Lawyer v New Zealand Law Society

[2020] NZHC 2173

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-970

[2020] NZHC 2173

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for review of the exercise of statutory power by a body constituted under s 126 of the Lawyers and Conveyancers Act 2006

BETWEEN

A LAWYER

Applicant

AND

NEW ZEALAND LAW SOCIETY

First Respondent

WELLINGTON STANDARDS COMMITTEE NO 2

Second Respondent

On papers
Judgment:	26 August 2020

JUDGMENT OF DOBSON J

[Application for stay pending appeal]

[1]                 In August 2019, the applicant was unsuccessful in seeking judicial review of a complaints process undertaken by the respondents.1 An appeal has been pursued from that judgment and the appeal is to be heard by the Court of Appeal on 3 December 2020. The COVID-19 pandemic, and other matters that appear not to be the fault of either party, have prevented an earlier hearing of the appeal.

1      A Lawyer v New Zealand Law Society [2019] NZHC 1961. There does not appear to have been a formal order anonymising the name of the applicant. That was done in the judgment under appeal (as well as anonymising the complainants). The same form of reference to those involved is adopted in dealing with the stay application .

A LAWYER v NEW ZEALAND LAW SOCIETY [2020] NZHC 2173 [26 August 2020]

[2]                 The applicant’s claims focus on alleged deficiencies in the process by which an investigator has conducted investigations into those complaints for the respondents. The process is incomplete. In light of an indication that the respondents would be resuming the process, the applicant filed an application under r 12(3)(b) of the Court of Appeal (Civil) Rules 2005 on 9 July 2020 seeking a stay to prevent any further steps in the complaints procedure pending judgment from the Court of Appeal. The respondents promptly filed a notice of opposition. Each side having presented submissions, counsel have agreed that the stay application may be dealt with on the papers.

[3]                 The primary ground for seeking a stay is that the applicant’s appeal rights would be rendered nugatory if further steps in the complaints process are allowed to proceed before the Court of Appeal’s judgment is delivered. Arguably, each further step taken in that process compounds the prejudice of which the applicant complains in relation to the steps taken thus far.

[4]                 A second ground for the stay is that one complainant whose complaints are being investigated refuses to comply with confidentiality obligations in relation to the matter. The applicant contends that there have been numerous deliberate disclosures about the complaint and the respondents’ consideration of them. From the applicant’s perspective, that complainant exploits the adverse consequences for the applicant by publicising steps being undertaken in the complaints process to embarrass the applicant, and to prejudice her interests and those of clients who have interests that conflict with those of that complainant, or other parties associated with that complainant.

[5]                 Arguably, if further steps in the process of investigating the complaints are undertaken before the Court of Appeal’s decision, then the applicant will be exposed to the real risk of further harm because the respondents are not in a position to prevent such disclosures by the complainant in question. This concern is advanced on terms that the applicant perceives the respondents are either unwilling or unable to enforce necessary confidentiality obligations.

[6]                 For the respondents, Mr Collins disputes that the applicant’s appeal rights would be rendered nugatory by the respondents taking further steps in the investigative process. If the appeal is successful, and depending on the terms of the Court of Appeal’s judgment, the respondents would be required to re-engage by adopting a process that discharged any additional obligations found to be owed to the applicant that were not complied with first time round. If the respondents have the courage of their convictions that their procedure has been adequate, there is compelling public interest in reaching a conclusion on complaints that were originally lodged in June and September 2015 and have been plagued by serial delays to date. Mr Collins points to the observation in the judgment currently under appeal that:2

It is in the interests of the complainants, the lawyer, and the public that the complaints be investigated and decisions made in an informed manner with minimal further delay.

[7]                 Mr Collins submitted that the interests of third parties, namely the specific complainants and more generally the public, need to be taken into account in doing what is possible to minimise further delays in a much protracted matter.

[8]                 He also submitted that a relevant consideration in considering a stay in such circumstances is the merits of the appeal, which he submitted were weak.

[9]                 As an alternative to dismissing the stay application entirely, the respondents propose a stay on terms that would allow a “half way house” involving some progress with the complaint investigation process, taking it to a point prior to any substantive hearing before a disciplinary body.

