McConnor v New Zealand Law Society
[2025] NZHC 1727
•27 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-001224
[2025] NZHC 1727
BETWEEN JAMES MCCONNOR
Appellant
AND
NEW ZEALAND LAW SOCIETY
Respondent
Hearing: On the papers Appearances:
Appellant in Person
P Collins for the Respondent
Judgment:
27 June 2025
JUDGMENT OF WALKER J
[Re: Application for leave to appeal]
This judgment was delivered by me on 27 June 2025 at 3 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Counsel:
P Collins, Barrister, Auckland
Copy to:
J McConnor, Auckland
MCCONNOR v NEW ZEALAND LAW SOCIETY [2025] NZHC 1727 [27 June 2025]
[1] In my judgment dated 8 April 2025, I dismissed Mr O’Connor’s appeal against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) declining his application to be restored to the roll.1 He now seeks leave to appeal to the Court of Appeal and alternatively, to recall my judgment.
[2] The respondent, the New Zealand Law Society (NZLS), opposes leave. The parties consented to a determination on the papers.
Relevant principles
[4] Leave for a second appeal is required by s 254 of the Lawyers and Conveyancers Act (the Act) which provides:
254 Appeal to Court of Appeal on question of law
(1)Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 56 of the Senior Courts Act 2016 applies to any such appeal.
(2)In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision
…
[3] Although s 254(2) is directed at the approach to be taken by the Court of Appeal, the approach of this Court is essentially the same. The well-established principles relating to leave to bring second appeals apply.2
[4] Accordingly, an applicant must raise one or more questions of law capable of bona fide and serious argument, and the case must involve some interest, public or
1 McConnor v New Zealand Law Society [2025] NZHC 828.
2 See for example Morahan v Wellington Standards Committee No 2 [2018] NZHC 1583 at [13]- [14]; Deliu v National Standards Committee [2018] NZHC 2873 at [11]; Hong v Auckland Standards Committee No 5 [2020] NZHC 1572 at [3]; Reid v New Zealand Law Society [2024] NZHC 411 at [4].
private, of sufficient importance to outweigh the cost and delay of a further appeal.3 Ultimately, the question is whether granting leave is in the interests of justice.4
Mr McConnor’s proposed appeal
[5] Mr McConnor argues that the judgment contains multiple errors of law which distort the statutory framework for reinstatement and expose systemic issues within the legal profession’s disciplinary processes. He advances five grounds in his leave application, each of which raises inter-related sub-grounds. Broadly, Mr McConnor says that the Court erred by:
(a)undertaking a retrospective approach unduly focused on past misconduct rather than the required prospective assessment of his current suitability for practice;
(b)improperly admitting and relying on the earlier disciplinary judgments against him contrary to s 50 of the Evidence Act 2006 (EA);
(c)failing to conduct a de novo hearing as expressly required by s 253(3) of the Act;
(d)failing to engage with or consider conditional reinstatement under s 246(1) and (3) of the Act; and
(e)failing to overturn the Tribunal’s refusal to hear viva voce evidence in chief which amounted to a fundamental breach of procedural fairness.
[6] In addition, Mr McConnor also argues that the combination of these factors result in a breach of his right to natural justice pursuant to s 27(1) New Zealand Bill of Rights Act 1990 (NZBORA).
3 Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Hong v Auckland Standards Committee No. 5,
above n 2, at [8].
4 Deliu v National Standards Committee of New Zealand Law Society [2015] NZCA 399 at [18(c)].
[7] The NZLS contends that no genuine errors of law are posed by the submissions of Mr McConnor and to the extent legal as opposed to factual issues are raised, none warrants the granting of leave to appeal. It seeks that the application be dismissed.
A retrospective approach?
[8] Under this ground Mr McConnor repeats his submissions made on appeal. I accept that what constitutes the proper statutory test under s 55(1) of the Act raises a question of law. But the test is well-established. As the NZLS submits, there is no unsettled, contradictory or otherwise controversial aspect to the law in this area. It is apparent that whether past conduct remains relevant at all is a fact-specific enquiry involving consideration of all the evidence in the round.5
[9] I see Mr McConnor’s real challenge as being to how I applied that well-established test, principally the weight I accorded to the events leading to his striking off versus the weight accorded his “unblemished” record since 2010.
