Sisson v Canterbury District Law Society [2011] NZCA 55; [2011] NZAR 340 (9 March 2011)

Last Updated: 15 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA464/2009 [2011] NZCA 55

BETWEEN THERESE ANNE SISSON Appellant

AND CANTERBURY DISTRICT LAW SOCIETY First Respondent

AND THE CANTERBURY LAW PRACTITIONERS DISCIPLINARY TRIBUNAL Second Respondent

Hearing: 3 February 2011

Court: O’Regan P, Randerson and Harrison JJ

Counsel: Appellant in person P M James for Respondents

Judgment: 9 March 2011 at 10.15 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs on a Band A basis together with usual disbursements.
   

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] The appellant, Ms Therese Sisson, is a lawyer practising in Christchurch. The first respondent, the Canterbury District Law Society (the Society), charged her with professional misconduct for failing to honour a written undertaking. The second respondent, the Canterbury Law Practitioners Disciplinary Tribunal (the Tribunal), found her guilty of the charge. She was censured, prohibited from carrying out certain conveyancing work and ordered to pay costs.
[2] Ms Sisson has challenged the Tribunal’s decision on two alternative fronts. She applied to the High Court for judicial review given that the Tribunal had exercised a statutory power of decision.[1] French J dismissed her application.[2] Ms Sisson now appeals against that judgment. Separately, she has appealed against the Tribunal’s decision to the New Zealand Law Practitioners Disciplinary Tribunal.[3] By agreement, that appeal has been stayed pending determination of the High Court proceeding.
[3] Ms Sisson’s statement of claim pleads five reviewable errors. French J considered and rejected them all. Ms Sisson’s notice of appeal maintained the same five grounds. However, before us she limited her appeal to two grounds – principally, apparent bias by one of the Tribunal members and, secondarily, a lack of jurisdiction to determine the charge. The remaining grounds were plainly not amenable to judicial review in any event.

Background

[4] Ms Sisson acted for a Ms Shelly Travis on an agreement to purchase a leasehold interest in a property in Christchurch. The underlying freehold title was part of a larger block comprising a number of titles owned by an incorporated society. These other properties were leased to its members.
[5] Ms Sisson discovered that the incorporated society was to be wound up. On that event the lessees were to surrender their leases and obtain freehold titles. So Ms Travis was effectively agreeing to purchase a leasehold interest in the expectation of obtaining a freehold title. Her agreement was due for settlement in June 2005. However, Ms Sisson was advised that the application to the High Court to wind up the incorporated society had been delayed past June due to unresolved litigation. Ms Travis’ acquisition of the freehold was thus of a contingent nature.
[6] The Southland Building Society (SBS) granted Ms Travis a loan for part of the purchase price (around $20,000 of a total consideration of $148,000). In accordance with standard lending practice the SBS required security by way of a mortgage.
[7] What happened in exchanges between Ms Sisson and the relevant SBS employee was the subject of a factual contest before the Tribunal. Ms Sisson wrote to the SBS advising that a freehold title was available but because of litigation in the High Court that title was not then being transferred. The SBS employee was confused by this advice and phoned Ms Sisson. His evidence, which the Tribunal accepted, was that Ms Sisson orally advised him that Ms Travis would nevertheless be in a position to give the SBS a mortgage over the property on settlement in late June. The Tribunal accepted that the SBS understood that the mortgage was to be granted over a freehold, not the leasehold, title and rejected Ms Sisson’s evidence to the contrary.
[8] The SBS then forwarded Ms Sisson a loan facility agreement and a standard mortgage document with a letter requesting her to act for the lender in preparing and registering a first mortgage over the freehold title. Additionally, the letter advised that the SBS would rely upon Ms Sisson to protect its interests at all times so that it obtained the requisite security. Ms Sisson prepared the mortgage documents and arranged for execution by Ms Travis. She sent a fax to the SBS confirming execution.
[9] On 27 June Ms Sisson signed and forwarded the standard SBS solicitor’s certificate and undertaking that she was in a position to:

... and shall immediately (on receipt of the loan money if applicable) register the mortgage with the ranking as specified in your instructions so that the society should obtain priority of security required by it.

