Name Suppressed v Wellington Standards Committee 2 of the New Zealand Law Society

[2015] NZHC 903

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-11293 [2015] NZHC 903

BETWEEN	NAME SUPPRESSED Appellant
AND	WELLINGTON STANDARDS COMMITTEE 2 OF THE NEW ZEALAND LAW SOCIETY Respondent

Hearing:	29-30 April 2015
Counsel:	C M Stevens for Appellant J B M Smith QC and M J Ferrier for Respondent
Judgment:	1 May 2015

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.45 pm on the 1st day of May 2015

Solicitors:           Skinner Law, Wellington, for Appellant.

Luke Cunningham Clere, Wellington, for Respondent

NAME SUPPRESSED v WELLINGTON STANDARDS COMMITTEE 2 OF THE NEW ZEALAND LAW SOCIETY [2015] NZHC 903 [1 May 2015]

[1]      The  hearing  of  this  appeal  began  on  29  April  2015.    After  the  lunch adjournment on 30 April, counsel requested some further time to discuss a possible resolution.  When the Court resumed, counsel advised that if I was prepared to give an indication on the name suppression aspect of the appeal, counsel may be able to resolve the other issues in the appeal by consent.  Counsel properly recognised name suppression could not be resolved by consent, and that a decision by the Court was required.

[2]      I agreed to proceed in that way.   Mr Stevens and Mr Smith QC then made their submissions on name suppression.   Following those submissions, I indicated that I would allow the appeal against the decision of the New Zealand Lawyers and Conveyancers  Disciplinary  Tribunal  (the  Tribunal)  to  refuse  permanent  name

suppression.1     In the light of that indication, counsel advised that the remaining

issues could be resolved by consent.

[3]      I now give my formal decision on name suppression, and my reasons.  In its decision dated 5 December 2014, the Tribunal noted that in applying for permanent non-publication of her name, the appellant relied on personal circumstances that affect her family which were advanced at the time the application for interim suppression was made. The Tribunal said:

[19]     We have considered that the matters advanced on the practitioner’s behalf do not persuade us to make the order sought when we consider that the starting point is that hearings  of the Tribunal must  be  public.   The Tribunal may grant a non-publication order if it is satisfied that it is proper to do so having regard to the public interest and the interest of any person.  The name of the practitioner has been in the public arena in the criminal proceedings taken against her brother.  The concerns she has about the personal circumstances affecting her family can be met by the making of an order  prohibiting  publication  of  any  information  concerning  the practitioner’s family. The Tribunal has made that order.

[4]      The family circumstances relied upon relate to the appellant’s two teenage daughters.    They  are  not  aware  of  these  proceedings.    A  number  of  family difficulties, which it is not necessary for me to describe, have placed great stress on the family and have affected the girls greatly.  The applicant has concerns as to the

health and wellbeing of her two daughters, particularly her older daughter, if they become aware of these proceedings.  Her concerns are supported by letters from the daughters’ general practitioner and two clinical psychologists consulted by the appellant, one of whom has seen both girls, and the other who has formed an opinion as to the effect on them based on her consultations with the appellant.  I find, based on those reports, that learning of this matter could have an adverse effect on the girls, and cause them significant distress and harm to their wellbeing.

[5]      In  the  light  of  that  new  information,  which  is  put  before  me  without objection, it is now clear that the Tribunal’s view, that the concerns can be met by its order prohibiting publication of any information concerning her family, is incorrect. The Tribunal’s order will not address that issue.  The main concern is that the girls may become distressed if they learn of their mother’s situation.  Only an order suppressing her name could address that.  The publication of her name in the other proceedings is not a material consideration on this issue.

[6]      Against that potential for harm to the appellant’s family, I must consider the factors which weigh against name suppression.  These are the principle of open justice, the principle that disciplinary proceedings should be conducted in public, and the public protection which publication of the appellant’s name might serve.

[7]      There are particular circumstances in this case which make those factors less weighty than they might otherwise be.   Protection of the public is not a material consideration in this case.  The appellant has an otherwise unblemished professional record.    The  conduct  involved  is  related  to  a  single  issue,  not  related  to  the appellant’s conduct in the practice of her profession.   The level of gravity of the conduct is low, as reflected in the imposition by the Tribunal only of a penalty of censure.  Publication is therefore not required for the protection of the public in relation to her practice.  It is clear from the many references from her clients which were produced that those clients are aware of the circumstances, and this has not caused them to question her ability or integrity.

[8]      The principle of open justice, and the general principle that disciplinary proceedings  should  be  conducted  in  public,  are  both  important,  but  in  the

circumstances of this case do not require to be weighed heavily.  The case law on name suppression in disciplinary cases against professionals suggests that the particular circumstances of the case may, more readily than in many other types of case, outweigh those important principles.  This is so in this case, particularly since the conduct is at a low level of gravity.

[9]      For these reasons, I consider that the particular circumstances relating to the

appellant’s family outweigh the factors which favour publication. [10]         The appellant’s appeals are determined as follows:

(a)       The notice of appeal dated 13 October 2014 against the decision of the Tribunal dated 18 September 2014 is withdrawn by the appellant.2

By consent, there is no order as to costs on this appeal.

(b)      In    respect    of    the    notice    of    appeal    against    penalty    dated

15 January 2015:

(i)by  consent,  the  orders  in  paragraph  [6]  and  [7]  of  the Tribunal’s decision dated 10 December 2014 are varied by deleting the sums of $49,241.68 and $7,331 respectively, and replacing those with the figures of $24,620.84 and $3,665.50

respectively, a total of $28,286.34.3

(ii)the Tribunal’s order declining to make an order that the name of the practitioner not be published is overturned.  The name of the appellant is permanently suppressed.

[11]     In relation to the proceedings in this Court:

(a)       The name of the appellant is permanently suppressed; and

2      Wellington Standards Committee 2 of the New Zealand Law Society v Name Suppressed [2014] NZLCDT 58.

(b)I direct, under r 3.9(3) of the High Court Rules, that no documents on the court file are to be accessed under r 3.9 without the permission of a judge, and, under r 3.13(3), that any application under r 3.13 is to be heard and determined by a judge; and

(c)       I direct that a notation briefly recording the directions in [11](a) and

(b) is to be placed prominently on the file. (d)  There is no order as to costs.

“A D MacKenzie J”