National Standards Committee (no 1) of the New Zealand Law Society v Gardner-Hopkins
[2022] NZHC 2350
•13 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000094
[2022] NZHC 2350
UNDER Section 254 of the Lawyers and Conveyancers Act 2006 BETWEEN
NATIONAL STANDARDS COMMITTEE (NO 1) OF THE NEW ZEALAND LAW SOCIETY
Appellant/Respondent
AND
JAMES DESMOND K GARDNER- HOPKINS
Respondent/Applicant
Hearing: 8 September 2022 (Teleconference) Appearances:
J Long for Applicant/Cross-Respondent
D La Hood for Respondent/Cross-Applicant
Judgment:
13 September 2022
JUDGMENT OF VENNING AND ELLIS JJ
This judgment was delivered by me on 13 September 2022 at 3.45 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Luke Cunningham Clere, Wellington
DK Law Limited, Auckland Counsel: J Long/R Langdana, Auckland
NATIONAL STANDARDS COMMITTEE (NO 1) OF THE NEW ZEALAND LAW SOCIETY v GARDNER- HOPKINS [2022] NZHC 2350 [13 September 2022]
[1] Mr Gardner-Hopkins seeks leave to appeal the decision in Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins in which the full Court dismissed his appeal against penalty but allowed the penalty appeal of the National Standards Committee (NSC).1 The net effect of the decision was that the two year suspension imposed on Mr Gardner-Hopkins by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) was raised by a year.
[2] The NSC seeks leave to cross-appeal, contending that in failing to order that Mr Gardner-Hopkins be struck off, we erred as a matter of principle and/or law. But Mr La Hood advised that he would only pursue that application in the event that we grant Mr Gardner-Hopkins leave because (he submitted) the public interest favours bringing finality to these proceedings. On the other hand, if the proceedings are to be prolonged in any event (by dint of the grant of leave to Mr Gardner-Hopkins) then the NSC it would wish to pursue a cross-appeal.
The test for leave
[3] Under s 254 of the Lawyers and Conveyancers Act 2006 (the Act), leave is required for appeals to the Court of Appeal and such appeals must also be on questions of law only:
254 Appeal to Court of Appeal on question of law
(1) Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 56 of the Senior Courts Act 2016 applies to any such appeal.
(2) In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.
(3) The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks fit, whether as to costs or otherwise.
1 Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins [2022] NZHC 1709. The full Court has reconvened for the purposes of the present matter in the absence of Hinton J, who is presently unavailable.
(4) The decision of the Court of Appeal on any appeal under this section is final.
[4] Although s 254(2) refers to the threshold for the grant of leave by the Court of Appeal, the provision is silent on the threshold for the High Court. We proceed on the basis of the approach adopted in other decisions, however, which is that the thresholds in both cases are essentially the same.2 Accordingly, the test involves the application of well-established principles relating to the granting of leave to bring second appeals: an applicant must show that there is some question of law capable of serious argument of sufficient importance to justify the continuation of matters that have already been twice considered and ruled upon.3
[5]Ultimately the question is whether a second appeal is in the interests of justice.
Mr Gardner-Hopkins’ proposed appeal
[6] Mr Gardner-Hopkins seeks leave to raise two (related) questions on appeal, which Mr Long articulated as follows:4
(a)Did the High Court err in finding that personal circumstances of a practitioner are irrelevant as mitigating features in disciplinary proceedings when considering penalty, including:
(i)the personal, professional, and financial consequences and/or position of the practitioner in these circumstances (including those not explicitly recognised by the High Court, but evident from the record); and
(ii)if taken to its logical conclusion, all other personal circumstances of any practitioner in disciplinary proceedings, including mental health and other circumstances.
2 See for example Morahan v Wellington Standards Committee No 2 [2018] NZHC 1583 at [3]-[4]; Deliu v National Standards Committee [2018] NZHC 2873 at [11]; Hong v Auckland Standards Committee No 5 [2020] NZHC 1572 at [3]; Hong v Auckland Standards Committee No 5 [2020] NZHC 2613 at [4].
3 Even if such a question is established, if the underlying facts merely relate to the specific misconduct, the test will not be meet.
4 The further question posed (whether the two alleged errors at (a)(i) and (ii) meant that the Court exceed the “least restrictive outcome principle” when it increased the suspension period) is simply consequential, rather than a separate question of law.
Context
[7] We do not intend to set out the background of Mr Gardner-Hopkins’ case in any detail in this judgment. This decision should, if necessary, be read in conjunction with our earlier judgment. So below, we address simply those matters directly raised by Mr Gardner-Hopkins’s proposed appeal.
[8] The Tribunal had dealt with mitigating factors personal to Mr Gardner-Hopkins under three headings:
(a)Mitigating features;
(b)Changes made/future risk; and
(c)Financial position.
[9] In the penalty appeal decision, we summarised the Tribunal’s findings in relation to the first and third of these matters in this way:5
[19] In mitigation the Tribunal took account of the “very significant consequences” Mr Gardner-Hopkins had already experienced. He had been removed from partnership in Russell McVeagh and had suffered a loss in status and income. He had suffered significant reputational and emotional loss. The Tribunal also accepted that the law was a stressful and challenging profession and he had been left ostracised and isolated.
….