[10] On receipt of Ms Sisson’s undertaking, the SBS advanced $19,800 to her trust account. Shortly afterwards she disbursed the funds to Ms Travis. Ms Sisson accepted that when giving her certificate and undertaking she knew that the freehold title remained in the name of the incorporated society and that she would not be in a position to register the security immediately on receipt of the loan funds. In fact, the litigation relating to the incorporated society’s winding up occupied a further two years including an appeal to this Court; title was not registered in Ms Travis’ name until 1 November 2007. In the meantime, the SBS complained to the Society following Ms Sisson’s repeated failures to reply to its enquiries into the whereabouts of its copies of the security documents.
[11] Ms Sisson represented herself at the hearing before the Tribunal on 15 July 2008. Her principal defence was that her undertaking was subject to or qualified by an oral understanding that she would only register a first mortgage security when the freehold title became available even though the SBS had advanced funds in the interim. The Tribunal unanimously rejected that defence, held the charge proved and imposed its penalty at the end of the hearing. The Tribunal’s reasons were set out in a formal decision delivered on 20 August 2008.
[12] We shall now address each of Ms Sisson’s two grounds of appeal, which we describe as predetermination and jurisdiction.

Predetermination

Apparent bias

(i) Ms Sisson’s case

[13] Ms Sisson alleged that the Tribunal’s decision was vitiated because one of its six members had a personal interest in the result. She was referring to Mr Brent Stanaway. He is and was the Crown Solicitor in Christchurch and a partner in Raymond Donnelly. Ms Sisson’s allegation arises from Raymond Donnelly’s representation of the Inland Revenue Department (the IRD) in long-running litigation with Chesterfields Preschools Ltd and its associated entities (the Chesterfields interests). Mr Stanaway was not himself involved as counsel. His partner, Mr Phillip Shamy, was responsible for conducting the IRD’s case.
[14] The Chesterfields interests comprise Chesterfields Preschools Ltd; David John Hampton (personally); Chesterfields Partnership; Chesterfields Preschools Partnership; and Anolbe Enterprises Ltd. Ms Sisson failed before us to identify the nature and extent of her interest in these entities. We accept, however, that Ms Sisson and Mr Hampton, her former husband, were sometime partners in both the Chesterfields and Chesterfields Preschools Partnerships.[4] The partnerships represent Ms Sisson’s only possible personal interest in the relevant litigation.
[15] The Chesterfields interests issued judicial review proceedings against the IRD in 2006. In broad terms, they claimed that the IRD had failed to adhere to concessionary arrangements made with them as taxpayers.[5] Both the initial judicial review application[6] and a second[7] were upheld at first instance. However, the IRD was partially successful in a consolidated appeal against the second decision and decisions in other related proceedings.[8]
[16] At the time of the judicial review proceedings the IRD had assessed tax owed by the Chesterfields Partnership and the Chesterfields Preschool Partnership at $1.2 million and $240,000 respectively. As a partner in both entities, Ms Sisson was potentially personally liable to this extent. She was in that sense also interested in the various proceedings involving the Chesterfields partnerships.
[17] In May 2008 the five Chesterfields interests (see at [14] above) issued in the High Court at Christchurch a separate proceeding alleging misfeasance against the IRD and a range of individuals. The statement of claim is a discursive document running to over 300 paragraphs. Its essence seems to be an allegation that IRD employees deliberately failed to disclose file notes which were relevant in the previous litigation with the Chesterfields interests. Mr Shamy, as counsel for the IRD, was said to be a party to this alleged wrongdoing and was cited as the 19th defendant. Substantial damages were sought for the tort of misfeasance in public office. There is no evidence about the fate of the proceeding.
[18] The IRD file notes were before the Court in the first judicial review proceeding. Accordingly, Fogarty J was able to make factual findings as to the existence or otherwise of the arrangements asserted by the Chesterfields interests. The Judge concluded that, while the IRD had never unequivocally entered into a binding arrangement, its correspondence and conduct was capable of leaving Mr Hampton with the impression that everything was in order.[9] Having gained that impression, the Chesterfields interests claim in the misfeasance proceeding that they had relied on the IRD’s conduct to their detriment by allowing the penalty regime resulting from unpaid tax to “spiral out of control”. The file notes were also arguably relevant to any defence they could raise when the Commissioner earlier brought recovery proceedings in 2004.

