McConnor v New Zealand Law Society
[2025] NZHC 828
•8 April 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 828
BETWEEN JAMES JOHN MCCONNOR
Appellant
AND
NEW ZEALAND LAW SOCIETY
Respondent
Hearing: 2 October 2024 Appearances:
Appellant in Person
P Collins for the Respondent
Judgment:
8 April 2025
JUDGMENT OF WALKER J
This judgment was delivered by me on 8 April 2025 at 2.30 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 828 [8 April 2025]
Introduction
[1] Twelve years after Mr McConnor was struck off the roll of barristers and solicitors by an order of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal), he unsuccessfully applied to be restored.1 He now appeals against the Tribunal’s refusal to reinstate him so that he could practise as a barrister on his own account. He seeks an order quashing the decision of the Tribunal, restoration to the roll and reversal of the costs order against him.
[2] The respondent, the New Zealand Law Society (NZLS), opposes the appeal. It contends that the Tribunal correctly found Mr McConnor to lack the qualities of insight and moral restoration to safely allow him to be restored.
[3] The crux of the appeal is whether the Tribunal applied the correct principles under the Lawyers and Conveyancers Act 2006 (the Act), or fell into error by, among other things, disproportionately focussing on past wrongdoing.
Background
Chronology of regulatory process
[4] There is a relatively complex procedural backdrop to the disciplinary proceedings against Mr McConnor reflecting the number and type of charges and appeals.
[5] Mr McConnor, then known as John Dorbu, was admitted in Auckland on 29 September 2000 and began practising as a barrister sole on 8 November 2000.2
[6] On 8 June 2010, the Tribunal made findings of misconduct on 11 out of 12 charges.3 On 10 September 2010 Mr McConnor was struck off under
1 McConnor v New Zealand Law Society [2024] NZLCDT 13 (16 May 2024) [Tribunal Decision].
2 I intend to refer to Mr McConnor throughout by his current appellation.
3 Auckland District Law Society v Dorbu [2010] NZLCDT 9 (8 June 2010) [Liability Decision].
s 244(2) of the Act and s 112(2) of the Law Practitioners Act 1982 (LPA) following a penalty hearing at which Mr McConnor did not appear.4
[7] On 11 May 2011, the High Court set aside one of the charges and the penalties.5 The other misconduct findings of the Tribunal were upheld. The Court directed that the set aside charge (charge 1) be remitted back to the Tribunal for amendment and determination should the Auckland District Law Society (ADLS) decide to pursue that charge. It also directed the Tribunal to rehear the issue of penalty.
[8] The rehearing of penalty resulted in Mr McConnor being struck off.6 Charge 1 was subsequently withdrawn with leave of the Tribunal. Mr McConnor did not appear at this hearing either.
[9] Mr McConnor appealed the penalty determination. The High Court dismissed his appeal on 2 April 2012.7
Preliminary challenge – s 50 Evidence Act 2006
[10] One of Mr McConnor’s grounds of appeal is that it was impermissible for the Tribunal (and for this Court on appeal) to use, as evidence, the various historical Tribunal, High Court and Court of Appeal decisions concerning his wrongdoing and strike-off. He maintained that the Tribunal’s regard to them in the course of determining his restoration application was therefore improper. Mr McConnor advanced this argument in reliance on s 50 of the Evidence Act 2006. He advanced the same argument before the Tribunal. It is convenient to deal with this ground of appeal at the outset since what follows depends on the outcome of this challenge.
[11]Section 50 of the Evidence Act provides:
4 Auckland District Law Society v Dorbu [2010] NZLCDT 25 (10 September 2010) [Penalty Decision].
5 Dorbu v The Lawyers and Conveyancers Disciplinary Tribunal & Anor, HC Auckland, CIV-2009- 404-7381, 11 May 2011 [Judicial Review Judgment].
6 New Zealand Law Society v Dorbu [2011] NZLCDT 24 (30 September 2011) [Second Penalty Decision].
7 Dorbu v New Zealand Law Society (No 2) [2012] NZHC 564. [Penalty appeal].
50 Civil judgment as evidence in civil or criminal proceedings
(1)Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given.
(1A) Evidence of a decision or a finding of fact by a tribunal is not admissible in any proceeding to prove the existence of a fact that was in issue in the matter before the tribunal.
(2)This section does not affect the operation of—
(a)a judgment in rem; or
(b)the law relating to res judicata or issue estoppel; or
(c)the law relating to an action on, or the enforcement of, a judgment.
[12] The recent judgment of the Court of Appeal in Attorney-General v Siemer8 discussed s 50 in the context of an application for an order under s 166 of the Senior Courts Act 2016 (order restricting commencement or continuation of proceeding). The Court found that the judgments adduced in the application were adduced as an authentic and reliable record of relevant earlier proceedings and as such s 50 of the Evidence Act did not apply.9 The Court also discussed admissibility of past judgments in the professional disciplinary context.10
[13] In Deliu v National Standards Committee of the New Zealand Law Society, the Court of Appeal said that whether judgments can be used as evidence in disciplinary proceedings depends on the use the judgments are being put to in the particular case.11 The Court said it was well-established that a tribunal is “not entitled to determine that facts in issue are proved by accepting without inquiry the findings of another court or tribunal as to the existence of those facts.”12 However, the Court found that judgments
8 Attorney-General v Siemer [2024] NZCA 435.
9 At [3] and [61].
10 At [45]–[49] and [62]–[64]. The Court referred to Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-7381, 11 May 2011 in which Brewer J did not regard use of judgments as infringing s 50 of the Evidence Act 2006. The Court also mentioned Deliu v National Standards Committee [2014] NZHC 2739 in which Thomas J affirmed the admissibility of judgments as evidence in the circumstances .
11 Deliu v National Standards Committee of the New Zealand Law Society [2015] NZCA 399.
12 At [34].
in proceedings that were the subject of the practitioner’s complaints were relevant to the disciplinary charges and therefore admissible.13
[14]Section 239(1) of the Act provides:
239 Evidence
(1) Subject to section 236, the Disciplinary Tribunal may receive as evidence any statement, document, information, or matter that may, in its opinion, assist it to deal effectively with the matters before it, whether or not that statement, document, information, or matter would be admissible in a court of law.
[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.14 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.
Nature of the charges
[16] A description of the nature of the charges is conveniently set out in the affidavit of Dino Bohinc, filed by the NZLS in opposition to the application for restoration. Mr Bohinc is a solicitor in the Professional Standards (Regulatory) division of the NZLS.
13 At [35].
14 McGuire v Central Standards Committee 3 [2023] NZHC 242.
[17] While the first charge was set aside on judicial review and not ultimately pursued, it forms part of the narrative to explain how Mr McConnor now comes before this Court and so I include it in this summary.
