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Court of Appeal of New Zealand |
Last Updated: 25 December 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Applicant |
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AND
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Respondent |
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Hearing: |
26 November 2013 |
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Court: |
Ellen France, Stevens and Wild JJ |
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Counsel: |
P F Chambers for Applicant
P N Collins for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France
J)
Introduction
[1] The applicant, Barry Hart, applies for special leave to appeal against a decision of the Full Court of the High Court (Winkelmann and Lang JJ).[1] In that decision, the High Court dismissed an appeal by Mr Hart against the decisions of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) finding him guilty of charges of professional misconduct,[2] ordering that he be struck off the roll of barristers and solicitors, that he pay costs of just over $116,000, and that he pay one of the complainants the sum of $20,000.[3] Mr Hart sought leave to appeal from the High Court, but his application was dismissed by Lang J.[4]
[2] Mr Hart’s application for special leave focuses on the Tribunal’s decision to proceed to hear the charges in his absence and on the penalty imposed.
Background
[3] Mr Hart faced four charges before the Tribunal. The charges were laid by the Auckland Standards Committee No 1 under the provisions of the Lawyers and Conveyancers Act 2006 (the Act) and under the Lawyers and Conveyancers Act (Conduct and Client Care) Rules 2008. Charges numbered one and two alleged, respectively, misconduct in a professional capacity and conduct unbecoming of a practitioner. Charge number two was laid in the alternative to charge number one. Both charges related to delays in paying the fees of a private investigator hired by Mr Hart to carry out investigative work for a client whom Mr Hart was representing in relation to criminal charges. Charge number three was an allegation of misconduct in a professional capacity. The charge related to Mr Hart’s refusal to disclose his file relating to a former client after having been required to do so by a Complaints Committee and then by a Standards Committee. Charge number four was a further charge of misconduct in a professional capacity and related to gross overcharging and the failure to provide information to a client’s family about the basis upon which Mr Hart proposed to charge for services.
[4] The charges were set down to be heard in July 2012. That was the fifth fixture set for the hearing of the matter, the previous fixtures all having been adjourned.[5] On the Friday before the hearing (due to begin on the Monday), Mr Hart provided a doctor’s certificate which was light on detail and did not include a diagnosis but said that Mr Hart was unfit for work, particularly court work. The Tribunal promptly advised Mr Hart that it may wish to cross-examine the doctor in relation to the medical certificate. A further certificate was provided on the morning of the hearing which said that Mr Hart had been reviewed by the doctor and one of his symptoms had not improved. The Tribunal asked that the doctor attend so that the Tribunal might obtain further information about Mr Hart’s medical condition. The Tribunal adjourned briefly for arrangements to be made. The Tribunal was advised that the doctor refused to appear, preferring to seek legal advice. An application made on Mr Hart’s behalf for an adjournment was refused. Mr Hart’s counsel did not have instructions encompassing defending the charges and was given leave to withdraw.
[5] The matter proceeded to a hearing in Mr Hart’s absence. Various witnesses appeared and were questioned by the Tribunal. In its decision, the Tribunal held that charges one, three and four had been proved to the required standard. 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, as well as the further penalties listed above.[6]
[6] On Mr Hart’s appeal the High Court reviewed afresh the evidence before the Tribunal relating to the decision to proceed in the absence of Mr Hart. The Court also considered new evidence, received by consent, from Mr Hart as to his health at the time of the hearing. The Court was of the view that the “complete chronology” provided “very strong” evidence of a “concerted strategy of delay and obstruction”.[7] That chronology included adjournments of fixtures in 2011 on the application of Mr Hart, significant delay in providing relevant documentation in relation to one of the charges and failure to make necessary arrangements for witnesses (called by Mr Hart) to attend for cross-examination. The Court said it was satisfied that the Tribunal correctly concluded Mr Hart’s non-attendance was not due to ill health, “[r]ather, he made a conscious decision to disengage from the proceedings”.[8]