[23] The Tribunal did not consider Mr Gardner-Hopkins’ financial position to be as dire as suggested and noted that given the protective responses of the legislation, sympathy for the practitioner’s personal circumstances could not be a defining feature.
[10] Ultimately, we differed from the Tribunal’s conclusions on the former but not the latter. We said:
[64] We consider the Tribunal erred by regarding the financial and professional consequences to Mr Gardner-Hopkins as mitigating factors. The fact that Mr Gardner-Hopkins was required to resign from the Russell McVeagh partnership, and lost connection with the profession, was an inevitable consequence of his actions. Given his conduct, it is unsurprising that he may have been unwelcome at some professional events. Other
5 The second matter is not put in issue by the proposed appeal.
negative consequences that have flowed from the misconduct are not positive factors in Mr Gardner-Hopkins’ favour in the context of disciplinary proceedings. The object of the disciplinary process is primarily protective. The personal considerations that might lead to a reduced sentence in a criminal context have less impact in a disciplinary setting.
…
[90] We agree with the way the Tribunal dealt with Mr Gardner-Hopkins’ financial position. The statements of income and expenditure filed on his behalf allowed for “unavoidable” living costs of $144,000 a year after tax. A budget at that level does not suggest dire circumstances. In any event, we do not consider a practitioner’s financial position operates as a mitigating factor in disciplinary proceedings. Also, to some extent this argument overlaps with Mr Long’s first argument as to professional consequences already suffered, which we have found not to be a mitigating factor.
…
[112] For the above reasons we consider that the Tribunal was correct to find that strike-off was not required. However, we consider the Tribunal did fall into error in accepting as a mitigating factor the financial and professional consequences to Mr Gardner-Hopkins, and further in placing this case as less serious than Daniels or Horsley. Taken in context and overall, Mr Gardner- Hopkins’ misconduct and sexual exploitation of the young women warranted the most serious response available short of strike-off, so that a suspension of three years was required.
[11] Mr Long confirmed that these were the three paragraphs that were the focus of Mr Gardner-Hopkins’ proposed questions.
Is the threshold met?
[12] On a straightforward reading of [64] of our judgment we have merely repeated the orthodox position that mitigating personal factors are given less weight in disciplinary proceedings than on sentencing, because of their protective purpose. Where we differed from the Tribunal was in declining to regard the financial and professional consequences suffered in this case by Mr Gardner-Hopkins as a direct result of his misconduct as such a factor. We do not consider it raises a question of law. And to the extent we are wrong in that, it does not raise a matter of general or public importance.
[13] The first finding at [90] (that Mr Gardner-Hopkins’ present financial circumstances could not be seen as dire) is also undoubtedly a finding of fact. While on its own, the second observation (that a practitioner’s financial position does not
operate as a mitigating factor in disciplinary proceedings) seems arguably more absolute, it is then immediately qualified by reference to our finding in [64]. The point being that even if we had agreed that Mr Gardner-Hopkins’ present financial circumstances were dire (which we had not) we would not have seen them as mitigating because they are a direct consequence of his misconduct.
[14] Although Mr Long referred us to a number of Tribunal decisions in which he said a practitioner’s financial situation operated to mitigate penalty, we are unable to see them as any more than examples of the Tribunal determining penalty by reference to all the facts of the particular case before it, including (to a limited extent) the particular practitioner’s personal and financial circumstances.6 There is nothing in our decision that suggests those cases were wrongly decided and we do not accept the submission that our observations at [90] represented a departure from the longstanding and justified approach in that forum. Nor can we agree that the issue identified as falling out of our [90] constitutes a question of law of general and public importance.
[15] In [112] we did no more than repeat our previous finding that, in the particular circumstances of Mr Gardner-Hopkins’s case, the Tribunal fell into error when it accepted the financial and professional consequences to him as a mitigating factor. It is not capable of giving rise to any independent question of law and, given the conclusions expressed above, we do not need to consider it further.
[16] Lastly, as far as the interests of justice are concerned, we think there is much in Mr La Hood’s point about finality. The events giving rise to these proceedings took place almost seven years ago. Because Mr Gardner-Hopkins contested the disciplinary charges the five young women concerned were required to give evidence at the liability hearing. They have been trying to move on with their lives. Keeping these proceedings alive prevents them from doing that. This serves to confirm the conclusion we have, in any event, reached.
6 The cases were: Auckland Standards Committee 4 v Schlooz [2021] NZLCDT 12; Auckland Standards Committee No 1 v Choi [2021] NZLCDT 20; National Standards Committee v Shi [2018] NZLCDT 18; and Wellington Standards Committee 2 v Hirschfeld [2014] NZLCDT 48.
Conclusion
[17] For the reasons given we do not consider Mr Gardner-Hopkins’ proposed appeal raises any question of law capable of serious argument and of sufficient importance to justify the continuation of matters that have already been twice considered and ruled upon. In light of that conclusion, and Mr La Hood’s concession (recorded at [2] above) we do not need to consider the NSC’s application for leave to cross-appeal; it is to be regarded as withdrawn by leave.
[18]Mr Gardner-Hopkins’ application for leave to appeal is declined, accordingly.
[19] We did not hear from counsel about costs. Given that one application has been dismissed and the other withdrawn we are minded to let them lie where they fall. If counsel do not agree with that assessment, and also cannot reach agreement between themselves then memoranda may be submitted with 10 working days.
Venning and Ellis JJ
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