THE NEW ZEALAND LAW SOCIETY v CAMP [2014] NZHC 2738

THE NEW ZEALAND LAW SOCIETY v CAMP [2014] NZHC 2738 [4 November 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-000430[2014] NZHC 2738BETWEEN THE NEW ZEALAND LAW SOCIETYPlaintiffAND NOVA LORRAINE CAMPDefendantHearing: 29 October 2014Appearances: Zannah Johnston for the PlaintiffNo appearance for the DefendantJudgment: 4 November 2014RESERVED JUDGMENT OF MOORE JTHIS JUDGMENT WAS RE-ISSUED AND RE-RELEASED ON 19 NOVEMBER 2014This judgment was delivered by on 4 November 2014 at 4:00pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:[1] The defendant, Nova Lorraine Camp, is an enrolled lawyer who in February 2013 pleaded guilty to three charges of using a document to obtain a pecuniary advantage. She was sentenced to seven and a half months home detention and 200 hours of community work.[2] The plaintiff, the New Zealand Law Society ("NZLS") seeks an order under s 266 of the Lawyers and Conveyancers Act 2006 ("the LCA") that Ms Camp's namebe struck off the roll of barristers and solicitors on the grounds:(a) her convictions show that she is not a fit and proper person to remain on the roll;(b) the order is necessary to maintain proper standards of the legal profession, protect the administration of justice and protect the public; and(c) the professional disciplinary procedure set out in Part 7 of the LCA is unsuitable as there is no jurisdiction to consider the conduct of admitted barristers and solicitors at a time when they did not hold a current practising certificate.[3] The procedure for determining an application of this kind is set out in s 267 of the LCA.Formal proof[4] This matter was set down for formal proof. Rule 15.9 of the High Court Rules relevantly provides:15.9 Formal proof for other claims(1) This rule applies if, or to the extent that, the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, and the plaintiff seeks judgment by default for other than a liquidated demand.(2) The proceeding must be listed for formal proof [[and no notice is required to be given to the defendant]].(4) The plaintiff must, before or at the formal proof hearing, file affidavit evidence establishing, to a Judge's satisfaction, each cause of action relied on and, if damages are sought, providing sufficient information to enable the Judge to calculate and fix the damages.[5] Personal service was effected on Ms Camp on 20 March 2014. At that time she was served with a copy of the statement of claim, notice of proceeding and a bundle of initial disclosure under r 8.4 of the High Court Rules.[6] Ms Camp has taken no steps to defend these proceedings. She has not filed a statement of defence and the NZLS seeks judgment by default.[7] Ms Johnston for the plaintiff properly draws my attention to the amendment to r 15.9(2) which added the words " and no notice is required to be given to the defendant". This addition was inserted with effect from 3 June 2014 by the High Court Amendment Rules 2014. Christiansen AJ set this matter down for formal proof on 15 July 2014 by which time the amendment had been in force for some weeks. The amendment, being one of a procedural kind, operates with effect to matters listed for formal proof after the date the amended rule came into force despite the fact that the proceeding was commenced prior to the amendment.1Ms Johnston candidly accepted that Ms Camp has not been given notice of the formal proof hearing. However, I am satisfied that the amendment to r 15.9(2) cures any deficiency in the giving of notice.[8] The plaintiff has filed an affidavit made by Ms Ollivier who is the NZLS'sGeneral Manager, Regulatory in which she has deposed to the following:(a) Ms Camp was admitted as a barrister and solicitor of the High Court on 20 January 1999. She has been on the roll since that date.1 Todd Pohokura Ltd v Shell Exploration NZ Ltd (2008) 18 PRNZ 1026 (HC) adopted the statement from Maxwell on the Interpretation of Statutes (12th ed, Sweet & Maxwell, London, 1969) which established that the presumption that enactments do not apply retrospectively "has no application toenactments which affect only the procedure and practice of the Courts". This approach was taken inYew Bon Tew v Kenderaan Bas Mara [1982] 3 WLR 1026; [1982] 3 All ER 833 (PC); see alsoHaddon v The Conveyancing Shop [2012] NZHC 1439 which establishes that in the absence of transitional periods procedural enactments apply to proceedings generally.(b) She last held a practising certificate in January 2004.(c) She does not hold a current practising certificate.(d) She has convictions for dishonesty offences.