HARDER V THE NEW ZEALAND LAW PRACTITIONERS DISCIPLINARY TRIBUNAL AND ORS HC AK CIV 2008-404-003713 [2008] NZHC 973 (24 June 2008)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                             CIV 2008-404-003713

              UNDER                      the Judicature Amendment Act 1972 or in
                                         the alternative
Part 7 of the High Court
                                         Rules and the Declaratory Judgments Act
                      
                  1908

              IN THE MATTER OF           Section 116 of the Law Practitioners Act
                      
                  1982

              BETWEEN                    CHRISTOPHER LLOYD HARDER
                                      
  Plaintiff

              AND                        THE NEW ZEALAND LAW
                                         PRACTITIONERS
DISCIPLINARY
                                         TRIBUNAL
                                         First Defendant

       
      AND                        THE AUCKLAND DISTRICT LAW
                                         SOCIETY
                    
                    Second Defendant

              AND                        THE NEW ZEALAND LAW SOCIETY
                     
                   Third Defendant


Hearing:      24 June 2008

Appearances: C R Pidgeon QC for Applicant
             S B W Grieve
and J Hudson for New Zealand Law Society
             D P H Jones QC and C Morris for Tribunal

Judgment:     24 June 2008


   
                 ORAL JUDGMENT OF VENNING J



Solicitors:   J Bioletti, Auckland
Copy to:      C R Pidgeon QC, Auckland
       
      S Grieve QC, Auckland
              D Jones QC, Auckland
              J Hudson, Auckland
              C Morris, Auckland



HARDER V THE NEW ZEALAND LAW PRACTITIONERS DISCIPLINARY TRIBUNAL AND ORS HC
AK CIV 2008-404-003713 24 June 2008

Application
for relief


[1]    This is an application for interim relief under s 8 of the Judicature
Amendment Act 1972. The applicant Mr Harder
is at present in the process of
applying to be readmitted to the roll of barristers and solicitors, having previously
been struck
off that roll.     The hearing for that application was scheduled to
commence yesterday Monday, 23 June. An issue has arisen as to
the evidence that
the Tribunal may consider at that application. Mr Harder takes objection to certain
of the evidence that the Tribunal
intends to receive. The matter was raised before the
Tribunal. The Tribunal ruled on it yesterday. It ruled against Mr Harder. The
Tribunal held that the evidence was admissible. Mr Harder seeks to review that
decision before this Court.


[2]    The substantive
relief sought in the statement of claim is declarations that the
ruling was unlawful and invalid and orders preventing or restraining
the Tribunal
from taking any steps in reliance on the said ruling. In the course of submissions
today Mr Pidgeon clarified that essentially
the applicant seeks an order that the
evidence of Mr Harder's past conduct, which did not lead to his being struck off the
roll is
inadmissible at the hearing on his application to be reinstated.


[3]    Given that the Tribunal has been constituted to hear his
application for
reinstatement for two weeks commencing yesterday and as the Tribunal delivered its
reasons for ruling ruled last
night this matter has come before the Court on urgency
today on an application for interim relief. The interim relief sought by Mr
Harder is
an order preventing the Tribunal from proceeding further with the hearing pending
the hearing of the application for substantive
relief.


[4]    The application is opposed by the Auckland District Law Society and New
Zealand Law Society. The Tribunal abides
the decision of the Court.

Background


[5]    The background to the matter can be taken largely from Mr Harder's
affidavit. On
8 February 2006 he appeared before the New Zealand Disciplinary
Tribunal facing a series of misconduct charges involving five complainants.
The
five complainants were Mr A, a client charged with rape; Ms C, a client charged
with burglaries; Mr B, a client charged with attempted murder, Ms E a solicitor;
and a policewoman
Ms D. Mr Harder denied the charges. There were discussions at
the outset and during the course of the hearing between Mr Harder,
his counsel and
counsel for the Auckland District Law Society, Mr Billington QC regarding a
compromise. Ultimately, after extensive
discussions and after evidence on some
counts had been heard, an agreement was reached in principle subject to the
Tribunal's confirmation
that Mr Harder would admit certain representative charges
in relation to all five complainants and consent to being struck off the
roll. Certain
other allegations made by the complainants were not included in the representative
charges and were not pursued at
the time.


