Mason v Wellington Standards Committee (no.1)
[2025] NZHC 1978
•18 July 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-485-000030
CIV-2025-485-000145 [2025] NZHC 1978
UNDER Lawyers and Conveyancers Act 2006 IN THE MATTER
of an appeal under s 253 of the Lawyers and Conveyancers Act 2006
BETWEEN
JANET MASON
Appellant
AND
WELLINGTON STANDARDS COMMITTEE (NO. 1)
Respondent
Hearing: 7 July 2025 (at Auckland by AVL) Appearances:
T Mijatov for Appellant T Bain for Respondent
Judgment:
18 July 2025
JUDGMENT OF VENNING J
This judgment was delivered by me on 18 July 2025 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Papageorgiou Law Office, Wellington
Luke Cunningham Clere, Wellington Counsel: T Mijatov, Barrister, Wellington
MASON v WELLINGTON STANDARDS COMMITTEE (NO. 1) [2025] NZHC 1978 [18 July 2025]
[1] The Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found Janet Mason to have wilfully breached the rules of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (LCCC Rules).1 The Tribunal subsequently suspended Ms Mason from practice for three months, censured her and ordered her to pay the costs of the prosecution and to reimburse the New Zealand Law Society for the costs of the Tribunal.2
[2]Ms Mason appeals against both the liability and penalty decisions.
Background
[3] In a minute of 29 October 2020, which the Judge directed was to be sent to the Law Society, Churchman J requested that a Standards Committee consider opening an own motion investigation into Ms Mason’s conduct during the course of proceedings before the High Court.
[4] On 2 December 2020, the Wellington Standards Committee No 1 (the Committee) resolved to open an own motion investigation (the first investigation). Ms Mason was given the opportunity to make submissions and provide evidence.
[5] On 7 December 2022, the Committee considered the first investigation on the papers. The Committee found Ms Mason’s conduct to have been unsatisfactory in that she had breached her obligations under rr 3 and 13.2 of the LCCC Rules to:
(a)act competently and in a timely manner consistent with the terms of the retainer, including the duty to take reasonable care; and
(b)not undermine the processes of the court.
[6] In addition, the Committee found Ms Mason’s conduct also amounted to unsatisfactory conduct because it fell short of the standards of competence and diligence that a member of the public would expect of a reasonably competent lawyer under s 12(a) of the Lawyers and Conveyancers Act 2006 (the Act).
1 Wellington Standards Committee 1 v Mason [2024] NZLCDT 40.
2 Wellington Standards Committee 1 v Mason [2025] NZLCDT 19.
[7] The Committee ordered Ms Mason to pay a fine of $3,500 and costs of $2,000 to the Law Society. In addition, it ordered Ms Mason to undertake the Introduction to Civil Litigation Skills Training course (the prescribed course) within six months of the expiration of the period for lodging a review with the Legal Complaints Review Officer (LCRO) or within six months of the determination of any LCRO review (the Training Order).
[8] Ms Mason was notified of the Committee’s determination and orders on 1 February 2023. The period for lodging a review with the LCRO expired on 16 March 2023. The time for Ms Mason to comply with the Tribunal’s Training Order therefore expired on 16 September 2023. The prescribed course was offered on three occasions in 2023: 8–9 May, 16–17 October and 6–7 November.
[9] Ms Mason did not comply with the Training Order by attending the May course. Nor did she enrol for either of the other two intakes in October and November 2023. Instead, on 22 March 2023, Ms Mason applied out of time to review the Committee’s decision and orders. In a decision delivered on 20 April 2023, the LCRO declined jurisdiction, noting that Ms Mason’s application for review was out of time.3
[10] On 7 August 2023, Elizabeth Kelly, the Senior Professional Standards Officer employed by the Law Society on behalf of the Law Society’s Lawyer Complaints Service (LCS), emailed Ms Mason reminding her that she had until 16 September 2023 to complete the prescribed course and comply with the Training Order.
[11] Roger MacDonald, the practice manager of Ms Mason’s firm Phoenix Law Ltd (and her husband), responded on Ms Mason’s behalf on 8 August 2023. The email advised that Ms Mason intended to judicially review the LCRO’s refusal to consider the review (and would be seeking a stay as part of that review), noted that she had a two-month hearing in the High Court commencing 14 August 2023 and asked the Committee to stay the requirement for the Training Order until the LCRO review was finally determined. The LCS responded the same day (with Ms Mason copied in), advising that the deadlines applied and that, if the orders were not suspended, then
3 Mason v Wellington Standards Committee 1 [2023] NZLCRO 31.
in the absence of evidence of compliance, the matter would be referred to the Committee.
[12] On 17 September, Mr MacDonald emailed the LCS stating that Ms Mason had now instructed a lawyer in relation to the judicial review and suggested that Ms Mason had not heard back about her request for a stay (despite the fact the LCS email of 8 August had been sent to both Mr MacDonald and Ms Mason).
[13] On 18 September, the LCS responded and advised the Committee did not have power to stay the application of the Training Order.
[14] Ms Mason paid the fine and costs on 19 September 2023. On the same day, Mr MacDonald again asked for the Training Order to be stayed. He again said that counsel had been instructed and that a stay would be sought. If the stay was unsuccessful, Ms Mason would undertake the Advanced Litigation Skills course. Later that day, the LCS reiterated to Mr MacDonald and Ms Mason that the Committee no longer had jurisdiction over a matter once determined and it had no power to order a stay. The LCS advised the matter of Ms Mason’s non-compliance would be referred to the Committee.
[15] On 4 October 2023, the Committee considered Ms Mason’s non-compliance and resolved to open an own motion investigation (the second investigation). The following day, the LCS emailed Ms Mason to advise her of the Committee’s decision. Ms Mason was required to provide an explanation for her failure to comply with the Training Order and to outline the steps she was taking to remedy the failure.
[16] Ms Mason responded on 20 October 2023. She summarised the earlier correspondence between herself and the LCS in August and September 2023. She indicated her intention to attend an Advanced Litigation Skills Course but said that it clashed with a fixture. She noted that the only other available courses for 2023 were entry level courses in October and November 2023, designed for junior lawyers with no courtroom experience. She then set out her commitments for 2024 and advised that she had enrolled into an Evidence and Trial Preparation course in November 2023
which she trusted would satisfy the Committee’s requirement. She also apologised for any perception that she had not tried to comply with the Training Order.
[17] In a meeting on 1 November 2023, the Committee considered the proposed two-hour Evidence and Trial Preparation course was not a sufficient substitute for the two-day Civil Litigation Skills course, having regard to the reasons for the Training Order. It found Ms Mason had breached the Committee’s order and resolved to set the matter down for a hearing on the papers. Ms Mason was invited to provide submissions by 17 November 2023.
[18] Ms Mason did not meet this deadline. On 21 November 2023, Mr MacDonald responded by seeking an extension to 10 January 2024 for submissions. In response Ms Mason was advised the Committee required an explanation for the delay by no later than 12.00 pm on 24 November 2023. Ms Mason did not respond. On 27 November 2023, she was advised that the matter would be scheduled for consideration by the Committee at its next hearing on 6 December 2023. Shortly after that email, Mr MacDonald responded and explained that Ms Mason had sent a response to him to forward on to the LCS, however, the email had not processed properly and had remained in his outbox. He sent through a copy of Ms Mason’s email which provided further detail of her work commitments and sought further time to make submissions. The extension was declined.
