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Last Updated: 29 January 2018
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THIS JUDGMENT IS SUBJECT TO THE SUPPRESSION ORDERS CONTAINED IN PARAGRAPH
[246].
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-5076
CIV-2012-404-5528 [2013] NZHC 83
BETWEEN BARRY JOHN HART Appellant
AND AUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY
Respondent
Hearing: 10 & 11 December 2012
Court: Winkelmann J Lang J
Appearances: A Trenwith, J Bioletti and M Porner for Appellant
P Collins and M Treleaven for Respondent
Judgment: 5 February 2013
JUDGMENT OF THE COURT
This judgment was delivered by the Court on 5 February 2013 at 12 noon pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
HART V AUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY HC AK CIV-
2012-404-5076 [5 February 2013]
Table of Contents
Para No Introduction [1] The charges [2] Approach on appeal [12]
First ground of appeal - refusal to adjourn/proceed in the
appellant’s absence
[13]
Relevant principles [23]
Analysis [28]
Second ground of appeal – was the Tribunal entitled to consider the third charge?
[69]
Statutory framework [73]
The reasoning in Orlov [92]
Analysis [101]
Third and fourth grounds of appeal – did the Tribunal err by failing to call witnesses who had provided evidence in support of Mr Hart?
[111]
Fifth ground of appeal – fees charged to Mr A and his family [131] Background [132] Expert evidence [144] Tribunal’s decision [159] Analysis [175]
Sixth ground of appeal – was striking off a disproportionate response?
[181]
The approach taken by the Tribunal [182]
Discussion [185]
[191]
(a) The first charge [191] (b) The third charge [196] (c) The fourth charge [211]
(a) The events leading up to the hearing on 16 and 17
July 2012
(b) Mr Hart’s response to the Tribunal’s liability
decision
[220] [221] [225]
Decision [232]
Seventh ground of appeal – should the orders as to costs be revisited
having regard to Mr Hart’s current financial circumstances?
[240]
Summary of findings
[244] Result
[245] Suppression
[246] Costs
[247]
Introduction
[1] Mr Hart faced four charges before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”). The charges were laid by the Auckland Standards Committee No 1 under the provisions of the Lawyers and Conveyancers Act 2006 (“LCA”), and under the Conduct and Client Care Rules
2008 (“the Rules”).
The charges
Charges one and two
[2] These charges arose after Mr Hart hired a private investigator, Mr
D, to carry out investigation work for a client whom
Mr Hart was representing in
relation to criminal charges.
[3] There was significant delay in Mr Hart paying Mr D’s
fees. Although Mr Hart’s client applied for
legal aid, this was
declined. Mr D rendered invoices in mid-2008 for sums totalling $4,682.36. Mr
Hart paid half of this sum after
Mr D complained to the Law Society in April
2009, and paid the balance after Mr D filed a claim against Mr Hart in the
Disputes Tribunal.
[4] Charge one alleged that Mr Hart was guilty of misconduct in his
professional capacity in failing to inform Mr D that payment
of his fees was
subject to the Legal Services Agency (“LSA”) approving the fees, and
that the LSA might not approve the
fees either in whole or in part. The charge
also alleged that Mr Hart failed to inform Mr D of any alternative arrangement
for payment
in the event that the LSA did not approve and pay his fees in whole
or in part.
[5] Charge one further claimed that Mr Hart failed to honour the full payment of Mr D’s account in circumstances where he was required to do so under r 7.03 of the then applicable Rules of Professional Conduct for Barristers and Solicitors. Rule
7.03 provides that a practitioner engaging another person to provide services for a
client is liable for prompt payment for the fee of that person. The rule
also required Mr Hart to inform Mr D that the client was
legally aided and of
the requirements and consequences of this.
[6] Charge two was laid in the alternative to charge one. It alleged
that the same failures amounted to conduct unbecoming
of a
barrister.
Charge three
[7] The third charge alleged that Mr Hart had refused to disclose his file relating to a former client, Mr W, after having been required to do so by the Auckland District Law Society Complaints Committee 2 and the s 356 Standards Committee.1
The latter committee had assumed responsibility for the investigation of a
complaint made by Mr W under the transitional provisions
of the LCA.
[8] This charge alleged that Mr Hart’s failure to disclose the
file amounted to misconduct in his professional capacity
because it obstructed
the Complaints Committee and the Standards Committee in the course of their
investigations.
Charge four
[9] The fourth charge was laid after the family of Mr A, a 19 year old man who faced serious criminal charges, engaged Mr Hart to represent Mr A. This charge alleged Mr Hart was guilty of misconduct in his professional capacity by grossly overcharging Mr A’s family; Mr Hart had charged the family the sum of $35,000 in relation to services he and his colleagues provided. The charge also alleged that Mr Hart breached r 3.4 of the Rules because he failed to provide information to Mr A’s family about the basis upon which he proposed to charge them for his services, including his hourly rate and the nature and extent of legal services covered by particular fees. It was alleged that this behaviour constituted professional
misconduct.
1 Established under s 356 of the Lawyers and Conveyancers Act 2006.
[10] In a decision delivered on 2 August 2012, the Tribunal held that charges one, three and four had been proved to the required standard.2 As the Tribunal found the first charge proved, it was therefore not required to consider the second charge. After hearing submissions as to penalty, the Tribunal delivered a further decision on
14 September 2012 in which it ordered that Mr Hart be struck off the roll of barristers and solicitors. The Tribunal also ordered Mr Hart to pay costs of just over
$116,000, and to pay the sum of $20,000 to the complainants in relation to
one of the charges.3
[11] Mr Hart now appeals to this Court against both decisions. The
grounds of appeal can be shortly stated as follows:
(1) The Tribunal erred in refusing Mr Hart’s application to
adjourn the hearing of the charges, brought on the ground
that he was medically
unfit to attend. The decision to proceed in his absence has resulted in a
miscarriage of justice.
(2) The Tribunal erred in considering charge three. It was
insufficiently serious for referral to the Tribunal and should have
been dealt
with by the Standards Committee.
(3) The Tribunal should not have found the first charge proved in
circumstances where the complainant did not appear at the hearing.
(4) The Tribunal erred in failing to request that Mr Daniel
Gardiner appear before it in connection with charge
one, and in failing
to request that Mr Alistair Haskett appear before it in connection with charge
four. Both were legal practitioners
who had sworn affidavits for Mr
Hart.
(5) The Tribunal erred in rejecting the expert evidence tendered
for
Mr Hart in connection with charge four.
2 Auckland Standards Committee No 1 v Hart [2012] NZLCDT 20.
3 Auckland Standards Committee No 1 v Hart [2012] NZLCDT 26.
(6) The decision to strike off Mr Hart was a disproportionate
response.
(7) Changes in Mr Hart’s financial position (partly flowing from
the Tribunal’s penalty decision) have made the order
requiring him to pay
costs manifestly excessive.
Approach on appeal
[12] This is a general appeal by way of rehearing under s 253 of the LCA. On an appeal by way of rehearing, the appellate court must come to its own view on the merits, and need not defer to the views of the Tribunal. However, when forming its view of the merits the appellate court is entitled to take into account that the Tribunal may have an advantage in terms of technical expertise, and may also have had the opportunity to assess issues of credibility where witnesses have given evidence before it. Where credibility determinations of the Tribunal are in issue on appeal, the appellate court may properly be cautious in differing from the Tribunal in relation to those findings. But the extent of consideration an appeal court exercising a general
power of appeal gives to the decision appealed from is a matter for its
judgment.4
The Court has the power under s 253 to confirm or modify the decision of
the
Tribunal.
First ground of appeal – refusal to adjourn/proceed in the
appellant’s absence
[13] This ground challenges the Tribunal’s refusal to grant Mr
Hart’s application for adjournment of the hearing,
and its decision to
proceed to hear the charges in his absence.
[14] The hearing was scheduled to commence on Monday, 16 July 2012. On the Friday preceding the hearing, Mr Hart communicated to the Tribunal that he would not be able to attend on the Monday due to ill health, providing a medical certificate as part of that communication. On the following Sunday, Mr Hart asked Mr Cooke, the solicitor on record for the Tribunal proceedings, to attend the hearing on the
Monday to seek an adjournment. When he appeared before the Tribunal on
Monday
4 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
morning, Mr Cooke tendered two medical certificates signed by Mr Hart’s
family doctor: the one issued on Friday which Mr Hart
had already transmitted to
the Tribunal, and the other issued by Mr Hart’s doctor earlier that
morning.
[15] These certificates read as follows:
13/07/2012.
.....
Barry has been seen and examined by myself today.
Barry has significant chest pains, breathing difficulties and fatigue. These have been a previous issue and are worse lately.
Barry has been referred to a specialist for further examination and
assessment of his symptoms.
He is in my opinion not [fit] for any work, in particular court work, for
next week.
He will be reviewed after that.
16/07/12
Barry has been reviewed today regarding his breathing issues. There is no improvement over the weekend.
He has a specialist appointment on Friday, (wait listed for
tomorrow).
In my opinion he continues to be unwell and not fit to attend his scheduled
appearances this week.
[16] In support of the application for adjournment, Mr Cooke
submitted that because of ill-health Mr Hart was not able
to be present to
defend the charges against him, and it was therefore neither fair nor reasonable
for the Tribunal to proceed against
him in his absence. He said he had no
instructions that would enable him to defend the charges on Mr Hart’s
behalf,
as Mr Hart had intended to represent himself. Mr Collins, for
the Standards Committee, opposed an adjournment.
[17] The Tribunal’s secretary had advised Mr Hart on the Friday that the Tribunal might require the doctor who signed the medical certificate to attend the hearing on Monday. When Mr Cooke made his application on the Monday morning, the Tribunal asked that the certifying doctor attend so that it might obtain more
information about Mr Hart’s medical condition. The Tribunal adjourned
for approximately 40 minutes to allow arrangements to
be made for the doctor to
attend, but on resumption of the hearing Mr Cooke advised that the doctor wished
to take independent advice
as to the nature of the Tribunal’s enquiry and
had refused the request to attend that morning.
[18] The Tribunal then adjourned to consider the application for adjournment. On its return the Chairperson, Judge Clarkson, delivered a ruling on behalf of the Tribunal declining the application. She said it was not clear to the Tribunal whether the doctor was aware of the particular nature of the appearance that Mr Hart was required to make that week. She noted the “extraordinary history of delay and prevarication on the part of the practitioner”.5 She observed that the delay had been commented upon by the High Court when adjourning the matter for the third time in February of last year, the two earlier adjournments having been granted at Mr Hart’s request.6 She referred to the late withdrawal of Mr Katz QC, Mr Hart’s counsel, and to a minute issued by the Tribunal after his withdrawal in which it had advised Mr Hart that any future counsel engaged by him must be prepared to proceed on 16
July 2012.
[19] The Chairperson expressed “grave concerns” as to Mr
Hart’s willingness to participate in the hearing.7 As an
example, she cited Mr Hart’s failure, despite repeated requests by the
Tribunal, to clarify what arrangements he had made
for an overseas witness (whom
the Tribunal had said it would accommodate) to give evidence by video link. Of
that morning’s
certificate she said:8
The Tribunal is hampered by the lack of detail in the medical report. There
are very bald assertions with little detail provided.
Clearly the illness is
not so serious as to require hospitalisation. No tests are reported and the
certificate seems to be based
on Mr Hart’s reports
only.
5 Hart v Standards Committee (No 1) “Transcript” HC Auckland LCD 021/10, 16 July 2012
[Transcript] at 7.
6 Hart v Standards Committee (No 1) HC Auckland CIV-2011-404-7750, 16 February 2012. There had in fact been at least four adjournments of the proceedings by that point in time, however nothing turns upon this factual error.
7 Transcript, above n 5, at 8.
8 Transcript, above n 5, at 8.
[20] Judge Clarkson said that the doctor’s refusal to attend made the Tribunal’s task in evaluating the medical certificate extremely difficult. She recorded that the rules of natural justice must be observed in proceedings before the Tribunal, but noted that the Standards Committee was present and willing to proceed and that at least one complainant had waited over three years for his complaint to be heard. She referred the Tribunal to the leading case on the right to legal representation, Condon
v R,9 and said:10
It was held that the right to representation is not an absolute right, that
what is required is an overall assessment of whether the
trial can be fair. Can
Mr Hart receive a fair hearing when he absents himself and is therefore
unrepresented? [At] [p]aragraph [18]
in Condon it is said:
“In some circumstances the manner in which the accused, through his or
her own choice or conduct, came to be unrepresented may
be relevant to the
assessment of fairness.”
We consider that [that] is applicable in this case, given the history which
has been recounted. In this matter considerable evidence
has already been filed
by the respondent, Mr Hart. This is not a situation where the
respondent’s absence means the matter
will merely proceed on an entirely
one-sided basis. The Tribunal’s quasi-inquisitorial role means that we
will be actively
examining all of the evidence, including some questioning of
the witnesses of the Law Society. The Tribunal has a role of protecting
the
public and the reputation of the profession which requires us to undertake an
independent analysis of the entirety of the material
before us. We have an
expectation that Mr Collins will be aware of his duties to the Tribunal as
prosecutor, particularly in the
absence of the respondent.
[21] The Tribunal resolved to proceed, saying:11
Balancing the public interest and a final resolution of
professional disciplinary proceedings against the rights
to a fair
process for the respondent and representation for him, we consider the matter
ought to proceed.
[22] The Tribunal’s decision of 2 August 2012 records further
reasons behind the
Tribunal’s decision to proceed:
[5] At the commencement of the hearing Mr Cooke, instructing solicitor
on the record throughout these proceedings,
appeared to seek
an adjournment on Mr Hart’s behalf on the grounds of his client’s
ill health. A further medical
certificate was provided which simply stated that
Mr Hart had been reviewed and one of his symptoms had not improved. He was
said
9 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300.
10 Transcript, above n 5, at 9.
11 Transcript, above n 5, at 9.
to be unfit to attend his scheduled appearances that week. It was not clear
whether the Doctor understood the nature of the appearance
which had been
scheduled for Mr Hart. Mr Cooke said that the Doctor was not prepared to attend
Court. This was despite the
Tribunal indicating that certain
conditions, which the Doctor had sought, would be met by the Tribunal.
[6] On two occasions leading up to the hearing it had been necessary
for the Tribunal Chair to clearly state that, given the
number of previous
adjournments and delays which had been encountered in the course of this
proceeding, the fixture must proceed.
The Chair had reminded Mr Hart of the
critical comments of Her Honour Justice Winkelmann in February of this year,
concerning the
delays which had occurred in this proceeding.
[7] The Tribunal reached the view that, following the
departure of Mr Hart’s last counsel on 27 June, Mr Hart
did not intend to
engage in these proceedings. We formed that view because it is clear none of
his witnesses were told they were
required for cross examination (because the
only one who appeared did so at the specific request of the Tribunal following
the first
day). Furthermore, despite numerous requests to provide the Tribunal
with information about the video conference which had been
approved for the
cross examination of Mr Hart’s expert witness, who was overseas, Mr Hart
did not respond or indicate to the
Tribunal how these arrangements had been
made. Furthermore, Mr Hart did not engage new counsel. On the adjournment
application
he was simply represented by his instructing solicitor who
was without further instructions or knowledge of the file.
Relevant principles
[23] It was common ground between counsel that the principles to be applied in the present context are usefully set out in the English Court of Appeal decision in R v Hayward.12 These were approved by the House of Lords on appeal in R v Jones,13
and have been applied in New Zealand in the context of criminal
trials.14 In
Hayward, the Court of Appeal had said:15
... the principles which should guide the English courts in relation to the
trial of a defendant in his absence are these:
1. A defendant has, in general, a right to be present at his trial
and a right to be legally represented.
2. Those rights can be waived, separately or together, wholly or in
part, by the defendant himself. They may be wholly waived
if, knowing, or
having the means of knowledge as to, when and where his trial is to take place,
he deliberately and voluntarily absents
himself and/or withdraws instructions
from those representing him. They may be
12 R v Hayward [2001] EWCA Crim 168, [2001] 3 WLR 125.
13 R v Jones [2002] UKHL 5, [2003] 1 AC 1.
14 R v van Yzendoorn [2002] NZCA 224; [2002] 3 NZLR 758 (CA).
15 R v Hayward, above n 12, at [22].
waived in part if, being present and represented at the outset, the
defendant, during the course of the trial, behaves in such a way
as to obstruct
the proper course of the proceedings and/or withdraws his instructions from
those representing him.
3. The trial judge has a discretion as to whether a trial should take
place or continue in the absence of a defendant and/or
his legal
representatives.
4. That discretion must be exercised with great care and it is only
in rare and exceptional cases that it should be exercised
in favour of a trial
taking place or continuing, particularly if the defendant is
unrepresented.
