Complaints Assessment Committee 1904 v Bright
[2021] NZHC 1019
•7 May 2021
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2020-404-1687
[2021] NZHC 1019
UNDER S 116 of the Real Estate Agents Act 2008 IN THE MATTER
of an appeal against a decision of the Real Estate Agents Disciplinary Tribunal
BETWEEN
COMPLAINTS ASSESSMENT COMMITTEE 1904
Appellant
AND
MURRAY BRIGHT
Defendant
Hearing: 26 November 2020,
Further submissions 11 December, 16 December 2020
Appearances:
C Paterson and E Mok for the Appellant
B J Upton and L B Harrison, Counsel Assisting No appearance for Defendant
Judgment:
7 May 2021
JUDGMENT OF DUFFY J
This judgment is delivered by me on 7 May 2021 at 3:30 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
Shieff Angland, Auckland Meredith Connell, Auckland Simpson Grierson, Auckland
COMPLAINTS ASSESSMENT COMMITTEE 1904 v BRIGHT [2021] NZHC 1019 [7 May 2021]
[1] The respondent, Murray Bright, formerly worked in New Zealand as a real estate agent. He now lives in Australia. He has been charged with misconduct under s 73(a) of the Real Estate Agents Act 2008 and with an alternative charge of misconduct under s 73(c)(iii) of that Act. Mr Bright denies the charges.
[2] Those charges flow from a complaint that he behaved inappropriately towards a female prospective purchaser of a property (the complainant) that he was selling as agent. Mr Bright is representing himself. The complainant has said she does not want to be cross-examined by him.
[3] The Real Estate Agents Disciplinary Tribunal (the Tribunal) has refused to make an order prohibiting Mr Bright from personally cross-examining the complainant.1 Consequently, for the charges to proceed to a hearing the complainant will be obliged to submit to cross-examination by Mr Bright. The Complaints Committee responsible for prosecuting the complainant has appealed against the Tribunal’s decision.
The Tribunal’s decision
[4] There are two bases to the Tribunal’s decision. First, the fact the complainant’s concerns about being cross-examined by Mr Bright were not supported by expert evidence as to the deleterious effect this would have on her. The Tribunal noted that in R v Greer2 this Court heard evidence from a clinical psychologist in support of an application for an order prohibiting cross-examination by a self-represented person.3 Secondly, the usual stratagem for avoiding a self-represented person cross-examining a vulnerable complainant was not available to the Tribunal because it lacked the ability to fund a counsel assisting to carry out this task. The second matter was more fundamental to the decision because the Tribunal could see no answer to how it might substitute someone else for Mr Bright.4 The first matter could be more easily cured by the appellant obtaining expert evidence to confirm the complainant’s fears if she were confronted by questions from Mr Bright.
1 See Complaints Assessment Committee (CAC 1904) v Bright [2020] NZREADT 36.
2 R v Greer [2014] NZHC 358.
3 Complaints Assessment Committee (CAC 1904) v Bright, above n 1, at [21], n 4.
4 At [24].
The appeal
[5] Mr Bright has taken no active part in the appeal. The Court has appointed Mr Upton and Ms Harrison as counsel assisting to act in the role of contradictor.
[6] There have been further developments since the Tribunal made its ruling. First the appellant has filed an application to adduce further evidence on appeal. This evidence is to supplement the case it brought before the Tribunal. Second the appellant and counsel assisting both filed submissions after the appeal hearing and these raise material issues that are dispositive of the appeal. I propose to deal with those issues now.
Tribunal’s ability to appoint and fund counsel assisting
[7] The Tribunal correctly accepted it had authority under s 95(2) of the Evidence Act 2006 to order that Mr Bright not personally cross-examine the complainant. An order under s 95(2) may be made on one or more of the grounds set out in s 95(3). Here the Tribunal considered that s 95(3)(d), which allows the Tribunal to consider the nature of the proceeding before it, would apply. In this regard, the Tribunal was satisfied that the nature of the complaint and the sensitive nature of the evidence the complainant was expected to give would bring the hearing within the scope of s 95(3)(d). The Tribunal accepted the complainant’s allegations against Mr Bright which formed the basis of the charges as to conduct could, if accepted as proved, constitute indecent assault. The Tribunal was, therefore, satisfied that the nature of the proceeding was to some extent “sexual”. Whilst Mr Bright denied any sexual conduct or sexual intent, the Tribunal correctly recognised it was for it to determine whether the charges are proved. As alleged, the charges involved sexual conduct or sexual intent.
