MORAHAN v WELLINGTON STANDARDS COMMITTEE 2 [2019] NZCA 221

MORAHAN v WELLINGTON STANDARDS COMMITTEE 2 [2019] NZCA 221 [13 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA392/2018[2019] NZCA 221BETWEEN PETER JAMES MORAHANAppellantAND WELLINGTON STANDARDSCOMMITTEE 2RespondentHearing: 28 May 2019Court: Collins, Peters and Mander JJCounsel: A C Beck for AppellantD R La Hood and S K Brennan for RespondentJudgment: 13 June 2019 at 3.30 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The suspension will commence on 1 July 2019.C Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] In September 2017, the New Zealand Lawyers and Conveyancers DisciplinaryTribunal (the Tribunal) found Mr Morahan liable in relation to two disciplinarycharges prosecuted by the Wellington Standards Committee (the StandardsCommittee).1 In a subsequent penalty decision, the Tribunal suspended Mr Morahanfrom practice for four months with effect from 4 December 2017 and ordered that hepay costs totalling $37,171.63.2[2] Mr Morahan appealed both the liability and penalty decisions. That appeal,which was heard as a general appeal,3 was dismissed by Churchman J on29 May 2018.4 Mr Morahan sought and was granted leave to appeal to this Court ontwo questions of law, which we explain at [7] to [8].5 The Tribunal's penalty decisionhas been suspended pending delivery of our judgment.[3] The first charge alleged offending by Mr Morahan between 1 August 2002 and1 August 2008, when he was acting for Ms B, Mr J and the PGJ Trust (the Trust) inrelation to a number of property transactions. Mr J was the settlor, and a trustee, ofthe Trust. Mr Morahan was also a trustee of the Trust. The gravamen of the firstcharge was that Mr Morahan breached the professional duties he owed Ms B by actingfor Mr J and the Trust in a way that disadvantaged Ms B. There is an issue as towhether or not the first charge concerned events that predated 1 August 2002 andwhether the Tribunal acted unlawfully by taking into account events that occurredprior to 1 August 2002, when setting the penalty imposed upon Mr Morahan.[4] The second charge alleged Mr Morahan breached the professional duties heowed Ms B, by taking steps that were contrary to her interests in relation to events thatfollowed the breakup of the marriage between Ms B and Mr J, and in relation toproceedings between them in the Family Court. This offending was alleged to haveoccurred after 1 August 2008.[5] The dates specified in the first charge are important because of s 351 ofthe Lawyers and Conveyancers Act 2006 (the 2006 Act), which came into force on1 August 2008. The 2006 Act replaced the Law Practitioners Act 1982 (the 1982 Act).The relevant parts of s 351 of the 2006 Act state:1 Wellington Standards Committee 2 v Morahan [2017] NZLCDT 24.2 Wellington Standards Committee 2 v Morahan [2017] NZLCDT 34.3 Lawyers and Conveyancers Act 2006, s 253.4 Morahan v Wellington Standards Committee 2 [2018] NZHC 1229.5 Morahan v Wellington Standards Committee 2 [2018] NZCA 407.351 Complaints about conduct before commencement of section(1) If a lawyer or former lawyer is alleged to have been guilty, beforethe commencement of this section, of conduct in respect of whichproceedings of a disciplinary nature could have been commencedunder the Law Practitioners Act 1982, a complaint about that conductmay be made, after the commencement of this section, tothe complaints service established by the New Zealand LawSociety.(2) Despite subsection (1), no person is entitled to make under this Act—(b) a complaint in respect of—(i) conduct that occurred more than 6 years beforethe commencement of this section.The complaints service referred to in s 351(1) was established by s 121(1) ofthe 2006 Act.[6] Section 351 of the 2006 Act creates a limitation period for disciplinaryproceedings against lawyers. A complaint that is lodged after 1 August 2008 cannotconcern conduct that occurred before 1 August 2002. The logical corollary of thislimitation is that no disciplinary charge in relation to a complaint made after1 August 2008 should allege offending that occurred before 1 August 2002. Ms B'scomplaint against Mr Morahan was made on 18 August 2013 and was therefore subjectto s 351 of the 2006 Act.