5. In exercising that discretion, fairness to the defence is of
prime importance but fairness to the prosecution must
also be taken into
account. The judge must have regard to all the circumstances of the case
including, in particular:
(i) the nature and circumstances of the defendant's behaviour in
absenting himself from the trial or disrupting it, as the case
may be and, in
particular, whether his behaviour was deliberate, voluntary and such as plainly
waived his right to appear;
(ii) whether an adjournment might result in the defendant
being caught or attending voluntarily and/or not disrupting
the
proceedings;
(iii) the likely length of such an adjournment;
(iv) whether the defendant, though absent, is, or wishes to be, legally
represented at the trial or has, by his conduct, waived
his right to
representation;
(v) whether an absent defendant's legal representatives are able to
receive instructions from him during the trial and the
extent to which they are
able to present his defence;
(vi) the extent of the disadvantage to the defendant in not being able
to give his account of events, having regard to the nature
of the evidence
against him;
(vii) the risk of the jury reaching an improper conclusion about the
absence of the defendant;
(viii) the seriousness of the offence, which affects
defendant, victim and public;
(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
(xi) where there is more than one defendant and not all have absconded,
the undesirability of separate trials, and the prospects
of a fair trial for the
defendants who are present.
6. If the judge decides that a trial should take place or continue in
the absence of an unrepresented defendant, he must ensure
that the trial is as
fair as the circumstances permit. He must, in particular, take reasonable
steps, both during the giving of
evidence and in the summing up, to expose
weaknesses in the prosecution case and to make such points on behalf of the
defendant as
the evidence permits. In summing up he must warn the jury
that absence is not an admission of guilt and adds nothing
to the
prosecution case.
[24] The House of Lords disagreed with the Court of Appeal, however, that
the seriousness of the offence was a factor which should
be taken into account
in exercising the discretion. Lord Bingham of Cornhill
said:16
The judge’s overriding concern will be to ensure that the trial, if
conducted in the absence of the defendant, will be as fair
as circumstances
permit and lead to a just outcome. These objects are equally important,
whether the offence charged is serious
or relatively minor.
[25] The New Zealand Court of Appeal in R v Chatha17
was subsequently faced with the issue of whether the defendant had an
obligation to appear at his own trial and, consequently, whether
it was
reasonable for the trial Judge to deny the defendant bail on the first
day of the trial. The Court confirmed the
effect of its previous judgment in
van Yzendoorn,18 describing it as authority to the same
effect as Jones. Those cases, it said, stood for the proposition
that:19
... the discretion to continue a trial in the absence of the accused must be
exercised sparingly and...it can never be exercised if
an accused’s
defence could be prejudiced by his or her absence.
[26] The Court held, with reference to Jones, that the right of an
accused to be present at his trial did not encompass a right to absent himself
from the trial. The Court went
on to explicitly adopt Jones, saying
that:20
16 R v Jones, above n 13, at [14].
17 R v Chatha [2008] NZCA 547.
18 R v van Yzendoorn, above n 14.
19 At [66].
20 At [67].
Absenting oneself voluntarily runs the risk that a trial may be carried on in
one’s absence but the discretion to do so is only
exercised with caution
and is subject to the absolute right to a trial that is as fair as circumstances
permit and that would lead
to a just outcome.
But, the Court continued, anyone who chose not to be present could not
complain
about the “inevitable consequences” of a trial being held in
their absence.21
[27] The Privy Council also applied Jones in the context
of disciplinary proceedings in Tait v Royal College of Veterinary
Surgeons.22
Analysis
[28] Counsel for Mr Hart argued that the Tribunal erred in refusing the
application for adjournment because it asked itself the
wrong questions when
considering the application for adjournment. The error arose because the
Tribunal failed to direct itself to
the relevant authorities and, in particular,
the principles applied in Jones. Had it done so, the Tribunal would have
taken a more nuanced approach to the issue of whether it should proceed in Mr
Hart’s
absence. This was particularly so when the refusal of the
adjournment meant not only that Mr Hart was absent during the hearing
of the
charges against him, but also that he was unrepresented. The Tribunal also said
that it was not satisfied that Mr Hart was
unable to attend, whereas the
question for the Tribunal was whether he was unwell and therefore not fit to
attend.
[29] We accept counsels’ submission that the principles
articulated in Jones provide the framework for consideration of the
present issue, with of course the necessary modifications to reflect the fact
that
the hearing was not before a jury. While the Tribunal did not refer to
Jones, (there is no suggestion the Tribunal was referred to that
authority), it does not follow that it erred in its approach. Consideration
has
to be given to the questions that it did address itself to.
[30] The Tribunal was not correct in stating it was required to balance Mr Hart’s
right to a fair process against the public interest in the hearing
proceeding. The right to a fair process is absolute. Nevertheless,
from the
reasons given by the Tribunal
21 At [67].
22 Tait v Royal College of Veterinary Surgeons [2003] UKPC 34.
and in spite of its reference to a balancing exercise, it seems that the Tribunal’s approach was in accordance with the principles identified in Jones. The passage to which the Tribunal referred from Condon v R23 was entirely consistent with the authorities referred to by counsel for Mr Hart. This shows that the Tribunal was correctly focused on the reason for Mr Hart’s non-attendance and also the impact of proceeding in his absence. It was conscious of his right to a fair hearing of the charges against him, whilst noting that the reasons for his absence were relevant to assessing what was required for a fair hearing. Consistent with the Tribunal’s
approach, the first issue related to the reason for Mr Hart’s absence.
The second was, was a fair hearing possible in his absence?
Finally, the
Tribunal had to, and did, address itself to other matters relevant to the issue
of an adjournment, such as the continued
delay to the complainants and the
public interest in the prompt disposition of disciplinary
proceedings.
[31] Counsel for Mr Hart further submits that the Tribunal’s
observation that Mr Hart’s illness was “not
so serious as to
require hospitalisation” suggests that it applied too high a standard when
determining whether he was unfit
to attend. We agree that it would not be
proper to require a person to establish, for that purpose, that he or she is
sufficiently
unwell to require hospitalisation. However, we are satisfied that
it is at least implicit in the Tribunal’s decision that
it rejected Mr
Hart’s claim that illness was the true reason for his non-attendance. As
counsel for Mr Hart himself accepted,
the Tribunal’s decision was based
upon its finding that Mr Hart had voluntarily absented himself not because he
was unwell,
but because he had made a conscious decision to disengage from the
proceedings as a strategy to delay the hearing. Therefore, the
issue of just how
unwell Mr Hart was did not arise.
[32] Counsel for Mr Hart also challenged the Tribunal’s evidential findings, saying that the Tribunal was wrong to reject the certificate from a medical professional when there was no evidence to contradict that certificate. He says the Tribunal gave no, or at least no adequate, reasons for this rejection. It also made an unwarranted inference of malingering – unwarranted because there was no evidence produced at that time, or subsequently, to contradict or undermine the statement in
the doctor’s certificate that Mr Hart was unfit to attend.
Counsel for Mr Hart
23 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300.
submits that on the contrary, as shown in the medical records annexed to Mr
Hart’s affidavit, Mr Hart had been suffering from
the symptoms that
prevented him from attending the hearing for some time both prior to and after
the substantive hearing.
[33] Counsel for Mr Hart submits that the Tribunal was fixated with
ensuring that the hearing proceed on that day. This became
an end in itself.
The emphasis placed on previous adjournments and delays, along with the
Chair’s statements prior to the
hearing that it “must” proceed
as scheduled, leads, it is argued, to the conclusion that the Tribunal fettered
its discretion.
Moreover, not all delay was attributable to Mr
Hart.
[34] We do not accept these arguments. The Tribunal gave its
reasons for rejecting the certificate that Mr Hart was
unfit to attend. It was
not bound to accept the medical certificates provided by Mr Hart in the absence
of medical evidence to contradict
or undermine them. The certificates were
only one source of evidence available to the Tribunal in forming its view on the
reasons
for the application for adjournment. On their own, the certificates
were not particularly helpful. They contained, as the Tribunal
noted, little
detail. Moreover, in issuing them the doctor explicitly relied upon Mr
Hart’s self reporting of symptoms,
and offered no
diagnosis.
[35] The Tribunal was entitled to take into account the other information
it had available to it in considering the application,
including the procedural
background to the proceedings. The Tribunal referred in both its adjournment
and substantive decisions
to the extraordinary history of delay and
prevarication on the part of the practitioner. We consider that to be a fair
characterisation
by the Tribunal, even if, as counsel for Mr Hart submits, not
all of the delay that occurred in the proceeding is attributable to
Mr
Hart.
[36] The proceedings had been adjourned on four previous occasions, three of which were on the application of Mr Hart. A fixture on 20 June 2011 was adjourned because of the unavailability of counsel. Mr Hart filed a memorandum dated 23
May 2011 in which he said:
I would like to be able to keep the suggested fixture date of 20 June 2011.
However, I am not sure this will be possible for the following reasons
....
I currently have no counsel instructed in this matter.
[37] A fixture for 29 August 2011 was similarly adjourned on Mr
Hart’s
application because of the unavailability of counsel. In a memorandum dated
5
August 2011 Mr Hart said:
In view of the unavailability of my counsel, and the seriousness of the
possible outcome of these matters for me, I ask that another
date be
set.
[38] A fixture was then allocated for 5 and 6 December 2011. The hearing
did not proceed on that date because Mr Hart filed a
judicial review proceeding
challenging various rulings made by the Tribunal. A further hearing date of 20
February 2012 was then
set for the disciplinary proceeding.
[39] Neither party sought an urgent hearing of the substantive application for judicial review, notwithstanding the imminence of the February hearing date before the Tribunal. It was only on 14 February 2012 that Mr Hart applied to this court for interim orders restraining the Tribunal from proceeding with the hearing on 20
February. That application was heard as a matter of urgency on 16 February
2012. By the time of that hearing, the Standard Committee’s
expert
witness, Mr David Smith, had been appointed a District Court Judge.24
Although there was no formal pleading relating to this point, it was
argued for Mr Hart in this Court that it would be unfair to allow
the
disciplinary hearing before the Tribunal to proceed if the Standards Committee
was to call a District Court Judge as its expert
witness.
[40] Following a short hearing, the application for judicial review was resolved by agreement between the parties, including agreement that the Standards Committee would instruct a new expert witness. The parties’ memorandum recorded that the fixture before the Tribunal scheduled for 20 February 2012 would be adjourned at the direction of the Court, and the Tribunal would be asked to convene a directions conference to fix a timetable for the hearing of the charges as soon as that could
reasonably be achieved.
[41] It was not Mr
Hart’s fault that the Standard Committee’s expert witness was
appointed a District Court Judge.
For this reason it is clear that the fault
for the last two adjournments cannot be attributed entirely to him. But he
does bear
some responsibility for the delay that led to the difficulty with the
witness, as the longer a proceeding is delayed, the more
likely it is
that there will be difficulty with witnesses.
[42] The next step in the chronology is that on 3 April 2012 the parties were told that the charges would be heard before the Tribunal on 16 July 2012. On 30 April
2012, Mr Katz, counsel then acting for Mr Hart filed a memorandum in which he
told the Tribunal that he had been unable to obtain
any instructions from Mr
Hart for five to six weeks. He said that, in light of instructions he had now
received, it was apparent
that the fixture for 16 to 18 July 2012 would cause
extreme difficulties. Mr Burcher, one of Mr Hart’s principal
witnesses,
would be absent from New Zealand at the time of the hearing, so
an adjournment was sought. The Tribunal issued a minute on
1 May 2012
declining the adjournment application on the ground that Mr Burcher’s
evidence could be taken at the July hearing
by way of video link.
[43] On 27 June 2012, Mr Katz advised the Tribunal that his retainer had
been terminated and he would not be representing Mr Hart.
The next day the
Chair of the Tribunal issued a minute noting the number of counsel who had
represented Mr Hart to date, and drawing
attention to the many previous
adjournments. The Chair said that if Mr Hart sought to retain further counsel,
that counsel would
have to be in a position to proceed on 16 July 2012.
She also asked Mr Hart to confirm the arrangements that he had
made for Mr
Burcher’s evidence to be received by video link. This aspect of the
chronology is important because, in declining
the adjournment, it is apparent
the Tribunal attached some weight to the fact that there was no evidence to
suggest that Mr Hart
had taken steps to arrange for Mr Burcher to give his
evidence remotely. The Tribunal considered this supported its conclusion that
Mr Hart had no intention of participating in the July hearing.
[44] On 3 July 2012, counsel for the Standards Committee filed a memorandum in which he gave notice of his intention to cross-examine some of Mr Hart’s witnesses:
Mr LaHatte, Mr Burcher, Mr McKenzie, Mr Haskett, Ms Murray and Mr
Williams
QC.
[45] On the morning of Friday 13 July 2012 a Tribunal case manager sent
an email to Mr Hart’s office, requesting confirmation
of the arrangements
in respect of Mr Burcher’s evidence. The initial response from Mr
Hart’s office was that Mr Hart
would respond later that day. In a
subsequent response, the Tribunal was told that he was unwell. Finally, at
4.21 pm, a scanned
copy of Mr Hart’s medical certificate dated 13 July
2012 was emailed to the Tribunal.
[46] When assessing the true reasons for the application for adjournment,
the Tribunal was also entitled to take into account
other aspects of procedural
delay on the part of Mr Hart. Some of this was apparent from the
Tribunal’s own record, and some
of it was detailed in the affidavits filed
by Mr Garreth Heyns, the team leader of the Lawyers’ Complaints Service of
NZLS.
[47] This included significant delay by Mr Hart in providing copies of relevant documents in relation to the complaint the subject of charge four. The Standards Committee struggled to obtain a copy of Mr Hart’s file in respect of the work he did for this complainant. At the request of the Standards Committee, the Tribunal directed Mr Hart to produce this file by 18 February 2011. Through his counsel, Mr Hart responded that he did not have the file and that he believed it had gone to Mr A’s new lawyer. The Standards Committee then obtained an affidavit from Mr A’s new lawyer confirming he did not have the file. On 27 May 2011, the Chairperson directed that Mr Hart file an affidavit of documents within 21 days. When Mr Hart did not comply with that direction, a telephone conference was sought by the Standards Committee. By the time of that conference (9 August 2012) Mr Hart had provided the affidavit of documents, but not the documents themselves. He was directed to do so by 12 August 2011. Again he did not comply with this direction. He finally provided his file on 7 September 2011, nearly seven months after first having been required to do so.
[48] Finally, the Tribunal also had the evidence of obstruction on the
part of Mr Hart that formed the basis for charge three.
We detail this conduct
later in this judgment.25
[49] This account of Mr Hart’s conduct demonstrates that Mr Hart
had persistently delayed and obstructed the investigation
and disciplinary
processes associated with these charges. Although it is true that not all of
the delay is attributable to Mr Hart,
the complete chronology provides strong,
indeed very strong, evidence that he pursued a concerted strategy of delay and
obstruction.
[50] Drawing these various threads together, we are satisfied that the
Tribunal was well justified, on the evidence and information
available to it, in
concluding that Mr Hart was not unfit to attend, and that his absence was
consistent with his earlier delaying
and obstructive conduct.
[51] In reaching this conclusion we have not ignored counsel for Mr Hart’s submission that the Tribunal erred in finding that Mr Hart had told none of his witnesses that they would be required for cross-examination, so that it erred in treating this factor as further evidence of his disengagement with the proceedings. Counsel for Mr Hart makes the point that the Tribunal could not have been confident that the witnesses had not been told to attend, as witnesses are not typically asked to attend at the beginning of a hearing, but rather when they are required. There may have been some force in this submission were it not for the further evidence available to us strongly supporting the Tribunal’s conclusion that witnesses had not been notified of the need to attend for cross-examination. When Ms Murray gave oral evidence before the Tribunal on the second day of the hearing, she said that she had not been told about the hearing. We also received an updating affidavit from
Mr Haskett,26 in which Mr Haskett states that “I was never
contacted and requested
to give viva voce evidence at the hearing by the [committee]. I was willing to give viva voce evidence should I have been requested to do so”. The Standards Committee had notified Mr Hart that Mr Haskett was required for cross-
examination. It was for Mr Hart to convey that request to Mr Haskett.
We also note
25 At [196]-[207].
26 Provided by Mr Hart and received on a consent basis.
the absence of any up-dating evidence suggesting that arrangements had been
put in place for Mr Burcher to give evidence at the hearing.
[52] Mr Hart does however rely on fresh evidence filed by him and
received by consent in this Court, regarding his health at the
time of the
hearing. It is necessary to consider this to determine whether, in light of the
new evidence, Mr Hart has established
that he was unfit to attend the hearing.
He has deposed in an affidavit that in the months leading up to the hearing he
had been
under incredible pressure and stress resulting from the fact that his
bank had initiated the mortgagee sale of his properties, including
his home. He
was busy at the office during the day, and trying to deal with bank-related
issues at night. He was exhausted and
had lost five kilograms in weight
over this period. He developed breathing problems and chest pains. In October
2011, his health
problems became more severe and as a consequence he sought
treatment from his doctor. He was referred to several specialists and
underwent a number of tests. On 7 October 2011, he was given a cardio
assessment and echocardiogram by a cardiologist. Toward
the end of 2011 he was
off work for about a month due to ill-health, and again for a shorter period at
the beginning of 2012. On
3 April 2012, he had a CT scan of his head, chest,
abdomen and pelvis. Initial results from that scan caused him anxiety, in light
of his family’s medical history.
