Ellis v Legal Complaints Review Officer [2013] NZHC 3514 (20 December 2013)

Last Updated: 11 March 2014

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES, WITH THE EXCEPTION OF THE APPLICANT FOR JUDICIAL REVIEW.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-872 [2013] NZHC 3514

UNDER the Judicature Amendment Act 1972 and

Part 30 of the High Court Rules

IN THE MATTER OF an application for judicial review

BETWEEN TONY ELLIS Applicant

AND THE LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

WELLINGTON LAWYERS STANDARDS COMMITTEE Second Respondent

THE NEW ZEALAND LAW SOCIETY Intervenor

Hearing: 22 May 2013

Counsel: M S Smith for Applicant

B Brown QC and V Casey for Respondents

Judgment: 20 December 2013

_{JUDGMENT OF WILLIAMS J}

Introduction

[1] This is an application for judicial review. The applicant is Mr Tony Ellis, a barrister. On 17 November 2009 Mr Ellis applied for a writ of habeas corpus in

_{relation to a 21 year old man, J. J has Down Syndrome and associated intellectual}

ELLIS v THE LEGAL COMPLAINTS REVIEW OFFICER [2013] NZHC 3514 [20 December 2013]

disabilities. At the time, J was subject to a welfare guardian appointment under s 12 of the Protection of Personal and Property Rights Act 1988 (PPPA). The appointment was in favour of his mother, Mrs E. The application for habeas corpus was denied. The judgment raised questions about whether Mr Ellis had instructions to make the application at all. After the hearing, Mrs E complained about Mr Ellis to the New Zealand Law Society Lawyers Complaints Service. She complained that Mr Ellis had breached the lawyer’s code of conduct by proceeding without proper, or indeed any instructions from J.

[2] The Wellington Lawyers Standards Committee (the Committee) heard the complaint. It made a finding of unsatisfactory conduct against Mr Ellis.¹ The committee found that he had indeed proceeded without instructions. Mr Ellis appealed against that decision to the Legal Complaints Review Officer (LCRO). The LCRO upheld the Committee’s decision. Mr Ellis now seeks judicial review of the LCRO’s decision.

Background facts

[3] On 15 November 2009, Mr Ellis was approached by a woman called Ms H who told him her daughter, S, was in a relationship with J.² S also has Down Syndrome and associated intellectual disabilities.

[4] Ms H said that J was being held by his parents against his will and was not being permitted to contact a lawyer. She said that she was approaching Mr Ellis on behalf of J and that J wanted Mr Ellis’ help.

[5] Ms H gave Mr Ellis copies of three typed letters, saying that J had given them to S on an unknown date. S gave the letters to Ms H on 14 November 2009.³ In the

_{first letter, J wrote:}

¹ _{Lawyers and Conveyancers Act 2006, s 152(2)(b)(i).}

² _{Ms H’s daughter’s name begins with a J. I will refer to her as S to avoid confusion.}

3. In the course of these proceedings, these letters have also been described as email communication between S and J. That is incorrect.

Dear [S]

I am so sorry, sorry and sorry for everything last night. You are right my Mum and Dad was bring a dirk with me I am trip here I need help me go ahead call the police office. That was kidnaper I need help I want be with you gays. Yes I need new family [Ms H] is my new Mum I like that way I really, really, need help. From [J].

[6] In the second letter, J wrote:

Dear [S] Family

I better tell you this my Mum tells more lies on me. My Mum and Dad says eat more vegetables and fruit. My Mum and Dad I always eat all the time pasty, pasty and pasty with mince all the time we always different food all the time. With no mince all the time. I am so sorry for everything Mum and Dad is not helping me so much I am not trust him any more but because kidnaper and no phone calls to [S] any to call him. That so at fare on me thank you. I am not move my Mum and Dad place is not working here so much but yes I need help. My Lover is Allison thank you.⁴

[7] In the third letter, J wrote:

Dear [Ms H]

I am so sorry, sorry and sorry for everything. You go ahead call the police office I really, really and really need help me with my family is being dike with me. I am so worried about you gays I need help I know who be if [S] want me badly. I am so sorry, sorry, sorry I want be if you gays so much thank you. From [J].

[8] On 17 November (i.e. two days after her approach to Mr Ellis), Ms H swore an affidavit in support of the application for a writ of habeas corpus. The factual narrative according to that affidavit was as follows:

(a) Ms H met with the E three times to discuss S and J living together and to agree on what support they would need.

(b) J and S moved into a flat together on 15 May 2009.

(c) S received a needs assessment from a specialist agency called Life

_{Unlimited within two weeks of the move. S was to receive two hours}

⁴ It appears that J meant to refer to Allison as his lawyer, not lover. Allison is not a reference to S.

cleaning support per week, beginning four weeks after she began living in the flat.

(d) On 29 May, the Es told Ms H they wanted J to move home. She disagreed. After this, Ms H’s relationship with J’s parents deteriorated.

(e) J told Ms H about his conflict with his family over his relationship with S. Ms H was supportive and told him to contact other people for advice.

(f) The Es decided that S and J should receive separate disability support services.

(g) After four months of J and S living together, the Es arranged with

CCS Disability Action (CCS) for J to receive 11 hours living support.

(h) This support caused conflict. S complained about receiving shopping and cooking support when these activities had previously been done independently. Ms H spoke with the Es and with CCS but neither of those parties was prepared to withdraw the shopping support.

(i) Ms H organised for an expert to speak with J and S about sexuality and relationships. This upset the Es.

(j) In early September, Ms H met with the Es to discuss J and S’ support

arrangements. The two families agreed to work together.

(k) On 28 October, S and J agreed with Life Unlimited to stop receiving shopping support. Mrs E disagreed with this decision. Following this, S and J asked to live at Ms H’s house. The Es disagreed with that option.

(l) Notice was given at S and J’s flat that it was to be vacated on

23 November.⁵

(m) On 11 November, J’s brother took him on an outing. When he

returned, J told S he would be moving in with the Es in 10 days.

(n) Later that day, J asked to stay the night with S at Ms H’s house. She agreed. The Es then took J back to their house. J rang Ms H and said he had changed his mind about living with his parents. Mrs E rang Ms H and said she had obtained a welfare guardian order and that J would now live with her.

