National Standards Committee 2 of the New Zealand Law Society v Tingey

[2023] NZHC 2563

ORDER FORBIDDING PUBLICATION OF THE NAME, AND ANY

PERSONAL INFORMATION THAT MIGHT LEAD TO IDENTIFICATION, OF THE COMPLAINANT IN THE CONTEXT OF ANY REPORT OR ACCOUNT RELATING TO THIS PROCEEDING.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1234

[2023] NZHC 2563

UNDER

Part 7 of the Lawyers and Conveyancers Act 2006

BETWEEN

NATIONAL STANDARDS COMMITTEE 2 OF THE NEW ZEALAND LAW SOCIETY

Appellant

AND

MURRAY JOHN TINGEY

Respondent

Hearing:	7 September 2023
Appearances:	M J Dew KC and D C Josephs for appellant Respondent in person
Date of judgment:	14 September 2023
Reissued:	10 October 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 14 September 2023 at 2.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel:
Maria Dew KC, Auckland

Copy to:
Respondent

NATIONAL STANDARDS COMMITTEE 2 OF THE NEW ZEALAND LAW SOCIETY v TINGEY [2023]

NZHC 2563 [14 September 2023]

[1] Under s 253 of the Lawyers and Conveyancers Act 2006, the National Standards Committee 2 of the New Zealand Law Society (the Standards Committee) appeals the New Zealand Lawyers and Conveyancers Disciplinary Tribunal’s 30 May 2023 decision directing redactions in any publication of its 17 May 2023 decision (the liability decision, which determined disputed facts underlying Murray Tingey’s admission of a first charge and dismissed a second charge of misconduct in terms of s 241(a)) and further varying an interim suppression order. Subsequent orders under s 242 yet have to be made. My decision urgently is sought.

Background

[2]On 21 December 2022, by consent, the Tribunal made an order in terms:

… there be no publication of:

(a)  The name and any personal information that might lead to the identification of the complainant, including her address, her current work location, [Redacted], the exact dates of her employment and [Redacted]; and

(b)  Her sensitive health information so far as this may be referred to in the evidence.

It now is common ground the order expressly and consensually was sought on an interim basis, in reliance on s 240.

[3]    In advance of hearing for the liability decision, it became apparent the parties differed if reference to [Redacted] was ‘personal information’ subject to the 21 December 2022 order. Although not formally recorded, at the opening of the hearing on 28 March 2023, the Tribunal is understood also to have prohibited publication of [Redacted] and directed any reference to her status could be published as “senior lawyer”.

[4]    On 17 May 2023, the liability decision was issued to the parties with a banner in terms different from the 21 December 2022 order (and conceivably from whatever was ordered or directed on 28 March 2023):

THE NAME AND ANY PERSONAL INFORMATION THAT MIGHT LEAD TO THE IDENTIFICATION OF THE COMPLAINANT, INCLUDING HER ADDRESS, WORK LOCATION AND POSITION ARE

SUPPRESSED. THESE ORDERS ARE MADE PURSUANT TO S 240 OF THE LAWYERS AND [CONVEYANCERS] ACT 2006.

under cover of an email referring to appeal rights under s 253 and advising:

The text in square brackets is to be redacted from any publishable version. Counsel are invited to comment on any further redactions they deem may be required, by end of Friday this week.

In the meantime, I confirm the Tribunal will hold the decision back from being provided to any media and published on the website until the redactions are finalised.

[5]    The Standards Committee sought particular redactions in the liability decision to avoid the complainant’s identification, broadly including any reference to [Redacted], and further redactions or ‘rephrasing’ to avoid “unnecessary reputational risk” to her. By minute of 25 May 2023, except for a particular description of the complainant’s former role,1 the Tribunal declined to make any of the redactions sought. But it accepted:

… without further redaction of paragraph [20], there is a risk of identification of the complainant [Redacted]. That leads us to reflect on whether the part of the Interim Order which relates to [Redacted] (varied at the hearing, to expend the original order which only addressed [Redacted]) ought to be reconsidered.