[53] Mr Hart says that in the week prior to the Tribunal hearing he felt
extremely unwell. He was sleeping only one to two hours
a night because, when
he did sleep, he would wake with severe tightness in his chest, struggling for
breath. He was physically
exhausted due to a combination of stress, overwork
and lack of sleep. He visited his doctor on 13 July, and spent most of the
weekend
in bed. On the day of the hearing of 16 July he again attended the
doctor. Mr Hart says the doctor confirmed his condition
had worsened, and
after examining him his doctor certified that he was unfit to attend the
hearing. He was again referred to a specialist.
[54] Mr Hart concludes:
Ultimately, I was simply physically incapable of appearing at the hearing at all, let alone in a self-represented capacity. I firmly reject any suggestion that I was malingering or somehow attempting to frustrate the Tribunal’s
processes and consider that this is borne out by my medical records. I was,
and remain, firmly committed to defending the charges
against me.
[55] Mr Hart attaches to his affidavit some excerpts from his medical records in respect of the period from 20 March 2012 until 20 August 2012. Those records show that on 20 March 2012 Mr Hart presented at the doctor’s feeling “still tired” with coughing and a wheezy chest. He had a flu vaccination and blood tests taken. On 2
April 2012 he attended the doctor’s clinic with symptoms of being tired
and was sent for a CT scan of his head, chest and abdomen.
On 5 April 2012 his
CT scan was reviewed and reported to be normal, and he was given a
one-week medical certificate.
On 28 May 2012 he attended the doctor with
tenderness to his ribs, having suffered these injuries in a fall.
[56] The next attendance recorded in the medical notes is on 13 July
2012. It records as follows:
Fatigue, Wakes at night with feeling of difficulty of breathing throat/chest.
Feeling of blockage and wheeze.
Increasing fatigue and feels a “flu” coming on.
Occasional daytime symptoms. Currently on Seretide BD,
Recent cardiology and CT tests enclosed.
Main symptom is of fatigue. Note work stress. Tribunal hearing coming up. Some weight loss earlier in year. 79 to 75 kg but now stable.
Bloods essentially normal, repeated today. Omeprazole BD trial commenced today.
PEF 400 chest clear, usually keeps pretty fit.
....
Question reflux plus/minus asthma.
[57] The next notation is for 16 July 2012. The notation is:
Has had a bad weekend, spent mostly in bed. Fatigue. Hot and cold feelings, nasal congestion, cough.
O/E temperature 36.8 degrees Celsius. PO2 98% on air, chest clear RR20.
Looks pale.
Inflammatory markers normal.
Has Tribunal hearing scheduled this week and would have impaired
concentration with likelihood of getting worse.
Specialist’s appointment. Friday, on cancellation list for tomorrow. No
relief yet from Omeprazole.
Advised best to put it off if possible as unfit to participate the way he is
feeling now.
[58] These notes reveal that Mr Hart had been suffering from
difficulty with sleeping over a period of months. Perhaps this
difficulty was
on and off. Perhaps it was persistent. That is not clear from the notes or Mr
Hart’s affidavit. In any case,
it did not come on suddenly just prior to
the hearing. On the day of the hearing he presented with feelings of a blocked
nose and
a cough, but no objectively observable evidence that he was ill –
his temperature was normal, his chest clear, his oxygen saturation
normal and
his inflammatory markers normal.
[59] In short, these additional medical records tend to corroborate the
Tribunal’s observation that the basis of the medical
certificate was Mr
Hart’s self-reported symptoms. The material contained in the body of the
affidavit merely repeats the self-reported
symptoms recorded in the medical
records. We also attach some significance to the fact that, although the notes
record that the
doctor had organised an urgent appointment with a specialist,
there is no reference in the updating material to the diagnosis Mr
Hart received
from the specialist. Counsel for Mr Hart concedes that Mr Hart was not
diagnosed with any ailment at this time.
[60] To conclude on this point, we consider that the additional evidence takes Mr Hart no further in establishing he was unfit to attend through ill health. Nor does it show that the Tribunal erred in rejecting this as being the true reason for his application for adjournment. The Tribunal viewed Mr Hart’s self-reports of being unwell and unfit for hearing within the context of his overall conduct, as it was entitled to do.
[61] Counsel for Mr Hart contends that the Tribunal’s discretion
was also not exercised with what the House of Lords in
R v Jones
described as the “utmost care and caution”,27 as was
required. No consideration was given to the serious consequences of the
proceedings from Mr Hart’s point of view, nor
was detailed consideration
given to whether Mr Hart would be able to receive an objectively fair hearing in
his absence.
[62] A related point made is that although the Tribunal has quasi-inquisitorial functions, it could not provide anything remotely approaching an effective substitute for a party with a legal representative. Indeed, it is argued for Mr Hart that the Tribunal’s greater engagement in questioning witnesses may well have had the opposite effect. Counsel for Mr Hart referred us to the comments by Lord Greene
MR in Yuill v Yuill:28
A judge who observes the demeanour of the witnesses while they are being
examined by counsel has from his detached position a much
more favourable
opportunity of forming a just appreciation than a judge who himself
conducts the examination. If he takes
the latter course he, so to speak,
descends into the arena and is liable to have his vision clouded by the dust of
the conflict.
Unconsciously he deprives himself of the advantage of calm and
dispassionate observation.
[63] We are not persuaded by these arguments. Having concluded that Mr
Hart was well enough to attend but had decided not to,
it is clear that the
Tribunal did go on to consider other considerations relevant to the exercise of
its discretion as identified
in Jones. It carefully considered whether,
if it decided to proceed, Mr Hart would receive a fair hearing in the
circumstances. In
assessing that issue, the Tribunal was entitled to take
into account the conclusion that Mr Hart had elected not to attend, and
not to
have counsel instructed to represent him.
[64] The Tribunal noted it had extensive evidence filed on behalf of Mr Hart. We also think it relevant that over the lengthy procedural history of the charges, there had been numerous interlocutory arguments, so the Tribunal was well aware of the nature of the defences Mr Hart intended to raise to the charges. As the Tribunal
observed, it has a quasi-inquisitorial role and it had a right to
question witnesses. We
27 R v Jones [2002] UKHL 5, [2003] 1 AC 1 at [13].
28 Yuill v Yuill [1945] All ER 183 (CA) at 189.
are satisfied that it exercised appropriate caution in electing to
proceed in the absence of a self-represented litigant.
[65] It is clear, also, that the Tribunal had in mind the public interest
in the prompt disposition of disciplinary charges, particularly
where serious
misconduct is charged. As counsel for Mr Hart noted, the Tribunal made much of
its concern, and of the concern expressed
in the earlier judicial review
proceedings, that there had been unacceptable delay. However, we do not accept
the submission that
the Tribunal allowed this concern to override all other
considerations. It is apparent that the Tribunal took time to consider
the
adjournment application, and that it carefully weighed the relevant
considerations. There is no evidence that it fettered its
discretion as
counsel for Mr Hart suggests.
[66] In this case there was a strong public interest in the hearing
proceeding. Mr Hart was facing serious charges. The events
that formed the
basis of the charges were, by the time of the hearing, quite some considerable
time in the past. The more time that
passed, the more difficulty there was
likely to be with witnesses and complainants. The Tribunal knew that the
passage of time
had already meant that the Standards Committee had been obliged
to brief a new expert witness, and that the complainant in respect
of the first
charge now resided overseas.
[67] A review of the transcript reveals that the Tribunal did more than conduct a formal proof exercise. It required the Standards Committee to call many of its witnesses, although it had their affidavit evidence before them. It questioned those witnesses at some length. Where the Tribunal was concerned with a conflict of evidence which it assessed as relevant, it asked counsel for the Standards Committee to arrange for one of Mr Hart’s witnesses, Ms Murray, to appear before it. We also considered counsel for Mr Hart’s submission that the active role the Tribunal adopted caused it to become partisan, but have found no evidence of that in the transcript. Counsel for Mr Hart did not attempt to develop this submission further by referring us to passages in the transcript allegedly supporting it. Having reviewed the transcript and the Tribunal’s decision ourselves, we are satisfied that no miscarriage of justice flowed from the decision of the Tribunal to proceed with the
hearing notwithstanding Mr Hart’s absence from the hearing, even though
that meant
he was unrepresented.
[68] For these reasons, we are satisfied that the Tribunal did
not err in the approach it took to the application
for adjournment. Having
considered the evidence afresh, and having regard to the additional material
filed on behalf of Mr Hart,
we are also satisfied that the Tribunal was correct
to conclude that Mr Hart did not attend not because of ill health. Rather, he
made a conscious decision to disengage from the proceedings.
2. Second ground of appeal - was the Tribunal entitled to consider
the third charge?
[69] Counsel for Mr Hart submits that the third charge, which alleged Mr
Hart had obstructed the two investigating committees
by refusing to
produce his file in relation to services provided to Mr W, was insufficiently
serious to warrant consideration
by the Tribunal. He contends the charge could,
and should, have been heard and determined by the Standards Committee. He
argues
that the Standards Committee had the power to impose an appropriate
remedy in the event that it found the charge proved. For that
reason he submits
it was inappropriate for the Tribunal to have considered it.
[70] This submission relies on the reasoning contained in Orlov v New
Zealand Law Society.29 The judgment in Orlov was
released on 24 August 2012, three days before the Tribunal heard submissions as
to penalty in the present case. The Tribunal
sought and received
submissions from counsel regarding the effect of Orlov before it issued
its penalty decision, but ultimately declined to alter its earlier
decision that Charge Three had been
established.
[71] Orlov concerned an application by a practitioner, Mr Orlov, for judicial review of decisions made by each of three Standards Committees that complaints before them ought to be referred to the New Zealand Lawyers’ and Conveyancers’
Disciplinary Tribunal (“the Tribunal”). In support of his
application, Mr Orlov
29 Orlov v New Zealand Law Society [2012] NZHC 2154.
submitted that each of the Standards Committees had failed to apply a threshold test. This test was “whether there was enough evidence to justify the extreme step of referring a complaint to the Tribunal, to consider whether misconduct had been proved.”30 Mr Orlov contended that a Standards Committee should only lay charges with the Tribunal if there is a real risk that, if the charges are proved, the practitioner might be suspended from practice or struck off the roll of Barristers and Solicitors of
the High Court.
[72] Heath J upheld Mr Orlov’s submission. In doing so, Heath J
relied heavily upon the differences between Standards Committees
and the Legal
Complaints Review Officer (“LCRO”) on the one hand, and the Tribunal
on the other, in respect of their
composition, functions and powers. The
process of appointing members to the Tribunal, and the Tribunal’s greater
powers and
tighter procedural constraints all suggested to His Honour that the
Tribunal ought to be limited in jurisdiction to the most serious
of cases. As
these factors were central to the reasoning in Orlov, it is necessary to
set out the statutory framework now contained within the LCA.
Statutory framework
[73] Until August 2008, regulation of the legal profession in New Zealand
was governed by the Law Practitioners Act 1982
(“the 1982
Act”). The 1982 Act provided for the legal profession in New
Zealand to be supervised in the
first instance by District Law Societies.
These made up the New Zealand Law Society (“NZLS”). The NZLS
promulgated
rules under which lawyers practised, with enforcement of the
rules primarily being the responsibility of the District Law
Societies.
Disciplinary charges were heard by judicial bodies: a District Disciplinary
Tribunal (“District Tribunal”)
for each district and the
New Zealand Law Practitioners Disciplinary Tribunal (“NZ
Tribunal”).
[74] Complaints from the public were received by the District Law Society of which the relevant practitioner was a member. If the Council of that Society had
reasonable cause to suspect that the practitioner had been guilty of
conduct of a kind
30 Orlov, above n 29, at [4].
set out in s 106(3)(a) to (c),31 had been convicted of an offence
punishable by imprisonment or had been guilty of an offence that would render
him or her liable to
being struck off, the Council could itself investigate the
matter.32 That inquiry could be carried out either by the Council
or one or more Complaints Committees.33
[75] If, at the conclusion of its investigation, the Council or
Complaints Committee was of the opinion that the case
was of sufficient gravity
to warrant the laying of a charge, it was required to lay a charge before either
the District Tribunal
or the NZ Tribunal.34
[76] A District Tribunal could make a finding that the practitioner had been guilty of any of the types of conduct set out in s 106(3)(a) to (c) of the 1982 Act, or had been convicted of an offence punishable by imprisonment. If, having made such a finding, the District Tribunal was of the view that the case was of sufficient gravity to warrant its referral to the NZ Tribunal, it was required to refer the case to the NZ Tribunal accordingly. If the case did not meet that threshold, the District Tribunal
could make one or more of the orders specified by s
106(4).35
[77] If the matter was not referred to the NZ Tribunal, and the District Tribunal did not find the practitioner to be guilty of any of the conduct described in s 106(3) but was nevertheless of the opinion that the laying of the charge was justified, it had the power to make one or more of the orders set out in s 106(4)(e) – (i).36 These included the orders for payment of compensation, reduction of fees, reporting on
practice and the taking of advice in relation to practice
management.
31 Being misconduct, unbecoming conduct, or negligence or incompetence so as to reflect on his or her fitness to practice or bring the profession into disrepute.
32 Law Practitioners Act 1982, s 99.
33 Constituted under s 100 of the Law Practitioners Act.
34 Section 101(2).
35 Including imposing a penalty payable to the District Law Society, censuring the practitioner, placing conditions on the practitioner’s work, requiring him or her to complete work for or pay compensation to any specified person, or requiring him or her to pay to the District Law Society such sums the Tribunal thinks fit in respect of costs.
36 Section 106(5).
[78] If the matter was referred to the NZ Tribunal, and the Tribunal was of the view that the practitioner had been guilty of any of the conduct listed in s 112(1),37 it could make orders of a “more severe”38 nature, including striking the practitioner’s name off the roll, suspending the practitioner from practice for up to three years, restricting the practitioner’s ability to practise on his or her own account, fining and
censuring the practitioner.39
[79] The 1982 Act was replaced by the LCA, which came into force on 1
August
2008. Part 7 of the LCA is designed to enable complaints to be addressed,
and for disciplinary charges to be heard and determined
expeditiously.40
To achieve these goals, the NZLS is authorised to make rules to give
effect to the complaints and disciplinary framework.41
[80] That framework requires the NZLS to establish one or more
Lawyers’ Standards Committees,42 and to make rules governing
the operation of Standards Committees. Such rules must include, amongst other
things, the procedures
to be followed in relation to complaints and the manner
in which a Standards Committee is to exercise its functions and
powers.43
[81] Each Standards Committee consists of at least three persons, one of
whom must be a lay person.44 The relevant functions of these
Committees are as follows:
130 Functions of Standards Committees
The functions of each Standards Committee are (subject to any limitations
imposed on the committee by or under this Act or the rules
that govern the
operation of the committee)—
(a) to inquire into and investigate complaints made under section
132:
...
37 Being misconduct, unbecoming conduct, negligence or incompetence so as to reflect on his or her fitness to practice or bring the profession into disrepute, or that the practitioner had been convicted of an offence punishable by imprisonment
38 Orlov, above n 29, at [32].
39 Section 112(2).
40 Lawyers and Conveyancers Act 2006, s 120(3).
42 
Section 126. 
43 Section 131(a) and (b).
44 Section 129.
(c) 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 or
any other person who belongs to any
of the classes of persons described in
section 121:
...
(e) to make final determinations in relation to complaints:
(f) to lay, and prosecute, charges before the Disciplinary
Tribunal.
[82] A Standards Committee may receive complaints from any person,45 that complaint having been referred from a Complaints Service.46 The Standards Committee must consider the complaint either by inquiring into it,47 giving a direction that the parties explore the possibility of resolution by negotiation, conciliation or mediation,48 or by deciding to take no action on the complaint.49 The Standards Committee must notify the complainant and the practitioner against whom the complaint is made as to which of these procedures is being utilised as soon as practicable.50 The Standards Committee must also exercise and perform its duties,
powers, and functions in a manner consistent with the rules of natural
justice.51
[83] If the Standards Committee elects to take no further action, it must
give written notice of that fact forthwith to the complainant
and the
practitioner against whom the complaint has been made.52 That
notice must provide reasons for the decision, and advise both parties of the
right of review conferred by s 193 of the Act.53
[84] If, on the other hand, the Standards Committee decides to inquire into a complaint, it must do so as soon as practicable54 and give notice to the practitioner
against whom the complaint has been made in accordance with s
141.