[7] Mr Morahan can only appeal to this Court with leave on questions of law.6Churchman J declined leave.7 This Court, however, granted Mr Morahan leaveto appeal on two discrete questions of law.8 Those questions ask:(a) Did the Tribunal and the High Court comply with s 351 of the 2006 Actwhen:(i) finding Charge 1 proved and upholding that finding; and6 Lawyers and Conveyancers Act, s 254.7 Morahan v Wellington Standards Committee 2 [2018] NZHC 1583.8 Morahan v Wellington Standards Committee 2, above n 5, at [1].(ii) deciding upon and upholding the penalty?(b) Did the High Court reach its own conclusions on the merits ofthe appeal? If it did not, what consequences should follow inthe circumstances of this case?[8] The first question of law engages the effect of the limitation in s 351 ofthe 2006 Act in relation to both findings of liability and decisions as to penalty.The second question concerns the test that should be followed by the High Court whenconsidering a general appeal from decisions of the Tribunal. That test was explainedby the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, in whichthe Court said that when hearing general appeals, an appellate court is required toreach its own conclusions in relation to the matters in dispute.9 The Court also said:10 the appellant bears an onus of satisfying the appeal court that it shoulddiffer from the decision under appeal. It is only if the appellate court considersthat the appealed decision is wrong that it is justified in interfering with it.Background[9] Annexed to the charges was a statement of "particulars" comprising56 paragraphs that set out the "facts and matters" relied upon by the StandardsCommittee to support the charges.[10] The first 25 paragraphs of the particulars set out events and allegations, whichpredated 1 August 2002.[11] The particulars say that in July 1998 Mr J commenced a de facto relationshipwith Ms B who, at the time, owned her own unencumbered home in Johnsonville and,that in February 1999 they jointly purchased a property at Rosetta Road in Raumati.Mr Morahan acted for both Mr J and Ms B in relation to the purchase ofthe Rosetta Road property that was purchased with the assistance of a loan of$150,000 secured against the title to Ms B's Johnsonville property. Mr Morahan actedfor Ms B in arranging this loan and in registering the mortgage over her property.9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].10 At [4] (footnotes omitted).[12] Mr J and Ms B married in April 1999. At about the same time, Ms B wasappointed as an additional trustee of the Trust. In the following month Ms B and herchildren from a previous relationship were added as discretionary beneficiaries ofthe Trust.[13] Mr Morahan acted for Ms B, Mr J and the Trust in relation to a number oftransactions in the ensuing years, including the raising of a loan secured againstthe Rosetta Road property in June 1999, the subdivision of the Rosetta Road propertyin October 1999 and the transfer of ownership of the Rosetta Road property tothe Trust in February 2000.[14] In about 2002, the relationship between Ms B and Mr J became strained.Notwithstanding their difficulties, the marriage continued until July 2009.In March 2002, Ms B was removed as a trustee of the Trust. She says that she did notknow that this had occurred. Mr Morahan acted for Mr J and the Trust in relation tothose events.[15] Paragraphs 26 to 51 of the particulars set out facts and allegations that postdate1 August 2002. The narrative says that in December 2004, Ms B sold her Johnsonvilleproperty and advanced the net proceeds of sale, comprising $60,000, to the Trustto purchase a property at Golf Road, Paraparaumu. It was alleged that Ms B, at thistime, was still unaware she had been removed as a trustee. Mr Morahan acted forMr J, Ms B and the Trust in relation to the purchase of the Golf Road property.[16] In July 2005, Mr Morahan acted for the Trust in arranging a restructuring ofmortgages over the Rosetta Road property and the sale of that property. It was allegedMr Morahan failed to ensure Ms B's interests were properly protected in relation tothis transaction.[17] Ms B and Mr J lived in the Golf Road property for a number of years.Following their separation in July 2009, Mr Morahan, acting for Mr J, and inhis capacity as a trustee, executed a deed which removed Ms B and her children asbeneficiaries of the Trust. In September 2009, the Trust evicted Ms B fromthe Golf Road property. Mr Morahan continued to act for Mr J and the Trust duringthis phase of the breakdown in the relationship between Ms B and Mr J.