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Court of Appeal of New Zealand |
Last Updated: 10 September 2014
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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: |
11 August 2014 |
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Court: |
O’Regan P, Randerson and Harrison
JJ |
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Counsel: |
Applicant in Person
G H Nation for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1] On 24 November 2011 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal ordered that the applicant be struck off the roll of practitioners.[1] It was satisfied that she was not a fit and proper person to practise as a barrister or solicitor. Her appeal to the High Court was dismissed on 28 February 2013.[2] Her application for leave to appeal to this Court was dismissed by a Full Court of the High Court on 20 February 2014.[3]
[2] The applicant now seeks from this Court leave to appeal under s 254 of the Lawyers and Conveyancers Act 2006 which relevantly provides:
254 Appeal to Court of Appeal on question of law
(1) Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 66 of the Judicature Act 1908 applies to any such appeal.
(2) In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.
...
The grounds of the proposed appeal
[3] The application for leave to appeal raised the following questions:
(a) Did the Tribunal/Court have jurisdiction to decide the question of law that a lawyers interpretation of the law was such that it merited the decision to be struck off the roll of Barristers and Solicitors?
(b) Are disciplinary proceedings inquisitorial/semi inquisitorial or quasicriminal, adversarial and what protections are to be afforded to the accused by way of representation?
(c) Does the standard of proof shift on penalty where the Court is to make a decision on removal of the livelihood of the intending appellant?
(d) Is it a fraud on equity to include purported previous offending where the intended respondent utilised these matters for improper purposes and in an improper way?
(e) What account and how much weight is to be given to extraordinary circumstances outside an intended appellants control when deciding that a solicitor will be struck off the roll of barristers and solicitors? And what is the nature of the test of fitness to practice (sic) in respect of the future, taking into account past extraordinary circumstances?
(f) What weight is to be given to conduct during the process and the hearing, is it a factor to be taken into account in the disciplinary process, in particular when the intended appellant is unrepresented?
(g) Is it a fraud on equity to fail to take account factors in the decisionmaking of the intended appellant that led to offending?
(h) Taking into account (a)–(g) is the seriousness of the offending such as to reflect on future fitness to practise?
[4] Since the application was filed, the applicant has lodged without leave several sets of submissions which are discursive in nature and not confined to the matters initially raised in the notice of application. This makes it difficult to identify with any precision the questions of law she seeks to have determined if leave is granted. In oral submissions, the applicant advanced only some of the points previously raised. As best we can discern, the points she wishes to raise on appeal are:
(a) The High Court misconstrued the test for fitness to practise. A broader approach was required which was not limited to focusing on the particular matter charged.
(b) No sufficient link was established between the conduct complained of and the protection of the public.
(c) The High Court and the Tribunal were wrong to conclude that the protective purpose of the Act and the seriousness of her conduct meant that striking off must follow.
(d) It was wrong or unfair to take into account her previous misconduct and her conduct during the disciplinary process.
(e) There was a breach of natural justice.
(f) There was an error in taking into account factors that post-dated the conduct at issue.
(g) The High Court and the Tribunal were wrong to take into account factors beyond her control that led to the offending.
Procedural matters
[5] The applicant accepted that her appeal was confined to the issue of penalty and, in particular, the order striking her off the roll of practitioners.[4] It is also now accepted that her application should be treated as an application for leave to appeal the High Court substantive judgment (rather than the High Court’s refusal of leave) and for an extension of time for that application.[5]
[6] Shortly before the hearing the applicant filed an application to adduce further evidence on appeal together with a lengthy affidavit addressing what she described as an “unsafe practising environment”. This had to do with proceedings in which she was involved relating to the Inland Revenue Department and the stress this produced.
[7] We agree with Mr Nation on behalf of the respondent that this evidence is not fresh, relevant or cogent. In any event, it is inappropriate to take it into account on an application for leave to appeal. The application to adduce further evidence is rejected.