Discussion

[10]              The application for judicial review challenges the lawfulness of procedures adopted in initial and intermediate stages of investigation of complaints undertaken pursuant to statute. The claims were argued at a stage in the disciplinary investigation before the respondents had considered the making of any substantive findings against the applicant. If the Court of Appeal holds that the procedure adopted thus far breached procedural entitlements or obligations of natural justice owed to the

2      A Lawyer v New Zealand Law Society, above n 1, at [118].

applicant, then the respondents would have to comply with that ruling, most likely by having to decide whether to undertake a fresh procedure that discharged all relevant obligations owed to the applicant and, if so, on what terms.

[11]              The further steps contemplated between now and determination of the appeal by the Court of Appeal are of the same character. Accordingly, I am not persuaded that the applicant’s appeal rights will be rendered nugatory if a stay of all further steps is not ordered.

[12]              There is merit in Mr Collins’ point that the Court is generally reluctant to grant relief in judicial review claims brought mid-way through disciplinary procedures. In such cases, there are generally opportunities for procedural deficiencies to be cured before substantive outcomes occur. The Court is wary of pre-emptive strikes intended to frustrate the course of disciplinary procedures where there is generally a public interest in having them promptly pursued to completion. That general approach, plus the fact that continuation of some steps in the present process will not render the applicant’s appeal rights nugatory, count against a stay.

[13]              The interests of the respondents, the complainants and the public in progressing the disciplinary matters to a conclusion is a material factor against granting a stay. However, in circumstances where one or more of the complainants is prepared to breach confidentiality for their own purposes by disclosures that harm the applicant’s interests, such inappropriate behaviour substantially alters the balance between the competing interests of the applicant in a stay, and the respondents and third parties in being entitled to the fruits of the High Court judgment, in the sense of being free to continue with the process that has thus far withstood the judicial review challenge.

[14]              The prospect of a complainant exploiting the resumption of steps in the disciplinary proceeding to advance criticisms of the applicant in other contexts, where such disclosures would be exploiting the predicament confronting the applicant, alters the balancing of competing interests in a stay. The prospect of such inappropriate disclosures in the circumstances of this application would tip the scales in favour of the applicant.

[15]              The risk of inappropriate disclosures by a complainant is sufficiently unacceptable to make a stay justifiable, unless adequate safeguards apply to the contemplated next steps to prevent that occurring. That is the course I intend ordering here.

[16]              I accordingly direct that the respondents may provide the investigator’s reports to each of the parties and seek their responses, but only after receiving from each intended recipient unqualified written undertakings that they will not in any circumstances disclose the content of the reports to any other person except those who have communicated the reports to them. Each recipient must acknowledge receipt of a copy of this judgment, including acceptance that any breach of the undertaking I impose to respect confidentiality will be treated as contempt of court, making any person found to have disclosed any aspect of the reports or reference to their content liable to the full range of sanctions available to the Court for contempt of court.

[17]              The respondents may also continue with processes preparatory to, but not including, any hearing on the complaints.

[18]              The respondents are to satisfy themselves that in addition to receiving the undertakings described in [16] above from all recipients, they have taken all reasonable steps to protect the confidentiality of the content of the investigator’s reports. If the respondents are not satisfied that adequate steps are in place to maintain confidentiality of the investigator’s reports (including prior receipt of original signed undertakings from each recipient), then no disclosures are to occur pending determination of the applicant’s appeal.

[19]              For the avoidance of doubt, disclosure of the reports to the applicant is only to occur after completion of an undertaking by the applicant and any advisers who are to have access to the reports, in the same manner as prescribed above. These orders will apply until the hearing in the Court of Appeal, at which time that Court can reconsider the matter.

Costs

[20]              Costs on the current application are to be considered in light of the substantive outcome in the Court of Appeal.

Dobson J

Solicitors:

Papageorgiou Law Office, Wellington for applicant New Zealand Law Society, Wellington

Counsel:
Paul Collins, Auckland for respondents