[18] Disputes about the separation and the division of relationship property led toMs B commencing proceedings in the Family Court in December 2012. Mr Morahanacted as solicitor for Mr J and the Trust during the Family Court proceedings. He didso without Ms B's consent. In the Family Court proceedings Mr Morahan filedpleadings and provided evidence that it was the Trust, rather than Ms B and Mr J, thathad first purchased the Rosetta Road property. It was only during a hearing inthe Family Court in May 2013 that Mr Morahan produced documents that showedthe Rosetta Road property had been purchased by Ms B and Mr J a year before it wastransferred to the Trust. The Family Court was very critical of the way Mr Morahanconducted himself in that Court.The charges[19] Charge 1 alleged that between 1 August 2002 and 1 August 2008, Mr Morahanengaged in conduct that constituted "misconduct",11 or "conduct unbecominga barrister and solicitor",12 or "negligence or incompetence in his professional capacity so as to reflect on his fitness to practise as a barrister or solicitor or as to tend tobring the profession into disrepute".13 The charge thereafter referred to the particularsannexed to the charges.[20] There is a heading above paragraph 52 of the particulars, which states"[t]herefore the practitioner committed charge 1 referred to above as follows".Paragraph 52 of the particulars then sets out in eight subparagraphs the basis uponwhich it was alleged Mr Morahan was guilty of the first charge. The first twosubparagraphs of paragraph 52 refer to Mr Morahan's conflicting roles in acting forMs B, Mr J and the Trust in relation to the transfer of the Rosetta Road property tothe Trust in February 2000 and the removal of Ms B as a trustee of the Trust on1 March 2002. The balance of the subparagraphs in paragraph 52 identify the ways inwhich the Standards Committee alleged Mr Morahan breached his professional11 Law Practitioners Act 1982, s 112(1)(a).12 Section 112(1)(b).13 Section 112(1)(c).obligations to Ms B in relation to the various transactions that occurred between1 August 2002 and 1 August 2008.[21] Charge 2 alleged that after 1 August 2008, Mr Morahan engaged in conductthat constituted "misconduct",14 or "unsatisfactory conduct",15 or "negligence orincompetence" of such a degree "as to reflect on his or her fitness to practise or as tobring [the] profession into disrepute".16 The charge then referred to the particularsannexed to the charge.[22] Paragraphs 53 to 56 explain the basis upon which it was alleged Mr Morahanwas guilty of Charge 2. Those paragraphs refer to his breaches of duty when removingMs B as a beneficiary of the Trust, evicting her from the Golf Road property and inthe way he conducted himself in relation to the Family Court proceeding. Mostsignificantly, the Standards Committee alleged "[t]he practitioner filed pleadings andgave evidence in the Family Court Proceedings that he knew, or ought to have known,were false and/or misleading ".Tribunal decisions[23] In reaching its decision as to liability, the Tribunal explained that its findingsin relation to the first charge were confined to events that occurred between1 August 2002 and 1 August 2008. The Tribunal said that it reminded itself"that the charge [could] be proved only on findings made in respect of conduct allegedto have occurred after 1 August 2002";17 that it was making "no finding against[Mr Morahan] in respect to any of his conduct prior to 1 August 2002";18 and that itfound Mr Morahan "breached his professional obligations to Ms B from at leastDecember 2004 through to July 2005"; and that "there were other breaches as wellprior to December 2004 in the period backdated to August 2002".1914 Lawyers and Conveyancers Act, s 241(a).15 Section 241(b).16 Section 241(c).17 Wellington Standards Committee 2 v Morahan, above n 1, at [13].18 At [43].19 At [50].