45 Section 132.
46 Sections 132-135(1).
47 Section 137(1)(a).
48 Sections 137(1)(b) and 143.
49 Sections 137(1)(c) and 138.
50 Section 137(2).
51 Section 142(1).
52 Section 139(1)(a) and (b).
53 Section 139(2)(a).
54 Section 140.
[85] In the course of its investigation, the Committee may require an investigator to look into the complaint and furnish it with a report.55 It may also conduct a hearing under s 152(1), which is to be on the papers unless directed otherwise.56 The procedures to be followed in respect of hearings on the papers are set out in s 153(3)- (8). These prescribe the manner in which evidence is to be heard, as well as providing that written, but not oral, submissions may be received from both the
complainant and the practitioner. Section 151 governs the evidence
that the
Standards Committee may consider.
[86] After inquiring into the complaint and conducting a hearing with
regard to the matter, the Standards Committee may make one
or more of the
following determinations:57
(2) The determinations that the Standards Committee may make are as
follows:
(a) a determination that the complaint or matter, or any issue
involved in the complaint or matter, be considered by the Disciplinary
Tribunal:
(b) a determination that there has been unsatisfactory conduct on the
part of—
(i) a practitioner or former practitioner; or
(ii) an incorporated firm or former incorporated firm; or
(iii) an employee or former employee of a practitioner or incorporated
firm:
(c) a determination that the Standards Committee take no further
action with regard to the complaint or matter or any issue
involved in the
complaint or matter.
(3) Nothing in this section limits the power of a Standards Committee
to make, at any time, a decision under section 138
with regard to a complaint.
(4) Subject to the right of review conferred by section 193 and to section
156(4),
every determination made under subsection (1)
and every order made under section 156
or section 157
is final.
149 and 150.
56 Section 153(1).
57 Section 151(2).
[87] If the Standards Committee determines that the complaint or other
matter ought to be considered by the Tribunal, s 154
applies:58
154 Reference of complaint or matter to Disciplinary Tribunal
(1) If a Standards Committee makes a determination that the complaint
or matter be determined by the Disciplinary Tribunal,
the Standards Committee
must—
(a) frame an appropriate charge and lay it before the
Disciplinary Tribunal by submitting it in writing to
the chairperson of the
Disciplinary Tribunal; and
(b) give written notice of that determination and a copy of the charge
to the person to whom the charge relates; and
(c) if the determination relates to a complaint, give both written
notice of that determination and a copy of the charge to
the
complainant.
(2) If the person who is the subject of the complaint or matter is a
provider under the Legal
Services Act 2011, the Standards Committee must provide a written
notice of the determination to the Secretary for Justice.
[88] Unlike a Standards Committee, the Tribunal must hold its hearings in
public59 and parties are entitled to be heard in person or through
counsel.60 If misconduct or unsatisfactory conduct is proved, the
Tribunal has a wider range of orders available to it, including the more serious
orders of suspension and striking practitioners off the roll of barristers and
solicitors.61
[89] The membership of the Tribunal is larger than the Standards Committees, with a more stringent process of appointment. The Tribunal consists of a chairperson and deputy chairperson, and not less than 7 but not more than 15 lay persons. It also comprises not less than 7 but not more than 15 lawyers, of whom not less than 3 but not more than 5 must be conveyancing practitioners. The chairperson and deputy chairperson of the Tribunal must each be a person who, whether or not he or she holds or has held judicial office, is not a practitioner but has not had less than 7
years’ experience in practice as a lawyer.62
Both of these members are appointed by
58 Section 151(2)(a).
59 Section 238.
60 Sections 237 and 238.
61 Section 242(1)(c) and (e).
62 Section 230(1).
the Governor-General on the recommendation of the Minister of Justice.63
The lay members are appointed by the Governor-General on the
recommendation of the Minister (following consultation with persons identified
in s 233(1)). The members who are lawyers are appointed by the Council of the
NZLS.64
[90] The decision of a Standards Committee may be reviewed at the request
of either party (among others) by the LCRO.65 The LCRO has a duty
to conduct a review following receipt of the application,66 with the
review being conducted in private.67 Such reviews are to be
conducted with “as little formality and technicality, and as much
expedition” as is consistent
with the requirements of the LCA, proper
consideration of the review and the rules of natural justice.68
Heath J observed in Orlov that this emphasises Parliament’s
intention that complaints were to be dealt with promptly, with the rules of
natural justice
being tailored to achieve that object.69
[91] The LCRO is empowered to direct the Standards Committee to
reconsider complaints or decisions.70 Alternatively, the LCRO may
confirm, modify or reverse the Standards Committee’s decision, and may
exercise any power that the
Standards Committee could have exercised. This
includes the power to lay a charge before the Tribunal.71
The reasoning in Orlov
[92] In Orlov, counsel for the NZLS had submitted that it would be inappropriate to impose any restriction on, or threshold in respect of, the type of case that a Standards Committee could refer to the Tribunal. The NZLS contended that the imposition of a threshold would place a gloss on s 152(2)(a), and would result in the courts reintroducing a test that Parliament had deliberately discarded. Further,
although a Standards Committee is required to provide reasons for a
decision that
63 Section 230(2).
64 Section 233(2) and (3).
65 Sections 193 and 194.
66 Section 199.
67 Section 206(1).
68 Section 200.
69 Orlov v New Zealand Law Society (No 8) [2012] NZHC 2154 at [71].
70 Section 209.
71 Sections 211 and 212.
there has been unsatisfactory conduct or that no further action will be taken, it is not required to provide reasons for any decision to refer a complaint to the Tribunal. Counsel submitted that this supported the conclusion that the ability of a Standards Committee to refer a complaint to the Tribunal is not constrained in any way. Counsel also pointed out that s 154 of the LCA imposes obligations on the Standards
Committee when referring a complaint,72 but does not restrict the
type of case that it
may refer to the Tribunal.
[93] Heath J considered the LCA required the Standards Committee to evaluate complaints on a case by case basis. His Honour acknowledged that, unlike the 1982
Act, the LCA does not require a Standards Committee to determine that a complaint is “of sufficient gravity” to warrant consideration by the Tribunal. He held, however, that a similar test must necessarily be implied in order to avoid relatively trivial matters being referred to the Tribunal “at the whim of a Standards
Committee”.73
[94] Heath J considered two factors to be relevant to
determining whether a threshold test applied. The first of these
is the
differing functions and powers vested in the Tribunal on the one hand, and a
Standards Committees on the other.
[95] Heath J noted the differences in the appointment procedures between
the two bodies. He considered these indicated “the
importance of the
Tribunal’s jurisdiction in the context of the serious charges it is
expected to hear and determine”.74 He also had regard to the
following differences in the functions and powers vested in a Standards
Committees on the one hand, and
the Tribunal on the other:
(a) Only the Tribunal may make findings on charges of misconduct.
(b) Where a finding of unsatisfactory conduct is made, the Standards
Committee has extensive powers,75 but these do not include the
ability to strike a practitioner from the roll of barristers and solicitors nor
to
73 Orlov, above n 69, at [63].
74 At [65].
75 Lawyers and Conveyancers Act, s 156.
suspend him or her from practice. Those powers are reserved for the
Tribunal.76
(c) Unlike a Standards Committee or the LCRO, the Tribunal sits in
public, and parties are entitled to be heard in person
or through
counsel.77 The Tribunal is required to observe the rules of
natural justice, while the LCRO is to conduct reviews with “as little
formality
and technicality, and as much expedition” as is consistent with
the requirements of the LCA, proper consideration of the review
and the rules of
natural justice.78
(d) While a Standards Committee performs investigative, judicial and
prosecutorial functions, the Tribunal’s role is strictly
judicial.79
[96] Secondly, Heath J noted that an adversarial standard of proof had to
be met before the Tribunal could make a finding of misconduct.
Heath J
accepted, however, that this factor does not affect an assessment of whether a
threshold requirement is present.80 He also observed that there is
“no express provision [in the LCA] as to the standard to which a Committee
needs to be satisfied
before it decides what determination to make under s
152(2).”81 Referring a complaint to the Tribunal is one of
the determinations that may be made under s 152(2).
[97] These factors led Heath J to conclude that the Tribunal should only
deal with cases where there is a real risk that orders
going beyond those within
a Standards Committee’s jurisdiction may be made.82
[98] Having concluded that a threshold test ought to apply, Heath J held that the test ought to be similar to that provided by the 1982 Act. His Honour articulated the
test as being “whether there is a real risk that the practitioner
might be suspended or
76 Section 242(1)(c) and (d).
77 Sections 237 and 238.
78 Section 200.
79 Orlov, above n 69, at [78].
80 At [77].
81 At [77].
82 At [78].
struck off”.83 This test would, His Honour said, have the
advantage of “focusing” the minds of the Standards Committee on the
likely
outcomes of a consideration of a charge. It would also act as a
disincentive (“in far less likely circumstances”) to
anyone who
might be motivated by animosity or ill will towards a particular
practitioner.84
[99] Heath J concluded by stating that he had not overlooked the fact
that a Standards Committee does not have to provide reasons
for deciding to
refer a complaint to the Tribunal. His Honour commented that reasons are not
prohibited and, where they are not
given, judicial review of the decision may
still occur. In such a case the Court will consider the nature of the conduct,
as well
as the form of any charge drafted and the bases for it, in order to
determine whether the Standards Committee had exceeded its
jurisdiction.
[100] Heath J considered that, taken individually, ten of the 12
charges the Standards Committee had laid against Mr
Orlov were not sufficiently
serious to justify referral to the Tribunal. One of these contained an
allegation of misconduct based
on an alleged failure to provide a file to an
investigating committee. Counsel for Mr Hart contends that, adopting the same
reasoning
in the present case, the Standards Committee should not have
referred charge three to the Tribunal for determination.
Analysis
[101] We respectfully take a different view to that taken by Heath J in
relation to this issue.
[102] We consider the wording used in the LCA indicates that Parliament made a deliberate decision not to circumscribe or restrict the circumstances in which a Standards Committee may refer a complaint to the Tribunal for determination. Parliament’s decision to exclude from the LCA the “sufficient gravity” test
previously contained in the 1982 Act must be regarded as deliberate. It
reflects, in
83 At [80].
84 At [81].
our view, Parliament’s intention that such a test is no longer to
govern the referral of a complaint to the Tribunal for determination.
Moreover,
the LCA contains no other provisions limiting the ability of a Standards
Committee to refer a complaint to the Tribunal.
The fact that a Standards
Committee has no obligation to provide reasons for a decision to refer a
complaint to the Tribunal is
also important. It is inconsistent with the notion
that jurisdiction for referral depends upon the Standards Committee being
satisfied
that a particular threshold test has been met.
[103] In practice, Standards Committees will in most cases only refer a complaint to the Tribunal if the alleged conduct forming the basis of the complaint is sufficiently serious to warrant consideration of suspension or striking off. It is important to bear in mind, however, that the Tribunal has a significant role to play in maintaining public confidence in the legal profession. It plays an important part in determining national standards, and has a greater ability than a Standards Committee to maintain oversight of the profession at a national level. It therefore plays a vital role in assisting to achieve two of the LCA’s purposes, which are to maintain public confidence in the provision of legal services and to protect consumers of those
services.85 For those reasons we consider that some complaints
may appropriately
be determined by the Tribunal even though the likely sanction will not
involve suspension or striking off.
[104] A complaint may, for example, raise very complex factual or legal
issues. Alternatively, it may be likely to create a significant
precedent for
the legal profession. In such situations a Standards Committee could not be
criticised for referring a complaint
to the Tribunal, even where it was unlikely
that orders for suspension or striking off would ultimately be made if the
complaint
was upheld. The factual matrix of individual cases will, however, vary
infinitely. For that reason it is neither necessary nor desirable
for us to
attempt to prescribe the circumstances in which a Standards Committee should
refer a complaint to the Tribunal for determination.
[105] We accept it would be wrong for a Standards Committee to refer a
complaint to the Tribunal arbitrarily, on a whim or for a
collateral purpose.
The decision in
85 Lawyers and Conveyancers Act, s 3(1)(a) and (b).
each case will need to be made having regard to the purposes and objectives
of the LCA. It is also important that the resources
of the Tribunal are not
expended in determining trivial or inconsequential complaints. We do not
consider, however, that the risk
of inappropriate referral is high. Standards
Committees can be taken to understand the limits of their own powers and
functions,
and to be aware of the proper role of the Tribunal within the
framework of the LCA. They will also be aware of the desirability
of having
complaints determined expeditiously, and of keeping the costs of all
involved to a minimum. We therefore
consider that Standards Committees
will generally be best placed to determine which cases should properly be
referred to the Tribunal
for determination.
[106] Other practical considerations suggest that this approach is
appropriate. As in the present case, a Standards Committee may
encounter a
complaint or series of complaints arising out of different incidents. Standing
alone, some of the allegations may not
warrant referral to the Tribunal. They
may be relevant, however, when considering the nature of the orders to be made
in relation
to complaints arising out of other more serious allegations. In
that situation the Tribunal ought to be able to deal with all of
the complaints
together. Any other approach would result in fragmentation of the disciplinary
process, and would create a risk that
the Tribunal might make orders without a
full appreciation of the practitioner’s overall conduct.
[107] For these reasons we do not accept that the Tribunal did
not have the necessary jurisdiction in the present case
to determine the third
charge.
[108] Furthermore, we consider any refusal to comply with a lawful requirement made by an investigating committee to be a potentially serious matter. Any suggestion to the contrary would not be consistent with the approach taken recently in this Court. In Parlane v New Zealand Law Society (Waikato Bay of Plenty
Standards Committee No 2, for example, Cooper J
said:86
[108] The purposes of the Lawyers and Conveyancers Act include maintenance
of public confidence in the provision of legal services, protection of
consumers of legal services and
recognition of the status of the
legal
profession.87 To achieve those purposes the Act provides for what
it described as “a more responsive regulatory regime in relation to
lawyers
and conveyancers”.88 The provisions of Part 7
of the Act dealing with complaints and discipline are central to achieving
the purposes of the Act.
I consider that legal practitioners owe a duty to
their fellow practitioners and to the persons involved in administering the
Act’s
disciplinary provisions (whether as members of a Standards Committee
or employees of the New Zealand Law Society) to comply with
any lawful
requirements made under the Act. There must also be a duty to act in a
professional, candid and straightforward way
in dealing with the Society and its
representatives. It is completely unacceptable for a practitioner to engage in
what appears
to have been an abusive campaign such as Mr Parlane conducted
here.
[109] The duties to which I have referred do not exist to
protect the sensibilities of those involved in administering
the Act’s
disciplinary provisions. While courtesy is a normal aspect of professional
behaviour expected of a practitioner,
it is not an end in itself. The purpose
of the disciplinary procedures is to protect the public and ensure that there is
confidence
in the standards and probity met by members of the legal profession.
It is therefore axiomatic that practitioners must co-operate
with those tasked
with dealing with complaints made, even if practitioners consider that
the complaints are without justification.
...
[109] Similarly, in Legal Complaints Review Officer v B, Goddard J
resorted to the inherent power of the Court to compel a practitioner to provide
a file that the LCRO had lawfully required
the practitioner to produce.89
Her Honour noted that the exercise of the inherent jurisdiction was being
sought:90
[44] ... to compel compliance with the lawful directions of a
duly appointed statutory authority with a specific mandate
to ensure confidence
in the provision of legal services and to protect the consumers of legal
services. Commensurate with this is
the duty of every legal practitioner to
facilitate the administration of justice and to not wilfully obstruct the
administration
of justice by non-compliance. B’s submission that there is
no justiciable cause of action is not apt and his repeated failure
to comply
with the Legal Complaints Review Officer’s lawful requests over such a
lengthy period of time is effectively frustrating
the review to which
the complainant is lawfully entitled.
[110] We are also satisfied, for the reasons set out later in this judgment, 91 that the facts giving rise to the third charge were serious. Coupled with the other charges and
Mr Hart’s disciplinary history, we are satisfied that they were of
sufficient gravity to
87 Lawyers and Conveyancers Act, s 3(1).
88 Lawyers and Conveyancers Act, s 3(2)(b).
89 Legal Complaints Review Officer v B [2012] NZHC 1349.
90 Ibid, at [44].
91 At [196]–[210].
warrant the charge being considered by the Tribunal. This ground
of appeal therefore fails.
Third and fourth grounds of appeal - did the Tribunal err during the
hearing by failing to call witnesses who had provided evidence
in support of Mr
Hart?
[111] We are able to deal with these grounds together, because they raise
similar issues.
[112] The third ground of appeal is based on a submission that the Tribunal should not have found the first charge proved in circumstances where the complainant did not appear at the hearing. The fourth ground overlaps with the third ground, and is based on the fact that the Tribunal did not require more of Mr Hart’s witnesses to give oral evidence at the hearing. As noted above,92 the Tribunal asked counsel for the Standards Committee to arrange for one of Mr Hart’s witnesses, Ms Murray, to appear before it to give oral evidence. Counsel for Mr Hart contends that, having taken that step, the Tribunal ought to have required at least two of Mr Hart’s other
witnesses to give oral evidence at the hearing.
[113] Mr Hart indicated prior to the hearing on 16 July 2012 that he would
require the complainant in relation to the first charge
to be present for
cross-examination at the hearing. The complainant was by that stage either
living overseas, or about to depart
overseas. It is common ground that he was
not present when the hearing commenced on 16 July, and that the Tribunal did
not
require him to give oral evidence at the hearing.
