Hart v Auckland Standards Committee 1 of New Zealand Law Society
[2013] NZHC 83
•5 February 2013
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THISJUDGMENT IS SUBJECT TO THE SUPPRESSION ORDERS CONTAINED IN PARAGRAPH [246].
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-5076
CIV-2012-404-5528 [2013] NZHC 83
BETWEEN BARRY JOHN HART Appellant
ANDAUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY
Respondent
Hearing: 10 & 11 December 2012
Court:Winkelmann J Lang J
Appearances: A Trenwith, J Bioletti and M Porner for Appellant
P Collins and M Treleaven for Respondent
Judgment: 5 February 2013
JUDGMENT OF THE COURT
This judgment was delivered by the Court on 5 February 2013 at 12 noon pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
HART V AUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY HC AK CIV-
2012-404-5076 [5 February 2013]
Table of Contents
Para No Introduction [1] The charges [2] Approach on appeal [12]
First ground of appeal - refusal to adjourn/proceed in the
appellant’s absence
[13]
Relevant principles [23]
Analysis [28]
Second ground of appeal – was the Tribunal entitled to consider the third charge?
[69]
Statutory framework [73]
The reasoning in Orlov [92]
Analysis [101]
Third and fourth grounds of appeal – did the Tribunal err by failing to call witnesses who had provided evidence in support of Mr Hart?
[111]
Fifth ground of appeal – fees charged to Mr A and his family [131] Background [132] Expert evidence [144] Tribunal’s decision [159] Analysis [175]
Sixth ground of appeal – was striking off a disproportionate response?
[181]
The approach taken by the Tribunal [182]
Discussion [185]
1.The nature and effect of the conduct giving rise to the present charges
[191]
(a) The first charge [191] (b) The third charge [196] (c) The fourth charge [211]
2.The manner in which Mr Hart responded to the present charges
(a) The events leading up to the hearing on 16 and 17
July 2012
(b) Mr Hart’s response to the Tribunal’s liability
decision
[220] [221] [225]
Decision [232]
Seventh ground of appeal – should the orders as to costs be revisited
having regard to Mr Hart’s current financial circumstances?
[240]
Summary of findings [244] Result [245] Suppression [246] Costs [247]
Introduction
[1] Mr Hart faced four charges before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”). The charges were laid by the Auckland Standards Committee No 1 under the provisions of the Lawyers and Conveyancers Act 2006 (“LCA”), and under the Conduct and Client Care Rules
2008 (“the Rules”).
The charges
Charges one and two
[2] These charges arose after Mr Hart hired a private investigator, Mr D, to carry out investigation work for a client whom Mr Hart was representing in relation to criminal charges.
[3] There was significant delay in Mr Hart paying Mr D’s fees. Although Mr Hart’s client applied for legal aid, this was declined. Mr D rendered invoices in mid-2008 for sums totalling $4,682.36. Mr Hart paid half of this sum after Mr D complained to the Law Society in April 2009, and paid the balance after Mr D filed a claim against Mr Hart in the Disputes Tribunal.
[4] Charge one alleged that Mr Hart was guilty of misconduct in his professional capacity in failing to inform Mr D that payment of his fees was subject to the Legal Services Agency (“LSA”) approving the fees, and that the LSA might not approve the fees either in whole or in part. The charge also alleged that Mr Hart failed to inform Mr D of any alternative arrangement for payment in the event that the LSA did not approve and pay his fees in whole or in part.
[5] Charge one further claimed that Mr Hart failed to honour the full payment of Mr D’s account in circumstances where he was required to do so under r 7.03 of the then applicable Rules of Professional Conduct for Barristers and Solicitors. Rule
7.03 provides that a practitioner engaging another person to provide services for a
client is liable for prompt payment for the fee of that person. The rule also required Mr Hart to inform Mr D that the client was legally aided and of the requirements and consequences of this.
[6] Charge two was laid in the alternative to charge one. It alleged that the same failures amounted to conduct unbecoming of a barrister.
Charge three
[7] The third charge alleged that Mr Hart had refused to disclose his file relating to a former client, Mr W, after having been required to do so by the Auckland District Law Society Complaints Committee 2 and the s 356 Standards Committee.1
The latter committee had assumed responsibility for the investigation of a complaint made by Mr W under the transitional provisions of the LCA.
[8] This charge alleged that Mr Hart’s failure to disclose the file amounted to misconduct in his professional capacity because it obstructed the Complaints Committee and the Standards Committee in the course of their investigations.
Charge four
[9] The fourth charge was laid after the family of Mr A, a 19 year old man who faced serious criminal charges, engaged Mr Hart to represent Mr A. This charge alleged Mr Hart was guilty of misconduct in his professional capacity by grossly overcharging Mr A’s family; Mr Hart had charged the family the sum of $35,000 in relation to services he and his colleagues provided. The charge also alleged that Mr Hart breached r 3.4 of the Rules because he failed to provide information to Mr A’s family about the basis upon which he proposed to charge them for his services, including his hourly rate and the nature and extent of legal services covered by particular fees. It was alleged that this behaviour constituted professional
misconduct.
1 Established under s 356 of the Lawyers and Conveyancers Act 2006.
[10] In a decision delivered on 2 August 2012, the Tribunal held that charges one, three and four had been proved to the required standard.2 As the Tribunal found the first charge proved, it was therefore not required to consider the second charge. After hearing submissions as to penalty, the Tribunal delivered a further decision on
14 September 2012 in which it ordered that Mr Hart be struck off the roll of barristers and solicitors. The Tribunal also ordered Mr Hart to pay costs of just over
$116,000, and to pay the sum of $20,000 to the complainants in relation to one of the charges.3
[11] Mr Hart now appeals to this Court against both decisions. The grounds of appeal can be shortly stated as follows:
(1)The Tribunal erred in refusing Mr Hart’s application to adjourn the hearing of the charges, brought on the ground that he was medically unfit to attend. The decision to proceed in his absence has resulted in a miscarriage of justice.
(2)The Tribunal erred in considering charge three. It was insufficiently serious for referral to the Tribunal and should have been dealt with by the Standards Committee.
(3)The Tribunal should not have found the first charge proved in circumstances where the complainant did not appear at the hearing.
(4)The Tribunal erred in failing to request that Mr Daniel Gardiner appear before it in connection with charge one, and in failing to request that Mr Alistair Haskett appear before it in connection with charge four. Both were legal practitioners who had sworn affidavits for Mr Hart.
(5) The Tribunal erred in rejecting the expert evidence tendered for
Mr Hart in connection with charge four.
2 Auckland Standards Committee No 1 v Hart [2012] NZLCDT 20.
3 Auckland Standards Committee No 1 v Hart [2012] NZLCDT 26.
(6) The decision to strike off Mr Hart was a disproportionate response.
(7)Changes in Mr Hart’s financial position (partly flowing from the Tribunal’s penalty decision) have made the order requiring him to pay costs manifestly excessive.
Approach on appeal
[12] This is a general appeal by way of rehearing under s 253 of the LCA. On an appeal by way of rehearing, the appellate court must come to its own view on the merits, and need not defer to the views of the Tribunal. However, when forming its view of the merits the appellate court is entitled to take into account that the Tribunal may have an advantage in terms of technical expertise, and may also have had the opportunity to assess issues of credibility where witnesses have given evidence before it. Where credibility determinations of the Tribunal are in issue on appeal, the appellate court may properly be cautious in differing from the Tribunal in relation to those findings. But the extent of consideration an appeal court exercising a general
power of appeal gives to the decision appealed from is a matter for its judgment.4
The Court has the power under s 253 to confirm or modify the decision of the
Tribunal.
First ground of appeal – refusal to adjourn/proceed in the appellant’s absence
[13] This ground challenges the Tribunal’s refusal to grant Mr Hart’s application for adjournment of the hearing, and its decision to proceed to hear the charges in his absence.
[14] The hearing was scheduled to commence on Monday, 16 July 2012. On the Friday preceding the hearing, Mr Hart communicated to the Tribunal that he would not be able to attend on the Monday due to ill health, providing a medical certificate as part of that communication. On the following Sunday, Mr Hart asked Mr Cooke, the solicitor on record for the Tribunal proceedings, to attend the hearing on the
Monday to seek an adjournment. When he appeared before the Tribunal on Monday
4 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
morning, Mr Cooke tendered two medical certificates signed by Mr Hart’s family doctor: the one issued on Friday which Mr Hart had already transmitted to the Tribunal, and the other issued by Mr Hart’s doctor earlier that morning.
[15] These certificates read as follows:
13/07/2012.
…..
Barry has been seen and examined by myself today.
Barry has significant chest pains, breathing difficulties and fatigue. These have been a previous issue and are worse lately.
Barry has been referred to a specialist for further examination and assessment of his symptoms.
He is in my opinion not [fit] for any work, in particular court work, for next week.
He will be reviewed after that.
16/07/12
Barry has been reviewed today regarding his breathing issues. There is no improvement over the weekend.
He has a specialist appointment on Friday, (wait listed for tomorrow).
In my opinion he continues to be unwell and not fit to attend his scheduled appearances this week.
[16] In support of the application for adjournment, Mr Cooke submitted that because of ill-health Mr Hart was not able to be present to defend the charges against him, and it was therefore neither fair nor reasonable for the Tribunal to proceed against him in his absence. He said he had no instructions that would enable him to defend the charges on Mr Hart’s behalf, as Mr Hart had intended to represent himself. Mr Collins, for the Standards Committee, opposed an adjournment.
[17] The Tribunal’s secretary had advised Mr Hart on the Friday that the Tribunal might require the doctor who signed the medical certificate to attend the hearing on Monday. When Mr Cooke made his application on the Monday morning, the Tribunal asked that the certifying doctor attend so that it might obtain more
information about Mr Hart’s medical condition. The Tribunal adjourned for approximately 40 minutes to allow arrangements to be made for the doctor to attend, but on resumption of the hearing Mr Cooke advised that the doctor wished to take independent advice as to the nature of the Tribunal’s enquiry and had refused the request to attend that morning.
[18] The Tribunal then adjourned to consider the application for adjournment. On its return the Chairperson, Judge Clarkson, delivered a ruling on behalf of the Tribunal declining the application. She said it was not clear to the Tribunal whether the doctor was aware of the particular nature of the appearance that Mr Hart was required to make that week. She noted the “extraordinary history of delay and prevarication on the part of the practitioner”.5 She observed that the delay had been commented upon by the High Court when adjourning the matter for the third time in February of last year, the two earlier adjournments having been granted at Mr Hart’s request.6 She referred to the late withdrawal of Mr Katz QC, Mr Hart’s counsel, and to a minute issued by the Tribunal after his withdrawal in which it had advised Mr Hart that any future counsel engaged by him must be prepared to proceed on 16
July 2012.
