NATIONAL STANDARDS COMMITTEE 2 OF THE NEW ZEALAND LAW SOCIETY v TINGEY [2023] NZHC 2563

NATIONAL STANDARDS COMMITTEE 2 OF THE NEW ZEALAND LAW SOCIETY v TINGEY [2023]NZHC 2563 [14 September 2023]ORDER FORBIDDING PUBLICATION OF THE NAME, AND ANYPERSONAL INFORMATION THAT MIGHT LEAD TO IDENTIFICATION, OFTHE COMPLAINANT IN THE CONTEXT OF ANY REPORT OR ACCOUNTRELATING TO THIS PROCEEDING.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-1234[2023] NZHC 2563UNDER Part 7 of the Lawyers and ConveyancersAct 2006BETWEEN NATIONAL STANDARDS COMMITTEE 2OF THE NEW ZEALAND LAW SOCIETYAppellantAND MURRAY JOHN TINGEYRespondentHearing: 7 September 2023Appearances: M J Dew KC and D C Josephs for appellantRespondent in personDate of judgment: 14 September 2023Reissued: 10 October 2023JUDGMENT OF JAGOSE JThis judgment was delivered by me on 14 September 2023 at 2.30pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarCounsel:Maria Dew KC, AucklandCopy to:Respondent[1] Under s 253 of the Lawyers and Conveyancers Act 2006, theNational Standards Committee 2 of the New Zealand Law Society (the StandardsCommittee) appeals the New Zealand Lawyers and Conveyancers DisciplinaryTribunal's 30 May 2023 decision directing redactions in any publication of its17 May 2023 decision (the liability decision, which determined disputed factsunderlying Murray Tingey's admission of a first charge and dismissed a second chargeof misconduct in terms of s 241(a)) and further varying an interim suppression order.Subsequent orders under s 242 yet have to be made. My decision urgently is sought.Background[2] On 21 December 2022, by consent, the Tribunal made an order in terms: there be no publication of:(a) The name and any personal information that might lead to theidentification of the complainant, including her address, her current worklocation, [Redacted], the exact dates of her employment and [Redacted];and(b) Her sensitive health information so far as this may be referred to in theevidence.It now is common ground the order expressly and consensually was sought on aninterim basis, in reliance on s 240.[3] In advance of hearing for the liability decision, it became apparent the partiesdiffered if reference to [Redacted] was 'personal information' subject to the 21December 2022 order. Although not formally recorded, at the opening of the hearingon 28 March 2023, the Tribunal is understood also to have prohibited publication of[Redacted] and directed any reference to her status could be published as "seniorlawyer".[4] On 17 May 2023, the liability decision was issued to the parties with a bannerin terms different from the 21 December 2022 order (and conceivably from whateverwas ordered or directed on 28 March 2023):THE NAME AND ANY PERSONAL INFORMATION THAT MIGHTLEAD TO THE IDENTIFICATION OF THE COMPLAINANT,INCLUDING HER ADDRESS, WORK LOCATION AND POSITION ARESUPPRESSED. THESE ORDERS ARE MADE PURSUANT TO S 240 OFTHE LAWYERS AND [CONVEYANCERS] ACT 2006.under cover of an email referring to appeal rights under s 253 and advising:The text in square brackets is to be redacted from any publishable version.Counsel are invited to comment on any further redactions they deem may berequired, by end of Friday this week.In the meantime, I confirm the Tribunal will hold the decision back from beingprovided to any media and published on the website until the redactions arefinalised.[5] The Standards Committee sought particular redactions in the liability decisionto avoid the complainant's identification, broadly including any reference to[Redacted], and further redactions or 'rephrasing' to avoid "unnecessary reputationalrisk" to her. By minute of 25 May 2023, except for a particular description of thecomplainant's former role,1 the Tribunal declined to make any of the redactionssought. But it accepted: without further redaction of paragraph [20], there is a risk of identificationof the complainant [Redacted]. That leads us to reflect on whether the part ofthe Interim Order which relates to [Redacted] (varied at the hearing, toexpend the original order which only addressed [Redacted]) ought to bereconsidered.This reconsideration becomes necessary because of two aspects of the case:(a) That Mr Tingey's name was not suppressed; and(b) That significant emphasis was placed on assessment of the alleged powerimbalance. Our reasoning, in rejecting such as a significant factor,depends in part on an understanding of the findings around thecomplainant's status in the firm and as such imports [Redacted]necessarily.and sought further submissions. In response, the Standards Committee contended theTribunal's objective could be met by continued reference to the complainant asa "senior lawyer". The Standards Committee's continued identification of prospectiveredactions sought to accommodate the Tribunal's