Background facts
[8] The High Court judgment described the circumstances of the complaint against the applicant in these terms:[6]
[3] Following a complaint to a Standards Committee of the Canterbury-Westland Branch of the New Zealand Law Society two charges of professional misconduct were laid before the Tribunal. The essence of the first was that in the context of acting for a client, Ms H, in a de facto relationship property claim the appellant ‘deducted from monies held for Ms H the sum of $17,454.80 in payment of (legal) costs without seeking or receiving authority to do so from the Legal Services Agency’. The second charge alleged that the appellant deducted the legal costs without Ms H’s authority and when the costs were covered by a grant of legal aid, this being to her personal advantage but the client’s disadvantage; and that later she misled a Standards Committee by saying that she and Ms H discussed and agreed upon a private retainer in lieu of the legal aid assignment.
[9] The amounts at issue were deducted from funds received by the applicant in settlement of her client’s relationship property claim, contrary to s 66 of the Legal Services Act 2000 then in force. Under that section, a listed provider may not take payments from or in respect of a client unless the payments are authorised by or under the Act or by the Legal Services Agency. The Tribunal rejected the applicant’s evidence that it was agreed between herself and her client that there would be a private retainer in lieu of the legal aid assignment.
[10] The available penalties were prescribed by s 112(2) of the Law Practitioners Act 1982.[7] These included striking off, suspension for up to three years, a prohibition upon the practitioner’s ability to practise on her own account, a financial penalty and censure. An order striking a practitioner’s name off the roll could only be made if the Tribunal found the charge against the practitioner proved and was of the opinion that, by reason of that conduct, the practitioner was not a fit and proper person to practise as a barrister or solicitor.[8]
The Tribunal’s penalty decision
[11] The Tribunal announced its decision to strike off the applicant orally at the conclusion of a penalty hearing on 24 November 2011 and gave its reasons in its penalty decision of 7 December 2011. The Tribunal noted counsel’s submission on behalf of the Canterbury Standards Committee that the applicant had deliberately misled the Committee and that, where there was proven dishonesty on the part of a practitioner, striking off was the only option available to the Tribunal. The Tribunal found:[9]
[9] The professional misconduct in this case touched at the very heart of the relationship of trust between solicitor and client. In this matter Ms Sisson preferred her own interests of obtaining a higher reward for her services (and avoiding a direct tax deduction from legal aid payments) over the rights of her client to have her grant of legal aid fully utilised. As recorded in our decision of 5 July, in the course of doing so, Ms Sisson misled and confabulated to whatever extent was required to achieve her ends. We recorded in our decision how she had failed to take responsibility for her actions and instead sought to blame or attack the conduct of others in the course of the defended hearing.
[10] At the penalty hearing Ms Sisson stated that she accepted the findings of misconduct but submitted that this was a lapse which involved “one uncharacteristic isolated situation”. That submission is not only inaccurate but also minimises the seriousness of her conduct in a manner which is worrying in terms of her ability to be entrusted with clients’ affairs in future.
[12] The Tribunal accepted that the applicant’s involvement in litigation with the Department of Inland Revenue had undoubtedly impacted seriously on her both personally and professionally and in her ability to carry out her work. So too, the ill health of a family member. However, the Tribunal considered these personal circumstances could not outweigh the obligation of the Tribunal to protect the public: a practitioner must either withstand personal pressures or step aside from practice.
[13] The Tribunal noted that the applicant had sought professional assistance that could have been viewed as a step towards rehabilitation but her failure to approach this matter in a proper or timely way and her refusal to show the Tribunal a medical report meant no reliance could be placed on it.
[14] The Tribunal noted that the applicant had sought a period of suspension rather than being struck off. In support, she provided a number of references from fellow practitioners and clients about her commitment as an advocate and dedication to achieving the best outcomes for her clients. However, the Tribunal regarded it as unfortunate that the applicant could not be relied upon to be consistent in the care of her clients and regarded her attack on the complainant as a matter of serious concern. There was a level of self-delusion still present that suggested expediency over ethics.
[15] The Tribunal accepted a submission made on behalf of the Standards Committee that, when under pressure, the applicant would resort to dishonesty. That created a potential risk for her clients, others in the profession and for the courts who should be able to rely on her integrity, probity and trustworthiness.
[16] It also took into account previous misconduct by the applicant. In particular, she had been found guilty of misconduct in 2008 in failing to honour an undertaking given to a building society; in 2004 she was charged with negligence or incompetence in her professional capacity and, although this charge was dismissed, there was criticism of the applicant; the applicant disclosed that she had been threatened with contempt and forced to apologise to a District Court Judge for rudeness.
