P v THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2021] NZHC 196

P v THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2021] NZHC196 [17 February 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-882[2021] NZHC 196UNDER the Judicial Review Procedure Act 2016, theNew Zealand Bill of Rights Act 1990 andPart 30 of the High Court RulesIN THE MATTER of an application for judicial reviewBETWEEN PApplicantAND THE NATIONAL STANDARDSCOMMITTEE OF THE NEW ZEALANDLAW SOCIETYRespondentHearing: 9 February 2021Appearances: R S Reed QC and J L Libbey for ApplicantC P Paterson for RespondentJudgment: 17 February 2021JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 17 February 2021 at 3 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Cook Morris Quinn, AucklandMeredith Connell, AucklandCounsel: R S Reed QC, AucklandIntroduction[1] This judgment determines an application by P to set aside or modify a claim toprivilege made by the respondent ("NSC"), a standards committee established underthe Lawyers and Conveyancers Act 2006 ("Act").[2] P has commenced a proceeding for judicial review in respect of a determinationthat NSC made or purported to make on 27 May 2019 ("May determination"). Theeffect of the May determination was that P's case should be considered by theNew Zealand Lawyers and Conveyancers Disciplinary Tribunal ("Tribunal"), alsoestablished under the Act.[3] In his proceeding, P seeks a declaration that the May determination was madeunlawfully and is a nullity, and that what P contends is a determination that NSC madeon 21 February 2019 remains operative ("February determination"). The Februarydetermination was that P had engaged in unsatisfactory conduct in the sense ofs 152(2)(b)(i) of the Act. Most practitioners would consider this a preferable outcometo a reference to the Tribunal, as provided for in the May determination.[4] NSC has filed an appearance in the proceeding abiding the decision of theCourt. New Zealand Law Society is to appear as contradictor ("NZLS"). NSC alsoabides the Court's decision on the current application but Ms Paterson, counsel forNSC and NZLS, appeared at the hearing and made very helpful submissions.Discovery to date[5] By way of what counsel refer to as "informal disclosure", NSC has providedan unsworn list of documents held in respect of its investigation regarding P. This listidentifies some documents for disclosure, others as having been redacted in whole orin part to preserve confidentiality, and others as "withheld on the basis of deliberativeprivilege".[6] Those to be disclosed have been provided to P, and some exhibited to anaffidavit he swore in December 2020.[7] Although there is no sworn list of documents, the parties have asked the Courtto proceed as if P had made an application under r 8.25, High Court Rules 2016, foran order setting aside or modifying a claim to privilege made in an affidavit ofdocuments. I shall proceed as counsel propose but note I would prefer to be workingwith a sworn affidavit of documents in NSC's control, a formal application for an orderunder r 8.25 which complies with the High Court Rules, and likewise a notice ofopposition, if one were to be filed. Formality is the best course when discoverybecomes contentious.[8] NSC has provided the Court with a copy of the challenged documents. NeitherP nor his counsel, Ms Reed QC and Ms Libbey, have seen these but I have inspectedthem for the purposes of determining this application. The documents compriseminutes of meetings of NSC; emails between members of NSC and a solicitor assistingNSC ("solicitor"); drafts of a written notice of determination (referred to below); andcomments on those drafts. The solicitor to whom I have referred is appointed by NSCto undertake certain delegated functions, including drafting written notices ofdetermination.Background[9] What follows is a summary of the events apparent from P's affidavit.[10] In or about May 2018, NSC commenced an own motion investigation into anincident which had occurred in December 2016 between P, then a partner in a law firm,and an employee of the firm.[11] On 14 January 2019, the solicitor advised P, through his counsel, that the matterwas set down for a hearing on the papers, which NSC expected to conduct on21 February 2019. The letter also stated P would be advised of the outcome by writtennotice of determination, which it might take some weeks to deliver.