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Hardie v New Zealand Law Society [2024] NZCA 90 (8 April 2024)

Last Updated: 15 April 2024

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA490/2022
[2024] NZCA 90



BETWEEN

PETER MICHAEL HARDIE AND GILES HERBERT JOHN BRANT
Appellants


AND

NEW ZEALAND LAW SOCIETY
First Respondent

NATIONAL STANDARDS COMMITTEE NO 2
Second Respondent

Hearing:

3 August 2023 (further submissions received 7 August 2023)

Court:

Brown, Gilbert and Wylie JJ

Counsel:

M J Fisher and T J Yoon for Appellants
P N Collins and K A Pludthura for First and Second Respondents

Judgment:

8 April 2024 at 11.00 am


JUDGMENT OF THE COURT

A The appeal is allowed.

  1. A declaration is made that the National Standards Committee No 2 erred in failing to give the appellants an opportunity to be heard in respect of its adverse comments in the Notice of Decision.
  1. A declaration is made that the National Standards Committee No 2 erred in failing to give the appellants an opportunity to be heard concerning publication of the Notice of Decision.
  1. The decision not to publish the Notice of Decision is set aside. The Notice of Decision is not confidential.
  2. The order prohibiting publication of the High Court judgment and any part of those proceedings is set aside.
  3. The order for costs in the High Court is set aside. The appellants are entitled to one set of costs in the High Court on a 2B basis and usual disbursements. Any dispute concerning quantification is to be determined in that Court.
  4. In this Court the respondents must pay the appellants one set of costs for a standard appeal on a band A basis and usual disbursements.


____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)


Table of Contents

Para No

Introduction [1]
Statutory framework [3]
Relevant background [12]
An anonymous complaint [12]
The own motion investigation [16]
The Notice of Decision dated 29 June 2021 [25]
The appellants’ request that the Notice of Decision be published [30]
The High Court judgment [36]
The issues on appeal [41]
Issue one: Were the emails exchanged at a time when regulated
services were being provided? [45]
Issue 2: Could the NZLS or NSC2 have declined to investigate
the anonymous complaint? [51]
Issue 3: Having commenced an own motion investigation, could
the NSC2 decide under s 138(2) not to take any further action? [54]
Issue 4: Did the NSC2 make an adverse finding concerning the
appellants? [63]
Issue 5: Should the NSC2 have afforded the appellants an
opportunity to respond on its proposed adverse finding? [70]
Issue 6: Should the NSC2 have afforded the appellants an
opportunity to make a submission on publication of the Decision? [73]
The order prohibiting publication of the High Court judgment
and the proceeding [82]
Result [85]

Introduction

Statutory framework

(a) to inquire into and investigate complaints made under s 132;

(b) to investigate of its own motion any act, omission, allegation, practice or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner; and

(c) to make final determinations in relation to complaints.

(1) In this Act, misconduct, in relation to a lawyer or an incorporated law firm,—
(a) means conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct—
(i) that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable; or

(ii) that consists of a wilful or reckless contravention of any provision of this Act or of any regulations or practice rules made under this Act that apply to the lawyer or incorporated law firm or of any other Act relating to the provision of regulated services; or

(iii) that consists of a wilful or reckless failure on the part of the lawyer, or, in the case of an incorporated law firm, on the part of a lawyer who is actively involved in the provision by the incorporated law firm of regulated services, to comply with a condition or restriction to which a practising certificate held by the lawyer, or the lawyer so actively involved, is subject; or

(iv) that consists of the charging of grossly excessive costs for legal work carried out by the lawyer or incorporated law firm; and

(b) includes—

(i) conduct of the lawyer or incorporated law firm that is misconduct under subsection (2) or subsection (3); and

(ii) conduct of the lawyer or incorporated law firm which is unconnected with the provision of regulated services by the lawyer or incorporated law firm but which would justify a finding that the lawyer or incorporated law firm is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer or an incorporated law firm.

