Ram v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2015] NZHC 1553 (6 July 2015)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of New Zealand Decisions

UNDER	the Judicature Amendment Act 1972
IN THE MATTER	of an application for judicial review
BETWEEN	ANTHONY VINCENT RAM Plaintiff
AND	THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL First Defendant THE LAWYERS COMPLAINTS SERVICE Second Defendant THE AUCKLAND STANDARDS COMMITTEE 5 _{Third Defendant}

Hearing:	1 July 2015
Appearances:	F C Deliu for Applicant / Plaintiff M Hodge for Respondent and Second and Third Defendants
_Judgment:	_{6 July 2015}

RAM v THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2015] NZHC 1553 [6 July 2015]

This judgment was delivered by me on 6 July 2015 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

[1] Mr Ram was a lawyer. Following disciplinary proceedings he was found guilty of misconduct and struck off, with other orders.¹Mr Ram has appealed against the Tribunal’s decision. He has also challenged the process leading to the prosecution and the hearing before the Tribunal, as well as the final decision, through judicial review proceedings. For convenience I will refer to Mr Ram as the applicant.

[2] The firm of Meredith Connell acted in the disciplinary proceedings on instructions from the Auckland Standards Committee 5, the respondent to the appeal and third defendant in the judicial review proceeding. Mr Hodge and Ms Earl of that firm were the lawyers directly involved, Mr Hodge as the responsible partner and Ms Earl as the staff solicitor who conducted the hearing before the Tribunal.

[3] In the present proceedings Meredith Connell have been instructed to act for the Standards Committee and the Lawyers Complaints Service, the second defendant in the judicial review proceeding. I will refer to the Standards Committee and the Complaints Service, jointly, as the respondents. The Disciplinary Tribunal, the first defendant in the judicial review proceeding, abides the decision of the Court. The applicant has applied for an order that Meredith Connell, or at least the two lawyers, not act in the present proceedings. This judgment deals with that application.

[4] The essence of the grounds for the application were put by Mr Deliu, in his written submissions, as follows:

e. a fair-minded reasonably informed member of the public would conclude the proper administration of justice requires their removal.

[5] An essential part of the applicant’s argument proceeds on the basis that, because the lawyers acted, and because the applicant alleges wrongful acts by the lawyers in the disciplinary proceedings, the matter listed in sub-paragraphs (b)-(e) necessarily follow and, because of those matters, the order sought must follow. The submissions for the applicant extend beyond that summary, but the summary does capture a critical part of the argument.

[6] The application and the argument proceed on a false premise. A bare allegation of misconduct by a lawyer in a proceeding cannot possibly justify an order not to act. A bare allegation could not even justify a general enquiry as to whether the matters listed in paragraphs (b) to (e) might arise in the case.

[7] It is easy for a disappointed litigant to allege misconduct by the lawyer on the other side as part of a challenge to an adverse decision. But a bare allegation against the lawyer does not come close to being sufficient. The cases cited by both counsel, some of which I will come to, make that clear. Substantially more is required before a litigant – here the respondents – can be deprived of their right to their lawyer of choice.

[8] What must be established at the outset is whether there has been involvement by the lawyer which is of a nature which triggers an assessment of the matters listed in sub- paragraphs (b) to (e) and related matters which go to a balancing exercise. This is the first enquiry on any application of this nature. It is a critical first enquiry. It must be undertaken analytically by reference to the primary contentions of the applicant in respect of the decision or decisions, and processes, being challenged.

[9] The essence of the enquiry, expressed in general terms rather than directed specifically to this case, might be summarised as follows:

(a) Was the lawyer an active participant in an act (including a failure to act) which is central to an issue that will determine the applicant’s challenge to the decision and processes that are before the Court?

(b) If the answer is “yes”: is a determination as to exactly what the lawyer did, or the meaning or interpretation of what the lawyer did, a matter of real consequence in determining the real issues before the Court?