[8] The Tribunal correctly recognised that when considering whether to make an order under s 95(2) it was also required to have regard to matters set out in s 95(4). Namely: the need to ensure a fair trial;5 the need to minimise stress of the complainant or a witness;6 and any other factor that is relevant to the just determination of the
5 Subsection 95(4)(a).
6 Subsection 95(4)(b).
proceeding.7 In this regard the Tribunal considered that it could not go so far as to prohibit any cross-examination of the complainant because that would be contrary to Mr Bright’s rights to a fair hearing. It was right to reach this conclusion.
[9] Before the Tribunal the appellant had suggested that cross-examination questions could be put by the Tribunal.8 That was not possible, however, because s 95(5) of the Evidence Act specifies that if a party is precluded from personally cross- examining those questions may be put by “a lawyer engaged by the defendant” or “a person appointed by the Judge for the purpose”. The Tribunal correctly recognised that s 95(5) does not allow the Judge or, in this case, the Tribunal to assume the role of cross-examiner.
[10] Typically, courts will resolve the need to prohibit cross-examination by self- represented persons by appointing counsel assisting to carry out this task. However, the Tribunal found it had no jurisdiction to fund the services of a lawyer to cross- examine on behalf of Mr Bright. This is where the Tribunal erred.
[11] At the appeal hearing there was some discussion about whether the Tribunal was correct to find it could not appoint a lawyer as counsel assisting to carry out the cross-examination and pay for those services. Following the hearing the appellant and counsel assisting each filed further submissions on that specific topic. Both have come to the conclusion that the Tribunal does have authority to appoint a counsel assisting to carry out the cross-examination of the complainant and to fund those services. I agree.
[12] The appellant has filed helpful submissions on the Public Finance Act 1989. Section 5 of the Public Finance Act provides that the Crown must not spend public money “except as expressly authorised by or under an Act (including this Act)”. Section 6 of the Public Finance Act provides that public money may be spent, without further authority than that section, for the purpose of: (a) meeting expenses or capital expenditure incurred in accordance with an appropriation or other authority by or under an Act; (b) the payment of goods and services tax in relation to those expenses
7 Subsection 95(4)(c).
8 Complaints Assessment Committee (CAC 1904) v Bright, above n 1, at [24].
or capital expenditure; (c) the repayment of debt of the Crown or an Office of Parliament; and (d) the settlement of liabilities of the Crown or an Office of Parliament. In the case of an appropriation made to the Crown, a Minister is responsible for the appropriation and the appropriation must be administered by one department on behalf of the Appropriation Minister.9 The Crown includes all departments, including the Ministry of Justice, which administers the Real Estate Agents Act and arranges for the funding of the Tribunal.10 The authority to incur expenses or capital expenditure provided by an appropriation is “limited to the scope of the appropriation” and “may not be used for any other purpose”.11
[13] The appellant submits that the Ministry of Justice has an appropriation to provide Courts and Tribunals with services. A copy of the current appropriation for the 2020/2021 financial year was provided to the Court. In this document the scope of the appropriation for the Tribunal is presented under the heading of “Specialist Courts, Tribunals and Other Authorities services.”12 This category of the appropriation is limited to providing services that support the work of New Zealand specialist courts, tribunals and authorities.13 There is a separate category for the funding of remuneration, allowances, or fees of the chair and members of specialist Tribunals, and expenses incurred by the Chair and those members in relation to Tribunal work. These categories of appropriation for specialist courts, tribunals and other authorities services answer the question as to how the Tribunal is funded.
[14] The next question is whether the appointment and payment of counsel assisting before the Tribunal can be made in accordance with s 5 of the Public Finance Act.
[15] The appellant submits that, contrary to what was understood to be the position in Director of Human Rights Proceedings v The Sensible Sentencing Group Trust,14
9 See Public Finance Act 1989, s 7C(2).
10 See Public Finance Act, ss 2(1) definitions of “Crown” and “department”, 5 and sch 2 pt 1.
11 See Public Finance Act, s 9(1).
12 See “Courts, Tribunals and Other Authorities Services, including the Collection and Enforcement of Fines and Civil Debts Services MCA (M19)” in The Estimates of Appropriations 2020/21 - Justice Sector B.5 Vol.7 (Treasury, 14 May 2020) at 46. This also notes that “[t]he single overarching purpose of this appropriation is to provide courts, tribunals and other authorities services, including the collection and enforcement of fines and civil debts services.