In this Act, unsatisfactory conduct, in relation to a lawyer or an incorporated law firm, means—

(a) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer; or

(b) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that would be regarded by lawyers of good standing as being unacceptable, including—

(i) conduct unbecoming a lawyer or an incorporated law firm; or

(ii) unprofessional conduct; or

(c) conduct consisting of a contravention of this Act, or of any regulations or practice rules made under this Act that apply to the lawyer or incorporated law firm, or of any other Act relating to the provision of regulated services (not being a contravention that amounts to misconduct under section 7); or

...

(a) must send particulars of the complaint or matter to the person to whom the complaint or inquiry relates, and invite that person to make a written explanation in relation to the complaint or matter:

(b) may require the person complained against to appear before it to make an explanation in relation to the complaint or matter:

(c) may, by written notice served on the person complained against, request that specified information be supplied to the Standards Committee in writing.

(1) A Standards Committee must exercise and perform its duties, powers, and functions in a way that is consistent with the rules of natural justice.

(2) A Standards Committee may, subject to subsection (1), direct such publication of its decisions under sections 138, 152, 156, and 157 as it considers necessary or desirable in the public interest.

(3) Subject to this Act and to any rules made under this Act, a Standards Committee may regulate its procedure in such manner as it thinks fit.

(1) A Standards Committee may, in its discretion, decide to take no action or, as the case may require, no further action, on any complaint if, in the opinion of the Standards Committee,—
(a) the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made is such that an investigation of the complaint is no longer practicable or desirable; or

(b) the subject matter of the complaint is trivial; or

(c) the complaint is frivolous or vexatious or is not made in good faith; or

(d) the person alleged to be aggrieved does not desire that action be taken or, as the case may be, continued; or

(e) the complainant does not have sufficient personal interest in the subject matter of the complaint; or

(f) there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person aggrieved to exercise.

(2) Despite anything in subsection (1), a Standards Committee may, in its discretion, decide not to take any further action on a complaint if, in the course of the investigation of the complaint, it appears to the Standards Committee that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.

Relevant background

An anonymous complaint

Dear Gentlemen,

Just a note to remind you that each of you should now be deep into your preparations for the coming summer of cricket. We have a trophy to defend. The selectors have had a re-shuffle, Mr M Swap of Peria Hills now takes on the responsibility for selections. He has many new and exciting ideas for the club. His priority is to make cricket great again.

Meantime the Newstead Nancy Boys CC have been working hard transitioning their losing side and have dedicated themselves to becoming more diverse and better more inclusive people. Mr Wright and John Gubbard of Newstead have launched an initiative to make cricket available to Transgender persons. He has been inspired by Kent CC who have recently named a fully and entire man as its “Woman Player of the Year”. I set out extracts from the news on the topic below:

Maxine Blythin, a cricket player born as a man who now self‑identifies as a woman, has been named the 2019 Kent Woman Cricketer of the Year in the UK despite making no apparent moves to permanently transition to a woman.

According to Kent Online:

Maxine Blythin was recognised as the 2019 Kent Women Player of the Year following her role in the team’s County Championship triumph. She had produced 340 runs and a best of 51 not out in 13 games across all formats, with 165 of those coming in Division 1 and 175 in T20 matches. But Blythin participation on the Kent woman’s cricket team has raised controversy since the player’s debut because Blythin has not met the lower testosterone levels required for the British national cricket team.”

There are of course always knockers (though apparently not on “Maxine”):

“But Critics say that the six-foot-tall Blythin is just a man playing on the women’s team, and it isn’t fair. Women’s sports advocacy group Fair Play for Women excoriated the Kent league for picking Blythin as the “woman” of the year. In a tweet, the group pointed out that Blythin has “No ‘transition’. Just self-ID and new pronouns. Sports women must speak up NOW.”

Please support Gubbard and Giles as they transition. In other news the Test Rankings have just been announced and surprisingly not an Idler in sight. Wisden and the ICC can not have missed the sensational form of, Idler All Rounder Shannon Crawford during last seasons series. Here he is claiming a wicket.

Finally, there is little to add other than it was good to see Idlers at the Cricket world Cup Final. Not a Nancy Boy in sight,

Yours in the embers of an ever glowing victory.