This reconsideration becomes necessary because of two aspects of the case:

(a)  That Mr Tingey’s name was not suppressed; and

(b)  That significant emphasis was placed on assessment of the alleged power imbalance. Our reasoning, in rejecting such as a significant factor, depends in part on an understanding of the findings around the complainant’s status in the firm and as such imports [Redacted] necessarily.

and sought further submissions. In response, the Standards Committee contended the Tribunal’s  objective could be met by  continued  reference to  the complainant as     a “senior lawyer”. The Standards Committee’s continued identification of prospective redactions sought to accommodate the Tribunal’s concern, although leaving such redacted decision at least equivocal in its identification of the complainant.

1 At [16].

Decision under appeal

[6]    On 30 May 2023, the Tribunal issued the minute at issue on this appeal, attaching a redacted version of the liability decision. The redactions were to the particular description of the complainant’s former role,2 [Redacted],3 the date of an incident founding the second charge against Mr Tingey;4 the nature of the firm’s conference attended by Mr Tingey and the complainant;5 the entirety of a paragraph relating to consequences of Mr Tingey’s prior conduct;6 an option available to the complainant on leaving the firm;7 and the date of another conference attended by Mr Tingey and the complainant.8

[7]The minute read:

[1]    Having heard submissions from counsel on the proposed redactions, and on the issue of variation of the Interim Name Suppression Order, we now direct that redactions appear in the published decision in terms of the attached version.

[2]    The Interim Name Suppression Order of 21 December 2022 was made in respect of an application for, specifically, “Interim name suppression for complainant” dated 8 December 2022.

[3]    At the commencement of the hearing on 28 March 2023, Ms Dew sought continuation of the Interim Name Suppression Order, and as varied at that hearing. It was never intended by the parties or by the Tribunal to represent the final word on non-publication under s 240 of the Act.

[4]    The Interim Suppression Order, as varied, is now further varied as follows and will appear as a banner on the decision:

THE NAME AND ANY PERSONAL INFORMATION OF THE COMPLAINANT, INCLUDING HER ADDRESS, WORK

LOCATION, [Redacted] AND THE IDENTITY OF HER PARTNER ARE SUPPRESSED. THESE ORDERS ARE MADE PURSUANT TO S 240 LAWYERS AND CONVEYANCERS ACT 2006.

[5]    The Tribunal has determined that the public (including the profession) will be unable to understand the reasoning in the decision if such a pivotal fact as [Redacted] is suppressed.

[6]    We have considerable sympathy for the complainant’s position, and the importance of not discouraging future complainants from coming forward. In this case the past publication of the respondent’s position, the key relevance of relative power positions in our decision, the adverse

2 At [16].

3 At [20].

4 At [28].

5 At [32].

6 At [36].

7 At [53].

8      At [56] and the preceding title.

impact on understanding of our reasons if there is suppression of relative positions and the importance of open justice have resulted in this one fact in the specific circumstances of this case not remaining [suppressed]. The complainant’s name remains suppressed.

[8]    For the Standards Committee, Maria Dew KC argues the Tribunal’s order does not adequately protect the identity of the complainant and seeks an order prohibiting publication of the complainant’s personal information, including [Redacted] as an identifying feature at particularised points in the liability decision. She says the Tribunal’s minute errs in law effectively by predetermining any order for permanent non-publication; on disaggregated assessment of the penultimate sentence of the minute’s [6], is open to challenge as founded on irrelevancies and disregarding relevancies; and otherwise is “plainly wrong”.

[9]    Mr Tingey supports the minute as necessary to do justice in his case. He says it is the result of the Tribunal’s ‘careful and deliberate’ consideration. He opposes reinstatement of the prior 21 December 2022 consent order as now rendering the liability decision incomprehensible, and surpassed in any event by the liability decision’s unredacted specification of [Redacted] from which her identity may easily be deduced. He says such reinstatement would be to the prejudice of other senior women employed by the firm, and of his entitlement to have the liability decision fairly understood.

Approach on appeal

[10]   It is well-established, as the Tribunal’s decision is one made under pt 7 of the Act, s 253(2)(b) affords the Standards Committee “a right of rehearing on a first appeal, including consideration of process and procedural complaints”.9 On hearing the appeal I may confirm, reverse, or modify the decision.10

[11]   If a general appeal, I am justified in interfering with that decision only if       I consider it is wrong — in other words, the Tribunal erred.11 Nonetheless, the burden of establishing error falls on the Standards Committee.12 I then am to come to my own

9      Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2016] NZCA 224 at [35].

