Lincoln v Police
[2017] NZHC 2153
•7 September 2017
ORDER MADE GRANTING PERMANENT NAME SUPPRESSION OF SECOND RESPONDENT, Z. THE INTERIM ORDER FOR NAME SUPPRESSION OF THE APPLICANT WILL END AS AT THE DATE OF THIS JUDGMENT.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-000725 [2017] NZHC 2153
UNDER the Lawyers and Conveyancers Act 2006,
the Judicature Amendment Act 1972 and
s 27(2) of the New Zealand Bill of Rights
Act 1990IN THE MATTER OF
An Application for Judicial Review of a refusal of the New Zealand Law Society
BETWEEN
MALCOLM EDWARD RABSON Applicant
AND
NEW ZEALAND LAW SOCIETY First Respondent
Z
Second Respondent
Hearing: (On the papers) Judgment:
7 September 2017
JUDGMENT OF COLLINS J [NAME SUPPRESSION]
Introduction
[1] In a judgment delivered on 24 July 2017, I dismissed Mr Rabson’s application for judicial review in which he challenged a decision of the New Zealand Law Society (NZLS) to dismiss his complaint that Z, a lawyer had intended to
mislead the Court of Appeal.1
1 A v New Zealand Law Society [2017] NZHC 1712.
RABSON v NEW ZEALAND LAW SOCIETY [2017] NZHC 2153 [7 September 2017]
[2] In that judgment, I said that when Simon France J had granted Mr Rabson and Z name suppression he recorded that his decision was reached without having received full argument on the matter.2 I invited further submissions on whether or not the interim name suppression orders should continue.3
[3] This judgment explains why permanent name suppression will be granted for
Z, but not Mr Rabson.
The orders
[4] The current orders suppress the names, addresses and identifying particulars of Mr Rabson and Z until further order of the High Court. There is also an order prohibiting a search of the Court’s file without the leave of a judge of the Court until further order of the Court.4
The law
[5] The Court has an inherent jurisdiction to order name suppression where the interests of justice require it.5 There is no particular threshold for ordering name suppression in a civil case. Rather, the Court must strike a balance between open justice and the interests of the party who seeks suppression.6 There is no onus or burden on an applicant for suppression.7
[6] In exercising the discretion to grant name suppression, the context of the judicial review application is relevant. The application related to the complaints process before two Standards Committees and invokes consideration of provisions in
the Lawyers And Conveyancers Act 2006 (the Act) and the Lawyers and
2 A v New Zealand Law Society HC Wellington CIV-2016-485-725, 10 May 2017 (minute of
Simon France J) at [2].
3 A v New Zealand Law Society, above n 1, at [52].
4 Simon France J’s minute only refers to initial order; however counsel had also sought the second order.
5 Erceg v Erceg [2016] NZSC 135; [2017] 1 NZLR 310.
6 Y v Attorney-General [2016] NZCA 474 at [30] and [31] citing Hart v Standards Committee
(No 1) of the New Zealand Law Society [2012] NZSC 4 at [3].
Conveyancers (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (the Regulations).8
[7] The statutory framework for the discipline of lawyers and its relationship with name suppression orders was discussed by the Court of Appeal in The New Zealand Law Society v B.9
[8] The starting point is s 142 of the Act, which confers on a Standards Committee a discretionary power to direct the publication of its decisions. That power cannot however be read in isolation. For example, the Act requires a Standards Committee to hold its hearing “on the papers” unless it directs otherwise.10
Section 188 of the Act also restricts the disclosure of information acquired in the
course of a Standards Committee inquiry, investigation or complaint. These provisions demonstrate the difference between Standards Committee determinations, which are private, and the public nature of Disciplinary Tribunal proceedings,11 which deal with more serious matters.
[9] Section 131 of the Act states the rules governing the operation of a Standards
Committee must include:
(f) rules specifying the circumstances in which the New Zealand Law Society or the New Zealand Society of Conveyancers or a Standards Committee may publish the identity of a person who has been censured by a Standards Committee.
[10] The requirements of s 131(f) underscores reg 30, which provides:
30 Publication of identity
(1) If a Standards Committee makes a censure order pursuant to section
156(1)(b) of the Act, the Committee may, with the prior approval of the Board, direct publication of the identity of the person who is the subject of the censure order.
(2) When deciding whether to publish the identity of a person who is the subject of a censure order, a Standards Committee and the Board must take into account the public interest and, if appropriate, the impact of publication on the interests and privacy of –
8 Hart v Standards Committee (No 1), above n 6.
9 The New Zealand Law Society v B [2013] NZCA 156 at [24]-[61].
10 Lawyers and Conveyancers Act 2006, s 153(1).
11 Sections 238(1) and (2) and 240.
(a) the complainant; and
(b) clients of the censured person; and
(c) relatives of the censured person; and
(d) partners, employers, and associates of the censured person;
and
(e) the censured person.