(o) Ms H told CCS and the police that she was concerned J was being held against his will.

(p) On 13 November, S and J graduated from Polytechnic. At the after- party, J told Ms H that he did not want to live with his parents but they would not let him leave. He asked her for help.

(q) Ms H contacted the Police again.

(r) Mr and Mrs E’s lawyer sent her a letter saying that the Es were considering applying for a protection order if she had any further contact with J.

(s) On 14 November, J and Mr Ellis went to J’s flat to pack his belongings. S met them there. S and J “escaped” from Mr Ellis and went to the police station. The police contacted the Es.

(t) On 15 November, Ms H contacted the police for assistance. The police said they would not become involved unless the court directed their involvement or there was a crisis event that required their

_{intervention.}

5. The affidavit does not state who gave this notice. Presumably S and J continued to live at their flat in the interim.

(u) That night, Ms H phoned Mr Ellis.

[9] Ms H also gave Mr Ellis a statement purporting to be from S, expressed in the first person. In summary, the statement said that:

(a) the Es had taken J to their house, where he was now confined; (b) the Es are preventing J from seeing S;

(c) S’ phone calls to J have been answered by the Es, who told her not to ring;

(d) J told S that he wants help and does not want to live with his parents; (e) J and S went to the police station for help but the police rang the Es;

(f) on Sunday night J rang S in an upset state and said his father had hurt him during a fight; and

(g) J’s parents were sending J to Nelson on Tuesday 17 November.

[10] Ms H wrote this statement after she had spoken with S. The statement therefore appears to contain an element of Ms H’s own voice. I note what Mrs E said to the New Zealand Law Society:

... It is inconceivable that it [the statement] is dictated by [S], she is of very limited capacity and unable to form sentences or paragraphs. Her vocabulary range is very limited.

[11] The extent and reliability of the information Mr Ellis had when he filed the application on 17 November 2009 is crucial in this case. In summary, Mr Ellis had information from the following sources:

(a) the information from his initial conversation with Ms H; (b) Ms H’s affidavit;

(c) S’s statement about J via Ms H; and

(d) J’s three letters to S.

He had not at any stage spoken to J.

[12] Mr Ellis also knew that Mrs E was J’s welfare guardian. This order gave her authority to make decisions in relation to all aspects of J’s personal care and welfare.⁶ It meant that the Family Court was satisfied that J wholly lacked the capacity to make or to communicate decisions relating to any particular aspect of his personal care and welfare.⁷

[13] The precautions Mr Ellis took before he filed the application are also important. On 17 November (two days after he had spoken with Ms H and the day he filed the habeas corpus application), Mr Ellis said he consulted his instructing solicitor and the late George Barton QC on the appropriateness of filing a habeas corpus application and in whose name it should be made.

[14] That same day, Mr Ellis rang J’s mobile phone to discuss the applications but received no answer. Mr Ellis treated J’s failure to pick up as corroboration of his concern that J was being held against his will and did not have access to a lawyer.

[15] That same day, Mr Ellis decided to file the application.

[16] Shortly afterwards, Ms H rang J. This is her account of her conversation with

J:

I told him [J] that there was a man named Tony who is a lawyer who wants to give him the help he has been asking for. I asked [J] if he would like Tony’s help. He said “yes please, that would be good”. I then said OK then, Tony will help you by talking to the High Court. Is that okay? [J] said “yes that is okay”. I then said OK then, are you OK to appoint Tony Ellis as your lawyer to help you at court? He said “yes, please that would be very good, thank you”.

⁶ _{AJE-1 attached to the second affidavit of Mr Ellis dated 29 January 2013 at [13].}

7. Protection of Personal and Property Rights Act 1988, s 12(2)(a). Mr Ellis referred to this provision in his submissions in support of application for writ of habeas corpus.

[17] Following that conversation, Ms H emailed J at 6.44 pm that night to confirm that the application had been filed and to give him Mr Ellis’ contact details.

[18] The next day, on 18 November, Ms H told Mr Ellis about her conversation with J.⁸

[19] That same day at 6.20 pm, J telephoned Mr Ellis and left a message. The message was:⁹

Hi Tony

[J] Here. Yes I need help

But I want to leave my House with my Mum and my Day but because in my...

I want to be with [S] at my flat. Okay. Thank you so much.

I want to leave my Mum and my Dad. But because it my CHOICE.

This is what my decision will be. I want to be with [S] at my flat. Okay thanks see you.

[20] The application was heard on 19 November.¹⁰ Simon France J dismissed the application on two grounds. First, the welfare guardian order empowered Mrs E and only Mrs E to make decisions about where J lives.¹¹ Second, Mrs E had established that J was not, in any event, being detained.¹²

[21] Simon France J made the following comment about the relationship between

Ms H and J:¹³

Ms Mamea-Hind [Regional Manager of CCS Disability Action] and her service co-ordinator met on 12 November with [J] and his parents. Statements that [J] is said to have made at that meeting give a further basis for concern over Ms [H’s] role. Obviously the Court is in no position to assess these matters, but the statements as recorded suggest inappropriate influence.

⁸ This means that on 18 November 2009, before the hearing on 19 November, Mr Ellis knew that [J] had been contacted by Ms H. This should have been enough to refute his belief, based on his one failed attempt to contact [J], that [J] was incommunicado.

⁹ _{Amended statement of claim, 29 January at [10.4].}

¹⁰ _{E v E HC Wellington CIV-2009-485-2335, 19 November 2009.}

¹¹ _{At [43].}

¹² _{At [56].}

¹³ At [24].

[22] Simon France J made no finding on the issue of whether Mr Ellis had authority to act for J. But he did observe that:¹⁴

... the circumstances of that communication, [the phone conversation between Ms H and [J] on 17 November after the application was filed] and the absence of any attempt by counsel or instructing solicitor to speak to [J] themselves, means in my view there is an issue to resolve which may be relevant to liability for costs. That will be addressed by separate minute.¹⁵

[23] In his evidence in the complaint proceedings, Mr Ellis deposed that J contacted him on two occasions following the hearing. On 23 November, J rang Mr Ellis and left the following phone message:

Hi Tony,

[J] here. I made my mind up. I want to be with [S] please.

