SISSON v THE STANDARDS COMMITTE (2) OF THE CANTERBURY WESTLAND BRANCH OF THE NEW ZEALAND LAW SOCIETY COMPLAINTS SERVICE STANDARDS COMMITTEE [2014] NZHC 223

SISSON v THE STANDARDS COMMITTE (2) OF THE CANTERBURY WESTLAND BRANCH OF THE NEW ZEALAND LAW SOCIETY COMPLAINTS SERVICE STANDARDS COMMITTEE [2014] NZHC 223 [20 February 2014]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV 2012-409-000079[2014] NZHC 223BETWEEN THERESE ANNE SISSONAppellantAND THE STANDARDS COMMITTE (2) OFTHE CANTERBURY WESTLANDBRANCH OF THE NEW ZEALANDLAW SOCIETY COMPLAINTSSERVICE STANDARDS COMMITTEERespondentHearing: 7 February 2014Court: Whata JMander JAppearances: Appellant (In Person)G H Nation for RespondentJudgment: 20 February 2014JUDGMENT OF FULL COURTIntroduction[1] On 24 November 2011 Ms Sisson was struck off the roll of practitioners. Ms Sisson took money from a client while acting on legal aid. An appeal to this Court against striking off was dismissed. Ms Sisson now seeks leave to appeal to the Court of Appeal, broadly on the following grounds:(a) There was insufficient evidence of probative value to justify striking off;(b) The High Court and the Tribunal proceeded on an erroneousassumption that the law as stated in the LSA v Black1 case (rejecting a staged approach to legal aid) was correct;(c) The Tribunal and the High Court applied the wrong standard of proof in respect of findings regarding penalty;(d) The High Court did not apply or take into account the principle of fairness to Ms Sisson in its evaluation.Background[2] The High Court summarised the underlying charges for which Ms Sisson was found guilty, as follows:2[3] Following a complaint to a Standards Committee of the Canterbury- Westland Branch of the New Zealand Law Society two charges of professional misconduct were laid before the Tribunal. The essence of the first was that in the context of acting for a client, Ms H, in a de factorelationship property claim the appellant 'deducted from monies held forMs H the sum of $17,454.80 in payment of (legal) costs without seeking or receiving authority to do so from the Legal Services Agency'. The second charge alleged that the appellant deducted the legal costs without Ms H'sauthority and when the costs were covered by a grant of legal aid, this being to her personal advantage but the client's disadvantage; and that later shemisled a Standards committee by saying that she and Ms H discussed and agreed upon a private retainer in lieu of the legal aid assignment.[3] The Tribunal found that the appellant understood her obligations and nonetheless absent any authority from the Legal Services Agency deducted the amount of $17,454.80 from a sum held on behalf of Ms H. In reaching this view the Tribunal preferred the evidence of Ms H over that of Ms Sisson. The High Court identified the Tribunal's reasons for this as follows:[31] Reading the decision as a whole it is clear that at least seven factors prompted this indication.Ms H was judged to be an unsophisticated, but straight forward person, who gave consistent and understandable evidence.1 LSA v Black HC Wellington CIV -2004-404-2561 14 October 2005.2 Sisson v The Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society [2013] NZHC 349.The appellant, by contrast, when challenged in cross-examination sought to blame others including Ms H, her staff, the LSA and members of the Standards Committee. Her responses gave theimpression of 'confabulation, unrealistic straining of content and expost facto justification'. (See [48]).There was no file note, letter or other written material consistent with the change to a private retainer on or about 27 June 2007.The appellant did not advise the LSA that Ms H intended to surrender her grant of legal aid.In early July 2007 the appellant applied to the LSA for an amendment to the grant to cover a pre-trial conference and the preparation of affidavits.On 4 December 2007 the appellant filed an application in the High Court seeking waiver of setting down and hearing fees, on the basis that Ms H was a beneficiary and in receipt of legal aid.On 1 April 2008 the appellant e-mailed the LSA concerning a further amendment to the grant to cover her work to the time of the High Court settlement.[4] The High Court then went on to observe:In our view the cumulative effect of these matters made the credibility preference inevitable.[5] Further relevant to the High Court's decision and this application for leave, the Tribunal did not accept the appellant's explanation for her conduct in terms of s 66 of the Legal Services Act 2000.3 The High Court noted:[32] The other major finding of the Tribunal concerned the appellant'sunderstanding of s 66. Her evidence was to the effect that legal aid was granted in stages, so that following a grant to a client the practitioner had to seek amendments to the grant to cover each stage of the work. The appellant maintained that at the completion of each stage it was open to the practitioner and the client to agree to a change to a private retainer.3 Section 66 states:66. Listed providers not to take unauthorised paymentsNo listed provider may take payments from or in respect of a person to whom services are provided under any scheme unless the payments are authorised by or under this Act, or by the Agency ... .[6] The High Court records that the Tribunal rejected the appellant's stagedapproach, and in any event, found that Ms Sisson well understood her obligation under the Act to seek permission of the Agency to move to a private retainer.[7] The High Court then stated:[48] We agree with the Tribunal that the appellant's professionalmisconduct touched the very heart of the relationship of trust between solicitor and client. It was serious misconduct. Protection of the public required that decisive protective steps were taken. But, looking at the misconduct in isolation, it was conceivable that a penalty less than striking off could have been imposed.