Peter Hardie

...

The very woke Newstead XI is well ahead of all this....which is now very passé... we are fully inclusive and aware and will be selecting a cauliflower in our team as opening bat to represent the oppressed plant life of our planet...oppressive fast bowlers will be protested and cancelled if they try and humiliate the cauliflower...

We will also be selecting a koala as opening bowler as representing all non‑human animal life which has have been oppressed by Man... the recent Man made climate change caused NSW fires have only served to victimize Koalas...any attempt to score runs off the Koala will be protested and cancelled as to humiliate this victim will not be tolerated...

To build their self-esteem the cauliflower and Koala will each be credited with a century, a 5 wicket bag and a spectacular catch in the slips...

Finally all WASPs in our team will be obliged to apologise to everybody for everything before the game (which will be non-competitive of course)...

Yours in inclusiveness and hugs

GILES BRANT ...

There has been a email conversation initially instigated by Peter Hardie, to which Giles Brant has replied, which is distastefully sarcastic, extremely discriminatory, unprofessional, and unbecoming of lawyers and the parties’ respective law firms. The emails were sent on 27 November 2019. I am unsure how I am to attach a screenshot of the email thread on this however I will copy and paste the contents of the emails ...

[Text of the Hardie email].

[Text of the Brant email].

I was disgusted to not only have seen such emails, but to also know that they were sent by these men in their professional capacity. I do not wish to provide any personal details of myself, so unfortunately you will not be able to contact me. I understand without screenshots this may be a hard matter to pursue. However, I urge you to do your best. As lawyers, these men are supposed to represent people of standing in our communities. With a willingness to openly share such repulsive and discriminatory views in their professional capacities, demonstrate these men are in fact the exact opposite.

The own motion investigation

(a) whether the comments made by you were made at a time when providing regulated services for the purposes of s 12(b) of the Act. In this regard the Committee notes that the email correspondence appears to have been sent to and from your work email account;

(b) whether the comments would be considered by lawyers of good standing as being unacceptable. In this regard the committee takes guidance from the following extract from Dal Pont in Lawyers’ Professional Responsibility:

A lawyer is ethically obliged to recognise the essential dignity of each individual in society and the principles of equal rights and justice, an obligation that applies to lawyers’ relationships. Their status as professionals, coupled with their responsibility to protect individual rights, means that lawyers should lead by example in non-discriminatory conduct.

(c) whether the comments raise any professional conduct issues rr 10 and 11 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 which provide:
  1. Rule 10 – Professional dealings

A lawyer must promote and maintain proper standards of professionalism in the lawyer’s dealings.

  1. Rule 12 – Third Parties

A lawyer must, when acting in a professional capacity, conduct dealings with others ... with integrity, respect, and courtesy.

This letter was received by Mr Hardie shortly before the first COVID-19 lockdown. On 27 March 2020, in response to Mr Hardie’s request that he be permitted to respond two weeks after the expiry of the lockdown period, the NSC2 granted a limited extension until 6 May 2020.

(a) formed the preliminary view that Mr Hardie and Mr Brant’s conduct in authoring and sending their respective emails was sufficiently connected to the provision of regulated services for the purposes of s 12(b) of the Act;

(b) resolved to require, under s 147 of the Act, both Mr Hardie and Mr Brant to provide it with copies of their respective emails and the related ‘email chain’; and

(c) noted Mr Hardie’s and Mr Brant’s request to be heard in person and decided that there was insufficient reason to depart from the default position that matters are considered on the papers.

(i) At this stage, the Committee is proceeding with its own motion investigation on the preliminary view that sending correspondence from a professional email account is sufficiently connected to the provision of regulated services for the purposes of s 12(b) of the [Act].
(ii) Notwithstanding the above, if this matter proceeds to a hearing on the papers – as is required for disciplinary action to be taken – you will be provided with a further opportunity to provide submissions on this issue.

The Committee noted the most recent correspondence sent by the practitioners challenging the Committee’s direction under s 147 of the Act. The Committee did not consider that its request for the underlying email correspondence was ultra vires, inconsistent with the purpose of the Act, or a breach of the New Zealand Bill of Rights Act 1990.