But I think of [S] could you help me. But because my Mum and Dad always fight with me to make me do it.

Thanks see you.

[24] On 30 November, J rang Mr Ellis and left another message, saying that:

Hi Tony,

It’s me. I also need to have a talk with you. But I know I will choose.

I’ve got it in my head because I want to be with [S]. Okay. I’m certain about this I want to be with [S].

Okay thanks see you.

[25] That provides an outline of the background facts that gave rise to the complaint to the Committee. In summary, Ms H came to Mr Ellis on behalf of J. Mr Ellis decided to file an application for a writ of habeas corpus on the basis of:

(a) the information from his initial conversation with Ms H; (b) Ms H’s affidavit;

_{(c) S’s statement via Ms H;}

¹⁴ _{At [29].}

¹⁵ Note that Mr and Mrs E decided not to seek costs against Tony or Ms H.

(d) J’s three letters to S;

(e) consultation with his instruction solicitor and a senior silk; and

(f) the fact that his phone call to J’s mobile phone had not been

answered.

[26] Several hours after the application was filed Ms H rang and told him about the application. The next day, J left a message on Mr Ellis’ phone confirming that he wanted Mr Ellis’ assistance.

[27] Before turning to the Committee’s decision, it is necessary to add some legal context to the factual context already outlined. In particular, the potential tension between the important values protected in the Habeas Corpus Act 2001 (HCA) and those protected in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Ethics Rules) is central to this proceeding.

The Habeas Corpus Act 2001

[28] The writ of Habeas Corpus is unique and stands apart from other remedies. Habeas corpus was described in a Law Commission report as:¹⁶

the right of every individual not be imprisoned or detained either by the Government acting arbitrarily and without due process or by the wrongful act of another citizen or citizens. (my emphasis).

[29] The purpose of the writ is to secure release of an unlawfully detained person. The right to habeas corpus is a creature sourced in the common law and referred to in the New Zealand Bill of Rights Act 1990 (NZBORA). Section 22 of that Act provides that every person has the right not to be arbitrarily detained. Section 23(1)(c) provides that everyone who is arrested or detained under any enactment has the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if detention is not lawful.

_{[30] The purposes of the HCA are as follows:}¹⁷

¹⁶ Law Commission Habeas Corpus Procedure (NZLC R44, 1997) at 1.

(a) to reaffirm the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty; and

(b) to make better provision for restoring the liberty of persons unlawfully detained by establishing an effective procedure for applications to the High Court for the issue of a writ of habeas corpus, and the expeditious determination of those applications.

[31] The machinery provisions of the HCA are designed to implement those purposes. A number of provisions operate to promote and ensure access to habeas corpus. An application can be made orally or in writing.¹⁸ No applicant is disqualified for lack of capacity or standing.¹⁹ Discovery and security for costs are

_excluded.²⁰ _{No filing fees are payable for applications.}²¹

[32] In addition, a number of provisions operate to promote swift determination of applications. A person who wilfully hinders the prompt disposal of an application commits a contempt of court.²² An application must be given precedence over all

other matters unless the Judge considers that the circumstances require otherwise.²³

Every application must be disposed of as a matter of priority and urgency.²⁴ The application must be heard within three working days after an application is filed.

[33] In summary, the Habeas Corpus Act 2001 provides a special legislative framework to reflect the unique nature and ancient lineage of the writ of habeas corpus.

The Lawyers and Conveyancers Act 2006

[34] The nature and purpose of the complaints and discipline procedure outlined by the Lawyers and Conveyancers Act 2006 (the LCA) is also obviously an

_{important part of the legal context of this review.}

¹⁷ _{Habeas Corpus Act, s 5(a).}

¹⁸ _{Section 7(2).}

¹⁹ _{Section 7(4).}

²⁰ _{Section 7(5).}

²¹ _{Section 7(6).}

²² _{Section 19(1)(a).}

²³ _{Section 9(1).}

²⁴ Section 9(2).

[35] The purposes of the LCA are to:²⁵

(a) to maintain public confidence in the provision of legal services and conveyancing services;

(b) to protect the consumers of legal services and conveyancing services;

and

(c) to recognise the status of the legal profession and to establish the new profession of conveyancing practitioner.

[36] To achieve those purposes, the LCA endeavours to provide for a more responsive regulatory regime in relation to lawyers and conveyancers:²⁶

[37] Section 4 of the LCA provides that every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:

(a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand;

(b) the obligation to be independent in providing regulated services to his or her clients;

(c) the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients; and

(d) the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.

[38] Section 95 of the LCA provides for the NZLS to establish a code of professional conduct and client care, the Ethics Rules. The Ethics Rules set out

²⁵ _{Lawyers and Conveyancers Act 2006, s 3(1).}

²⁶ Section 3(2).

“general propositions as to how practitioners should act, as well as proscribing and permitting and directing conduct in specific situations.”²⁷ In doing so, the Ethics Rules provide “guidance” to a competent practitioner “as to what was satisfactory conduct” for a practitioner acting in particular contexts.”²⁸

[39] Rule 13.3 is central to this proceeding. It provides that:

Subject to the lawyer's overriding duty to the court, a lawyer must obtain and follow a client’s instructions on significant decisions in respect of the conduct of litigation. Those instructions should be taken after the client is informed by the lawyer of the nature of the decisions to be made and the consequences of them.

[40] The footnote to r 13.3 provides an example as follows:

... a lawyer should never seek or agree to a consent order without the client's authority, nor should a lawyer for the defence in a criminal trial disclose, without the client's authority, the fact that the client has previous convictions or other charges pending.

[41] Part 7 of the LCA establishes the framework for complaints and discipline. The framework is designed so that disciplinary charges may be heard and determined expeditiously.²⁹ The framework comprises two levels of disciplinary response. The Standards Committees comprise the first level and lowest of the complaints and discipline framework. Each Committee consists of at least three persons, one of whom must be a lay member.³⁰

[42] The second level comprises complaints prosecuted before the New Zealand

Lawyers and Conveyancers Disciplinary Tribunal.