(e) The NZLS wrote to Ms Camp following her sentencing in the District Court by Judge Dawson to advise her that the plaintiff was considering applying to the High Court to have her name struck off the roll and inviting her to respond before a final decision was made by the Board of the NZLS. No response has been received.The nature of these proceedings[9] Under s 266 of the LCA an enrolled lawyer may be struck off the roll "for reasonable cause, whenever and wherever it arises". Section 267 of the LCA outlinesthe procedure for an application of this nature. It is set out in full below:267 High Court may dismiss application, or reserve case for Court of Appeal(1) When an application is made to the High Court for an order that the name of a person enrolled as a barrister and solicitor of the High Court under or by virtue of this Act be struck off the roll,—(a) the High Court may, if it thinks fit, dismiss the application; or(b) if the High Court is of the opinion that the application ought to be granted, or that it is doubtful whether the application ought to be dismissed or granted, the High Court must reserve the case for the consideration of the Court of Appeal.(2) The High Court, if it reserves the case under subsection (1)(b),—(a) must cause the application and all affidavits made in support of the application, and all other proceedings, to be sent forthwith to the Registrar of the Court of Appeal; and(b) may order that the person enrolled be suspended from practice as a barrister or as a solicitor or as both until the decision of the Court of Appeal on the application is given.(3) If a case is reserved for the consideration of the Court of Appeal, that court—(a) must, as soon as practicable, consider the application and grant or dismiss it; and(b) may make such other order in respect of the application as it thinks fit.[10] Section 267 thus provides this Court with three options after hearing the application:(a) the Court may, if it thinks fit, dismiss the application (s 267(1)(a));(b) if the Court is doubtful whether the application ought to be dismissed or granted, it must reserve the case for the consideration of the Court of Appeal (s 267(1)(b));(c) if the Court is of the opinion that the application ought to be granted, it must reserve the case for the consideration of the Court of Appeal (s 267(1)(b)).[11] As I concluded in Burton v New Zealand Law Society the process under s 267 is appropriate in a situation where the practitioner did not hold a practicing certificate but had committed certain offences which warranted being struck of the roll.2 This is because the parallel Tribunal process is unavailable where thepractitioner was not a 'lawyer' for the purpose of the Act when the offendingoccurred. Thus the only issue in this case is whether the application should be dismissed, or reserved for the consideration of the Court of Appeal.2 The New Zealand Law Society v Burton [2014] NZHC 2737.Is this an appropriate case to refer to the Court of Appeal?[12] In Dorbu v New Zealand Law Society the Court summarised the principles to be considered in the following way: 3[35] The principles to be applied were not in issue before us, so we can briefly state some settled propositions. The question posed by the legislation is whether, by reason of his or her conduct, the person accused is not a fit and proper person to be a practitioner. Professional misconduct having been established, the overall question is whether the practitioner's conduct,viewed overall, warranted striking off. The Tribunal must consider both the risk of reoffending and the need to maintain the reputation and standards of the legal profession. It must also consider whether a lesser penalty will suffice. The Court recognises that the Tribunal is normally best placed toassess the seriousness of the practitioner's offending. Wilful and calculated dishonesty normally justifies striking off. So too does a practitioner'sdecision to knowingly swear a false affidavit. Finally, personal mitigating factors may play a less significant role than they do in sentencing.(Emphasis added)[13] Furthermore, in Hart v Auckland Standards Committee 1, this Court observed:4[185] As the Court noted in Dorbu, the ultimate issue [when considering striking off] in this context is whether the practitioner is not a fit and proper person to practise as a lawyer. Determination of that issue will always be a matter of assessment having regard to several factors.[186] The nature and gravity of those charges that have been found proved will generally be important. They are likely to inform the decision to a significant degree because they may point to the fitness of the practitioner to remain in practice. In some cases these factors are determinative, because they will demonstrate conclusively that the practitioner is unfit to continue to practice as a lawyer. Charges involving proven or admitted dishonesty will generally fall within this category.