concern, although leaving suchredacted decision at least equivocal in its identification of the complainant.1 At [16].Decision under appeal[6] On 30 May 2023, the Tribunal issued the minute at issue on this appeal,attaching a redacted version of the liability decision. The redactions were to theparticular description of the complainant's former role,2 [Redacted],3 the date of anincident founding the second charge against Mr Tingey;4 the nature of the firm'sconference attended by Mr Tingey and the complainant;5 the entirety of a paragraphrelating to consequences of Mr Tingey's prior conduct;6 an option available to thecomplainant on leaving the firm;7 and the date of another conference attended by MrTingey and the complainant.8[7] The minute read:[1] Having heard submissions from counsel on the proposed redactions, andon the issue of variation of the Interim Name Suppression Order, we nowdirect that redactions appear in the published decision in terms of theattached version.[2] The Interim Name Suppression Order of 21 December 2022 was made inrespect of an application for, specifically, "Interim name suppression forcomplainant" dated 8 December 2022.[3] At the commencement of the hearing on 28 March 2023, Ms Dew soughtcontinuation of the Interim Name Suppression Order, and as varied at thathearing. It was never intended by the parties or by the Tribunal to representthe final word on non-publication under s 240 of the Act.[4] The Interim Suppression Order, as varied, is now further varied as followsand will appear as a banner on the decision:THE NAME AND ANY PERSONAL INFORMATION OF THECOMPLAINANT, INCLUDING HER ADDRESS, WORKLOCATION, [Redacted] AND THE IDENTITY OF HER PARTNERARE SUPPRESSED. THESE ORDERS ARE MADE PURSUANT TOS 240 LAWYERS AND CONVEYANCERS ACT 2006.[5] The Tribunal has determined that the public (including the profession) willbe unable to understand the reasoning in the decision if such a pivotal factas [Redacted] is suppressed.[6] We have considerable sympathy for the complainant's position, and theimportance of not discouraging future complainants from comingforward. In this case the past publication of the respondent's position, thekey relevance of relative power positions in our decision, the adverse2 At [16].3 At [20].4 At [28].5 At [32].6 At [36].7 At [53].8 At [56] and the preceding title.impact on understanding of our reasons if there is suppression of relativepositions and the importance of open justice have resulted in this one factin the specific circumstances of this case not remaining [suppressed]. Thecomplainant's name remains suppressed.[8] For the Standards Committee, Maria Dew KC argues the Tribunal's order doesnot adequately protect the identity of the complainant and seeks an order prohibitingpublication of the complainant's personal information, including [Redacted] as anidentifying feature at particularised points in the liability decision. She says theTribunal's minute errs in law effectively by predetermining any order for permanentnon-publication; on disaggregated assessment of the penultimate sentence of theminute's [6], is open to challenge as founded on irrelevancies and disregardingrelevancies; and otherwise is "plainly wrong".[9] Mr Tingey supports the minute as necessary to do justice in his case. He saysit is the result of the Tribunal's 'careful and deliberate' consideration. He opposesreinstatement of the prior 21 December 2022 consent order as now rendering theliability decision incomprehensible, and surpassed in any event by the liabilitydecision's unredacted specification of [Redacted] from which her identity may easilybe deduced. He says such reinstatement would be to the prejudice of other seniorwomen employed by the firm, and of his entitlement to have the liability decisionfairly understood.Approach on appeal[10] It is well-established, as the Tribunal's decision is one made under pt 7 of theAct, s 253(2)(b) affords the Standards Committee "a right of rehearing on a firstappeal, including consideration of process and procedural complaints".9 On hearingthe appeal I may confirm, reverse, or modify the decision.10[11] If a general appeal, I am justified in interfering with that decision only ifI consider it is wrong — in other words, the Tribunal erred.11 Nonetheless, the burdenof establishing error falls on the Standards Committee.12 I then am to come to my own9 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2016] NZCA 224 at [35].10 Lawyers and Conveyancers Act 2006, s 253(4).11 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].12 Nicholas v Te Amo [2023] NZCA 22, [2023] 2 NZLR 620 at [8].assessment of the merits of the case afresh, without deference to the Tribunal (save forsome caution in differing on witness credibility, when I have not had the advantage ofobserving