[43] All complaints are initially considered by one of the Committees. The Committee then decides whether to take no further action, determine that there has been unsatisfactory conduct or, if the facts warrant it, to refer the matter up to the

_{Disciplinary Tribunal.}³¹

²⁷ _{Harold v LCRO [2012] 2 NZLR 559 (HC) at [35].}

²⁸ _{At [53].}

²⁹ _{Lawyers and Conveyancers Act 2006, s 120(3).}

³⁰ _{Section 129(1) and (2).}

³¹ Section 152.

[44] A finding of ‘unsatisfactory conduct’ is therefore a finding of wrongful conduct at the lowest end of the culpability scale.³² “Unsatisfactory conduct” for lawyers is defined as:³³

(a) conduct ... that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer; or

(b) conduct ... that would be regarded by lawyers of good standing as being unacceptable, including—

(i) conduct unbecoming a lawyer or an incorporated law firm;

or

(ii) unprofessional conduct; or

(c) conduct consisting of a contravention of this Act, or of any regulations or practice rules made under this Act ... or of any other Act relating to the provision of regulated services (not being a contravention that amounts to misconduct under section 7); or

(d) conduct consisting of a failure ... to comply with a condition or restriction to which a practising certificate ... is subject (not being a failure that amounts to misconduct under section 7).

[45] If a finding of “unsatisfactory conduct” is made, the Committee may make a range of relatively minor orders including censuring or reprimanding the practitioner and/or ordering:

(a) an apology;

(b) payment of compensation up to $25,000; (c) a reduction or cancellation of fees;

(d) rectification of errors or omissions; (e) a fine not exceeding $15,000; or

_{(f) further training or future inspections.}

³² _{Contrast s 241, for charges that can be laid in the Disciplinary Tribunal for example, misconduct.}

³³ Section 12.

[46] Parties can seek a review of the Committee decision by the LCRO. The LCRO can confirm, modify or reverse any decision of the Committee, exercise any power of the Committee or direct the Committee to reconsider a decision.³⁴ The LCA provides that the LCRO is not to be a lawyer or a conveyancing practitioner.³⁵

There is no right to appeal the LCRO’s decision. This was intended to reflect the low-end, summary nature of the process. Further recourse is therefore only by way of judicial review.

[47] If the Committee or the LCRO consider the conduct to be more serious, they may refer the matter to the Disciplinary Tribunal. There is a right of appeal to the High Court from decisions of the Disciplinary Tribunal, with a further right of appeal to the Court of Appeal on questions of law.³⁶

[48] It can be seen that there is a potential tension between the LCA’s careful concern to ensure that counsel adhere to their obligations to clients and the ability of counsel to deploy habeas corpus in emergency situations where it is difficult to obtain instructions. That tension is present in this case.

The complaint to the New Zealand Law Society Lawyers Complaints Service

[49] On 18 December 2009, Mrs E made a complaint to the Law Society in relation to Mr Ellis’ actions in the habeas application. The complaint was referred to the Committee for consideration.

[50] The Committee dealt with Mrs E’s complaint by separating it into four

different sub-complaints:³⁷

_{(a) that Mr Ellis did not have authority from J to file the application;}

³⁴ _{Sections 211 and 209.}

³⁵ _{Section 190(1).}

³⁶ _{Section 253 and 254.}

³⁷ The first page of the Committee decision divides the complaint into three complaints. But the Committee’s determination divides the complaint into four complaints. The LCRO dealt with the matter on that basis. For clarity, I have started by dividing the complaint into four complaints.

(b) that following the hearing, Mr Ellis still purported to act for J and further, had sought retrospective authority from J for the application;

(c) that Mr Ellis met with J on 14 December 2009. He did not allow the Es to attend the first ten minutes of the meeting and refused to tell them what happened during that time; and

(d) that Mr Ellis sent an intimidating letter to Ms E’s lawyer, Ms Douglass, concerning costs.

The decision of the Wellington Lawyers Standards Committee

[51] On 2 August 2010, the Committee issued a decision on Mrs E’s complaint, making a finding of unsatisfactory conduct against Mr Ellis. The reasons it gave that are relevant to this discussion are set out below:

1. The first complaint is that Mr Ellis had no authority to file the High Court proceedings on [J’s] behalf. Taking such a step has consequences as to costs for the party and it is most important that a client understand such consequences.

2. The Committee’s view is that Mr Ellis did not have such authority.

His first contact with [J] was the phone message on 18 November

2009, which was after the proceedings had been filed (on

17 November 2009).

3. It is clear that authority was not given until after the event.

4. It is not at all clear that [J] could understand complex legal issues.

...

6. The second complaint was that only retrospective instructions were obtained by Mr Ellis, and retrospective instructions were not appropriate in this situation.

7. There is a distinction between an authority to act generally and an authority to act in a specific matter with costs consequences for the client.

8. Mr Ellis should at least have attempted to ring his client before the proceedings were filed.³⁸

_{9. It appear (sic) [Ms H] was the source of his instructions.}

38. Note: Mr Ellis alleges that he did attempt to ring [J] before filing proceedings. [J] did not answer his cell phone.
    10. Mr Ellis knew [J] was in Nelson on the day of the hearing so he knew [J] had not been kidnapped.³⁹

[52] On 6 September 2010, Mr Ellis applied to the LCRO for a review of the

Committee’s decision.

The decision of the Legal Complaints Review Officer

[53] The LCRO dealt with the Committee’s decision on the basis that:

The Committee’s adverse finding was based squarely on a finding that there had been no authority (from [J]) to act. The Committee noted that the Practitioner’s first contact with [J] (a telephone message) occurred after the application had been filed in the Court. The Committee further commented that it was not at all clear that [J] could understand complex legal issues.

[54] The LCRO took careful note of the information in front of Mr Ellis when he filed the application and the information provided by Mrs E that:

(a) J had no concept of ‘kidnapping’;

(b) J often wrote letters on his computer, mostly to S;

(c) J’s phone use was restricted because his phone calls to S often lasted for three or more hours and continued until late at night;

(d) J had the telephone number of his own lawyer (appointed by the court) and was able to, and indeed did, call the lawyer when he wished to do so;⁴⁰ and

(e) no restrictions were placed on J making or receiving telephone calls while on a visit to Nelson.

39. Note: Mr Ellis says that Ms H advised him that [J] had been removed to Nelson against his will to be out of reach of S and others.
40. Mr Bradley was not appointed by the Court to represent [J] until 23 November 2009. It is unclear whether he is the lawyer that Mrs E is referring to.