(ii) High Court

[19] French J seems to have proceeded on the assumption, without finding, that there was apparent bias arising from Mr Stanaway’s participation in the hearing.[10] However, she was satisfied that Ms Sisson had waived her right to protest.[11] Also, she provisionally concurred with a proposition that the right of a de novo hearing on appeal would cure apparent bias. Ms Sisson’s notice of appeal was limited to French J’s waiver finding but in written and oral argument she expanded her challenge to the threshold issue of apparent bias. This response was understandable in view of the Judge’s omission to determine Ms Sisson’s principal allegation. Accordingly we allowed the parties to address both issues, and we shall consider apparent bias and waiver separately.

(iii) Legal principles

[20] Proof of apparent bias falls within the generic category of predetermination. It originates from the prohibition on a person being the judge in his or her own cause.[12] In its most literal sense the prohibition applies where a judge is a party to the subject litigation or has a financial or proprietary interest in its result; in that case disqualification is automatic unless the nature of any such interest is trifling. In a less direct or secondary sense it may apply where the judge’s conduct, behaviour or associations give rise to a suspicion of partiality, for example, because of a friendship with a party.
[21] In recent years appellate courts in this country and elsewhere have been called upon to revisit and refine the principles governing claims of apparent bias. The law in New Zealand is now settled by the decision of our Supreme Court in Saxmere Company Ltd v Wool Disestablishment Company Ltd (Saxmere (No 1)),[13] approving this Court’s decision in Muir v Commissioner of Inland Revenue.[14] In essence, a Judge (or a member of a Tribunal exercising a judicial function) is disqualified if the fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question which he or she is required to decide.[15]
[22] The apprehension of judicial partiality must be based upon a real and not a remote possibility. The fair-minded observer is presumed to be capable of an intelligent and balanced evaluation of all relevant facts. Two factors must be identified within the circumstantial inquiry. One is what it is that might lead the decision maker to decide a case other than on its factual merits – most frequently said to be a personal interest in the result. The other and equally important factor is the logical connection or causative link between the offending factor and the feared deviation from deciding a case other than on its merits.[16] In practical terms, as Saxmere (No 1) shows, the enquiry is into what and how the decision-maker might possibly stand to gain from a result adverse to the complainant.[17]
[23] Ms Sisson’s case is expressly that Mr Stanaway fell into the first of the two categories identified by Lord Browne-Wilkinson in the Pinochet case – she submits that his alleged conflict invokes the rule of automatic disqualification. A well-known example of the second category is Metropolitan Properties Co (FGC) Ltd v Lannon[18] where the chairman of a rent assessment committee, a qualified solicitor, heard a challenge to rental fixed by the landlord of a block of flats. He was also currently assisting his father, with whom he resided, and other tenants (informally but not professionally) to resist an attempt by the same landlord to increase the rent in another block of flats. Those circumstances led Lord Denning MR to state that:[19]

No man can be an advocate for or against a party in one proceeding, and at the same time sit as a Judge of that party in another proceeding. Everyone would agree that a Judge, or a barrister or solicitor (when he sits ad hoc as a member of the Tribunal) should not sit on a case to which a near relative or close friend is a party. So also a barrister or solicitor should not sit on a case to which one of his clients is a party. Nor on a case where he is already acting against one of the parties. Inevitably people would think he would be biased.

[24] While the first and fourth sentences of Lord Denning’s statement are expressed in sweeping terms, they must be read in context and subject to the principles settled by Saxmere (No 1). The facts of Metropolitan Properties were extreme and remote from this case. The committee chairman was assisting his father and other tenants in one rental dispute against the landlord, while he was sitting in judgment on that same party in another dispute. He was directly involved in both cases. The fundamental issue was the same or similar. The committee’s decision was itself so “startling” that its terms contributed to the suspicion of bias.[20]
[25] In any event, Ms Sisson’s case as pleaded and argued is not based upon the fact that Mr Stanaway’s firm, Raymond Donnelly, had acted and was acting for the IRD against her before the Tribunal sat on 15 July 2008. Nor is it that Mr Stanaway might have previously formed an adverse view of Ms Sisson’s competence or credibility as a result of that engagement. It is simply that Ms Sisson was then suing one of Mr Stanaway’s partners. His personal interest in the result of Ms Sisson’s prosecution was said to emanate from that fact alone.