[24] Notwithstanding that the Tribunal expressly confined its findings as to liabilityto matters that occurred between 1 August 2002 and 1 August 2008, the Tribunal alsomade findings in relation to Charge 1 of matters that predated 1 August 2002.The Tribunal explained that its findings in relation to matters that occurred before1 August 2002 were "relevant in establishing context".20 In particular, the Tribunalsaid there was a "clear failure by [Mr Morahan] to ensure that [Ms B] wasindependently advised in respect of [the] earlier transactions"21 and that his actionsbefore 1 August 2002 "fell well short of his duty to [Ms B] at that time, but moreimportantly, had ongoing implications for what was to follow".22[25] The Tribunal concluded Mr Morahan had breached the professional dutieshe owed Ms B to ensure she received independent advice in relation to the transactionsthat occurred after 1 August 2002 and that his conduct constituted negligence orincompetence to such a degree that it reflected upon his fitness to practise or tendedto bring the profession into disrepute.23 Having made that finding, it was not necessaryfor the Tribunal to consider the alternative elements of Charge 1 that allegedMr Morahan was guilty of misconduct or conduct unbecoming a Barrister andSolicitor.[26] The focus of the Tribunal's findings in relation to Charge 2 was upon the wayMr Morahan acted for Mr J and the Trust in the Family Court proceedings and uponthe way he allowed misleading pleadings and evidence to be presented in thoseproceedings concerning the sequence of events that led to the Rosetta Road propertybeing acquired by the Trust. The Tribunal was satisfied Mr Morahan breachedhis professional duties to such a degree that he was again guilty of negligence orincompetence to such a degree that it reflected upon his fitness to practise or tendedto bring the profession into disrepute.24 Having made these findings, it was again notnecessary for the Tribunal to decide if Mr Morahan's conduct constituted misconductor unsatisfactory conduct.20 At [13].21 At [44].22 At [43].23 At [53]–[55].24 At [96].[27] In its penalty decision, the Tribunal drew upon its findings concerningMr Morahan's conduct towards Ms B before 1 August 2002. The Tribunal said that"for penalty purposes the overall course of conduct can be considered".25High Court decision[28] In his comprehensive judgment, Churchman J criticised the way the particularsof the charge were framed when he said that it was not appropriate for the allegationsrelating to conduct prior to 1 August 2002 to be incorporated into paragraph 52 ofthe particulars.26 The Judge rejected, however, the submission that Charge 1 wasinvalidated by the way paragraph 52 of the particulars had been drafted.27[29] After analysing the Tribunal's findings in relation to Charge 1, Churchman Jsaid:28The Tribunal has clearly concluded that the conduct that breached the rulesamounted to either negligence or incompetence in Mr Morahan's professionalcapacity to such a degree that it reflected on his fitness to practice, oramounted to conduct bringing the profession into disrepute had beenestablished. That conclusion was open to it [30] A similar approach was taken by the Judge when examining the Tribunal'sreasons in relation to Charge 2, observing that the Tribunal's conclusion thatMr Morahan's conduct was, "[a]t the very least" negligence or incompetence and thatthe Tribunal's findings in this regard were "consistent with" the other findings madeby the Tribunal in its decision.29[31] When dismissing Mr Morahan's appeal against the penalty imposed bythe Tribunal, Churchman J held that the Tribunal was entitled to take into accountMr Morahan's conduct prior to 1 August 2002.30 The Judge fully traversed all ofthe grounds advanced on appeal by Mr Morahan and observed that the Tribunal'sfinding that Mr Morahan's conduct in relation to Charge 2 was "relatively serious"25 At [14].26 At [43].27 At [48].28 Morahan v Wellington Standards Committee 2, above n 4, at [123].29 At [168]–[170].30 At [182].was one that "was open to it".31 The Judge was concerned that Mr Morahan continuedto display no remorse or real insight into his conduct and that, in all the circumstances,the penalties imposed were "appropriate".32The first question[32] There are two limbs to the first question posed. First, Mr Beck, counsel forMr Morahan, submitted that the Tribunal erred in law when it made findings adverseto Mr Morahan in relation to his conduct prior to 1 August 2002, when determiningMr Morahan was guilty of Charge 1. Mr Beck submitted the High Court also erred bynot determining the Tribunal's findings in relation to Charge 1 were nullified whenthe