[12] To put what follows in context, s 152 of the Act provides that, after inquiringinto a complaint or, in this case, matter, and conducting a hearing in respect of thesame, a standards committee may make one or more of three possible determinations,these being that the matter be considered by the Tribunal (that is the Maydetermination); that there has been unsatisfactory conduct on the part of, in this case,P (that is the February determination); or that the committee take no further actionwith regard to the matter.[13] The Act then provides the procedures which apply consequent upon thedetermination(s) reached. If the committee makes a determination of unsatisfactoryconduct, s 156 permits it to make various orders, including payment of a fine and costs.[14] Section 158 provides the committee must forthwith give written notice of adetermination of unsatisfactory conduct, or indeed one to take no further action.Amongst other things, the notice must state the determination and the reasons for it,and specify any orders made under s 156.[15] As to the procedure a committee is to follow, this is to be found in the Act; theLawyers and Conveyancers Act (Lawyers: Complaints Service and StandardsCommittees) Regulations 2008; and a practice note issued by the NZLS, beingPractice Note Concerning the Functions and Operations of Lawyers StandardsCommittees.21 February 2019[16] NSC met on 21 February 2019 ("February meeting"). In so far as they relateto P, the minutes of this meeting, which were approved at a meeting in March 2019,and which have been disclosed to P state:NSC1 determined:• Unsatisfactory conduct pursuant to sections 12(b), 12(c) and 152(2)(b) ofthe Act.• $10,000 fine.• $1,500 costs.• Censure.• Anonymised publication (section 142(2) of the Act).[17] A note next to the entry records this as having been a unanimous decision.[18] P's case is that the minutes evidence that NSC, at its February meeting,determined P had engaged in unsatisfactory conduct and, consequent upon thatdetermination, ordered under s 156 that he should pay a fine and costs, and becensured.[19] Counsel for P and the solicitor exchanged a handful of emails between19 March 2019, when counsel enquired as to when P might expect NSC's decision,and 9 May 2019. The gist of the solicitor's response was that NSC regretted itsworkload was such it had not yet been possible to deliver its written notice ofdetermination.[20] On 9 May 2019, the solicitor advised P's counsel that NSC would "beconsidering this matter further" at its meeting the next day, stating this was "effectivelya continuation of its hearing on the papers" from its previous meeting, presumably thaton 21 February 2019. Counsel objected saying that she had understood from thesolicitor's prior communications that NSC had already made its decision. Thesolicitor's response was that a determination "is not formally made until writtenconfirmation of the same ... is delivered".[21] On 21 May 2019, the solicitor advised counsel that NSC would continue itshearing of the matter on 27 May 2019.27 May 2019[22] NSC convened by telephone on 27 May 2019. NSC has disclosed to P thefollowing extract from the minutes of this meeting:NSC1 resolved not to finalise the preliminary decision made on 21 February2019 and it approved the contents of the decision set out in the Notice ofDetermination circulated to members earlier today....d) the communication to [P] of the written Notice Of Determination (to beissued later today, once signed by the convenor) will represent NSC1'sdetermination.[23] The same day NSC delivered the written notice of determination referred to inthat subparagraph, that is notice of its determination to refer the matter to the Tribunal.[24] Paragraphs [15] and [16] of the notice refer to NSC's earlier consideration ofthe matter as follows:15. The Standards Committee deliberated over the course of threemeetings, held on 21 February 2019, 10 May 2019 and (by telephoneconference) on 27 May 2019. At the meeting on 21 February 2019 aprovisional decision was made, subject to considering and approvingwritten reasons for that decision. At the meeting on 10 May 2019 theStandards Committee considered draft reasons for its provisionaldecision on 21 February 2019 and asked for alternative draft reasonsto be prepared for further consideration. At its meeting on 27 May2019, the Standards Committee resolved not to finalise thepreliminary decision made on 21 February 2019 and it approved thedecision set out in this Notice of Determination.16. The Standards Committee gave consideration as to whether what ithad decided at its 21 February 2019 meeting constituted adetermination within the meaning of section 152(1) of the Act orwhether it was free to continue the hearing and reach a differentdecision, with acceptable reasoning. In doing so, it considered anemail from