[19] The Chairperson expressed “grave concerns” as to Mr Hart’s willingness to participate in the hearing.7 As an example, she cited Mr Hart’s failure, despite repeated requests by the Tribunal, to clarify what arrangements he had made for an overseas witness (whom the Tribunal had said it would accommodate) to give evidence by video link. Of that morning’s certificate she said:8
The Tribunal is hampered by the lack of detail in the medical report. There are very bald assertions with little detail provided. Clearly the illness is not so serious as to require hospitalisation. No tests are reported and the certificate seems to be based on Mr Hart’s reports only.
5 Hart v Standards Committee (No 1) “Transcript” HC Auckland LCD 021/10, 16 July 2012
[Transcript] at 7.
6 Hart v Standards Committee (No 1) HC Auckland CIV-2011-404-7750, 16 February 2012. There had in fact been at least four adjournments of the proceedings by that point in time, however nothing turns upon this factual error.
7 Transcript, above n 5, at 8.
8 Transcript, above n 5, at 8.
[20] Judge Clarkson said that the doctor’s refusal to attend made the Tribunal’s task in evaluating the medical certificate extremely difficult. She recorded that the rules of natural justice must be observed in proceedings before the Tribunal, but noted that the Standards Committee was present and willing to proceed and that at least one complainant had waited over three years for his complaint to be heard. She referred the Tribunal to the leading case on the right to legal representation, Condon
v R,9 and said:10
It was held that the right to representation is not an absolute right, that what is required is an overall assessment of whether the trial can be fair. Can Mr Hart receive a fair hearing when he absents himself and is therefore unrepresented? [At] [p]aragraph [18] in Condon it is said:
“In some circumstances the manner in which the accused, through his or her own choice or conduct, came to be unrepresented may be relevant to the assessment of fairness.”
We consider that [that] is applicable in this case, given the history which has been recounted. In this matter considerable evidence has already been filed by the respondent, Mr Hart. This is not a situation where the respondent’s absence means the matter will merely proceed on an entirely one-sided basis. The Tribunal’s quasi-inquisitorial role means that we will be actively examining all of the evidence, including some questioning of the witnesses of the Law Society. The Tribunal has a role of protecting the public and the reputation of the profession which requires us to undertake an independent analysis of the entirety of the material before us. We have an expectation that Mr Collins will be aware of his duties to the Tribunal as prosecutor, particularly in the absence of the respondent.
[21] The Tribunal resolved to proceed, saying:11
Balancing the public interest and a final resolution of professional disciplinary proceedings against the rights to a fair process for the respondent and representation for him, we consider the matter ought to proceed.
[22] The Tribunal’s decision of 2 August 2012 records further reasons behind the
Tribunal’s decision to proceed:
[5] At the commencement of the hearing Mr Cooke, instructing solicitor on the record throughout these proceedings, appeared to seek an adjournment on Mr Hart’s behalf on the grounds of his client’s ill health. A further medical certificate was provided which simply stated that Mr Hart had been reviewed and one of his symptoms had not improved. He was said
9 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300.
10 Transcript, above n 5, at 9.
11 Transcript, above n 5, at 9.
to be unfit to attend his scheduled appearances that week. It was not clear whether the Doctor understood the nature of the appearance which had been scheduled for Mr Hart. Mr Cooke said that the Doctor was not prepared to attend Court. This was despite the Tribunal indicating that certain conditions, which the Doctor had sought, would be met by the Tribunal.
[6] On two occasions leading up to the hearing it had been necessary for the Tribunal Chair to clearly state that, given the number of previous adjournments and delays which had been encountered in the course of this proceeding, the fixture must proceed. The Chair had reminded Mr Hart of the critical comments of Her Honour Justice Winkelmann in February of this year, concerning the delays which had occurred in this proceeding.
[7] The Tribunal reached the view that, following the departure of Mr Hart’s last counsel on 27 June, Mr Hart did not intend to engage in these proceedings. We formed that view because it is clear none of his witnesses were told they were required for cross examination (because the only one who appeared did so at the specific request of the Tribunal following the first day). Furthermore, despite numerous requests to provide the Tribunal with information about the video conference which had been approved for the cross examination of Mr Hart’s expert witness, who was overseas, Mr Hart did not respond or indicate to the Tribunal how these arrangements had been made. Furthermore, Mr Hart did not engage new counsel. On the adjournment application he was simply represented by his instructing solicitor who was without further instructions or knowledge of the file.
Relevant principles
[23] It was common ground between counsel that the principles to be applied in the present context are usefully set out in the English Court of Appeal decision in R v Hayward.12 These were approved by the House of Lords on appeal in R v Jones,13
and have been applied in New Zealand in the context of criminal trials.14 In
Hayward, the Court of Appeal had said:15
... the principles which should guide the English courts in relation to the trial of a defendant in his absence are these:
1.A defendant has, in general, a right to be present at his trial and a right to be legally represented.
2.Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be
12 R v Hayward [2001] EWCA Crim 168, [2001] 3 WLR 125.
13 R v Jones [2002] UKHL 5, [2003] 1 AC 1.
14 R v van Yzendoorn [2002] 3 NZLR 758 (CA).
15 R v Hayward, above n 12, at [22].
waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.
3.The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.
4.That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.
5.In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:
(i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;
(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;
(iii) the likely length of such an adjournment;
(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;
(v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;
(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;
(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;
(viii) the seriousness of the offence, which affects defendant, victim and public;
(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
(xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.
6.If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.
[24] The House of Lords disagreed with the Court of Appeal, however, that the seriousness of the offence was a factor which should be taken into account in exercising the discretion. Lord Bingham of Cornhill said:16
The judge’s overriding concern will be to ensure that the trial, if conducted in the absence of the defendant, will be as fair as circumstances permit and lead to a just outcome. These objects are equally important, whether the offence charged is serious or relatively minor.
[25] The New Zealand Court of Appeal in R v Chatha17 was subsequently faced with the issue of whether the defendant had an obligation to appear at his own trial and, consequently, whether it was reasonable for the trial Judge to deny the defendant bail on the first day of the trial. The Court confirmed the effect of its previous judgment in van Yzendoorn,18 describing it as authority to the same effect as Jones. Those cases, it said, stood for the proposition that:19
... the discretion to continue a trial in the absence of the accused must be exercised sparingly and...it can never be exercised if an accused’s defence could be prejudiced by his or her absence.
[26] The Court held, with reference to Jones, that the right of an accused to be present at his trial did not encompass a right to absent himself from the trial. The Court went on to explicitly adopt Jones, saying that:20
16 R v Jones, above n 13, at [14].
17 R v Chatha [2008] NZCA 547.
18 R v van Yzendoorn, above n 14.
19 At [66].
20 At [67].
Absenting oneself voluntarily runs the risk that a trial may be carried on in one’s absence but the discretion to do so is only exercised with caution and is subject to the absolute right to a trial that is as fair as circumstances permit and that would lead to a just outcome.
But, the Court continued, anyone who chose not to be present could not complain
about the “inevitable consequences” of a trial being held in their absence.21
[27] The Privy Council also applied Jones in the context of disciplinary proceedings in Tait v Royal College of Veterinary Surgeons.22
Analysis
[28] Counsel for Mr Hart argued that the Tribunal erred in refusing the application for adjournment because it asked itself the wrong questions when considering the application for adjournment. The error arose because the Tribunal failed to direct itself to the relevant authorities and, in particular, the principles applied in Jones. Had it done so, the Tribunal would have taken a more nuanced approach to the issue of whether it should proceed in Mr Hart’s absence. This was particularly so when the refusal of the adjournment meant not only that Mr Hart was absent during the hearing of the charges against him, but also that he was unrepresented. The Tribunal also said that it was not satisfied that Mr Hart was unable to attend, whereas the question for the Tribunal was whether he was unwell and therefore not fit to attend.
[29] We accept counsels’ submission that the principles articulated in Jones provide the framework for consideration of the present issue, with of course the necessary modifications to reflect the fact that the hearing was not before a jury. While the Tribunal did not refer to Jones, (there is no suggestion the Tribunal was referred to that authority), it does not follow that it erred in its approach. Consideration has to be given to the questions that it did address itself to.
[30] The Tribunal was not correct in stating it was required to balance Mr Hart’s
right to a fair process against the public interest in the hearing proceeding. The right to a fair process is absolute. Nevertheless, from the reasons given by the Tribunal
21 At [67].
22 Tait v Royal College of Veterinary Surgeons [2003] UKPC 34.
and in spite of its reference to a balancing exercise, it seems that the Tribunal’s approach was in accordance with the principles identified in Jones. The passage to which the Tribunal referred from Condon v R23 was entirely consistent with the authorities referred to by counsel for Mr Hart. This shows that the Tribunal was correctly focused on the reason for Mr Hart’s non-attendance and also the impact of proceeding in his absence. It was conscious of his right to a fair hearing of the charges against him, whilst noting that the reasons for his absence were relevant to assessing what was required for a fair hearing. Consistent with the Tribunal’s
approach, the first issue related to the reason for Mr Hart’s absence. The second was, was a fair hearing possible in his absence? Finally, the Tribunal had to, and did, address itself to other matters relevant to the issue of an adjournment, such as the continued delay to the complainants and the public interest in the prompt disposition of disciplinary proceedings.
[31] Counsel for Mr Hart further submits that the Tribunal’s observation that Mr Hart’s illness was “not so serious as to require hospitalisation” suggests that it applied too high a standard when determining whether he was unfit to attend. We agree that it would not be proper to require a person to establish, for that purpose, that he or she is sufficiently unwell to require hospitalisation. However, we are satisfied that it is at least implicit in the Tribunal’s decision that it rejected Mr Hart’s claim that illness was the true reason for his non-attendance. As counsel for Mr Hart himself accepted, the Tribunal’s decision was based upon its finding that Mr Hart had voluntarily absented himself not because he was unwell, but because he had made a conscious decision to disengage from the proceedings as a strategy to delay the hearing. Therefore, the issue of just how unwell Mr Hart was did not arise.