13 At 46.
14 Director of Human Rights Proceedings v Sensible Sentencing Group Trust [2013] NZHRRT 26.
there is statutory authority for the Tribunal, which is administered by the Ministry of Justice and funded by the appropriation to that department, to appoint and fund counsel to assist in proceedings brought before it. The scope of the appropriation relating to the Tribunal is very broad and encompasses the provision of services that support the work of the Tribunal. Therefore, in circumstances where a counsel assisting is appointed for the purposes of assisting the Tribunal to lawfully carry out cross- examination of a witness where an order has been made under s 95 of the Evidence Act prohibiting a party from cross-examining that witness directly, there is nothing to suggest that the appropriation would not extend to reimbursing the costs of that counsel.
[16] The Real Estate Agents Act and the Evidence Act provide the Tribunal with statutory authority to appoint counsel assisting. In particular s 105(1) of the Real Estate Agents Act provides for the Tribunal to regulate its procedures as it sees fit, subject to the rules of natural justice. And s 109(4) of that Act provides that the Evidence Act applies to the Tribunal as if it were a Court. Section 95(5)(b) of the Evidence Act establishes an alternative procedure allowing another person to be appointed to cross-examine a witness in a proceeding where an order has been made prohibiting a party to a proceeding from personally cross-examining the witness under s 95(2). The Courts have previously held that counsel assisting may be the person appointed for the purpose of these provisions.15 Accordingly, where the Tribunal is satisfied an order is necessary under s 95(5)(b) of the Evidence Act in the hearing of any matter before it, the Tribunal has the authority to make such an order.
[17] The appellant submits that having regard to the foregoing legislative provisions, and to enable their proper exercise, the Tribunal must also have jurisdiction to appoint and fund counsel assisting under the applicable appropriation. When seen in this way the cost of counsel assisting is something incurred in the course of the Tribunal regulating its procedure as it sees fit, and in accordance with orders it considers should be made under the Evidence Act.
15 See Fawcett v R [2017] NZCA 597; M (CA427-2011) v R [2012] NZCA 270; and R v Cant HC Auckland CRI 2006-004-26731, 20 May 2010.
[18] Accordingly, in the present case all that would be required is an order prohibiting Mr Bright from personally cross-examining the complainant and a corresponding order for the appointment of counsel assisting to carry out that function in accordance with s 95(5)(b) of the Evidence Act. The associated cost could then be met out of the applicable appropriation on the basis that the appointment of counsel assisting is to enable the Tribunal to carry out its function of determining the charges brought before it and in accordance with the Tribunal regulating its procedure as it thinks fit. That is, by preventing Mr Bright from personally cross-examining the complainant about an allegation of a sexual nature, which is a course open to the Tribunal under s 95(5)(b) of the Evidence Act.
[19] The appellant also submits that in proceedings under the Real Estate Agents Act the Tribunal has the ability to make any award as to costs that it thinks fit.16 This is a very broad power and includes specific jurisdiction for the Tribunal to order a party in default to pay costs to the Crown.17
[20] The appellant refers to s 178 of the Senior Courts Act 2016 which provides that if a person appears as counsel to assist the court in any civil proceedings or in an appeal, and argues any question of law or of fact arising in the proceedings, the court may make any order it thinks just as to costs. Specifically, a court may make an order it thinks just as to the payment by any party to the proceedings or out of public funds of the costs incurred by any other person in doing so.18 Accordingly, an order for payment of counsel assisting’s costs may be made pursuant to s 178 of the Senior Courts Act instead of costs being met using public funds.
[21] The appellant submits that having regard to the fact that disciplinary proceedings before the Tribunal are civil proceedings, by analogy with s 178 of the Senior Courts Act it may be appropriate for the Tribunal to consider making an order for the payment of costs to reimburse the Crown for the costs incurred in appointing counsel assisting. The appellant recognises that this would need to be considered at
16 Section 110A(1).
17 Section 110A(3).
18 Senior Courts Act 2016, s 178(2)(b).
the conclusion of the present disciplinary proceedings and in accordance with what the Tribunal considers just in the circumstances.
[22] At the appeal hearing counsel assisting was initially concerned that s 5 of the Public Finance Act would not support the Tribunal funding counsel assisting, unless there was express authorisation in either the Real Estate Agents Act, the Evidence Act or the Senior Courts Act for such payment. However, counsel assisting has considered the additional submissions provided by the appellant and now accepts these demonstrate that the Ministry of Justice (being a department of the Crown for the purpose of the Public Finance Act) is expressly authorised to spend an appropriation that has been made for the purpose of providing services that support the work of New Zealand’s specialist courts, tribunals and authorities. Counsel assisting agrees with the appellant’s submission that funding the cost of counsel, in circumstances where a tribunal finds counsel’s services are required in order for a proceeding to continue in a way that is just to all parties, falls within this appropriation.