[55] The LCRO accepted that:

... much if not most of this [the above information] would not have been known to the Practitioner [Mr Ellis] as he did not contact the complainant or make enquiry elsewhere. He relied solely on information and evidence provided to him by Ms H.

[56] The LCRO then assessed the evidence relied on by Mr Ellis. Of J’s letters to

S she found:

The word ‘kidnap’ appears in two of the emails but in a context that reveals no comprehension at all of that term. It is fair to say that the emails are far from coherent, and the most that could be discerned from them is [J’s] disgruntlement with his parents and about having to eat healthy food (fruit and vegetables), and wanting to be with S.

I have difficulty in seeing how the emails could have been interpreted in the way that the Practitioner has suggested. On the basis of the emails alone (which are forwarded as the main evidence of [J’s] claim of kidnapping) it could be reasonably concluded that [J] had no concept of kidnapping. This is also supported by [J’s] visit to the police station to report being kidnapped.⁴¹

[57] In relation to Ms H’s affidavit, the LCRO found:

[The affidavit included] ... background information about [J] and [S’] flatting experience, the discussions between her and the Complainant about how [J] and [S] could be supported, and discloses tensions arising when Ms H’s proposal for [J] to live with [S] at her home were not supported by the Complainant. Ms H referred to the complainant’s concerns about her (Ms H’s) contact with [J], to the extent that apparently the Complainant had considered applying for a protection order. Ms H stated that she did not consider that [J’s] parents had the right to separate [J] and [S] nor did they have the right to hold [J] against his will. Her concern was that [J] was not allowed to be with [S].

_{The above provides a context in which the Practitioner assessed claims by}

Ms H that [J] had been kidnapped or unlawfully detained by his parents.⁴²

[58] The LCRO continued:

I have considerable doubts that the information on which the Practitioner proceeded could, on any reasonable analysis, be considered a proper basis for such a proceeding. The evidence of kidnapping was flimsy to say the least, and that the Practitioner knew that [J’s] mother was his lawful welfare guardian must throw doubt on whether it could be said that [J] had been lawfully detained. The evidence that [J] was unable to be reached by

41. Note: the LCRO describes these as emails. This is incorrect. [J] typed these notes on his computer, printed them out, and gave them to S. See above n 3.

⁴² The emphasis added in italics is my own. The emphasis in bold is the author’s.

telephone was barely tested by the Practitioner. He made one (unsuccessful) attempt to contact [J] and took no further steps, apparently prepared to accept Ms H’s advice. The evidence indicates that there was nothing to have prevented the Practitioner from contacting [J], and discerning for himself whether [J’s] circumstances were in fact as had been portrayed by Ms H.

[59] The LCRO opined that all of the information provided by Ms H and S had a distinctly “domestic” flavour. The LCRO was clearly of the view that Mr Ellis should have recognised Ms H’s ulterior motive in seeking his assistance (to have J live with S in their flat or in her own home, against the E’s wishes).

[60] The LCRO also found that there was little basis upon which to conclude that there was a risk of harm to J, or any urgency in the situation.

[61] The LCRO concluded:

... In my view the above evidence did not reasonably support that [J] was incommunicado, or was at risk of harm, or that he had been kidnapped or otherwise unlawfully detained.

...

... It ought to have been apparent to him on the evidence that there were risks in relying on the information he was given.

The Practitioner made no other enquiries to test or verify the information he had been given, although there were opportunities for him to have done so, including contacting the Complainant or her solicitor, before filing the application. I am troubled by his failure to have made further inquiry to ascertain the basis of Ms H’s allegations, or to question whether there was a proper circumstance in which to file a writ of habeas corpus. Given the context of Ms H’s concerns and the circumstances to which I have referred, it seems to me that the Practitioner ought to have made at least some enquiry to verify Ms H’s information.

...

I accept that there are circumstances where a human rights lawyer will necessarily rely on information of third parties, and where there may be less than clear circumstances. For reasons given I do not agree that the present case is one of those situations. Accepting that the Practitioner acted with the best of intentions, it is my view that in this case he misjudged the circumstances and proceeded to file the application in circumstances of very doubtful evidence and authority.

Analysis

[62] Having set out the legal and factual context in this exhaustive way, I turn now to consider the arguments advanced on behalf of Mr Ellis and the New Zealand Law Society as intervener.

[63] The structure of what remains will be as follows:

(a) Further evidence before the court on judicial review. (b) The scope of judicial review.

(c) Whether J was able to provide instructions. (d) The grounds of review –

(i) whether the LCRO erred in her analysis of inferred instructions;

(ii) whether the LCRO erred in failing to address the defence of retrospective authority; and

(iii) whether the LCRO erred in not seeking evidence from J, or in failing to explain why she did not seek evidence from J.

(e) The appropriate remedy, if any.

Further evidence before the court on judicial review

[64] Mr Ellis sought to adduce two items of further evidence. The first is an affidavit from Professor McCoy QC, an internationally recognised habeas corpus expert. The second is an affidavit from Mr Geiringer, occasional counsel for J.

Affidavit of Professor McCoy QC

[65] Professor McCoy QC is a professor of Law at City University of Hong Kong and an Adjunct Professor of Law at Canterbury University. His evidence is directed to his experience of the law and practice of habeas corpus in other common law jurisdictions.

[66] Mr Brown QC, for the NZLS, challenged the admissibility of this affidavit on two bases:

(a) The affidavit is presented as expert evidence. He said expert evidence on the law of New Zealand is not admissible.

(b) New opinion evidence, not presented to the decision maker, is rarely helpful to demonstrate that a decision on what is essentially an evaluative exercise was unreasonable when made.⁴³

[67] It is not necessary to determine the admissibility of this affidavit because, put simply, it did not contain any information that was not available to me from the deponents’ scholarly writing and more generally from scholarly writing on the subject.⁴⁴ For example, it is well accepted that applications for habeas corpus are quite different to an ordinary or orthodox proceeding. It is also obvious that a practitioner filing a habeas corpus application may be forced to make a spot diagnosis based on limited information, and that such a decision should not be unfairly judged with the benefit of hindsight. Similarly, the potential for a “chilling”

effect on future applications from a finding in this case of unsatisfactory conduct is obviously relevant if not decisive.