(c) If the answer to the preceding question is “yes”, the Court will need to assess all of the relevant circumstances to determine whether the matters listed in sub-paragraphs (b) to (e) of Mr Deliu’s submissions, and any other relevant considerations, require an order that the lawyer not act.

[10] In this case the answer to the first question is “no”. To explain this conclusion some further background is required. This is conveniently taken from the written submissions for the respondents.

1.2 Three charges were filed in the Tribunal, relating broadly to allegations that the Applicant:

(b) Provided regulated services to a member of the public (the former client) when employed as an in-house solicitor (charge

(c ) Failed to provide information required pursuant to a notice issued under s 147 of the Lawyers and Conveyancers Act 2006 (Act) (charge 3).

1.4 Charge 1 was the lead charge, proof of which by itself justified striking the Applicant off the roll of barristers and solicitors. In this regard, it will be submitted at the hearing of the consolidated appeal/claim for review that, even if the Court quashes the Tribunal’s findings on the second and third charges, the outcome of this case (strike–off) should remain the same.

1.5 The Applicant has applied to the Court to debar Meredith Connell, or in the alternative, Michael Hodge and Stephanie Earl of Meredith Connell, from representing the Second and Third respondents (Respondents) in these proceedings.

1.6 The Applicant’s debarment application relates to charge 3 and his argument that the s 147 notice is invalid. The Applicant argues that prosecuting a charge for non-compliance with the notice represents prosecutorial misconduct on the part of the Respondents and their solicitors.

[11] I express no opinion on the proposition in paragraph 1.4 that Charge 1 of itself justified striking the applicant off the role, because even a provisional assessment in that regard is not necessary to determine the present application. With that point left to one side I am satisfied that the respondents’ summary is accurate. Of particular relevance is the final point, in paragraph 1.6, that the present application relates only to Charge 3 and the question whether the notice is invalid.

[12] The essence of the applicant’s argument that the notice was invalid is that it required the applicant not only to provide his “file”, but also to provide certain invoices and bank records. It is alleged, in broad terms, that the Standards Committee did not direct that a notice requiring production of all three items be issued and that, in any event, the Committee had no authority to direct production of invoices and personal bank records of the applicant.

[13] There was no argument before me for the applicant that the lawyers had involvement in the issuing of the notice in the form that it was issued. There was a general submission relating to their professional responsibilities once they had received instructions to act in the prosecution. But in the course of oral submissions it became clear that the allegation of misconduct related only to the presentation of the argument to the Tribunal. Mr Deliu accepted that the application for the present order was founded on the fact that Ms Earl presented the case before the Tribunal. Mr Deliu further accepted that the applicant’s contentions on his appeal, and in his judicial review proceeding, directed to processes and decisions prior to the hearing before the Disciplinary Tribunal, will stand or fall on the question whether the section 147 notice was valid; whether or not there was prosecutorial misconduct will be irrelevant.

[14] The applicant has obtained the full record of the Tribunal. The relevant parts of it were conveniently put before the Court for this application in an affidavit. Mr Deliu took me through the relevant parts of the annexures. There is nothing in this

material providing any reasonable basis for concluding that anything done by Ms Earl in the presentation of the prosecution case before the Tribunal involved anything untoward. What the record demonstrates is that the hearing proceeded without any enquiry as to the validity of the notice. I expressly asked Mr Hodge if the record disclosed any enquiry from any member of the Tribunal on this point. Mr Hodge advised that there was none. Mr Deliu in reply did not suggest that in fact there is some indication of an enquiry, let alone concern. Nor is there a shred of evidence that Ms Earl presented the case knowing that there may be some question as to the validity of the notice, but failed to draw that to the attention of the Tribunal. The issue simply did not arise. Mr Ram did not appear for the disciplinary hearing. He had made a written application for an adjournment, but did not appear before the Tribunal in support of that application, and the hearing proceeded. The fact that Mr Ram was absent has no bearing on the matter now being considered, and Mr Deliu did not make any submission to the contrary.