the witnesses).13 I may rely on the Tribunal's reasons in reaching my ownconclusions, but the weight I give those reasons is a matter for me.14[12] Alternatively, if a decision in the exercise of discretion, I may interfere with itonly if the Standards Committee establishes the Tribunal erred in law or principle, didnot address relevant matters or took into account irrelevant matters, or was "plainlywrong".15 'Plainly wrong' is not synonymous with 'wrong' but adds the quality ofobviousness as being wholly outside "the available ambit of judicial discretion".16[13] The weight of contemporary coordinate authority favours consideration ofappeals against subordinate tribunals' exercises of statutory powers to prohibitpublication as general appeals.17 Appellate authority, expressly "to state and explainthe principles that should guide the suppression of the names of parties or of witnesses,or particulars in civil cases",18 is to the effect "[t]he discretionary nature of thejurisdiction means an appeal against the making or refusal of a suppression order issubject to the principles this Court laid down in May v May".19[14] If the former approach on appeals to this Court should be influenced by thelatter approach on appeals from this Court is not something I can give dueconsideration in the present urgent circumstances. The sources of power to prohibitpublication differ: they are statutory on appeals to this Court, but from "an inherent,13 Austin, Nichols & Co Inc v Stichting Lodestar, above n 11, at [13].14 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].15 Kacem v Bashir, above n 14, at [32] citing May v May (1982) 1 NZFLR 165 (CA) at 170; andBlackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8].16 National Heart Foundation of New Zealand v Carroll HC Nelson CIV-2008-442-495, 25 February2009 at [5], citing G v G [1985] 2 All ER 225 (HL) at 228h and 229c.17 L v A Professional Conduct Committee [2023] NZHC 1151 at [43], citing Beer v ProfessionalConduct Committee [2020] NZHC 2828, XY v Professional Conduct Committee of the MedicalCouncil of New Zealand [2022] NZHC 1498 and J v New Zealand Institute of CharteredAccountants Appeals Council [2020] NZHC 1566.18 Y v Attorney-General [2016] NZCA 474, (2016) 23 PRNZ 452 at [22].19 At [24], citing May v May, above n 15. An application for leave to appeal to the Supreme Courtagainst the decision was dismissed as moot: Y v Attorney-General [2017] NZSC 26 at [2]. Thedecision was affirmed in FMV v TZB [2019] NZCA 282, [2019] NZAR 1385 at [8].discretionary jurisdiction" on appeal from this Court.20 Moreover, the Court of Appealconsidered its approach was mandated:21 by the Supreme Court in Rowley v Commissioner of Inland Revenue[[2011] NZSC 76, (2011) 25 NZTC 20-052] at [5]. This approach differs fromthe position in the United Kingdom, where the courts treat the decisionwhether to order name suppression as an evaluative one on which an appealcourt may consider the matter afresh (see JXMX v Dartford & GraveshamNHS Trust [2015] EWCA Civ 96, [2015] 1 WLR 3647 at [27], in which theCourt adopted a position more akin to that applied by our Supreme Court inrelation to evaluative decisions in Kacem v Bashir[, above n 14] at [32] and[35]).In those circumstances, I adopt the Court of Appeal's approach, as was argued beforeme (the alternative only being raised in post-hearing memoranda).Relevant law[15] Section 240 relevantly provides: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 (without limitation)the privacy of the complainant (if any)) and to the public interest, it maymake 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.(2) Unless it is reversed or modified in respect of its currency by the HighCourt on appeal under section 253, an order made under subsection (1)continues in force until such time as may be specified in the order, or, ifno time is specified, until the Disciplinary Tribunal, in its discretion,revokes it on the application of any party to the proceedings in which theorder was made or any other person.[16] Orders under s 240 should expressly be stated, "both in the body of the relevantdecision and in an order band or a separate results section at the end of the decision",in terms 'tracking' s 240's language and specifying "the precise terms of the relevant20 At [23].21 At [24], n 27.prohibition (in particular, what could not be published and the duration of theprohibition)".22 Such is 'preferable' to give "the clarity that is desirable whenexercising a power of that kind".23[17] I elsewhere have doubted if so-called 'interim' non-publication orders werethere open to being made.24 Similar considerations may apply under s 240(2), whichrequires an order prohibiting publication continue in force either for a specifiedduration or "if no time is specified" until its revocation on application. That subs (2)only is about the order's duration is established by its reference to this Court's powerto reverse the order, or modify its currency, on appeal. Section 240 simply enables theTribunal to make particular non-publication orders, which remain in force for any timespecified in the order or otherwise until revoked on application. Section 253's right ofappeal is unaffected.