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 [2018] NZCA 20.

3      Brill v Auckland Standards Committee 2 [2022] NZHC 3036.

4      At [92]–[93].

5      The Act.

importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.

(3)The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks fit, whether as to costs or otherwise.

(4)The decision of the Court of Appeal on any appeal under this section is final.

[4]    As will be observed, s 254 identifies a test by which the Court of Appeal must determine permission (s 254(2)),  but no  such test when  this Court determines it.    A string of High Court decisions hold the test “is essentially the same”.6 Mr Brill agrees. I proceed accordingly.

[5]    The key provision before me was s 9(1) of the Act. It provides a lawyer is guilty of misconduct “who being an employee, provides regulated services to the public other than in the course of his or her employment”. Mr Brill identifies four proposed questions for the Court of Appeal, the  first two of which directly concern  s 9:

a.Whether s 9(1) extends to a lawyer who is not “being an employee” (ie is acting in a different capacity) in providing the regulated services in question?

b.Whether a co-owner and/or a co-litigant of an employed lawyer comprises “the public” within the meaning of s 9(1)?

c.Whether a legal practitioner may enter two or more part-time in-house contracts at the same time?

d.Whether an in-house lawyer is entitled to practise on his or her own account if so authorised under s 22 of the Law Practitioners Act 1955?

[6]    The first proposed question seeks to repeat one I answered against Mr Brill. Essentially, the argument is this: “being an employee” in s 9(1) means “as part of his or her duties to an employer”. So, when Mr Brill provided legal services to his wife and neighbours in the Bridgewater litigation, Mr Brill was not “being an employee” of B E Brill Ltd; he did not appear in the litigation qua in-house counsel for

6      Hong v Auckland Standards Committee No 5 [2020] NZHC 1572 at [3]. See also Morahan v Wellington Standards Committee 2 [2018] NZHC 1583 and Deliu v National Standards Committee [2018] NZHC 2873.

B E Brill Ltd.    Mr Brill said this interpretation was consistent with a brochure published by the New Zealand Law Society for in-house lawyers.

[7]I held s 9(1) meant what it said:7

… a lawyer is guilty of misconduct who, being an employee, provides regulated services to the public other than in the course of his or her employment. The section creates a general prohibition against in-house lawyers providing regulated services to the public. It ensures lawyers who provide regulated services to the public are either qualified to do so on their own account or supervised as an employee. Public protection, not privity of contract, is the decisive concern. ...

[8]    The second proposed question repeats another I  answered against Mr Brill.  It concerns the meaning of “the public” in s 9(1). Mr Brill argued “the public” carried its usual meaning of “people in general, rather than a particular group”, and his wife and neighbours could not be regarded as members of the public given their connection to Mr Brill and each other. I held:8

The Act does not define the phrase, “the public”. In the context of s 9(1),        I consider it means anyone other than the employer of the lawyer. To conclude otherwise would undermine the purpose of, and protection afforded by, s 9. As observed earlier, s 9 prohibits a lawyer from provided regulated services to the public other than in the course of his or her employment. The prohibition protects consumers of legal services—another explicit purpose of the Act.

[9]    I acknowledge the first two questions are questions of law which could, in principle, constitute ones of general or public importance. However, I am not persuaded the facts of Mr Brill’s case are a suitable vehicle for a second appeal concerning s 9(1). It is beyond argument Mr Brill acted for his wife and neighbours in litigation, while  holding  a  practising  certificate  as  an  in-house  lawyer  only.  It follows no realistic basis exists upon which Mr Brill’s liability under s 9(1) could be impeached on the facts.

[10]   Unsurprisingly, Mr Brill contests this reasoning. He argues a second appeal is needed to clarify what s 9(1) means, especially as my decision appears to be the only one (of a senior court) on point. I remain unpersuaded. That there are no other cases on point tends to confirm the section means what it says.

7      Brill v Auckland Standards Committee 2, above n 3, at [39].

8 At [46].

[11]   The third proposed question does not appear to constitute a question of law. But, even if it is, it could not be one of general or public importance.

[12]   The fourth proposed question concerns the effect of s 31 of the Act, and in turn, s 55 of the Law Practitioners Act 1982 and s 22 of the Law Practitioners Act 1955, which I call the earlier enactments. I rejected Mr Brill’s interpretation of s 31 and the earlier enactments, namely that he was entitled to practise on his own account and therefore had not infringed s 9(1) of the Act. This question is also a question of law. However, as Mr Radich observes on behalf of the respondent, 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. For this reason, I am not persuaded the proposed question constitutes one of general or public importance.

[13]   For completeness, Mr Brill also wishes to contend aspects of the judgment “provide ill-advised precedents for the lawyers’ regulatory system”.9 This argument appears to be directed at concurrent factual determinations. In any event, it raises no question of law.

Result

[14]Permission is declined. The application is dismissed.

[15]Mr Brill must pay the respondent 2B scale costs.

……………………………..

Downs J

9      Applicant’s submissions, para 106.