[68] For that reason, I do not need to rely on Professor McCoy’s evidence in reaching my decision, though the principles he enunciates are of course very relevant

_{and available to me from various sources.}

⁴³ Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 at 658.

⁴⁴ See David Clark and Gerard McCoy Habeas Corpus: Australia, New Zealand, the South Pacific (The Federation Press, Sydney, 2000); David Clark and Gerard McCoy The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth (Oxford University Press, Oxford, 2000).

Affidavit of Mr Geiringer

[69] Mr Geiringer has acted for J in respect of several matters. Attached to his affidavit is a letter he wrote to the Committee in support of Mr Ellis’ response to Mrs E’s second complaint. The letter states:

... when I met J he was eager for Mr Ellis to be his counsel and told me that he liked and trusted Mr Ellis ...

...

... there is no question that [J] has impediments to his ability to understand some things and to articulate himself on some issues that the average adult does not have... With respect to [J], I can say that I have received and acted on his instructions and that I would not have done so unless both my instructing solicitor and I were satisfied that [J] had the legal capacity to give us those instructions.

[70] Mr Brown argued that this affidavit does not relate to the events that gave rise to the disciplinary proceedings and is therefore not relevant. He says it is inadmissible.

[71] In my view, J’s attitude towards Mr Ellis in the aftermath of the habeas corpus affidavit cannot be excluded as entirely irrelevant. Nor is the fact that another barrister felt able to take instructions from J. On that basis, I am satisfied that Mr Geiringer’s affidavit is admissible.

The scope of judicial review

[72] Mr Brown submitted that the nature of an LCRO’s decision is important

context when setting the scope of judicial review. He highlighted that:

(a) the LCRO determines the lowest level of disciplinary proceedings;

(b) the LCA directs that processes at this level must be prompt, efficient, effective, and as informal and non-technical as possible while still complying with the rules of natural justice; and

(c) there is no right to appeal the LCRO’s decision.

[73] Mr Brown argued that these contextual factors limit the court’s role to ensuring that the LCRO’s decision was made according to law. The court should not look at facts afresh and make its own determination on the merits. Instead, the decision should be looked at as a whole. He cited judicial warnings against approaching such a decision with “microscopic analysis”⁴⁵ or “minute and detailed analysis of the facts or separate parts of the decision in an attempt to expose defects or identify some error or imperfection which can be elevated into an error of law”.⁴⁶

[74] I agree that the contextual factors highlighted by Mr Brown limit the scope of judicial review in this context. But it must be said for the sake of balance that a lawyer’s reputation is of utmost importance professionally and personally. That factor justifies a slightly closer look than might otherwise be appropriate.

[75] More importantly though, Mr Smith’s attack on the LCRO’s decision is at a principled or even constitutional level. In essence, his argument is that the LCRO failed to properly reconcile the important values contained in the HCA with those values contained in the Ethics Rules. I consider it well within the scope of review of the impugned decision to determine whether or not the LCRO did in fact strike the correct balance between those two important statutes. These are important matters in the wider view and not just the dressing up of potential mistakes of detail.

Grounds of review

[76] Mr Smith set out his grounds of appeal as follows:

(a) the LCRO erred in her analysis of inferred instructions;

(b) the LCRO erred in failing to address the defence of retrospective authority; and

(c) the LCRO erred in not seeking evidence from J, or failing to explain why she did not seek evidence from J.

⁴⁵ _{Butler v Removal Review Authority [1998] NZAR 409 at 419-420.}

⁴⁶ Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9].

Is J capable of giving instructions?

[77] An important preliminary issue is whether J was capable of giving instructions. J was subject to a welfare guardian order. Mr Brown submitted the only person who could give instructions on behalf of J was Mrs E (his welfare guardian). It was, he argued, therefore impossible to infer instructions from J from the circumstances and any instructions given by J after the application was filed are irrelevant.

[78] But the effect of Mr Brown’s submission is that any person subject to a welfare guardian order is precluded from applying for a writ of habeas corpus. That would be contrary to the terms of the HCA, which allows the court to consider an application from someone who lacks capacity.⁴⁷ The Act itself is predicated on the idea that people in just these circumstances must have access to the writ.

Inferred instructions: error of law

[79] Mr Smith submitted that a lawyer can infer legal instructions if, in the circumstances, the lawyer had a good faith basis in fact and law to draw that inference. Mr Smith submitted that the LCRO erred in her analysis of the evidence of inferred instructions in three ways. I deal with each way in turn, and refer to Mr Brown’s submissions in response where necessary.

[80] The first error alleged by Mr Smith was that the LCRO failed to assess the evidence on inferred instructions in light of the recognition in the Ethics Rules that the practicalities of a situation and/or the status of a person with a mental health issue or disability must affect the nature of the information to be given to, and received by the client from, the lawyer. That submission can be divided into two separate points and dealt with swiftly by reference to the LCRO’s decision itself.

[81] In relation to the first point, it is evident from the following excerpt that the

LCRO considered that the practicalities of a situation may affect the nature of the information received by a practitioner:

⁴⁷ Habeas Corpus Act 2001, s 7(1).

I accept that there are some circumstances where a human rights lawyer will necessarily rely on information of third parties, and where there may be less than clear circumstances.

[82] As to the second point, the LCRO was not required to explicitly consider whether the information received by Mr Ellis was limited by J’s disability. The information received by Mr Ellis was limited by J’s inaccessibility not his disability. That is the aspect upon which the LCRO focussed in her decision.

[83] The second error alleged by Mr Smith was that the LCRO failed to assess the evidence on inferred instruction in light of the specific context of habeas corpus and the effect her finding might have for future habeas corpus cases. In my view, the excerpt quoted above shows that LCRO accepted that in certain circumstances an application for habeas corpus could properly be filed without full compliance with r 13.3. She just concluded that the present case was not one of them.

[84] The third error alleged by Mr Smith was that the LCRO inappropriately applied an unfair 20/20 hindsight analysis to whether there were good grounds in law for a habeas corpus application to be made. Mr Smith says that Mr Ellis had sufficient basis in fact and law to infer instructions to make the application because he:

(a) believed J was being held against his will and did not have access to a lawyer;

(b) tried unsuccessfully to contact J by phone;

(c) discussed the situation with Dr Barton QC and his instructing solicitor before deciding to proceed; and

(d) did not want to contact Mrs E in case that caused harm to J, including that he might be moved to a hidden location.