[18] Finally, I observe judicially-directed redaction of decisions notoriouslyrequires difficult assessments in balancing divergent interests.25Discussion[19] As has been seen, the s 240 order at issue as set out in the Tribunal's30 May 2023 minute originated in terms established by consent and subsequentlyvaried by the Tribunal in uncertain terms. As a result, at least until issue of the minute,there was no expression of the Tribunal's opinion any non-publication order wasproper to make, or of the regard it had for affected personal and public interests. Ratherthose were to be inferred from the terms of the order as it stood at any particular time.[20] In its terms, the order as set out in the 30 May 2023 minute would 'suppress'"the name and any personal information of the complainant". 'Suppress' is not a termof art under the Act. Its primary dictionary meaning is "to overcome or keep down byforce or authority", with subsidiary meanings "to prevent from being expressed" or(more particularly still) "to withhold or withdraw from publication or the public22 Haden v Police [2021] NZCA 94 at [45].23 At [43].24 R v [H] [2022] NZHC 1741 at [11]–[14].25 See, for example, Financial Markets Authority v ANZ Bank New Zealand Ltd [2019] NZCA 11 at[7]–[9]; H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [54]–[58].sphere".26 Under the Criminal Procedure Act 2011, a "suppression order" is an ordermade specifically "forbidding publication" of particular information.27[21] Given the order at issue expressly is "made pursuant to s 240" — which entitlesthe Tribunal to "make any 1 or more" of specified orders, each prohibiting publicationof specific information — under the only applicable s 240(1)(c), by 'suppress', theorder must mean to "prohibit the publication of the name or any particulars of theaffairs" of a person. Those 'particulars of the affairs' here are "any personalinformation" of the complainant, including as specified.[22] 'Personal information' also is not a term of art under the Act. But it is definedin the Privacy Act 2020 as meaning "information about an identifiable individual".28Because, under s 240(1), the Tribunal must have regard for personal interests"including (without limitation) the privacy of the complainant (if any)" (emphasisadded), such 'privacy' may be thought to engage their 'personal information' as sodefined. Still, "[a]n unqualified approach to what constitutes 'information about anidentifiable individual'" is undesirable;29 an "evaluative conclusion" is required as toif "the individual [is] a subject matter of the information".30 Such may be thought hereto extend to the fact of [Redacted].[23] Notwithstanding the terms of its order in 'suppressing' "the name and anypersonal information of the complainant", arguably including the fact of [Redacted],[5]–[6] of the Tribunal's 30 May 2023 minute make it clear that order is not intendedto prohibit publication of [Redacted] in the same firm as Mr Tingey or their "relativepower positions".[24] The Tribunal's 30 May 2023 minute at [1]–[4] also identifies the order as beingin further variation sought by the Standards Committee of the Tribunal's original21 December 2022 order, which the Tribunal additionally identifies as being26 Oxford English Dictionary (online ed, July 2023), sense 1, 1c, 2b.27 Criminal Procedure Act 2011, ss 194, 199C, 200, 202 and 205.28 Privacy Act 2020, s 7, definition of "personal information".29 Harder v Proceedings Commissioner [2000] 3 NZLR 80 (CA) at [23].30 Privacy Commissioner v Telstra Corporation Ltd [2017] FCAFC 4, (2017) 249 FCR 24 at [63]."interim", "never intended by the parties or by the Tribunal to represent the final wordon non-publication under s 240 of the Act".[25] Being sought by consent on interim terms, the 21 December 2022 order plainlywas not intended to be final. Designation as 'interim' alone is not sufficient to specifythe period of the order's currency. In the context of administrative directions, 'interim'generally means "pending further order".31 Subject to an incorporated power to correcterrors or omissions in a previous exercise of the power,32 it is not clear the order ifmade under s 240 stood to be varied by further order, but only to either expire in itsterms or be revoked on application. Whether then open to being made anew turns onif the Tribunal remains seized of proceedings in which such orders may be made.