(iv) Analysis

[26] By way of introduction, we record that Ms Sisson’s case as pleaded and argued in the High Court was expressly limited to an allegation of apparent bias against Mr Stanaway. However, her written synopsis of submissions filed in this Court seemed in substance to elevate her case to one of actual bias. When this variation was drawn to her attention, Ms Sisson confined her oral argument to apparent bias in conformity with her pleading.
[27] Ms Sisson’s statement of claim expressly identifies Mr Stanaway’s personal interest in the result of the Tribunal’s hearing as arising from the allegations made by the five nominated Chesterfields interests in their May 2008 misfeasance claim. That pleading is inadequate. Proof of the existence of adverse proceedings is insufficient in itself. Proof of the additional element of Mr Stanaway’s knowledge both of that fact and of Ms Sisson’s interest in the proceedings arising from her membership of the Chesterfields partnerships is essential. Without knowledge of those two facts, Mr Stanaway could not have had an interest in deciding the charge other than on its merits because he would have no identifiable motivation to deviate from his duty.
[28] This inadequacy in Ms Sisson’s pleadings was reflected in deficiencies in the case on appeal. At the conclusion of argument we gave leave to both parties to submit supplementary memoranda on the issue of Mr Stanaway’s knowledge. As a result, these additional agreed facts have emerged:

• (a) On 17 December 2007 the Chesterfields interests purported to file in one of the judicial review proceedings an amended statement of claim naming Mr Shamy as the nineteenth defendant. Its terms were very similar to the May 2008 document (see at [17] above). Mr Shamy had not previously been cited as a party. No application was apparently made to join him as a defendant.
• (b) Soon after a copy of the amended statement of claim was served on Mr Shamy. As a result, the Crown Law Office in Wellington replaced Raymond Donnelly as counsel for the IRD and other defendants who were named. Crown Law has had sole conduct of the IRD’s case since early 2008.
• (c) On 28 January 2008 the Registrar of the High Court at Christchurch advised Chesterfields that the December amended statement of claim could not be accepted for filing in the judicial review proceeding. It was in substance a new proceeding and should be filed separately. Chesterfields filed the May 2008 document in a separate proceeding on 14 May 2008. The document has not been formally served on Mr Shamy from early June 2008 but he was aware of its existence.

[29] On these facts, Ms Sisson’s claim of apparent bias fails at both stages of the inquiry. First, she has failed to establish that Mr Stanaway had or might have had a personal interest in the result of her prosecution. While we have no direct evidence on this point, we are prepared to infer that when he sat on the Tribunal on 15 July 2008 Mr Stanaway knew the Chesterfields interests were making allegations of misconduct against his partner and had issued a proceeding naming Mr Shamy as a defendant. As the Crown Solicitor and the partner in a medium sized law firm, Mr Stanaway must have been advised of that event. But that is not enough of itself.
[30] Significantly, Ms Sisson was never named as a party in any proceedings issued by the Chesterfields interests. As noted earlier (at [14] above), her interest was limited to the Chesterfields Partnerships. The May 2008 misfeasance statement of claim described Chesterfields Partnership as “a partnership formed in Christchurch in 1990 and carrying on business as a preschool operator and dissolved in 1993”; and Chesterfields Preschools Partnership as Mr Hampton’s trading entity which carried on business as a preschool operator until 2004. (On their face, neither of the nominated partnerships had status to sue.)
[31] There is nothing in the 300 paragraph May 2008 document to suggest that Ms Sisson was in any way associated with the proceeding except for incidental references to tax credits due to her at the time of a 1994 audit conducted by the IRD (para 26) and making an oral application for a stay of liquidation proceeding issued by the IRD against a Chesterfields entity (para 197). Those obscure references in a detailed statement of claim do not provide a reliable evidential foundation for an inference that Mr Stanaway knew of either Ms Sisson’s membership of the Chesterfields or Chesterfields Preschools Partnerships or her alleged interest in the misfeasance claim: and it would be wrong to speculate on whether Mr Stanaway had informal knowledge of such important facts.
[32] Ms Sisson made a subsidiary allegation that Mr Stanaway was personally interested because she had sought before the Tribunal to explain her delay in answering SBS’s correspondence in 2006 by virtue of her involvement in litigation where Raymond Donnelly were acting. This latter assertion is a non-sequitur and was not pursued in argument.
[33] Also, we note that:

• (a) Ms Sisson’s written synopsis made much of Raymond Donnelly’s alleged failure to answer a letter from her former counsel on 27 July 2007. He had sought details of dates when the firm became aware of relevant file notes held by the IRD. But this allegation was never pleaded. And it is difficult in any event to follow its relevance. It does not advance Ms Sisson’s case.
• (b) Ms Sisson suggested faintly in argument, but did not plead, that Mr Stanaway may have had some retaliatory motive arising from the misfeasance claim. That allegation is serious and suggests actual bias. Without a formal pleading to that effect we are not prepared to address it in detail except to observe that Ms Sisson’s proposition could not succeed without Mr Stanaway’s actual knowledge of her interest in the misfeasance claim.

[34] Second, Ms Sisson has failed to establish how a personal interest of the type alleged might possibly have influenced Mr Stanaway to decide the charge other than on its merits. Ms Sisson was charged by the Society with professional misconduct. An affirmative finding by the Tribunal could not have been material to the result of Chesterfields’ misfeasance claim against Mr Shamy. That is because Ms Sisson’s professional conduct or integrity would not be in issue in the misfeasance proceeding. Instead, the focus would be entirely on the conduct of the defendants including Mr Shamy, the nature of their legal obligations and whether and to what extent they had performed them.
[35] Claims of apparent bias have become an increasingly popular avenue of collateral attack on adverse judgments. But, as Saxmere (No 1) shows, they are to be determined by an analytical assessment, not by reliance on general impression or presumption.[21] On that approach, taking into account all the relevant circumstances, there could be no tenable nexus or logical connection between Mr Stanaway’s alleged personal interest – even if it had been established – and his participation in the Tribunal hearing.
[36] In our judgment a fair minded, intelligent lay observer, fully informed of the relevant facts, could not reasonably apprehend that Mr Stanaway might not bring an impartial mind to determining the Society’s charge of professional misconduct against Ms Sisson. Accordingly we are satisfied that Ms Sisson’s claim that the Tribunal’s decision is vitiated by the apparent bias of one of its members is unsustainable.

Waiver

(i) High Court

[37] However, even if Ms Sisson’s claim of apparent bias was made out, we agree with French J that she has waived her right to rely on this ground.
[38] French J found as follows:

[36] ... I do not consider it is now open to Ms Sisson to raise the issue of bias. That is because at the commencement of the hearing, the Tribunal’s chairman introduced the individual members of the panel including Mr Stanaway and specifically asked Ms Sisson if she had any objection to any of them hearing the case. Ms Sisson, who of course knew all about the proceedings which had been issued against Mr Stanaway’s partner, replied no and then participated in the process. In my view, she thereby waived any right she may have had to judicial review on the grounds of bias (Lewis v Wilson & Horton Limited [2000] 3 NZLR 546 at [48]).

[37] Ms Sisson’s explanation is that she felt too “put on the spot” to object and did not want to antagonise the Tribunal. In support of her argument that she should not be considered as having waived the right to argue bias, she referred me to the Australian decision of Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684 where Kirby P expressed the view that waiver of bias through lack of protest should not normally be possible. Ms Sisson submitted this principle had been endorsed by our Court of Appeal in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142. However, what the Court of Appeal actually said at p152 was that they agreed with Kirby P’s view “ to the extent that displays of blatant bias likely to undermine public confidence in the justice system should not normally be capable of private waiver; while in criminal cases private waiver would not normally be possible”. It is clear there is no absolute proposition such as that suggested by Ms Sisson.