[187] In cases involving lesser forms of misconduct, the manner in which the practitioner has responded to the charges may also be a significant factor. Willingness to participate fully in the investigative process, and to acknowledge error or wrongdoing where it has been established, may demonstrate insight by the practitioner into the causes and effects of the wrongdoing. This, coupled with acceptance of responsibility for the misconduct, may indicate that a lesser penalty than striking off is sufficient to protect the public in the future.3 Dorbu v New Zealand Law Society [2012] NZAR 481 (HC), approved by a differently constituted full Court in Hart v Auckland Standards Committee 1 of the New Zealand Law Society [2013] NZHC 83 (Winkelmann and Lang JJ).4 Hart v Auckland Standards Committee 1, above n 3, at [185]-[189].[188] For the same reason, the practitioner's previous disciplinary historymay also assume considerable importance. In some cases, the fact that a practitioner has not been guilty of wrongdoing in the past may suggest that the conduct giving rise to the present charges is unlikely to be repeated in the future. This, too, may indicate that a lesser penalty will be sufficient to protect the public.[189] On the other hand, earlier misconduct of a similar type may demonstrate that the practitioner lacks insight into the causes and effects of such behaviour, suggesting an inability to correct it. This may indicate that striking off is the only effective means of ensuring protection of the public in the future.(Emphasis added)[14] In my view this is test is readily met in the present case for the following reasons:(a) Ms Camp has been convicted of criminal charges punishable by imprisonment.(b) Although Ms Camp pleaded guilty to only three charges of using a document to obtain a pecuniary advantage, each of those charges was representative and involved multiple cheque fraud transactions involving in excess of 100 cheques presented over a sustained period totalling in excess of $40,000;(c) The complainant was a rowing club. Ms Camp was its treasurer who was responsible for producing financial reports and budgets for the committee as well as paying bills on behalf of the club. Ms Camp abused the duty she owed to the club to act honestly and in good faith. She abused the trust which was reposed in her and caused substantial financial damage to a local voluntary organisation which relies on the honesty and goodwill of those who volunteer their skills in the service of the organisation;(d) The sentence imposed involved the Judge establishing a starting pointof 24 months' imprisonment which was reduced taking into account Ms Camp's personal mitigating factors and her early plea of guilty.This reduced the sentence to a period of 15 months' imprisonment.The sentencing Judge concluded that a sentence of home detention was appropriate, ordering home detention for seven and a half months, 200 hours of community work and orders for reparation.[15] Given the gravity of the offending and, in particular, the gross breach of trust involved, I am of the view that this is a proper case to make an order striking Ms Camp's name off the roll on the grounds she is not a fit and proper person to be apractitioner.Conclusion[16] For the reasons set out above I am satisfied that this is an appropriate case tostrike off Ms Camp's name from the roll of barristers and solicitors.[17] Under s 267(2)(b) of the LCA I may order that Ms Camp be suspended from practice as a barrister or solicitor or both until the decision of the Court of Appeal is given. Ms Camp has not held a practising certificate for some years and, in thecircumstances, it would seem most unlikely that she would apply to the Law Societyfor one to be issued in the interim. Ms Johnston does not seek an order ofsuspension and I do not make one, although I reserve leave for the applicant to do soif it believes that such a course is justified.[18] I have also considered the question of whether Ms Camp's name should be suppressed on an interim basis pending the Court of Appeal's decision. I havedecided that in the circumstances of this case it is not only unnecessary but, futileand inappropriate. Ms Camp's conviction and sentencing assumed a considerabledegree of interest in the media and no useful purpose would be served in makingsuch an order. Furthermore, the public interest operates in favour of open justice andpublication.[19] Ms Johnston seeks costs on the application. I have considered whether costsshould be reserved until the Court of Appeal's determination. However, I am of theview that it is preferable that costs are fixed at this stage of the proceedings and,accordingly, I award costs to the applicant on a 2B basis with disbursements as fixed by the Registrar.Result[20] I am of the opinion that the NZLS's application ought to be granted.Accordingly, the application that Ms Camp's name be struck off the roll of barristersand solicitors is reserved for the consideration of the Court of Appeal pursuant to s 267(1)(b) of the LCA.Moore JSolicitors:Crown Solicitor, Auckland