[32] Counsel for Mr Hart also challenged the Tribunal’s evidential findings, saying that the Tribunal was wrong to reject the certificate from a medical professional when there was no evidence to contradict that certificate. He says the Tribunal gave no, or at least no adequate, reasons for this rejection. It also made an unwarranted inference of malingering – unwarranted because there was no evidence produced at that time, or subsequently, to contradict or undermine the statement in
the doctor’s certificate that Mr Hart was unfit to attend. Counsel for Mr Hart
23 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300.
submits that on the contrary, as shown in the medical records annexed to Mr Hart’s affidavit, Mr Hart had been suffering from the symptoms that prevented him from attending the hearing for some time both prior to and after the substantive hearing.
[33] Counsel for Mr Hart submits that the Tribunal was fixated with ensuring that the hearing proceed on that day. This became an end in itself. The emphasis placed on previous adjournments and delays, along with the Chair’s statements prior to the hearing that it “must” proceed as scheduled, leads, it is argued, to the conclusion that the Tribunal fettered its discretion. Moreover, not all delay was attributable to Mr Hart.
[34] We do not accept these arguments. The Tribunal gave its reasons for rejecting the certificate that Mr Hart was unfit to attend. It was not bound to accept the medical certificates provided by Mr Hart in the absence of medical evidence to contradict or undermine them. The certificates were only one source of evidence available to the Tribunal in forming its view on the reasons for the application for adjournment. On their own, the certificates were not particularly helpful. They contained, as the Tribunal noted, little detail. Moreover, in issuing them the doctor explicitly relied upon Mr Hart’s self reporting of symptoms, and offered no diagnosis.
[35] The Tribunal was entitled to take into account the other information it had available to it in considering the application, including the procedural background to the proceedings. The Tribunal referred in both its adjournment and substantive decisions to the extraordinary history of delay and prevarication on the part of the practitioner. We consider that to be a fair characterisation by the Tribunal, even if, as counsel for Mr Hart submits, not all of the delay that occurred in the proceeding is attributable to Mr Hart.
[36] The proceedings had been adjourned on four previous occasions, three of which were on the application of Mr Hart. A fixture on 20 June 2011 was adjourned because of the unavailability of counsel. Mr Hart filed a memorandum dated 23
May 2011 in which he said:
I would like to be able to keep the suggested fixture date of 20 June 2011.
However, I am not sure this will be possible for the following reasons ….
I currently have no counsel instructed in this matter.
[37] A fixture for 29 August 2011 was similarly adjourned on Mr Hart’s
application because of the unavailability of counsel. In a memorandum dated 5
August 2011 Mr Hart said:
In view of the unavailability of my counsel, and the seriousness of the possible outcome of these matters for me, I ask that another date be set.
[38] A fixture was then allocated for 5 and 6 December 2011. The hearing did not proceed on that date because Mr Hart filed a judicial review proceeding challenging various rulings made by the Tribunal. A further hearing date of 20 February 2012 was then set for the disciplinary proceeding.
[39] Neither party sought an urgent hearing of the substantive application for judicial review, notwithstanding the imminence of the February hearing date before the Tribunal. It was only on 14 February 2012 that Mr Hart applied to this court for interim orders restraining the Tribunal from proceeding with the hearing on 20
February. That application was heard as a matter of urgency on 16 February 2012. By the time of that hearing, the Standard Committee’s expert witness, Mr David Smith, had been appointed a District Court Judge.24 Although there was no formal pleading relating to this point, it was argued for Mr Hart in this Court that it would be unfair to allow the disciplinary hearing before the Tribunal to proceed if the Standards Committee was to call a District Court Judge as its expert witness.
[40] Following a short hearing, the application for judicial review was resolved by agreement between the parties, including agreement that the Standards Committee would instruct a new expert witness. The parties’ memorandum recorded that the fixture before the Tribunal scheduled for 20 February 2012 would be adjourned at the direction of the Court, and the Tribunal would be asked to convene a directions conference to fix a timetable for the hearing of the charges as soon as that could
reasonably be achieved.
24 He was appointed some time earlier, but the exact date of his appointment is not apparent from the material produced.
[41] It was not Mr Hart’s fault that the Standard Committee’s expert witness was appointed a District Court Judge. For this reason it is clear that the fault for the last two adjournments cannot be attributed entirely to him. But he does bear some responsibility for the delay that led to the difficulty with the witness, as the longer a proceeding is delayed, the more likely it is that there will be difficulty with witnesses.
[42] The next step in the chronology is that on 3 April 2012 the parties were told that the charges would be heard before the Tribunal on 16 July 2012. On 30 April
2012, Mr Katz, counsel then acting for Mr Hart filed a memorandum in which he told the Tribunal that he had been unable to obtain any instructions from Mr Hart for five to six weeks. He said that, in light of instructions he had now received, it was apparent that the fixture for 16 to 18 July 2012 would cause extreme difficulties. Mr Burcher, one of Mr Hart’s principal witnesses, would be absent from New Zealand at the time of the hearing, so an adjournment was sought. The Tribunal issued a minute on 1 May 2012 declining the adjournment application on the ground that Mr Burcher’s evidence could be taken at the July hearing by way of video link.
[43] On 27 June 2012, Mr Katz advised the Tribunal that his retainer had been terminated and he would not be representing Mr Hart. The next day the Chair of the Tribunal issued a minute noting the number of counsel who had represented Mr Hart to date, and drawing attention to the many previous adjournments. The Chair said that if Mr Hart sought to retain further counsel, that counsel would have to be in a position to proceed on 16 July 2012. She also asked Mr Hart to confirm the arrangements that he had made for Mr Burcher’s evidence to be received by video link. This aspect of the chronology is important because, in declining the adjournment, it is apparent the Tribunal attached some weight to the fact that there was no evidence to suggest that Mr Hart had taken steps to arrange for Mr Burcher to give his evidence remotely. The Tribunal considered this supported its conclusion that Mr Hart had no intention of participating in the July hearing.
[44] On 3 July 2012, counsel for the Standards Committee filed a memorandum in which he gave notice of his intention to cross-examine some of Mr Hart’s witnesses:
Mr LaHatte, Mr Burcher, Mr McKenzie, Mr Haskett, Ms Murray and Mr Williams
QC.
[45] On the morning of Friday 13 July 2012 a Tribunal case manager sent an email to Mr Hart’s office, requesting confirmation of the arrangements in respect of Mr Burcher’s evidence. The initial response from Mr Hart’s office was that Mr Hart would respond later that day. In a subsequent response, the Tribunal was told that he was unwell. Finally, at 4.21 pm, a scanned copy of Mr Hart’s medical certificate dated 13 July 2012 was emailed to the Tribunal.
[46] When assessing the true reasons for the application for adjournment, the Tribunal was also entitled to take into account other aspects of procedural delay on the part of Mr Hart. Some of this was apparent from the Tribunal’s own record, and some of it was detailed in the affidavits filed by Mr Garreth Heyns, the team leader of the Lawyers’ Complaints Service of NZLS.
[47] This included significant delay by Mr Hart in providing copies of relevant documents in relation to the complaint the subject of charge four. The Standards Committee struggled to obtain a copy of Mr Hart’s file in respect of the work he did for this complainant. At the request of the Standards Committee, the Tribunal directed Mr Hart to produce this file by 18 February 2011. Through his counsel, Mr Hart responded that he did not have the file and that he believed it had gone to Mr A’s new lawyer. The Standards Committee then obtained an affidavit from Mr A’s new lawyer confirming he did not have the file. On 27 May 2011, the Chairperson directed that Mr Hart file an affidavit of documents within 21 days. When Mr Hart did not comply with that direction, a telephone conference was sought by the Standards Committee. By the time of that conference (9 August 2012) Mr Hart had provided the affidavit of documents, but not the documents themselves. He was directed to do so by 12 August 2011. Again he did not comply with this direction. He finally provided his file on 7 September 2011, nearly seven months after first having been required to do so.
[48] Finally, the Tribunal also had the evidence of obstruction on the part of Mr Hart that formed the basis for charge three. We detail this conduct later in this judgment.25
[49] This account of Mr Hart’s conduct demonstrates that Mr Hart had persistently delayed and obstructed the investigation and disciplinary processes associated with these charges. Although it is true that not all of the delay is attributable to Mr Hart, the complete chronology provides strong, indeed very strong, evidence that he pursued a concerted strategy of delay and obstruction.
[50] Drawing these various threads together, we are satisfied that the Tribunal was well justified, on the evidence and information available to it, in concluding that Mr Hart was not unfit to attend, and that his absence was consistent with his earlier delaying and obstructive conduct.
[51] In reaching this conclusion we have not ignored counsel for Mr Hart’s submission that the Tribunal erred in finding that Mr Hart had told none of his witnesses that they would be required for cross-examination, so that it erred in treating this factor as further evidence of his disengagement with the proceedings. Counsel for Mr Hart makes the point that the Tribunal could not have been confident that the witnesses had not been told to attend, as witnesses are not typically asked to attend at the beginning of a hearing, but rather when they are required. There may have been some force in this submission were it not for the further evidence available to us strongly supporting the Tribunal’s conclusion that witnesses had not been notified of the need to attend for cross-examination. When Ms Murray gave oral evidence before the Tribunal on the second day of the hearing, she said that she had not been told about the hearing. We also received an updating affidavit from
Mr Haskett,26 in which Mr Haskett states that “I was never contacted and requested
to give viva voce evidence at the hearing by the [committee]. I was willing to give viva voce evidence should I have been requested to do so”. The Standards Committee had notified Mr Hart that Mr Haskett was required for cross-
examination. It was for Mr Hart to convey that request to Mr Haskett. We also note
25 At [196]-[207].
26 Provided by Mr Hart and received on a consent basis.
the absence of any up-dating evidence suggesting that arrangements had been put in place for Mr Burcher to give evidence at the hearing.
[52] Mr Hart does however rely on fresh evidence filed by him and received by consent in this Court, regarding his health at the time of the hearing. It is necessary to consider this to determine whether, in light of the new evidence, Mr Hart has established that he was unfit to attend the hearing. He has deposed in an affidavit that in the months leading up to the hearing he had been under incredible pressure and stress resulting from the fact that his bank had initiated the mortgagee sale of his properties, including his home. He was busy at the office during the day, and trying to deal with bank-related issues at night. He was exhausted and had lost five kilograms in weight over this period. He developed breathing problems and chest pains. In October 2011, his health problems became more severe and as a consequence he sought treatment from his doctor. He was referred to several specialists and underwent a number of tests. On 7 October 2011, he was given a cardio assessment and echocardiogram by a cardiologist. Toward the end of 2011 he was off work for about a month due to ill-health, and again for a shorter period at the beginning of 2012. On 3 April 2012, he had a CT scan of his head, chest, abdomen and pelvis. Initial results from that scan caused him anxiety, in light of his family’s medical history.
