A Lawyer v New Zealand Law Society
[2021] NZSC 75
•30 June 2021
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 34/2021 [2021] NZSC 75 |
| BETWEEN | A LAWYER |
| AND | NEW ZEALAND LAW SOCIETY |
| Court: | William Young, O’Regan and Ellen France JJ |
Counsel: | R J B Fowler QC and F E Geiringer for Applicant |
Judgment: | 30 June 2021 |
JUDGMENT OF THE COURT
A The application for leave to appeal is dismissed.
B The applicant must pay the respondents costs of $2,500.
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REASONS
Introduction
The applicant is a law practitioner. In 2015, three complaints were made about the applicant to the New Zealand Law Society (NZLS), the first respondent. The complaints were referred to the Wellington Standards Committee No 2, the second respondent. The Committee exercised its powers under the Lawyers and Conveyancers Act 2006 to inquire into the complaints and appoint an investigator.
The applicant sought judicial review of the Committee’s decisions and of the conduct of the investigation. Thomas J accepted that the decisions were, as a matter of law, amenable to judicial review but dismissed the application on the basis this was not one of those exceptional cases where the Court would intervene in a preliminary decision of this nature.[1] The applicant appealed to the Court of Appeal. In dismissing the appeal, the Court of Appeal agreed with the High Court that there was no demonstrable error warranting intervention.[2] The applicant now seeks leave to appeal to this Court from the Court of Appeal decision.
Background
[1]A Lawyer v New Zealand Law Society [2019] NZHC 1961 [HC judgment].
[2]A Lawyer v New Zealand Law Society [2021] NZCA 47 (French, Whata and Mander JJ) [CA judgment].
The first complaint alleges that the applicant has been poaching the complainant’s clients. This complaint arose out of communications some of the complainant’s clients received from a trust entity about litigation in which the complainant acted for them. The trust entity is represented by the applicant and is involved in the same litigation as the complainant’s clients.
The second and third complaints relate to a statutory body for whom the applicant has acted and with which she and her spouse are associated. The various allegations made include breach of instructions and conflicts of interest.
The chronology of the main events from November 2015, when the Committee decided to inquire into the first complaint, is set out in the judgment of the Court of Appeal.[3] It is not necessary to repeat that narrative here. It suffices to say in relation to the first complaint that an interim report was prepared by an investigator appointed by the Committee.[4] No report has been prepared in relation to the second and third complaints. The investigator has asked to meet the applicant but no meeting has yet occurred.[5] No final determination has been made by the Committee in relation to any of the complaints. The only other point to note in relation to the narrative of events is that the applicant has, largely unsuccessfully, referred aspects of the preliminary decisions to the Legal Complaints Review Officer for review.
The proposed appeal
[3]At [41]–[59].
[4]The applicant says the Committee decided to investigate this complaint although the complainant had made further allegations which were not put to the applicant.
[5]The applicant accepted an obligation to assist with the investigation but says the process was unfair and asked for it to be fixed. When that did not occur, the applicant says the current proceedings were brought.
Against this background, the applicant says the Court of Appeal erred by:
(a)determining that it was not a breach of natural justice for the Committee to decide to inquire into the complaint and to appoint an investigator, given the process followed;
(b)deciding that it was not a breach of natural justice for the Committee to refuse to supply the applicant with information setting out the substance of the allegations before the applicant was required to attend an interview with the investigator; and
(c)concluding that it was not an error to decide to investigate matters where no credible narrative was alleged contrary to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 or otherwise in breach of the applicant’s professional duties.
The applicant says that it is necessary in the interests of justice for the Court to hear the proposed appeal because it involves matters of general or public importance.
Our assessment
In determining that there was no basis for intervening in this case, both the High Court and the Court of Appeal applied the approach to the judicial review of preliminary decisions set out in Singh v Chief Executive Ministry of Business, Innovation and Employment.[6] The Court of Appeal in Singh, albeit in a different context, took the view that judicial review was available in such cases but suggested that those cases where intervention would be justified were likely to be “exceptional”.[7] The Court also set out a number of factors illustrative of matters which may guide a court in determining an application for judicial review of such decisions where “the powers exercised to that point” were “unlikely to be influential in the final decision”.[8]
[6]Singh v Chief Executive Ministry of Business, Innovation and Employment [2014] NZCA 220, [2014] 3 NZLR 23.
[7]At [40].
[8]At [38]–[39].
The legal principles that should be applied to the reviewability of such preliminary decisions may give rise to a question of general or public importance.[9] However, the applicant takes no issue with those principles, nor with the way in which the principles were stated in the Courts below. Rather, the complaint is with their application to the present facts. In this respect, the applicant advances four factors in support of the submission that the proposed appeal would raise questions of general or public importance: (1) that the NZLS handles quite a high number of complaints each year; (2) there is a likelihood the errors will re-occur because they reflect policies of the NZLS in its handling of these complaints; (3) there is a lack of guidance as to when a Committee should decide to press ahead with an investigation in the absence of a credible narrative to support the complaint; and (4) the respondents’ approach undermines the requirement in s 142(1) of the Lawyers and Conveyancers Act that the Committee exercise its powers consistently with the rules of natural justice. In relation to the last factor, the applicant says that non‑compliance with the principles of natural justice undermines the process as a whole.
[9]Senior Courts Act 2016, s 74(2)(a).
The approach to complaints encompassed by the four factors relied on by the applicant may give rise to questions of general or public importance. But those questions are not determinative here. Rather, given the absence of any challenge to the circumstances in which judicial intervention would be appropriate, the proposed appeal would turn essentially on the way in which the Court of Appeal applied the legal principles to these particular facts. No question of general or public importance accordingly arises.
In concluding that there was no basis for judicial intervention at this stage of the process, the Court of Appeal addressed each of the alleged errors raised by the applicant. Nothing raised by the applicant gives rise to the appearance of a miscarriage of justice in the civil sense in relation to that assessment.[10] Relevant contextual features in that respect include the fact that the inquiries are at an early stage and are preliminary in nature, and that there will be further opportunities in the statutory processes to correct any apparent error. In all these circumstances, the criteria for leave to appeal are not met.
[10]Section 74(2)(b); and Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369.
We add that, reflecting the approach taken to date in the Courts below, we have anonymised this judgment.[11]
Result
[11]HC judgment, above n 1, at [5]; and CA judgment, above n 2, at [6]–[9]. See Lawyers and Conveyancers Act 2006, ss 142(2) and 188; and Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, reg 31.
The application for leave to appeal is dismissed.
The applicant must pay the respondents costs of $2,500.
Solicitors:
Melanie Baker Law, Lower Hutt for Applicant
G D Smith, New Zealand Law Society, Wellington for Respondents
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