[10] My judgment acknowledges the prospective nature of the test and explains the relevance of the events leading to Mr McConnor’s striking off. I said that a forward- looking assessment does not start with a clean sheet uninformed by the past — the assessment must relate to the events which led to the application for restoration because that frames the inquiry. Further that the Tribunal in Mr McConnor’s case correctly articulated the exercise as one of weighing character in relation to the matters where that character was found wanting in the past. Finally, that the reasons for and circumstances surrounding his striking off are germane to the very inquiry the Tribunal must undertake in determining the question of restoration.
[11] Since this was a factual assessment, I am not satisfied that it raises a point of law that ought to be submitted to the Court of Appeal.
5 New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50. at [46]
The earlier disciplinary judgments and s 50 of the Evidence Act 2006
[12] Mr O’Connor argues that the 2010 judgments provide context for the earlier disciplinary action only and not evidence capable of proving or disproving current status as a fit and proper person. His submissions in support of his leave application focus on the Tribunal’s alleged misconduct in admitting this material to unfairly prejudice him. I intend no disrespect when I say that Mr McConnor’s approach on this issue is internally inconsistent and difficult to grasp. On the one hand he argues that the evidence was irrelevant and ought not to have been admitted by the Tribunal. On the other hand, he asserts that this Court mischaracterised his objection as “resistance to the judgments being placed before the Court” when he was only opposed to their use as evidence to assess his present character. He further contends that the NZLS’s failure to address this error in its submissions supports his application for leave as it amounts to a deliberate attempt to evade judicial scrutiny of its reliance on “illegally and inadmissible adduced evidence”.
[13] I do not accept that this assertion is capable of bona fide serious argument. It was dealt with in the judgment in a manner consistent with the Court of Appeal’s decision in Attorney-General v Siemer.6 I recorded:
[15] Having had regard to the authorities and s 239(1), I find that s 50 of the Evidence Act is not engaged. The various disciplinary and court decisions were not put before the Tribunal to prove the existence of a fact in issue in the proceeding in which a decision was given. Rather, they provide an authentic and reliable record of decisions made in earlier disciplinary proceedings and are directly relevant to the Tribunal’s decision and to this Court on appeal. They show the reasons why Mr McConnor was struck off which are not (and cannot be) in dispute. Thus, they are not adduced to prove the truth of their contents. It would be wholly artificial to put those decisions to one side when the reasons for and circumstances surrounding his striking off are germane to the very inquiry the Tribunal must undertake in determining the question of restoration. I agree with Mr Collins’ submission on behalf of the NZLS that it would be perverse to constrain the decision-maker from knowing about the reasons for and circumstances surrounding Mr McConnor’s striking off.
(Footnotes omitted).
[14] Mr McConnor’s attempt at distinguishing that authority focuses on an immaterial “form” distinction rather than substance. In addition, I consider that he
6 Attorney-General v Siemer [2024] NZCA 435.
mischaracterises the use of the earlier decisions. They were not relied on as evidence of current status but rather as informing the nature of the insight required to assess whether Mr McConnor has shown himself to be a fit and proper person.
Failure to conduct a de novo hearing under s 253(3) of the Act
[15] Mr McConnor contends that I did not undertake an independent assessment of the evidence and merits but deferred to the findings of the Tribunal which constitutes a clear error of law. In particular, he submits that I elevated an exchange with the Deputy Chair of the Tribunal into a credibility finding which, in combination with the other grounds of appeal, demonstrates a review of the Tribunal decision rather than a fresh hearing.
[16] This ground raises a question of law, namely the approach under s 253(3) of the Act. However, it is not capable of bona fide and serious argument in my assessment. The requirement under s 253 is that there be a rehearing. As the Court of Appeal stated in Reid v New Zealand Law Society:7
A rehearing means the appeal court considers the issues that had to be determined in the proceeding below on the basis of the evidence appearing in the lower court’s record and does not mean there has to be a complete rehearing of the evidence, as is the case for example in a new trial. The appellant bears an onus of satisfying the appellate court that it should differ from the decision under appeal and, in discharging that onus, the appellant must identify the respects in which the judgment under appeal is said to be in error.
[17] Conscious that should I decline leave Mr McConnor is entitled to seek leave directly from the Court of Appeal, I pause to interpolate that had I found this ground capable of bona fide and serious argument I would accept it is of sufficient importance to warrant a further appeal.