Nonetheless, the Committee decided that to take no further action on the matter pursuant to s 138(2) of the Act. In reaching its decision the Committee noted that:

a) it is required to conduct its investigations with proportionality to the seriousness of the conduct alleged. Given that Mr Hardie and Mr Brant’s conduct in authoring and sending the email correspondence was at the lower end of conduct that might be considered to be unsatisfactory as defined by s 12 of the Act, on reflection the Committee considered that proceeding with its investigation was not proportionate to the severity of the conduct alleged; and

b) in the absence of the emails sought, there was not enough information before it to conclude that Mr Hardie and Mr Brants’ drafting of the email correspondence was connected to the provision of regulated services.

The minutes concluded by stating that full reasons were to be provided in a notice of a decision in a form approved by the NSC2.

The Notice of Decision dated 29 June 2021

The appellants’ request that the Notice of Decision be published

I should like to share with other lawyers for educational purposes a redacted version of the above decision, thereby preserving the Standards Committee’s objective of keeping the Notice of Decision confidential.

I have redacted from the Notice of Decision dated 29 June 2021 references to the National Standards Committee (NO. 2) and to any other person identified in the Decision.

Would you please confirm that I may share with other lawyers a copy of the attached redacted version of the Notice of Decision.

We appreciate that some Standards Committee decisions may be helpful in terms of learnings for the lawyer involved and, as you have indicated, the wider profession and that you have considered this in preparing your redacted version of the decision.

However, in this case the Standards Committee has not ordered publication of its decision in any form. Therefore, it is unable to be shared with your colleagues as you have requested.

I confirm that the New Zealand Law Society was responding to your request. This is because decisions of the Standards Committee are final and neither the Standards Committee (nor Law Society) can change these once issued, including directions around publication.

He also drew attention to Mr Hardie’s right to seek a review by the Legal Complaints Review Officer.

The [NSC2] in this case was not asked to consider and did not consider whether to make a direction to permit publication of a redacted version of the decision for the purposes of regulation 31 of the Regulations. The inference is irresistible that this omission was a matter affecting me which was overlooked.

In reference to a possible ‘slip’ or omission by the [NSC2] in not considering redacted publication, this is not the case. The [NSC2] considered it and determined not to publish the decision or a summary of the decision. A Standards Committee may regulate its own procedures under s142(3) of the [Act], and this does not extend to recalling any of its written determinations for reasons other than general correction of factual or clerical errors. For this reason, we cannot refer the matter back to the [NSC2] on this occasion.

The High Court judgment

A Declarations that:

(a) the purported decision dated 29 June 2021 in relation to File 20362 concerning an Own Motion Investigation by the [NSC2] of the [NZLS]:

(i) is not a decision within the meaning of sub section 138(2) of the [Act];

(ii) is not a determination within the meaning of sub section 152(2) of the [Act];

(iii) is not subject to regulation 31 of the [Regulations];

(b) Peter Hardie and Giles Brant are not subject to any obligations of confidentiality in relation to the purported decision dated 29 June 2021.

B Further and/or alternatively, declarations that:

(a) under sub section 142(3) of the [Act] a Standards Committee has the power in its absolute discretion to recall any decision or determination it may have made in order to deal with an accidental slip or omission, including any omission to give a practitioner an opportunity to be heard in relation to a direction concerning publication under sub section 142(2) of the [Act];

(b) alternatively, a Standards Committee has the inherent power to recall its decision in the above circumstances.

  1. Further and/or alternatively, an order setting aside the separate decision of the first defendant not to make any direction relating to publication of the decision of 29 June 2021;

...