[85] In response, Mr Brown said the LCRO correctly examined whether, in all the circumstances, Mr Ellis had a good faith basis in fact and law for filing the application. He pointed to the following excerpts:

The evidence of kidnapping was flimsy to say the least, and that the Practitioner knew that [J’s] mother was his lawful welfare guardian must throw doubt on whether it could be said that [J] had been unlawfully detained. The evidence that [J] was unable to be reached by telephone was barely tested by the Practitioner. He made one (unsuccessful) attempt to contact [J] and took no further steps, apparently prepared to accept Ms H’s advice. The evidence indicated that there was nothing to have prevented the Practitioner from contacting [J], and discerning for himself whether [J’s] circumstances were in fact as had been portrayed by Ms H.

...

In my view the above evidence did not reasonably support that [J] was incommunicado, or was at risk of harm, or that he had been kidnapped or otherwise unlawfully detained.

...

It ought to have been apparent to him on the evidence that there were risks in relying on the information he was given.

The Practitioner made no other enquiries to test or verify the information he had been given, although there were opportunities for him to have done so, including contact the Complainant or her solicitor, before filing the application. I am troubled by his failure to have made further inquiry to ascertain the basis of Ms H allegations, or to question whether there was a proper circumstance in which to file a writ of habeas corpus. Given the context of Ms H concerns and the circumstances to which I have referred, it seems to me that the Practitioner ought to have made at least some enquiry to verify Ms H allegations.

...

I accept that there are circumstances where a human rights lawyer will necessarily rely on information of third parties, and where there may be less than clear circumstances. For reasons given I do not agree that the present case is one of those situations. Accepting that the Practitioner acted with the best of intentions, it is my view that in this case he misjudged the circumstances and proceeded to file the application in circumstances of very doubtful evidence and authority.

[86] In order to resolve this argument it is necessary to review the information that Mr Ellis had in front of him when he filed the application. This was the evidence upon which Mr Ellis grounded his belief. Mr Ellis had:

(a) information from his phone conversation with Ms H; (b) Ms H’s affidavit;

(c) three typed letters that J had given to S; and

(d) a statement from S.

[87] The information from Ms H clearly only provided one side of the story. As the LCRO noted, there were obvious risks in relying on her version of events. The affidavit itself indicated that Ms H and Mrs E did not agree with each other on aspects of J’s care and that Ms H may have had her own agenda. The statement from S was written by Ms H, and was similarly one-sided. The three typed letters that J had given to S were not dated so Mr Ellis could not be sure that they related to an urgent current situation. The unsuccessful phone call was the only basis (sourced to J himself) Mr Ellis had to corroborate Ms H’s story.

[88] In addition, the knowledge that Mrs E was J’s lawful welfare guardian should have caused Mr Ellis to proceed with extreme caution, even though it could not be a complete block to proceeding.

[89] In my view, that information would have been sufficient to file an application in Ms H’s name. It is not necessary to show standing under the Act, for the obvious reason that detained persons are sometimes unable to contact the outside world. That course of action would have satisfied the needs of the HCA and ensured Mr Ellis was acting in accordance with proper instructions. But having decided to proceed with the application in J’s name, I agree with the LCRO that Mr Ellis needed to do more than consult with Dr Barton QC and his instructing solicitor, and make one unsuccessful attempt to contact J.

[90] The excerpts relied upon by Mr Brown at [85] above show that the LCRO focussed on these factors in deciding that Mr Ellis “misjudged the circumstances and proceeded to file the application in circumstances of very doubtful evidence and authority”. The LCRO also accepted that the information provided by Mrs E after the application was filed (outlined at [54] above) would not have been known to Mr Ellis before he filed the application.

[91] Even if the LCRO made her decision with the benefit of hindsight, and I am not satisfied that this is the case, she reached a reasonable conclusion. Indeed, up until that point, it is a conclusion with which I entirely agree.

[92] For completeness, I agree with Mr Brown that Mr Ellis’ first port of call should have been an urgent application to the Family Court. That court after all had already been addressing J’s ability to take care of his own welfare. Perhaps he took the course he did because he was more familiar with the HCA process, or perhaps because a habeas corpus application got him into court faster. But that is with the benefit of hindsight. I am not prepared to say that a habeas corpus application would never be appropriate in a situation where a welfare guardianship order is in place. It is just that, in this case, there was not a sufficient basis upon which to make such an application.

Retrospective instructions: error of law

[93] Mr Smith submitted that the LCRO erred in failing to address Mr Ellis’ defence of retrospective instructions. As I have already outlined, J spoke with Ms H just hours after the application was filed and he also left a message on Mr Ellis’ answer machine the next day.

[94] There is no question that the LCRO did not address the issue of retrospective instructions. Mr Brown accepts as much. The LCRO proceeded on the basis that authority must be given by a client in advance of filing any proceeding. Her focus was on the information that Mr Ellis had in front of him before filing the application.

[95] There was no analysis of the evidence of J’s retrospective endorsement of the habeas corpus application. The LCRO did not assess whether that evidence constituted valid retrospective authority. Nor did she address the applicant’s submissions on retrospective authority.

[96] The question is whether J’s communication with Ms H and Mr Ellis after the fact was relevant to the LCRO’s determination.

[97] Mr Smith argued that in the unique context of habeas corpus, a person in whose name an application was filed without authority can subsequently ratify that application. Ratification would then constitute valid instructions to act in terms of r 13.3. He labelled this approach the “retrospective instructions approach”. I will adopt the same terminology.

[98] The starting point for Mr Smith’s submission was that the Ethics Rules are to be applied in light of recognised conventions of the legal profession. He said the common law principle that a civil proceeding issued without authority can be ratified is one such convention.

[99] He submitted that the “retrospective instructions approach” does not

undermine the underlying purposes of r 13.3, which he argued were to:

(a) preserve and promote client autonomy, responsibility and dignity by ensuring that the client makes or agrees to important litigation decisions on an informed basis; and

(b) to ensure that costs are only incurred with a client’s knowledge and

consent.