[15] Although the question as to whether there is the necessary evidential foundation for the allegation focussed, in the end, on Ms Earl’s involvement as counsel before the Tribunal, it is relevant to record that there also is no evidence to suggest that the respondents now before this Court proceeded on any basis other than that the notice was valid.

[16] One of the authorities relied on for the applicant is a decision of this Court in Deliu v The Auckland Standards Committee 1.²In that case, on an appeal, there was an order that a lawyer who had been acting for the Standards Committee and for the National Standards Committee of the New Zealand Law Society, should no longer act as counsel. As Mr Hodge submitted, in relation to the question whether there is an evidential foundation, the evidence in the Deliu case can be contrasted with the evidence in this case. In the Deliu case there was evidence (and seemingly unequivocal, although that is not determinative) of the lawyer being an active

participant in a transaction – negotiations with Mr Deliu – with some of the statements recorded as having been made by the lawyer being central to an issue required to be determined. Numbers of the other cases cited by counsel illustrate, in

different ways, evidence of what I have referred to as active participation in an act which is central.

[17] The point I have made was made in another decision of this Court, cited by Mr Deliu, Kooky Garments Ltd v Charlton.³A central issue in that case was whether a letter from the solicitor for one party during negotiations over a lease amounted to an acceptance of the other party’s offer, which is what the other party contended, or a counter-offer, which is what the instructions to the solicitor required. Thomas J held that there was an actual conflict between the solicitor and the client. The solicitor’s

partner appeared as counsel in the action between the landlord and tenant. Although the case did not involve an application for an order that the lawyer not act, Thomas J made obiter observations on circumstances where a lawyer should not act. The facts of that case (and it was not just evidence) also illustrate circumstances well removed from the lack of any evidential foundation in the present case. In the course of his discussion Thomas J adverted to this critical point. He said:

What I have said, of course, does not apply where advice given is unrelated to liability or the question in dispute. Advising a client to prosecute or defend a claim does not attract these observations. They are restricted to the situation where the acts or omissions of the solicitors are an integral part of the other party’s complaint or the client has been sued in circumstances where he or she was acting on the advice of their solicitors and it is effectively that advice which is in issue.

[18] Mr Deliu submitted, in effect, that it is sufficient for the applicant to plead misconduct by the lawyer – what was described as prosecutorial misconduct – to establish relevant involvement of the lawyer in the matters at issue. This was coupled with a submission that it is for the applicant to determine how he will run his case and that it will be for the trial Judge to determine what issues require consideration. I do not agree. Although Mr Deliu’s submissions were developed beyond the bare summary I have provided, a proposition that an allegation in the pleading is sufficient would mean that any disgruntled litigant could make the allegation and the lawyer who had been acting for the other party would have to stand aside. Putting it that way is, perhaps, sufficient to indicate that the proposition simply cannot be correct. And it is not. It is contrary to all authority.

[19] There was some debate before me as to the test to be applied in a general sense before an order can be made. In Black v Taylor Cooke P said that “obviously it is a jurisdiction to be exercised with circumspection.”⁴In Clear Communications Ltd v Telecom Corporation of New Zealand Ltd, Fisher J referred to the need to establish “truly egregious misconduct likely to infect future proceedings.⁵

[20] The standard suggested by Fisher J might be seen to be higher than the approach which Cooke P said was appropriate. But in Accent Management Ltd v Commissioner of Inland Revenue, the Court of Appeal said:⁶

The threshold for removal is a high one, requiring something extraordinary. The Court should guard against allowing removal applications to be used as a tactical weapon to disadvantage the opposing party.

The Court cited Fisher J’s observations in Clear Communications and obviously did so with approval. And in Cant v R the Court of Appeal said:⁷

[61] The principles in this area are clear. The Court may debar counsel from acting in a proceeding where it is necessary in order for justice to be done or seen to be done.⁸The threshold for removal of counsel is high requiring something extraordinary to warrant that course.⁹In Clear Communications Ltd v Telecom Corporation of New Zealand Fisher J opined that the jurisdiction to remove counsel will only be exercised in cases of “truly egregious misconduct likely to infect future proceedings”.10 The principles summarised by Fisher J were endorsed by this Court in Fava v Aral Property Holdings Ltd.11 There is no need for us to set out in detail the relevant principles which are not in dispute.