Tribunal considered Mr Morahan's conduct prior to 1 August 2002. Second,Mr Beck submitted that by expressly taking into account Mr Morahan's conductprior to 1 August 2002, when determining penalties, the Tribunal breached s 351 ofthe 2006 Act. Mr Beck submitted that it therefore followed Churchman J also erredby upholding the Tribunal's penalty decision.Findings in relation to liability: Charge 1[33] In relation to the first limb of the argument we have summarised at [32],Mr Beck submitted that the Tribunal did record that it excluded Mr Morahan's conductprior to 1 August 2002 when finding him guilty of Charge 1. He submitted that,nevertheless, the Tribunal breached s 351 by making findings against Mr Morahan inrelation to events that occurred before 1 August 2002 and that those findings fatallyimpugned the Tribunal's findings in relation to Mr Morahan's conduct between1 August 2002 and 1 August 2008.[34] Mr La Hood, senior counsel for the Standards Committee, acknowledged therewas an error in the way paragraph 52 of the particulars of the charge had been draftedand that it should not have been alleged Mr Morahan was guilty of Charge 1 becauseof conduct that predated 1 August 2002. Mr La Hood submitted, however, thatthe evidence concerning Mr Morahan's conduct prior to 1 August 2002 was relevantand admissible as propensity evidence. He relied upon the definition of "propensity31 At [216].32 At [217].evidence" in s 40(1)(a) of the Evidence Act 2006, which explains that propensityevidence is evidence that "tends to show a person's propensity to act in a particularway or to have a particular state of mind, being evidence of acts, omissions, events, orcircumstances with which a person is alleged to have been involved", but excludesevidence that forms the basis of the charge or allegations against the person concerned.[35] We accept that propensity evidence may be adduced in disciplinaryproceedings. We do not, however, believe it is necessary to explore this point furtherbecause the Tribunal did not treat Mr Morahan's conduct prior to 1 August 2002 aspropensity evidence. The Tribunal made it abundantly clear that it confinedits findings as to liability in relation to Charge 1 to Mr Morahan's conduct between1 August 2002 and 1 August 2008. The findings made in relation to the events thatoccurred before 1 August 2008 were merely contextual. For this reason, we do not seeany basis for concluding the Tribunal's findings on liability in relation to Charge 1were rendered invalid by its contextual findings about the events that occurred before1 August 2002. We are therefore satisfied the Tribunal and the High Court compliedwith s 351 of the 2006 Act when finding and confirming Mr Morahan was guilty ofCharge 1.Decision as to penalty[36] Mr Beck was very critical of the Tribunal and Churchman J for concluding thatevidence of Mr Morahan's conduct prior to 1 August 2002 was relevant whenassessing penalty. Mr Beck submitted that the limitation provisions of s 351 ofthe 2006 Act were rendered nugatory when the Tribunal took Mr Morahan's conductprior to 1 August 2002 into account when determining the penalties that it imposed.Mr Beck also submitted Churchman J erred in law when upholding the Tribunal'sreasons for considering Mr Morahan's conduct prior to 1 August 2002 when settingpenalties.[37] In rejecting Mr Beck's submissions in the High Court, Churchman J said:33There are many relevant factors that can be considered in forming a view asto the fitness of a practitioner to practice. These can include:33 At [181]–[182].(a) whether the conduct in question was a one-off event in an otherwiseblameless career;(b) whether the practitioner has insight into the consequences of his orher actions;(c) whether the practitioner has expressed remorse or apologised for theiractions;(d) whether the conduct in question is part of a consistent pattern ofbehaviour extending over a long period of time (including in this case,prior to 1 August 2002); and(e) any prior disciplinary sanctions that may have been imposed onthe practitioner.In that context, there was no reason why the Tribunal should not have hadregard to the fact that the conduct in question had commenced prior to1 August 2002.