[38] The present case was not a criminal case nor was there any suggestion of displays of blatant bias by Mr Stanaway. Nor was it a situation of a litigant being left in the awkward predicament of having to initiate an objection themselves. Ms Sisson, who is a trained lawyer and in full possession of all the relevant facts, was specifically asked and given an opportunity to object to Mr Stanaway.

(ii) Legal principles

[39] The elements of waiver in this context are not in dispute. The Court must be satisfied that the person said to have waived “acted freely and in full knowledge of the facts”.[22] The act or omission must be a “voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which is open to that party to claim or raise”.[23] As was recently said in Smith v Kvaerner Cementation Foundation Ltd:[24]

The vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an unpressured decision.

[40] This Court’s decision in Auckland Casino Ltd v Casino Control Authority[25] remains the leading New Zealand authority. Many of its relevant features are analogous to Ms Sisson’s claim. Auckland Casino Ltd, the unsuccessful applicant for a casino licence, sought to judicially review the Casino Control Authority. Brierley Investments Ltd owned the successful applicant. The primary ground was apparent bias because of professional and financial relationships between authority members and the successful applicant. The authority chairman was a partner in a national law firm which acted for Brierley’s on various transactions but not on the subject application. The chairman himself had not acted for Brierleys. The claim of apparent bias failed because the Court found that Auckland Casino Ltd knew of the allegedly disqualifying facts prior to or during the course of the hearing. The company had taken a conscious decision not to object, allowing the hearing to continue without protest. It was held to have waived its rights to do so.
[41] As Cooke P observed in Auckland Casino Ltd:[26]

... the appellant decided to press on as a participant in the hearing, without raising the bias objections ... – thus deliberately taking the chance of the result before the authority and reserving, as far as that was possible, any challenge on the ground of bias unless and until there was an adverse decision from the authority. Factors influencing this election included fear of alienating the authority and fear of public opinion. We accept that there was a real dilemma and confess to some sympathy with the appellant. The fact remains that the dilemma was resolved by inaction ...

(iii) Analysis

[42] On this issue, Ms Sisson seeks to circumvent French J’s decisive reliance on her own state of knowledge by directing the focus of her argument on appeal towards Mr Stanaway. Ms Sisson’s primary submission is that Mr Stanaway was himself under an obligation in the circumstances to make full disclosure. She says that without it she was deprived of a fully informed understanding of the nature of his conflict; that an open and informal disclosure by Mr Stanaway would have given her an understanding of his perspective – that is an opportunity to assess whether his apprehension of the impact of the conflict matched hers; and that Mr Stanaway should have made disclosure without being asked given the “intimidatory aspects” of his presence on the panel, the acrimonious nature of the conflict between the IRD and the Chesterfields interests, and the lack of an opportunity for her to research the law on recusal.
[43] The principled basis for Ms Sisson’s argument is unclear. As best we can understand her submission, it is open to two meanings. On one reading, Ms Sisson is simply saying that she was entitled to ascertain the facts from Mr Stanaway as he understood them to be on 15 July 2008. Her argument is predicated on Mr Stanaway’s failure to disclose, which is predicated in turn on an obligation to that effect. If Ms Sisson had established, contrary to our finding, that Mr Stanaway had a personal interest because he knew she was a partner in the Chesterfields interests and had an interest in the misfeasance claim, then he would have been under a duty of disclosure. But his failure would have been of no legal consequence where Ms Sisson, the person to whom the duty was owed, was herself fully informed.
[44] Ms Sisson would have known as much as if not more than Mr Stanaway about Chesterfields’ misfeasance claim against Mr Shamy. As Mr James emphasises, Ms Sisson is a qualified barrister and solicitor. She was representing herself before the Tribunal. She would have known all the relevant underlying facts and, significantly, their legal consequences in the context of a right to object for apparent bias. That critical factor distinguishes Ms Sisson’s case from Smith v Kvaerner Cementation Foundation Ltd.
[45] Alternatively, Ms Sisson may be saying that she was entitled to ascertain Mr Stanaway’s view of the facts together with his opinion about how that might affect his impartiality. But it was not Ms Sisson’s right to evaluate or subjectively assess the state or prospective effect of Mr Stanaway’s knowledge. The test is objective. The question is what the fair-minded lay observer, with knowledge of all relevant facts, might apprehend.[27]
[46] What was factually decisive, as French J found, was that the Tribunal chairman expressly introduced each member to Ms Sisson when the hearing opened. He gave her an opportunity to object to any member sitting. She did not protest then or, as Mr James points out, at any time during the three hour hearing. In argument before us Ms Sisson asserted that she did not object because she was a litigant in person and was intimidated. But she accepted there was no evidence to this effect or that she had deposed to the existence of undue pressure, of being taken by surprise by Mr Stanaway’s presence or of being unaware of the legal ramifications of his participation in the disciplinary process. She was content to stand by and allow the hearing to proceed.
[47] We agree with French J that Ms Sisson’s failure to object to Mr Stanaway’s participation on the Tribunal when offered a specific opportunity to do so and thereafter is fatal. Her affirmation was given with full knowledge of all the material facts and the consequences of the choices available to her. We are satisfied that her decision was voluntary, informed and unequivocal. She has waived any rights which she might have had to challenge the Tribunal’s decision for Mr Stanaway’s apparent bias.