[18] Charge 1 asserted that Mr McConnor was “a party to a conspiracy by unlawful means”. The background events relating to this charge (and charges 2-7) are set out in a judgment of Priestley J in Barge v Freeport Development Limited (Barge litigation).15 The Tribunal’s finding of misconduct was set aside because the Tribunal had erroneously relied on findings of fact in the High Court Barge litigation when Mr McConnor was not a party to those proceedings. As noted, it was not ultimately pursued.
[19] Charge 2 asserted that between June and September 2002, Mr McConnor had wrongly acted as a conveyancing solicitor without an appropriate practising certificate. This was said to be in breach of s 56(2) of the LPA. The alleged nature of the work undertaken was certifying memoranda of transfer of a mortgage and of property for the purposes of the Land Transfer Act 1952 and lodging memoranda of transfer and of mortgage with the Registrar-General of Land — tasks reserved for those admitted as solicitors. The essence of this charge required an assessment of whether, taking into account all the particulars, Mr McConnor had involved himself in solicitor’s work to the extent that he was acting as a solicitor.16 The Tribunal found an element of deliberate and wilful conduct going beyond the use of standard forms.
[20] Charge 3 concerned a breach of r 1.04 of the Rules of Professional Conduct for Barristers and Solicitors17 (the Rules) by acting for multiple parties in the same transaction between January 2002 and November 2006. The events related to charge 1 in that Mr McConnor acted for the mortgagor, the mortgagee and the purchaser in a property transaction. The Tribunal found that “…there were irreconcilable conflicts between the clients for whom [Mr McConnor] acted”.18 The
15 Barge v Freeport Development Limited HC Auckland CIV-2002-404-1771, 27 October 2005.
16 [Judicial Review Judgment] above n 5 at [54].
17 These rules are now found within the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 which came into force on 1 August 2008.
18 [Liability Decision], above n 3, at [113].
Tribunal considered that misconduct in a professional capacity had been clearly established.
[21] Charge 4 concerned breach of r 8.01B of the Rules which provided that a practitioner shall not knowingly fail to discover a relevant document. This related to affidavits sworn by Mr McConnor on 5 June and 16 September 2003, in the context of a non-party discovery application in the Barge litigation. The Tribunal found the affidavits to be false because they omitted identified documents.
[22]In the Liability Decision, the Tribunal recorded:
[134] There can be no doubt that [Mr McConnor] knew that these particular documents existed and were relevant to, and covered by, the orders for discovery. If he no longer had them in his possession because, as he says, he had sent the file to Freeport’s solicitors in the particular circumstances he should have identified them by reference, whether he thought they might be covered by privilege or not.
…
[136] The Tribunal is satisfied that [Mr McConnor] failed to honour his duty to the court. Indeed, his own evidence indicated that he did not recognise nor understand his duties to the court and obligations as counsel. As in respect of a number of the other charges and indeed his own defence of the charges before this Tribunal, [Mr McConnor] displayed an alarming lack of understanding of the role of counsel, and a perverse attitude to the primacy of his clients’ best interest.
[23] On appeal, the High Court found that Mr McConnor’s failure to disclose the discoverable documents was deliberate and intended to protect his own position.
[24] Charge 5 concerned breach of the no contact rule under r 6.02. This rule provided that it is only in very exceptional cases that a practitioner should communicate either directly or in writing with the client of another practitioner in relation to a matter in which the practitioner is, or has previously been, dealing with the other practitioner.
[25] Mr McConnor wrote to the opposing litigant directly in or about June 2002, knowing that he was represented by a firm of solicitors. The Tribunal found this was
a blatant breach constituting misconduct.19 As Brewer J put it in the Judicial Review Judgment, this communication to the opposing litigant was:20
…an attempt to persuade Mr Barge that his solicitors were acting in error and were exposing him to legal risk. It was improper no matter how it is viewed.
[26] Charge 6 concerned a breach of r 6.01 of the Rules which required practitioners to promote and maintain proper standards of professionalism in relations with other practitioners. The genesis of this charge was Mr McConnor’s response to the complaint arising from the breach in charge 5. Responding to the complaint, Mr McConnor disparaged the litigant’s lawyers in language which the Tribunal found to be “…a particularly insulting attack on fellow practitioners”.21
[27] Charge 7 concerned a breach of r 8.01 by knowingly swearing and filing a false affidavit. Mr McConnor was found to have falsely sworn that he had caused a mortgage default notice to be served on a caveator at his personal address – information which Mr McConnor must have known was false. The Tribunal found that he intended to mislead the Court about the service of the notice.22
[28] Charges 8 and 10 did not relate to the Barge litigation.23 Charge 8 concerned the filing of an application and an affidavit in Court which attacked the integrity of a fellow practitioner, contrary to r 8.04. Mr McConnor wrongly accused the fellow practitioner of improperly acting in a conflict of interest and in breach of his fiduciary duties. The Tribunal found as a matter of fact that Mr McConnor had reason to know that the allegations he made were wrong yet still deliberately attacked the reputation of a fellow practitioner.
[29] Charge 10 related to the giving of misleading answers in an affidavit dated 18 December 2007, responding to interrogatories (a breach of r 8.01). The catalyst was a judicial complaint against Mr McConnor and the referral of the Barge decision by the trial Judge to the ADLS. Asked by way of interrogatories whether any
19 [Liability Decision], above n 3, at [141].
20 [Judicial Review Judgment], above n 5, at [65].
21 [Liability Decision], above n 3, at [143].
22 At [152].
23 Charge 9 was dismissed as duplicative.
complaints had been made against him “…by, or on behalf of, any member of the judiciary”, Mr McConnor answered “Yes, the ADLS Committee reviewed and dismissed the complaint”. That answer was untrue since the referral (or complaint) by the trial Judge was still before the ADLS Complaints Committee and although the other judicial complaint was not taken further, the Complaints Committee had found it justified.
[30] The Tribunal found that this was misconduct involving dishonesty.24 In the Judicial Review Judgment, the Court said that it would have been open to the Tribunal to find that this occurred in circumstances of “muddlement” and lack of due care rather than dishonesty, but the dishonesty finding was reasonably open to it.25
[31] Charges 11 and 12 are described by the NZLS as the “judiciary charges”. They relate to breaches of rr 10 and 13.2 — the former requiring a lawyer to promote and maintain proper standards of professionalism, and the latter requiring a lawyer not to act in a way that undermines the processes of the court or dignity of the judiciary.