[19] On 5 December 2023, Ms Mason provided submissions to the Committee. She said that she took both her obligations as a lawyer and the orders of the Committee very seriously. Ms Mason further explained her situation as an indigenous human rights lawyer and submitted that she had genuine reasons for the frequent requests for extra time to respond to the issues. Ms Mason noted there were very few indigenous women lawyers appearing before Senior Courts, especially those providing legally aided services. She further reiterated her long working days and said:
(a)she did try to book a civil litigation course, but had a two-month High Court trial starting 14 August 2023;
(b)the following year (2024), she had two 13-week High Court trials and was worried about her ability to attend a civil litigation course;
(c)she had recently attended a civil litigation course on 21 November 2023; and
(d)she sincerely apologised for not undertaking a civil litigation course earlier.
[20] At the 6 December 2023 hearing on the papers, the Committee determined to refer the matter for consideration by the Tribunal.
The Tribunal’s liability decision
[21] The hearing before the Tribunal did not take place until 14 October 2024. In its submissions for the hearing, the Committee noted that an order for suspension would be sought if the charge was established. Ms Mason gave evidence and was represented by counsel, Mr Darroch. The Tribunal reserved its decision.
[22] After the hearing, but before the decision was delivered, Ms Mason completed the prescribed course on 29–30 October 2024.
[23] In its decision delivered on 27 November 2024,4 the Tribunal identified the issues before it as:
1.Is the failure to comply such as to amount to a wilful or reckless breach of the rules or the Lawyers and Conveyancers Act 2006 (LCA)?
2.If not, is there a lesser form of sanctionable professional conduct, such as unsatisfactory conduct?
3.Alternatively, do the lawyer’s reasons for non-compliance provide a complete answer to the charge, which would then fail?
[24] The Tribunal reviewed Ms Mason’s explanations for not complying with the Training Order. Ultimately, the Tribunal considered that Ms Mason’s non-compliance
4 Wellington Standards Committee 1 v Mason, above n 1.
with the Training Order was deliberate and constituted a wilful breach of the LCCC Rules. If they were wrong in that finding, the Tribunal was satisfied that Ms Mason’s conduct amounted to serious negligence of a type that evidenced an indifference to and abuse of the privileges which she was accorded as a legal practitioner. It was not for Ms Mason to disregard the Training Order and unilaterally presume that different courses than those she was directed to undertake would meet her obligations, or to presume some entitlement to negotiate her compliance with the orders, in circumstances where her obligations were clear.
[25] As the Tribunal found a wilful, or at the very least a reckless, breach of the Training Order established on the balance of probabilities, it did not need to consider the second and third issues. The Tribunal then called for the Committee’s submissions on penalty within 21 days (18 December 2024) with Ms Mason to file submissions by 24 January 2025. It directed a half-day hearing be allocated for the penalty hearing.
Developments after the liability decision
[26] The date of 26 February 2025 was proposed for the penalty hearing. Ms Mason responded by filing a notice of appeal from the liability decision and sought a deferral of the penalty hearing. In response, the Tribunal noted that this Court had indicated its preference was for penalty hearings to proceed to avoid dealing with disciplinary proceedings in a piecemeal fashion. Therefore, in the absence of a stay granted by this Court, the penalty hearing would proceed. Mr Darroch then sought a four-week extension to file submissions and an unspecified delay for the hearing. The Tribunal adjourned the penalty hearing to 12 March 2025.
[27] Mr Mijatov, who had been instructed by then, renewed the request to stay the penalty hearing until after the appeal decision on liability or, alternatively, until mid-April to enable him to prepare. Ms Mason asked for the penalty hearing to be adjourned as her then-current role as counsel assisting a Commission of Inquiry in Fiji was expected to end by 11 April.
[28] The Tribunal declined the further request for adjournment of the penalty hearing, noting the delays and extensions to date, but confirmed that Ms Mason could appear remotely from Fiji.
[29] Ms Mason then filed an appeal with this Court against the Tribunal’s decision to proceed with the penalty hearing. She sought an urgent hearing of the appeal. In a minute issued 7 March 2025, McQueen J declined to grant an urgent hearing.5
The penalty submissions
[30] For the Committee, Mr Bain submitted the appropriate penalty was a short period of suspension, censure and an order for costs.6 The Committee submitted that Ms Mason’s conduct in failing to comply with the Training Order was, on the balance of probabilities, wilful, which was a seriously aggravating factor.
[31] While Mr Bain noted that Ms Mason had apologised in general terms throughout the course of her dealings with the Committee, he submitted the apologies were superficial given they were followed by ongoing non-compliance with the Committee’s orders and directed towards justifying Ms Mason’s delay in responding to the Committee. There was little evidence of remorse and no evidence that Ms Mason had insight into the seriousness of her behaviour. This lack of insight was also demonstrated by Ms Mason’s comments to the effect she was too experienced to undertake the course nominated by the Committee, as well as a lack of respect for the Committee’s decision making and orders. Ms Mason had continuously failed to engage with the disciplinary process in a way commensurate with the importance of the process to the profession. Mr Bain also submitted the lack of insight highlighted the need for specific deterrence. A penalty such as suspension was called for to make it impossible for Ms Mason to ignore the need for change. General deterrence was also relevant. Compliance with a regulatory body is a fundamental obligation on all lawyers.
[32] In his submissions on behalf of Ms Mason, Mr Mijatov submitted suspension would be a manifestly excessive penalty. The maximum penalty ought to be censure. Mr Mijatov made the following submissions on Ms Mason’s behalf:
5 Mason v Wellington Standards Committee HC Wellington CIV-2025-485-145, 7 March 2025 (Minute of McQueen J).
6 The Committee’s submissions in support of penalty were included with its original submissions dated 24 July 2024 for the liability hearing.
(a)The misconduct found was not at the serious end.
(b)Suspension was not to be imposed lightly and was not deserved in Ms Mason’s case.
(c)Ms Mason’s conduct was less serious than cases where suspension had been imposed.
(d)Censure was a meaningful, and in this case, appropriate penalty.
[33] Mr Mijatov noted that if suspension was to be imposed, a deferral of the suspension should be granted to enable Ms Mason to complete her existing obligations with the Commission of Inquiry in Fiji. He also suggested that Ms Mason’s existing workload and hearing commitments might require a further deferral. Finally, it was submitted that non-publication was appropriate.
The Tribunal’s penalty decision
[34] The Tribunal noted that a breach of a Standards Committee order will always be regarded as a serious matter. The Tribunal considered that the submissions on Ms Mason’s behalf had pitched her culpability significantly lower than had been found in the liability decision. While the Tribunal noted that Ms Mason had completed the required course after the liability hearing, it considered that relevant as a matter of mitigation rather than as an element of the assessment of the seriousness of her conduct.
[35] The Tribunal considered Ms Mason’s deliberate flouting of the requirement to carry out the Training Order to be relatively serious misconduct. The lack of respect for her professional institution was a major flaw in Ms Mason’s conduct as a practitioner. As noted, the Tribunal accepted in mitigation that Ms Mason had ultimately completed the prescribed course late in 2024. The Tribunal also accepted that Ms Mason was clearly an industrious and committed lawyer but noted that there were too many examples of failures to clients arising out of poor time management to completely ignore that aspect of Ms Mason’s mode of practice.
