Nottingham v Real Estate Agents Authority
[2020] NZHC 1561
•3 July 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-002772
[2020] NZHC 1561
IN THE MATTER of an appeal under s 116 of the Real Estate Agents Act 2008 BETWEEN
DERMOT NOTTINGHAM, PHILLIP NOTTINGHAM, ROBERT MCKINNEY AND PROPERTY BANK REALTOR
LIMITED
AppellantsAND
REAL ESTATE AGENTS AUTHORITY
First Respondent
MARTIN RUSSELL HONEY
Second Respondent
Hearing: 10 June 2020 (further materials requested by the Court provided by parties on 12, 15, 18 and 19 June and 1 July 2020) Appearances:
Appellants each in person
M J Hodge for First Respondent
D W Grove for Second RespondentJudgment:
3 July 2020
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 3 July 2020 at 12.00 midday Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Meredith Connell, Auckland D Grove, Auckland
Copy to:
The appellants
NOTTINGHAM v REAL ESTATE AGENTS AUTHORITY [2020] NZHC 1561 [3 July 2020]
Introduction
[1] The appellants, Dermot Nottingham, Phillip Nottingham and Robert McKinney (jointly the appellants), appeal a decision of the Real Estate Agents Disciplinary Tribunal (the Tribunal) given on 26 November 2019 striking out their appeal proceedings before the Tribunal on the basis that they are vexatious and an abuse of process.1
[2] The first respondent – the Real Estate Agents Authority (the Authority) – abides the Court’s decision. It did, however, make submissions addressing points of principle.
[3] The second respondent, Mr Honey, supports the Tribunal’s decision and argues that it is correct.
Factual background
[4] The factual background to this matter has become complicated and it is now partly obscured by the mists of time. I set out the background as well as I can from the materials made available to me.
a)The complaints and the decisions given under the Real Estate Agents Act 2008
[5] In late September 2009, Property Bank Realtor Limited (PBRL) purchased a RE/MAX franchise. In October 2009 it began operating a real estate business known as RE/MAX Advantage Onehunga.
[6] The RE/MAX franchise had previously been owned by a company controlled by Mr Honey, Pure Realty Ltd. It had operated a real estate business in Royal Oak.
[7] On 25 February 2011, Mr Dermot Nottingham and PBRL lodged a complaint with the Authority pursuant to s 74 of the Real Estate Agents Act 2008 (the Act) about the conduct of Mr Honey and his company. In essence, the complaint alleged that Mr Honey had operated a website with RE/MAX branding after February 2010 and
1 Nottingham v Real Estate Agents Authority [2019] NZREADT 53.
that the web pages displayed listings held by Mr Honey and his company under his new franchise – a Ray White franchise. Mr Nottingham alleged that Mr Honey was continuing to operate the website using the RE/MAX franchise, when he no longer held a franchise from RE/MAX, that he was misleading the public into believing that he was operating a RE/MAX franchise when he was in fact operating a Ray White franchise, and that as a result, PBRL had lost “tens of thousands of dollars” in commission.
[8] The complaint asserted that Mr Honey’s website was “fraudulent”, that Mr Honey acted “dishonestly and in a brazen way”, and that “the operation of [the] fraudulent website was premeditated and not accidental as claimed”. In a later decision, the Tribunal summarised Mr Nottingham’s complaint as follows:2
The case for the appellants is that Mr Honey deliberately conspired with his web designer, Mr Hemi Taka, to leave live RE/MAX branded web pages on the internet accessible via search engines, displaying properties listed with [Mr Honey’s] then new Ray White franchise. The contention is that this was done intentionally and dishonestly to mislead consumers and drive web traffic away from RE/MAX and towards [Mr Honey’s] Ray White franchise.
This summary appears to be accurate.
[9] The complaint was accepted by the Authority on 26 April 2011, and it was referred to a Complaints Assessment Committee (the Committee) set up under the Act.
[10] On 10 June 2011, Mr Honey lodged a complaint asserting that Mr Dermot Nottingham and PBRL had acted dishonestly and endeavoured to intimidate him in relation to the complaint lodged on 25 February 2011.