Jurisdiction

[48] Ms Sisson’s second ground of appeal is that the Tribunal had no jurisdiction to make findings on issues of law and fact governing a solicitor’s conduct where those issues are in dispute. She says that the Tribunal’s statutory powers excluded jurisdiction,[28] which is reserved to the High Court in its sole discretion to supervise the conduct of solicitors relating to undertaking. She says that the Tribunal’s jurisdiction is:

... confined to applying those facts and the law governing the conduct of a solicitor once finally determined by a Court having inherent jurisdiction to determine those matters and disputes.

[49] We reject this submission. Section 106 of the Law Practitioners Act, which was in force at the time of the hearing, relevantly provides:

106 Powers of District Disciplinary Tribunal

(1) The District Disciplinary Tribunal shall inquire into any charge made before it by the District Council or a complaints committee against a practitioner.

(2) If after inquiring into the charge the Tribunal is of the opinion that the case is of sufficient gravity to warrant its referral to the New Zealand Law Practitioners Disciplinary Tribunal, it shall forthwith refer the case accordingly.

(3) If the case is not so referred, and the Tribunal—

(a) Is of the opinion that the practitioner has been guilty of misconduct in his professional capacity; or

(b) Is of the opinion that the practitioner has been guilty of conduct unbecoming a barrister or a solicitor; or

(c) Is of the opinion that the practitioner has been guilty of negligence or incompetence in his professional capacity, and that the negligence or incompetence has been of such a degree or so frequent as to reflect on his fitness to practise as a barrister or solicitor or as to tend to bring the profession into disrepute; or

(d) Is satisfied that the practitioner has been convicted of an offence punishable by imprisonment, and is of the opinion that his conviction reflects on his fitness to practise as a barrister or solicitor, or tends to bring the profession into disrepute,—

it may if it thinks fit make an order under this section.

(4) By any such order, the Tribunal may do one or more of the following things:

(a) Order the practitioner to pay to the District Law Society in respect of any charge against him such sum by way of penalty, not exceeding $2,000, as the Tribunal thinks fit:

(b) Censure the practitioner:

(c) Order that the practitioner shall cease to accept work, or to hold himself out as competent, in such fields of practice, and for such period or periods, as are specified in the order:

(d) Order the practitioner to do for any specified person such work, within such time, and for a fee not exceeding such sum, as are specified in the order:

(e) Where it appears to the Tribunal that any person has suffered loss by reason of any act or omission of the practitioner, order the practitioner to pay to that person such sum by way of compensation as is specified in the order, being a sum not exceeding such amount as may from time to time be fixed for the purposes of this paragraph by resolution of the Council of the New Zealand Law Society:

(f) Order the practitioner to reduce his fees for any work done by him that is the subject of the proceedings before the Tribunal by such amount as is specified in the order, and, for the purpose of giving effect to the order, to refund any specified sum already paid to him:

(g) Order the practitioner to make his practice available for inspection at such times and by such persons as are specified in the order:

(h) Order the practitioner to make reports on his practice in such manner and at such times and to such persons as are specified in the order:

(i) Order the practitioner to take advice in relation to the management of his practice from such persons as are specified in the order:

(j) Order the practitioner to pay to the District Law Society such sum as the Tribunal thinks fit in respect of the costs and expenses of and incidental to the inquiry by the Tribunal and the inquiry by the District Council or complaints committee.

