A v National Standards Committee - [2020] NZHC 392

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1035

[2020] NZHC 392

UNDER the Lawyers and Conveyancers Act 2006

IN THE MATTER OF

disciplinary proceedings under Part 7 of the Act

BETWEEN

A

Appellant

AND

NATIONAL STANDARDS COMMITTEE

Respondent

Hearing: 4 February 2020

Counsel:

DPH Jones QC & D Van Hout for Appellant M Mortimer for Respondent

Judgment:

4 March 2020

JUDGMENT OF DUFFY J

This judgment was delivered by me on 4 March 2020 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel: Russell Legal, Auckland DPH Jones QC, Auckland
Meredith Connell, Auckland

A v NATIONAL STANDARDS COMMITTEE [2020] NZHC 392 [4 March 2020]

[1] The appellant was charged with two counts of misconduct following litigation between him and his former clients, relating to a business venture he engaged in with them. For his conduct the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found the appellant guilty of two charges of misconduct and ordered that he be struck off the roll of barristers and solicitors. The appellant appeals against the decision of the Tribunal and seeks to adduce new evidence. The current issue before the Court is whether leave to adduce such evidence should be granted.

The new evidence

[2] The new evidence is an affidavit attaching a report from Dr Ian Goodwin, specialist psychiatrist, and an “updating” affidavit from the appellant.

Dr Goodwin’s evidence

[3]In summary, Dr Goodwin’s evidence addresses the following matters:

(a)It confirms the appellant has long-standing post-traumatic stress syndrome as a result of childhood abuse by his father and older brother;

(b)It confirms the appellant’s assertion that he is overly deferential to persons in positions of power and authority, including his former client Mr [B], and would therefore have found it extremely difficult to challenge Mr [B] and instead been more likely to acquiesce to Mr [B]’s requests;

(c)The aforementioned difficulties would have made it difficult for the appellant to manage professional and personal boundaries with Mr [B];

(d)If the application for permanent name suppression is refused the health risks for the appellant are significant, including the risk of potential harm to the appellant and those around him;1

1 Dr Goodwin reports the appellant has ongoing and significant suicidal ideation that is barely managed currently.

(e)The presence of Mr and Mrs [B] (the [B]s) in the hearing room with their counsel, Ms [W], when the appellant gave evidence would have had an inhibitory effect on the appellant’s evidence;

(f)The appellant’s mental state is fragile; and

(g)The appellant’s appearance and performance before the Tribunal may well have been adversely affected by the large doses of anti-anxiety medication that he took.

The appellant’s evidence

[4] The appellant has filed what he describes as an updating affidavit. Paragraphs [1]-[8] are introductory and simply set the scene for the evidence that follows.

[5] Paragraphs [8]-[15] set out the appellant’s personal history and its impact on his mental health condition.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 392
Decision Date: 4 March 2020

CaseChat Overview and Summary

The case of A v National Standards Committee involved an appeal against the decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (Tribunal) which found the appellant guilty of two charges of misconduct and ordered his removal from the roll of barristers and solicitors. The Tribunal's decision was based on the appellant's conduct following litigation with his former clients regarding a business venture. The appellant sought leave to adduce new evidence to support his appeal against the Tribunal's decision.

The legal issues before the court were whether the appellant's new evidence, which included an affidavit from a specialist psychiatrist and an updating affidavit from the appellant, met the criteria for adducing new evidence on appeal. The court considered the tests for admitting new evidence, which required the evidence to be cogent, likely to be material, and could not reasonably have been discovered at an earlier stage. The court also took into account the interests of justice in its decision.

The court found that some of the new evidence was relevant to the appellant's mental health condition and its nexus with his conduct, which had not been adequately considered by the Tribunal. The court also found that the appellant's evidence regarding the impact of the presence of the former clients and their counsel on his ability to present his case was cogent and could not have been provided at the time of the hearing. The court concluded that the interests of justice favoured the admission of this evidence, as the appellant's career and personal safety were at stake.

In conclusion, the court granted leave to the appellant to adduce the new evidence, including the affidavit of the specialist psychiatrist and certain paragraphs of the appellant's affidavit. The court reserved leave to the parties to file memoranda on costs. This decision allowed the appellant to present a more comprehensive account of his case on appeal, taking into consideration his mental health condition and the impact of the former clients' presence on his testimony.

Orders