[53] Mr Hart says that in the week prior to the Tribunal hearing he felt extremely unwell. He was sleeping only one to two hours a night because, when he did sleep, he would wake with severe tightness in his chest, struggling for breath. He was physically exhausted due to a combination of stress, overwork and lack of sleep. He visited his doctor on 13 July, and spent most of the weekend in bed. On the day of the hearing of 16 July he again attended the doctor. Mr Hart says the doctor confirmed his condition had worsened, and after examining him his doctor certified that he was unfit to attend the hearing. He was again referred to a specialist.
[54] Mr Hart concludes:
Ultimately, I was simply physically incapable of appearing at the hearing at all, let alone in a self-represented capacity. I firmly reject any suggestion that I was malingering or somehow attempting to frustrate the Tribunal’s
processes and consider that this is borne out by my medical records. I was, and remain, firmly committed to defending the charges against me.
[55] Mr Hart attaches to his affidavit some excerpts from his medical records in respect of the period from 20 March 2012 until 20 August 2012. Those records show that on 20 March 2012 Mr Hart presented at the doctor’s feeling “still tired” with coughing and a wheezy chest. He had a flu vaccination and blood tests taken. On 2
April 2012 he attended the doctor’s clinic with symptoms of being tired and was sent for a CT scan of his head, chest and abdomen. On 5 April 2012 his CT scan was reviewed and reported to be normal, and he was given a one-week medical certificate. On 28 May 2012 he attended the doctor with tenderness to his ribs, having suffered these injuries in a fall.
[56] The next attendance recorded in the medical notes is on 13 July 2012. It records as follows:
Fatigue, Wakes at night with feeling of difficulty of breathing throat/chest. Feeling of blockage and wheeze.
Increasing fatigue and feels a “flu” coming on.
Occasional daytime symptoms. Currently on Seretide BD,
Recent cardiology and CT tests enclosed.
Main symptom is of fatigue. Note work stress. Tribunal hearing coming up. Some weight loss earlier in year. 79 to 75 kg but now stable.
Bloods essentially normal, repeated today. Omeprazole BD trial commenced today.
PEF 400 chest clear, usually keeps pretty fit.
….
Question reflux plus/minus asthma.
[57] The next notation is for 16 July 2012. The notation is:
Has had a bad weekend, spent mostly in bed. Fatigue. Hot and cold feelings, nasal congestion, cough.
O/E temperature 36.8 degrees Celsius. PO2 98% on air, chest clear RR20. Looks pale.
Inflammatory markers normal.
Has Tribunal hearing scheduled this week and would have impaired concentration with likelihood of getting worse.
Specialist’s appointment. Friday, on cancellation list for tomorrow. No
relief yet from Omeprazole.
Advised best to put it off if possible as unfit to participate the way he is feeling now.
[58] These notes reveal that Mr Hart had been suffering from difficulty with sleeping over a period of months. Perhaps this difficulty was on and off. Perhaps it was persistent. That is not clear from the notes or Mr Hart’s affidavit. In any case, it did not come on suddenly just prior to the hearing. On the day of the hearing he presented with feelings of a blocked nose and a cough, but no objectively observable evidence that he was ill – his temperature was normal, his chest clear, his oxygen saturation normal and his inflammatory markers normal.
[59] In short, these additional medical records tend to corroborate the Tribunal’s observation that the basis of the medical certificate was Mr Hart’s self-reported symptoms. The material contained in the body of the affidavit merely repeats the self-reported symptoms recorded in the medical records. We also attach some significance to the fact that, although the notes record that the doctor had organised an urgent appointment with a specialist, there is no reference in the updating material to the diagnosis Mr Hart received from the specialist. Counsel for Mr Hart concedes that Mr Hart was not diagnosed with any ailment at this time.
[60] To conclude on this point, we consider that the additional evidence takes Mr Hart no further in establishing he was unfit to attend through ill health. Nor does it show that the Tribunal erred in rejecting this as being the true reason for his application for adjournment. The Tribunal viewed Mr Hart’s self-reports of being unwell and unfit for hearing within the context of his overall conduct, as it was entitled to do.
[61] Counsel for Mr Hart contends that the Tribunal’s discretion was also not exercised with what the House of Lords in R v Jones described as the “utmost care and caution”,27 as was required. No consideration was given to the serious consequences of the proceedings from Mr Hart’s point of view, nor was detailed consideration given to whether Mr Hart would be able to receive an objectively fair hearing in his absence.
[62] A related point made is that although the Tribunal has quasi-inquisitorial functions, it could not provide anything remotely approaching an effective substitute for a party with a legal representative. Indeed, it is argued for Mr Hart that the Tribunal’s greater engagement in questioning witnesses may well have had the opposite effect. Counsel for Mr Hart referred us to the comments by Lord Greene
MR in Yuill v Yuill:28
A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation.
[63] We are not persuaded by these arguments. Having concluded that Mr Hart was well enough to attend but had decided not to, it is clear that the Tribunal did go on to consider other considerations relevant to the exercise of its discretion as identified in Jones. It carefully considered whether, if it decided to proceed, Mr Hart would receive a fair hearing in the circumstances. In assessing that issue, the Tribunal was entitled to take into account the conclusion that Mr Hart had elected not to attend, and not to have counsel instructed to represent him.
[64] The Tribunal noted it had extensive evidence filed on behalf of Mr Hart. We also think it relevant that over the lengthy procedural history of the charges, there had been numerous interlocutory arguments, so the Tribunal was well aware of the nature of the defences Mr Hart intended to raise to the charges. As the Tribunal
observed, it has a quasi-inquisitorial role and it had a right to question witnesses. We
27 R v Jones [2002] UKHL 5, [2003] 1 AC 1 at [13].
28 Yuill v Yuill [1945] All ER 183 (CA) at 189.
are satisfied that it exercised appropriate caution in electing to proceed in the absence of a self-represented litigant.
[65] It is clear, also, that the Tribunal had in mind the public interest in the prompt disposition of disciplinary charges, particularly where serious misconduct is charged. As counsel for Mr Hart noted, the Tribunal made much of its concern, and of the concern expressed in the earlier judicial review proceedings, that there had been unacceptable delay. However, we do not accept the submission that the Tribunal allowed this concern to override all other considerations. It is apparent that the Tribunal took time to consider the adjournment application, and that it carefully weighed the relevant considerations. There is no evidence that it fettered its discretion as counsel for Mr Hart suggests.
[66] In this case there was a strong public interest in the hearing proceeding. Mr Hart was facing serious charges. The events that formed the basis of the charges were, by the time of the hearing, quite some considerable time in the past. The more time that passed, the more difficulty there was likely to be with witnesses and complainants. The Tribunal knew that the passage of time had already meant that the Standards Committee had been obliged to brief a new expert witness, and that the complainant in respect of the first charge now resided overseas.
[67] A review of the transcript reveals that the Tribunal did more than conduct a formal proof exercise. It required the Standards Committee to call many of its witnesses, although it had their affidavit evidence before them. It questioned those witnesses at some length. Where the Tribunal was concerned with a conflict of evidence which it assessed as relevant, it asked counsel for the Standards Committee to arrange for one of Mr Hart’s witnesses, Ms Murray, to appear before it. We also considered counsel for Mr Hart’s submission that the active role the Tribunal adopted caused it to become partisan, but have found no evidence of that in the transcript. Counsel for Mr Hart did not attempt to develop this submission further by referring us to passages in the transcript allegedly supporting it. Having reviewed the transcript and the Tribunal’s decision ourselves, we are satisfied that no miscarriage of justice flowed from the decision of the Tribunal to proceed with the
hearing notwithstanding Mr Hart’s absence from the hearing, even though that meant
he was unrepresented.
[68] For these reasons, we are satisfied that the Tribunal did not err in the approach it took to the application for adjournment. Having considered the evidence afresh, and having regard to the additional material filed on behalf of Mr Hart, we are also satisfied that the Tribunal was correct to conclude that Mr Hart did not attend not because of ill health. Rather, he made a conscious decision to disengage from the proceedings.
2. Second ground of appeal - was the Tribunal entitled to consider the third charge?
[69] Counsel for Mr Hart submits that the third charge, which alleged Mr Hart had obstructed the two investigating committees by refusing to produce his file in relation to services provided to Mr W, was insufficiently serious to warrant consideration by the Tribunal. He contends the charge could, and should, have been heard and determined by the Standards Committee. He argues that the Standards Committee had the power to impose an appropriate remedy in the event that it found the charge proved. For that reason he submits it was inappropriate for the Tribunal to have considered it.
[70] This submission relies on the reasoning contained in Orlov v New Zealand Law Society.29 The judgment in Orlov was released on 24 August 2012, three days before the Tribunal heard submissions as to penalty in the present case. The Tribunal sought and received submissions from counsel regarding the effect of Orlov before it issued its penalty decision, but ultimately declined to alter its earlier decision that Charge Three had been established.
[71] Orlov concerned an application by a practitioner, Mr Orlov, for judicial review of decisions made by each of three Standards Committees that complaints before them ought to be referred to the New Zealand Lawyers’ and Conveyancers’
Disciplinary Tribunal (“the Tribunal”). In support of his application, Mr Orlov
29 Orlov v New Zealand Law Society [2012] NZHC 2154.
submitted that each of the Standards Committees had failed to apply a threshold test. This test was “whether there was enough evidence to justify the extreme step of referring a complaint to the Tribunal, to consider whether misconduct had been proved.”30 Mr Orlov contended that a Standards Committee should only lay charges with the Tribunal if there is a real risk that, if the charges are proved, the practitioner might be suspended from practice or struck off the roll of Barristers and Solicitors of
the High Court.
[72] Heath J upheld Mr Orlov’s submission. In doing so, Heath J relied heavily upon the differences between Standards Committees and the Legal Complaints Review Officer (“LCRO”) on the one hand, and the Tribunal on the other, in respect of their composition, functions and powers. The process of appointing members to the Tribunal, and the Tribunal’s greater powers and tighter procedural constraints all suggested to His Honour that the Tribunal ought to be limited in jurisdiction to the most serious of cases. As these factors were central to the reasoning in Orlov, it is necessary to set out the statutory framework now contained within the LCA.
Statutory framework
[73] Until August 2008, regulation of the legal profession in New Zealand was governed by the Law Practitioners Act 1982 (“the 1982 Act”). The 1982 Act provided for the legal profession in New Zealand to be supervised in the first instance by District Law Societies. These made up the New Zealand Law Society (“NZLS”). The NZLS promulgated rules under which lawyers practised, with enforcement of the rules primarily being the responsibility of the District Law Societies. Disciplinary charges were heard by judicial bodies: a District Disciplinary Tribunal (“District Tribunal”) for each district and the New Zealand Law Practitioners Disciplinary Tribunal (“NZ Tribunal”).