[7] The High Court also dealt with whether the Tribunal had considered relevant matters before concluding it could proceed in Mr Hart’s absence. The Court said that the Tribunal had considered whether, if the hearing proceeded in Mr Hart’s absence, Mr Hart would receive a fair hearing. In relation to that aspect, “extensive” evidence had been filed on behalf of Mr Hart.[9] As well, “over the lengthy procedural history ..., there had been numerous interlocutory arguments, so the Tribunal was well aware of the nature of the defences Mr Hart intended to raise”.[10] The Court also accepted there was considerable public interest in the hearing proceeding. The charges were serious and the events forming the basis of the charges were, by the time of the hearing, dated. In addition, the Tribunal had not simply conducted a formal proof exercise. The Tribunal required the Standards Committee to call many of its witnesses and the witnesses were questioned “at some length”.[11]
[8] The High Court concluded that, “[h]aving reviewed the transcript and the Tribunal’s decision ourselves”, it was satisfied no miscarriage arose from the decision of the Tribunal to proceed in the absence of Mr Hart, even though that meant he was unrepresented.[12]
[9] As to penalty, the High Court examined each of the charges and reached a view on the seriousness of the conduct involved. The Court considered it was an aggravating feature that this was not the first occasion on which there had been some similar conduct. To illustrate the point, in relation to the fourth charge involving overcharging, Mr Hart had been found guilty of conduct unbecoming of a practitioner in respect of overcharging in March 2010, June 2010, and July 2011.[13]
[10] The Court also considered that the way in which Mr Hart treated his obligations to the Tribunal was a very serious matter. The Court observed that public confidence in the profession depends in large part upon the premise that practitioners will “co-operate fully in the investigative phase of the disciplinary process”.[14]
[11] As to Mr Hart’s response to the Tribunal’s processes, the Court considered that there was nothing to indicate Mr Hart understood the nature and gravity of his conduct, accepted responsibility for it or had any commitment to change.
[12] Against this background, the Court concluded supervision would not be sufficient to properly protect the public. The Court saw Mr Hart’s “unsatisfactory response to disciplinary proceedings to date” as suggesting he would not be likely to comply with supervision by another practitioner.[15] Constant supervision would be required. This approach left orders for suspension or striking off as the only realistic options.
[13] For a number of reasons, the Court determined the Tribunal was correct to view striking off as appropriate. Those reasons were, in essence, the serious response required given the nature and gravity of the charges, the fact Mr Hart had not learnt from past mistakes, the failure to engage with disciplinary bodies, and the fact suspension “would not resolve the underlying issues”.[16] For these reasons, the Court concluded that striking off was not a disproportionate response.
[14] Lang J, in declining to grant leave, concluded that no issue of public or private importance arose under the proposed grounds of appeal to justify leave being granted.
The approach to be adopted
[15] The relevant leave provision is s 254 of the Act which provides for an appeal to this Court on a question of law. Section 254(1) provides that this Court may grant special leave to appeal and applies s 66 of the Judicature Act 1908 to such an appeal. Section 66 states that the Court has jurisdiction to hear appeals from, relevantly, a judgment of the High Court, subject to the provisions of the Judicature Act and any relevant rules. In deciding whether to grant special leave, s 254(2) provides that this Court:
must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.
[16] The approach taken to leave decisions in Waller v Hider accordingly applies by analogy.[17] As Blanchard J, delivering the decision of the Court, said in that case:[18]
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
Discussion
[17] In the written submissions filed in support of the application, the following proposed questions and points are set out:
- ...Was the High Court correct in determining that the Tribunal observed the rules of Natural Justice when it declined the application to adjourn the hearing?
- ...Was the High Court correct in determining that the Tribunal observed the rules of Natural Justice when it considered the respondent waived his right to be present at the hearing by holding that he voluntarily absented?
- ...The High Court erred in upholding the Tribunal[’]s excessive penalty of striking off the appellant.
- ...The High Court was unreasonable in the Wednesbury sense when it upheld the Tribunal’s determination that the practitioner disengaged, and that was sufficient to impose the sentence of strike off.
- ...It is in the interest of all practitioners and it is in the interest of the public that sentences are imposed that are fair and in accordance with the principles of sentencing.
[18] In oral submissions Mr Chambers, who was instructed to represent Mr Hart very late in the piece, focused on two proposed questions, the first relating to the decision to proceed in Mr Hart’s absence and the second concerning the penalty imposed. We can address these two questions as they encompass the key issues Mr Hart now wishes to raise.