counsel for [P] dated 9 May 2019. The StandardsCommittee concluded that it had not made a final determination on 21February 2019, that the hearing had not concluded, and that it was freeto continue its deliberation and reach a different decision for thefollowing reasons:(a) the decision that was reached at its meeting on 21 February2019 was intended to be provisional and subject to approvalof acceptable reasons;(b) no written determination had been finalised by the StandardsCommittee and delivered to the parties;(c) the Standards Committee is not functus officio because it hadnot completed its statutory function which includes thecommunication of a reasoned decision; and(d) the communication to [P] of this written Notice ofDetermination will represent the Standards Committee'sdetermination.(footnotes omitted)[25] P commenced this proceeding on 16 June 2020.Grounds of review[26] P seeks judicial review of the May determination on the grounds:(a) NSC was functus officio for the purpose of making any determinationafter the February determination, subject to giving the written notice ofdetermination required by s 158;(b) alternatively there was a breach of natural justice as the composition ofNSC at the May meeting was different from its composition at theFebruary meeting.[27] As to [26](b), Mr Hampton QC, then the convenor of NSC, was present at themeeting on 21 February 2019 but resigned sometime afterwards, and was not party tosubsequent discussions. Mr Skelton QC, the deputy convenor of NSC prior toMr Hampton's resignation, was not present at the meeting on 21 February 2019.Mr Skelton was appointed the convenor of NSC after Mr Hampton's resignation andwas present at subsequent meetings, including on 27 May 2019. There may also havebeen a change to the lay members of NSC between 21 February and 27 May 2019.[28] At the hearing of this application, Ms Reed advised that P proposed to amendhis pleading to allege additional grounds, being a failure to give P a right to be heardon whether NSC had power to revisit (hopefully a neutral word) the Februarydetermination at its 27 May meeting, and whether NSC took into account irrelevantconsiderations. Ms Reed advised P suspected NSC decided to revisit the Februarydetermination following criticism from members of the profession of anotherstandards committee decision, which had determined an instance of sexual harassmentto be "unsatisfactory conduct" as opposed to referring the matter to the Tribunal.Deliberative privilege[29] There is no dispute about the principles to be applied so I may deal with thesebriefly. In a more contentious case, a closer regard to the cases footnoted might assist.11 Nakhla v McCarthy [1978] 1 NZLR 291 (CA); Comalco New Zealand Ltd v BroadcastingStandards Authority [1995] 3 NZLR 469 (HC); Comalco New Zealand Ltd v BroadcastingStandards Authority (1995) 9 PRNZ 153 (CA); M v L [1999] 1 NZLR 747 (CA); ENZA Ltd vApple and Pear Export Permits Committee [2001] 3 NZLR 456 (CA); Air New Zealand Ltd vCommerce Commission [2004] 3 NZLR 550 (HC); Contact Energy Ltd v Electricity CommissionHC Wellington CIV-2005-485-624, 14 July 2005; and Orlov v New Zealand Law Society(Auckland Branch) (No 5) (2011) 21 PRNZ 52 (HC).[30] Deliberative privilege or immunity is intended to protect the deliberativeprocess of a decision-making body from disclosure. The rationale for the privilege isthat, whilst a body's decision and the reasons for it should not be confidential, there isa public interest in keeping private the process by which that decision is reached.There is no express provision for this privilege in the Evidence Act 2006. It may beapposite to consider its application under s 69 which concerns non-disclosure on thegrounds of confidentiality but I have proceeded on the authorities to which counselreferred me.[31] There is also no dispute the privilege applies in the context of the deliberationsof a standards committee, Heath J having determined that point in an earlier case.2 So,to give an example, in a matter such as the present, documents evidencingcommunications between members of a standards committee as to the appropriatedetermination and as to the content of the written notice of determination would beprivileged or immune from production.[32] However, it is equally common ground that the Court may order disclosure if"special circumstances" exist, these being when there is greater public interest in aparty and the Court having access to information necessary to litigate and determine acase fairly.3[33] Accordingly, the parties are agreed the issues I have to determine are:(a) whether the documents evidence the deliberative process of NSC;(b) if so, whether special circumstances exist in the sense to which I havereferred which warrant an order for disclosure.2 Orlov v New Zealand Law Society (Auckland Branch) (No 5), above n 1.3 ENZA Ltd v Apple and Pear Export Permits Committee, above n 1, at [23].SubmissionsAre the documents privileged?