[74] Complaints from the public were received by the District Law Society of which the relevant practitioner was a member. If the Council of that Society had
reasonable cause to suspect that the practitioner had been guilty of conduct of a kind
30 Orlov, above n 29, at [4].
set out in s 106(3)(a) to (c),31 had been convicted of an offence punishable by imprisonment or had been guilty of an offence that would render him or her liable to being struck off, the Council could itself investigate the matter.32 That inquiry could be carried out either by the Council or one or more Complaints Committees.33
[75] If, at the conclusion of its investigation, the Council or Complaints Committee was of the opinion that the case was of sufficient gravity to warrant the laying of a charge, it was required to lay a charge before either the District Tribunal or the NZ Tribunal.34
[76] A District Tribunal could make a finding that the practitioner had been guilty of any of the types of conduct set out in s 106(3)(a) to (c) of the 1982 Act, or had been convicted of an offence punishable by imprisonment. If, having made such a finding, the District Tribunal was of the view that the case was of sufficient gravity to warrant its referral to the NZ Tribunal, it was required to refer the case to the NZ Tribunal accordingly. If the case did not meet that threshold, the District Tribunal
could make one or more of the orders specified by s 106(4).35
[77] If the matter was not referred to the NZ Tribunal, and the District Tribunal did not find the practitioner to be guilty of any of the conduct described in s 106(3) but was nevertheless of the opinion that the laying of the charge was justified, it had the power to make one or more of the orders set out in s 106(4)(e) – (i).36 These included the orders for payment of compensation, reduction of fees, reporting on
practice and the taking of advice in relation to practice management.
31 Being misconduct, unbecoming conduct, or negligence or incompetence so as to reflect on his or her fitness to practice or bring the profession into disrepute.
32 Law Practitioners Act 1982, s 99.
33 Constituted under s 100 of the Law Practitioners Act.
34 Section 101(2).
35 Including imposing a penalty payable to the District Law Society, censuring the practitioner, placing conditions on the practitioner’s work, requiring him or her to complete work for or pay compensation to any specified person, or requiring him or her to pay to the District Law Society such sums the Tribunal thinks fit in respect of costs.
36 Section 106(5).
[78] If the matter was referred to the NZ Tribunal, and the Tribunal was of the view that the practitioner had been guilty of any of the conduct listed in s 112(1),37 it could make orders of a “more severe”38 nature, including striking the practitioner’s name off the roll, suspending the practitioner from practice for up to three years, restricting the practitioner’s ability to practise on his or her own account, fining and
censuring the practitioner.39
[79] The 1982 Act was replaced by the LCA, which came into force on 1 August
2008. Part 7 of the LCA is designed to enable complaints to be addressed, and for disciplinary charges to be heard and determined expeditiously.40 To achieve these goals, the NZLS is authorised to make rules to give effect to the complaints and disciplinary framework.41
[80] That framework requires the NZLS to establish one or more Lawyers’ Standards Committees,42 and to make rules governing the operation of Standards Committees. Such rules must include, amongst other things, the procedures to be followed in relation to complaints and the manner in which a Standards Committee is to exercise its functions and powers.43
[81] Each Standards Committee consists of at least three persons, one of whom must be a lay person.44 The relevant functions of these Committees are as follows:
130 Functions of Standards Committees
The functions of each Standards Committee are (subject to any limitations imposed on the committee by or under this Act or the rules that govern the operation of the committee)—
(a) to inquire into and investigate complaints made under section 132:
...
37 Being misconduct, unbecoming conduct, negligence or incompetence so as to reflect on his or her fitness to practice or bring the profession into disrepute, or that the practitioner had been convicted of an offence punishable by imprisonment
38 Orlov, above n 29, at [32].
39 Section 112(2).
40 Lawyers and Conveyancers Act 2006, s 120(3).
41 Section 120(4).
42 Section 126.
43 Section 131(a) and (b).
44 Section 129.
(c) to investigate of its own motion any act, omission, allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner or any other person who belongs to any of the classes of persons described in section 121:
...
(e) to make final determinations in relation to complaints:
(f) to lay, and prosecute, charges before the Disciplinary Tribunal.
[82] A Standards Committee may receive complaints from any person,45 that complaint having been referred from a Complaints Service.46 The Standards Committee must consider the complaint either by inquiring into it,47 giving a direction that the parties explore the possibility of resolution by negotiation, conciliation or mediation,48 or by deciding to take no action on the complaint.49 The Standards Committee must notify the complainant and the practitioner against whom the complaint is made as to which of these procedures is being utilised as soon as practicable.50 The Standards Committee must also exercise and perform its duties,
powers, and functions in a manner consistent with the rules of natural justice.51
[83] If the Standards Committee elects to take no further action, it must give written notice of that fact forthwith to the complainant and the practitioner against whom the complaint has been made.52 That notice must provide reasons for the decision, and advise both parties of the right of review conferred by s 193 of the Act.53
[84] If, on the other hand, the Standards Committee decides to inquire into a complaint, it must do so as soon as practicable54 and give notice to the practitioner
against whom the complaint has been made in accordance with s 141.
45 Section 132.
46 Sections 132-135(1).
47 Section 137(1)(a).
48 Sections 137(1)(b) and 143.
49 Sections 137(1)(c) and 138.
50 Section 137(2).
51 Section 142(1).
52 Section 139(1)(a) and (b).
53 Section 139(2)(a).
54 Section 140.
[85] In the course of its investigation, the Committee may require an investigator to look into the complaint and furnish it with a report.55 It may also conduct a hearing under s 152(1), which is to be on the papers unless directed otherwise.56 The procedures to be followed in respect of hearings on the papers are set out in s 153(3)- (8). These prescribe the manner in which evidence is to be heard, as well as providing that written, but not oral, submissions may be received from both the
complainant and the practitioner. Section 151 governs the evidence that the
Standards Committee may consider.
[86] After inquiring into the complaint and conducting a hearing with regard to the matter, the Standards Committee may make one or more of the following determinations:57
(2) The determinations that the Standards Committee may make are as follows:
(a) a determination that the complaint or matter, or any issue involved in the complaint or matter, be considered by the Disciplinary Tribunal:
(b) a determination that there has been unsatisfactory conduct on the part of—
(i) a practitioner or former practitioner; or
(ii) an incorporated firm or former incorporated firm; or
(iii) an employee or former employee of a practitioner or incorporated firm:
(c) a determination that the Standards Committee take no further action with regard to the complaint or matter or any issue involved in the complaint or matter.
(3) Nothing in this section limits the power of a Standards Committee to make, at any time, a decision under section 138 with regard to a complaint.
(4) Subject to the right of review conferred by section 193 and to section
156(4), every determination made under subsection (1) and every order made under section 156 or section 157 is final.
55 Sections 144-146. Consideration of any such report must occur in private: s 148(1). However, the report must generally be disclosed to the practitioner against whom the complaint is made: ss
149 and 150.
56 Section 153(1).
57 Section 151(2).
[87] If the Standards Committee determines that the complaint or other matter ought to be considered by the Tribunal, s 154 applies:58
154 Reference of complaint or matter to Disciplinary Tribunal
(1) If a Standards Committee makes a determination that the complaint or matter be determined by the Disciplinary Tribunal, the Standards Committee must—
(a) frame an appropriate charge and lay it before the Disciplinary Tribunal by submitting it in writing to the chairperson of the Disciplinary Tribunal; and
(b) give written notice of that determination and a copy of the charge to the person to whom the charge relates; and
(c) if the determination relates to a complaint, give both written notice of that determination and a copy of the charge to the complainant.
(2) If the person who is the subject of the complaint or matter is a provider under the Legal Services Act 2011, the Standards Committee must provide a written notice of the determination to the Secretary for Justice.
[88] Unlike a Standards Committee, the Tribunal must hold its hearings in public59 and parties are entitled to be heard in person or through counsel.60 If misconduct or unsatisfactory conduct is proved, the Tribunal has a wider range of orders available to it, including the more serious orders of suspension and striking practitioners off the roll of barristers and solicitors.61
[89] The membership of the Tribunal is larger than the Standards Committees, with a more stringent process of appointment. The Tribunal consists of a chairperson and deputy chairperson, and not less than 7 but not more than 15 lay persons. It also comprises not less than 7 but not more than 15 lawyers, of whom not less than 3 but not more than 5 must be conveyancing practitioners. The chairperson and deputy chairperson of the Tribunal must each be a person who, whether or not he or she holds or has held judicial office, is not a practitioner but has not had less than 7
years’ experience in practice as a lawyer.62 Both of these members are appointed by
58 Section 151(2)(a).
59 Section 238.
60 Sections 237 and 238.
61 Section 242(1)(c) and (e).
62 Section 230(1).
the Governor-General on the recommendation of the Minister of Justice.63 The lay members are appointed by the Governor-General on the recommendation of the Minister (following consultation with persons identified in s 233(1)). The members who are lawyers are appointed by the Council of the NZLS.64
[90] The decision of a Standards Committee may be reviewed at the request of either party (among others) by the LCRO.65 The LCRO has a duty to conduct a review following receipt of the application,66 with the review being conducted in private.67 Such reviews are to be conducted with “as little formality and technicality, and as much expedition” as is consistent with the requirements of the LCA, proper consideration of the review and the rules of natural justice.68 Heath J observed in Orlov that this emphasises Parliament’s intention that complaints were to be dealt with promptly, with the rules of natural justice being tailored to achieve that object.69
[91] The LCRO is empowered to direct the Standards Committee to reconsider complaints or decisions.70 Alternatively, the LCRO may confirm, modify or reverse the Standards Committee’s decision, and may exercise any power that the Standards Committee could have exercised. This includes the power to lay a charge before the Tribunal.71
The reasoning in Orlov
[92] In Orlov, counsel for the NZLS had submitted that it would be inappropriate to impose any restriction on, or threshold in respect of, the type of case that a Standards Committee could refer to the Tribunal. The NZLS contended that the imposition of a threshold would place a gloss on s 152(2)(a), and would result in the courts reintroducing a test that Parliament had deliberately discarded. Further,
although a Standards Committee is required to provide reasons for a decision that
63 Section 230(2).
64 Section 233(2) and (3).
65 Sections 193 and 194.
66 Section 199.
67 Section 206(1).
68 Section 200.
69 Orlov v New Zealand Law Society (No 8) [2012] NZHC 2154 at [71].
70 Section 209.
71 Sections 211 and 212.
there has been unsatisfactory conduct or that no further action will be taken, it is not required to provide reasons for any decision to refer a complaint to the Tribunal. Counsel submitted that this supported the conclusion that the ability of a Standards Committee to refer a complaint to the Tribunal is not constrained in any way. Counsel also pointed out that s 154 of the LCA imposes obligations on the Standards
Committee when referring a complaint,72 but does not restrict the type of case that it
may refer to the Tribunal.