[17] Despite noting the additional stresses on the applicant as a result of the Christchurch earthquake, her financial difficulties and emotional stresses, the Tribunal considered these could not override issues of public protection. Its ultimate conclusion was:[10]
[16] ... We have no confidence at the present time that Ms Sisson is able to maintain a clear concept of her professional obligations and have found as a Tribunal of five, unanimously that she is not a fit and proper person at the present time to practise as a barrister and solicitor.
[18] The Tribunal confirmed its earlier oral decision that the practitioner be struck off with costs of $20,000 payable to the Law Society. In addition, the applicant was ordered to pay compensation to the complainant of $5,888.
The High Court judgment
[19] The High Court agreed with the Tribunal’s assessment of the applicant’s conduct. There were two aspects of dishonesty and breach of trust. The first was in deducting the costs when the applicant knew she had no authority to do so. The second was her fabricated explanation for her actions, namely that she had obtained her client’s agreement to charge a private retainer. The High Court said there were numerous factors that suggested this was untrue, yet the applicant had persisted in this untruth to the very end. The applicant had obtained fees of $5,888 in excess of the relevant legal aid rates by reason of the “private retainer subterfuge”.
[20] Addressing whether striking off had been the appropriate penalty, the High Court noted that the protective jurisdiction of the Tribunal was well recognised. There was a public interest in the maintenance of high standards given that practitioners must be trustworthy and competent to uphold their ethical obligations. Bolton v Law Society was cited for the proposition that, if trustworthiness is not assured, the profession and the public as a whole is injured.[11]
[21] The High Court continued:
[48] We agree with the Tribunal that the appellant’s professional misconduct touched the very heart of the relationship of trust between solicitor and client. It was serious misconduct. Protection of the public required that decisive protective steps were taken. But, on looking at the misconduct in isolation, it was conceivable that a penalty less than striking off could have been imposed.
[22] Looking beyond the misconduct itself, it was appropriate to take into account the breach of the applicant’s undertaking in 2008. The High Court considered there were obvious parallels with the subject misconduct. Each involved the failure to meet a fundamental obligation followed by non-acceptance of the failure and an endeavour to avoid responsibility on the basis of an explanation that lacked credibility. The High Court did not consider it was appropriate to take into account the other aspects of previous misconduct the Tribunal had considered.
[23] As to the applicant’s conduct during the hearing process the High Court accepted that a practitioner’s conduct in the course of a disciplinary process may influence the final outcome.[12] In this case the Tribunal had been significantly influenced by the way in which the applicant had conducted herself throughout the disciplinary process. This supported its findings that she had failed to recognise the seriousness of her failings or take responsibility for them. This conduct included delays caused by adjournments resulting from conduct by the applicant the Tribunal had considered to be inappropriate and unprofessional. The High Court accepted such behaviour could be taken into account in the evaluation of the likely efficacy of available penalty options. In the present case, the applicant’s conduct was considered to be unhelpful to her cause.
[24] As to the applicant’s personal difficulties considered by the Tribunal, the High Court noted that these post-dated the misconduct which founded the charges but was nevertheless relevant in assessing her subsequent conduct and, ultimately, the appropriate penalty. The Tribunal had rightly observed that while personal circumstances may be taken into account, they could not predominate in the exercise of the protective jurisdiction.
[25] After noting the impressive references the applicant had provided, the High Court concluded:
[59] Our evaluation of the case brings us to the same conclusion as was reached by the Tribunal, that striking off was the only appropriate penalty. The professional misconduct was serious in itself, and the manner of the appellant’s participation in the disciplinary process further limited the available penalty options. Had she been able to recognise her wrongdoing, obtain professional help and present a realistic proposal for her rehabilitation while practising in a supporting environment, an outcome less than striking off may have been appropriate. However, the Tribunal was confronted with a practitioner in a downward spiral, so that protection of the public and the legal profession left but one option. For these reasons the appeal must be dismissed.
Assessment
[26] We are not persuaded that the applicant has raised any question of law and certainly not one that, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.