[36] The Tribunal accepted that suspension would not have been imposed if public protection was the only issue to be considered. However, Ms Mason appeared as a practitioner who had a history of issues that pointed to a lack of ability and/or willingness to make adjustments in relation to the prioritisation of her time, client work management and administrative obligations. The Tribunal also considered Ms Mason’s conduct showed a clear pattern of failure to prioritise professional and business obligations dating back as far as 2015. The Tribunal concluded that, regrettably, Ms Mason’s level of insight into her current misconduct was and remained a matter of concern. The Tribunal was also left with the impression Ms Mason resented the process. She apparently had little understanding of why her conduct was of concern.
[37] The Tribunal accepted that suspension was not to be imposed lightly and was to be regarded as being in the upper echelon of penalties. However, previous authorities, the need for specific deterrence given Ms Mason’s lack of respect for the disciplinary institutions and her lack of remorse all supported a period of suspension. The Tribunal noted in particular the need for a serious response to practitioners who disregarded orders of their professional institutions. Ultimately, the Tribunal considered a tangible reminder of Ms Mason’s failure and a period of reflection while suspended was required to bring about a change in her attitude and habits.
[38] The Tribunal considered a period of three months’ suspension to be proportionate and consistent with previous decisions. However, having regard to Ms Mason’s role as counsel assisting the Fijian Commission of Inquiry, commencement of the suspension was deferred until 11 April 2025.
[39] The Tribunal made an order suspending Ms Mason from practice for three months from 11 April 2025 (pursuant to ss 242(1)(e) and 244 of the Act). Ms Mason was also censured in the following terms:
[f]or your wilful and reckless breach of a Standards Committee Order. In particular your failure: to undertake the course ordered, to prioritise your time to meet the requirements of your professional body, to treat the order as a non-negotiable obligation and recognise your responsibility to uphold the law which is a requisite of your membership of the legal profession.
[40] The application for a non-publication order was refused. Ms Mason was also ordered to pay the costs of the Standards Committee in the sum of $27,519.68. The Law Society was ordered to pay the Tribunal’s costs of $13,043 and Ms Mason was directed to reimburse the Law Society in full.
The High Court stay
[41] Ms Mason had already filed an appeal against the liability decision. On 28 March 2025, she filed an amended notice of appeal against both the liability and penalty decisions and, on the same day, applied for an order staying the suspension order.
[42] Ms Mason’s application was supported by affidavits from 13 people (in addition to her own affidavit). The deponents described the nature and extent of her practice, the work Ms Mason was engaged in on their behalf, and the prejudice that a suspension would cause them and their interests if a stay was not granted.
[43] In a judgment delivered on 3 April 2025, Radich J made an order staying the Tribunal’s imposition of the three months’ suspension pending determination of the appeal or further order of the Court.7 The Judge noted the references in the affidavits to Ms Mason’s criminal defence work, her work in the Waitangi Tribunal, and the ongoing work as counsel assisting the Fijian Commission of Inquiry, as well as to the disruption generally that would be caused to her clients and to hearings with which she was involved.
[44] The Judge observed that he would be reluctant to find that the fact that a practitioner has a busy practice in a specialist area with hearings and deadlines, and with loyal clients, would be a reason to stay the commencement of the period of suspension for misconduct. He did not put great store on that argument nor on the evidence filed in support of it. However, he considered an order granting a stay was appropriate, primarily because the substantive appeal would be able to be heard within a relatively short time. The Judge accepted there were arguable points raised on appeal and a stay would not cut across the public protection purposes of the disciplinary
7 Mason v Wellington Standards Committee 1 [2025] NZHC 774.
regime. On the other hand, without a stay, the suspension period would be substantially completed by the time the appeal could be heard (without factoring in the time needed for a decision).
Appeal grounds
Liability
[45]Ms Mason says the Tribunal made the following errors in its liability decision:
(a)Failing to consider the inappropriateness of the Committee’s Training Order and the Committee’s unwillingness to consider varying the terms of the Training Order or extending the timeframe for Ms Mason to take the course.
(b)Failing to consider or giving insufficient weight to comparable decisions where practitioners were given significantly more support by the Committee.
(c)Placing weight on irrelevant factors, including Ms Mason’s decision to correspond with the Committee via her practice manager.
(d)Finding Ms Mason’s conduct was deliberate and constituted a wilful breach of the rules or serious negligence.
(e)Finding Ms Mason’s conduct amounted to misconduct.
(f)Failing to make a decision or provide reasons as to whether the alternative charge of unsatisfactory conduct was made out.
Penalty
[46]As to penalty, Mr Mijatov argued on behalf of Ms Mason:
(a)The penalty was imposed following an unfair hearing in which Ms Mason had been afforded insufficient time to respond, given her
application for adjournment was refused. Ms Mason was questioned about the provenance of an affidavit sworn in support by his Lordship Justice Ashton-Lewis without prior notice.
(b)The penalty of suspension was too severe, whether in the circumstances of the finding of misconduct by the Tribunal or otherwise because:
(i)the policy rationale of public protection for the severe penalty of suspension was not present; and
(ii)the reliance on case law supporting a suspension was wrong as the cases are distinguishable and must yield to principle in any event.
(c)The Tribunal should not have ordered costs against Ms Mason given there was no misconduct, and no unsatisfactory conduct.
Further evidence
[47] In support of her appeal, Ms Mason sought to adduce further affidavit evidence from:
(a)Jane Mihingarangi Ruka Te Korako, a Kuia of Phoenix Law;
(b)John Tamihere, Chief Executive of the Waiparaeira Trust and previously an executive member of the Auckland District Māori Council, both entities which had instructed Ms Mason for a number of years;
(c)Ms Mason; and
(d)Mr MacDonald.
[48] Mr Bain required both Ms Mason and Mr MacDonald for cross-examination on their affidavits. Neither Ms Ruka nor Mr Tamihere were required for
cross-examination. I indicated that I would take the proposed further evidence in de bene esse and deal with it in this judgment.
[49] Rule 20.16 of the High Court Rules 2016 applies to the admission of further evidence on an appeal. In particular, r 20.16(3) provides:
The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.
[50] While the Court has a discretion to admit evidence even where it is not fresh, generally, for leave to be granted the evidence must be cogent and likely to be material. The appeal should not be treated as a new trial with the previous hearing acting as a dummy run.8 The discretion to admit further evidence is to be exercised sparingly.9
Jane Mihingarangi Ruka Te Korako
[51] Ms Ruka is a Kuia of Ms Mason’s firm. She had provided an affidavit for the liability hearing. In her further affidavit, Ms Ruka said Ms Mason and her team are constantly busy and work long hours in order to assist Māori people in need. She said that Ms Mason, like others of the small number of experienced senior lawyers willing to take undertake legal aid work in this field, need to work very long hours. To that extent, her evidence is uncontroversial, but it is neither fresh nor particularly cogent. Given Ms Ruka’s relationship with Ms Mason’s firm, that evidence could and should have been provided to the Tribunal for the penalty hearing.