[34] Ms Reed's first submission was that documents created after 21 February 2019could not be privileged. This is because, on P's case, NSC having made itsdetermination that day, any subsequent documents constituted discussions after thefact.Discussion[35] I am not persuaded by this submission. With one exception, I am satisfied thedocuments evidence NSC's deliberative process. It may be the trial Judge doesdetermine NSC was functus officio in terms of making a further determination after21 February 2019 but that does not deprive the subsequent documents of deliberativecharacter even if, on Ms Reed's case, those deliberations were pointless.[36] I have also considered Ms Reed's submission that emails to and from thesolicitor could not be privileged, he not being a member of NSC. In Contact EnergyLtd v Electricity Commission, Goddard J's view was that a communication could onlybe subject to deliberative privilege if between two or more members of the deliberativebody, in that case the Electricity Commission.4 I do not consider the privilege is soconfined in this case. As I have said, the solicitor is the delegatee of NSC functionsand, in large part, was a conduit for information or responsible for implementing thedirections of another member of NSC. Accordingly, I propose to treat communicationsto which the solicitor was a party as covered by the privilege.Special circumstances[37] Ms Reed submitted that special circumstances do exist in this case, whichoutweigh NSC's right to privacy. She submitted P requires access to NSC's file if heis to prosecute his case, as there is a paucity of relevant information before the Court.4 Contact Energy Ltd v Electricity Commission, above n 1, at [45].[38] Ms Paterson disagreed. She submitted the privilege applied and was notoutweighed by countervailing considerations. She submitted the additional discoverysought was unnecessary, as P is able to advance his pleaded (and quite possiblyforeshadowed) grounds of review on the information that has been disclosed.DiscussionCase law[39] In ENZA, the Court of Appeal declined ENZA's appeal from the High Court'srefusal to order provision of documents subject to deliberative privilege. In doing so,the Court said that "special circumstances" warranting an order for production ofotherwise privileged documents would not exist if the High Court had sufficientmaterial to enable it to reach a just determination on the issues.[40] The gist of the Court of Appeal's decision was that the High Court hadsufficient evidence of the reasons for the contentious decisions of the respondentcommittee and of the procedures that the committee had followed, and in a formsufficient to address the respects in which ENZA contended the committee's processwas flawed. In that case, three members of the committee, including the chairman,had sworn affidavits in response to ENZA's claim. The Court of Appeal described theaffidavits as a "conscientious response to the Committee's obligation to inform theCourt sufficiently to enable it to discharge its function".5[41] The Court was also concerned that any record of the interaction of members ofthe committee would "inherently be fragmented and incomplete, and possibly alsoquite misleading".6 Ultimately, the Court was satisfied the committee had put itsposition sufficiently before the Court to enable the issues in the proceedings to beproperly addressed by the High Court, those issues being the adequacy of thecommittee's reasons, rather than the "dynamics of how it got to them".75 ENZA Ltd v Apple and Pear Export Permits Committee, above n 1, at [17].6 At [19].7 At [22].