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.

[6]    Paragraphs [37]-[56] set out the impact on the appellant of the Tribunal’s decision to permit the [B]s and their counsel Ms [W] to attend the hearings while the appellant was before the Tribunal to give evidence.

[7]    The evidence which appears at paragraphs [16]-[36] is described by the appellant as a summary of his previous evidence to the Tribunal. It has been included, I was told at the hearing, for the convenience of the Court.

[8]    The evidence at paragraphs [57]-[65] is further evidence relevant to the legal services that led to the appellant being before the Tribunal. It traverses valuations and other matters relevant to the worth of the investment, which led to the falling out between the appellant and the [B]s.

[9]    Paragraphs [66]-[70] provide an update of the appellant’s present circumstances.

[10]   Paragraph [71] simply sets out the terms of the non-publication orders that the appellant seeks be granted by the Court on the appeal.

Law

[11]   In a civil matter further evidence pertaining to a question of fact may only be adduced on appeal with the leave of the Court appealed to.2 The Court may only grant leave where there are special reasons for hearing the new evidence.3 Typically, the discretion of the Court to grant leave to adduce new evidence shall be used sparingly.4

[12]   The general test for adducing new evidence will be satisfied where the evidence is cogent, likely to be material, and could not reasonably have been discovered at an earlier stage.5 While the latter limb of the test effectively requires evidence to be fresh, there remains room for the Court to consider special circumstances despite the evidence being reasonably available at first instance.6 This position was described by the Court of Appeal in the following manner:7

While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling. In addition, it will need to pass the tests of credibility and cogency.

[13]   Ultimately, in determining whether leave ought to be granted, the Court is to be guided by the interests of justice.8 This does not relax the test under the High Court Rules, but simply requires that the test be applied in the particular statutory context of each case.9 In this case, part of the relevant context includes the nature of the proceeding, namely that it involves a disciplinary matter. In the case of disciplinary

2      Rule 20.16(2) of the High Court Rules.

3      Rule 20.16(3).

4      New Zealand Co-operative Dairy Co Ltd v Commerce Commission (1991) 3 PRNZ 262 (HC) at 270.

5      See Telecom Corp of NZ Ltd v Commerce Commission [1991] 2 NZLR 557, (1991) 3 PRNZ 259 (CA); Culverden Retirement Village Ltd v McLuckie HC Auckland CIV-2007-404-00750, 18 September 2007.

6      Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC).

7      Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at

193. Applied by Hinton J in Ngae v Yan [2019] NZHC 566, [2018] NZFLR 1028.

8      The Foundation for Anti-aging Research v The Charities Registration Board [2015] NZCA 449 at

[29] and [30].

9      The Foundation for Anti-Aging Research v The Charities Registration Board [2014] NZHC 1153 at [60].

proceedings, such as those involving misconduct by a lawyer, the Supreme Court has noted that the civil standard of proof applies with flexibility,10 this means that the balance of probabilities is required to be proved to the highest possible standard.11 Such an approach is adopted in order to give appropriate recognition to the impact that adverse findings can have on an individual. Where this is the case, there is greater room for special circumstances to justify the granting of leave.

Discussion

[14]   The appeal is against the findings of liability and penalty. The appellant seeks to adduce and rely on the new evidence for both appeals.

[15]   The respondent opposes the admission of most of the new evidence on the ground it does not satisfy the tests for admission of new evidence on appeal. It contends the new evidence would have been available at the time of the hearings; and it adds little, if anything, to the medical evidence that was before the Tribunal. At the hearing the appellant had ample opportunity to present his evidence.

[16]   However, in relation to the appellant’s affidavit the respondent does not oppose the admission of the evidence at [66] to [70], which is updating evidence of the appellant’s circumstances since the hearings before the Tribunal. Accordingly, I am satisfied that this evidence can be admitted.

The opposed new evidence

[17]   The new evidence is relevant to the liability appeal ground; that the Tribunal failed to take into account evidence before it of the appellant’s mental health condition and its nexus with his conduct. The appellant contends the new evidence is material because it serves to establish and to emphasise the clear nexus between the appellant’s mental health condition and his conduct. Once this clear linkage is realised then by a process of circumstantial reasoning the logical inference to be drawn from the Tribunal’s decision on liability is that it must have failed to take account of the

10     Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [118].

11     Morrissey v The Law Society of the District of Hawkes Bay SC Napier M6/78, 19 May 1980.

evidence before it that was relevant to the appellant’s mental health condition and the said nexus.

[18]   Dr Goodwin’s evidence is material to this ground of appeal because it is said to reveal the flaw in the Tribunal’s decision making. Moreover, when viewed in this way Dr Goodwin’s evidence is new evidence that was unavailable at the Tribunal hearing because at that time no-one could have known that the flaw in the Tribunal’s decision making would so adversely impact on the outcome of the liability hearing.

