Auckland Standards Committee 3 of New Zealand Law Society v W HC Auckland CIV-2010-404-005509

[2011] NZHC 1856

SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT: SEE PARAGRAPH [8].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-005509

BETWEEN  AUCKLAND STANDARDS COMMITTEE 3 OF NEW ZEALAND LAW SOCIETY

Appellant

ANDW Respondent

Hearing:         9 September 2011

Counsel:         M A Treleaven for the Appellant

K A Muir and C M Moody for the Respondent

Judgment:      12 September 2011

REASONS JUDGMENT OF DUFFY J [Re Application for Leave to Appeal]

This judgment was delivered by Justice Duffy on 12 September 2011 at 12.15 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Cook  Morris  Quinn  P  O  Box  1295  Shortland  Street  Auckland  1140;  and New Zealand Law Society (Auckland Branch) P O Box 4417 (DX CX10008) Shortland Street Auckland 1140 for the Appellant

Morgan Coakle P O Box 114 (DX CP20504) Shortland Street Auckland 1140 for the Respondent

AUCKLAND STANDARDS COMMITTEE 3 OF NZ LAW SOCIETY v W HC AK CIV-2010-404-005509 12

September 2011

[1]      This  is  an  application  for leave to  appeal  to  the Court  of Appeal.   The applicant is a law practitioner who currently has his name suppressed and, therefore, will be referred to as “W”.

[2] W faced two charges before the New Zealand Lawyers and Conveyancers Tribunal (“the Tribunal”). The charges were laid under s 112(1)(a) and s 112(1)(c) of the now repealed Law Practitioners Act 1982. The Tribunal heard the charges pursuant to transitional provisions in the Lawyers and Conveyancers Act 2006. The Tribunal dismissed both charges.

[3]      The Auckland Standards Committee 3 of NZ Law Society (the Committee) appealed against the Tribunal’s decision.  On 11 July 2011, I delivered a judgment (Auckland Standards Committee 3 of New Zealand Law Society v W HC Auckland CIV-2010-404-005509, 11 July 2011) in which I allowed the appeal and convicted W of the charge laid under s 112(1)(c).   I concluded that W’s conduct amounted to negligence or incompetence in his professional capacity of such a degree as to bring the  profession  into  disrepute.    I dismissed  the  appeal  on  the  other  charge.    W contends that the decision I reached contains errors that satisfy the test for leave to appeal to be granted. The Committee opposes leave to appeal being granted.

[4]      The tests for leave to appeal are well settled: see Snee v Snee [2000] NZFLR

120 and Waller v Hider [1998] 1 NZLR 412. W is required to identify questions of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.

[5]      W has identified six such questions the last of which was developed in the course of the hearing:

1.(a)      What  is  the  degree  of  negligence  or  incompetence  that  is required before conduct is deemed to be of such a degree as to tend to bring the profession into disrepute (“the threshold”)?

(b)      Did W’s negligence on this occasion cross that threshold?

2.(a)      In what circumstances does an honest error not arising from indifference or a casual approach call for punishment under s 112(1)(c)?

(b)      Do these circumstances apply in this case?

3.(a)      In considering the issue of whether or not the negligence or incompetence is of such a degree as to bring the profession into disrepute, is the appropriate test the reaction of the reasonable public informed of all the relevant circumstances?

(b)Would the standing of the profession necessarily diminish in the eyes of the public in these circumstances?

4.(a)      Should the circumstances leading to the appellant’s error and the surrounding circumstances and consequences be excluded when considering whether or not the negligence or incompetence was of such a degree as to bring the profession into disrepute?

(b)Which of the preceding and surrounding circumstances and consequences are relevant in this assessment?

5.(a)      Is  the issue of  whether  or not  the undertaking  in  question should be honoured or enforced a discrete issue, which should not be conflated with the issue of whether or not a disciplinary consequence should follow?

(b)      Have the issues been conflated in this case?

6.Does the law relating to the interpretation of undertakings still require an ambiguous undertaking to be construed against the interests of the solicitor who drafted or gave it, or does the law now require the intention of the undertaking to be ascertained in  light  of  all  the  relevant  circumstances  in  line  with  the

decision in Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5; [2010] 2 NZLR 444?

[6]      At the conclusion of the hearing, I advised counsel that I would grant leave to appeal, with reasons to follow later.

[7] I am satisfied that the questions identified by W meet the well settled tests for a grant of leave to appeal. The offence created by s 112(1)(c) is now to be found in s 241(c) of the Lawyers and Conveyancers Act. Thus, the questions of law and fact that are raised by my decision will have an ongoing effect on charges laid under s 241(c). I consider that the importance of undertakings for the legal profession is such that how their interpretation and whether a law practitioner who conducts himself like W commits an offence under s 241(c) raise questions of law that meet the tests for the grant of leave to appeal. Accordingly, W is granted leave to appeal to the Court of Appeal on the questions set out in [5] herein.

[8]      At [76] of the judgment on appeal, I ordered the continuation of the name suppression that has been in place since the disciplinary prosecution  of W was commenced. That order is to remain in force until further order of the Court.

Duffy J