[24] Notwithstanding this, the plaintiffs’ allegations of reviewable error here seem broadly to involve the following:

(a) that there was no jurisdiction for the [NSC2] to investigate the report on its own motion because the emails were personal (although they were sent from their respective professional office email addresses);

(b) the correctness of the [NSC2]’s decision to take no further action, including declining to hold a hearing;

(c) the legitimacy of the delegation of certain functions of the [NSC2] to an employed in-house lawyer;

(d) allegedly adverse comments made in the [Notice of] Decision about the plaintiffs;

(e) declining to publish the [Notice of] Decision and the refusal to authorise distribution of Mr Hardie’s redacted material, the status of the [NSC2] as functus officio and the appropriate handling of the publication request by the NZLS;

(f) issues over compliance by the [NSC2] with the obligation to provide particulars to the plaintiffs; and

(g) the lawfulness of the direction by the [NSC2] to require Mr Hardie and Mr Brant to produce the emails under s 147(2)(a)(iii) of the Act.

The issues on appeal

... the issues to be determined on appeal are whether:

  1. the Appellants had a right to be heard concerning the publication of the [NSC2]’s Notice of Decision dated 29 June 2021;
  2. the [NSC2] had jurisdiction to decide to take no further action on an own motion investigation, whether under [s 138(2)] of the [Act] or otherwise, in circumstances where that provision refers only to complaints and not own motion matters;
  3. the High Court was wrong to conclude that the [NSC2] was not empowered to recall its decision to reconsider the matter of publication. If it was, whether the [NSC2] was wrong, at the level of reviewable error, because it did not do so...;
  4. the [NSC2] was obliged to give notice to the Appellants, and to provide them with an opportunity to be heard, before making any comments in the decision which they assert were adverse to them;
  5. the High Court was in error when it found that the full text of the actual emails was not disclosed to the [NZLS] or [the NSC2];
  6. the [NSC2] had jurisdiction to investigate the anonymous report;
  7. the [NSC2] was wrong to have purported to exercise a coercive power under [s 147(2)(a)(iii)] of the Act to compel the Appellants to provide the original email chain;
  8. the [NSC2] was wrong to delegate the drafting of the decision dated 29 June 2021 to a person employed by the [NZLS];
  9. the [NSC2] was wrongly influenced in its decision by the [NZLS]’s “internal policy on inclusivity”; and
  10. the High Court was wrong to order the Appellant’s to pay costs to the [NZLS], and not to have reduced or extinguished costs on grounds of public interest.

Issue 1: Were the emails exchanged at a time when regulated services were being provided?

“...I do not accept any allegation of unsatisfactory conduct...I have known Mr Brant since the mid 1980’s when we met at University...Mr Brant and I enjoy many common friends and acquaintances...Mr Brant and I regularly correspond by e‑mail on a variety of topics...Over the last many years we and a group of friends have organised and participated in an annual cricket match...the cricket match is played at private premises at Newstead, hence the reference to the Newstead CC...My email to Mr Brant was an invitation and reminder to him that we should start organising the 2020 game...It was private and personal correspondence on a sporting topic between friends who hold similar values (and who happen to be lawyers)...The content of the email was quite unconnected in any way with the provision of any regulated service...it was not correspondence sent in a professional capacity...It was not written at a time when either of us were providing regulated services as defined by s 12(b) of the Act nor were we acting in a professional capacity....”.

  1. By email dated 24 April 2020, Mr Brant’s response to the [NSC2] included the following statements by him:

“...At the time I was writing my e-mail in response I was not engaged in a regulated service. I was part of a private discussion around organizing a game of cricket. This is self‑evident from the content of the e-mail. Not even the most tortured interpretation of my response could suggest it is anything other than personal, a personal view of a philosophical outlook and a parody of same...I was not acting in a professional capacity. I was corresponding in a private capacity about a game of cricket and a critique of philosophical thought.”

Issue 2: Could the NZLS or the NSC2 have declined to investigate the anonymous complaint?

Issue 3: Having commenced an own motion investigation, could the NSC2 decide under s 138(2) not to take any further action?

[75] It is true that s 138, which I have reproduced above, refers in its terms only to “complaints”. By way of comparison, this differs, for example, from s 152, which is concerned with the power of a Standards Committee to “determine complaint or matter”.

[76] The use of the term “matter” appears to be a reference to a matter under investigation on a Standards Committee’s own motion.