[32] The charges related to an email sent by Mr McConnor to the case manager of the Tribunal in which he accused a judge of the High Court of being “…a racist Judge and his decision against me in my absence is couched in racial bigotry.”26 The second instance was another email to the case manager in which he repeated those allegations and added that the judge had “…perjured himself”.27 Mr McConnor subsequently withdrew his allegations and apologised to the Judge. The Tribunal described these emails as examples of undermining of the system by failure to uphold these professional standards and as a very serious matter.
[33] Nine days after the final hearing day of the liability charges before the Tribunal, Mr McConnor sent a letter to a law firm which Auckland Standards Committee No. 3 found to have included:28
24 [Liability Decision], above n 3, at [159]–[161].]
25 [Judicial Review Judgment], above n 5, at [102].
26 [Liability Decision], above n 3, at [61].
27 At [63].
28 Notice of Determination of the Auckland Standards Committee No. 3, dated 1 June 2010.
…inappropriate and intemperate language in his communications following settlement of the matter. He breached Rules 2.7 and 10.1 in (i) threatening criminal conspiracy proceedings against each partner of the firm when he had no evidence to believe this was appropriate…and (ii) inappropriately seeking to place the firm in a position of conflict where he wanted them to place pressure on their own client in order to avoid the proceeding threatened against them personally.
[34]Mr McConnor was ordered to pay a fine of $5,000 and costs of $1,000.
[35] A further matter referred to by Mr Bohinc in his affidavit and also discussed in the Tribunal’s Liability Decision, concerns a misleading statement in an application on 11 February 2009 to the Supreme Court of Queensland under the Trans-Tasman Mutual Recognition (Queensland) Act 2003. The Tribunal’s Liability Decision recorded that Mr McConnor had referred to the disciplinary proceedings yet to be determined by the Tribunal in the past tense. The Tribunal found that the use of the past tense and failure to disclose that the disciplinary proceedings were unresolved, “demonstrates either [Mr McConnor’s] lack of appreciation of the need for scrupulous honesty in dealings with the court and his profession, or worse demonstrates flagrant dishonesty”.29
Tribunal Decision under appeal
Application grounds
[36] Mr McConnor applied for reinstatement on 7 December 2023. His application asserted, among other things, his inherent good character despite being struck off the roll in 2010 due to “professional misjudgements in the early years of his practice”. He maintained that he has since taken measures to address the underlying causes of this disciplinary action.
[37] In his first supporting affidavit,30 Mr McConnor set out his educational attainment and response to the gravity of his disbarment. He referred to the period of hardship and significant professional and social challenges which led him to expend
29 [Liability Decision], above n 3, at [170].
30 Affidavit of James John McConnor in support of restoration to the roll of barristers and solicitors sworn 7 December 2023.
efforts to serve the community and demonstrate humility by starting a car valet service. He described impactful interactions with political and spiritual leaders, active participation in church life (which he considers contributed to his integrity and empathy) and the impact of his removal from the roll on his family life, including financial struggles, separation from his wife and the tragic loss of his daughter.
[38] I pause to record that the significant consequences of the disciplinary proceedings and deleterious impact on him personally and on his family are not doubted.
[39] In terms of insight and reflection on the disciplinary matters, Mr McConnor deposed, in part:
…I recognize (sic) the validity of the Tribunal’s findings regarding the charges against me, as detailed in their decision dated 22 September 2011. Reflecting on these charges, I now understand the serious nature of my actions and their impact on the legal profession.
…I realize (sic) my resistance to the charges was misguided. In hindsight, I should have acknowledged my wrongdoings and sought a more constructive path towards resolution.
…I failed to appreciate the gravity of my responsibilities as a legal practitioner, particularly in ensuring accuracy in communication and exercising foresight.
…I accept responsibility for my actions in relation to the various charges, including conflicts of interest, false affidavits, and improper communication with another practitioner’s client. These actions were indefensible and demonstrated a lack of professional judgment and respect for my peer.
[40] Mr McConnor then set out a list of steps he has taken towards improvement including professional development and concluded with an apology to the Tribunal, the Law Society and all affected parties.
[41] In a second affidavit,31 Mr McConnor exhibited character references to support his application; from his parish priest and clients of his car valet business. He also provided context for his application to the Supreme Court of Queensland, deposing that, due to a miscommunication with his legal counsel, he had been under the
31 Second affidavit of James John McConnor in support of restoration to the roll of barristers and solicitors sworn 8 March 2024.
impression that charges against him had been dismissed. He says this is why he referred to the charges in the past tense but now recognises this was a significant error of judgment.
[42] He also deposed to maintaining engagement with the legal profession through legal research, managing court proceedings (which I apprehend to be litigation in which he is a party) and interactions with senior practitioners. He stated that he remains open to any mentorship opportunities or practice review processes required by the Law Society.
[43] In a third affidavit filed three days before the Tribunal hearing,32 Mr McConnor summarised his rehabilitation efforts and “mitigating circumstances” related to those efforts. He noted that the disciplinary charges led to a complete cessation of his legal work as solicitors withheld instructions from him, impacting his ability to meet his financial commitments and ultimately leading to being adjudicated bankrupt in 2010. This financial difficulty eventually led to the breakdown of family relationships. He deposed that the personal challenges he faced at the time prevented him from presenting a plea in mitigation at the original Tribunal penalty hearing which he now wished to offer.
[44]Mr McConnor stated:
(a)He acted to protect others in most of the circumstances leading to the charges but was too stressed to seek advice or to protect himself.
(b)He was too concerned for others to see a potential and actual conflict of interest.
(c)He had written apologies to the member of the judiciary and to the solicitor whose complaints led to some of the charges.
32 Third affidavit of James John McConnor in support of restoration to the roll of barristers and solicitors sworn 7 May 2024.
(d)He did everything he could to protect not only the client he was acting for but also to ensure that vulnerable third parties were not taken advantage of in the matter, but in hindsight would not have accepted that brief without a New Zealand resident instructing solicitor.
(e)He has sought and received ongoing support to enable him to address lack of emotional control and inaccuracies in communication.
(f)After deep reflection, he concluded that the alternative areas of practice in which he proposed to re-enter the legal profession would be as a duty solicitor and in minor criminal practice at a lower end of the Criminal Legal Aid scheme.
(g)He was open to any conditions the Tribunal might wish to impose for reinstatement.
[45] Additionally, in this affidavit Mr McConnor signalled that he would seek name suppression (in the eventual restoration decision of the Tribunal) to avoid damaging business relationships which he has formed over the last years.33
[46] I pause to note that the Tribunal Decision recorded that the panel had pointed out that it would create problems for him if he were permitted to be enrolled but no-one was to be allowed to know the identity of the person and that Mr McConnor consequently withdrew that application.34
Decision
[47] The Tribunal declined Mr McConnor’s application for restoration to the roll.35 It began by noting that Mr McConnor is intelligent, articulate and well-educated and
33 Mr McConnor did not address the issue of name suppression at the hearing. I sought clarification of his position on releasing the judgment to the parties and before publication of the judgment more widely.