[11] On 29 June 2011, Mr Dermot Nottingham and PBRL then made a second complaint against Mr Honey and his wife “if she is a licensed agent”. In very broad terms, they asserted that Mr Honey’s complaint was retaliatory and disingenuous. Again, there were liberal allegations of fraud and dishonesty alleged to have been committed by Mr Honey – “the fraudulent website”, “dishonest behaviour”, “[Mr Honey] was fraudulently representing to the public …”, “… fraudulent
2 Nottingham v Real Estate Agents Authority (CAC 10057) [2014] NZREADT 80 at [20].
behaviour…”, and “… fraudulent means …”. On the following day Mr McKinney lodged a like complaint against Mr Honey and his wife. Again, it was replete with allegations of fraud, dishonesty and worse by Mr Honey. I am told that Mr Dermot Nottingham’s brother, Phillip Nottingham, also lodged a complaint, but no-one has been able to make a copy of this complaint available to me. It appears from a document made available by the appellants that at the least Mr Phillip Nottingham alleged that Mr Honey had made “false accusations” against him.3
[12] The Committee proceeded to inquire into the 25 February 2011 complaint. It held a hearing on the papers. Having reviewed the available evidence, the Committee could find no intention by Mr Honey to remain connected to RE/MAX. It found that Mr Honey had taken steps to change his website, and that while there may have been additional steps open to him, it had been reasonable for him to rely on the technical expertise of his web designer. It was also satisfied that Mr Honey took steps to rebrand his agency as a Ray White agency and to remove his previous connection to RE/MAX. In a decision dated 28 March 2012, it decided to take no further action on the complaint pursuant to s 89(2)(c) of the Act.4
[13] Mr Honey’s complaint resulted in a disciplinary charge being laid against PBRL.5 I was advised from the bar that this charge was ultimately withdrawn on a without prejudice basis. Mr Hodge advised me that this was in part because of delay and because intervening events after the charge was filed led the prosecution to conclude that proceeding with the case was no longer in the public interest. No other party took issue with these assertions. I assume that Mr Honey’s complaint against Mr Nottingham was also dealt with but no-one made a copy of the relevant decision available to me. It does appear that the Authority refused to renew Mr Dermot Nottingham’s licence as a real estate sales person at some stage.6 This does not however affect the matters I am required to consider.
[14] On 18 July 2012, the Committee decided to take no further action on the three complaints lodged by Mr Dermot Nottingham and PBRL, by Mr Phillip Nottingham
3 Report prepared by Hikaka Investigations for Mr Dermot Nottingham dated 30 January 2012.
4 In the Matter of Complaint No CA4489320, 28 March 2012.
5 Nottingham v Real Estate Agents Authority [2017] NZCA 1 at [7].
6 Ibid.
and by Mr McKinney in June 2011. Its decision was made pursuant to s 79(2)(a) of the Act. It considered that the complaints were not about real estate agents’ work, that the fact that Mr Honey had lodged a complaint against Mr Dermot Nottingham and PBRL did not amount to misconduct as defined in the Act, and that accordingly the three complaints against Mr Honey did not fall within the relevant provisions in the Act.7
[15] The Committee’s decisions of 28 March 2012 and 18 July 2012 were appealed to the Tribunal by Mr Dermot Nottingham and PBRL. Insofar as I can glean, Mr Phillip Nottingham and Mr McKinney did not appeal the Committee’s decision of 18 July 2012.
[16] After a four day hearing and after receiving written submissions, the Tribunal dismissed the appeals in a decision issued on 13 October 2014.8 It noted that the nub of Mr Dermot Nottingham’s and PBRL’s case on both appeals had to be that the Committee was plainly wrong to conclude that the evidence did not disclose a case to answer of misconduct by Mr Honey and, consequently, that the Committee erred in law and was plainly wrong in exercising its discretion not to lay charges. The Tribunal considered that it was for the appellants to establish that the Committee erred in law, took into account irrelevant considerations, failed to take into account relevant considerations, or was plainly wrong. It found that Mr Honey was an honest witness. It accepted that he had no relevant knowledge and that he had no mens rea (or guilty mind). It found that Mr Honey was therefore not guilty of misconduct, and that his conduct could not be regarded as disgraceful, seriously incompetent or seriously negligent. The Tribunal did however express concern that the website for Mr Honey’s new business was still linked to the RE/MAX website. It took the view that Mr Honey’s IT consultant, Mr Taka, was responsible for this.