[52] Ms Ruka also went on to give evidence about her impression of the liability hearing into Ms Mason’s case, which she had attended. She said she was shocked at the hostility of the Tribunal members towards Ms Mason:
8.… I knew from the moment they started that the decision would go against her. They were not at all interested in hearing what she had to say.
8 Telecom Corporation of New Zealand Ltd v Commerce Commission [1991] 2 NZLR 557 (CA); and Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC).
9 B v A [2020] NZHC 580 at [25].
9.I was particularly offended at the questions alleging she wanted “special treatment”. The use of their words reminded me of the racist taunts that we as Maori are continually exposed to, belittling us as wanting “special rights” and “special treatment” when all we are asking for is justice.
[53] While fresh, this aspect of Ms Ruka’s affidavit which deals with her impression of the Tribunal hearing is objectionable and inadmissible. It is effectively her opinion rather than evidence of factual matters. Further, her observation about the conduct of the Tribunal hearing appears to be based on a misunderstanding of the process. Such hearings are effectively an inquisitorial process with members of the Tribunal questioning witnesses, including the complainant.
[54] I have read and reviewed the full record of the Tribunal’s hearing. There are only two occasions when Ms Mason was questioned about whether she regarded her situation as somehow special. Both occasions occurred in the course of questioning by the Chairperson of the Tribunal. When considered in context, neither instance supports the interpretation Ms Ruka sought to put on it in her evidence.
[55]On the first occasion, the Chairperson asked Ms Mason:
Q. So when you say you thought your circumstances would be taken into account, are you saying that your circumstances are different from other lawyers who have orders made against them? That your situation is somehow special.
A.I think everybody’s situation is different and I think that part of the law is always taking into account a person’s particular circumstances and I think that my circumstances at that time did warrant some leniency and I had laid – set that out in later correspondence.
Q. So some leniency.
A. Well flexibility.
And later, after Ms Mason had given a lengthy answer to explain her correspondence with the LCS again, the Chairperson questioned her:
Q. You were asking for special treatment as well weren't you?
A. I just really wouldn’t use the term special treatment I just –
Q. Okay let me read your own words to you.
A. Yes.
Q. You talk about the deadline being two weeks and: “for my particular workload these very short timeframes do not work for me, I would be grateful if the Committee could look at longer deadlines for me”.
A. Yes I would rather describe it as different circumstances and I do think that is a feature of public law where a person’s circumstances are looked at because everybody has different circumstances so I’m not saying that, you know, somehow I am automatically entitled to more leniency or more flexibility but I do think that the Committee should have looked at my circumstances in the whole and I don’t think that that was done. I have been practising for 25 years, I had not had an upheld complaint before and I expected that there would be some flexibility. That’s what had I had expected and I don’t think that’s a lot to expect.
Q. Thank you.
[56] The interpretation Ms Ruka purports to put on the interaction and the use of references to “special” is simply not available and should not have been advanced.
[57] I decline to accept the evidence of Ms Ruka for the purposes of the appeal. To the extent her evidence is at all remotely relevant in relation to the work pressures that Ms Mason is under, as noted, this is not fresh and is more than adequately covered by the evidence of Mr Tamihere, referred to below. The balance of Ms Ruka’s proposed further evidence is not cogent. There is no special reason to admit it.
John Tamihere
[58] Mr Tamihere made two affidavits: one in support of the stay and the other for the purposes of the appeal. Mr Tamihere’s evidence covers the lack of senior practitioners undertaking legal aid and the demanding aspects of practice in the Waitangi Tribunal. Mr Tamihere’s evidence is that there are a limited number of indigenous lawyers serving indigenous communities, which inevitably results in them taking on enormous obligations to Māori communities. In his earlier affidavit, Mr Tamihere gave more detailed evidence of Ms Mason’s workload.
[59] I accept that, while not fresh, aspects of Mr Tamihere’s evidence is admissible in the interests of justice, particularly in relation to the penalty issue. Mr Tamihere’s evidence supports Ms Mason’s own evidence given at the penalty hearing as to the demands on her time and her workload.
[60] However, again, there are other aspects of Mr Tamihere’s affidavit which are inadmissible. Mr Tamihere speculates about what he considers might have been the outcome had Ms Mason undertaken what he described as the only available course during the six months she had been given to complete the prescribed course. He opined that Ms Mason’s circumstances are unique. He also commented on what he perceived as the harsh and litigious approach of the Committee. Those aspects of his affidavit are not cogent, effectively amount to submission and are not admissible.
Ms Mason’s further evidence
[61] In her evidence, Ms Mason first refers to a medical certificate which she apparently obtained on 26 August 2024. The certificate confirmed that, in the doctor’s opinion, she would be unfit for work from 26 August 2024 for a period of four months until 31 December 2024.
[62] Ms Mason wished to adduce that in support of her evidence that she was not feeling well at the time of the Tribunal hearing (which took place in mid-October 2024) and she was hampered in her preparation for the hearing. She says she raised the possibility of an adjournment with Mr Darroch but was advised by him that the Tribunal may not agree to a request for adjournment; in any event, it may look bad for her case. She says that, due to her not feeling well, she was not able to talk to or obtain evidence from other witnesses who had evidence relevant to her case before the Tribunal.
[63] Several points can be made about Ms Mason’s proposed evidence as to her medical condition. First, the medical certificate is in very general terms and lacking in detail. It does not comply with the general requirement for medical certificates which can be found on the Medical Council of New Zealand website. Little weight can be placed on it.
[64] Further, Ms Mason does not seem to have taken the advice contained in it. She accepted the brief to act as counsel assisting the Fijian Commission of Inquiry in October 2024. In cross-examination, she accepted that work was demanding. Her suggestion that the change and new environment reduced her stress was not at all convincing.
[65] Next, as noted, Ms Mason was represented by counsel at the liability hearing. She ultimately accepted his advice and did not seek an adjournment. Ms Mason gave evidence and was able to respond to the Tribunal’s questioning. In her evidence before the Tribunal, she maintained the position she had taken (or that Mr MacDonald had taken on her behalf) in previous correspondence. At no stage did Ms Mason raise the issue of her health as a reason for her non-compliance with the Training Order. Rather, her primary explanation was her heavy workload and her commitment to her clients.
[66] Ms Mason then purports to give further evidence about her inability to undertake the course during 2023. Her evidence suffers from her assumption that the time to carry out the prescribed course ran from 20 April. It did not. It ran from 16 March and expired 16 September 2023. There was the course of 8–9 May 2023, quite apart from the courses in October and November.
[67] Ms Mason also suggests that Mr MacDonald was responsible for looking into the availability of the courses. But the responsibility for complying with the orders of the Committee was on her as the practitioner, not on the practice manager.
[68] Ms Mason says she feels the Tribunal had already formed a negative view about her prior to the hearing. For the reasons referred to above in relation to Ms Ruka’s observations about the hearing process, I reject the implicit suggestion of predetermination or bias on the part of the Tribunal. The record does not support the submission and it should not have been made.
[69] Ms Mason’s proposed further evidence is neither fresh nor cogent. There is no special reason to admit it.
Mr MacDonald
[70] Roger MacDonald, the practice manager, also gave evidence. Again, Mr MacDonald’s evidence is not fresh, nor did I find it cogent.