[6]    It is apparent from the transcript of the hearing, a partial copy of which was
attached to Mr Harder's affidavit,
that the Tribunal discussed with counsel for the
Law Society at the time the position of the complainants whose complaints were not
pursued in full, in particular Ms C. Ms C had made serious allegations about an
inappropriate relationship with her. The Tribunal
noted in its decision confirming
the striking-off of Mr Harder that they questioned Mr Billington closely about Ms C.
The Tribunal
wanted to be satisfied that she understood the process fully and that she
understood she was able to have given her evidence and
have a determination made
by the Tribunal on her complaints. Mr Billington noted that she was content with
the matter being dealt
with in that way. The Tribunal then went on to note that:

       [52]   Against the background set out above the admission of Mr
Harder of
              the charge of misconduct and certain particulars and his consent
              before us to be struck off
the roll was a proper and sensible course
              for him to take.

And that:

        [53]   To his credit that avoided a
continuation of the hearing. It avoided
               the cross-examination of several complainants and witnesses and
         
     resulted in a significant saving of costs.

        [54]   We wish to record that we regarded the admissions as appropriate
               and view the misconduct that occurred here as serious misconduct
               whether particulars are looked at
individually or cumulatively.

[7]     In light of the compromise, and Mr Harder's consent to being struck off, the
Tribunal did
not need to, and did not inquire into and rule on the other allegations
against Mr Harder.


[8]     The Tribunal recorded that as
part of the agreement the Auckland District
Law Society would not prosecute Mr Harder or rely on, in any future proceedings, a
number
of other complaints as yet unresolved by the Complaints Committee No. 2.
Those complaints were separate to, and did not relate to
the complaints of Mr A or
Ms C. The Auckland District Law Society does not seek to rely on anything in
relation to those complaints
in opposition to Mr Harder's present application.


[9]     Following the decision the complainants' affidavits were sealed and held
on
file.


[10]    Matters moved on. Mr Harder took steps to rehabilitate himself and resolved
to seek readmission to the roll of
barristers and solicitors. On 12 December 2007 he
applied to the Tribunal for admission to the roll.           On 15 January 2008
an
advertisement was placed listing the charges he had admitted to and noting his
application for reinstatement. A number of people
have come forward as a result, in
particular Mr A and Ms C and a new complainant, Mr F.                  Mr F was not a
complainant
before the Tribunal at the strike-off hearing.


[11]    Given Mr A and Ms C's opposition to the reinstatement, the Tribunal
convened
a preliminary hearing. After discussion, the Tribunal ordered that the
sealed affidavits from the February 2006 Tribunal hearing
be unsealed and made
available to the New Zealand Law Society and Auckland District Law Society. The
Tribunal also ruled that before any material contained in those affidavits could be
considered
fresh affidavits were to be filed. I understand that fresh affidavits have

been filed by Mr A and Ms C and that the Auckland District
Law Society wishes to
rely on those in opposition to Mr Harder's application for reinstatement.


[12]   As I have noted Mr F has
also come forward and I understand his opposition
has been reduced to affidavit form which the New Zealand Law Society and
Auckland
District Law Society wish the Tribunal to consider.


[13]   Against that background, Mr Harder seeks the interim orders referred
to.


The test


[14]   The test for interim relief on an application such as this has been variously
stated. In Enza Ltd v Apple
and Pear Export Permits Committee HC WN CP266/00
18 December 2000 Doogue J said that:

       Amongst the circumstances of a case
that the Court often considers in
       respect of s 8 are the strengths and weaknesses of the plaintiff's case, the
       competing
advantages and detriments to the parties, the status quo, the
       balance of convenience, public repercussions as well as private,
and the
       overall justice position.

[15]   In Esekielu v Attorney-General  (1993) 6 PRNZ 309, Hammond J referred to
the Court needing to find:

       A real contest between the parties, and that the applicant has a reasonable
       chance of succeeding in that contest.

[16]   In another decision Osborne v Minister of Education HC HAM M198/99 4
October
1999 Hammond J stated that:

       even allowing for a lower threshold test than that employed in some kinds of
       applications
for interlocutory injunctions, the Court is still entitled to have
       regard to the strength or otherwise of an applicant's case.
A meritless case is
       not entitled to interim relief, otherwise these applications become a mere
       delaying tactic.

Discussion


[17]    The substantive application is essentially directed at obtaining a ruling that
the evidence of Mr A, Ms C and Mr F is not
admissible before the Tribunal on
Mr Harder's application. Mr Pidgeon submits that in light of the decision of the full
Court in
Leary v New Zealand Law Practitioners Disciplinary Tribunal  [2008]
NZAR 57 the evidence should not be admitted because the focus of the Tribunal is
whether Mr Harder is now a fit and proper person to be readmitted
to the legal
professional and that that requires the Tribunal to look forward in time and make a
value judgment on that issue rather
than looking back and considering matters which
did not form the basis of Mr Harder's striking off. He submits the Tribunal is not
entitled to consider matters that did not form the basis of Mr Harder's striking-off.