[77] Despite arguments which Mr Fisher endeavoured to advance on behalf of Mr Hardie and Mr Brant, I do not accept that the absence of any reference to “matters” or own motion investigations in s 138 must mean that a Standards Committee, once it has decided to start such an own motion investigation under s 130(c), is constrained from terminating the investigation until it has conducted a hearing. To hold otherwise, in my view, would be an absurdity.

[78] As I see the position, there is no reason in principle why the power of a Standards Committee (such as the [NSC2] here) to cease investigating the matter at any time should apply to complaints but not to own motion investigations. A Standards Committee must be able to bring an end to an own motion investigation once it determines that it does not warrant further inquiry (for example because it does not disclose anything requiring a disciplinary response). It would be entirely burdensome and oppressive of lawyers under investigation, and not in any way in the public interest, if a Standards Committee was obliged to proceed to a hearing in every case, not to mention the fact that it would be wasteful of the resources of Standards Committees and the Lawyers Complaints Service.

37.4 the appellants accept however that in very exceptional circumstances that are difficult to imagine other than in cases where an own motion investigation should never have been commenced in the first place, section 142(3) could arguably be relied upon as providing a procedural power to “discontinue” pre-emptively an own motion investigation without a hearing on the papers under section 152. But the exercise of such a procedural power would carry the unnecessary risk of unfairness particularly if a notice to discontinue were to include a reasoned decision that was critical of the practitioners or were to include matter on which they had not been given an opportunity to respond.

The scenario there described was, of course, precisely how the appellants viewed the way in which they had been treated in the Notice of Decision.

Issue 4: Did the NSC2 make an adverse finding concerning the appellants?

22.4 By e-mail including those dated 24 April 2020 and 12 June 2020, Mr Brant sought particulars of the impeachable conduct, (ie the words used in his e-mail) and why the words used were impeachable. No particulars were provided yet the [NSC2] proceeded to make a “decision”;

22.5 It contained an adverse comment that the ‘conduct was at the lower end of the type of conduct by lawyers that could attract disciplinary response’, which was not a finding of a contravention of section 12 of the Act but implicitly provided gratuitous support for the anonymous complainant’s irrelevant philosophical views and implicitly impugned the plaintiffs for their irrelevant critique of those philosophical views.

22.6 It contained adverse comments or implied findings relating to tone and content of private correspondence of Mr Hardie and Mr Brant and implied that they may lack appropriate judgement when it comes to the tone and content of correspondence that relates to the provision of regulated services, but without the [NSC2] having given them either notice that it intended to proceed to a hearing of the matter or the opportunity to make further submissions on the proper construction of section 12 of the Act, which opportunity the [NSC2] had represented it would give to them in its letter of 8 May 2020;

The NZLS admitted [22.4] but denied [22.6].

[97] These paragraphs in my view also include important context in discussions first, about the threshold for the own motion investigation which occurred here, and secondly, about the absence of any need for further investigation beyond what had already taken place. Those statements and others in the NSC decision in my view must be seen as legitimate observations in all the circumstances prevailing in this case. The ultimate decision here was one to close the file, because on the limited material that had been provided to it, the NSC found the investigation did not disclose anything in the way of professional culpability here.

[100] I am satisfied, however, that the references here to which Mr Hardie and Mr Brant object did not reach the level of “adverse comment” or “significant criticism” such that they were entitled to an opportunity to respond before the [NSC2] communicated its decision to them in its final form. I reach this conclusion for the following reasons:

(a) In the [Notice of] Decision there is no real assertion of professional culpability against either of these lawyers. That [Notice of] Decision, as I see it, would have been interpreted by any reasonably informed person as devoid of criticism detracting from Mr Hardie’s or Mr Brant’s professional standing or reputation.

(b) The [Notice of] Decision itself was not published to anyone other than the lawyers themselves and the NZLS. It also specifically contained a confidentiality requirement.

(c) By the measure of Mr Hardie’s own redacted version of the [Notice of] Decision that he wanted to disclose to legal colleagues (that is, people who would be expected to associate him with the [Notice of] Decision), it does not appear that Mr Hardie regarded the references to him in the [Notice of] Decision as being prejudicial to him. They were simply not redacted.

