McKay v Hawke's Bay Lawyers Standards Committee

[2015] NZHC 1387

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-1264 [2015] NZHC 1387

BETWEEN

GERALD GEORGE MCKAY

Appellant

AND

HAWKE'S BAY LAWYERS STANDARDS COMMITTEE Respondent

Hearing:	18 June 2015
Counsel:	G G McKay, Appellant, in person M A Treleaven for Respondent
Judgment:	18 June 2015

(ORAL) JUDGMENT OF HEATH J

Solicitors:

New Zealand Law Society Hawke’s Bay Branch, Napier
Counsel:
P Collins, Auckland
Copy to:

Mr G G McKay, Appellant

MCKAY v HAWKE'S BAY LAWYERS STANDARDS COMMITTEE [2015] NZHC 1387 [18 June 2015]

[1]      Mr McKay has appealed against two decisions of the New Zealand Lawyers and Conveyancers’ Disciplinary Tribunal (the Tribunal), which relate to a finding of misconduct against him and the subsequent penalty imposed.1     Mr McKay was struck off the roll of barristers and solicitors.  That order remains in force and he is currently unable to practise.

[2]      The appeals have been set down for hearing on 24 June 2015.  Mr McKay seeks an adjournment of the appeals.   The adjournment was sought on two broad bases.  The first relates to problems with the engagement of counsel; the second is concerned with Mr McKay’s current medical condition.

[3]      Given the history of the appeals, I would not have been prepared to adjourn based on the concerns about legal representation.  However, having read two medical reports submitted by Mr McKay (the detail into which I need not go) I am satisfied that there are good reasons to adjourn.

[4]      While counsel for the Hawke’s Bay Standards Committee (the Standards Committee) has submitted that the second of the medical reports can be read as suggesting that prolongation of the appeal process could compound Mr McKay’s condition, I think it more likely that the medical conditions will impinge adversely, particularly while other proceedings in the District Court at Napier remain to be resolved.   Mr McKay is facing criminal charges arising out of trust account procedures.  They have been set down for hearing in the District Court at Napier on

17 August 2015.  Mr McKay is defending those charges.

[5]      The  Standards  Committee  is  mindful  of  its  statutory  obligations  to  deal promptly with questions of discipline.   For that reason, the application for an adjournment is opposed.  Nevertheless, as will be clear from what I have said so far, the circumstances in which the medical conditions have arisen and the way in which they are currently being treated would, in my view, not be enhanced by requiring

these appeals to be dealt with while the criminal proceeding remains extant.

1      Hawke’s Bay Lawyers Standards Committee v McKay [2014] NZLCDT 20, 1 May 2015 and

Hawke’s Bay Lawyers Standards Committee v McKay [2014] NZLCDT 57, 18 September 2014.

[6]      There is no public interest at play.  Mr McKay is not permitted to practise as a lawyer, unless this Court were to allow the appeals.   In those circumstances, I adjourn the appeals and vacate the hearing for 24 June 2015.

[7]      I also vacate the existing timetabling orders.   In substitution, I adjourn the appeals for mention in the Appeals’ List at 9am on 29 September 2015. At that time, timetabling  directions  will  be  made  to  ready  the  appeals  for  hearing.    I  have indicated to Mr McKay and counsel for the Standards Committee that I expect the appeals to be set down for hearing this year, so there is no realistic prospect that they will be deferred until 2016.  I have made it clear to Mr McKay that by 29 September

2015, he needs to be in a position to proceed or to withdraw the appeals. [8] The adjournment is allowed on that basis, with costs reserved.

[9]      Mr McKay has sought a direction that the two medical reports be kept confidential.  I direct the Registrar to place both reports in a sealed envelope on the

Court file. That envelope shall not be opened without leave of a Judge.

P R Heath J