[38] The Tribunal referred to Daniels v Complaints Committee 2 of the WellingtonDistrict Law Society, a decision of a Full Court of the High Court, when explainingthat Mr Morahan's conduct prior to 1 August 2002 was relevant to penalty.34 Thatcase concerned a law practitioner who was suspended from practice for three years forengaging in a sexual relationship with a client in circumstances that constituted anabuse of the relationship of trust and confidence between Mr Daniels and his client.In that case, the Tribunal was influenced by Mr Daniels' denials and his lack ofremorse. The High Court said:35A tribunal, when determining ultimate fitness to remain in practise, whetherlimited by suspension, or by striking off, is entitled to review the entireconduct of the practitioner and transgressions the subject of the disciplinaryproceedings, and the general behaviour of the practitioner. It cannot regardpoor behaviour as justifying more severe penalties, but it is the obviousabsence of a mitigating factor and relevant to balancing matters of character.In considering sanctions to be imposed upon an errant practitioner, adisciplinary tribunal is required to view in total the fitness of a practitioner topractise, whether in the short or long term. Criminal proceedings of coursereflect badly upon the individual offender, whereas breaches of professionalstandards may reflect upon the wider group of the whole profession, and willarise if the public should see a sanction as inadequate to reflect the gravity ofthe proven conduct. The public are entitled to scrutinise the manner in whicha profession disciplines its members, because it is the profession with which34 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850(HC), cited in Wellington Standards Committee 2 v Morahan, above n 2, at [14].35 At [32] and [34].the public must have confidence if it is to properly provide the necessaryservice. To maintain public confidence in the profession members of thepublic need to have a general understanding that the legal profession, andthe Tribunal members that are set up to govern conduct, will not treat lightlyserious breaches of standards.[39] There are three points that need to be stressed about the relevance ofthe High Court's decision in Daniels to the present case. First, s 351 of the 2006 Actwas not engaged in the Daniels case. Second, the "poor behaviour" that the HighCourt was referring to in Daniels was the lawyer's attitude towards the complainantand the charges. That case did not involve breaches of professional duty by Mr Danielsprior to the period covered by the charges he faced. Third, Mr Daniels' "poorbehaviour" was held to be relevant when assessing mitigating factors; the High Courtreferred to this as "the obvious absence of a mitigating factor and relevant to balancingmatters of character".36 Thus, only the third point in Daniels is relevant to the presentcase.[40] In deciding whether s 351 of the 2006 Act prohibited the Tribunal fromconsidering in its penalty decision Mr Morahan's conduct prior to 1 August 2002,we consider it helpful to first examine the purpose that underpins penalties that areimposed by professional disciplinary bodies. Those purposes can be summarised inthe following way:(a) When deciding what penalty to impose upon a practitioner found guiltyof a disciplinary charge, the Tribunal must bear in mindits responsibility to protect the public. This function has been stated onnumerous occasions37 and is reflected in the purposes of the 2006 Act.38(b) The Tribunal plays an important role in maintaining public confidencein the profession through the setting of standards.3936 At [32].37 Bolton v Law Society [1994] 2 All ER 486 (CA) at 492; and Daniels v Complaints Committee 2 ofthe Wellington District Law Society, above n 34, at [22].38 Lawyers and Conveyancers Act, s 3(1)(b).39 Section 3(1)(a); and Bolton v Law Society, above n 37, at 492.(c) Penalties imposed by the Tribunal may have a rehabilitative function,in that a penalty may be designed to assist a practitioner who has beenfound wanting to be reintegrated into the profession.40(d) It is also important to recognise that penalties imposed by the Tribunalmay have a punitive function.41 From a practitioner's perspective, anypenalty imposed by the Tribunal is likely to be viewed as punitive.