7 In the Matter of Complaint Nos CB 5576753, CB 5577095 and CB 5577194, 18 July 2012.
8 Nottingham v Real Estate Agents Authority (CAC10057) [2014] NZREADT 80.
[17]The appellants appealed the Tribunal’s decision to this Court.9
[18] The appeal came before Thomas J. In a judgment issued on 10 July 2015,10 she found that the Tribunal had failed to take into account relevant considerations, in particular, that it had misunderstood evidence given by a Mrs West (a salesperson formerly employed by Mr Honey) and that it had failed to consider the evidence of a Mrs Earlam and a Mrs Muller, both also former employees of Mr Honey (their statements of evidence had been provided to the Tribunal after the hearing had been completed, but before final submissions were made). Thomas J discussed the Committee’s decision and the appeals. She accepted a submission from Mr Dermot Nottingham that the two appeals were inextricably linked. She stated as follows:11
Given the Tribunal’s findings in respect of the first complaint, the result on the second was the logical conclusion. If, in light of the relevant considerations which the Tribunal failed to take into account, a charge is successfully laid against Mr Honey in respect of the first complaint, then the second complaint needs to be reassessed. The focus of the complaint would be that Mr Honey deliberately misled the Authority as to the lack of any justification for the appellants’ complaint – for example, that Mr Dermot Nottingham’s claim was far-fetched and ludicrous. Any such finding would not, however, preclude Mr Honey from raising a defence that the complaint was nevertheless genuine.
Thomas J called for further submissions on the appropriate orders.
[19] In a further judgment delivered on 21 August 2015, Thomas J directed that the appeals against the Committee’s decisions should be remitted back to the Tribunal, so that it could consider the impact of the evidence given by Mrs West, and the fresh evidence of Mrs Earlam and Mrs Muller.12
9 In the course of a preliminary decision dealing with various interlocutory matters, I was advised that PBRL had not been a party to the complaints lodged with the Authority, and that its name had come in inadvertently as a result of a minute issued at a relatively early stage by the Committee. That advice was given to me by counsel then appearing for the Authority. It is now clear that this advice was wrong. Nevertheless, I recorded the parties’ agreement before me that the appropriate course was to delete the name of PBRL as an appellant and to substitute Mr Phillip Nottingham and Mr McKinney as appellants. By consent, I ordered that the names of the parties be amended
– Nottingham v Real Estate Agents Authority [2015] NZHC 529 at [31].
10 Nottingham v Real Estate Agents Authority [2015] NZHC 1616.
11 At [118].
12 Nottingham v Real Estate Agents Authority [2015] NZHC 1998 at [18].
[20] The appellants then appealed to the Court of Appeal. On 27 February 2017, it upheld Thomas J’s decision (although finding that she had adopted the wrong standard for appellate consideration) but supplemented her direction by adding a further direction that the Tribunal re-hearing the appeals was not to include any members of the Tribunal who heard the first appeals.13
[21] On 18 August 2017, the Tribunal made procedural directions, by consent, in relation to the rehearing directed by the High Court and confirmed by the Court of Appeal. In the course of those directions, it noted that the appellants had signalled their intention to file an application to admit further evidence. The Tribunal made further procedural directions in this regard. The appellants did apply to admit further evidence and, on 11 October 2017, the Tribunal issued a ruling dealing with this issue.
[22] On 7 November 2017, the appellants filed an appeal in this Court challenging this ruling.