[71] Further, as Mr Bain made the point in cross-examination, Mr MacDonald’s evidence is just plainly wrong in some respects. For example, Mr MacDonald stated:
15. I consider that the six month timeframe which was included in the Decision was simply too short, given Ms. Mason’s seniority and her hearing schedules, and given that the Course was only offered once a year.
[72] Apart from Mr MacDonald’s opinion as to the time frame being irrelevant, the short point is that he is wrong in any event. Following delivery of the Tribunal’s decision, which was made available to Ms Mason on 1 February 2023, she had the opportunity to apply to the LCRO for review by 16 March 2023. She failed to do so. As of 16 March, there were three courses available for Ms Mason to undertake during 2023.
[73] Next, Mr MacDonald said Ms Mason had a three-month fixture from 18 August 2023 until 17 November 2023, which does not align with previous evidence and correspondence authored by him referring to a two-month fixture commencing 14 August 2023.
[74] The fact that Mr MacDonald and/or Ms Mason chose to file an application for review of the LCRO out of time, then took time to consider whether or not they should apply to review the decision of the LCRO declining jurisdiction, is no explanation. The obligation on Ms Mason was clear.
[75] Mr MacDonald says the next time he looked at course availability in July or August 2023, the course was apparently not available, and he assumed it was booked out. I note that he does not give evidence about consideration of the May course nor why Ms Mason did not enrol for the October or November courses at an earlier time when they were available, other than to refer to the three-month fixture (for the first time). All he noted was that there were clashes with timetables and that:
12.In my conversations with Ms. Mason we had expected the Standards Committee to engage with her as to what they wanted her to do. I know that Ms. Mason wanted to comply, and had every intention of complying.
[76] Mr MacDonald’s observation is of limited value. It is certainly not cogent and is in contrast to the position taken by Ms Mason in the email exchanges. His evidence also contains further inadmissible submission:
13.The picture that has been painted at the LCD Tribunal Hearing of Ms. Mason being someone who did not want to comply with an order of the LCD Tribunal is completely false.
[77] Overall, Mr MacDonald’s evidence is not fresh. It could have been prepared for the Tribunal. To the extent it refers to his expectations and includes submission, it is inadmissible in any event.
[78] There are no special circumstances supporting the admission of Mr MacDonald’s evidence.
[79] For the above reasons, with the exception of Mr Tamihere’s evidence as to the detail of the work Ms Mason carries out for a number of Māori entities (which is primarily relevant as to penalty), the proposed further evidence is neither fresh nor cogent and there is no special reason for its admission.
Approach to the appeals
[80] The appeals are brought pursuant to s 253 of the Act. Such appeals proceed by way of rehearing. The Court may confirm, reverse or modify the order or decision appealed against. The correct approach is as directed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.10 Ms Mason is entitled to the opinion of this Court even though this may involve an evaluative judgment on matters of fact and degree about which reasonable minds might differ.
The adjournment appeal
[81] Mr Mijatov confirmed that, in addition to the liability and penalty appeals, Ms Mason wished to pursue an appeal against the refusal to adjourn the penalty hearing. He sought that this Court should make a declaration that the Tribunal erred in refusing to adjourn the penalty hearing. That declaration would vindicate
10 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Ms Mason’s interests consistent with the reality that the substantive issues going to penalty will be able to be corrected on appeal by this Court.
[82] I do not consider there to be any merit in the appeal against the refusal to adjourn the penalty hearing. Ms Mason was represented throughout the process. It was her choice to instruct fresh counsel for the penalty hearing. Ms Mason sought and was provided further time to prepare submissions and evidence for the penalty hearing. As this Court has said, it is desirable for both liability and penalty decisions to be before it on appeal to avoid unnecessary duplication of resources.
[83] It was suggested on Ms Mason’s behalf that she was effectively caught by surprise by some of the questions that the Committee asked her during the penalty hearing. The adjournment of the hearing date would not have addressed those issues which arose out of an affidavit from the senior Judicial Officer involved in the Fijian Commission of Inquiry that Ms Mason had chosen to file to support her position.
[84] As noted, the penalty hearing was adjourned from the initial proposed date of 26 February 2025 to 12 March 2025 to give Ms Mason more time to prepare. The Committee relied on its earlier written submissions dated 24 July 2024. Ms Mason knew the case she was facing. She and counsel had ample time to prepare for the penalty hearing, a point noted by McQueen J in her decision declining the application for an urgent hearing:11
[31] I consider that Ms Mason has had considerable time in which to prepare for the penalty hearing. The submissions for the Committee have been available to her since July 2024. Ms Mason filed an affidavit in response together with character references in August 2024. An adjournment of the penalty hearing to 12 March 2025 was granted on 30 January 2025 specifically to allow Ms Mason to appear at the hearing and have time to prepare submissions. To the extent that Ms Mason’s recent decision to change counsel at this stage of the proceeding affects the preparation of submissions, I do not regard this as a strong factor given the history of the matter. Ms Mason has made numerous choices which affect her position today, including taking up the role of counsel assisting the Inquiry while the disciplinary proceeding remained underway. It is difficult to see how such choices may properly be advanced as prejudice in support of now obtaining an urgent hearing.
[85]The decision to decline the application for adjournment cannot be impeached.
11 Minute of McQueen J, above n 5.
[86] In any event, to the extent Ms Mason says that with further time she would have put additional evidence before the Tribunal for the penalty hearing, for the reasons given above, I have accepted the evidence of Mr Tamihere as admissible for the penalty appeal. The evidence is admissible as it concerns the nature of Ms Mason’s practice, the important role that she plays in representing a number of different Māori interests before the Waitangi Tribunal and in the Court and the impact a suspension could have on those clients.
The liability decision appeal
[87] In his oral submissions, Mr Mijatov noted that the starting point must be the charge itself. The charge Ms Mason faced was:
Charge
That the Practitioner committed a disciplinary offence as particularised below, which constituted —
(a)misconduct pursuant to s 241(a) of the of the Lawyers and Conveyancers Act 2006 (the Act), meaning:
(i)under s 7(1)(a)(i) of the Act, conduct that occurred at a time when the Practitioner was providing regulated services and which would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable; or
(ii)under s 7(1)(a)(ii) of the Act, conduct that occurred at a time when the Practitioner was providing regulated services and consisted of a wilful or reckless contravention of s 4(a) of the Act and r 2 and/or r 10.2 and/or r 10.14(b) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) —
or, in the alternative —
(b)unsatisfactory conduct pursuant to s 241(b) of the Act, meaning:
(i)under s 12(b) of the Act, conduct that occurred at a time when the Practitioner was providing regulated services and which would be regarded by lawyers of good standing as being unacceptable; or
(ii)Under s 12(b) of the Act, conduct that consisted of a contravention of s 4(a) of the Act and r 2 and/or r 10.2 and/or r 10.14(b) of the Rules.
[88] Mr Mijatov noted the Tribunal’s focus was on misconduct under (a)(ii) rather than disgraceful or dishonourable conduct. He challenged the Tribunal’s finding that Ms Mason wilfully or recklessly failed to comply with some or all of the duties noted.