[41] The polycentric nature of the Tribunal's role when determining a penaltysupports the submission advanced by Mr La Hood that the Tribunal must be entitledto take into account a wide range of matters when determining what penalty isappropriate in any particular case. Those matters might include the practitioner's priorgood conduct, as well as the extent to which the findings in relation to liability reflecta demonstrated ongoing pattern of professional misconduct. This approach is alsoconsistent with s 239 of the 2006 Act, which provides the Tribunal may receive asevidence any information or matter that "may, in its opinion assist it to deal effectivelywith the matters before it", provided that in doing so, the Tribunal complies with therules and principles of natural justice.42[42] Ultimately, the answer to the first question posed is to be found by examiningthe text and purpose of s 351 of the 2006 Act.[43] The text of s 351 of the 2006 Act supports Mr La Hood's submissions. Whilethat section puts in place a limitation period for complaints, and by implication,disciplinary charges against a lawyer, the text of s 351 does not purport to limit in anyway the matters which the Tribunal may take into account when assessing whatpenalty to impose.[44] The purpose of s 351 is to limit what matters may be the subject of a complaintand charge against a practitioner. That purpose does not, however, restrict the matters40 B v B HC Auckland HC4/92, 6 April 1993; and Roberts v A Professional Conduct Committee ofthe Nursing Council of New Zealand [2012] NZHC 3354 at [47].41 Taylor v General Medical Council [1990] 2 All ER 263 (PC); and Roberts v A ProfessionalConduct Committee of the Nursing Council of New Zealand, above n 40, at [46].42 Lawyers and Conveyancers Act, s 236; and New Zealand Bill of Rights Act 1990, s 27(1).that the Tribunal can properly take into account when determining penalties,particularly when regard is had to the wide purpose of disciplinary penalties thatwe have referred to at [40].[45] We therefore conclude that the Tribunal was not in breach of s 351 ofthe 2006 Act, when it took into account Mr Morahan's breaches of his professionalduties to Ms B prior to 1 August 2002 when determining the penalties it imposed inrelation to Charge 1. The High Court also complied with s 351 of the 2006 Act whenupholding this aspect of the Tribunal's decision.The second question[46] Mr Beck was very critical of Churchman J's analysis of the Tribunal'sfindings of liability in relation to both charges. In particular, Mr Beck said the findingsof negligence or incompetence could not be properly addressed on appeal bythe High Court Judge saying that those findings were available to the Tribunal.[47] Having examined the detailed manner in which Churchman J dealt withthe Tribunal's findings that Mr Morahan was guilty of Charges 1 and 2, we are verysatisfied that the Judge did significantly more than say the Tribunal's findings were"available to it".[48] It is noteworthy that at the commencement of his judgment, Churchman Jreminded himself that the appeal was to be conducted as a rehearing.43 This in itselfreflected his obvious understanding of the requirements of Austin, Nichols. Duringthe course of his judgment, Churchman J addressed the criticisms of the Tribunal'sdecision advanced by Mr Beck and explained why none of those criticisms justifiedthe High Court in interfering with the Tribunal's findings. We will explainChurchman J's approach to each of the charges.Charge 1[49] A reading of the High Court judgment demonstrates that when confirmingthe finding of liability in relation to Charge 1, Churchman J:43 Morahan v Wellington Standards Committee 2, above n 4, at [2].(a) traversed the evidence concerning the advance of $60,000 from Ms Bto the Trust in December 2004, Mr Morahan's conflicting roles inrelation to the Golf Road property transactions in 2004, his role inrelation to the loans taken out by the Trust up until July 2005, andthe sale of the Rosetta Road property by the Trust in mid-2005;(b) examined the evidence concerning Mr Morahan's poor to non-existentrecords of his advice to Ms B during the period covered by Charge 1;(c) explained why, as a matter of law it was not necessary for the Tribunalto distinguish between "negligence" or "incompetence"; and(d) explained that when taken as a whole the evidence justifiedthe Tribunal's decision that Mr Morahan's conduct passed the thresholdof negligence or incompetence, which reflected on his fitness topractise as a Barrister and Solicitor or was otherwise conduct thatbrought the profession into disrepute.