[23] The rehearing of the appellants’ appeals before the Tribunal was scheduled to begin on 4 December 2017. On 20 November 2017, the appellants filed an application seeking to adjourn the rehearing pending the determination of their appeal against the 11 October 2017 decision by this Court. The Tribunal allowed that adjournment in a ruling issued on 27 November 2017.14
[24] In a judgment issued on 7 December 2017, Duffy J ordered, pursuant to r 5.35(b)(ii)(a) of the High Court Rules, that the appellants appeal against the Tribunal’s decision of 11 October 2017 be struck out.15
[25] On 15 December 2017, the Authority filed a memorandum advising that the appellants’ appeal had been struck out and seeking a new date for the rehearing of the appeals as soon as was reasonably practicable in 2018. On 18 December 2017, Mr Honey filed a memorandum supporting the position taken by the Authority. On the same day, the appellants sent an email to the Tribunal’s registry, attaching a draft application seeking that Duffy J recall her decision. The appellants advised they would
13 Nottingham v Real Estate Agents Authority, above n 5, at [86]-[90].
14 Nottingham v Real Estate Agents Authority (CAC10057) [2017] NZREADT 69.
15 Nottingham v Real Estate Agents Disciplinary Tribunal [2017] NZHC 3018.
be filing that application the following day, and that, “to cover all bases” they would also be filing an appeal to the Court of Appeal against Duffy J’s decision.
[26] The recall application was filed. Duffy J declined to recall her judgment in a further judgment issued on 21 December 2017.16 The appellants did not however file an amended notice of appeal in this Court. Nor, despite their earlier indication, did they file an appeal to the Court of Appeal. Further, they took no steps to progress the rehearing of their appeals by the Tribunal. Nor were any steps taken by the Tribunal, the Authority or Mr Honey, to set the rehearing down for a fixture.
[27] On 20 June 2019, Mr Honey filed a memorandum seeking to have the appeals dismissed or struck out. The Authority advised in a memorandum dated 25 July 2019 that it would abide the decision of the Tribunal on any strike out. The appellants, in a memorandum dated 26 July 2019, submitted that the Tribunal should set the appeals down for rehearing. It seems that none of the memoranda discussed the Tribunal’s jurisdiction to strike out the appeals. The Tribunal directed the parties to file submissions in this regard. They did so in September/October 2019. The Tribunal then proceeded to deal with Mr Honey’s strike out application on the papers.17 I discuss its decision below.
b)Mr Dermot Nottingham’s proceedings in the District and High Courts
[28] Contemporaneously, Mr Dermot Nottingham commenced a private prosecution against Mr and Mrs Honey and against their IT consultant, Mr Taka. The course of that private prosecution, and other relevant proceedings, is set out in detail in the Tribunal’s decision and I gratefully adopt its analysis:18
[14]In April 2014, the District Court at Auckland accepted for filing charges laid by Mr Dermot Nottingham against Mr Honey's wife, Mrs Stephanie Honey, and Mr Hemi Taka, a web designer contracted to Mr Honey. On 1 October 2015, the District Court accepted for filing four charges brought by Mr Nottingham against Mr Honey. The charges against the three accused were heard in the District Court at
16 Nottingham v Real Estate Agents Authority [2017] NZHC 3279.
17 The Tribunal may determine a proceeding on the papers if it considers it appropriate to do so. Before doing so, it must give the parties a reasonable opportunity to comment on whether the proceeding should be dealt with in this manner – s 107A of the Real Estate Agents Act 2008.
18 Emphasis added in [15] and [36]; footnotes altered to fit with this judgment.
Auckland in a Judge-alone trial before District Court Judge E Paul, over 17 hearing days from 4 April 2016.
[15]In his reserved judgment delivered on 20 June 2016,19 Judge Paul recorded that the charges arose out of the same facts as had led to the appellants' complaint to the Authority against Mr Honey. The Judge recorded that all of the charges alleged a conspiracy, and summarised the case against Mr and Mrs Honey and Mr Taka, as follows:20
“In essence, the prosecutor's case against all accused is that they conspired to set up and maintain a fraudulent RE/MAX website deliberately and dishonestly so that Mr Honey was able to ‘poach business’ which might otherwise have gone to the prosecutor's company.”