[114] Counsel for Mr Hart submits that, once the complainant did not appear at the hearing, the Standards Committee ought to have withdrawn the first charge. Counsel also submits that, had the Standard’s Committee refused to do so and had Mr Hart been able to attend the hearing, he would have sought to cross-examine the complainant. Once it became apparent that the complainant would not appear, Mr Hart would have asked the Tribunal to dismiss the first charge. Had this
occurred, it is argued, it is “indisputable” that the
Tribunal would have dismissed the
92 At [67].
charge. Mr Hart therefore seeks an order quashing the Tribunal’s
determination in
relation to the first charge.
[115] To a large extent, the answer to this submission lies in our earlier conclusion93 that the reason for Mr Hart’s non-appearance at the hearing was his deliberate decision to disengage from the proceedings. This was therefore not a case of Mr Hart’s inability to appear to conduct his own defence. Once he elected not to appear, Mr Hart ran the risk that the hearing would continue in his absence. In that event he would have no ability to cross-examine witnesses, or to make submissions
to the Tribunal. If he did not arrange for his own witnesses to attend, he
had no reason to expect the Tribunal to arrange for that
to occur.
Nevertheless, we propose to consider whether the fact that the Tribunal did not
require more of Mr Hart’s witnesses
to give oral evidence led to a
miscarriage of justice.
[116] The third ground of appeal overlaps with the fourth ground because
counsel for Mr Hart submits that, in critical respects,
the evidence of the
complainant in relation to the first charge was in conflict with that given by
one of Mr Hart’s witnesses,
Mr Gardiner. He contends that the
Tribunal ought to have called Mr Gardiner to give evidence, just as it had
required
Ms Murray to give evidence. He submits that the Tribunal was not
entitled to prefer the evidence contained in the complainant’s
affidavit
over that given by Mr Gardiner when it had not heard orally from either
witness.
[117] Having reviewed the evidence of both witnesses, however, we
do not consider it was necessarily in conflict. The
relevant portions of the
complainant’s affidavit are as follows:
3 I met with Mr Hart, at his chambers in Ponsonby, on 9 May 2008, for
discussion about the work he wanted me to undertake
and the payment
arrangements. He explained that he would be applying for legal aid (and had not
yet done so) but that he might
not be able to pay my invoices immediately on the
same month they were rendered but would be able to pay very soon after, probably
within a month. I agreed to undertake the work on those terms. Nothing further
was said about legal aid or payment arrangements.
93 At [50].
4 I undertook the work for Mr Hart and issued invoices to him, dated
31 May 2008 for $3,772.35 including GST and a second and final invoice dated 30 June 2008 for $910.01
...
6. Mr Hart did not pay me over a prolonged period, and it was not until after I had submitted my complaint to the Law Society that he paid me half the invoiced amount. He paid me $2,341.18 on 20 April
2009. I have not received any further payment and remain unpaid for the
balance of the invoiced amounts.
7. I am aware that Mr Hart says that he told me that any payment was
dependent on approval of my invoices by the Legal Services
Agency, although it
is not clear to me what actually happened with that approval. Mr Hart has
simply not explained any of this
to me. I deny that he said that my invoice
had to be approved by the Legal Services Agency or that payment was dependent on
approval
by the LSA. The only discussion we had about legal aid, which was very
brief, was as I outlined earlier – that the client
was being funded by
legal aid which might mean a delay in payment of about a month after my invoices
had been rendered.
[118] Mr Gardiner’s response to the complainant’s evidence on
this point is as
follows:
11. The matters to which [Mr D] refers happened about three and a half years ago.
I do not have a precise recall as regards what occurred because of that. I have however refreshed my memory, referring to my timesheets for 9 and 10 May
2008.
...
18. I remember Mr Hart discussing legal aid with [Mr D]. He explained
that the work he was doing for [the client] was on legal
aid and that the work
that [Mr D] did would also be covered by it. I do not recall Mr Hart referring
specifically at any stage
to when invoices submitted by [Mr D] would be
paid.
19. I believe that it should have been clear to [Mr D] that
any invoice he submitted would need to be approved by
the Legal Services
Agency.
20. I note that [Mr D] does refer (paragraph 7) to the discussion about
legal aid being brief but I do not remember any specific
mention of when
approval or payment might be given. I do not believe that Mr Hart would have
given a timeframe for whatever the
Legal Services Agency might do as he had no
control over the LSA’s processing of any application or
invoice.
[119] The critical aspect of the complainant’s evidence for present purposes was that Mr Hart did not advise the complainant that his invoices had to be approved by the Legal Services Agency, or that payment for his services was dependent on
approval of the invoices by the Agency. Mr Gardiner does not contradict
these aspects of the complainant’s evidence.
Rather, his
evidence supports the complainant because he specifically recalls Mr Hart
telling the complainant that the
client was in receipt of legal aid, and that
any work the complainant did would be covered by legal aid. Nor does Mr
Gardiner say
that Mr Hart specifically told the complainant his invoices
would need to be approved by the LSA. Rather, Mr Gardiner
deposes
that “it should have been clear” to the complainant that any invoice
he submitted would need to be approved by
the Agency.
[120] For these reasons we do not consider the evidence given by the
complainant and that given by Mr Gardiner to be in conflict.
The Tribunal was
therefore not required to summons Mr Gardiner to give oral evidence at the
hearing.
[121] Counsel for Mr Hart also submits that the Tribunal should have required another of Mr Hart’s deponents, Mr Alistair Haskett, to give oral evidence in relation to the fourth charge. This charge related to the alleged overcharging of Mr A and his family. The facts in connection with this charge are more fully set out in the next
section of the judgment.94
[122] Counsel for Mr Hart contends that Mr Haskett’s written evidence
was in conflict with that given by Mr A’s sister,
Ms T. He says the
Tribunal could not properly resolve that conflict in favour of Ms T without
hearing from Mr Haskett. He contends
that resolution of this issue was critical
to the determination of the fourth charge, and that the Tribunal therefore erred
in the
manner in which it determined the fourth charge.
[123] The Tribunal did not refer to Mr Haskett’s evidence when considering the fourth charge, so it clearly did not regard his evidence as being material, let alone critical, to determination of that charge. Having reviewed Mr Haskett’s evidence, we have no difficulty in understanding why the Tribunal did not feel the need to refer to
it.
94 At [132]-[143].
[124] Mr Haskett was a barrister working in Mr Hart’s
chambers at the time Mr Hart received instructions to act
on behalf of Mr A.
Mr Haskett met with Ms T on 13 November 2008 in order to obtain initial
instructions from her, and to provide
her with preliminary advice. He also
spoke with Ms T by telephone later that same day.
[125] The relevant portions of Mr Haskett’s written evidence regarding
these attendances is as follows:
I met with [Ms T] on 13 November 2008. I was asked to meet with her on Mr
Hart’s behalf to get and provide initial information.
She provided
background about the allegations against [Mr A] and explained how he had been
declined bail in the North Shore District
Court.
I explained that legal aid may be available to [Mr A] however, Mr Hart would
not be in a position to act on that basis. [Ms T] stated
that the family would
meet legal fees. I was not asked for an estimate of fees but I did offer that
fees for the type of case were
likely to be substantial. [Ms T] stated that
she knew the fees paid to Mr Hart by her cousin, Mr Stephen [A], and added that
money
was not an issue. I am aware that Mr Hart acted for [Mr Stephen A] on a
manslaughter trial and that the fees paid in that case were
substantial.
[Ms T] was very clear that she wanted Mr Hart to act for her brother. I
explained the need for an instructing solicitor. I set
up a further meeting
between [Ms T] and Mr Hart. I am aware that Mr Hart subsequently met with [Ms
T] and that he met with [Mr A]
the next day at North Shore District Court.
...
[126] Mr Haskett annexed two internal emails to his statement. Counsel for Mr Hart contends that the information contained in the first of these was in direct conflict with material potions of Ms T’s evidence. Mr Haskett sent this email to Mr Hart at 11.02 am on 13 November 2008, summarising what he had discussed with Ms T when he had met with her earlier that morning. The relevant portion of
the email for present purpose is as follows:
Next appearance is 10 am tomorrow at AHC.
Apparently this is jointly with co-accused.
Family to meet at 2 pm today with BJH. Want to talk
further about instructing BJH and about bail and ISON.
Private retainer okay. Explained that fees for agg rob case
can be high depending on the facts and how the case progresses. [Ms
T] said
she knows how much Stephen [A] paid and there is no problem with that or more
if needed.
[127] The second email annexed is from Mr Hart to Mr Haskett in which Mr
Hart detailed the offending and concluded “money
is no option”. We
assume he meant “money is no issue”.
[128] There is some conflict between the evidence of Ms T and Mr Haskett as
to whether Stephen [A] was a cousin, and whether she
communicated, in effect,
that money was “no issue”. However the important feature of Ms
T’s evidence was that
she maintained she was never advised of the hourly
rate Mr Hart proposed to charge for his services, the basis upon which he was
to
charge for his services, and the nature and extent of the work Mr Hart would
need to undertake. The Tribunal held that Mr Hart
had an obligation to provide
that information when he was first engaged by Mr A and his family, and that he
failed to meet that obligation.
Mr Hart had instead taken the opportunity
during his meetings with the family to require them to make lump sum payments to
him
without specifying the attendances those payments would cover. Ms
Murray’s evidence conflicted with Ms T’s evidence
on whether Ms T
was advised of Mr Hart’s hourly rate, and it was for this reason the
Tribunal asked her to attend, ultimately
preferring Ms T’s
evidence.
[129] Mr Haskett’s evidence did not assist Mr Hart on this point. He
did not say that he advised Ms T of the rate at which
Mr Hart would be charging
for his services, or of the nature and extent of the work Mr Hart would need to
undertake. He told her
only that Mr Hart’s fees were likely to be
substantial. It was not therefore necessary for the Tribunal to have regard to
Mr Haskett’s evidence, or to require him to give oral
evidence.
[130] The third and fourth grounds of appeal fail as a result.
Fifth ground of appeal: fees charged to Mr A and his
family
[131] This ground of appeal relates to the finding in relation to the fourth charge that Mr Hart was guilty of misconduct by grossly overcharging his client, Mr A,95 and failing to provide members of Mr A’s family, who instructed Mr Hart and who assumed responsibility for paying his fees, with information in connection with his fees.96 For Mr Hart it is argued that the Tribunal erred in rejecting the evidence of two of the witnesses called on behalf of Mr Hart: Mr Burcher and Mr McKenzie. It is also argued that the Tribunal erred by placing too little weight on the value to the client of the work that was done, and the value to them of having a senior criminal lawyer representing Mr A. For Mr Hart, counsel submitted that the Tribunal’s approach showed a bias in its thinking – a bias toward undervaluing the work of those at the Criminal Bar. He submitted that if such work had been undertaken in a civil context, the Standards Committee would have had no issue with the fee
charged.
Background
[132] To prove this charge the Standards Committee relied upon the evidence
of Ms T (Mr A’s sister), and Ms Basnayake (a junior
solicitor who worked
in Mr Hart’s office for a short period of time). It also relied upon the
expert evidence of Mr John Billington
QC. In response to the charge, Mr Hart
filed an affidavit from himself and affidavits from two lawyers who had worked
in his office,
Ms Murray and Mr Haskett. He also provided expert evidence in
affidavit form from Mr Burcher, Mr McKenzie, Mr LaHatte and Mr
Williams.
[133] The facts as they emerged from the affidavits, and from evidence given by some deponents before the Tribunal, were as follows. Mr A was arrested and held in custody on charges of aggravated robbery and causing grievous bodily harm with intent to do so. Ms T said that she phoned Mr Hart’s office on 13 November 2008 to arrange legal representation for her brother. She spoke with Mr Haskett. It was
agreed that she would come in to Mr Hart’s offices later that day.
When she did so,
95 Contrary to Rule 9 of the Conduct and Client Rules 2008.
96 As required by Rule 3.4 of the Conduct and Client Care Rules.
she initially met with Mr Haskett. We have set out the essential features of
those discussions earlier.97
[134] Later that afternoon Ms T met with Mr Hart, who was joined in that
meeting by Mr Haskett and another young lawyer. The family
told Mr Hart that Mr
A was a young man from a stable and supportive family background, and had
previously not been in trouble with
the law. They wanted him home. The meeting
was focused mostly on bail and also on interim name suppression – both
issues
being important to the family. Ms T’s evidence was that she asked
Mr Hart about fees because she knew little about how legal
services were costed,
and costs were important to the family. She recalled that Mr Hart was evasive
about fees. She said that he
did not tell her his charge out rate, then or
later, nor did he give an estimate or indication of fees for particular stages
of work.
He did, however, ask about family assets and she told him her parents
had a freehold home.
[135] Ms T’s recollection is that Mr Hart said he needed $10,000
immediately before starting on any work. He did not explain
the nature of the
payment, nor did he explain whether it was required to cover particular
activities, or to take the case to any
particular stage. He did not mention
hourly rates. In her affidavit, Ms Murray said she was present at that meeting,
and heard
Mr Hart tell Ms T that his charge out rate was $1,000 an hour. As
earlier noted,98 Ms Murray was called by the Tribunal because of the
conflict between her evidence on this pointand that of Ms T.
[136] Ms T arranged to borrow the money from an aunt in Samoa. She gave
Mr Hart a cheque for $10,000 when they met at the North
Shore District Court the
next day. She described a lot of waiting around at the District Court, and said
that they were at the Court
from about 10 am until around 3 pm.
[137] The next significant event was a meeting with Mr Hart at his office three days later, on 17 November 2008. The purpose of this meeting was for Mr Hart to explain to Ms T her brother’s situation, and to explain the bail appeal process. Ms T said
there was little discussion about the criminal charges themselves; the
focus was on
97 At [124]-[128].
98 At [67] at [128].
bail and name suppression. Mr Hart raised the matter of fees again, and
said he required a further payment of $15,000 to
continue with the
bail appeal and application for name suppression. Ms T says that she told Mr
Hart of her father’s insistence
that he appear personally when Mr A came
before the Court, including for the bail appeal in the High Court. This was
because they
had instructed Mr Hart based on his reputation.
[138] On 19 November 2008, Ms T delivered a cheque to Mr Hart which was
again funded by her aunt in Samoa. However, on the day
before the bail appeal
was due to be heard, Mr Hart spoke with Ms T on the telephone, saying he would
not be able to conduct the
appeal. He said another lawyer, Mr Malik, would
appear instead. When she attended the Court the next day, Mr Malik was there
along
with Ms Basnayake. The appeal was dismissed, but the Judge suggested that
an application to the District Court for electronically
monitored bail
(“EM bail”) might be successful.
[139] Ms Basnayake’s evidence was that she had drafted the High Court
documents in support of the appeal against the refusal
to grant bail. This
included drafting seven affidavits concerning details of a surety offered in
support of the appeal. She also
drafted the papers in support of the
application for interim name suppression, and for the subsequent application for
EM bail.
[140] There was another family meeting with Mr Hart at his office on 1
December
2008. This took about one hour and 30 minutes, and concerned EM bail and
further interim name suppression. Mr Hart asked for payment
of a further sum of
$10,000 to cover attendances at the North Shore District Court. Ms T arranged a
further loan from her aunt in
Samoa, and delivered a bank cheque to Mr Hart at
the time of the EM bail hearing.
[141] Mr Hart appeared for Mr A at the North Shore District Court to obtain both interim name suppression and EM bail. Neither application was ultimately opposed, and both were granted. However, Ms T says that by this time she had lost confidence in Mr Hart and terminated the relationship.
[142] In Mr Hart’s affidavit he says that the charges Mr A faced were
serious and complex. Because of this it was going
to be difficult to obtain
interim name suppression and bail for him. He said he received instructions to
appear and apply for name
suppression and bail, to deal with prison authorities
and matters relating to Mr A’s general welfare, to appeal to the High
Court against the refusal to grant bail, to apply to the District Court for EM
bail, and to consult and advise Mr A including prison
visits, telephone
discussions and meetings.
[143] He said that the value of the total amount of time recorded on the
file was
$45,455.91. That sum did not reflect other considerations such as the
seriousness of the charges, the need for urgency on
many occasions and
the outcome. He considered relevant the fact that he ultimately succeeded in
securing interim name suppression
and EM bail for Mr A even though bail was
initially declined in the District Court and in the High Court on appeal. The
justification
for his accounts was, he said, set out in Mr Burcher’s
affidavit.
Expert Evidence
[144] The Standards Committee instructed Mr Billington to give his opinion
about the reasonableness of the fee. Mr Billington reviewed
the time records.
He noted that time records indicated that counsel appeared in court as
follows:
(a) 14 November. Mr Hart appeared in the District Court for a total
appearance time of 3 minutes and 20 seconds.
(b) 25 November. Two counsel appeared in the High Court in support of the
appeal for 59 minutes.
(c) 15 December. Mr Hart appeared on the unopposed bail and name suppression applications for a total of 3 minutes and 4 seconds, and
30 minutes 35 seconds respectively.