10 Lawyers and Conveyancers Act 2006, s 253(4).

11     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

12     Nicholas v Te Amo [2023] NZCA 22, [2023] 2 NZLR 620 at [8].

assessment of the merits of the case afresh, without deference to the Tribunal (save for some caution in differing on witness credibility, when I have not had the advantage of observing the witnesses).13 I may rely on the Tribunal’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.14

[12]   Alternatively, if a decision in the exercise of discretion, I may interfere with it only if the Standards Committee establishes the Tribunal erred in law or principle, did not address relevant matters or took into account irrelevant matters, or was “plainly wrong”.15 ‘Plainly wrong’ is not synonymous with ‘wrong’ but adds the quality of obviousness as being wholly outside “the available ambit of judicial discretion”.16

[13]   The weight of contemporary coordinate authority favours consideration of appeals against subordinate tribunals’ exercises of statutory powers to prohibit publication as general appeals.17 Appellate authority, expressly “to state and explain the principles that should guide the suppression of the names of parties or of witnesses, or particulars in civil cases”,18 is to the effect “[t]he discretionary nature of the jurisdiction means an appeal against the making or refusal of a suppression order is subject to the principles this Court laid down in May v May”.19

[14]   If the former approach on appeals to this Court should be influenced by the latter approach on appeals from this Court is not something I can give due consideration in the present urgent circumstances. The sources of power to prohibit publication differ: they are statutory on appeals to this Court, but from “an inherent,

13     Austin, Nichols & Co Inc v Stichting Lodestar, above n 11, at [13].

14     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].

15     Kacem v Bashir, above n 14, at [32] citing May v May (1982) 1 NZFLR 165 (CA) at 170; and

Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8].

16 National Heart Foundation of New Zealand v Carroll HC Nelson CIV-2008-442-495, 25 February 2009 at [5], citing G v G [1985] 2 All ER 225 (HL) at 228h and 229c.

17 L v A Professional Conduct Committee [2023] NZHC 1151 at [43], citing Beer v Professional Conduct Committee [2020] NZHC 2828, XY v Professional Conduct Committee of the Medical Council of New Zealand [2022] NZHC 1498 and J v New Zealand Institute of Chartered Accountants Appeals Council [2020] NZHC 1566.

18 Y v Attorney-General [2016] NZCA 474, (2016) 23 PRNZ 452 at [22].

19 At [24], citing May v May, above n 15. An application for leave to appeal to the Supreme Court against the decision was dismissed as moot: Y v Attorney-General [2017] NZSC 26 at [2]. The decision was affirmed in FMV v TZB [2019] NZCA 282, [2019] NZAR 1385 at [8].

discretionary jurisdiction” on appeal from this Court.20 Moreover, the Court of Appeal considered its approach was mandated:21

… by the Supreme Court in Rowley v Commissioner of Inland Revenue [[2011] NZSC 76, (2011) 25 NZTC 20-052] at [5]. This approach differs from the position in the United Kingdom, where the courts treat the decision whether to order name suppression as an evaluative one on which an appeal court may consider the matter afresh (see JXMX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, [2015] 1 WLR 3647 at [27], in which the Court adopted a position more akin to that applied by our Supreme Court in relation to evaluative decisions in Kacem v Bashir[, above n 14] at [32] and [35]).

In those circumstances, I adopt the Court of Appeal’s approach, as was argued before me (the alternative only being raised in post-hearing memoranda).

Relevant law

[15]Section 240 relevantly provides:

Restrictions on publication

(1)    If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make any 1 or more of the following orders:

(a)    an order prohibiting the publication of any report or account of any part of any proceedings before it, whether held in public or in private:

(b)    an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at any hearing:

(c)    an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person.

(2)    Unless it is reversed or modified in respect of its currency by the High Court on appeal under section 253, an order made under subsection (1) continues in force until such time as may be specified in the order, or, if no time is specified, until the Disciplinary Tribunal, in its discretion, revokes it on the application of any party to the proceedings in which the order was made or any other person.