[93] Heath J considered the LCA required the Standards Committee to evaluate complaints on a case by case basis. His Honour acknowledged that, unlike the 1982
Act, the LCA does not require a Standards Committee to determine that a complaint is “of sufficient gravity” to warrant consideration by the Tribunal. He held, however, that a similar test must necessarily be implied in order to avoid relatively trivial matters being referred to the Tribunal “at the whim of a Standards
Committee”.73
[94] Heath J considered two factors to be relevant to determining whether a threshold test applied. The first of these is the differing functions and powers vested in the Tribunal on the one hand, and a Standards Committees on the other.
[95] Heath J noted the differences in the appointment procedures between the two bodies. He considered these indicated “the importance of the Tribunal’s jurisdiction in the context of the serious charges it is expected to hear and determine”.74 He also had regard to the following differences in the functions and powers vested in a Standards Committees on the one hand, and the Tribunal on the other:
(a) Only the Tribunal may make findings on charges of misconduct.
(b) Where a finding of unsatisfactory conduct is made, the Standards
Committee has extensive powers,75 but these do not include the ability to strike a practitioner from the roll of barristers and solicitors nor to
72 Including framing an appropriate charge, laying it before the Tribunal and giving the requisite notices.
73 Orlov, above n 69, at [63].
74 At [65].
75 Lawyers and Conveyancers Act, s 156.
suspend him or her from practice. Those powers are reserved for the
Tribunal.76
(c) Unlike a Standards Committee or the LCRO, the Tribunal sits in public, and parties are entitled to be heard in person or through counsel.77 The Tribunal is required to observe the rules of natural justice, while the LCRO is to conduct reviews with “as little formality and technicality, and as much expedition” as is consistent with the requirements of the LCA, proper consideration of the review and the rules of natural justice.78
(d) While a Standards Committee performs investigative, judicial and
prosecutorial functions, the Tribunal’s role is strictly judicial.79
[96] Secondly, Heath J noted that an adversarial standard of proof had to be met before the Tribunal could make a finding of misconduct. Heath J accepted, however, that this factor does not affect an assessment of whether a threshold requirement is present.80 He also observed that there is “no express provision [in the LCA] as to the standard to which a Committee needs to be satisfied before it decides what determination to make under s 152(2).”81 Referring a complaint to the Tribunal is one of the determinations that may be made under s 152(2).
[97] These factors led Heath J to conclude that the Tribunal should only deal with cases where there is a real risk that orders going beyond those within a Standards Committee’s jurisdiction may be made.82
[98] Having concluded that a threshold test ought to apply, Heath J held that the test ought to be similar to that provided by the 1982 Act. His Honour articulated the
test as being “whether there is a real risk that the practitioner might be suspended or
76 Section 242(1)(c) and (d).
77 Sections 237 and 238.
78 Section 200.
79 Orlov, above n 69, at [78].
80 At [77].
81 At [77].
82 At [78].
struck off”.83 This test would, His Honour said, have the advantage of “focusing” the minds of the Standards Committee on the likely outcomes of a consideration of a charge. It would also act as a disincentive (“in far less likely circumstances”) to anyone who might be motivated by animosity or ill will towards a particular practitioner.84
[99] Heath J concluded by stating that he had not overlooked the fact that a Standards Committee does not have to provide reasons for deciding to refer a complaint to the Tribunal. His Honour commented that reasons are not prohibited and, where they are not given, judicial review of the decision may still occur. In such a case the Court will consider the nature of the conduct, as well as the form of any charge drafted and the bases for it, in order to determine whether the Standards Committee had exceeded its jurisdiction.
[100] Heath J considered that, taken individually, ten of the 12 charges the Standards Committee had laid against Mr Orlov were not sufficiently serious to justify referral to the Tribunal. One of these contained an allegation of misconduct based on an alleged failure to provide a file to an investigating committee. Counsel for Mr Hart contends that, adopting the same reasoning in the present case, the Standards Committee should not have referred charge three to the Tribunal for determination.
Analysis
[101] We respectfully take a different view to that taken by Heath J in relation to this issue.
[102] We consider the wording used in the LCA indicates that Parliament made a deliberate decision not to circumscribe or restrict the circumstances in which a Standards Committee may refer a complaint to the Tribunal for determination. Parliament’s decision to exclude from the LCA the “sufficient gravity” test
previously contained in the 1982 Act must be regarded as deliberate. It reflects, in
83 At [80].
84 At [81].
our view, Parliament’s intention that such a test is no longer to govern the referral of a complaint to the Tribunal for determination. Moreover, the LCA contains no other provisions limiting the ability of a Standards Committee to refer a complaint to the Tribunal. The fact that a Standards Committee has no obligation to provide reasons for a decision to refer a complaint to the Tribunal is also important. It is inconsistent with the notion that jurisdiction for referral depends upon the Standards Committee being satisfied that a particular threshold test has been met.
[103] In practice, Standards Committees will in most cases only refer a complaint to the Tribunal if the alleged conduct forming the basis of the complaint is sufficiently serious to warrant consideration of suspension or striking off. It is important to bear in mind, however, that the Tribunal has a significant role to play in maintaining public confidence in the legal profession. It plays an important part in determining national standards, and has a greater ability than a Standards Committee to maintain oversight of the profession at a national level. It therefore plays a vital role in assisting to achieve two of the LCA’s purposes, which are to maintain public confidence in the provision of legal services and to protect consumers of those
services.85 For those reasons we consider that some complaints may appropriately
be determined by the Tribunal even though the likely sanction will not involve suspension or striking off.
[104] A complaint may, for example, raise very complex factual or legal issues. Alternatively, it may be likely to create a significant precedent for the legal profession. In such situations a Standards Committee could not be criticised for referring a complaint to the Tribunal, even where it was unlikely that orders for suspension or striking off would ultimately be made if the complaint was upheld. The factual matrix of individual cases will, however, vary infinitely. For that reason it is neither necessary nor desirable for us to attempt to prescribe the circumstances in which a Standards Committee should refer a complaint to the Tribunal for determination.
[105] We accept it would be wrong for a Standards Committee to refer a complaint to the Tribunal arbitrarily, on a whim or for a collateral purpose. The decision in
85 Lawyers and Conveyancers Act, s 3(1)(a) and (b).
each case will need to be made having regard to the purposes and objectives of the LCA. It is also important that the resources of the Tribunal are not expended in determining trivial or inconsequential complaints. We do not consider, however, that the risk of inappropriate referral is high. Standards Committees can be taken to understand the limits of their own powers and functions, and to be aware of the proper role of the Tribunal within the framework of the LCA. They will also be aware of the desirability of having complaints determined expeditiously, and of keeping the costs of all involved to a minimum. We therefore consider that Standards Committees will generally be best placed to determine which cases should properly be referred to the Tribunal for determination.
[106] Other practical considerations suggest that this approach is appropriate. As in the present case, a Standards Committee may encounter a complaint or series of complaints arising out of different incidents. Standing alone, some of the allegations may not warrant referral to the Tribunal. They may be relevant, however, when considering the nature of the orders to be made in relation to complaints arising out of other more serious allegations. In that situation the Tribunal ought to be able to deal with all of the complaints together. Any other approach would result in fragmentation of the disciplinary process, and would create a risk that the Tribunal might make orders without a full appreciation of the practitioner’s overall conduct.
[107] For these reasons we do not accept that the Tribunal did not have the necessary jurisdiction in the present case to determine the third charge.
[108] Furthermore, we consider any refusal to comply with a lawful requirement made by an investigating committee to be a potentially serious matter. Any suggestion to the contrary would not be consistent with the approach taken recently in this Court. In Parlane v New Zealand Law Society (Waikato Bay of Plenty
Standards Committee No 2, for example, Cooper J said:86
[108] The purposes of the Lawyers and Conveyancers Act include maintenance of public confidence in the provision of legal services, protection of consumers of legal services and recognition of the status of the
86 Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee No 2) HC Hamilton CIV-2010-419-1209, 20 December 2010.
legal profession.87 To achieve those purposes the Act provides for what it described as “a more responsive regulatory regime in relation to lawyers and conveyancers”.88 The provisions of Part 7 of the Act dealing with complaints and discipline are central to achieving the purposes of the Act. I consider that legal practitioners owe a duty to their fellow practitioners and to the persons involved in administering the Act’s disciplinary provisions (whether as members of a Standards Committee or employees of the New Zealand Law Society) to comply with any lawful requirements made under the Act. There must also be a duty to act in a professional, candid and straightforward way in dealing with the Society and its representatives. It is completely unacceptable for a practitioner to engage in what appears to have been an abusive campaign such as Mr Parlane conducted here.
[194] Mr Hart entered into an arrangement with the psychologist to pay the invoices prior to the point at which the Standards Committee determined the complaint. The Standards Committee nevertheless found that Mr Hart’s failure to pay the invoices after he had received payments from the LSA was at the higher end of unsatisfactory conduct. The Standards Committee censured Mr Hart, and fined him $8,000. It also ordered him to pay costs in the sum of $2,000.
[195] These incidents demonstrate that the conduct giving rise to the first charge
cannot be regarded as an isolated, or “one off”, incident.
(b) The third charge
[196] The third charge was laid after one of Mr Hart’s clients, Mr W, asked the Auckland District Law Society to revise the fees Mr Hart had charged Mr W between September 2004 and June 2006. Mr Hart and Mr W subsequently settled their dispute in or about May 2007, but only after Mr W’s counsel had obtained confirmation from the Society that settlement of the dispute would not prevent the Society from continuing to investigate the appropriateness of Mr Hart’s fees.
[197] In May 2008, the Society’s Complaints Committee No 2 resolved under s 99 of the Law Practitioners Act to investigate the level of fees charged. The Committee advised Mr Hart of its resolution on 30 June 2008, and asked him to respond to Mr W’s complaint. Despite several extensions of time being granted at the request of Mr Hart’s counsel, no response had been provided by 10 October 2008. By that stage the transitional provisions of the LCA had come into effect, and the s 356
Standards Committee took over the investigation into the fees rendered to Mr W.