34 [Tribunal Decision], above n 1, at [25]. There appeared to be no discussion at the hearing of the status of such an application in the event that the Tribunal does not restore his name to the roll.
35 At [35].
has never offended against the criminal law. Nor has any client complained about his legal work.
[48] It acknowledged the legislative test for restoration, namely that the Tribunal may order that his name be restored if satisfied that he is a fit and proper person to practise as a barrister.36 The Tribunal noted that being struck off does not preclude the possibility of reinstatement and that the assessment is forward-looking.37 It cited the most relevant and relevant Supreme Court decision, New Zealand Law Society v Stanley and said:
[8] Thus, there is no scope for punitive response or closed-mindedness in our task. A person with past blemishes should not be deprived from re- enrolment if they can be assessed as having regained a good character. Such a person will not pose a risk to the public, nor will their re-enrolment undermine public confidence in the profession.
[9] Mr McConnor asks us to give him the chance to prove himself. But we cannot experiment. To do so would not be a proper exercise of our duty. There is no mechanism to retrieve the position if our assessment proves wrong. Simply put, we must either arrive at the confident view that Mr McConnor meets the required standard that he can be entrusted to meet the duties and obligations imposed on those who practise as lawyers, or not.
[49] The Tribunal found that Mr McConnor had not discharged his burden but fell well short of satisfying it that he has adequately admitted and faced up to the factors that drove or permitted his past wrongdoing.38 It noted that, though a forward-looking task, it remained important to measure the present depth of shadow cast by previous wrongdoing.39 It rejected Mr McConnor’s submission that permitting admission of the various Tribunal, High Court and Court of Appeal decisions concerning his past wrongdoing offended s 50 of the Evidence Act 2006 such that assessment of his character should be conducted absent any knowledge of why he was struck off.40
[50] It found the various references submitted in support of Mr McConnor of value, but their force diluted by the fact that he failed to alert almost all of them to his
36 Lawyers and Conveyancers Act 2006, s 246(3).
37 [Tribunal Decision], above n 1, at [7], citing New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50.
38 At [26].
39 At [11].
40 At [12].
professional blemishes.41 It noted that the application was not supported by any lawyer and that, since he was struck off, there is nothing to show that he has been in comparable situations and resisted the temptation to conduct himself as he did then.42
[51] The Tribunal expressed concern about what it described as Mr McConnor’s “hubristic and intemperate” responses. These were said to be illustrated by the instances of disrespectful behaviour when he was practising and in a display of unwarranted reactive conduct on cross-examination before the Tribunal, which it found amounted to a pattern.43 The Tribunal said that his application lacked persuasive evidence that he has fronted up to his past wrongdoing and gained understanding of what caused him to err and how he will avoid repeating his errors.44 Instead, Mr McConnor “avoided and obfuscated” during the hearing instead of fronting up, instead putting his extensive and varied wrongdoing down to being an “inexperienced fool”.45
[52] The Tribunal also considered that Mr McConnor showed little comprehension of the public purposes underpinning the rules46 and that his approach to his application appeared to be “ad hoc or loose”; finding that he continues to lack candour by suggesting support from prominent people when there is none.47
[53]Summarising its findings, the Tribunal said:
[35] This is not a borderline case. No substantial basis has been demonstrated to move us from a neutral position to one that endorses Mr McConnor’s case. Having weighed all the material, we have moved to a position where we find it would be unsafe for the public and for the reputation of the profession to permit Mr McConnor, on this presentation, to be re- enrolled.
…
[37] Mr McConnor is in tight financial circumstances. Despite his intelligence and prior legal experience, he chose to act for himself. Although he has read relevant cases, he does not seem to have grasped the salience of matters raised unambiguously in opposition. Given that, his pursuit of this
41 At [15].
42 At [16].
43 At [20].
44 At [24].
45 At [25].
46 At [26].
47 At [30].
matter to a hearing was wrong-headed and he has put all lawyers to the expense of funding the opposition. We invite memoranda regarding costs …
Costs order
[54] The Tribunal made a costs order dated 24 May 2024 on the papers, requiring Mr McConnor to contribute $14,000 (approximately two-thirds of the costs contribution the respondent sought). Mr McConnor also appeals the costs order. The Tribunal’s reasons are encapsulated in the following paragraph:48
[6] The range of awards in these cases varies widely because the circumstances of each case also vary widely. Deobhakta, an applicant who behaved poorly, resulted in full compensation costs being awarded. Reid, which dealt with some novel issues, resulted in a modest award. Mr McConnor’s case presents as more straightforward: a poorly supported application, advanced by a litigant in person against the clear advice of NZLS as to what his application lacked.
…
[8] Mr McConnor asks us to consider what we might have done about costs if he had obtained legal aid. We decline to follow his speculative proposition. We deal with this on how it presents. Mr McConnor represented himself as he was entitled to do. That he says he is unable to pay costs is not a principle affecting costs awards which are designed to redress, to some extent, the balance between litigants where one has won and the other has lost. Mr McConnor’s view that he should not have to contribute to NZLS’s costs passes the financial burden to all practising lawyers who fund NZLS’s opposition. We think that is unfair.
Approach on appeal
[55] This is an appeal by way of re-hearing.49 It is subject to the principles in Austin, Nichols & Co Inc v Stichting Lodestar.50 This Court must consider the case afresh and come to its own conclusion, but it is for the appellant to persuade the Court that the Tribunal’s decision was wrong. It is for this Court to determine the regard to which it has to the specialist nature of the Tribunal. In doing so, the High Court on appeal will not be “blinded by the Tribunal’s specialist competency”, as Muir J put it
48 McConnor v New Zealand Law Society [2024] NZLCDT 14 (24 May 2024) [Costs Decision]. Footnotes omitted.
49 Lawyers and Conveyancers Act 2006, s 253(3)(a).
50 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141.
in Reid v New Zealand Law Society.51 On the other hand, it recognises the Tribunal’s experience in assessing character and forming the necessary judgments.
[56] Of relevance too is that the Tribunal had the advantage of hearing and seeing Mr McConnor under cross-examination at the hearing.
[57] The appeal of the costs decision is in a different category as costs orders made by the Tribunal are discretionary. To succeed in this aspect of the appeal, at least if the substantive appeal is not successful, the Court must be persuaded that the discretion was wrongly exercised.52
Grounds of appeal
[58] Mr McConnor’s amended notice of appeal raised nine grounds of challenge to the substantive appeal which were recast and expanded on in his extensive and wide-ranging written submissions.53 I distil these to the following interrelated grounds:54
(a)Undue focus on past misconduct and insufficient evaluation of current character, thereby failing to conduct a prospective assessment.