[42] In Air New Zealand Ltd v Commerce Commission, the plaintiffs were appealingthe Commission's refusal to authorise an acquisition. The plaintiffs sought an orderthat the Commission produce communications between it and experts, on the groundsthe documents were required to consider their allegation of a breach of natural justice.Rodney Hansen J declined to order the Commission to produce the documents andwas satisfied the information presently available sufficed to enable the plaintiffs toadvance their case and for the Court to resolve the issues. The Judge went on to say:8[33] Among the special circumstances which may warrant departure fromthe general rule – where a greater public interest outweighs that of deliberativeprivacy – are cases where the deliberative process itself is attacked. Anallegation of bias is an example: ENZA at para [24] and New ZealandVegetable Growers at p 171. But it could not be said that the natural justiceground raised in this case could justify access to evidence of the deliberativeprocess. The commission has fully disclosed the changes it made to the modeland the reasons for them. The natural justice implications of the steps it tookafter the conference can be fully explored on the information alreadyavailable. It is the reasoning of the tribunal, not the dynamics of it, which isin issue: see ENZA at para [22].Decision[43] Ms Reed submitted that she required access to the documents to advance P'scase on the existing and "to be pleaded" grounds of review. She submitted that theinformation presently available does not enable any assessment of the accuracy of thestatements in [15] and [16] of the written notice that are quoted above. Ms Reed saidthat the procedural rules applying to the deliberations of a standards committee dopermit of a reserved decision but the minutes of the February meeting did not indicateany reservation or conditionality. Ms Reed submitted this was also relevant to herallegation that the change in composition of the NSC over the relevant period was abreach of natural justice. Overall, Ms Reed submitted this was a case in which thedynamics of the decision-making process were in issue, thus distinguishing it fromENZA and Air New Zealand.9[44] Ms Paterson submitted the issue of whether NSC was functus officio in therespect alleged is a legal issue, capable of determination by reference to the relevant8 Air New Zealand Ltd v Commerce Commission, above n 1, at [33].9 ENZA Ltd v Apple and Pear Export Permits Committee, above n 1; and Air New Zealand Ltd vCommerce Commission, above n 1.statutory provisions and the minutes of NSC's 21 February 2019 meeting, and possiblyalso the terms of the written notice of determination.[45] As to the allegation that the change in the composition of NSC was a breach ofnatural justice, Ms Paterson submitted there is no dispute as to which members of NSCparticipated at the various times, and the documents sought could have no bearing onP's arguments in that respect.[46] Ms Paterson's first submission does not address Ms Reed's point as to [15] and[16] of the written notice of determination. That may be relevant to the Court'sassessment of P's functus argument, that is whether a provisional decision was madeas opposed to one intended to be a final determination. I also accept Ms Reed'ssubmission that more information in that regard might be relevant to the Court'sassessment of Ms Reed's contention that the change in the composition of the NSCwas a breach of natural justice.[47] Given the absence of information available on these points, and havinginspected the documents in issue, I am satisfied the public interest in disclosure of avery confined group of documents exceeds the public interest in maintaining theirprivacy. In the first instance, pending agreement or further order of the Court, thedocuments are to be disclosed to P's legal advisers only.[48] I accept that what I am ordering is fragmentary disclosure which may wellconvey an incomplete picture. Regardless, I consider the production I have ordered tobe the minimum required in the interests of justice. It is a matter for NSC if it wishesto provide additional information or documents.[49] I set aside the privilege claimed in the following documents to the extent noted:(a) the NSC agenda or file note of 21 February 2019 forming part ofdocument 67. This document is the exception I referred to in [35]above;(b) 81A: Email from solicitor to NSC members. Disclose first paragraph,[3], and paragraph starting "On reflection";(c) 81B: Draft Notice of Determination. Disclose paragraphs [37] to [51]inclusive;(d) 85C: Email from one member of NSC to others. Disclose paragraphcommencing "In my view". Redact name of sender and recipientsand all other content if wished;(e) 85F: Email solicitor to NSC members. Disclose from "Dear All" tofourth paragraph ending "Disciplinary Tribunal";(f) 126: Email solicitor to NSC members. Redact first two paragraphs,disclose the rest;(g) 149: Minutes of 10 May 2019 meeting. Disclose all content relating toP;(h) 150: Minutes of 27 May 2019 meeting. Disclose all, but redact the finalsentence up to the words "NSC1 unanimously ...".[50] I reserve leave to apply.[51] I expect counsel will be able to resolve issues as to costs, if any, but they mayfile brief submissions if not.Peters J