[198] On 6 November 2008, the Standards Committee notified Mr Hart’s counsel that it had resolved to require Mr Hart to produce Mr W’s files to it for inspection.121
Thereafter Mr Hart and/or his counsel sought further extensions of time within which to respond to Mr W’s allegations.122 The Committee granted these, finally granting an “absolute final extension” until 19 December 2008. This was followed by yet another extension until 13 March 2009. The Tribunal regarded 13 March
2009 as being the final date by which the Committee required Mr Hart to produce
Mr W’s files for inspection.
[199] By 15 May 2009, however, the Standards Committee had received no response from Mr Hart or his counsel. On that date it resolved to investigate Mr Hart’s failure to produce the files as an “own motion” inquiry. It notified Mr Hart of its resolution on the same date, and asked him to respond to it by 11 June
2009.
[200] Mr Hart did not produce the files or respond substantively to the Committee over the next two months. As a consequence, on 31 July 2009 the Committee advised him that it would conduct a hearing to consider the matter on 18 September
2009.
[201] This prompted Mr Hart to assert that the Standards Committee had no jurisdiction to hear and consider the matter. After several adjournments this assertion was ultimately the subject of a hearing on 20 November 2009, and was rejected by the Committee on the same date. At that point the Standards Committee resolved to place Mr Hart’s failure to produce the file before the Tribunal in the form of a charge of misconduct by obstructing the Complaints Committee and the
Standards Committee.123
[202] We were advised during the hearing that Mr Hart did not produce the files to the Standards Committee until 25 September 2012, approximately two weeks after
the Tribunal delivered its penalty decision.
121 Law Practitioners Act, s 101(3)(d) and (e).
122 Extensions were sought on 18 November 2008, and 4 and 5 December 2008.
123 Lawyers and Conveyancers Act, s 262.
[203] Although Mr Hart was undoubtedly guilty of delay in responding to the Standards Committee during the period leading up to 20 November 2009, we consider the most serious aspect of this charge relates to the period between 20
November 2009 and 25 September 2012. The Tribunal rejected Mr Hart’s jurisdiction argument on 20 November 2009, and he did not take any steps to challenge that decision. Thereafter, he had no justifiable reason to withhold the files, and he has not provided any explanation for this failure.
[204] Several factors assume significance when considering the nature and effect of this charge. First, it cannot be described as inadvertent. Mr Hart had known since 6
November 2008 that the Standards Committee required him to produce his files. He and/or his counsel had sought several extensions of time within which to respond, but by 13 March 2009 they had taken no steps to comply with the requirement that he produce the files for inspection.
[205] By October 2009 Mr W had provided a written waiver of privilege; Mr Hart could not, therefore, withhold the files on the basis of client confidentiality or privilege. Once the Standards Committee rejected his jurisdictional argument on 20
November 2009, he knew there was no further basis upon which he was entitled to withhold the files any longer. From that point onwards, he was consciously disregarding the Standard Committee’s requirement that the file be produced.
[206] Secondly, the failure to produce the files continued for a very considerable period. Even taking 20 November 2009 as the latest date by which the files should have been produced, the failure continued for nearly three years.
[207] Thirdly, this failure effectively prevented the Standards Committee from advancing its investigation into the appropriateness of the fees Mr Hart had charged Mr W. By mid-2008 Mr W was residing in China. As a result, the Standards Committee needed to gain access to the material contained in Mr Hart’s files in order to understand the nature and extent of the work he had carried out for Mr W. Without that material, and in the absence of any detailed response from Mr Hart, the Standards Committee could take matters no further.
[208] These factors persuade us that the Tribunal was correct to regard the failure as a reasonably serious form of misconduct. Any deliberate refusal by a practitioner to comply with a lawful requirement made by a Standards Committee tasked with investigating a complaint must be regarded as serious. It indicates a lack of candour that may be significant when considering the fitness of a practitioner to remain in the legal profession.
[Paragraphs [209] and [210] are suppressed from publication as they are subject to pre-existing suppression orders made by this Court in another proceeding]
[209] The seriousness of this conduct is exacerbated by the fact that this is not the first occasion on which Mr Hart has failed to produce his files for inspection when requested to do so by a body authorised to seek production of his files. [Suppressed material].
[210] [Suppressed material].
(c) The fourth charge
[211] The fourth charge, which relates to overcharging, is also marked by aggravating factors. In particular, we agree with the Tribunal’s conclusion124 that Mr Hart’s attitude towards Mr A and his family was exploitative and showed a lack of integrity.
[212] Mr Hart’s clients were vulnerable in several respects. First, they were vulnerable because of their lack of knowledge about the criminal process. The wider family, who were meeting Mr Hart’s fees, had not previously encountered the criminal justice system in New Zealand. As a consequence, they had no appreciation of the manner in which it worked, or the nature and extent of the work Mr Hart would be required to undertake to achieve a satisfactory outcome. They therefore
had no means of assessing whether or not the fees he charged were reasonable.
124 [Suppressed material].
[213] Secondly, the family was extremely anxious to achieve an outcome that saw their relative released on bail. This rendered them vulnerable to paying an inflated fee in order to ensure that they achieved that outcome.
[214] We endorse the Tribunal’s finding that in these circumstances Mr Hart had an obligation to inform the family of the work he would be required to do, and the basis upon which he proposed to charge for that work. Mr Hart failed to meet that obligation. Instead, he charged the family large sums of money without providing any explanation regarding the nature of the services he intended to render, or how he proposed to charge for them. We agree that the conduct giving rise to the fourth charge amounted to reasonably serious misconduct.
[215] The conduct giving rise to the fourth charge is further aggravated by the fact that this is not the first occasion on which Mr Hart has been found to have overcharged clients. On 3 March 1982, the New Zealand Law Society Disciplinary Committee found Mr Hart guilty of professional misconduct by charging a fee that was grossly excessive. On this occasion Mr Hart was censured and ordered to pay a fine of $750, together with costs in the sum of $2,750. We acknowledge that this concerned events that occurred approximately 30 years prior to the penalty hearing. However, there have been other instances in which Mr Hart has overcharged clients.
[216] On 12 March 2010, a Standards Committee of the Auckland District Law Society upheld two related complaints involving allegations that Mr Hart had overcharged a client. The Standards Committee found that in overcharging his client, Mr Hart had engaged in conduct unbecoming a law practitioner. The Standards Committee reduced the fees from $10,000 to $5,000, and fined Mr Hart the sum of $2,000. It also ordered him to pay costs of $1,000. These orders were upheld on review by the LCRO.
[217] On 14 June 1010, a Standards Committee upheld another complaint involving alleged overcharging. It held that this amounted to unsatisfactory conduct in the form of conduct unbecoming a law practitioner. The Committee reduced Mr Hart’s fee from $8,437.50 to $1,250, and ordered him to pay costs. Again, the LCRO upheld these orders.
[218] On 11 July 2011, a Standards Committee determined that it would take no further action in respect of a complaint alleging that Mr Hart had provided poor quality service to a client. The LCRO reversed the Standards Committee’s decision, and held that Mr Hart’s conduct amounted to unsatisfactory conduct. The LCRO censured Mr Hart, and ordered him to pay compensation in the sum of $5,000. Mr Hart was also ordered to reduce his fee by $5,000, and directed to pay a total sum of $10,000 to the complainant.
[219] Mr Hart’s disciplinary history therefore strongly suggests that he has a tendency to overcharge clients, and that previous sanctions have not deterred him from engaging in that type of conduct.
2. The manner in which Mr Hart responded to the present charges
[220] There are two aspects to this issue. The first relates to the events leading up to the hearing on 16 and 17 July 2012. The second relates to the manner in which Mr Hart responded to the charges after the Tribunal had found the charges proved.
(a) The events leading up to the hearing on 16 and 17 July 2012
[221] We have already summarised the events leading up to the hearing on 16 and
17 July 2012.125 Although Mr Hart was not solely responsible for the substantial delay that occurred in having the charges heard, we have accepted the Tribunal’s conclusion that the events that occurred prior to the hearing reveal extraordinary delay and prevarication on the part of Mr Hart.126
[222] We have also already referred to Mr Hart’s delay in providing his file in connection with the fourth charge.127 He has not provided an explanation as to why he was unable to provide his file when originally asked to do so by the Tribunal.
[223] We have also accepted128 the Tribunal’s conclusion that Mr Hart made a deliberate decision to disengage from the hearing scheduled for 16 and 17 July 2012.
125 At [36]-[45].
126 At [50].
127 At [47].
This placed the Tribunal in a very difficult position, because it meant that it had to carefully determine whether it was possible for Mr Hart to have a fair hearing notwithstanding his deliberate decision to disengage from the disciplinary process. Having decided to proceed with the hearing, the Tribunal was obliged to conduct the hearing in a scrupulously fair manner in order to ensure that Mr Hart’s interests were properly protected. In a sense, the Tribunal became responsible by default for conducting Mr Hart’s defence.
[224] The manner in which Mr Hart treated his obligations to the Tribunal was, in our view, an extremely serious matter. Public confidence in the legal profession depends significantly upon the premise that practitioners will co-operate fully in the investigative phase of the disciplinary process. By co-operation, we mean, as a minimum, that they will comply promptly with lawful requests made by investigating bodies and with timetables imposed. Mr Hart did not meet that minimum requirement. Rather, he deliberately obstructed the investigation and misused the processes of the disciplinary bodies for the purpose of delay. We therefore agree with the Tribunal’s conclusion that the manner in which Mr Hart elected to respond to the disciplinary process was highly relevant to the issue of penalty.
(b) Mr Hart’s response to the Tribunal’s liability decision
[225] Another significant issue in this context is the manner in which Mr Hart responded to the findings that the Tribunal made in its liability decision. He was represented by counsel at the penalty hearing on 27 August 2012, and was therefore in a position to respond fully to the issues raised by that the Tribunal’s liability decision.
[226] It would have been obvious to Mr Hart and his counsel by this stage that they needed to persuade the Tribunal that those issues could be adequately addressed by means of a lesser order than striking off. For that reason it was important for the
Tribunal to be satisfied that Mr Hart had insight into the events that had given rise to
128 At [68].
the charges. Acceptance of at least a degree of responsibility for those events may also have assisted with persuading the Tribunal that the protection of the public did not require Mr Hart to be struck off.
[227] The transcript of the penalty hearing makes it clear, however, that Mr Hart was largely content to rely upon character references provided by other members of the legal profession to establish he was a fit and proper person to remain in practice. These provided an evidentiary foundation for his counsel to submit that Mr Hart was an extremely hard working and committed advocate, who was regularly prepared to act on a pro bono basis and had always done his utmost to achieve the best available outcome for his clients.