[26] Neither the Tribunal nor the Standards Committee (in seeking variation of the21 December 2022 order, implicitly for its revocation and substitution) directlyaddress the Tribunal's 17 May 2023 order expressly made under s 240,unconditionally 'suppressing' "the name and any personal information that might leadto the identification of the complainant". Coming with the Tribunal's decision onMr Tingey's liability and separate advice of appeal rights and invitation only toidentify redactions for "any publishable version", and without specification of anytime for the order to remain in force, s 240(2) means the 17 May 2023 order continuesin force unless and until revoked on application.[27] There is no dispute the 17 May 2023 decision's multiple specifications of thecomplainant [Redacted] at the relevant time is to identify her. The decision'saccompanying email, inviting identification for redactions, does not affect the 17 May2023 order. In communicating the decision together with the order, the Tribunalestablished "a clear signpost" the order was final and conclusive.33 As such, the orderis to be treated as perfected, and incapable of being revisited,34 short of revocation onapplication.3531 See, for example, Kidd v van Heeren [2019] NZCA 275, (2019) 24 PRNZ 596 at [85].32 Legislation Act 2019, s 46.33 Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA) at [42].34 Ford v Board of Trustees for Smith Primary School [2021] NZCA 363, [2021] 3 NZLR 738 at[88], citing Goulding v Chief Executive, Ministry of Fisheries, above n 33.35 Lawyers and Conveyancers Act, s 240(2).[28] If redactions are to be made of the 17 May 2023 decision, that is a matter ofadministrative convenience rather than for judicial determination. The decision itselfcontains no redactions. Irrespective of redaction, the 17 May 2023 order continued tostand in its terms. If redactions were to indicate what of the decision could bepublished in compliance with the order, they needed to be consistent with the order,rather than warranting any restatement of it to accommodate the Tribunal's hindsightfor more limited redaction (even if such restatement was permissible).[29] Accordingly, without exercising its discretion in favour of any application torevoke the 17 May 2023 order, the Tribunal's 30 May 2023 minute errs in law bycontradicting that order's term prohibiting publication of "any personal informationthat might lead to the identification of the complainant". I will set the minute'sdecisions aside.Result[30] The Tribunal's 30 May 2023 minute's decisions are reversed.Confidentiality[31] On 23 June 2023, Venning J directed this proceeding "be listed as N v T in anyHigh Court listing" and any request to access the Court file be referred to the parties,and 'suppressed' "the name and any identifying particulars of the complainant andrespondent, including those particulars that are currently the subject of this appeal,pending further order of the Court".36[32] His Honour also observed:37[A]ny orders in relation to what may be published following the hearing areappropriately dealt with by the Judge hearing the appeal, bearing in mind theother suppression orders below which are made, effectively by consent.36 National Standards Committee 2 of the New Zealand Law Society v Tingey HC Auckland CIV-2023-404-1234, 23 June 2023, at [12]–[14].37 At [10].The issue of comity — this Court's recognition, with mutual respect and restraint, ofthe Tribunal's proper sphere of influence and privileges — arises.38 Under s 240, theTribunal is the body charged with deciding if to prohibit publication in connectionwith proceedings before it. As such, its 17 May 2023 order suppressing thecomplainant's name and any personal information that might lead to her identificationis to be respected by this Court.[33] I propose to discharge Venning J's interim order and replace it with an orderforbidding publication of the name, and any personal information that might lead toidentification, of the complainant in the context of any report or account relating tothis proceeding, for reissue of this judgment without anonymisation of the StandardsCommittee or Mr Tingey.[34] Any disagreement with that course must be raised by memorandum filed nolater than two working days after issue of this judgment.Postscript[35] No disagreement having so been raised, on reissue of this judgment withoutanonymisation of the Standards Committee or Mr Tingey, I:(a) discharge Venning J's interim order; and(b) order publication of the name, and any personal information that mightlead to identification, of the complainant in the context of any report oraccount relating to this proceeding is forbidden.—Jagose J38 Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 at [73], citing the ParliamentaryPrivilege Act 2014, s 4(1)(b).