[145] Mr Billington said that it was appropriate that Mr Hart made the first appearance, but noted that he spent a good part of the day on 14 November 2008 at
the court, notwithstanding the very short appearance time. He said the
question must be asked whether, in making what was essentially
a formal
appearance, Mr Hart had explained to his clients that he would be charging
$1,000 an hour for every hour spent at court.
The issue also arose as to why he
had not asked the Registrar to call his matter either at the beginning or end of
the list to meet
his convenience as senior counsel. Mr Billington observed that
the courts are generally very accommodating of senior counsel in
this
respect.
[146] Mr Billington qualified his comments regarding the time spent by the
lawyers on particular client matters, observing
that the time spent
cannot on its own determine the reasonableness of the fees:
It is a measure of the time spent by the lawyer on a matter, efficiently or
not, and may or may not be reflected in the value to the
client.
[147] He said that to achieve an indication of what might be involved in a
matter such as this it would be reasonable to allocate
a half day for each of
the relevant matters. On that basis, Mr Hart could have estimated three half
days for the two appearances
in the District Court, together with one appearance
in the High Court. At $4,000 per half day (based on an hourly rate of $1,000),
the cost would be approximately $12,000 plus GST. To that amount should be
added some time for preparation. Allowing for six half
days, that would total
$24,000 plus GST. This would be an appropriate fee if all attendances had been
by Mr Hart, but they were
not. Most were by people who were much more junior
than Mr Hart.
[148] In relation to Mr Hart’s charge out rate, Mr Billington
observed that $1,000 is a high hourly rate even for senior counsel.
He expected
that a client would only be charged $1,000 an hour for work justifying that
rate. On that basis it was difficult to
see any justification for Mr Hart
charging $1,000 for sitting in court waiting for a case to be called, for
travelling time and for
some of the other attendances charged at that
rate.
[149] Mr Billington’s conclusion was that, on the information available and for the reasons he had set out, Mr Hart could not contend that the fees charged in the case were reasonable. If Mr Hart had been involved in all attendances the fee should not
have exceeded $24,000, but given that the majority of the work was done or
should have been done by junior lawyers, the fee should
have been
significantly less. Mr Billington said that a number of people would happily
have performed these tasks for $15,000,
and performed them well.
[150] When questioned by the Tribunal, Mr Billington accepted that the fees
had to be reviewed on the basis that Mr Hart achieved
the desired results for Mr
A. He also accepted that representing a young man such as Mr A, facing such
serious charges, was a profound
responsibility. He referred to Mr
Williams’ observation that some senior counsel can and do charge large
fees, perhaps naming
a lump sum amount for a defined task, so that the hourly
rate works out very high because the task takes relatively little time.
Mr
Billington said that such an approach is acceptable, but only if the client has
a clear understanding that that is the basis
on which he or she will be
represented and charged.
[151] Mr Billington placed significant emphasis on the provision of
information to clients early in the process so they know what
is ahead of them
and what it is likely to cost. He argued that this step is particularly
important where clients may not have dealt
with lawyers before, and were perhaps
less sophisticated than commercial clients who were more likely to ask
the practitioner
about costs. This was particularly important in a
stressful situation, where a client’s judgment might be impaired.
While
putting the scope of work in writing to clients was the best practice, not all
barristers did so. The important thing was
to explain (in terms the client
understands) what is required by the client, what can be done for them, and
whether their expectations
can be met. Mr Billington stressed that all private
clients have finite means. Ability to pay was and always is a key issue.
It is
therefore a key part of a practitioner’s role to advise clients as to how
they can conserve their resources so that the
end goal is possible. In the
present context this would require advice beyond the immediate goal, that of
obtaining bail and name
suppression, aimed at conserving resources for the
ultimate trial.
[152] Mr Hart relied upon the affidavits of Mr Burcher, Mr McKenzie, Mr Williams and Mr LaHatte. Mr Burcher described his extensive experience as a Law Society Costs Reviser, saying that he had peer reviewed or mediated in excess
of 250 costs revisions. He said that in 2003 he established a pricing
consultancy service for the legal profession.
[153] Mr Burcher said that through questioning Mr Hart and Ms Basnayake, he
had satisfied himself that Mr Hart’s time records
were accurate. He
described having conducted a survey of the hourly rates of New Zealand’s
Queen’s Counsel and Senior
Counsel and, by that means, he was satisfied
that Mr Hart’s rates sat within the parameters established by that
exercise.
[154] Mr Burcher regarded the seriousness of the charge that Mr A faced and
Mr Hart’s seniority in the profession as relevant
factors. So, too, the
urgency for Mr A’s family, who were keen to have him out of prison.
Another factor was the complexity
of obtaining interim name suppression for a
person facing such serious charges. These factors could be seen to justify an
uplift
in the fee beyond the time recorded. However, in Mr Burcher’s
opinion Mr Hart and his colleagues’ notional actual charge
out rates were
sufficiently high to adequately reflect these factors so an uplift was not
justified in this case. He was therefore
satisfied that the fees were
reasonable. He said that any residual doubt about the appropriateness of Mr
Hart’s hourly charge
out rate was met by the fact that a significant
portion of time recorded had been written off.
[155] Mr McKenzie was admitted as a Barrister and Solicitor of the High
Court in
1972 and has, apart from taking health sabbaticals and directing a venture bank for a period in the 1980s, practised as a lawyer from his admission until 2011. In his affidavit, Mr McKenzie described the analysis he had performed by applying a retrospective costing system based on Mr Hart’s file (comprising the file notes, email and correspondence). Having applied the charge out rate for each staff member to those tasks, he concluded that the attendances by the chambers justified a total fee of
$63,595 excluding GST ($71,545 GST inclusive). He noted, however, that the
calculation did not include some attendances revealed
by the affidavit of Ms
Murray.
[156] Mr LaHatte is a barrister who has practised in the field of criminal law for more than 30 years. He was asked by Mr Hart to provide an opinion on the appropriateness of the fees charged. To do this he reviewed Mr Burcher’s and
Mr McKenzie’s reports and Mr Hart’s file. He endorsed the
methodology employed by both Mr Burcher and Mr McKenzie. He
said that as the
fee charged by Mr Hart was less than the time recorded on the file, there can be
little doubt that the fee was reasonable
based purely on a time and attendance
basis.
[157] Finally, Mr Hart asked Mr Williams QC to provide an opinion
as to Mr Billington’s assessment of what would
have been an appropriate
fee for the services provided to Mr A. Mr Williams said that Mr Billington had
not approached the issue
from a practical perspective. He said it was clear
that Ms T engaged Mr Hart because she considered him to be the best in the
field,
and so must have expected to pay a reasonably high cost. He confirmed
that Mr Hart was a senior criminal lawyer, and observed that
the family’s
priorities were to obtain bail and interim name suppression, both of which Mr
Hart achieved.
[158] Mr Williams said that the usual way a barrister works is to make some
assessment of the work involved in the case and to require
a retainer, usually
through a solicitor’s trust account. When the barrister considers that
the amount of the retainer has
been consumed, he or she gives an invoice to the
client. This informs the client that another instalment is necessary. He
concluded
that:
...this particular client [Ms T] has been well served by Mr Barry
Hart and...the fees that she has paid are within the
parameters of reasonable
fees when one takes into consideration that she employed Mr Hart on the basis
that he was the best lawyer
and that he acted for her with the help of a
reasonably large team of assistants.
Tribunal’s decision
[159] The Tribunal noted that, despite requests, none of Mr Hart’s
witnesses had appeared for cross-examination except Ms
Murray, who had been
specifically asked by the Tribunal to attend.
[160] The Tribunal made a number of comments in relation to the factual narrative that emerged from the affidavits and evidence it had heard. In relation to the first attendance at the District Court, it accepted Mr Billington’s observation that Mr Hart could have handed the Registrar a note asking to have his matter called promptly
after 10 am for what was a very routine appearance. It also noted the lack
of explanation as to why such an experienced practitioner
would require two
hours to prepare for that hearing.
[161] The Tribunal referred to the conflict in evidence between Ms T and Ms Murray as to whether Mr Hart had told Ms T of his charge out rate. It considered Ms Murray’s memory of the events was poor and that she had not in fact attended the meeting she claimed, but rather the meeting on 17 November. The Tribunal
said:99
In particular the advice as to $1,000 per hour she said was likely to have been given because that was standard practice and not because she recalled that actually having occurred. “Well, at the time I swore this affidavit ... last December, what I relied on was the common practice we have.” Furthermore when asked to describe the family’s reaction to the figure of
$1,000 per hour being mentioned, she was unable to do so. Ms Murray further
conceded that she must have been in error about the
$10,000 figure.
[162] The Tribunal said that to the extent Ms T’s account conflicted
with that of Ms Murray’s in relation to the 17
November meeting, it
preferred Ms T’s account. It said of Ms Murray’s
evidence:100
Indeed, we were most concerned with one of her passages of evidence
where, in response to the issue of whether the family
was aware of the $1000
hourly rate she described them as “desperate” and thus willing to
pay anything. She did not appear
to understand that this level of vulnerability
in clients imposes a significantly greater obligation upon a lawyer to be very
clear
in explaining the level of charges and how they are incurred.
[163] In relation to the appeal to the High Court against refusal of bail,
the Tribunal observed that all of the documents prepared
for the appeal,
specifically the submissions and seven affidavits concerning
sureties, were drafted by Ms
Basnayake. At that time Ms Basnayake had
been admitted to the bar for just two months. While Ms Basnayake was charged
out by Mr
Hart at $175.00 per hour, her hourly cost to Mr Hart was $20.00 per
hour.
[164] The Tribunal then addressed the application for EM bail,
referring to
Ms Basnayake’s evidence that she had re-used the contents of the
affidavits and
99 At [73].
100 At [149].
submissions prepared for the High Court appeal to support the subsequent applications for EM bail and for continued interim name suppression. She also undertook the necessary liaison and negotiation with various authorities to prepare the reports in respect of the application for EM bail. The Tribunal commented that she clearly did an excellent job of this, because Police consent to both applications
was indicated in advance of the hearing. The Tribunal
said:101
Despite this consent, Mr Hart has recorded in his time records a total of
four hours 55 minutes in the three days leading
up to and including
the appearance for the consent orders. This time is recorded as
“preparation” and “review”.
[165] The Tribunal said it was implicit in the evidence offered on behalf
of Mr Hart that some of the recorded time was purportedly
spent checking Ms
Basnayake’s work. The Tribunal said that while it could not exclude the
possibility that Mr Hart did spend
time reviewing her work, it noted Mr
Billington’s evidence that a highly experienced practitioner would take a
matter of minutes
to review documents such as these. For that reason, the
Tribunal expressed itself as puzzled by the recording of four hours and
55
minutes by Mr Hart for these attendances.
[166] The Tribunal said that in order to address the “grossly
excessive costs” aspect of the alleged misconduct, it
was necessary to
consider Rules 9 and 9.1 of the Conduct and Client Care Rules.102
Rule 9.1 provides:
9.1 The factors to be taken into account in determining
the reasonableness of a fee in respect of any service
provided by a lawyer
to a client include the following:
(a) the time and labour expended:
(b) the skill, specialised knowledge, and responsibility required to
perform the services properly:
(c) the importance of the matter to the client and the results
achieved:
(d) the urgency and circumstances in which the matter is
undertaken and any time limitations imposed, including
those imposed by
the client:
101 At [81].
102 At [85].
(e) the degree of risk assumed by the lawyer in undertaking the
services, including the amount or value of any property involved:
(f) the complexity of the matter and the difficulty or novelty of the
questions involved:
(g) the experience, reputation, and ability of the lawyer:
(h) the possibility that the acceptance of the particular retainer
will preclude engagement of the lawyer by other clients:
(i) whether the fee is fixed or conditional (whether in litigation or
otherwise):
(j) any quote or estimate of fees given by the lawyer:
(k) any fee agreement (including a conditional fee agreement)
entered into between the lawyer and client: (l) the reasonable costs of running a practice:
(m) the fee customarily charged in the market and locality for similar
legal services.
[167] The Tribunal assessed and traversed the evidence adduced on
behalf of Mr Hart, including the evidence of Mr Burcher,
Mr McKenzie, Mr
LaHatte and Mr Williams. It said that Mr Burcher was clearly the primary source
relied upon by Mr Hart, and that
the other witnesses added little to the
assessment required to be undertaken by the Tribunal. For that reason the
Tribunal had
put Mr Burcher’s affidavit, in all important respects, to Mr
Billington.
[168] It noted Mr Billington’s seniority and his breadth of
experience. It noted the difference in approach between Mr
Billington and
Mr Burcher. It said that Mr Burcher’s starting point for analysis of
what constitutes a reasonable fee
was the amount of time and labour expended at
the established hourly rate for Mr Hart and other practitioners. From that
point,
he offered his opinion on the various factors to be given
weight.
[169] Mr Billington’s approach was different. He worked backwards, not simply from the time records, but also by assessing what was actually done, including the attendances he enumerated and allowing a reasonable time for prison visits and normal ongoing communications with members of the client’s family. Whilst agreeing with Mr Burcher that the time spent on a job at the relevant hourly rate
would tell you what the job cost you, Mr Billington pointed out that it did
not tell you what the job was actually worth.
[170] The Tribunal commented on Mr Burcher’s omission to provide an
opinion on whether the time expended was reasonable having
regard to the type of
work undertaken:103
No doubt that might have proved difficult for a practitioner
lacking experience in this field, and may have been omitted
because it was
beyond his expertise. Unfortunately, that is a serious omission because that is
one of the central issues to be determined
in this case.
[171] It noted Mr Burcher’s opinion that any residual doubt about the appropriateness of Mr Hart’s hourly charge out rate was more than adequately addressed by the fact that he billed less time than he had recorded. The Tribunal said this was not a justifiable view if the billable time was objectively excessive for the
task performed. The Tribunal concluded:104
For reasons already outlined Mr Burcher’s evidence was unable
to be properly tested and we were left with question
marks over some aspects of
it. Given the particular expertise lacking in this field of legal practice,
where the evidence of the
experts differ, we prefer the evidence of Mr
Billington. We also consider the evidence [of Mr Burcher] to be flawed
in
not examining the reasonableness of time taken for particular
tasks.
[172] In relation to Mr McKenzie’s evidence, the
Tribunal observed that Mr LaHatte referred to Mr McKenzie
as being
“currently engaged as a law clerk for Barry Hart”.105
The Tribunal said that, as such, they did not consider his evidence to be
independent. In any event, the Tribunal felt that his
evidence largely failed
to address the central issue of the value of the work or reasonable levels of
charge in relation to the type
of work undertaken. For that reason, the
Tribunal gave it little weight.
[173] Finally, in relation to Mr Williams’ affidavit, the Tribunal
noted that he did
not touch on the fees charged or the time spent.
[174] The Tribunal summarised its position in relation to overcharging
as follows:
103 At [121].
104 At [125].
105 At [115].
[152] .... we consider that $35,000 does constitute gross overcharging for the very standard form of criminal work involved in this file, despite its seriousness to the client. We accept that a senior lawyer, as Mr Hart is, is entitled to charge at a high rate for his services in acting for a first time offender facing very serious charges. However we accept the evidence of Mr Billington that this work could have been comfortably carried out even at Mr Hart’s very high hourly rate for between $15,000 to $16,000. This would include allowances for the work of junior barristers to support Mr Hart. We consider $1000 an hour for this type of work as probably not justified, however it is not necessary to finally rule on that matter because even at that rate the amount by which the Hart fee exceeds a reasonable fee for the work done (excluding GST) is between 95 percent and 107 percent. We consider this to be gross overcharging.
[153] We certainly cannot see how Mr Hart could justify seven hours at
$1000 per hour for the first attendance at the District Court, nor indeed the
“preparation and review” of almost
five hours charged at
that rate, in addition to the hours for the actual appearance on 15
December. We consider
that charging such an excessive fee in itself would
constitute professional misconduct, but if we are wrong in that when combined
with Mr Hart’s actions in failing to properly advise the clients about his
hourly rate and the attendances for which they
would be charged,
professional misconduct is certainly made out. For example Ms T’s
evidence was that many family members
were telephoning Mr Hart’s
chambers to ask questions, sometimes in a repeated fashion. She said that had
they known
they were going to be charged for telephone calls they would have
coordinated their actions carefully and thereby sought to minimise
the costs.
They were completely ignorant as to the manner of charging and this speaks of
extremely poor client communication on the
practitioner’s
part.
Analysis
[175] In the written submissions filed for Mr Hart in this Court, it was
submitted that the Tribunal erred in rejecting the evidence
of Mr Burcher and Mr
McKenzie. Although counsel for Mr Hart did not address this issue in oral
argument, he did not abandon it and
so we address it here. Counsel argued that
it was erroneous for the Tribunal to prefer Mr Billington’s evidence to
that of
Mr Burcher on the ground that Mr Burcher was not an experienced criminal
lawyer, particularly when Mr Burcher’s opinion was
endorsed by Mr LaHatte.