(b)Improperly punitive approach.
(c)Failure to consider positive evidence of good character and inadequate consideration to rehabilitative efforts indicative of reformed character.
(d)Lack of fresh evidence from the respondent and reliance on “spent misconduct.”
(e)Improper reliance on past factual findings in civil judgments contrary to s 50 of the Evidence Act 2006 (discussed above).
51 Reid v New Zealand Law Society [2023] NZHC 2370 at [43].
52 May v May (1982) 1 NZFLR 165 (CA).
53 Amended Notice of Appeal dated 9 July 2024.
54 The ground advanced in reliance on s 50 of the Evidence Act 2006 has already been discussed.
(f)Violation of categorical imperative by emphasising protection of the reputation of the legal profession at the expense of his personal growth and rehabilitation.
(g)Unfair hearing procedure by refusing evidence-in-chief from the appellant to provide context for the circumstances of past charges but permitting cross-examination on those charges.
[59] As noted, Mr McConnor expanded on and added to these grounds at the hearing including a submission alleging racial bias and implicit elitism in “dismissal” of his referees who are not lawyers. His submissions referred to the works of a large number of philosophers and theologians. It also included empirical evidence of a pattern of systemic barriers, prejudice and bias hindering professional advancement and equal treatment of those with African heritage within European dominated professions.
Applications for restoration — legal principles
[60] The Tribunal’s jurisdiction to make orders restoring a person’s name to the roll arises under s 246 of the Act. The essential test is whether the applicant demonstrates that they are a fit and proper person to practise as a barrister or as a solicitor or as both.55
[61] I accept Mr Collins’ submission that the matters relevant to the inquiry into an applicant’s status as a fit and proper person for restoration are similar to those that can be taken into account for the purpose of determining whether a person is fit and proper to be admitted to the roll.56
[62] The majority judgment of the Supreme Court in New Zealand Law Society v Stanley (in the analogous context of admission to the roll) stated the relevant principles as:57
55 Lawyers and Conveyancers Act 2006, s 246(3).
56 Section 55(1) of the Act prescribes relevant matters that can be taken into account for the purposes of determining whether a person is fit and proper to be admitted to the role.
57 New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50 at [54]. These principles noted by the majority were approved by the minority at [105].
(a)The purpose of the fit and proper person standard is to ensure that those admitted to the profession are persons who can be entrusted to meet the duties and obligations imposed on those who practise as lawyers.
(b)Reflecting the statutory scheme, the assessment focusses on the need to protect the public and to maintain public confidence in the profession.
(c)The evaluation of whether an applicant meets the standard is a forward-looking exercise. The Court must assess at the time of the application the risk of future misconduct or of harm to the profession. The evaluation is accordingly a protective one. Punishment for past conduct has no place.
(d)The concept of a fit and proper person in s 55 [of the Act] involves consideration of whether the applicant is honest, trustworthy and a person of integrity.
(e)The fit and proper person standard is necessarily a high one, although the Court should not lightly deprive someone who is otherwise qualified from the opportunity to practise law.
(f)The onus of showing that the standard is met is on the applicant. Applications are unlikely to turn on fine questions of onus.
[63] In turn, these principles must be considered in light of the statutory scheme.58 The overarching purposes of the Act are the starting points. In particular:
(a)the statutory purpose to maintain public confidence in the provision of legal services and to protect the consumers of those services;59 and
(b)the fundamental obligation of every lawyer to “uphold the rule of law and facilitate the administration of justice in New Zealand”.60
58 New Zealand Law Society v Stanley, above n 56, at [6]–[7] and [35].
59 Lawyers and Conveyancers Act 2006, s 3(1)(a) and (b).
60 Lawyers and Conveyancers Act 2006, s 4(a).
[64] Other relevant matters for consideration when assessing the fit and proper standard required for former lawyers applying for restoration include:
(a)The applicant’s disciplinary history to determine whether they can be said to have fully and unambiguously acknowledged their wrongdoing and can confidently be said to have regained their earlier good character.61
(b)The applicant’s ability to identify the triggers that caused the wrongdoing and capacity to prevent occurrence.62
(c)The intended mode of practice if restored.63
(d)The knowledge of those providing character references.64 A reference from someone with insight into the applicant’s reform relevant to the sort of demands and pressures likely to be encountered in legal practice have more weight.
[65] Mr McConnor focused on concepts of redemption and forgiveness as being factors in the public interest and underscoring the “forward-looking exercise”. Illustratively he cited the principles identified by Kirby P in Law Society of New South Wales v Foreman (No 2):65
Because the jurisdiction is for the protection of the public, regard also may be had to the public’s interest in the restoration to the Roll of such persons as have demonstrated, including by their work, activities and life, a fitness to be restored. For cultural and historical reasons, redemption and forgiveness are important attributes of the shared morality of our society. In part, this is because of the teachings of religious leaders who have profoundly influenced our community’s perception of justice and fairness reflected from earliest times in the courts…
61 Reid v New Zealand Law Society, above n 51, at [33].
62 At [33].
63 Section 246(4) of the Act provides that the Tribunal may approve restoration on condition that the applicant (for restoration) must not practise on their own account until authorised by the Tribunal.
64 Twigley v New Zealand Law Society [2023] NZHC 3537 at [25]–[27].
65 Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 (CA) at 419, referred to in Leary v New Zealand Law Practitioners Disciplinary Tribunal [2008] NZAR 57 (HC) at [29].
The public’s interest also includes the economic interest which is involved in utilising to the full, the skills of talented people who have undergone years of rigorous training but who, having misconducted themselves, have had to be removed for a time from positions of responsibility and trust.
[66] I add that it is apparent that, while perfection is not required, the onus on a person who has erred in a professional sense after admission “is a heavier one than that upon an applicant for admission”.66 Further, that the assessment of fitness “must focus on protecting the public and profession”67 and the evaluation is objective, focusing on the “relevance of past conduct vis-à-vis professional standards, rather than being influenced by sympathy” for the applicant’s position.68
Mr McConnor’s case
[67] While Mr McConnor’s arguments were many and various, his overarching argument is that the Tribunal unduly focused on his past misconduct, did not adequately engage with the evidence of his rehabilitation and demanded an unreasonable level of confidence in his fitness. In addition, Mr McConnor advances multiple more discrete and interrelated challenges.