[89]Misconduct is defined in s 7 of the Act:
7Misconduct defined in relation to lawyer and incorporated law firm
(1)In this Act, misconduct, in relation to a lawyer or an incorporated law firm,—
(a)means conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct—
…
(ii)that consists of a wilful or reckless contravention of any provision of this Act or of any regulations or practice rules made under this Act that apply to the lawyer or incorporated law firm or of any other Act relating to the provision of regulated services; or
…
[90] I understood Mr Mijatov to accept, as indeed he had to, that if the Tribunal was correct to find that Ms Mason had wilfully or recklessly declined or failed to comply with the Committee’s Training Order, then such conduct could amount to misconduct and a breach of s 4 of the Act and r 2 of the Rules and thus the particulars at (a)(ii) of the charge would be made out. There is clear authority that such wilful breach to comply with a training order can amount to misconduct.12
[91] Mr Mijatov’s focus was on the challenge to the Tribunal’s finding that Ms Mason’s conduct was deliberate and constituted a wilful breach, or was otherwise serious negligence sufficient to amount to misconduct. Mr Mijatov went through the correspondence on behalf of Ms Mason with the LCS and submitted that the correspondence and Ms Mason’s attitude, as apparent from her evidence before the Tribunal, could not be categorised as wilfully or recklessly refusing to comply with the orders of the Committee. The Tribunal was wrong to have found that it was.
12 Hong v Auckland Standards Committee No 3 [2014] NZHC 2871.
[92] Before focusing on Mr Mijatov’s argument on that central point, the other points taken on appeal can be dealt with briefly.
Failing to consider the inappropriateness of the Training Order and the Committee’s unwillingness to consider varying the terms of the Training Order or extending the time frame.
[93] Throughout the course of the correspondence with the LCS, Ms Mason proposed or suggested that she would undertake courses other than the prescribed course. But the LCS correctly made it clear to her that the Committee, having made its decision as to the Training Order (which related to the prescribed course), could not revisit the matter.
[94] Given the findings of the Committee on the first investigation — that Ms Mason had failed to act competently and in a timely manner consistent with the terms of the retainer, had breached her obligations not to undermine processes of the Court and that her conduct generally fell below the standards of competence and diligence expected of a reasonably competent lawyer — it was appropriate for the Committee to require Ms Mason to undertake the prescribed course, despite her length of post-admission experience. The Tribunal did not err by failing to review the appropriateness or otherwise of the Training Order.
[95] Mr Mijatov suggested that the minutes of the Committee’s meeting where they discussed Ms Mason’s advice that she had enrolled for an Evidence and Trial Preparation course suggested the Committee was open to looking at alternative ways for Ms Mason to comply with the Training Order. But on my reading of the minutes, they simply confirmed that Ms Mason’s attendance at the Evidence and Trial Preparation course as an alternative was not satisfactory. The Committee confirmed she had failed to comply with the Training Order. It was not a concession that alternative ways of complying with the order were open to her.
[96] Nor did the Tribunal err by failing to consider whether further time should have been provided to Ms Mason to undertake the prescribed course. For the reasons discussed below, Ms Mason made it clear that she had no intention of completing the prescribed course in 2023. It was not that she sought further time to comply. It was
apparent that if she was going to attend a course at all, she intended to attend a different course.
[97] The onus was on Ms Mason and her advisers to take appropriate action if a stay was sought of the Committee’s Training Order. However, while frequent reference was made to obtaining a stay, no formal application was ever filed with the Court either to review the LCRO decision nor were any steps taken to obtain a stay until after the imposition of the suspension order following the penalty hearing.
[98] Ms Mason was aware of the Committee’s orders as of 1 February 2023. At the time, there were three courses she could have enrolled for during 2023. While only the May course would have strictly complied with the six-month time limit, if she had enrolled for the October or November courses, it is inevitable the Committee would have accepted that as reasonable, particularly given the direction in its original decision that she was to advise the Committee when she had enrolled for the course.
[99] Further, the main thrust of Ms Mason’s correspondence with the LCS on the issue of the prescribed course was directed at her attending a course that suited her, or that she considered appropriate, rather than a request for further time to complete the prescribed course.
Failing to consider or giving insufficient weight to comparable decisions.
[100] Ms Mason submitted that the decisions of Hong and Salter,13 to which the Tribunal referred, were examples of conduct that was far more serious than her situation, but the Standards Committee had given the practitioners significantly more support. But as Mr Bain submitted, the reference to those decisions does not address whether in the present case the Tribunal was right to find that Ms Mason was guilty of misconduct. Each case turns on its own facts. Mr Hong had initially only been given three months to comply with the order compared with the six months allowed Ms Mason. But again, more relevantly, the correspondence showed that Ms Mason’s focus was on attending a course that she considered appropriate rather than attending
13 Hong v Auckland Standards Committee No 3, above n 12; and Auckland Standards Committee 2 v Salter [2015] NZLDCT 28.
the prescribed course. It is relevant that she only attended the prescribed course in October 2024, while the decision on liability was awaited and in the knowledge that the Committee would be seeking suspension if the charge was proved.
Placing weight on irrelevant factors, including Ms Mason communicating through Mr MacDonald
[101] The next ground of appeal is that the Tribunal took into account Ms Mason’s decision to correspond with the LCS via Mr MacDonald. Although Mr Mijatov did not expand on the matter orally, I accept Mr Bain’s submission that while observing that Ms Mason had communicated through Mr MacDonald, the Tribunal did not place any particular significant weight on that factor in its decision.
[102] In any event, the short point remains that the obligation to comply with the Training Order was on the practitioner, Ms Mason, and not on Mr MacDonald, the practice manager.
Failing to make a decision or provide reasons as to whether the alternative charge of unsatisfactory conduct was made out
[103] Mr Mijatov then suggested that it was unfortunate the Tribunal had not gone on to consider the alternative lesser charge of unsatisfactory conduct. He argued that, if it had, it would have also concluded the evidence did not support it in any event.
[104] In J v Auckland Standards Committee, the Court of Appeal accepted there was no error by the Tribunal or High Court considering whether misconduct was proved without regard to the alternative charge of unsatisfactory conduct (or negligence) under s 241(c) of the Act.14
[105] It had been argued on behalf of J that the Tribunal was bound to consider each of the (in that case) three charges and decide what was the most apposite. The Court noted the hierarchy under s 241 of the Act but considered that a ranking of the relative seriousness of the conduct in issue was not determinative of the most appropriate
14 J v Auckland Standards Committee 1 [2019] NZCA 614, [2020] NZAR 140 at [39].
charge. There was no error in considering whether misconduct was proved without regard to whether the alternative charge was a better “fit”.
[106] Similar reasoning applies to the present case. The Tribunal was not obliged to consider the alternative charge of unsatisfactory conduct given its finding on the principal charge.
Finding Ms Mason’s conduct was deliberate or wilful which amounted to misconduct.
[107] In his oral submissions, Mr Mijatov focused on this aspect of the appeal. He referred to a number of points in support of his submission that the Tribunal was wrong to have found Ms Mason had wilfully failed to comply with the orders of the Committee. Overall, he submitted that Ms Mason’s professional obligations and the limited availability of the course meant she was unable to comply in time. He suggested the Tribunal had overemphasised the “vice” of disrespect.