[228] His counsel also submitted that Mr Hart’s principal shortcomings were in failing to properly attend to matters of administration, and failing to communicate properly with others. He argued that these deficiencies were principally due to the enormous demands made on Mr Hart’s time as an experienced and highly successful criminal advocate. In that sense he argued that Mr Hart could be viewed as a victim of his own success. Mr Hart’s counsel also pointed out that legal aid requirements have altered considerably in recent years, and that in his dealings with experts whom he instructed, Mr Hart may have naively acted on the basis of legal aid requirements that were out of date.
[229] These submissions may have some relevance to the conduct underlying the first charge relating to the failure to pay an expert engaged on behalf of a client. They do not, however, demonstrate any insight or understanding by Mr Hart into the nature and gravity of the conduct underlying the third and fourth charges. Mr Hart’s counsel went no further at the penalty hearing than to submit that Mr Hart was “smart enough” to know that he must change his way of reporting to clients and his way of obtaining instructions.
[230] There is nothing in the material before the Tribunal, or in the material presented to us at the hearing, to suggest that Mr Hart fully comprehends the nature and gravity of the conduct of which he has been found guilty. There is also little to
suggest that he accepts responsibility for it or that he is committed to changing the manner in which he interacts with others in his professional life.
[231] Another issue we consider to be material is Mr Hart’s failure to comply with the Tribunal’s order requiring him to repay the sum of $20,000 to the complainant in relation to the fourth charge. During the penalty hearing, Mr Hart’s counsel advised the Tribunal that Mr Hart accepted it was appropriate to make that order. He also told the Tribunal that Mr Hart had advised him the payment could be made within 14 days. To date, however, Mr Hart has not complied with the order, and he has never provided an explanation for his failure to do so.
[232] During the hearing, counsel now appearing for Mr Hart advised us that Mr Hart’s financial position had deteriorated significantly following the hearing before the Tribunal, preventing him from making the payment. We do not consider this to be an adequate explanation. Mr Hart must have known at the time of the penalty hearing whether or not he would be in a position to pay the sum of $20,000 within the next two weeks. His failure to make the payment calls into question his bona fides in dealing with the Tribunal. It raises an issue as to whether Mr Hart knew at the time of the hearing that he would not be able to make the payment within 14 days. It suggests that he instructed his counsel to advise the Tribunal that he would make the payment within that period so as to bolster his counsel’s submission that the Tribunal should make a lesser order than striking off.
Decision
[233] It is unrealistic, in our view, to suggest that an order requiring Mr Hart to practise under the supervision of another practitioner129 would be sufficient to properly protect the public. Mr Hart’s unsatisfactory response to disciplinary proceedings to date suggests he is unlikely to be compliant with supervision by another practitioner. It would be difficult, in any event, to supervise Mr Hart to the extent required to ensure the protection of the public. He would require constant
supervision in his dealings with clients and all others with whom he would be
129 Under s 242(1)(g) of the Lawyers and Conveyancers Act.
required to deal in a professional capacity. In our view these difficulties preclude an order being made prohibiting Mr Hart from practising on his own account, but permitting him to practise under the supervision of an employer.
[234] It is also noteworthy that Mr Hart has not put forward any concrete proposal for implementing such an option. His counsel advised us only that other members of the legal profession would be willing to supervise Mr Hart’s activities in order to ensure he maintains appropriate professional standards in the future.
[235] The only realistic options are therefore orders for suspension or striking off. During the hearing, counsel for Mr Hart submitted that an order striking Mr Hart off would be grossly disproportionate to the nature and gravity of his offending, but that Mr Hart would consent to an order suspending him from practising for a period of six months. But we consider the Tribunal was correct to view striking off as the appropriate order to make in the present case. We have reached that conclusion for several reasons.
[236] First, the nature and gravity of the charges of which he has been found guilty are such that they require a firm response that properly protects the public from similar conduct in the future. Secondly, the fact that Mr Hart has been found guilty of similar conduct in the past suggests he has not learned from past mistakes and sanctions. This does not bode well for his rehabilitation in the future. Nor does the fact that he appears not to appreciate the seriousness of his conduct underlying charges three and four. His failure to comply with the Tribunal’s order that he pay the complainant in charge four the sum of $20,000 similarly suggests a willingness to ignore orders made by lawfully constituted disciplinary authorities.
[237] Thirdly, like the Tribunal, we view extremely seriously Mr Hart’s decision to delay and then deliberately disengage from the present disciplinary proceedings. If Mr Hart was to remain in practice, he would need to demonstrate a preparedness to engage fully with the bodies entrusted by Parliament to maintain discipline within the legal profession. The conduct underlying charge three, coupled with the manner in which Mr Hart has approached the proceedings before the Tribunal, paints a picture of a person who has sought to remove himself from oversight by those
bodies. We agree with the Tribunal that this factor is determinative in the present context.
[238] Finally, the difficulty with an order for suspension is that it would not resolve the underlying issues exposed by the present proceedings. At the end of any period of suspension Mr Hart would be free to return to the legal profession. The stance taken by Mr Hart to date means that there can be no guarantee that he will co-operate with, and subject himself to oversight by, investigative bodies in the future. For that reason the only way in which the public can be properly protected is for an order to made preventing him from practising at all.
[239] An order striking Mr Hart off was therefore not a disproportionate response having regard to the factors we have identified.
Seventh ground of appeal – should the orders as to costs be revisited having
regard to Mr Hart’s current financial circumstances?
[240] This ground of appeal is based largely on a submission that Mr Hart’s financial circumstances have now deteriorated to the point where he is unable to meet the awards of costs imposed by the Tribunal.
[241] Mr Hart has not provided the Court with a statement as to his financial position, although his counsel advises us that he can do so if required. As a consequence, we do not know if Mr Hart currently has the ability to meet the costs awards imposed by the Tribunal.
[242] Assuming that he does not have that ability, this ground of appeal needs to be considered having regard to the approach Mr Hart took when his counsel made submissions at the penalty hearing before the Tribunal. During that hearing, counsel then acting for Mr Hart advised the Tribunal it should proceed on the basis that Mr Hart had the ability to meet his financial obligations. Counsel acknowledged that if that turned out not to be the case, logical consequences would follow. By that we take counsel to mean that if Mr Hart could not meet the awards of costs, he accepted he would be subject to whatever consequences might follow.
[243] Given that approach, we consider it inappropriate to revisit the issue of costs on appeal. If Mr Hart cannot now meet the awards of costs that the Tribunal imposed, he must accept the consequences of that fact.
Summary of findings
[244] Our conclusions in respect of each issue are as follows:
(a) Did the Tribunal err in refusing to grant Mr Hart’s application for an
adjournment on 16 July 2012, and deciding to proceed in his absence?
We are satisfied that the Tribunal made no error in declining the application for adjournment and deciding to proceed to hear the charges in Mr Hart’s absence. The Tribunal addressed itself to the correct questions. It was entitled to conclude that Mr Hart had deliberately chosen not to participate in the hearing as part of a strategy to delay and obstruct disciplinary proceedings. The Tribunal applied the correct principles in determining it could provide Mr Hart with a fair hearing notwithstanding his absence, and no miscarriage of justice flowed from its decision to proceed. See paragraphs [23]-[68] of this decision.
(b) Was the Tribunal entitled to hear the third charge?
The Tribunal had jurisdiction to hear the third charge, and the Standards Committee was entitled to refer that charge to the Tribunal. A complaint need not be of sufficient gravity to warrant consideration of striking off or suspension for the Standards Committee to refer it to the Tribunal for determination: see paragraphs [69]-[110] of this decision.
(c) In respect of the first and fourth charges, was the Tribunal required to hear oral evidence from Mr Gardiner and Mr Haskett respectively in order to resolve conflicts in the evidence?
It was for Mr Hart to arrange for those witnesses to attend the hearing if he wished them to give evidence. Their non-attendance was the result of his failure to do so. No miscarriage of justice was caused by their non-attendance in any event, as their evidence did not assist Mr Hart in any material respect: see paragraphs [111]-[130] of this decision.
(d)Did the Tribunal err in rejecting the evidence of Mr Burcher and Mr McKenzie in respect of the reasonableness of Mr Hart’s fees, and accepting the evidence of Mr Billington, the expert witness called by the Standards Committee?
The Tribunal preferred the evidence of Mr Billington to the expert evidence called by Mr Hart for good reason. The Tribunal gave appropriate weight to the relevant expertise of each of the witnesses. The Tribunal was entitled to reject the opinions of Mr Burcher and Mr McKenzie that the fees were reasonable. Their evidence focused on the time recorded, and did not address whether the time recorded was reasonable and what the work undertaken by Mr Hart was worth. The tasks undertaken by Mr Hart for Mr A could and should have been achieved at a far lower cost to Mr A’s family, and Mr Hart made no attempt to manage those costs: see paragraphs [131]-[180] of this decision.
(e) Was striking off a disproportionate response?
Striking Mr Hart off the roll of barristers and solicitors was a proportionate response in light of the nature and seriousness of those charges, Mr Hart’s disciplinary history, his decision to disengage from the disciplinary proceedings, and the lack of evidence to suggest he has insight into his conduct: see paragraphs [181]-[239] of this decision.
(f) Should the orders as to costs be revisited in light of Mr Hart’s current
financial circumstances?
It would be inappropriate to revisit the award of costs when Mr Hart’s counsel advised the Tribunal that it should proceed on the basis that Mr Hart could meet his financial obligations, and conceded that if that turned out not to be the case, “logical consequences” would follow:
see paragraphs [240]-[243] of this decision.
Result
[245] The appeals are dismissed.
Suppression
[246] We make orders suppressing from publication the names and all identifying particulars of the complainants in the disciplinary proceedings. We also make orders suppressing from publication all but the first sentence of paragraph [209], paragraph [210] including footnote 124, and that part of paragraph [184] citing paragraph [71] of the Tribunal’s decision.
Costs
[247] Our initial view is that the respondent should be entitled to a single award of costs on a category 2B basis, together with disbursements as fixed by the Registrar.
[248] If either party advocates a different approach, a brief (i.e. less than seven pages) memorandum regarding costs should be filed and served within 14 days. We will then set a further timetable for the filing and service of memoranda in response and reply.
Solicitors
New Zealand Law Society, Auckland
Nigel Cooke, Ponsonby
Counsel
Paul Collins, Barrister, Auckland
A Trenwith, Barrister, Auckland
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