[68] Mr McConnor submitted that the Tribunal’s refusal to permit him to give evidence-in-chief about the context of the disciplinary charges, the lessons he had learned in retrospect and how he would deal differently with those circumstances in future, was procedurally unfair and breached s 27 of the New Zealand Bill of Rights Act 1990. He contended this refusal was material given the crux of the NZLS opposition to his restoration was that he had inadequately addressed the issues leading to his strike-off.69 He maintained that the evidence he intended to give was crucial to deal with his insight into past conduct. He was particularly critical that against that backdrop, the Tribunal permitted “selective” cross-examination by NZLS counsel. Additionally, Mr McConnor argued (in his submissions but not specifically pleaded) that the Tribunal’s refusal at the hearing to permit him to seek a written report from a counsellor was “overzealous proceduralism”.
66 New Zealand Law Society v Stanley, above n 57, at [54].
67 Lincoln v New Zealand Law Society [2019] NZCA 442 at [34(c)].
68 New Zealand Law Society v Stanley, above n 57 at [39].
69 Mr McConnor cited Re: Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR 662. He submitted, albeit faintly, that the Tribunal had no jurisdiction to exclude evidence even before hearing the applicant.
[69] Mr McConnor submitted that the Tribunal failed to give proper weight to the full range of public interest criteria, including positive evidence of character, rehabilitation efforts and the benefits to the public inherent in the concepts of forgiveness and redemption in the justice system.
[70] Relatedly, he argued that the Tribunal failed to take his intellectual capabilities and education into account in any meaningful way. He contended that education was a critical factor in rehabilitation in respect of improving a person’s perspectives and judgment. He highlighted that he had pursued further education since being stuck off (which included obtaining an MBA degree) demonstrating his commitment to self-improvement. Mr McConnor also submitted that the Tribunal overlooked the profound moral significance of his change of name.
[71] He argued that the Tribunal was punitively focused on past infractions rather than evaluating his current and potential future risk. He maintained it displayed a biased approach in ignoring the positive character references from respected members of the community and failing to take into account the absence of any evidence from the NZLS that he remained a risk to the public. He contended that the NZLS did not present any new evidence to indicate his ongoing risk to the community and that this lack of material subsequent to his strike-off illustrated the improper weight given to past misconduct.
[72] He contended that his past misconduct should be considered “spent” given those rehabilitation efforts and the passage of time without any wrongdoing (some 14 years since the Tribunal’s Liability Decision relating to conduct dating back to the period between 2002 and 2006). Under this head of challenge he also noted that there was no opposition to his restoration from the “legal profession” which was indicative of his successful rehabilitation, and that the Tribunal had itself previously acknowledged that his rehabilitation could be supported by attaching himself to senior counsel — highlighting the potential for conditional reinstatement under appropriate supervision.70
70 In the [Second Penalty Decision], above n 6, at [28] the Tribunal noted that had Mr McConnor attempted rehabilitation by perhaps observing senior counsel, the Tribunal may have been able to place some reliance on that.
[73] In an unpleaded sidewind, Mr McConnor faintly challenged the resolution of the NZLS Practice Approval Committee opposing his application for reinstatement. He argued that as a statutory body with delegated authority the NZLS had a duty to act fairly (towards those who are impacted by its decisions), yet in failing to take his views in account, it acted unfairly. However, since the application for restoration is made to the Tribunal and the NZLS is not a decision-maker but merely responds to the application, the argument is misconceived and need not be discussed further.
[74] Mr McConnor argued that the Tribunal’s failure to consider the possibility of conditional reinstatement under s 246(4) of the Act appeared to stem more from unfounded prejudices rather than concrete evidence. He argued that this option was neglected despite the signal by the Tribunal in its Second Penalty Decision that had he attached himself to senior counsel to learn from, that would amount to sufficient rehabilitation.71 He contended that this option would have addressed any residual concerns in a fair and measured way ensuring public protection while at the same time ensuring his fair treatment. Mr McConnor went so far as to suggest that the refusal to consider conditional reinstatement appeared to be influenced by implicit bias and potential racial discrimination.
[75] Mr McConnor criticised the Tribunal for prioritising the profession’s reputation and ignoring his personal growth and rehabilitation. In support he resorted, amongst other things, to Kant’s categorical imperative doctrine which he maintained implores recognition of the potential for human rehabilitation and the importance of treating individuals as ends in themselves. He submitted that this principle particularly supported conditional reinstatement.
As to costs
[76] Mr McConnor argued that awarding substantial costs against him for merely exercising his statutory right to apply for reinstatement is manifestly unjust and unfair, amounting to another punitive measure which contradicts the purpose
71 [Second Penalty Decision], above n 6, at [28]. In fact what the Tribunal actually said was, “… had he attempted rehabilitation in some form, perhaps by observing senior counsel or otherwise further educating himself, the Tribunal may have been able to place some reliance on that.”
of s 246 of the Act. He submitted that costs should not be awarded in a manner that deters individuals from exercising their legal rights or discouraging access to justice.72
[77] Finally, Mr McConnor submitted that the Tribunal’s decision to impose substantial costs despite his dire financial circumstances “could” be indicative of discriminatory practices because “actions speak louder than words, and no other explanation can justify the Tribunal’s treatment”.
NZLS Case
[78] The NZLS supported the Tribunal’s decision. Mr Collins submitted that the Tribunal properly applied the principles informed by the cases such as Stanley,73 Reid74 and Twigley75 in reaching its correct decision that Mr McConnor lacked the qualities of insight and moral restoration to safely allow him to be restored.
[79] He resisted the argument that s 50 of the Evidence Act precluded reference to the previous disciplinary decisions and noted that the Tribunal had not found this case to be a “borderline” case. He contended that the Tribunal’s determination was open to it on the evidence, particularly the finding that Mr McConnor had “avoided and obfuscated” about these past wrongdoings and appeared to be in denial.76 He also maintained that the “loose” nature of the application warranted the Tribunal’s criticism.
[80] In terms of the challenge relating to failing to consider conditional reinstatement, Mr Collins submitted that this was not open to the Tribunal since s 246(4) is limited to a condition that the person does not practise on their own account until authorised by the Tribunal to do so. It does not authorise restoration subject to an order requiring a person to practise “under supervision” where that person is otherwise authorised to practise on their own account. As Mr McConnor applied to
72 His submission cited two reported New Zealand cases. The first was unable to be located at that citation or through a search of name on the usual databases. The second was erroneously cited as it did not relate to costs but a criminal appeal.
73 New Zealand Law Society v Stanley, above n 57.
74 Reid v New Zealand Law Society, above n 51.
75 Twigley v New Zealand Law Society, above n 64.
76 [Tribunal Decision], above n 1, at [25].
be restored to practise on his own account, he did not leave it open to the Tribunal to make an order restoring him subject to a condition under s 246(4).
[81] Finally, Mr Collins submitted that no evidence was offered in support of the allegation of racial discrimination and noted that this submission was an echo of the sort of behaviour found to amount to misconduct in the disciplinary process back in 2010-2011.