...

(8) An order under this section may be made on and subject to such terms and conditions as the Tribunal thinks fit.

[50] Ms Sisson did not attempt an analysis of this provision to support her argument. In our view it unambiguously granted the Tribunal jurisdiction to hear and determine the Society’s charge. The provision empowered the Tribunal to enquire into a charge made by the Society without any material limitation whatsoever. If, after undertaking an inquiry, the Tribunal is of the opinion that a practitioner has been guilty of misconduct in his or her professional capacity it may if it thinks fit make a wide range of orders including censure.
[51] In this case there was no dispute about the construction or meaning of Ms Sisson’s letter of undertaking. The primary area of dispute was whether it was qualified or varied by an oral agreement. That was a purely factual issue which the Tribunal was uniquely placed to determine in accordance with its wide statutory power. Its decision followed an assessment of the competing evidence given by Ms Sisson and the SBS employee.
[52] In terms of s 106 the Tribunal was of the opinion that Ms Sisson had been guilty of misconduct in her professional capacity following its rejection of her evidence. Its jurisdiction to reach this conclusion cannot be questioned.

Result

[53] Ms Sisson’s appeal against the judgment delivered by French J in the High Court at Christchurch on 7 July 2009 is dismissed. She is ordered to pay costs to the first respondent on Band A basis together with usual disbursements. It is unnecessary to make a costs order in favour of the Tribunal.

Solicitors:
Edgeware Law Centre, Christchurch for Appellant
Saunders & Co, Christchurch for Respondent

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[1] Judicature Amendment Act 1972, s 4.

[2] Sisson v Canterbury District Law Society HC Christchurch CIV-2008-409-2950, 7 July 2009.

[3] See s 107 of the Law Practitioners Act 1982 (since repealed and effectively replaced by the Lawyers and Conveyancers Act 2006).

[4] Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 113, (2010) 24 NZTC 24,169 at [3].

[5] Chesterfields Preschools Ltd v Commissioner of Inland Revenue (2007) 23 NZTC 21,125 (HC) at [31].
[6] Chesterfields Preschools Ltd v Commissioner of Inland Revenue (2007) 23 NZTC 21,125 (HC).
[7] Chesterfields Preschools Ltd v Commissioner of Inland Revenue (2009) 24 NZTC 23,148 (HC).

[8] Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500.
[9] See at [96].

[10] At [35].

[11] At [36]–[38].

[12] R v Bow Street Metropolitan Stipendiary Magistrate: Exparte Pinochet Ugarte (No 2) [2001] AC 119 (HL) per Lord Browne-Wilkinson at 132.

[13] Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 [Saxmere (No 1)].

[14] Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495.

[15] Saxmere (No 1) at [3] and [20].

[16] Ibid at [4].

[17] Ibid at [21]–[30].

[18] Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577.

[19] Ibid at 600; approved in Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242, [2007] 1 WLR 370 (CA) at [20] per Lord Phillips.

[20] At 602–603 per Edmund Davies LJ.

[21] Saxmere (No 1) at [42].

[22] R v Bow Street Metropolitan Stipendiary Magistrate: Exparte Pinochet Ugarte (No 2) [2000] 1 AC 119 at 137 per Lord Browne-Wilkinson.

[23] Millar v Dickson [2002] 1 WLR 1615 at 1629 (PC) per Lord Bingham, followed in Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242, [2007] 1 WLR 370 (CA) at [26] and [27] per Lord Phillips.
[24] Ibid, at [29] per Lord Phillips.

[25] Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA).

[26] At 150.

[27] See Saxmere (No 1) at [5] and [10].

[28] Law Practitioners Act 1982, s 106.