Auckland Standards Committee 4 v Schlooz - [2021] NZHC 2185

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-854

[2021] NZHC 2185

IN THE MATTER OF
an appeal against a decision of the

New Zealand Lawyers and Disciplinary Tribunal pursuant to s 253 of the Lawyers and Conveyancers Act 2006

BETWEEN

AUCKLAND STANDARDS COMMITTEE 4

Appellant

AND

JOHN PAUL TIMOTHY SCHLOOZ

Respondent

Hearing: 28 July 2021

Counsel:

P N Collins for appellant S R G Judd for respondent

Judgment:

24 August 2021

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 24 August 2021 at 2.30pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
New Zealand Law Society, Wellington Wilson McKay, Auckland

AUCKLAND STANDARDS COMMITTEE 4 v SCHLOOZ [2021] NZHC 2185 [24 August 2021]

Introduction

[1]John Paul Timothy Schlooz is an Auckland lawyer.

[2]In March 2021, he admitted two charges of misconduct under s 7(1)(a)(i) and

(ii) of the Lawyers and Conveyancers Act 2006 (the LCA) arising from offensive, abusive and threatening communications with a litigant who was representing herself in proceedings against Mr Schlooz’s client.

[3] On 14 April 2021, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal delivered a decision in which it imposed penalties that included suspending Mr Schlooz from practice for four months from 17 April 2021.1 As the Tribunal said, the decision concerned the proper disciplinary response when, while providing services that are regulated under the LCA, a lawyer corresponds with another person in an offensive, abusive and threatening manner. It also addresses the importance of the principles of general deterrence and denunciation in a regulatory framework, the purposes of which are to protect the public and maintain the confidence of the public in the legal profession.2 Also, the decision considered the extent to which consistency of penalty can be achieved across a range of vastly different types of conduct and contexts in which that conduct has occurred.3

[4] The Auckland Standards Committee 4, which had laid the charges before the Tribunal, appeals against the period of suspension as being manifestly inadequate.

The facts

[5] I adopt for the purposes of the appeal the informative summary of the factual background described by the Tribunal in its decision. It is regrettably necessary to repeat the language used in the offending correspondence in order to convey adequately the highly objectionable nature of the language used:

[10] The complainant, Ms Y, was the estranged wife of Mr Schlooz’s close friend [redacted]. The practitioner had been friendly with the complainant

1 Auckland Standards Committee 4 v Schlooz [2021] NZLCDT 12 [the Tribunal decision].
2 At [3].
3 At [5].

before she had separated from his friend and indeed had acted for her on one occasion.

[11] The complainant was acting for herself in relation to a number of disputes that she had with her former husband relating to property division, including her attempt to set aside a contracting-out agreement. There was also a tenancy dispute relating to the complainant’s occupancy of a…

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: [2021] NZHC 2185
Decision Date: 24 August 2021

CaseChat Overview and Summary

The case of Auckland Standards Committee 4 v Schlooz involved an appeal against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal, which had suspended Mr Schlooz from practice for four months. The appellant, the Auckland Standards Committee 4, argued that the penalty was manifestly inadequate. The central legal issue was whether the Tribunal had correctly assessed the penalty for Mr Schlooz’s misconduct, which involved sending offensive, abusive, and threatening communications to a litigant. The court had to determine whether the Tribunal's decision was correct and appropriate, considering the seriousness of the misconduct and the statutory purposes of maintaining public confidence in the legal profession.

The court found that the Tribunal had appropriately assessed the gravity of Mr Schlooz’s misconduct, which it placed at the upper end of the seriousness scale for cases involving offensive language and threats. The Tribunal had considered both aggravating and mitigating factors, such as the sustained and misogynistic nature of the misconduct and Mr Schlooz's admission of guilt and lack of prior disciplinary history. The court acknowledged that the Tribunal had exercised its discretion correctly by imposing a penalty that was significant but not disproportionate, given the nature of the misconduct. The court was persuaded that the Tribunal’s decision was correct in principle and appropriate in the circumstances, dismissing the appeal accordingly.

As a result, the Tribunal's decision to suspend Mr Schlooz for four months was upheld, along with the censure and costs orders imposed. The court also directed that the parties should endeavour to agree on costs without further intervention.

Orders