[18]    Although Mr Pidgeon did not express
it as such the submission was
effectively that there was some form of estoppel preventing the Tribunal from
considering such evidence.
    I am unable to accept that there can be any such
estoppel. The only agreement about complaints that the Auckland District Law
Society would not rely on then or in the future related to the complaints before the
Complaints Committee 2. There was no such agreement
in relation to Mr A or Ms
C's outstanding allegation, and none in relation to Mr F who had not come forward
at that time.


[19]
   Mr Pidgeon also raised a separate point. He submitted that Mr Harder was
disadvantaged because he would be required to answer
the allegations contained in
the affidavits when presenting his case in support of readmission before the
deponents of the affidavits
had been cross-examined. I am unable to accept that that
leads to any particular prejudice on Mr Harder's behalf. The evidence sought
to be
relied on by the Law Society has been reduced to affidavit form. The ambit of the
evidence is constrained by what is contained
in the affidavits. Mr Harder knows the
case he has to answer. The evidence can be challenged under cross-examination. It
can not
be expanded upon to his detriment.


[20]    The real issue is whether Mr Pidgeon is correct in his submission that the
effect of
the Leary decision in requiring the Court to consider whether the applicant

has demonstrated that he is now a fit and proper person
to be admitted as a solicitor
prevents the Court from considering in any way the evidence of Mr A, Ms C and
Mr F in this case.


[21]   The particular passages Mr Pidgeon relies on from the hearing decision are
the passages at para [42] and following in that
decision.

       [42]    Turning to the significant issues raised by the appeal, it is to be
       recalled that the pivotal question
in a restoration application is whether, in
       terms of s 116 (2), the applicant can satisfy the onus of persuading the
    
  Tribunal ­or, on appeal, this Court ­ that he is a "fit and proper person" to be
       readmitted to the legal profession.

 
     [43]     Resolving that question necessarily, as the authorities show, requires
       the Tribunal to look forward in time
and make a value judgment on that
       issue, drawing on evidence of an applicant's past actions.

       [44]    That exercise,
too, necessarily requires an inquiry into the actions
       which led to the striking-off, which, in its turn, involves acceptance
by an
       applicant that those actions occurred and that they transgressed the legal and
       ethical standards of the profession.
Without recognition that the actions
       breached applicable standards and the consequences of the breach -
       particularly
to the public, the Courts and to all other practitioners - it would
       be difficult for the Tribunal to conclude the same actions
would not be
       repeated should similar circumstances arise in the future.

       [45]    But, at least in the manner of their
expression, the concepts of
       "atonement" and "purgation" might now be thought outmoded. Recognition
       of the wrongness
of the earlier acts is necessary for the reasons mentioned.
       But requiring demonstration of "atonement" or "purgation" invites
re-trying
       the earlier matters, even though all authorities agree that should be
       eschewed. Recognition of wrongness
of the acts which led to the striking-
       off should be sufficient. In our view there is much to be commended in the
       approach of Kirby P in Foreman.

[22] 
 Those comments followed the earlier reference by the Court to passages from
Re Lundon  [1923] NZLR 236 and the judgment of Isaacs J in Incorporated Law
Institute of New South Wales v Meagher [1909] HCA 87;  (1909) 9 CLR 655, 681.


[23]   The inquiry is primarily a forward looking one, directed at whether the
applicant has rehabilitated him or herself
so that they are a fit and proper person to
be readmitted.


[24]   The issue is whether that means the Tribunal is prevented from
considering
the evidence of Mr A and Ms C whose evidence was before the Tribunal at the

striking-off hearing but was not considered
and ruled on in striking Mr Harder off,
and the evidence of Mr F, who did not feature at that hearing.


[25]   The answer to the
issue in my judgment is that, as Mr Jones submitted, the
Tribunal's role is investigative. It has, as its overriding function, consideration
of
the public interest. While the Tribunal must focus on and consider whether the
applicant for reinstatement to the roll has, since
committing the conduct which led to
his or her being struck off, rehabilitated him or herself, the extent of that conduct
leading
to the strike-off and also other relevant conduct of concern must be a
relevant consideration. That is apparent from the decisions
referred to in Leary
itself, for example in the decision of Incorporated Law Institute of New South Wales
v Meagher the Court suggested
that an error, though flagrant, proving to be a solitary
lapse may have been addressed after sufficient time. If there was more than
one
lapse in conduct that must be relevant.