[16]   Orders under s 240 should expressly be stated, “both in the body of the relevant decision and in an order band or a separate results section at the end of the decision”, in terms ‘tracking’ s 240’s language and specifying “the precise terms of the relevant

20 At [23].

21     At [24], n 27.

prohibition (in particular, what could not be published and the duration of the prohibition)”.22 Such is ‘preferable’ to give “the clarity that is desirable when exercising a power of that kind”.23

[17] I elsewhere have doubted if so-called ‘interim’ non-publication orders were there open to being made.24 Similar considerations may apply under s 240(2), which requires an order prohibiting publication continue in force either for a specified duration or “if no time is specified” until its revocation on application. That subs (2) only is about the order’s duration is established by its reference to this Court’s power to reverse the order, or modify its currency, on appeal. Section 240 simply enables the Tribunal to make particular non-publication orders, which remain in force for any time specified in the order or otherwise until revoked on application. Section 253’s right of appeal is unaffected.

[18]   Finally, I observe judicially-directed redaction of decisions notoriously requires difficult assessments in balancing divergent interests.25

Discussion

[19]   As has been seen, the  s  240  order  at  issue  as  set  out  in  the  Tribunal’s 30 May 2023 minute originated in terms established by consent and subsequently varied by the Tribunal in uncertain terms. As a result, at least until issue of the minute, there was no expression of the Tribunal’s opinion any non-publication order was proper to make, or of the regard it had for affected personal and public interests. Rather those were to be inferred from the terms of the order as it stood at any particular time.

[20]   In its terms, the order as set out in the 30 May 2023 minute would ‘suppress’ “the name and any personal information of the complainant”. ‘Suppress’ is not a term of art under the Act. Its primary dictionary meaning is “to overcome or keep down by force or authority”, with subsidiary meanings “to prevent from being expressed” or (more particularly still) “to withhold or withdraw from publication or the public

22     Haden v Police [2021] NZCA 94 at [45].

23 At [43].

24     R v [H] [2022] NZHC 1741 at [11]–[14].

25     See, for example, Financial Markets Authority v ANZ Bank New Zealand Ltd [2019] NZCA 11 at [7]–[9]; H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [54]–[58].

sphere”.26 Under the Criminal Procedure Act 2011, a “suppression order” is an order made specifically “forbidding publication” of particular information.27

[21]   Given the order at issue expressly is “made pursuant to s 240” — which entitles the Tribunal to “make any 1 or more” of specified orders, each prohibiting publication of specific information — under the only applicable s 240(1)(c), by ‘suppress’, the order must mean to “prohibit the publication of the name or any particulars of the affairs” of a person. Those ‘particulars of the affairs’ here are “any personal information” of the complainant, including as specified.

[22]   ‘Personal information’ also is not a term of art under the Act. But it is defined in the Privacy Act 2020 as meaning “information about an identifiable individual”.28 Because, under s 240(1), the Tribunal must have regard for personal interests “including (without limitation) the privacy of the complainant (if any)” (emphasis added), such ‘privacy’ may be thought to engage their ‘personal information’ as so defined. Still, “[a]n unqualified approach to what constitutes ‘information about an identifiable individual’” is undesirable;29 an “evaluative conclusion” is required as to if “the individual [is] a subject matter of the information”.30 Such may be thought here to extend to the fact of [Redacted].

[23]   Notwithstanding the terms of its order in ‘suppressing’ “the name and any personal information of the complainant”, arguably including the fact of [Redacted], [5]–[6] of the Tribunal’s 30 May 2023 minute make it clear that order is not intended to prohibit publication of [Redacted] in the same firm as Mr Tingey or their “relative power positions”.

[24]   The Tribunal’s 30 May 2023 minute at [1]–[4] also identifies the order as being in further variation sought by the  Standards  Committee of the Tribunal’s  original 21 December 2022 order, which the Tribunal additionally identifies as being

26     Oxford English Dictionary (online ed, July 2023), sense 1, 1c, 2b.

27     Criminal Procedure Act 2011, ss 194, 199C, 200, 202 and 205.

28     Privacy Act 2020, s 7, definition of “personal information”.

29     Harder v Proceedings Commissioner [2000] 3 NZLR 80 (CA) at [23].

30     Privacy Commissioner v Telstra Corporation Ltd [2017] FCAFC 4, (2017) 249 FCR 24 at [63].

“interim”, “never intended by the parties or by the Tribunal to represent the final word on non-publication under s 240 of the Act”.

[25]   Being sought by consent on interim terms, the 21 December 2022 order plainly was not intended to be final. Designation as ‘interim’ alone is not sufficient to specify the period of the order’s currency. In the context of administrative directions, ‘interim’ generally means “pending further order”.31 Subject to an incorporated power to correct errors or omissions in a previous exercise of the power,32 it is not clear the order if made under s 240 stood to be varied by further order, but only to either expire in its terms or be revoked on application. Whether then open to being made anew turns on if the Tribunal remains seized of proceedings in which such orders may be made.