(d) In any event, insofar as paragraphs [19(a)] and [19(b)] of the [Notice of] Decision are concerned, in my view these are not specific findings of impropriety against Mr Hardie or Mr Brant but simply record one possible reasonable interpretation of the comments made in their email exchange when viewed in context. I note too that both Mr Hardie and Mr Brant put in issue from the outset here the fact that their comments related to their views about transgender sportspeople and issues of culture, belief, and what is described as the nature of truth.

42.1 the president of NZLS may have access to decisions of Standards Committees when assessing the suitability of applicants for appointment to various offices, including when undertaking enquiries in relation to judicial appointments;

42.2 applicants for admission to the inner bar or to judicial office are required to disclose any investigations by professional bodies;

42.3 applications for renewals of professional indemnity insurance and any applications for public or private appointments to boards or trusts (private, charitable or public) or decision-making bodies often require disclosure of investigations by professional bodies into an applicant’s conduct;

Issue 5: Should the NSC2 have afforded the appellants an opportunity to respond on its proposed adverse finding?

Issue 6: Should the NSC2 have afforded the appellants an opportunity to make a submission on publication of the Decision?

[110] In any event, and notwithstanding my view that the [NSC2] was functus officio here, even considering the substance of Mr Hardie’s request for authorisation to distribute the redacted decision for the purpose, in his words “to share with other lawyers for educational purposes”, it is my view that the [NSC2] was also substantively justified in concluding that publication in any form was not warranted here.

[111] First, the educational value of any decision the [NSC2] makes is a matter for the [NSC2] in this case to determine. It is not a matter for the lawyers who have been under investigation to drive in any way.

[112] Secondly, though I make no definitive conclusions on this point, I am concerned here that, as Mr Collins suggests, a reasonable argument exists that the request for publication of the [Notice of] Decision comes not from a bona fide desire to educate the legal profession, but rather largely as an attempt to advance an ideological platform. The plaintiffs have noted from the outset that their comments related to their views about transgender people. Indeed, this has been something that has featured prominently in the present litigation and involved a significant amount of correspondence and material both before the [NSC2] and this Court. Though I refrain from making any finding in this regard, particularly in light of the absence of evidence the Court has heard on the point, I nevertheless note a possible argument exists that such an impression is reasonably available here. I note in particular the descriptions used by Mr Hardie and Mr Brant on the moral and cultural issues relating to freedom of speech and expression in this case and their references to “post‑modern neo‑Marxist ideologies”. The NZLS and the [NSC2] appear to have taken the view that advancing a particular platform is not a legitimate function of the lawyers complaints process, nor of the [NSC2]’s own motion regime contained in Part 7 of the Act. I accept, as Mr Collins contends, that generally is not a legitimate reason for publication. Consequently, whether or not such a situation is truly at play here, I am satisfied the [NSC2] was justified in taking an arguably cautious approach in these circumstances in declining to publish the [Notice of] Decision.

3.1 The argument that the learned Judge was wrong “... in finding that the Appellants did not have a right to be heard in relation to whether the [NSC2] should make a direction as to publication” misdescribes what happened. The [NSC2] decided to take no further action and issues of publication did not arise. The decision was to “remain confidential”. ...

The order prohibiting publication of the High Court judgment and the proceeding

Confidentiality

[134] As a final point, I note this matter is to remain confidential between the parties involved. As I have found, there was no issue with the [NSC2]’s view that the matter was confidential between the parties or its decision not to publish the [Notice of] Decision. I am also of the view that the nature of the subject matter involved, being an investigation into possible “misconduct” or otherwise “unsatisfactory conduct” meriting further disciplinary action, warrants such confidentiality. I also consider that the finding that the [NSC2] was right in declining publication of the [Notice of] Decision would be substantially undermined if this judgment were to be released providing essentially the details I have found the [NSC2] was right to keep confidential.