[21] I do note that in Deliu v the Auckland Standards Committee,¹²Woolford J discussed the apparent difference between what was said in the Court of Appeal in Black v Taylor,¹³and the test suggested by Fisher J. Woolford J also referred to the

_{Court of Appeal’s observations, cited above, in the Accent
Management Ltd case.}

⁶Accent Management Ltd v Commissioner of Inland Revenue [2013] NZCA 155, [2013] 3 NZLR

⁹Accent Management Ltd v Commissioner of Inland Revenue (2013) 26 NZTC 21 – 016 at [32]

_{citing Clear Communications Ltd v Telecom Corporation of New
Zealand, above n 5.}

The Judge did not take the comment by the Court of Appeal in Accent Management “to detract from the principles which were extensively considered by the same Court in Black v Taylor. It appears that the Judge was not referred to the Court of Appeal’s decision in Cant v R.¹⁴

[22] In the present case it is unnecessary to seek to determine whether there is any material difference between the standard expressed in a few words in these various cases. For present purposes what is made quite clear, including by an expression referring to the need for circumspection, in that the threshold is a high one. It does require a great deal more than what has been presented in this case as justification for the orders sought.

[23] The considerations to this point are sufficient to dismiss the application. I will nevertheless deal briefly with some separate points made by Mr Hodge in opposition.

[24] Mr Hodge submitted that the alleged prosecutorial misconduct is irrelevant to the matter that is required to be determined; that is whether the s 147 notice was invalid. I earlier referred briefly to this point. Mr Hodge submitted that if the Court finds that the notice was invalid “the factual foundation for a key element of charge

3 will fall away and, accordingly, so will the finding” of the Tribunal against the applicant on charge 3. The further submission in relation to this application was that, in consequence, any issue of prosecutorial misconduct will be irrelevant irrespective of the merit of the argument on s 147.

[25] I agree, and notwithstanding Mr Deliu’s submissions to the contrary. I had taken account of those submissions, but will note one of them only. It was submitted that, if Mr Hodge, or Ms Earl, is the lawyer for the respondents in this Court, he or she will lack the necessary objectivity in arguing the question of validity of the notice. The submission points to one of the reasons why it is essential to provide a proper evidential foundation. If the submission were correct, but there is no evidential foundation in the sense I have discussed, then any lawyer who has

_{successfully argued a case at first instance could be said to lack
necessary objectivity}

in seeking to defend the result on an appeal, or an application for judicial review. That is clearly an untenable proposition. And it would remain untenable, in the absence of clear evidence of something untoward on the part of the lawyer, notwithstanding that it is clear that the successful case at first instance was brought, or defended, on the advice of the lawyer. If a lawyer has been instructed, most cases will be brought, or defended, because of the lawyer’s advice.

[26] Mr Hodge also submitted that the s 147 notice is, in any event, valid. This is not a matter to be determined on this application. What is relevant from the submission is that it is certainly reasonably arguable that the notice was valid. Putting it another way, the notice is not so demonstrably invalid as to give rise even to speculation that Ms Earl might have recognised that it was. The short point is that this again bears on what may be called the threshold question as to whether there is any proper basis for even proceeding to an assessment of the factors listed by Mr Deliu in sub-paragraphs b. to e. of his submissions.

[28] Mr Deliu submitted that the appropriate course was for costs to be reserved. I am satisfied that the general rule that costs follow the event should apply. The respondents are entitled to costs on a 2B basis and reasonable disbursements. If there is any issue as to quantification, it is to be determined by the Registrar in the

High Court of New Zealand Decisions

Ram v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2015] NZHC 1553 (6 July 2015)