[8] The High Court therefore considered various other factors, including previous matters for which Ms Sisson was disciplined, her conduct during the hearing process, her personal difficulties and her personal attributes.4[9] Having taken those matters into account the High Court concluded overall:[59] Our evaluation of the case brings us to the same conclusion as was reached by the Tribunal, that striking off was the only appropriate penalty. The professional misconduct was serious in itself, and the manner of theappellant's participation in the disciplinary process further limited theavailable penalty options. Had she been able to recognise her wrongdoing, obtain professional help and present a realistic proposal for her rehabilitation while practicing in a supporting environment, an outcome less than striking off may have been appropriate. However, the Tribunal was confronted with a practitioner in a downward spiral, so that protection of the public and the legal profession left but one option. For these reasons the appeal must be dismissed.Threshold[10] Section 254 of the Lawyers and Conveyancers Act 2006 sets the threshold for second appeals, namely:254 Appeal to Court of Appeal on question of law(1) Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that Court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 66 of the Judicature Act 1908 applies to any such appeal.4 At [49]-[58].(2) In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision....[11] Like second appeals under ss 66 and 67 Judicature Act 1908, the applicantmust demonstrate that the error of law is of sufficient importance 'to justify thepursuit of litigation already twice considered and ruled upon by a Court'.5Preliminary matter[12] Shortly before the hearing of this leave application Ms Sisson applied to introduce a detailed affidavit sworn by a third person in relation to unrelated proceedings. It is said to have indicated the type of pressure that was being placed on Ms Sisson by IRD at the time she was subject to the present misconduct hearing process. The application was refused on the basis that the proposed evidence was hearsay evidence, not capable of being verified, corroborated or challenged in the usual way.Assessment of grounds of appeal[13] The alleged errors concerning sufficiency of evidence, jurisdiction and standard of proof are inter-related grounds of appeal. In short, Ms Sisson's submitsthat the Tribunal's interpretation of s 66 is wrong and that LSA v Black is of doubtful authority. She contends therefore that the Tribunal (and the High Court) should have taken a more cautious approach, and that in this context, the Tribunal did not have evidence of sufficient probative value to make findings as to culpability or penalty. For the same reason, Ms Sisson also insists that the Tribunal should have applied a threshold standard of beyond reasonable doubt before imposing a penalty as serious as striking off.[14] We reject that these grounds, individually or collectively, provide a proper basis for leave to appeal. First, the complaint about insufficiency of evidence does5 Waller v Hilder [1998] 1 NZLR 412 at 413. See also Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 1331 at [7].not qualify as an error of law. This is not a case where the Tribunal relied on the bare minimum to establish culpability. It had the benefit of direct evidence on the keyfacts concerning Ms Sisson's actions, credibility and suitability to continue inpractice. Any question of sufficiency is then only a matter of weight to be accorded to the evidence.[15] Second, even if the question of sufficiency raises a bona fide question of law,the underlying facts are largely idiosyncratic and concern Ms Sisson's specificmisconduct. They raise no issues of general importance.[16] Third, the contention that LSA v Black was wrongly decided has marginal if any relevance to the issue of culpability or penalty in this case. In Black, Goddard Jfirmly rejected a "staged" approach to the grant of legal aid. The Judge observedthat legal aid is deemed to be approved for the entire proceeding.6 Ms Sisson does not dispute that this authority was binding on the Agency and on Ms Sisson at the time she was acting for Ms H. Rather she submits that the fact it could be wrong should have been factored in the assessment. But that potential does not redress thecentral reasons for striking off, namely her abrogation of a client's trust and otherproven acts of dishonesty.[17] Fourth, it is now well settled that the proper threshold test for the purposes of a misconduct hearing is the balance of probabilities having regard to the seriousness of the issue or outcome before the Tribunal or the Courts.7 Nothing in the facts of the particular case warrant a different approach.[18] The remaining mooted ground of appeal is that of fairness. Ms Sisson says the Court failed to take account of the principle of fairness. She submitted that:There may be a special category of case or circumstance where a petitioner may, at the time of the relevant period during which the complaints arose, have been operating in an unsafe private and working environment, have been allegedly targeted by delegated statutory authority through its public officials acting unlawfully, and allegedly fraudulently, to create an unsafe practising environment and consequent unwellness over an extended period.6 At [47]-[48]7 C v Dental Complaints Assessment Committee [2008] NZSC 55.[19] Ms Sisson also contended that the Tribunal and High Court erred by having regard to her alleged misconduct through the hearing process.[20] We see nothing in this ground. The High Court had regard to Ms Sisson'sspecific circumstances, positive and negative, and this is recorded in the judgment at [49]-[58].[21] As Mr Nation submitted, it is indisputable that when dealing with penalty, it is entirely appropriate for the Tribunal and the High Court to have regard to both good and bad aspects of a practitioner's character and conduct. The only issue reallyis one of weight to be afforded to those matters.[22] For the foregoing reasons, leave to appeal is declined.________________________________________________________________Solicitors: Wynn Williams, Christchurch