[135] The non-publication order put in place by the [NSC2] therefore continues in force and accordingly I order that publication of this judgment and any part of these proceedings is prohibited. I am satisfied the circumstances in this case outweigh any presumption in favour of publication. Out of an abundance of caution, I note this means the parties will not be able to release or distribute a redacted version of this judgment.

Result






Solicitors:
Claymore Partners Ltd, Auckland for Appellants
New Zealand Law Society, Auckland for First and Second Respondents

[1] Hardie v National Standards Committee (No 2) [2022] NZHC 2090 [High Court judgment].

[2] At [134]–[135].

[3] Lawyers and Conveyancers Act 2006, ss 132(1)(a)(i), 134 and 135(1).

[4]  Section 120(1) –(3).

[5] Section 126(1).

[6] Section 130(a), (c) and (e).

[7] Section 137(1).

[8] Section 137(2)

[9] Section 140.

[10] Section 139(1).

[11] Section 139(2).

[12] Regulation 30(1) concerns censure orders.

[13] Paragraphing and emphasis added by NZLS.

[14] Consideration of the matter at the NSC2 meeting on 16 December 2019 was deferred because of the lack of a quorum.

[15] At [6] above

[16] Footnote ommitted.

[17] Footnotes omitted.

[18] In its statement of defence, the NSC2 admitted the absence of any communication with the appellants between 2 July 2020 and 29 June 2021, save for the exchange with Mr Brant in October 2020.

[19] See Lawyers and Conveyancers Act, s 132; and Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committee) Regulations, reg 8.

[20] Footnotes omitted, emphasis in original.

[21] XN v VO LCRO 75/2016, 25 February 2019.

[22] At [64].

[23] High Court judgment, above n 1, at [21].

[24] At [23(a)]. The other objective the Judge identified, at [23(b)], was to provide the material to Professor Ron Paterson to enable him to take the decision into account in his independent review of the regulation of lawyers in the legal profession.

[25] Emphasis in original.

[26] At [130].

[27] At [132] and [134].

[28] Hardie v National Standards Committee No 2 [2022] NZHC 2487.

[29] At [14].

[30] At [16].

[31] Lawyers and Conveyancers Act, ss 12(b) and (c), 130(c), 132, 138, 142(2), 147(2)(a)(iii), and 152(1)(b) and (2)–(4).

[32] Emphasis in original.

[33] At [41] above. The amended notice of appeal did not seek a declaration in the form of (B)(b) of the amended statement of claim that the NSC had the inherent power to recall its decision.

[34] See [31] above

[35] See [22] above.

[36] See [25] above.

[37] See [30] above.

[38] High Court judgment, above n 1, at [57].

[39] See [31] above.

[40] High Court judgment, above n 1, at [65]–[71].

[41] XN v VO, above n 21, at [73], citing New Zealand Law Society “Risk of signing correspondence as a ‘lawyer’” (2018) 914 LawTalk 57 at 57 (amended citation).

[42] XN v VO, above n 21, at [74].

[43] High Court judgment, above n 1, at [33]. Subsequently, at [39], the Judge referred to the NZLS on occasion clearly exercising a “gatekeeper role” in respect of “vexatious, repetitive, or unjustified complaints”. However, the Judge does not identify any statutory basis for the exercise of such a power by the NZLS. Indeed s 135(1) states that the complaints service must refer a complaint to a Standards Committee.

[44] High Court judgment, above n 1, at [34].

[45] At [79].

[46] At [81], citing Northern Milk Vendors Association Inc v Northern Milk Ltd [1998] 1 NZLR 530 (CA) at 537-538.

[47] Footnote omitted.

[48] Lawyers and Conveyancers Act, s 152(1).

[49] See [31] above.

[50] Emphasis in original.

[51] At [99].

[52] Footnotes omitted.

[53] High Court judgment, above n 1, at [100(d)].

[54] At [100(d)].

[55] See [32] above.

[56] High Court judgment, above n 1, at [104].

[57] At [105]–[109].

[58] Footnote omitted, emphasis in original.

[59] See [78] above.

[60] High Court judgment, above n 1, at [27].

[61] Footnote omitted.

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