He also argued that the Tribunal erred in criticising Mr Burcher for not
considering the reasonableness
of time taken for particular tasks.
[176] The basis on which the Tribunal weighed Mr Burcher’s evidence against that of Mr Billington’s was conventional. Having considered the expert evidence, we find ourselves in agreement with the Tribunal and for the reasons it gave. The
exercise undertaken by Mr Burcher (and for that matter Mr McKenzie) was of a
mechanical nature. It placed too much emphasis on the
time recorded, and paid
insufficient regard to the value of the task done and to the steps available to
a responsible practitioner
to achieve the task in a reasonably economical
fashion. At the heart of the Tribunal’s rejection of Mr Burcher’s
evidence
was its view that the time recorded was excessive for the nature of the
tasks undertaken. Mr LaHatte’s endorsement of Mr
Burcher’s
affidavit does not assist as Mr LaHatte himself endorsed a flawed
methodology. Mr LaHatte did not carry
out the exercise that was undertaken by
Mr Billington to assess the reasonableness of the time recorded, or what the
tasks were worth.
[177] The Tribunal was likewise justified in rejecting Mr McKenzie’s
opinion. As the Tribunal observed, Mr McKenzie’s
approach was flawed in
that he failed to address the central issue of the value of the work or the
reasonableness of the level of
charges. The Tribunal was also correct
to take into account the fact that Mr McKenzie was working for Mr Hart as
a
law clerk at the time he prepared his evidence. That highly relevant fact
does not emerge from Mr McKenzie’s own affidavit,
but was instead
mentioned by Mr LaHatte in his affidavit.
[178] Counsel for Mr Hart argued during the hearing that the fees were reasonable when regard is had to what was achieved for Mr A, and the fact that the family secured Mr Hart’s services for the trial. For this argument he relied upon the affidavit of Mr Williams. He says that when the issue is addressed in this way, the amount of
time recorded becomes a red herring.106 This argument is
inconsistent with how
Mr Hart has previously sought to justify his fee. The evidence of both Mr Burcher and Mr McKenzie relied upon the amount of time recorded as the starting point for substantiating the reasonableness of the fee. In any case, in the course of giving its decision the Tribunal specifically considered whether the fee was reasonable having regard to Mr Hart’s seniority and to the fact that he achieved interim name
suppression and EM Bail. It accepted the evidence of Mr Billington that
it was not.
[179] We
have read all of the expert evidence, including the evidence of Mr
Billington both in his affidavits
and before the Tribunal.
We found Mr Billington’s evidence compelling. The tasks undertaken by
Mr Hart for
Mr A could and should have been achieved at a far lower cost to the
family. Mr Hart seems to have made little or no attempt to
manage the cost of
the work done. Although some of the information as to time recording is
puzzling, we are persuaded by Mr Billington’s
evidence that the fees were
far too high. Further, the suggestion of bias on the part of the Tribunal lacks
credence given that
it relied upon the opinion of a very senior criminal lawyer
in reaching its view.
[180] We also wish to say something about Mr Hart’s communication
with Mr A’s family, which his counsel conceded was
inadequate. It emerges
from the evidence filed on behalf of Mr Hart that the family were seen as ready
to pay anything to help Mr
A, as they were “desperate”, with
“money no [issue]”. Even if that was the impression Mr Hart
gained, it
provided no justification for charging more than the work was worth.
To take that approach would be to exploit the client, and that
is something a
lawyer must not do. It would have been open to Mr Hart to say that he would
only do the work for a defined sum.
But he did not do that. We also think
there is much in the approach suggested by Mr Billington that a lawyer should
assist the client
to ensure that funds remain for the ultimate defence campaign,
rather than exhaust resources during early skirmishes. Such a conversation
seems never to have occurred here. Nor was there any communication from Mr Hart
about the likely cost of each phase of the criminal
justice process. We
consider the degree of communication between Mr Hart and the family to have been
wholly inadequate.
Sixth ground of appeal - was striking off a disproportionate
response?
[181] There is no dispute regarding the principles to be applied in this
context. In
Dorbu v New Zealand Law Society this Court said
recently:107
[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.108 Professional misconduct
having
107 Dorbu v New Zealand Law Society [2012] NZHC 564; [2012] NZAR 481 (HC).
108 Law Practitioners Act, s 113 and Lawyers and Conveyancers Act, s 244.
been established, the overall question is whether the practitioner’s
conduct, viewed overall, warranted striking off.109 The Tribunal
must consider both the risk of reoffending and the need to maintain the
reputation and standards of the legal profession.110 It must also
consider whether a lesser penalty will suffice. The Court recognises that the
Tribunal is normally best placed to assess
the seriousness of the
practitioner’s offending.111 Wilful and calculated
dishonesty normally justifies striking off.112 So too does a
practitioner’s decision to knowingly swear a false affidavit.113
Finally, personal mitigating factors may play a less significant role than
they do in sentencing.
The approach taken by the Tribunal
[182] The Tribunal declined to determine the issue of penalty by analysing
individually the three charges it had found proved.114 Instead, the
Tribunal found the most salient features of Mr Hart’s conduct to
be:115
(a) The fact that three different types of misconduct had been established; (b) Mr Hart’s previous disciplinary history; and
(c) The lack of any remorse.
[183] Having regard to these factors, the Tribunal was “absolutely clear” that the seriousness of the misconduct could not be adequately addressed by means of a lesser penalty such as a fine or censure.116 The Tribunal considered that a total overview of Mr Hart’s conduct, including the way in which he had responded to the proceedings before it, led to the conclusion that the public required protection from him.117 As a consequence, only three outcomes were possible. These were: an order
that he be struck off, an order suspending him from practising for a
specified period,
109 Wellington District Law v Cummins [1998] 3 NZLR 363 (HC).
111 Bolton, above n 110, at [14].
and [19]; and Barristers’ Board v Young [2001] QCA 556 at [15]- [17].
114 Auckland Standards Committee No 1 v Hart [2012] NZLCDT 26 at [58].
115 At [59].
116 At [54].
117 At [60].
or an order permitting him to practise only under the supervision of another
practitioner.
[184] The Tribunal noted that Mr Hart had not put forward any proposal that
he practise under the supervision of a named practitioner.
The only realistic
options, therefore, were orders for strike off or suspension. The Tribunal held
that an order striking Mr Hart
off was the appropriate response for the
following reasons:
[68] We accept that striking off, particularly in a practitioner of such
seniority, is a last resort response. We have grappled
as to whether a
significant period of suspension would suffice. The essential issue is whether
the practitioner is a fit and proper
person weighing all of the conduct
discussed. Likelihood of rehabilitation is also relevant to suspension
considerations.
[69] Had Mr Hart approached the various investigations to these
proceedings differently, and had there been a less serious recent
disciplinary
history, suspension would have been the option adopted. But the arrogant and
derisory manner in which he has approached
any complaint – right up
to the penalty hearing where he attempted to defend his failure to produce
yet another file
for inspection following a complaint, has meant that we can
have no confidence in either his rehabilitation or protection of the
public
by ensuring there is no risk of reoffending. The practitioner’s
approach is crucial as discussed in our
review of the Fendall decision
where the practitioner’s fulsome acceptance of responsibility clearly had
a strong role in the Tribunal adopting which
could be described as a very
compassionate penalty (upheld on appeal).
[70] By comparison Mr Hart sought to justify his failure to produce
files to his disciplinary body right to the end of his penalty
hearing. We have
referred to the delay and prevarication and the difficulties in discovery. We
consider that there was a deliberate
advance attempt to frustrate the hearing in
July by not having witnesses available, including advanced arrangements for
video conferencing
of the expert which had been previously approved by the
Tribunal. This demonstrates not only a pattern of obstruction but also a
lack
of remorse and inability to change.
[71] [Suppressed material].
[72] We accept Mr Collins’ submissions that Mr Hart’s
attitude to a distressed and vulnerable family was exploitative
and that there
was a lack of integrity in his whole approach to the family, demanding payment
of large sums of money without clear
communication as to how this was to be
applied, and what work would be undertaken.118
[73] We put these factors against the mitigating factors put before us.
We have noted his pro bono and Howard League contributions.
This practitioner
has had a long career where many of his clients refer to “good”
outcomes. We do however note that
mere advocacy with fierce determination is
not to be confused with “the
118 Auckland Standards Committee No 1 v Hart [2012] NZLCDT 20 at [141].
discharge of ... professional duties with integrity, probity and complete
trustworthiness” (Bolton).119 The flavour of the
submissions in mitigation and the references provided was that because there was
hard work and determined advocacy,
that this equated with integrity. We
disagree and do not consider that these positive attributes compensate for the
deficits demonstrated
repeatedly over a long period of time. Mr King’s
submission that the practitioner “could change” is contradicted
by
his other submission that it is understandable that someone who has had years of
experience of taking every point to advance a
client’s position might not
fall into line when his own behavior is challenged. It also fails to take
[into] account that,
at most times, Mr Hart has had legal representation. The
submission is insufficiently reassuring when set against the pattern of
behaviour demonstrated by previous offending and the manner of conduct in each
of the disciplinary processes in which he has been
involved.
Discussion
[185] As the Court noted in Dorbu, the ultimate issue 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.
[188] For the same reason, the practitioner’s previous disciplinary history may 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
119 Bolton, above n 110, at [65].
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.
[190] In the present case, several factors are relevant to the assessment
of whether Mr Hart is not fit to remain in practice as
a lawyer. The first of
these is the nature and effect of the conduct giving rise to the present
charges.
1. The nature and effect of the conduct giving rise to the present
charges
(a) The first charge
[191] Standing alone, the conduct disclosed in relation to the first charge would not be sufficient to warrant either suspension or striking off. As the Tribunal found, it amounted to misconduct at the lower end of the scale.120 Nevertheless, Mr Hart engaged the services of a private investigator in circumstances where he failed to advise that investigator that payment of his account was subject to approval by the LSA. As a consequence, the investigator’s account in the sum of $4,682.36 was not
paid when legal aid was subsequently declined. The Tribunal, rightly in our
view, described Mr Hart’s conduct in this context
as being cavalier in his
professional responsibility to the complainant. It therefore brought the legal
profession into disrepute.
[192] The significance of the first charge in the present context is that
in August
2012, shortly before the penalty hearing in the present case, a Standards Committee of the Auckland District Law Society found Mr Hart guilty of two charges involving unsatisfactory conduct. Both arose as a result of similar conduct to that found to be established in relation to the first charge. In each case Mr Hart had instructed an expert to carry out work on behalf of a client, and had failed to pay the expert’s
account.
120 At [24].
[193] On 14 November 2012, another Standards Committee found Mr Hart guilty
of unsatisfactory conduct by failing to pay amounts
owing to a forensic
psychologist whom he had instructed on behalf of a client. On two occasions he
had received payments from the
LSA to cover outstanding invoices rendered by the
psychologist, but had failed to use the funds to pay the invoices.
[194] Mr Hart entered into an arrangement with the psychologist to
pay the invoices prior to the point at which the Standards
Committee determined
the complaint. The Standards Committee nevertheless found that Mr Hart’s
failure to pay the invoices
after he had received payments from the LSA was at
the higher end of unsatisfactory conduct. The Standards Committee censured Mr
Hart, and fined him $8,000. It also ordered him to pay costs in the sum of
$2,000.
[195] These incidents demonstrate that the conduct giving rise to the first
charge
cannot be regarded as an isolated, or “one off”,
incident.
(b) The third charge
[196] The third charge was laid after one of Mr Hart’s clients, Mr W,
asked the Auckland District Law Society to revise
the fees Mr Hart had
charged Mr W between September 2004 and June 2006. Mr Hart and Mr W
subsequently settled their dispute
in or about May 2007, but only after Mr
W’s counsel had obtained confirmation from the Society that settlement of
the dispute
would not prevent the Society from continuing to investigate the
appropriateness of Mr Hart’s fees.
[197] In May 2008, the Society’s Complaints Committee No 2 resolved under s 99 of the Law Practitioners Act to investigate the level of fees charged. The Committee advised Mr Hart of its resolution on 30 June 2008, and asked him to respond to Mr W’s complaint. Despite several extensions of time being granted at the request of Mr Hart’s counsel, no response had been provided by 10 October 2008. By that stage the transitional provisions of the LCA had come into effect, and the s 356
Standards Committee took over the investigation into the fees rendered to Mr W.
[198] On 6 November 2008, the Standards Committee notified Mr Hart’s counsel that it had resolved to require Mr Hart to produce Mr W’s files to it for inspection.121
Thereafter Mr Hart and/or his counsel sought further extensions of time within which to respond to Mr W’s allegations.122 The Committee granted these, finally granting an “absolute final extension” until 19 December 2008. This was followed by yet another extension until 13 March 2009. The Tribunal regarded 13 March
2009 as being the final date by which the Committee required Mr Hart to
produce
Mr W’s files for inspection.
[199] By 15 May 2009, however, the Standards Committee had received no response from Mr Hart or his counsel. On that date it resolved to investigate Mr Hart’s failure to produce the files as an “own motion” inquiry. It notified Mr Hart of its resolution on the same date, and asked him to respond to it by 11 June
2009.
[200] Mr Hart did not produce the files or respond substantively to the Committee over the next two months. As a consequence, on 31 July 2009 the Committee advised him that it would conduct a hearing to consider the matter on 18 September
2009.
[201] This prompted Mr Hart to assert that the Standards Committee had no jurisdiction to hear and consider the matter. After several adjournments this assertion was ultimately the subject of a hearing on 20 November 2009, and was rejected by the Committee on the same date. At that point the Standards Committee resolved to place Mr Hart’s failure to produce the file before the Tribunal in the form of a charge of misconduct by obstructing the Complaints Committee and the
Standards Committee.123
[202] We were advised during the hearing that Mr Hart did not produce the files to the Standards Committee until 25 September 2012, approximately two weeks after
the Tribunal delivered its penalty decision.
121 Law Practitioners Act, s 101(3)(d) and (e).
122 Extensions were sought on 18 November 2008, and 4 and 5 December 2008.
123 Lawyers and Conveyancers Act, s 262.
[203] Although Mr Hart was undoubtedly guilty of delay in responding to the Standards Committee during the period leading up to 20 November 2009, we consider the most serious aspect of this charge relates to the period between 20
November 2009 and 25 September 2012. The Tribunal rejected Mr
Hart’s jurisdiction argument on 20 November 2009,
and he did not
take any steps to challenge that decision. Thereafter, he had no justifiable
reason to withhold the files, and
he has not provided any explanation for this
failure.
[204] Several factors assume significance when considering the nature and effect of this charge. First, it cannot be described as inadvertent. Mr Hart had known since 6
November 2008 that the Standards Committee required him to produce his files.
He and/or his counsel had sought several extensions
of time within which to
respond, but by 13 March 2009 they had taken no steps to comply with the
requirement that he produce the
files for inspection.
[205] By October 2009 Mr W had provided a written waiver of privilege; Mr Hart could not, therefore, withhold the files on the basis of client confidentiality or privilege. Once the Standards Committee rejected his jurisdictional argument on 20
November 2009, he knew there was no further basis upon which he was entitled
to withhold the files any longer. From that point onwards,
he was consciously
disregarding the Standard Committee’s requirement that the file be
produced.
[206] Secondly, the failure to produce the files continued for a very
considerable period. Even taking 20 November 2009 as the
latest date by which
the files should have been produced, the failure continued for nearly three
years.
[207] Thirdly, this failure effectively prevented the Standards Committee from advancing its investigation into the appropriateness of the fees Mr Hart had charged Mr W. By mid-2008 Mr W was residing in China. As a result, the Standards Committee needed to gain access to the material contained in Mr Hart’s files in order to understand the nature and extent of the work he had carried out for Mr W. Without that material, and in the absence of any detailed response from Mr Hart, the Standards Committee could take matters no further.
[208] These factors persuade us that the Tribunal was correct to regard the
failure as a reasonably serious form of misconduct.
Any deliberate refusal by a
practitioner to comply with a lawful requirement made by a Standards Committee
tasked with investigating
a complaint must be regarded as serious. It indicates
a lack of candour that may be significant when considering the fitness of
a
practitioner to remain in the legal profession.
[Paragraphs [209] and [210] are suppressed from publication as
they are subject to pre-existing suppression orders made
by this Court in
another proceeding]
[209] The seriousness of this conduct is exacerbated by the fact that this
is not the first occasion on which Mr Hart has failed
to produce his files for
inspection when requested to do so by a body authorised to seek production of
his files. [Suppressed material].
[210] [Suppressed material].
(c) The fourth charge
[211] The fourth charge, which relates to overcharging, is also
marked by aggravating factors. In particular, we agree
with the
Tribunal’s conclusion124 that Mr Hart’s attitude towards
Mr A and his family was exploitative and showed a lack of integrity.