[11] Under reg 31, decisions of Standards Committees must remain confidential, unless the Committee makes a direction under s 142(2) of the Act or reg 30(1). Therefore decisions of Standards Committees will not be published unless a positive determination to do so is made by a Standards Committee under s 142(2) of the
Act.12 That power must be read with the provisions of reg 30(1) and the Court of
Appeal has reinforced this by saying:13
Decisions of Standards Committees identifying the names of persons should only be published when they have been censured and the procedures required by reg 30 have been followed.
[12] In summary, the intention of the Act and the Regulations is that unless both an order is made censuring or reprimanding a practitioner and the public interest warrants it, the complaints process before Standards Committees is to be kept confidential and practitioners will not be identified.14
Parties’ submissions
[13] Submissions were received from NZLS and Z. Mr Rabson, who did not appear when his application for judicial review was called in the High Court on
17 July 2017, has failed to file submissions on name suppression.
[14] NZLS does not oppose the name suppression orders being made permanent. NZLS relies on the proposition that the importance of preservation of the confidentiality of the complaints process should take precedence over the principle of open justice. NZLS submits the public interest in the suppressed information is
reduced where the complaint has not resulted in an adverse finding against Z.
12 The New Zealand Law Society v B, above n 9, at [48].
13 At [53].
[15] Z seeks permanent name suppression. Z relies on the legislative intent behind the provisions outlined at paragraphs [6] to [12] of this judgment, and the statutory presumption of confidentiality. Z submits declining name suppression would have significant consequences for him and there can be little to no public interest in publication. Z submits the improper way in which the judicial review application was brought should weigh against declining name suppression.
[16] It is unclear what Mr Rabson’s position on name suppression is, as he elected not to engage with the Court on this issue. The last record of Mr Rabson’s views is in a memorandum dated 3 May 2017, in which he said the facts of the underlying allegations do not warrant name suppression when the “public Court” must be seen to adhere to basic principles of open justice. At the time, Mr Rabson relied on the proposition that his allegations that Z misled the Court of Appeal were “proven”. Neither the Standards Committees or this Court have sided with that view.
Analysis
[17] Taking into account the authorities and legal principles, I am willing to grant
Z permanent name suppression for the following four reasons.
[18] First, no adverse finding was made against Z in the Standards Committees’ decisions. Mr Rabson’s application to judicially review that decision was dismissed. As there was no adverse finding, the public interest would not be served in any material respect by publishing the name of a practitioner who has been cleared of any wrongdoing.
[19] I am guided by the decision in Q v Legal Complaints Review Officer,15 where the Court of Appeal on a judicial review application reinstated a decision of the Standards Committee dismissing a complaint against Q and in doing so, dismissed the Legal Complaint Review Officer’s adverse findings against Q. The Court then
ordered name suppression and held:16
15 Q v Legal Complaints Review Officer [2013] NZCA 570.
As regards name suppression, [the respondent] agreed that if Q were successful in this appeal then his name should be suppressed. That was in our view an appropriate concession for [the respondent] to make.
[20] Second, publication of Z’s name would have significant adverse consequences for Z. For a lawyer, publication of a complaint will inevitably be significant.17 In this case the underlying complaint was not trivial and the very fact of that allegation could cause harm to Z and his practice.
[21] Third, I am persuaded by Mr King’s submission for Z that the logic underpinning decisions such as The New Zealand Law Society v B18 in respect of the presumed confidentiality of Standards Committees’ decisions would be undermined if name suppression were not granted for Z in this judicial review proceeding. That is, the statutory presumption of confidentiality that attaches to the complaints process would be undermined, and could be circumvented, if practitioners named as respondents in a judicial review proceeding were unable to secure name suppression that would otherwise apply. Neither of the Standards Committees directed Z’s name
to be published, and nor could such directions have been made in the absence of adverse findings.
[22] Fourth, by failing to pursue the statutory remedy available to him and exercise his right to have the Legal Complaints Review Officer review the decisions of the Standards Committees, Mr Rabson misused the Court’s jurisdiction to hear an application for judicial review.19 In those circumstances, it would be wrong to appease Mr Rabson in declining permanent name suppression for Z.
Conclusion
[23] In these circumstances, the principle of open justice must yield and permanent name suppression orders are made in respect of Z, namely:
(1)permanently suppressing the name, address and any identifying particulars of Z; and
17 The New Zealand Law Society v B, above n 9 at [54].
18 The New Zealand Law Society v B, above n 9.
19 A v New Zealand Law Society, above n 1, at [50].
(2)prohibiting search of the Court’s file without the leave of a judge of the Court.
[24] There is no reason why Mr Rabson’s name should be suppressed. His interim
name suppression will end on the date of this judgment.
[25] Z is entitled to costs on a scale 2B basis in relation to the submissions made in relation to this judgment.
D B Collins J
Solicitors:
Luke Cunningham & Clere, Wellington for First Respondent
DAC Beachcroft New Zealand Limited, Auckland for Second Respondent
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