[82] On the question of costs, Mr Collins submitted the Tribunal’s approach was principled and did not disclose any error.
Discussion
[83] As noted, the role of this Court is to look at the merits of Mr McConnor’s application afresh. However, I am entitled to have regard to the assessment of an experienced specialist tribunal while not deferring to that assessment.
[84] Further, as noted, there is considerable overlap between the various grounds of challenge. Several discrete grounds assert procedural unfairness which I turn to first since it is potentially dispositive.
[85] Mr McConnor wished to lead oral evidence at the hearing, despite having filed three affidavits. The transcript notes that this issue arose as follows between the Tribunal and Mr McConnor:77
A. MrDeputy Chair, I propose to proceed this way unless the Deputy Chair has other processes by which you can go. I want to, after being sworn, I want to go through my evidence and then including the brief of evidence and then avail myself for cross-examination. But during my evidence, I want to go back to the section 55 criteria and then there are two items marked “yes” over there, I want to go through them. And when I come to the background information that led to the charges and my being struck off, I would kindly want to invite Mr Collins to read the charges to me as they appear so that I could put them in context.
Q. We’re not re-hearing those charges.
77 In the transcript the “Q.” represents statements from the Tribunal and “A.” those from Mr McConnor.
A. Yes.
Q. And, Mr McConnor, we won’t be permitting you to give further evidence-in-chief except unless there is something required by way of updating. And seeing that your last affidavit was only a couple of days ago, there is very likely to be little in the way of anything startlingly new that’s occurred since then.
A. Well, yes.
Q. So, in the usual way, you have already filed your evidence-in-chief.
A. Yes.
Q.And so unless there is anything pertinent and fresh that you couldn’t have given evidence about before, you’ll be pretty swiftly into the cross-examination phase...
[86] The Tribunal is established under Part 7 of the Act.78 It is permitted to determine its own procedure except as provided under the Act or by rules made under the Act.79 Regulation 25 of the Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008 provides that all evidence must be given by affidavit unless the Tribunal directs otherwise and all witnesses must be available for cross-examination.
[87] I reject the allegation of unfairness in the approach adopted by the Tribunal. It did not, as Mr McConnor argued, block him from fully acknowledging his wrongdoing. Mr McConnor had already filed his evidence-in-chief in affidavit form (comprising evidence and submissions). It is not usual to lead oral evidence-in-chief except where updating or fresh evidence is intended. Leave is required. There was no explanation as to why Mr McConnor could not have covered the matters on which he wished to give supplementary oral evidence in those affidavits. Materially, the last of those affidavits was filed a few days before the hearing. Despite this, the NZLS did not object to it being read. The supplementary evidence he intended was not fresh and appeared to involve revisiting the matters dealt with in the disciplinary proceedings which is beyond the scope of a restoration hearing.
[88] 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
78 Lawyers and Conveyancers Act 2006, s 226.
79 Lawyers and Conveyancers Act 2006, s 252.
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.
[89] There is also arguably some tension between this ground of challenge and Mr McConnor’s criticism that the Tribunal were too focused on the past instead of being forward-looking in its assessment.
[90] Mr McConnor referred to therapeutic intervention by a counsellor but did not call the counsellor to give evidence. It transpired that the intervention was late in the day and had involved only two sessions. When questioned about why the counsellor had not been called, Mr McConnor suggested that the Tribunal members could contact the counsellor directly — an unorthodox suggestion which he advanced coupled with a suggestion that a less adversarial approach was required by the statute. It could be expected that if the counsellor had useful insights, an affidavit or report would have been prepared.
[91] Insofar as the Tribunal did not permit Mr McConnor an indulgence of one week to produce a report from the counsellor with whom he had recently engaged, I note this request was only raised informally by Mr McConnor during the hearing in response to questioning. The NZLS opposed leave, pointing out that there would need to be a resumed hearing and an opportunity to cross-examine the counsellor.
[92] It is unsurprising that the Tribunal was not prepared to adjourn part-heard to permit introduction of speculative evidence in a context where Mr McConnor had only engaged with the counsellor twice prior to the hearing. There was no indication that the counsellor was prepared to provide such report given such limited engagement and no certainty around timing of any report. I reject the argument that this was procedurally unfair.
[93]This ground of the appeal must fail.
Did the Tribunal inappropriately focus on past misconduct?
[94] I reject the argument that the Tribunal was overly focused on Mr McConnor’s past misconduct. It is apparent from the transcript and the Tribunal Decision that the Tribunal repeatedly reminded itself and the parties that the assessment was forward-looking. Notably it said “[a]ll the reported cases show the importance, to our forward-looking task, of measuring the present depth of shadow cast by previous wrongdoing”,80 and cited the guidance in Reid.81
[95] 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. The High Court in Reid set out how to reconcile the forward-looking exercise while having regard to past professional failings. It said that the Tribunal in that case was correct to focus on the question of whether the applicant had “gained a moral compass” evidently previously lacked.82 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.83
[96] Mr McConnor argued that objectivity and a forward-looking approach required that his referees did not know of his history. He argued that the inherent value of those references should not be diluted because of that lack of knowledge or due to the non-legal background of his referees, who were therefore potentially unaware of the trust and integrity issues arising against that backdrop.84
[97] Far from drawing an inappropriate balance between past and future, I agree with the Tribunal view that Mr McConnor’s approach to his referees meant that
80 [Tribunal Decision], above n 1, at [11].
81 Reid v New Zealand Law Society, above n 51, at [33].
82 At [18].
83 [Tribunal Decision], above n 1, at [24].84 At times Mr McConnor mischaracterised the Tribunal’s treatment of the references. It did not dismiss them or the credibility of the referees as he submitted. It had regard to them but considered their value much reduced by their lack of full knowledge and appreciation of the context. Relatedly Mr McConnor submitted that the Tribunal inappropriately drew an analogy with criminal defendants. However, the Tribunal Decision records that it was Mr McConnor who likened his position to that of a defendant in a criminal trial where the jury is not permitted to know of past convictions. The Tribunal described this comparison vis-à-vis the lack of knowledge of referees as “inept”. It said “[a]lthough we are not in a criminal-related exercise, to answer Mr McConnor’s allusion in like terms, our task is more akin to the deliberations of the Parole Board deciding if, or upon what terms, to release a prisoner. To do our job, we need to consider the full picture.” See [Tribunal Decision], above n 1, at [10].
independent and objective evidence of his rehabilitation fell short of the level of support required for his application. I am not persuaded by Mr McConnor’s intellectual rationale for not explaining the context for the references more candidly.
