P v THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2019] NZHC 3159

P v THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2019] NZHC3159 [3 December 2019]ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYINGPARTICULARS OF THE APPLICANT, LAW FIRM AND AFFECTEDPERSON.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2484[2019] NZHC 3159UNDER 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: 28 November 2019Appearances: R S Reed QC and J L Libbey for the applicantM J Mortimer for the respondentDate of judgment: 3 December 2019JUDGMENT OF PALMER JThe judgment was delivered by me on 3 December 2019 at 3.00pm.Pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCounsel/Solicitors:R S Reed QC, AucklandCook Morris Quinn – City Branch, AucklandMeredith Connell, AucklandWhat happened?[1] The National Standards Committee (NSC) is a standards committee of the NewZealand Law Society (NZLS). It initiated an own-motion investigation of a lawyer,Mr P, in relation to conduct he concedes was unwelcome and offensive verbal andphysical attention, of a sexual nature, towards another person. In May 2019, theCommittee made a decision to refer the matter to the Disciplinary Tribunal, includingfor the reason that Mr P's conduct was potentially capable of constituting misconduct.But Mr P suspects the Committee had made a different decision in February 2019 andwas not lawfully able to change it to a different one later. Under r 8.20 of the HighCourt Rules 2016, Mr P applies for pre-commencement discovery to obtain twodocuments, concerning the determination he suspects was made in February, beforefiling a judicial review proceeding.[2] Before the first call of the proceeding in the Judicial Review List, Mr P and theNSC filed a joint memorandum seeking suppression orders to protect the identity ofthe person affected by Mr P's actions. On 19 November 2019, I agreed to suppressthe identity of the affected person. The parties also sought orders suppressing theidentity of the relevant law firm, details of the alleged incident and Mr P's name,nature of practice and other identifying information. I indicated I was not inclined togrant these orders, in advance, and invited them to pursue the matter in the List if theywished. They did so.Submissions[3] Ms Reed QC, for Mr P, submits the identity of Mr P, the affected person andthe relevant law firm should all be suppressed for the purposes of this application. Shesubmits, if his identity is published, there is a real risk that the identity of the firm and,by way of a concertina effect, the identity of the affected person, will become known.That person wishes to maintain their privacy and is not taking any part in the NSC'sprocess. Ms Reed submits the case law indicates the balance of considerations at aninterlocutory stage should be weighted against publication until the substance of thematter is determined. She also submits that, if judicial review proceedings are taken,and are successful, the NSC would need to consider the question of publication then,within its own legal framework. If judicial review is not successful, the DisciplinaryTribunal will need to do that. She submits the discretion about suppressionappropriately lies with those bodies. She submits the suppression orders should lastuntil two weeks after the application for pre-commencement discovery is determined,in order to allow for the applicant to make decisions about a substantive proceeding.[4] The relevant law firm, appropriately, abides the Court's decision about its ownidentification. But it is "certain" the affected person will not want their identity knownand would regard publication as personally harmful.[5] Mr Mortimer, for the NSC, submits its primary concern is to avoididentification of the affected person and orders should be put in place to prevent thatrisk. He acknowledges the concertina effect submitted by Ms Reed is a risk in thecircumstances of this case. He submits, ordinarily, the NSC might take the point thatthose coming to the High Court for relief could expect open justice but he submits themore pressing risk here is that of identification of the affected person. He also agreesthat the importance of open justice is less for an interlocutory application than asubstantive proceeding.[6] I note Mr Mortimer is representing the NSC. I recently issued a judgment inShand v Legal Complaints Review Officer, which observed that, ordinarily, it isappropriate for such a decision-maker to abide a judicial review of its decision and, ifthe proceeding lacks a contradictor, the NZLS would offer to act as counsel assistingthe Court.1 I am not convinced by Mr Mortimer's submission that the NSC is actingin a prosecutorial role in this proceeding, as it would before the Disciplinary Tribunal.This application does not concern that phase of the disciplinary process. However, theissue in this application concerns discovery of documents, over which the NSCmaintains it has deliberative privilege, and that has precedential implications for theoperations of the NSC and other standards committees. I accept that circumstanceconstitutes a legitimate exception to the ordinary rule that a decision-maker abides achallenge to its decision.1 Shand v Legal Complaints Review Officer [2019] NZHC 3105.Should suppression orders be granted[7] The usual starting point in considering suppression orders in a civil proceedingis the fundamental constitutional principle of open justice which maintains publicconfidence in the administration of justice.2 But most rules have exceptions. I do notsay all rules have exceptions because there may be an exception to that. As theSupreme Court noted in Erceg v Erceg, there are circumstances in which the interestsof justice require that rule be departed from, to the extent necessary to serve the endsof justice.3[8] It is relevant that s 188 of the Lawyers and Conveyancers Act 2006 restrictsthe disclosure of information acquired by a Standards Committee in the course of itsinvestigation. Under reg 31 of the Lawyers and Conveyancers Act (Lawyers:Complaints Service and Standards Committees) Regulations 2008, StandardsCommittee decisions must remain confidential unless the Committee directspublication. The High Court in Rabson v New Zealand Law Society held that theintention of the Act and regulations is that the complaints process is confidential unlessa practitioner is censured or reprimanded and the public interest warrants it.4 Even ifthat is so, however, the considerations relevant to whether a Standards Committeedirects publication must include the public interest in knowing whether a particularlaw practitioner has been censured or reprimanded.[9] In this case, I do not consider the statutory context regarding the disciplinaryprocess for law practitioners is enough to justify departure by the courts from theprinciple of open justice in relation to Mr P, other things being equal. If he wishes touse the Court's processes to challenge a step in the disciplinary process, he shouldexpect the usual principles governing the Court's processes to apply.[10] However, Mr P's challenge to the disciplinary process should not be permittedto reveal the identity of the affected person and who is taking no part in the process.And I accept Ms Reed's submission, and Mr Mortimer's acknowledgement, that thereis a real risk of a concertina effect leading from identification of Mr P to identification2 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].3 At [3].4 See Rabson v New Zealand Law Society [2017] NZHC 2153 at [12].of the relevant law firm to identification of the affected person. The factors on whichI base that finding are not all spelt out in this judgment, so as not to provide furtherdetails which might themselves lead to such identification.[11] Accordingly, for this application for pre-commencement discovery, I grant theapplication, by consent, for suppression of the identity of the affected person, theidentity of the relevant law firm, details of the incident and of Mr P's name, nature ofpractice and other identifying information. Because suppression is ordered to protectthe identity of the affected person, the suppression will last until further order of theCourt. I give leave for either of the parties, or the affected person, to apply to lift orvary the suppression orders, with notice to each other. Mr P's name will beanonymised (as Mr P) and the file must not be searched without leave of a judge whofirst obtains the views of the parties on application to search it.Palmer J