The decision to proceed in Mr Hart’s absence
[19] Section 237 of the Act provides that a practitioner subject to a complaint is entitled to appear, be heard and be represented. Mr Hart properly accepts that there is however power for the Tribunal to hear a case in the absence of the lawyer against whom the complaint has been made.
[20] Mr Hart wants to argue that the Tribunal erred in not attempting to compel his attendance and that of his doctor as an alternative to hearing the appeal in his absence. In developing the submissions on this proposed question, Mr Chambers relies on the requirements on the Tribunal to observe the principles of natural justice in s 236 of the Act and the powers under sch 4, cl 6 (via s 260) to summon witnesses. It is further said that the fact there were two medical certificates indicated unfitness rather than an intention not to attend.
[21] It is not at all clear to us that the proposed question is one of law. Rather, it appears to be a question about the weight given to various matters going towards the Tribunal’s factual assessment. In any event, the proposed question is not arguable. Mr Hart was aware of the hearing and chose not to attend. In those circumstances, it cannot be correct to suggest that the Tribunal should nonetheless have sought to compel him before proceeding in his absence. The doctor was also well aware of the hearing given the request that the doctor attend.
[22] At its core, Mr Hart’s complaint under this heading is a challenge to the factual finding, upheld by the High Court after a careful reconsideration of the relevant evidence, that he consciously disengaged from the process. That complaint does not give rise to a question of law of the requisite importance or one that ought to be submitted to this Court.
The penalty
[23] Mr Hart seeks to argue under this heading that the Tribunal took into account an irrelevant consideration when deciding not to make an order for supervision. The irrelevant consideration was to take into account Mr Hart’s previous disciplinary history in circumstances where supervision had not been tried before. The submission is that it follows from the nature of supervision, that is, to re-educate the practitioner, that unless it has been tried before in such circumstances the previous history is irrelevant.
[24] It is possible, of course, that taking into account an irrelevant consideration in assessing the appropriate penalty may give rise to a question of law. However, in this case, the argument fails on the facts. There are two relevant facts. First, Mr Hart did not put up any proposal for supervision to the Tribunal. Even before the High Court, no “concrete” proposal was made.[19] Instead, the Court was advised “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”.[20] That meant that the only viable options were suspension or striking off. The second relevant fact is that Mr Hart said he would accept an order for suspension for six months. In these circumstances, supervision was not realistic.
[25] In any event, in considering the appropriate penalty the Tribunal must have been entitled to take into account Mr Hart’s prior disciplinary history. The history of overcharging, for example, is relevant to an assessment of the likelihood of compliance with supervision by another practitioner because it at least demonstrates a failure to learn from the past. That, coupled with the attitude adopted to the disciplinary process, supports the view of the Tribunal and the High Court that supervision was not a realistic option.
[26] Obviously, this decision is of importance to Mr Hart who has practised for a lengthy period. That said, we are satisfied this proposed ground of appeal does not raise any more general point of law or a question of law capable of bona fide argument.
Decision
[27] For these reasons, the application for special leave to appeal is dismissed. There is no reason why costs should not follow the event. The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.
Solicitors:
Henley-Smith Law, Auckland for Applicant
New
Zealand Law Society, Auckland for Respondent
[1] Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103 [High Court judgment].
[2] Auckland Standards Committee No 1 v Hart [2012] NZLCDT 20 [Tribunal substantive decision].
[3] Auckland Standards Committee No 1 v Hart [2012] NZLCDT 26 [Tribunal penalty decision].
[4] Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 1331.
[5] This background is set out in the Tribunal substantive decision, above n 2, at [2]–[5]. Three of the four previous fixtures were adjourned on the application of Mr Hart.
[6] Tribunal penalty decision, above n 3.
[7] At [49].
[8] At [68].
[9] At [64].
[10] At [64].
[11] At [67].
[12] At [67].
[13] At [215]–[218].
[14] At [224].
[15] At [233].
[16] At [238].
[17] Waller v Hider [1998] 1 NZLR 412 (CA). Waller v Hider arose in the context of s 67 of the Judicature Act 1908.
[18] At 413.
[19] High Court judgment, above n 1, at [234].
[20] At [234].
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