whole or any part of anybooks, papers, or documents produced at any hearing:(c) an order prohibiting the publication of the name or any particularsof the affairs of the person charged or any other person.[16] The test is whether the Tribunal is "of the opinion that it is proper" to prohibitpublication. That threshold is lower than for suppression in the civil context and incriminal proceedings under s 200 of the Criminal Procedure Act 2011. Thecircumstances needed to tip the balance do not need to be "exceptional" or "extreme".The test requires the balance between the public interest on the one hand (namely theprinciple of open justice and transparency of process, public protection andmaintenance of professional standards) against the private interest which can includea range of matters including undue hardship to the applicant, prejudice to a fair trialand risk to the safety of others. The latter was relied on here.Discussion[17] In this case no one suggests that the Tribunal is in error in granting namesuppression. The appellant contends that in granting name suppression only to thedate of the hearing, the Tribunal took into account factors that it should not have takeninto account. I agree.[18] First, the Tribunal was wrong to take into account that on their assessment thelikelihood of harm to the practitioner's partner had arisen out of the practitioner'sfailure to explain the nature and extent of the charges, or at least that his actions hadsignificantly increased the risk of harm she might suffer as a result of publication. TheTribunal refers to this factor both before and after stating its conclusion that there wasa real risk of psychological harm to both the practitioner's partner and her baby if thepractitioner's name were published.[19] As the appellant submits, Ms Yong concluded that the partner's condition pre-existed the allegations made against the practitioner. While there can be no doubt itwas wrong of the appellant to keep the charges secret or not properly divulged to hispartner, there was no evidential basis in Ms Yong's expert report or otherwise to saythat this had significantly increased the risk of harm (or more).[20] Even if the practitioner's actions had significantly increased the risk of harm,that risk nonetheless existed, as the Tribunal concluded. The practitioner's actionsshould not be viewed as in some way militating against that risk.[21] Unless the Tribunal were concluding that the appellant had manoeuvred hispartner into a position of psychological vulnerability and/or that the evidence wasmanufactured, which they do not, then I consider that while the Tribunal's criticismsare understandable this is not a factor that can properly be taken into account in makingthe name suppression order and fixing the length thereof.[22] Secondly, I consider the Tribunal erred in concluding that one month would besufficient time for the appellant to put in place appropriate support for his partner.There is no evidence to support that conclusion and the psychologist's evidencestrongly suggests the contrary. Ms Yong expressly addressed what mitigating actioncould be taken and she did not suggest that it would assist for the practitioner topromptly put in place appropriate support for his partner or indeed that he was capableof it. She said that the practitioner's partner was already very socially isolated withlimited family support and was reluctant to engage with ongoing psychotherapy givenrecent negative experiences. I agree with the appellant that to conclude that he wouldbe able to put in place appropriate support for his partner within a month prior to thehearing was speculative and contrary to the expert psychologist's report overall.[23] I also agree with the appellant that the commencement of the hearing wouldlogically seem the most difficult point for the appellant's partner. For namesuppression to lapse at that point would run counter to the conclusions of the reportwhich the Tribunal had accepted.[24] Given those errors I am free to make my own assessment. Mr La Hoodsubmitted that if I reached that point I should defer in any event to the Tribunal givenits specialist expertise (which I wholly acknowledge) but I do not consider that appliesto an issue like name suppression.[25] Considering the other relevant factors listed by the Tribunal I note as follows:(a) I accept that there is particularly high public interest in this case andthat publication of a practitioner's name is generally the strongest pointof public interest. I note though that in a case such as this where thepractitioner themselves is not high profile but the firm is, and the firm'sname is not suppressed, public interest in the practitioner's name maynot be so great;(b) I accept that it seems likely that the practitioner's name is known withinthe relevant legal community in Wellington but I have no reason toconclude that it is widely known beyond that legal community;(c) I accept that the wish of the majority of the alleged victims for theprocess to be open and transparent is clearly relevant; and(d) I would not place much emphasis on Mr La Hood's submission thatpublication of the practitioner's name would ensure that other malepartners of the firm at the time are not at risk of being incorrectlyidentified, given that the firm did not seek name suppression and didnot oppose name suppression for the practitioner. I consider theyshould be taken to speak for former partners or employees.[26] Weighing all of the matters addressed above and in particular taking intoaccount that open justice is an important and key consideration, I concluded that theappeal should be allowed and the order made by the Tribunal in favour of interim namesuppression should be extended until the date of the Tribunal's determination.Thereafter the matter will obviously have to be revisited.Hinton J