7 Reid v New Zealand Law Society [2024] NZCA 399 at [50]. (Footnotes omitted).
Failure to consider conditional reinstatement under s 246(1) and (3) of the Act
[18] Mr McConnor argues that this constitutes a jurisdictional error in the exercise of a statutory discretion which also amounts to a ground for recall of the decision.8
[19]My judgment records:
[104] The Tribunal recorded in its decision that during the hearing Mr McConnor gave no hint of any plan other than to practise as a barrister on his own account, but after the hearing filed an email in which he said he had approached a law firm about the possibility of employment “just before the hearing”. It also noted that when asked in cross-examination whether he had a mentor to whom he could look for guidance should he be reinstated, Mr McConnor volunteered names of well-known practitioners though it transpired that he had not, at that point, sought their agreement to undertake such a role. The Tribunal was “unimpressed by a suggestion of support when there is none.”
[105] The Tribunal cannot be criticised for not considering conditional reinstatement given that Mr McConnor had exhibited a steadfast commitment to practise on his own account and, while open to the idea of supervision, had no pertinent plan in place.
(Footnotes omitted).
[20] The approach taken by Mr McConnor, both before the Tribunal and in the appeal, means that this intended ground of appeal does not amount to a question capable of bona fide and serious argument. If conditional reinstatement was to be seriously entertained as an option, then the proper course would have been for Mr McConnor to have proffered a clear plan for an alternative mode of practice in his application. He did not do so. At its highest, the most that he did was to declare himself open to “conditions”.
Failure to hear evidence in chief under s 239 of the Act
[21] Mr McConnor is critical of the finding that the Tribunal did not breach procedural fairness when it refused to hear oral evidence in chief.9 He says that he wished to contextualise the circumstances around his past misconduct between 2002
8 For clarification purposes, s 246(4) of the Act provides that any order under s 246(3) may impose the condition that the applicant must not practice as a solicitor or as a conveyancing practitioner on their own account, until authorised by the Disciplinary Tribunal to do so.
9 The NZLS reads this ground as limited to the Tribunal’s refusal to permit further evidence from a counsellor with whom Mr McConnor had recently engaged. I read it as much wider than that.
and 2008, to articulate his subjective experiences and demonstrate insight and personal growth. He describes the Tribunal’s procedural approach as egregious given that intent and the Tribunal’s subsequent criticism that he had failed to provide the very context and demonstrate such insight.
[22] On this issue, I found that the Tribunal did not err in declining to permit additional oral evidence of this nature because the hearing was not a re-hearing of the previous misconduct. As for the impact of cross-examination, the transcript notes that the Tribunal permitted Mr McConnor to offer clarification or further explanation at the end of his cross-examination.
[23] Mr McConnor describes this as a clear error of law and a fundamental misapplication of s 97(1) of the EA. He submits that arbitrary restriction of a litigant’s right to present viva voce evidence in disciplinary proceedings is a significant matter of public importance eroding the integrity and fairness of such processes.
[24] For the reasons given in the judgment, I consider that the Tribunal was entitled to limit evidence in chief to the multiple affidavits filed and decline to hear further oral evidence in chief. There was no suggestion that the intended evidence was fresh. There is also nothing in s 239(2) of the Act which requires oral testimony. The suggestion of a breach of natural justice overlooks all the opportunities to file written evidence. It follows that this issue, although potentially raising a question of law, does not meet the standard for a second appeal.
[25] I also found it unsurprising that the Tribunal did not permit Mr McConnor an indulgence of one week to produce a report from a counsellor with whom he had recently engaged. The proposed evidence was speculative in a context where Mr McConnor had only engaged with the counsellor twice prior to the hearing; there was no certainty around timing and no indication he was even prepared to provide a report.
[26] In conclusion, for the reasons given, I do not consider that the intended appeal raises questions of law that, by reason of general or public importance or for any other reason, ought to be submitted to the Court of Appeal. Nor am I satisfied that the
hearing of a second appeal in the interests of justice. I am of course conscious of the importance to Mr McConnor. That goes without saying. That does not however justify granting leave as it is insufficient to meet the well-established test. That test is intended to set up guardrails limiting second appeals to worthy arguments with the added protection being a right to seek leave directly from the Court of Appeal.
Recall of the judgment
[27] Mr McConnor relies in the alternative on r 11.9 of the High Court Rules 2016. He argues that the multiple substantive errors mean that there has been a significant miscarriage of justice.
[28] This application fails because the stated grounds for recall do not fit within any of the established categories10 and the jurisdiction is not for the purpose of correcting substantive error. For that reason, I do not accept the submission that the cumulative effect of the pleaded errors constitute a miscarriage of justice and a “very special reason” for recall.
[29]The application for leave is declined.
............................................................
Walker J
10 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
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