[100] On that point, Mr Smith submitted that Mr Ellis’ actions promoted purpose (a) because, as the LCRO accepted in her decision, J in fact did want to leave home and be with S. J’s phone messages to Mr Ellis on 23 and 30 November are proof of that.⁴⁸ Mr Ellis was therefore advancing J’s autonomy, responsibility and dignity. Mr Ellis’ actions also did not impinge upon purpose (b) because he acted pro bono, no filing fees were payable and no adverse costs order was made.

[101] Mr Smith submitted that the “retrospective instructions approach” was

consistent with the statutory scheme of the LCA. He pointed to:

(a) the specific recognition in s 138(1)(d) that a disciplinary complaint might be taken no further if “the person alleged to be aggrieved does not desire that action be taken, or as the case may be, continued”; and

(b) the general consumer protection focus of the Act, which suggests

consumers might voluntarily waive ‘protections’ such as r 13.3 for their benefit.⁴⁹

⁴⁸ _{See [23] and [24] above.}

⁴⁹ Sections 3(1)(b) and 101(b).

[102] In response, Mr Brown said the “retrospective instructions approach” undermines the purpose of r 13.3 to ensure that lawyers obtain instructions before taking action on a client’s behalf. Moreover, it is inconsistent with:

(a) r 5.36(a) of the High Court Rules which provides that “no solicitor may file a document on behalf of a party unless the solicitor is authorised by, or on behalf of, the party to file the document”; and

(b) r 5.37 which provides that a solicitor who files a document in the court is to be treated as warranting to the court and to all parties to the proceeding that he or she is authorised by the party on whose behalf the document purports to be filed, to file the document.

[103] As I alluded to earlier, there is a tension here between the LCA and the HCA. Rule 13.3 reflects the important value that a lawyer should obtain instructions before filing an application in court. On the other side, it is a practical reality that in certain habeas corpus cases, a lawyer will be unable to obtain a client’s informed instructions before filing an application. This is the reason for s 7(4), which does not require a person to have capacity or standing in order to bring an application. The LCA and the HCA must therefore be reconciled in a way that maintains the underlying values each statutory regime promotes.

[104] In my view, the “retrospective instructions approach” achieves this balance. I accept that it is inconsistent with the letter of r 13.3. But it is not inconsistent with the purposes of rule 13.3, as outlined by Mr Smith. Moreover, the HCA requires this compromise in the rules. Otherwise a lawyer could well become reluctant to file an application for habeas corpus on behalf of a client without having the unequivocal consent of a client who is in no position to give it. The effect of this would be to make habeas corpus unavailable to those individuals who are perhaps most in need of it – that is, people who do not have access to a lawyer in order to provide instructions. Such a chilling effect should not be countenanced.

[105] Having reached the conclusion that the existence of retrospective instructions is relevant to an unsatisfactory conduct finding in this context, there is no doubt that

the LCRO was required to turn her mind to it. There is a clear narrative to support Mr Ellis’ defence of retrospective instructions. In J’s phone conversation with Ms H, J was asked if he would like Mr Ellis’ help. He replied, “yes, that would be good”. He was then asked if he wanted to appoint Mr Ellis as his lawyer and whether he wanted Mr Ellis to talk to the High Court. J said “yes that is okay”. Ms H sent J Mr Ellis’ contact details and J took the action himself of contacting Mr Ellis the next day. His message on Mr Ellis’ answer machine was crystal clear: “yes I need help ... I want to leave my house”. Those communications in the context of an individual with intellectual disabilities are clear confirmations to counsel of the course chosen.

[106] In conclusion, I am satisfied that the LCRO erred in failing to turn her mind

to Mr Ellis’ defence of retrospective instructions.

Remaining head of review

[107] Given the conclusions reached, it is not necessary to consider whether the

LCRO ought to have sought evidence from J personally.

Remedy

[108] Having found that the LCRO erred in reaching her decision, it is necessary to consider the appropriate remedy. Mr Smith submits that the decision should be set aside without being remitted for a rehearing. Mr Brown objects to this, arguing that it amounts to the court substituting its own views of the merits of the complaint. The other option is to direct the LCRO to reconsider Mr Ellis’ appeal in light of my conclusions that:

(a) retrospective instructions are relevant to a determination in this context; and

(b) J gave retrospective instructions.

[109] In judicial review proceedings, there are situations where it will be appropriate for the court to make its own decision on an issue that has not been

considered, or has been wrongly considered, by the decision maker whose decision is subject to review.⁵⁰ As stated in Leeder v Christchurch District Court, the remedy of substituting the reviewing court’s view for that of the decision maker is a course that can be taken, but only in a clear case.⁵¹

[110] Other factors can also be relevant, such as the time elapsed since the last of the events in issue and the desire to avoid subjecting the parties to the expense, trouble and stress of a rehearing. Those two considerations were influential in Greig J’s decision to set aside a Nursing Council decision finding the applicant guilty of professional misconduct rather than directing that the matter be reheard.⁵²

[111] In this case, I am reluctant to send the matter back for rehearing or reconsideration for two reasons. First, the evidence of J’s instructions is so clear that I see little utility in remitting the case back for further reconsideration. Had the LCRO taken these communications into account, I think it extremely likely she would have come to the conclusion that Mr Ellis was not in breach of the Ethics Rules. This is, in short, a clear case.

[112] Second, I am mindful of the fact that the complaints process is designed to provide quick determinations and this matter has now been on foot for over four years. Circumstances have moved on considerably since 2009, when the application was filed. The welfare guardian order that J was subject to has expired without being renewed. He is now married to S. Sending this matter back to the LCRO would unnecessarily prolong an already lengthy proceeding.

Result

[113] The application for judicial review is granted. The decision of the LCRO is set aside without being remitted for reconsideration or a rehearing.

50. Marlborough Lines Ltd v Takeovers Panel HC Wellington CIV-2010-485-1150, 12 October 2010 at [93].

⁵¹ _{Leeder v Christchurch District Court [2005] NZAR 18 (HC) at [64].}

⁵² Trompetter v Nursing Council HC Wellington CP750/92, 3 February 1994.

[114] The names and identifying particulars of J, S, the Es, and Ms H are

_suppressed.

Williams J