[26] Neither the Tribunal nor the Standards Committee (in seeking variation of the 21 December 2022 order, implicitly for its revocation and substitution) directly address the Tribunal’s 17 May 2023 order expressly made under s 240, unconditionally ‘suppressing’ “the name and any personal information that might lead to the identification of the complainant”. Coming with the Tribunal’s decision on Mr Tingey’s liability and separate advice of appeal rights and invitation only to identify redactions for “any publishable version”, and without specification of any time for the order to remain in force, s 240(2) means the 17 May 2023 order continues in force unless and until revoked on application.

[27]   There is no dispute the 17 May 2023 decision’s multiple specifications of the complainant [Redacted] at the relevant time is to identify her. The decision’s accompanying email, inviting identification for redactions, does not affect the 17 May 2023 order. In communicating the decision together with the order, the Tribunal established “a clear signpost” the order was final and conclusive.33 As such, the order is to be treated as perfected, and incapable of being revisited,34 short of revocation on application.35

31     See, for example, Kidd v van Heeren [2019] NZCA 275, (2019) 24 PRNZ 596 at [85].

32     Legislation Act 2019, s 46.

33     Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA) at [42].

34     Ford v Board of Trustees for Smith Primary School [2021] NZCA 363, [2021] 3 NZLR 738 at [88], citing Goulding v Chief Executive, Ministry of Fisheries, above n 33.

35 Lawyers and Conveyancers Act, s 240(2).

[28]   If redactions are to be made of the 17 May 2023 decision, that is a matter of administrative convenience rather than for judicial determination. The decision itself contains no redactions. Irrespective of redaction, the 17 May 2023 order continued to stand in its terms. If redactions were to indicate what of the decision could be published in compliance with the order, they needed to be consistent with the order, rather than warranting any restatement of it to accommodate the Tribunal’s hindsight for more limited redaction (even if such restatement was permissible).

[29]   Accordingly, without exercising its discretion in favour of any application to revoke the 17 May 2023 order, the Tribunal’s 30 May 2023 minute errs in law by contradicting that order’s term prohibiting publication of “any personal information that might lead to the identification of the complainant”. I will set the minute’s decisions aside.

Result

[30]The Tribunal’s 30 May 2023 minute’s decisions are reversed.

Confidentiality

[31]   On 23 June 2023, Venning J directed this proceeding “be listed as N v T in any High Court listing” and any request to access the Court file be referred to the parties, and ‘suppressed’ “the name and any identifying particulars of the complainant and respondent, including those particulars that are currently the subject of this appeal, pending further order of the Court”.36

[32]His Honour also observed:37

[A]ny orders in relation to what may be published following the hearing are appropriately dealt with by the Judge hearing the appeal, bearing in mind the other suppression orders below which are made, effectively by consent.

36     National Standards Committee 2 of the New Zealand Law Society v Tingey HC Auckland CIV- 2023-404-1234, 23 June 2023, at [12]–[14].

37 At [10].

The issue of comity — this Court’s recognition, with mutual respect and restraint, of the Tribunal’s proper sphere of influence and privileges — arises.38 Under s 240, the Tribunal is the body charged with deciding if to prohibit publication in connection with proceedings before it. As such, its 17 May 2023 order suppressing the complainant’s name and any personal information that might lead to her identification is to be respected by this Court.

[33]   I propose to discharge Venning J’s interim order and replace it with an order forbidding publication of the name, and any personal information that might lead to identification, of the complainant in the context of any report or account relating to this proceeding, for reissue of this judgment without anonymisation of the Standards Committee or Mr Tingey.

[34]   Any disagreement with that course must be raised by memorandum filed no later than two working days after issue of this judgment.

Postscript

[35]   No disagreement having so been raised, on reissue of this judgment without anonymisation of the Standards Committee or Mr Tingey, I:

(a)discharge Venning J’s interim order; and

(b)order publication of the name, and any personal information that might lead to identification, of the complainant in the context of any report or account relating to this proceeding is forbidden.

—Jagose J

38     Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 at [73], citing the Parliamentary Privilege Act 2014, s 4(1)(b).