[212] Mr Hart’s clients were vulnerable in several respects. First, they were vulnerable because of their lack of knowledge about the criminal process. The wider family, who were meeting Mr Hart’s fees, had not previously encountered the criminal justice system in New Zealand. As a consequence, they had no appreciation of the manner in which it worked, or the nature and extent of the work Mr Hart would be required to undertake to achieve a satisfactory outcome. They therefore
had no means of assessing whether or not the fees he charged were
reasonable.
124 [Suppressed material].
[213] Secondly, the family was extremely anxious to achieve an outcome that
saw their relative released on bail. This rendered
them vulnerable to paying an
inflated fee in order to ensure that they achieved that outcome.
[214] We endorse the Tribunal’s finding that in these circumstances
Mr Hart had an obligation to inform the family of the
work he would be required
to do, and the basis upon which he proposed to charge for that work. Mr Hart
failed to meet that obligation.
Instead, he charged the family large sums of
money without providing any explanation regarding the nature of the services he
intended
to render, or how he proposed to charge for them. We agree that the
conduct giving rise to the fourth charge amounted to reasonably
serious
misconduct.
[215] The conduct giving rise to the fourth charge is further aggravated by
the fact that this is not the first occasion on which
Mr Hart has been found to
have overcharged clients. On 3 March 1982, the New Zealand Law Society
Disciplinary Committee found Mr
Hart guilty of professional misconduct by
charging a fee that was grossly excessive. On this occasion Mr Hart was
censured and ordered
to pay a fine of $750, together with costs in the sum of
$2,750. We acknowledge that this concerned events that occurred approximately
30 years prior to the penalty hearing. However, there have been other instances
in which Mr Hart has overcharged clients.
[216] On 12 March 2010, a Standards Committee of the Auckland District Law
Society upheld two related complaints involving allegations
that Mr Hart had
overcharged a client. The Standards Committee found that in overcharging his
client, Mr Hart had engaged
in conduct unbecoming a law practitioner.
The Standards Committee reduced the fees from $10,000 to $5,000, and fined Mr
Hart
the sum of $2,000. It also ordered him to pay costs of $1,000. These
orders were upheld on review by the LCRO.
[217] On 14 June 1010, a Standards Committee upheld another complaint involving alleged overcharging. It held that this amounted to unsatisfactory conduct in the form of conduct unbecoming a law practitioner. The Committee reduced Mr Hart’s fee from $8,437.50 to $1,250, and ordered him to pay costs. Again, the LCRO upheld these orders.
[218] On 11 July 2011, a Standards Committee determined that it would take
no further action in respect of a complaint alleging
that Mr Hart had provided
poor quality service to a client. The LCRO reversed the Standards
Committee’s decision, and held
that Mr Hart’s conduct amounted to
unsatisfactory conduct. The LCRO censured Mr Hart, and ordered him to pay
compensation
in the sum of $5,000. Mr Hart was also ordered to reduce his fee by
$5,000, and directed to pay a total sum of $10,000 to the
complainant.
[219] Mr Hart’s disciplinary history therefore strongly
suggests that he has a tendency to overcharge clients, and
that previous
sanctions have not deterred him from engaging in that type of
conduct.
2. The manner in which Mr Hart responded to the present
charges
[220] There are two aspects to this issue. The first relates to the events
leading up to the hearing on 16 and 17 July 2012. The
second relates to the
manner in which Mr Hart responded to the charges after the Tribunal had found
the charges proved.
(a) The events leading up to the hearing on 16 and 17 July
2012
[221] We have already summarised the events leading up to the hearing on 16
and
17 July 2012.125 Although Mr Hart was not solely responsible
for the substantial delay that occurred in having the charges heard, we have
accepted
the Tribunal’s conclusion that the events that occurred prior to
the hearing reveal extraordinary delay and prevarication on
the part of Mr
Hart.126
[222] We have also already referred to Mr Hart’s delay in providing
his file in connection with the fourth charge.127 He has not
provided an explanation as to why he was unable to provide his file when
originally asked to do so by the Tribunal.
[223] We have also accepted128 the Tribunal’s conclusion
that Mr Hart made a deliberate decision to disengage from the hearing scheduled
for 16 and 17 July
2012.
125 At [36]-[45].
126 At [50].
127 At [47].
This placed the Tribunal in a very difficult position, because it meant that
it had to carefully determine whether it was possible
for Mr Hart to have a
fair hearing notwithstanding his deliberate decision to disengage from the
disciplinary process. Having decided
to proceed with the hearing, the Tribunal
was obliged to conduct the hearing in a scrupulously fair manner in order to
ensure that
Mr Hart’s interests were properly protected. In a sense,
the Tribunal became responsible by default for conducting Mr
Hart’s
defence.
[224] The manner in which Mr Hart treated his obligations to the Tribunal
was, in our view, an extremely serious matter. Public
confidence in the legal
profession depends significantly upon the premise that practitioners will
co-operate fully in the investigative
phase of the disciplinary process. By
co-operation, we mean, as a minimum, that they will comply promptly
with lawful
requests made by investigating bodies and with timetables
imposed. Mr Hart did not meet that minimum requirement. Rather,
he
deliberately obstructed the investigation and misused the processes of the
disciplinary bodies for the purpose of delay. We
therefore agree with the
Tribunal’s conclusion that the manner in which Mr Hart elected to respond
to the disciplinary process
was highly relevant to the issue of
penalty.
(b) Mr Hart’s response to the Tribunal’s liability
decision
[225] Another significant issue in this context is the manner in which Mr
Hart responded to the findings that the Tribunal made
in its liability decision.
He was represented by counsel at the penalty hearing on 27 August 2012, and was
therefore in a position
to respond fully to the issues raised by that the
Tribunal’s liability decision.
[226] It would have been obvious to Mr Hart and his counsel by this stage that they needed to persuade the Tribunal that those issues could be adequately addressed by means of a lesser order than striking off. For that reason it was important for the
Tribunal to be satisfied that Mr Hart had insight into the events that
had given rise to
128 At [68].
the charges. Acceptance of at least a degree of responsibility for those
events may also have assisted with persuading the Tribunal
that the protection
of the public did not require Mr Hart to be struck off.
[227] The transcript of the penalty hearing makes it clear, however, that
Mr Hart was largely content to rely upon character references
provided by other
members of the legal profession to establish he was a fit and proper person to
remain in practice. These provided
an evidentiary foundation for his counsel to
submit that Mr Hart was an extremely hard working and committed advocate, who
was regularly
prepared to act on a pro bono basis and had always done his utmost
to achieve the best available outcome for his clients.
[228] His counsel also submitted that Mr Hart’s principal
shortcomings were in failing to properly attend to matters of administration,
and failing to communicate properly with others. He argued that these
deficiencies were principally due to the enormous demands
made on Mr
Hart’s time as an experienced and highly successful criminal advocate. In
that sense he argued that Mr Hart could
be viewed as a victim of his own
success. Mr Hart’s counsel also pointed out that legal aid requirements
have altered considerably
in recent years, and that in his dealings with experts
whom he instructed, Mr Hart may have naively acted on the basis of legal aid
requirements that were out of date.
[229] These submissions may have some relevance to the conduct underlying
the first charge relating to the failure to pay an expert
engaged on behalf of a
client. They do not, however, demonstrate any insight or understanding by Mr
Hart into the nature and gravity
of the conduct underlying the third and fourth
charges. Mr Hart’s counsel went no further at the penalty hearing than to
submit
that Mr Hart was “smart enough” to know that he must change
his way of reporting to clients and his way of obtaining
instructions.
[230] There is nothing in the material before the Tribunal, or in the material presented to us at the hearing, to suggest that Mr Hart fully comprehends the nature and gravity of the conduct of which he has been found guilty. There is also little to
suggest that he accepts responsibility for it or that he is committed to
changing the manner in which he interacts with others in
his professional
life.
[231] Another issue we consider to be material is Mr Hart’s failure
to comply with the Tribunal’s order requiring him
to repay the sum of
$20,000 to the complainant in relation to the fourth charge. During the penalty
hearing, Mr Hart’s counsel
advised the Tribunal that Mr Hart accepted it
was appropriate to make that order. He also told the Tribunal that Mr Hart had
advised
him the payment could be made within 14 days. To date, however, Mr Hart
has not complied with the order, and he has never provided
an explanation for
his failure to do so.
[232] During the hearing, counsel now appearing for Mr Hart
advised us that Mr Hart’s financial position had
deteriorated
significantly following the hearing before the Tribunal, preventing him from
making the payment. We do not consider
this to be an adequate explanation. Mr
Hart must have known at the time of the penalty hearing whether or not he would
be in a
position to pay the sum of $20,000 within the next two weeks. His
failure to make the payment calls into question his bona fides
in dealing with
the Tribunal. It raises an issue as to whether Mr Hart knew at the time of the
hearing that he would not be able
to make the payment within 14 days. It
suggests that he instructed his counsel to advise the Tribunal that he would
make the payment
within that period so as to bolster his counsel’s
submission that the Tribunal should make a lesser order than striking
off.
Decision
[233] It is unrealistic, in our view, to suggest that an order requiring Mr Hart to practise under the supervision of another practitioner129 would be sufficient to properly protect the public. Mr Hart’s unsatisfactory response to disciplinary proceedings to date suggests he is unlikely to be compliant with supervision by another practitioner. It would be difficult, in any event, to supervise Mr Hart to the extent required to ensure the protection of the public. He would require constant
supervision in his dealings with clients and all others with whom he
would be
129 Under s 242(1)(g) of the Lawyers and Conveyancers Act.
required to deal in a professional capacity. In our view these difficulties
preclude an order being made prohibiting Mr Hart from
practising on his own
account, but permitting him to practise under the supervision of an
employer.
[234] It is also noteworthy that Mr Hart has not put forward any concrete
proposal for implementing such an option. His counsel
advised us only that
other members of the legal profession would be willing to supervise Mr
Hart’s activities in order to ensure
he maintains appropriate professional
standards in the future.
[235] The only realistic options are therefore orders for suspension or
striking off. During the hearing, counsel for Mr Hart submitted
that an order
striking Mr Hart off would be grossly disproportionate to the nature and gravity
of his offending, but that Mr Hart
would consent to an order suspending him from
practising for a period of six months. But we consider the Tribunal was
correct to
view striking off as the appropriate order to make in the present
case. We have reached that conclusion for several reasons.
[236] First, the nature and gravity of the charges of which he has been
found guilty are such that they require a firm response
that properly protects
the public from similar conduct in the future. Secondly, the fact that Mr Hart
has been found guilty of similar
conduct in the past suggests he has not learned
from past mistakes and sanctions. This does not bode well for his
rehabilitation
in the future. Nor does the fact that he appears not to
appreciate the seriousness of his conduct underlying charges three and four.
His failure to comply with the Tribunal’s order that he pay the
complainant in charge four the sum of $20,000 similarly suggests
a willingness
to ignore orders made by lawfully constituted disciplinary
authorities.
[237] Thirdly, like the Tribunal, we view extremely seriously Mr Hart’s decision to delay and then deliberately disengage from the present disciplinary proceedings. If Mr Hart was to remain in practice, he would need to demonstrate a preparedness to engage fully with the bodies entrusted by Parliament to maintain discipline within the legal profession. The conduct underlying charge three, coupled with the manner in which Mr Hart has approached the proceedings before the Tribunal, paints a picture of a person who has sought to remove himself from oversight by those
bodies. We agree with the Tribunal that this factor is determinative in the
present context.
[238] Finally, the difficulty with an order for suspension is that it would
not resolve the underlying issues exposed by the present
proceedings. At the
end of any period of suspension Mr Hart would be free to return to the legal
profession. The stance taken by
Mr Hart to date means that there can be no
guarantee that he will co-operate with, and subject himself to oversight by,
investigative
bodies in the future. For that reason the only way in which the
public can be properly protected is for an order to made preventing
him from
practising at all.
[239] An order striking Mr Hart off was therefore not a disproportionate
response having regard to the factors we have identified.
Seventh ground of appeal – should the orders as to costs be revisited having
regard to Mr Hart’s current financial circumstances?
[240] This ground of appeal is based largely on a submission that
Mr Hart’s financial circumstances have now deteriorated
to the point
where he is unable to meet the awards of costs imposed by the
Tribunal.
[241] Mr Hart has not provided the Court with a statement as to his
financial position, although his counsel advises us that he
can do so if
required. As a consequence, we do not know if Mr Hart currently has the ability
to meet the costs awards imposed by
the Tribunal.
[242] Assuming that he does not have that ability, this ground of appeal needs to be considered having regard to the approach Mr Hart took when his counsel made submissions at the penalty hearing before the Tribunal. During that hearing, counsel then acting for Mr Hart advised the Tribunal it should proceed on the basis that Mr Hart had the ability to meet his financial obligations. Counsel acknowledged that if that turned out not to be the case, logical consequences would follow. By that we take counsel to mean that if Mr Hart could not meet the awards of costs, he accepted he would be subject to whatever consequences might follow.
[243] Given that approach, we consider it inappropriate to revisit the
issue of costs on appeal. If Mr Hart cannot now meet the
awards of costs that
the Tribunal imposed, he must accept the consequences of that fact.
Summary of findings
[244] Our conclusions in respect of each issue are as follows:
(a) Did the Tribunal err in refusing to grant Mr Hart’s application for
an
adjournment on 16 July 2012, and deciding to proceed in his
absence?
We are satisfied that the Tribunal made no error in declining the
application for adjournment and deciding to proceed to hear
the charges in Mr
Hart’s absence. The Tribunal addressed itself to the correct questions.
It was entitled to conclude that
Mr Hart had deliberately chosen not to
participate in the hearing as part of a strategy to delay and obstruct
disciplinary
proceedings. The Tribunal applied the correct principles in
determining it could provide Mr Hart with a fair hearing notwithstanding
his
absence, and no miscarriage of justice flowed from its decision to proceed. See
paragraphs [23]-[68] of this decision.
(b) Was the Tribunal entitled to hear the third charge?
The Tribunal had jurisdiction to hear the third charge, and the Standards
Committee was entitled to refer that charge to the Tribunal.
A complaint need
not be of sufficient gravity to warrant consideration of striking off or
suspension for the Standards Committee
to refer it to the Tribunal for
determination: see paragraphs [69]-[110] of this decision.
(c) In respect of the first and fourth charges, was the Tribunal required to hear oral evidence from Mr Gardiner and Mr Haskett respectively in order to resolve conflicts in the evidence?
It was for Mr Hart to arrange for those witnesses to attend the hearing if he
wished them to give evidence. Their non-attendance
was the result of his
failure to do so. No miscarriage of justice was caused by their non-attendance
in any event, as their evidence
did not assist Mr Hart in any material respect:
see paragraphs [111]-[130] of this decision.
(d) Did the Tribunal err in rejecting the evidence of Mr Burcher and Mr
McKenzie in respect of the reasonableness of Mr Hart’s
fees, and accepting
the evidence of Mr Billington, the expert witness called by the Standards
Committee?
The Tribunal preferred the evidence of Mr Billington to the expert evidence
called by Mr Hart for good reason. The Tribunal
gave appropriate weight
to the relevant expertise of each of the witnesses. The Tribunal was entitled to
reject the opinions of
Mr Burcher and Mr McKenzie that the fees were reasonable.
Their evidence focused on the time recorded, and did not address whether
the
time recorded was reasonable and what the work undertaken by Mr Hart was worth.
The tasks undertaken by Mr Hart for Mr A could
and should have been achieved at
a far lower cost to Mr A’s family, and Mr Hart made no attempt to manage
those costs: see
paragraphs [131]-[180] of this decision.
(e) Was striking off a disproportionate response?
Striking Mr Hart off the roll of barristers and solicitors was a proportionate response in light of the nature and seriousness of those charges, Mr Hart’s disciplinary history, his decision to disengage from the disciplinary proceedings, and the lack of evidence to suggest he has insight into his conduct: see paragraphs [181]-[239] of this decision.
(f) Should the orders as to costs be revisited in light of Mr Hart’s
current
financial circumstances?
It would be inappropriate to revisit the award of costs when Mr Hart’s counsel advised the Tribunal that it should proceed on the basis that Mr Hart could meet his financial obligations, and conceded that if that turned out not to be the case, “logical consequences” would follow:
see paragraphs [240]-[243] of this decision.
Result
[245] The appeals are dismissed.
Suppression
[246] We make orders suppressing from publication the names and all
identifying particulars of the complainants in the disciplinary
proceedings. We
also make orders suppressing from publication all but the first sentence of
paragraph [209], paragraph [210] including
footnote 124, and that part of
paragraph [184] citing paragraph [71] of the Tribunal’s
decision.
Costs
[247] Our initial view is that the respondent should be entitled to a
single award of costs on a category 2B basis, together with
disbursements as
fixed by the Registrar.
[248] If either party advocates a different approach, a brief (i.e. less
than seven pages) memorandum regarding costs should be
filed and served within
14 days. We will then set a further timetable for the filing and service of
memoranda in response and reply.
Solicitors
New Zealand Law Society, Auckland
Nigel Cooke, Ponsonby
Counsel
Paul Collins, Barrister, Auckland
A Trenwith, Barrister, Auckland
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