Brill v Auckland Standards Committee 2 - [2023] NZHC 929

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000217

[2023] NZHC 929

BETWEEN
BARRY EDWARD BRILL

Appellant

AND

AUCKLAND STANDARDS COMMITTEE 2

Respondent

Hearing: On the papers

Judgment:

28 April 2023

JUDGMENT OF DOWNS J

(Application for leave to appeal)

This judgment was delivered by me on Friday, 28 April 2023 at 12 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Manukau. Copy to: Appellant.

BRILL v AUCKLAND STANDARDS COMMITTEE 2 [2023] NZHC 929 [28 April 2023]

[1] The Lawyers and Conveyancers Disciplinary Tribunal1 found Barry Brill misconducted himself by providing regulated services to the public other than in the course of his employment. At all relevant times, Mr Brill was an employee of his own company, B E Brill Ltd, and held a practising certificate as an in-house lawyer only. Despite this, Mr Brill acted for his wife and neighbours in litigation; litigation that grew and reached the Court of Appeal.2 The litigation was unconnected to Mr Brill’s employment with B E Brill Ltd.

[2] The Tribunal censured Mr Brill; fined him $7,000; and ordered he pay 75 percent of related costs. Mr Brill appealed both liability and penalty. I dismissed the liability appeal but allowed the penalty appeal by quashing Mr Brill’s censure.3 I observed:4

Censure is an unremarkable response to a practitioner who has misconducted themself. This case is unusual, however. While Mr Brill should not have acted for parties in the Bridgewater litigation, he did not solicit that role or benefit financially from it. The combination diminishes seriousness.

There is no need for personal deterrence. Mr Brill is, I gather, 82. He is on the cusp of, if not beyond, retirement. There is little prospect he will misconduct himself again.

[3] Mr Brill seeks permission to bring a second liability appeal to the Court of Appeal. Permission is required because of s 254 of the Lawyers and Conveyancers Act 2006,5 which reads:
254 Appeal to Court of Appeal on question of law

(1)Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 56 of the Senior Courts Act 2016 applies to any such appeal.

(2)In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public

1 The Tribunal.
2 Wheeldon v Body Corporate 342525 [2016] NZCA 247; Butcher v Body Corporate 342525 [2017] NZCA 423; Wheeldon v Body Corporate 342525 [2017] NZCA 424; Butcher v Body Corporate 342525 [2018] NZCA 19; and Wheeldon v Body Corporate 342525

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.

Keep reading for free

Create a free CaseChat account to read Brill v Auckland Standards Committee 2 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZHC 929
Decision Date: 28 April 2023

CaseChat Overview and Summary

Barry Edward Brill, an in-house lawyer, appeals the Lawyers and Conveyancers Disciplinary Tribunal’s decision that he misconducted himself by providing regulated services to the public outside his employment with B E Brill Ltd. The Tribunal imposed a censure, a fine of $7,000, and ordered Mr Brill to pay 75 percent of related costs. Mr Brill initially appealed both liability and penalty, but the High Court dismissed the liability appeal and allowed the penalty appeal. Now, Mr Brill seeks leave to bring a second appeal to the Court of Appeal concerning the Tribunal’s interpretation of the Lawyers and Conveyancers Act 2006.

The court must determine whether the questions of law Mr Brill proposes for the Court of Appeal to decide are of general or public importance. The court must also consider if the questions are suitable to be decided in Mr Brill’s case, given that he acted for his wife and neighbours in litigation while holding a practising certificate as an in-house lawyer only. Mr Brill identifies four questions for the Court of Appeal: whether s 9(1) extends to lawyers who are not “being an employee”; whether co-owners and co-litigants of an employed lawyer comprise “the public”; whether a legal practitioner may enter multiple part-time in-house contracts; and whether an in-house lawyer is entitled to practise on their own account if authorised under the Law Practitioners Act 1955.

The court finds that the first two questions are questions of law and could, in principle, constitute ones of general or public importance. However, the court is unpersuaded that Mr Brill’s case is a suitable vehicle for a second appeal concerning s 9(1). The court reasons that Mr Brill’s actions in providing legal services to his wife and neighbours in litigation while holding a practising certificate as an in-house lawyer only, leaves no realistic basis upon which Mr Brill’s liability under s 9(1) could be impeached on the facts. The third proposed question does not appear to constitute a question of law, and even if it is, it could not be one of general or public importance. The fourth proposed question concerns the effect of s 31 of the Act and the earlier enactments, which the court rejected. The court finds that the question only affects practitioners admitted under either of the earlier enactments who have not practised on their own account for more than 10 years and who wish to do so. Few lawyers are likely to be within this category, and therefore, the court is not persuaded the proposed question constitutes one of general or public importance.

The court declines permission for Mr Brill to bring a second appeal to the Court of Appeal, dismissing the application. Mr Brill must pay the respondent 2B scale costs.

Orders