[98] A full and complete knowledge on the part of the referees is consistent with the required forward-looking assessment. To suggest otherwise mischaracterises the nature of this requirement. It is relevant that it was not apparent that the referees signing letters of support in fact knew that they were being offered in support of an application for Mr McConnor’s restoration to the roll having been struck off. It meant that the support lacked insight. I consider the references fell short of the quality fairly expected in support of an application of this nature because they are the primary evidential means of showing rehabilitation. For that reason, evidence of a context comparable to the sorts of issues and pressures encountered in legal practice is critically important.
[99] Having seen and heard Mr McConnor cross-examined and respond to its questions, the Tribunal was particularly well-placed to conclude that he “avoided and obfuscated” about his past wrongdoing and appeared to be in denial.85 This transpired despite the multiple passages in his affidavits in which he accepted and admitted wrongdoing.86 The manner in which Mr McConnor presented at the hearing was clearly important to the Tribunal panel. Illustratively, when asked about his involvement in the transaction which resulted in many of the disciplinary charges for which he was found guilty of misconduct, the transcript records that Mr McConnor replied:
So far as I was engaged in those transactions, having not refused the brief, I was in a context that was irretrievably, non-reconcilable with my professional ethics standards, you see. I made – once the context is wrong whatever you do can’t be justified.
[100] This observation falls well short of indicating that Mr McConnor had sufficient insight into past failings such as to discharge his burden. The Tribunal concluded:87
85 [Tribunal Decision] above n 1, at [25].
86 At the hearing Mr McConnor handed up a list of all references, within his affidavits, to admissions and acknowledgments of wrongdoing.
87 [Tribunal Decision], above n 1, at [24].
[24] What is lacking is persuasive evidence that he has fronted up to his past wrongdoing, that he has gained understanding of what caused him to err, and that he can show how he will avoid repeating his errors.
[101] I do not doubt that Mr McConnor is sincere in his attempt to restore his character. It may even be said that his restoration is in progress. However, that is not the test under the legislation. Instead, the requirement is that tribunal or court be satisfied that the applicant is “possessed of such integrity and moral rectitude of character that he may be safely accredited by the court to the public to be entrusted with their business and personal affairs.”88
[102] In a similar vein, I have no doubt that the period since he was struck off has been traumatic, particularly since the tragic loss of his daughter, but the Tribunal and the Court is not permitted to be influenced by sympathy for the position of the applicant.
[103] In sum, I find that in their assessment of Mr McConnor’s restoration application, the Tribunal applied the correct principles (as identified in Stanley). I discern no error in reasoning or analysis under this head of challenge and reach the same result.
Was the failure to consider conditional reinstatement an error?
[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”.89 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.90 The Tribunal was “unimpressed by a suggestion of support when there is none.”91
88 New Zealand Law Society v Stanley, n 57, at [36] citing Skerrett CJ in Re Lundon [1926] NZLR 656 (CA) at 658.
89 [Tribunal Decision], above n 1, at [33].
90 At [30].
91 At [30].
[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.
[106] It was also reasonable for the Tribunal to consider that pursuing an application to practise on his own account underscored Mr McConnor’s lack of insight. To approve practise on his own account would have required a level of confidence in Mr McConnor’s ethical competency which his application and supporting evidence did not support.
[107] I also accept Mr Collins’ submission that s 246(4) does not authorise restoration subject to an order requiring a person to practise “under supervision” where that person is otherwise authorised to practise on their own account.
Categorical imperative and racial discrimination?
[108] The suggestion that the Tribunal was biased against Mr McConnor because of his ethnic background is plainly wrong. It overlooks the cogent grounds for the Tribunal’s dismissal of his application. No unfairness or bias is identifiable on the material before this Court. There is no evidence offered in support of this serious contention. I reject it as entirely without foundation. There is heft in Mr Collins’ submission that the casual employing of an allegation of racial bias is redolent of some of the actions which led to Mr McConnor being struck off in the first place.
[109] Mr McConnor’s discussion of Kant’s philosophy strains the clear statutory imperative for the Tribunal’s assessment. As noted, the restoration provisions in the legislation are informed by the statutory purposes (to maintain public confidence in the provision of legal services and to protect the consumers of those services) provided
in s 3 of the Act and the fundamental obligation of all lawyers to “uphold the rule of law and to facilitate the administration of justice in New Zealand”92.
[110] Mr McConnor’s submission that the absence of fresh complaints and the NZLS’s inability to provide new evidence of lack of fitness misses the point of the regime. The NZLS has no oversight of a practitioner who has been struck off during the period in which he or she is not on the roll. The authorities make it very clear that it is for the applicant to carry the onus of establishing restoration of character.
[111] The Tribunal (and the NZLS) recognised that the concept of redemption and the public interest in a second chance is hardwired in the legislation — that is the reason why s 246 of the Act exists. However, as Mr Collins put it, redemption is not a trump card and passage of time alone is not an answer.
Other
[112] Many of Mr McConnor’s criticisms of the Tribunal were expressed in hyperbolic terms and mischaracterised the reasoning expressed in the Tribunal decision. I have not addressed each instance. Instead, in reaching my decision I have focussed on the material and key points of Mr McConnor’s challenge.
Costs appeal
[113] The Tribunal’s reasoning on costs was that the adverse financial and family circumstances consequent on being struck off are irrelevant. The Tribunal considered the application for restoration was poorly supported despite clear indicators from the NZLS as to what Mr McConnor’s application lacked and that to pass the financial burden to all practising lawyers who fund NZLS’s opposition was unfair. The Tribunal was satisfied that the costs actually incurred by the NZLS were reasonably incurred and a costs award of almost two-thirds of NZLS’s reasonable costs is a reasonable contribution.
92 Lawyers and Conveyancers Act 2006, s 4.
[114] I am not persuaded that the exercise of the Tribunal’s discretion was wrong. No error in approach has been identified. This aspect of the appeal must also fail.
Result
[115] As noted above at [101], the question of restoration to the roll requires that the decision-maker be satisfied that the person applying for admission has shown himself or herself to be “possessed of such integrity and moral rectitude of character that they may be safely accredited by the Court to the public to be entrusted with their business and private affairs.”93 The Tribunal was not satisfied. The onus is on Mr McConnor to persuade this Court that the Tribunal erred in that decision. I have no doubt that the consequences of being struck off have been monumental for Mr McConnor. Regrettably, on the material currently before the Court, he is unable to identify material error by the Tribunal. On the contrary, I find that the Tribunal applied well-settled principles and came to the only available decision on the material before it.
[116]Accordingly, I dismiss the substantive and costs appeals.
[117] The NZLS is entitled to 2B costs of the appeal. If these cannot be agreed memoranda may be filed.
............................................................
Walker J
93 New Zealand Law Society v Stanley, n 57, at [36] citing Skerrett CJ in Re Lundon [1926] NZLR 656 (CA) at 658.
11
1