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.
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- Case
- [2020] NZHC 392
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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