[23] Counsel assisting submits the Tribunal was operating under a mistaken understanding of its jurisdiction to appoint and pay for counsel to conduct cross- examination on Mr Bright’s behalf when it made its determination. Counsel assisting also submits it is clear from [22] to [24] of the Tribunal’s decision that the fact the Tribunal saw little alternative to allowing Mr Bright to cross-examine the complainant was an influential factor in it reaching a decision to decline the appellant’s application. Accordingly, counsel assisting submits the Tribunal’s error falls within Kacem v Bashir,19 being an error of law or principle that is sufficient to allow the appeal.
[24] I am persuaded by the helpful submissions that I have received from the appellant and counsel assisting. For the reasons set out herein, I am satisfied that the appropriations to the Ministry of Justice for the purpose of providing services that support the work of New Zealand’s specialist courts, tribunals and authorities are sufficient authority, in terms of the Public Finance Act, to enable funding for the services of a counsel assisting appointed by the Tribunal for the purpose of cross-
19 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
examining the complainant in accordance with orders made under s 95 of the Evidence Act.
[25] I accept that the Tribunal’s refusal to prohibit Mr Bright from cross-examining the complainant was materially influenced by the Tribunal’s view that it had no authority to appoint counsel to carry out this task. The Tribunal understandably would not allow the complaint to proceed with there being no cross-examination of the complainant. I am also satisfied that the Tribunal may have reached a different conclusion had it been aware that it did have jurisdiction to appoint counsel assisting and ensure payment for those services.
[26] Accordingly, I find the Tribunal’s refusal to make the relevant orders under s 95 of the Evidence Act is based on its misunderstanding of the law. This is an error of law that warrants setting aside the Tribunal’s decision.
What should happen now?
[27] The next question is whether this Court should make the decision on the cross- examination question or send the matter back to the Tribunal for its determination. In this case a separate question of concern for the Tribunal was whether the complainant had sufficiently made out a case for an order being made in her favour under s 95(2) of the Evidence Act. Rather than reach a view on that topic, which is dependent on whether fresh evidence is allowed on appeal, I consider the more appropriate approach is to refer the matter back to the Tribunal for its consideration. This will enable the Tribunal to consider the expert evidence the appellant has now obtained to support the complainant’s request that she not be cross-examined by Mr Bright in person.
[28] As to that evidence, all that was before me were two written letters by a consultant clinical psychologist. If the appellant wants to rely on expert evidence to support the complainant’s request not to face cross-examination by Mr Bright, I consider the expert evidence should be in affidavit form. The expert needs to outline her qualifications and experience as well as referencing the High Court Rules 2016 “Code of conduct for expert witnesses”.20 The fact the expert evidence was poorly
20 High Court Rules 2016, sch 4.
presented is a relevant consideration for me in deciding to refer the matter back to the Tribunal for its consideration.
[29] As to the jurisdiction of the Tribunal to make costs awards, counsel assisting agrees with the appellant that there are broad powers to make orders under s 110A of the Real Estate Agents Act, and these may extend to making costs awards in relation to counsel appointed for the purpose of cross-examination. Whether that is something that should be done in this case is better determined at the conclusion of the disciplinary hearing before the Tribunal. The question whether Mr Bright could be ordered to pay costs of counsel assisting to conduct the cross-examination is a matter that was not part of the appeal as notified by the appellant. Therefore, it has not been brought to Mr Bright’s attention. This question is something on which he can be heard at the conclusion of the disciplinary hearing.
Result
[30]The appeal is allowed.
[31] The Tribunal’s decision is set aside. The matter is referred back to the Tribunal for rehearing in accordance with the law as stated herein.
[32] Mr Bright did not oppose the appeal. In such circumstances I consider it would not be appropriate to award costs against him. The outcome of the appeal has been to the wider benefit of the appellant insofar as the Committee is now informed as to the scope of the Tribunal’s jurisdiction to appoint counsel to assist relevant to s 95 of the Evidence Act. Nonetheless, should the appellant seek to advance an application for costs I shall consider it. Any such application should be filed and served within ten working days of delivery of this judgment.
Duffy J