[50] Mr Beck argued that the requirements of a general appeal meant thatChurchman J needed to carefully explain why Mr Morahan's conduct amounted tonegligence or incompetence, which reflected on his fitness to practise or otherwisebrought the profession into disrepute.[51] Any gaps in Churchman J's reasoning process were insignificant. It isabundantly clear from his judgment that Churchman J was not satisfied that Mr Beckcould identify material errors in the Tribunal's findings in relation to liability in respectof Charge 1. In addition, Churchman J examined the evidence and reached his ownconclusion that the Tribunal's findings were correct.[52] For the sake of completeness, we record that Mr Morahan's multiple failuresbetween 1 August 2002 to 1 August 2008 to ensure Ms B was properly informed abouthis role when acting for Mr J and the Trust was a significant breach of the duty thatMr Morahan owed Ms B. His conduct was not that of a reasonable lawyer inhis position. The seriousness and frequency of his breaches during the period coveredby Charge 1 reflected adversely on his fitness to practise and, at the very least, hisconduct was of a kind that brought the profession into disrepute.Charge 2[53] We make similar observations in relation to the High Court Judge's analysis ofthe evidence when upholding the Tribunal's findings in relation to Charge 2.Churchman J examined the evidence concerning Mr Morahan's role when acting onbehalf of the Trust and Mr J, following the separation of Ms B and Mr J in July 2009.The Judge also examined in detail the evidence relating to Mr Morahan's role inthe Family Court proceedings when deciding that Mr Beck had failed to identify anymaterial error in this aspect of the Tribunal's decision.[54] Mr Beck repeated his earlier criticism that Churchman J had not properlydistinguished or explained why Mr Morahan's conduct constituted negligence orincompetence to such a degree that it reflected on his fitness to practise or otherwisebrought the profession into disrepute. We reject that criticism in relation tothe findings in respect of Charge 2. Churchman J clearly formed his own views aboutthe seriousness of Mr Morahan's conduct and observed that "[i]t cannot be tenablyargued that a practitioner could fail to comply with a variety of rules over an extendedperiod of time and yet not be either negligent or incompetent".44[55] We would go further. Having reviewed the evidence, includingthe Family Court decision on costs, we are satisfied that Mr Morahan's conduct inthe Family Court proceedings was a grave breach of his professional duties, not justto Ms B, but also to the Family Court. He acted in a way that fell well short ofthe standards expected of a lawyer in his position. His conduct was very troubling andundoubtedly brought into issue his fitness to practise as a Barrister or Solicitor.His conduct was also of a kind that brings the law profession into disrepute. That casewas not borderline. It was clear cut.44 Morahan v Wellington Standards Committee, above n 4, at [171].Penalty decision[56] The High Court Judge's assessment of the penalty decision of the Tribunal isbeyond criticism. Churchman J examined all relevant aspects of Mr Morahan'sconduct and reached the conclusion that the penalties imposed by the Tribunal werejustified, particularly given the seriousness of Mr Morahan's conduct, his lack ofremorse and his failure to properly appreciate the gravity of his actions.45Conclusion[57] The Tribunal and the High Court complied with s 351 of the 2006 Act whenfinding that Charge 1 was proven, and when determining and upholding the penaltiesimposed on Mr Morahan.[58] The High Court reached its conclusions on the merits of Mr Morahan's appealand complied with the requirements of Austin, Nichols in all material respects.Result[59] The appeal is dismissed. The Tribunal's findings on liability and penalties areupheld.[60] Mr Morahan's suspension will commence on 1 July 2019.[61] We reserve costs. If no agreement can be reached in relation to costs, counselare granted leave to file by 15 July 2019 memoranda that are not to exceed three pages.Solicitors:Peter J Morahan, Lower Hutt for AppellantLuke Cunningham & Clere, Wellington for Respondent45 At [205].