[26]   If a person seeking to be readmitted has engaged in a number of different acts
which might impinge on his or her fitness for practice as a law practitioner, then it
must be open to the Tribunal to consider those
actions whether or not they formed
the basis of the strike-off order in the first instance. The role of the Tribunal is to
have regard
to public interest and particularly those members of the public dealing
with practitioners. It seems to me there is force in Mr Jones'
submission that if a
person was struck off for dishonesty but evidence became available at a later date of
other character failings
which made that person unfit to practise as a solicitor then
the Tribunal could not ignore that other evidence. It would be open
to the Tribunal
to consider such evidence when considering an application for reinstatement even if
the person had addressed the
issue of dishonesty.


[27]   The comments of the full Court Leary must be considered against the
background that in Leary's case
the complaints related to events occurring 25-30
years previously. In Leary the Court referred to an inquiry into the actions which
led
to the striking-off. There is an inquiry is into the actions of the practitioner at that
time. If there are other actions which,
although not forming the basis of the striking
off, are of sufficient concern then that must be a matter which, if proved, the
Tribunal
could properly have regard to and consider on an application for

reinstatement. At the end of the day it is a question of the weight
to be given to that
evidence rather than an issue of whether the evidence is inadmissible as such.


[28]   I can see no proper or
reasoned basis upon which it could be said that such
evidence could be inadmissible and should not be led. The aspects of the complaints
in issue were not ruled on. There was no agreement that the complaints of Mr A and
Ms C would not be referred to in the future as
there was in relation to the other
complaints before the Complaints Committee 2. What happened at the strike-off
hearing was that
the evidence and hearing had progressed to the stage where Mr
Harder accepted that the evidence against him was such that a strike-off
was likely.
On that basis amended charges were presented which he accepted and as a matter of
consent was struck off. The balance
of the complaints were not dealt with on their
merits nor were they disposed of one way or the other. The evidence relating to
those
matters is potentially relevant to the inquiry of the Tribunal at present,
assuming they are proved. It will then be for the Tribunal
to determine the weight to
give them. There is no estoppel nor any other basis upon which the evidence could
be said to be inadmissible as such.


[29]   The evidence of Mr A and Ms C is, in that context, no different to the
evidence of Mr F. Any person interested in the application
for reinstatement has the
right to present evidence to the Tribunal in opposition to Mr Harder's application. It
is question of whether
or not the Tribunal finds the complaint that that person has
about Mr Harder's conduct proven and if it does whether the Tribunal
regards that as
serious or not and again if it does the weight the Tribunal might give it given the
passage of time since the conduct
referred to and in light of the rehabilitative steps
that Mr Harder has taken since he was struck off and particularly since the
alleged
actions occurred.


[30]   Finally Mr Pidgeon submitted that the Court should make an interim order
for interim relief and
allow further time for research and consideration whether
anything could be gained from overseas jurisdictions in relation to this
matter. I
have considered whether that was appropriate. In my analysis it seems clear enough
that this matter turns on application
of the Leary decision and general principles of
law. I frankly cannot see any basis upon which adjourning the matter further would

lead to any different outcome. The short issue is whether there is any arguable basis
upon which the evidence of Mr A, Ms C and
Mr F could be ruled inadmissible or
any justiciable basis upon which the Tribunal could be ordered not to have regard to
that evidence.
I find there is no such basis. For that reason I see no reason to make
any interim order and adjourn the matter further, particularly
bearing in mind that the
Tribunal is currently constituted and available to deal with Mr Harder's application.


[31]     The fact
that allegations are made in affidavits does not amount to proof of
them. Mr Harder has his rights to answer the allegations and
to have the objectors
cross-examined. And of course Mr Harder's counsel can note objection to the
evidence. It will then be for the
Tribunal to record in its decision the way that it
deals with those particular objections and whether it accepts the evidence, and
if so,
the weight to be given to it. Mr Harder's position will therefore be preserved on
appeal if there was any particular merit
in the objection. At the present I frankly fail
to see any basis upon which the final order sought that the evidence is inadmissible
could be made.


Result


[32]     For those reasons I dismiss the application for interim relief. Mr Pidgeon
advises me that Mr
Harder has made application for legal aid. I reserve the issue of
costs.




                                              __________________________
                                              Venning J