[108] First, Mr Mijatov noted that the course was only available on limited dates each year. Mr Mijatov suggested that the six-month time limit made compliance difficult. But as noted, the time for Ms Mason to seek a review from the LCRO expired 16 March 2023. As of that date, there were three occasions during 2023 which the prescribed course was run: May, October and November. Even applying Ms Mason’s adjusted timetable of the decision of the LCRO being delivered on 20 April 2023, at that time, there were two courses in October and in November still available.
[109] There is no direct evidence Ms Mason (or Mr MacDonald) even enquired about any of the courses before perhaps July or August 2023. To the extent they may have considered them, they were apparently dismissed because of Ms Mason’s trial commitments. As an explanation for not undertaking those courses, Ms Mason said that she had a High Court trial for two months starting 14 August. But that trial (which subsequently settled in any event) would have been completed by 6 October. The October course commenced 16 October. There was no good reason why Ms Mason could not have enrolled in the October or November courses much earlier in the year when she was aware of her obligation to do so. The correspondence from Mr MacDonald on behalf of Ms Mason made no reference to attempts to enrol in any of the courses.
[110] While Ms Mason was entitled to challenge the Training Order, she failed to do so within a timely fashion. And despite referring to seeking judicial review, no such steps were taken. Ms Mason must accept responsibility for failing to enrol even provisionally for any of the three courses during 2023.
[111] Further, for the reasons that follow, it is apparent that the reason Ms Mason did not enrol for the courses was because she did not consider the course to be appropriate rather than an issue as to timing.
[112] Mr Mijatov submitted Ms Mason did not see the prescribed course as being beneath her. Rather, she considered what course was going to be useful to achieve what the Law Society had wanted her to do. When the prescribed course was not available, Ms Mason suggested she could undertake the Advanced Civil Litigation Skills course in 2024 (subject to concerns about dates) and booked into a Law Society Evidence and Trial Preparation course for 21 November 2023.
[113] However, when Ms Mason’s evidence (both her affidavit evidence for the liability hearing and her oral evidence) and the correspondence on her behalf is considered in full and in context, the picture that emerges is that Ms Mason was antagonistic towards the requirement to undergo what she perceived as a beginner’s course and did not accept the Committee’s order to complete the prescribed course. Rather, she sought to negotiate a different outcome.
[114] Ms Mason made it clear in her affidavit evidence for the liability hearing that she did not consider the prescribed course was appropriate to her circumstances:
The design of this Course means that it is directed at those lawyers who are dealing with civil litigation in the early part of their careers. The content does not address any of the issues which I encountered in the High Court. It appears that the Committee wants to ensure that the course is lengthy (2 days) and that it marks a view that I need to go back to the basics. This does not appear to be a fair response given the amount of litigation experience which I have. It appears to be a punitive measure rather than something designed for me to improve my practice and abilities.
[115]The same theme emerged from Ms Mason’s evidence at the hearing:
I don’t look at things as either above me or beneath me. I look at them either as are they going to be useful to what the Society had wanted me to do and I
thought it was for people who had not walked into a courtroom before and I didn’t know that that would be useful in terms of what the Society was wanting.
And then later:
Q.Is it possible that it might cover counsel’s duties to the Court? … You didn’t … – think you needed to learn anything about that?
A.Well yes there are always refresher courses that you can take and there are always things that you can learn. So I didn’t – it wasn’t really I thought this was beneath me or I was above that, it was more looking at what would suit them and what would suit me and it was at the time that the deadline had passed.
[116] Although Ms Mason said she did not consider the course to be beneath her, the tone of her evidence overall was consistent with her correspondence with the LCS which was that she did not consider the prescribed course to be appropriate and suggested alternatives.
[117] While Mr Mijatov noted that Ms Mason did ultimately complete the course, that was not until a year later and only when facing the possibility of suspension.
[118] Further, Ms Mason continued to put her work commitments ahead of her compliance with the Training Order. Mr Mijatov suggested that in doing so she was simply complying with her primary obligations to the Court and to clients. With respect, however, that overlooks that the background to this matter which led to the initial first investigation. That was a breach of her obligations to the Court which in turn led to the Training Order. It also overlooks the fact that it is in the interests of the clients that lawyers maintain standards and comply with the requirements and orders of their professional body. A lawyer cannot use a work commitment and obligation to their clients to fail to comply with professional standards and orders of disciplinary committees.
[119] Mr Mijatov submitted the Tribunal was wrong to infer lack of respect from Ms Mason’s conduct. He suggested that she was making genuine attempts to comply. Mr Mijatov referred to the cases of Hong v Auckland Standards Committee No 3, Auckland Standards Committee 2 v Barton and Auckland Standards Committee 2 v
Salter.15 He submitted that, in these cases, the Committees had provided repeated support or reminders to the practitioners. But the LCS in the present case made its position clear throughout. For the reasons given above, Ms Mason’s focus was not on compliance. Rather, it was on achieving an outcome, both as to timing and the nature of the course, that suited her. It follows I cannot accept Mr Mijatov’s submission that Ms Mason’s conduct was that of a practitioner who had endeavoured to comply but failed to do so within time, not one who deliberately and wilfully ignored their disciplinary body.
[120] The Tribunal was entitled to find that Ms Mason’s correspondence (supplemented by the evidence) did not show a genuine intention to comply with the direct order of the Tribunal. At most, from her point of view, it was an attempt to negotiate an attendance at a different course at a time that suited Ms Mason. The Tribunal’s findings (as below) were entirely open to it and supported by both the correspondence and the evidence:
[37] In summary, Ms Mason was subject to orders which she failed to challenge in time via the LCRO, and then did not challenge through threatened judicial review proceedings, which she sought further time to bring but ultimately did not.
[38] The orders therefore stood, and it was not for Ms Mason to disregard them, to unilaterally presume that different courses than those she was directed to undertake would meet her obligations, or presume some entitlement to “negotiate” her compliance with the orders in circumstances where Ms Mason’s obligations were crystal clear.
[39] We consider that members of the public would be dismayed if the failure of lawyers to comply with sanctions imposed upon them were to be tolerated.
When all factors were taken into account, the finding of an intentional breach of Ms Mason’s obligations was open to the Tribunal. At the very least, she was reckless as that term is used in a disciplinary context (as the Tribunal held in the alternative).
[121]It follows that the appeal against the liability finding of the Tribunal must fail.
15 Hong v Auckland Standards Committee No 3, above n 12; Auckland Standards Committee 2 v Burton [2023] NZLCDT 23; and Auckland Standards Committee 2 v Salter, above n 13.
The penalty decision appeal
[122] In the event the appeal against the liability finding failed, Mr Mijatov submitted that the policy rationale of public protection which justifies suspension was not strong (if present at all) in this case and censure was a sufficiently serious penalty in its own right. The Tribunal’s reliance on case law supporting the suspension was wrong as the cases are distinguishable and must yield to principle in any event.
[123] Mr Mijatov noted that the Tribunal accepted that, were public protection the only issue to be considered, a period of suspension would not have been imposed. The Tribunal referred to the need for deterrence (both individual and general) and that rehabilitation and reflection supported suspension.
[124] Mr Mijatov made the point that Ms Mason had completed the course (and other training) and had ultimately accepted she was bound by the orders of the Committee and accepted it was a significant failing not to have done so in the first instance. He emphasised the importance of the work Ms Mason undertook and the support she had from a number of clients who may otherwise not have representation, particularly on issues important to Māori communities. Next, rather than downplaying the evidence of his Lordship Justice Ashton-Lewis’ evidence in support, the Tribunal should have given it significant weight.