[19] Relevant to the penalty finding is the ground of appeal declining the appellant’s application for non-publication of his name or any particulars of his affairs under s 240(1)(c) of the Lawyers and Conveyancers Act 2006. Dr Goodwin’s evidence is material here because it establishes and emphasises the likely harm that publication of these details would cause the appellant given his mental health condition. The appellant contends that the Tribunal has erred by not recognising this, and such failure is made apparent by Dr Goodwin’s evidence. Again, this circumstance could not have been known at the time of the penalty hearing.

[20]   Regarding both liability and penalty grounds of appeal, Dr Goodwin’s evidence is material to the appellant’s argument that he could not put forward his best case given the presence of the [B]s and their counsel when the appellant gave his evidence at the hearing. This is something the appellant had been led to believe would not occur by an earlier order of the Tribunal. Such order was specifically sought and obtained by the appellant. However, on the Friday before the hearing commenced the respondent filed a memorandum seeking to revisit the Tribunal’s order. On the Monday when the hearing was due to commence the Tribunal ruled on the matter and permitted the [B]s and their counsel to be present.

[21]   Dr Goodwin’s opinion on the detrimental impact of this change of circumstance on the appellant is evidence that could not have been given at the hearing. The adverse effect of the ruling on the appellant would not have been immediately apparent and could only be assessed after the hearing was at an end. This argument is not a separate ground of appeal. Rather, it is a factor on which the appellant relies to establish the ground of appeal that the Tribunal’s decision was

flawed because it failed to take account of the nexus between the appellant’s mental condition and his conduct. The argument being the appellant was deprived of proper opportunity to establish this nexus because his ability to present well as a witness was hampered by the presence of the [B]s. Dr Goodwin’s opinion gives foundation to this argument.

[22]   Dr Goodwin’s evidence is cogent. The report written by Dr Goodwin is careful and well expressed. He expresses his expert opinion on the appellant’s mental health condition and from there addresses the influence this condition had on the appellant’s conduct and how this relates to the relevant grounds of appeal.

[23] Regarding the new affidavit from the appellant, [8] to [15] of the affidavit set out the factual circumstances which the appellant related to Dr Goodwin, and on which Dr Goodwin has relied for preparing his report on the appellant’s mental health condition. Accordingly, this evidence provides a first-hand account of the circumstances on which Dr Goodwin has based his opinion. Without this account there is the risk that Dr Goodwin’s opinion would be based on the hearsay account of those circumstances as disclosed to him by the appellant, which would leave Dr Goodwin’s opinion vulnerable to exclusion pursuant to s 25(3) of the Evidence Act 2006 on the ground it was an opinion based upon hearsay evidence.12 I am satisfied therefore that those paragraphs should be admitted.

[24] Secondly, [37] to [56] of the appellant’s affidavit could not have been provided at the hearing because the detrimental impact of the presence of the [B]s and their counsel could not be known until the hearing was completed. This evidence is material to the appellant’s appeals against liability and sentence. It is cogent evidence. I am satisfied those paragraphs of the affidavit should be admitted.

[25]   Moreover, in general I consider the interests of justice weigh in favour of the admission of the evidence I have outlined above. The decision to admit new evidence is being made in the context of a disciplinary proceeding where the appellant was reliant on matters of great personal sensitivity to provide a basis for his defence. The outcome of the hearing places the appellant at great personal jeopardy, both in terms

12     See R v T [2018] NZHC 2467 and cases discussed therein.

of his loss of his career and the very real risk to his personal safety. These matters will be advanced on appeal. I consider it to be in the interests of justice that the best account of these matters be placed before the appellate court. The respondent argued to the effect there was little strength in the appellant’s arguments on appeal. Whether that is so or not is a matter best left for the Court that determines the appeal.

[26]   The introductory paragraphs at [1] to [8] simply provide a lead in to the specific evidence and for this reason I consider they can be admitted as they helpfully set the scene for the specific evidence.

[27]   The balance of the opposed new evidence strikes me as no more than an attempt to re-traverse or re-visit matters that were already the subject of evidence adduced before the Tribunal. However this evidence is viewed, it cannot be framed in a way that would enable it to pass the tests for admission of new evidence on appeal. Accordingly, I consider that [16] to [36] and [57] to [65] should not be admitted.

[28]   Because [71] only sets out the orders the appellant seeks if the appeal is successful, I consider this paragraph should also not be admitted. Its proper place is by submission from counsel.

[29]   It follows that the application to adduce new evidence on appeal is partly successful. This may necessitate the respondent being granted leave to file evidence in reply. If so the respondent should seek a telephone conference for timetabling directions and directions in relation to the fixture date.

Result

[30]   Leave is granted to the appellant to adduce the following new evidence on appeal:

(a)The affidavit of Dr Goodwin dated 5 December 2019 annexing his report dated 29 November 2019; and

(b)Paragraphs [1] to [7]; [8] to [15]; [37] to [56]; and [66] to [70] of the affidavit of the appellant dated 5 December 2019.

[31]Leave is reserved to the parties to file memoranda on costs.

Duffy J