[27] The nature of the Tribunal’s jurisdiction and the standard of proof required to find charges proved are well settled.[13] Once charges are proved, the Tribunal has a discretion to decide penalty and is required to weigh all relevant factors in the light of the well-understood purposes of disciplinary proceedings including the public interest in the protection of the public.
[28] We accept Mr Nation’s submission that the issues raised effectively amount to an attempt to appeal against the High Court judgment as if it were a general appeal on fact and law and that the complaints made are largely directed to the weight to be attached to relevant factors. On a second appeal, different considerations apply as s 254 of the Lawyers and Conveyancers Act recognises. There is nothing to suggest that any of the issues raised, even if treated as questions of law, has any reasonable prospect of success. In particular:
(a) Neither the Tribunal nor the High Court misconstrued the test for fitness to practise and did not limit their considerations to focusing on the particular matter charged.
(b) There was a clear link established between the conduct complained of and the protection of the public, particularly taking into account the previous finding of misconduct.
(c) It was plainly open to the High Court and the Tribunal to conclude that the applicant’s conduct was sufficiently serious to warrant striking off. In reaching their conclusion, neither the High Court nor the Tribunal limited their consideration to the conduct in question but took into account a full range of factors, both positive and negative.
(d) The High Court and the Tribunal were entitled to take into account the applicant’s previous misconduct although we agree that the High Court was right to limit its consideration to the established charge of misconduct in 2008. We also agree that the applicant’s conduct during the disciplinary process was appropriately weighed since it reflected on the ability of the applicant to conduct herself in future in conformity with her legal and ethical obligations as a practitioner.
(e) We are unable to discern any breach of natural justice. This complaint was not clearly articulated by the applicant but we understand it relates to membership of the Tribunal or Standards Committee by a practitioner who had been involved in the Inland Revenue litigation. This issue has been raised in other proceedings but, as we understand it, the practitioner in question was not a member of the Tribunal in relation to the matters at issue in this application and there does not appear to be any arguable case of a breach of natural justice.
(f) The applicant’s personal difficulties that post-dated the conduct in question were clearly relevant to her ongoing fitness to practise and were properly taken into account. The Tribunal and the High Court were entitled to look both forward and back in assessing penalty.[14]
(g) There is nothing to suggest that the High Court or the Tribunal did not appropriately deal with any factors beyond the applicant’s control. It is evident from the findings both in the High Court and the Tribunal that the focus of the misconduct was on the applicant’s deliberate actions in obtaining a fee as a private retainer when she well knew she was not entitled to do so and her subsequent attempts to explain her conduct by false or misleading evidence at the Tribunal. It is difficult to see how these factors could have been materially influenced by matters beyond the applicant’s control or that they might have been treated less seriously in consequence.
Result
[29] For these reasons:
- (a) The application for extension of time to apply for special leave to appeal is granted.
- (b) The application to adduce further evidence in support of the application for special leave is dismissed.
- (c) The application for special leave to appeal is dismissed.
- (d) The applicant must pay costs to the respondent on a Band A basis with usual disbursements.
Solicitors
Wynn
Williams Solicitors, Christchurch for Respondent
[1] New Zealand Lawyers and Conveyancers Disciplinary Tribunal v Sisson [2011] NZLCDT 35 [Tribunal decision].
[2] Sisson v The Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society [2013] NZHC 349 [High Court judgment].
[3] Sisson v The Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society Complaints Service Standards Committee [2014] NZHC 223.
[4] This followed from her abandonment of earlier appeals (CA41/2013 and CA204/2013).
[5] Following a minute of Ellen France J: Sisson v The Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society Complaints Service CA146/2014, 16 May 2014.
[6] High Court judgment, above n 2.
[7] Which remained applicable by virtue of transitional provisions under the Lawyers and Conveyancers Act 2006 at the time of the conduct in question.
[9] Tribunal decision, above n 1.
[10] Tribunal decision, above n 1.
[11] Bolton v Law Society 1 WLR 512 (CA) at 519.
[12] Citing Hart v Auckland Standards Committee 1 of the New Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103.
[13] Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [115].
[14] See the observations of Sir Anthony Clarke MR in General Medical Council v Meadow [2006] EWCA 1392 at [32].
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