[125] Then, Mr Mijatov submitted that the Tribunal was wrong to take the view it was a settled position that a short period of suspension for breach of disciplinary orders is appropriate. Each case must turn on its own facts.
[126] I consider deterrence, both individual and general, to be an important factor in this case. As noted, for the above reasons, I agree with the Tribunal’s conclusion that Ms Mason’s wilful failure to comply with the orders was relatively serious misconduct. It showed disrespect for her professional institutions.
[127] Practitioners must respect disciplinary orders. The disciplinary process and authority of Standards Committees must not be undermined. In Hart v Auckland Standards Committee 1 of New Zealand Law Society, this Court held:16
[208] … 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.
[128] Further, as the Tribunal noted in Auckland Standards Committee 2 v Burton: “without respect and observance of the mechanisms to maintain professional standards, the system falls down”.17 There must be an appropriate response to a wilful non-compliance with an order such as the Training Order in this case.
[129] Mr Bain submitted that Ms Mason has open complaints from a client and several former employees and that her previous appearance before the Tribunal was also relevant. I agree with Mr Mijatov’s submission that the current open complaints cannot be considered as part of Ms Mason’s disciplinary history. They are yet to be ruled on by the Tribunal. However, I do not consider the Tribunal was influenced by them or unfairly took them into account. I note that it recorded them to set “the record straight”.
[130] In 2015, Ms Mason had been refused a practising certificate allowing her to practise on her own account because of the liquidation of the company under which she had operated her practice. The Tribunal noted in its penalty decision that Ms Mason had proposed to make changes in her practice, including to distribute her time between financial management, client responsibilities and to reduce her billing time. The Tribunal referred to that as showing Ms Mason:
… has a history of issues that point to a lack of the ability and or willingness to prioritise the need to make adjustments in her prioritisation of her time, client work management and administrative obligations.
16 Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103.
17 Auckland Standards Committee 2 v Burton, above n 15, at [25].
[131] I agree with Mr Mijatov’s submission that the 2015 incident, now some 10 years ago, cannot be said to amount to a pattern of behaviour as such. However, it is still relevant that the same problem, namely focusing on client demands rather than her other professional obligations, appears to remain an issue for Ms Mason.
[132] As to mitigation, in Ms Mason’s favour, there was not a complete failure to engage with the LCS. She did not ignore its communications as some practitioners had. However, her focus until the Tribunal hearing remained on attempting to effectively renegotiate the terms of the Training Order which had been appropriately imposed by the Committee rather than complying with it.
[133] The Tribunal accepted that Ms Mason ultimately undertook the course, but that was against the background she was facing the Tribunal hearing (and decision) and in the knowledge the Committee was seeking an order for suspension.
[134] Mr Bain submitted that the Tribunal only made reference to other cases, including Hong, after it considered all relevant matters. In Hong, Mr Hong had failed to comply with an order to attend a continuing legal education seminar.18 He unsuccessfully sought to review the Committee’s decision. Mr Hong was found guilty of misconduct and suspended for 10 months. On appeal, Gilbert J replaced it with a suspension of four months (that being the period of time that Mr Hong had already been suspended for by the time the decision was delivered). The Judge considered that to be a sufficient penalty in all the circumstances. Relevantly, Gilbert J noted:
[41] While I hesitate to interfere with a decision made by the Tribunal given its considerable experience and specialist expertise in this area, I have come to the conclusion that the penalty imposed on Mr Hong was excessive in all of the circumstances and cannot stand. Although Mr Hong should have complied with the Committee’s orders, his failure to do so is partly explained by the fact that he did not agree with the Committee's determination and wished to challenge it. He did not act sufficiently promptly and as a result his review rights were lost. By the time of the penalty hearing, Mr Hong had paid the fine and the costs and had viewed the webinars. Taking into account the penalties imposed in other cases where orders were not complied with, Mr Hong’s penalty of 10 months’ suspension from practice is disproportionately severe. The disparity cannot be justified by Mr Hong’s disciplinary history.
18 Hong v Auckland Standards Committee No 3, above n 12.
[135] I note that Mr Hong (unlike Ms Mason) had a disciplinary history which made his case more serious and warranted a more substantial penalty.
[136] In Auckland Standards Committee 4 v Kennelly and Auckland Standards Committee 2 v Burton,19 suspensions of two months were imposed. In Kennelly, the practitioner had a lengthy disciplinary record. In Burton, the practitioner had failed to comply with an order to distribute an estate and then failed to respond to enquiries from the Standards Committee. The practitioner’s clients were directly affected.
[137] Mr Mijatov noted that in Australia, censure or “reprimand” has been accepted as “a serious matter” and “not a slap on the wrist”.20 Against that, as Gilbert J observed in Hong, the guidelines promulgated by the Bar Tribunals and Adjudication Service in England and Wales anticipate short periods of conditional suspension for failure to comply with any part of a disciplinary order.21
[138] Each case must of course turn on its facts. In Ms Mason’s case, it is necessary to emphasise that practitioners must comply with orders of the Standards Committee and that it is not open for the practitioner to effectively seek to negotiate a different or, from their point of view, more appropriate outcome. That is what the LCRO process is for.
Decision
[139] Ultimately, I consider that while suspension was necessary, three months was an excessive penalty having regard to the gravity of Ms Mason’s conduct overall, her personal history and her professional obligations. I consider the need to reinforce the importance of complying with orders of the Standards Committee can be met by a short term of suspension of one month. A one-month suspension makes the point that practitioners must comply with such orders, but will reduce the impact on Ms Mason personally, and on her clients generally. To assist Ms Mason to organise her commitments, the order for suspension is deferred to commence 1 August 2025.
19 Auckland Standards Committee 4 v Kennelly [2022] NZLCDT 46; and Auckland Standards Committee 2 v Burton, above n 15.
20 Prothonotary of the Supreme Court of New South Wales v Chapman CA NSW CA40101, 14 December 1992.
21 Hong v Auckland Standards Committee No 3, above n 12, at [30].
The costs appeal
[140]Ms Mason also challenges the cost awards.
[141] An appellate court should only interfere in the exercise of the Tribunal’s discretion as to costs if the costs can be shown to be wrong in principle.
[142] On my review of the quantum of the costs in this case, and given the background to this matter, I consider it cannot be said the costs award to be unreasonable. The Tribunal was exercising a discretion when it fixed costs. Ms Mason has not been able to demonstrate any error, let alone an error of the kind that would justify this Court interfering with the discretionary costs award made by the Tribunal.
Result
[143]The appeal against the liability decision of the Tribunal is dismissed.
[144]The appeal against the decision not to adjourn the penalty hearing is dismissed.
[145] The appeal against the imposition of a suspension of three months is allowed. The period of suspension is reduced to one month. The suspension is to apply from 1 August 2025.
[146]The censure stands.
[147]The challenge to the costs awards in the Tribunal is dismissed.
Costs
[148] At the request of counsel, I reserve the issue of costs. If the parties are unable to agree, costs can be dealt with by way of an exchange of memoranda which are to be referred to me.
Venning J
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