[16]In respect of the charges against Mrs Honey and Mr Taka (charges under s 240 of the Crimes Act 1961 of obtaining by deception or causing loss by deception) the Judge found that the prosecution had not proved any benefit or loss, and dismissed the charges.21
[17]Judge Paul also dismissed each of the four charges against Mr Honey. Charging document CRN 15004503829 alleged perjury in furtherance of a conspiracy to defeat the course of justice, in Mr Honey's evidence to the Tribunal as to a screenshot of a web page for The Real Estate Guys (an agency operated by the appellants after having terminated their RE/MAX franchise), which he said was a “loaded” web page. The Judge recorded that it was common ground during the trial, accepted by Mr Honey, that the screenshot was not a “fully loaded” web page. The Judge found that it was not established beyond reasonable doubt that when he gave the evidence as to the screenshot Mr Honey knew that the screenshot was not of a “fully loaded” webpage, or that in giving the evidence he intended to mislead the Tribunal. 22
[18]Charging document CRN 15004503838 alleged that in furtherance of a conspiracy pursuant to s 116 of the Crimes Act 1961, Mr Honey directed Mrs Honey to have Mr Taka produce an email dated 19 April 2010, in order to deceive the Authority and any of its investigators when aware that the content of the email was false and designed to deceive. The prosecution alleged that the email set out a false, invented, excuse that the RE/MAX web pages were the result of “Google caching”. The Judge recorded that it was accepted by Mr and Mrs Honey and their expert witness, Mrs Payne, that the RE/MAX pages were not “cached”, but had been “left behind” when Mr Taka created Mr Honey's Ray White website.
[19]Judge Paul found that there was no evidence establishing a conspiracy: that is, an agreement between two or more people, who intend to commit an offence. The Judge held that Mr Honey's instruction to Mrs Honey to get Mr Taka to get rid of the RE/MAX
19 Nottingham v Honey [2016] NZDC 9272.
20 At [9].
21 At [25]-[31].
22 At [34]-[43].
links and provide an explanation did not give rise to an available inference of such an agreement. 23
[20]Charging document CRN 15004503839 alleged that in furtherance of a conspiracy pursuant to s 116 of the Crimes Act 1961, Mr Honey authored a letter dated 28 February 2011, addressed to the New Zealand Police, making false accusations of blackmail and harassment against Mr Dermot Nottingham, Mr McKinney, and Mr D A McPherson, falsely asserting that he was unaware of the fraudulent RE/MAX website being live with his Ray White listings, and forwarded this letter to the Authority.
[21]In considering this charge, Judge Paul recorded that the allegation of blackmail and harassment appeared to have some foundation, referring to evidence that Mr McKinney and Mr Nottingham were demanding money to resolve the issue of the RE/MAX pages being live, and evidence given by a (then) Member of Parliament being consistent with Mr Nottingham making false allegations and harassment.24
[22]Judge Paul also referred to evidence given by Mrs West and Mrs Earlam, which showed that Mr Honey was aware that RE/MAX pages were live and not cached.25
[23]The Judge found that the “conspiracy element” was again determinative of the charge. He referred to Mrs Honey's evidence as being “at its highest” of having accepted that she typed part of the letter to the Police, while saying that the allegations set out in the letter were not hers, but Mr Honey's. The Judge found that the evidence was equivocal. An inference could be drawn that Mrs Honey agreed to make a false allegation against Mr Nottingham and an inference could equally be drawn (which the evidence tended to support) that Mrs Honey was acting on her husband's instructions. He held that to choose between the two inferences would be wrong, so was unable to find that the necessary agreement had been established. Accordingly, the charge was dismissed.26
[24]Charging document CRN15004503831 alleged that Mr Honey, in furtherance of a conspiracy pursuant to s 116 of the Crimes Act, authored a letter dated 10 June 2011 to the Authority's Complaints Assessment Committee, knowing that relevant material parts of the letter were intentionally false, in an attempt to mislead the Authority, the Committee, and the Tribunal. The letter annexed Mr Taka's email of 19 April 2010, and the letter to the Police of 28 February 2011.
[25]Judge Paul referred to his earlier finding that Mr Nottingham had failed to establish that Mr Honey knew that the contents of Mr Taka's email (in particular) were false or misleading. However, the Judge found that the determining factor was the complete absence of any evidence establishing a conspiracy. The Judge referred to Mr
23 At [49]-[53].
24 At [61].
25 At [62]-[63].
26 At [64]-[67].
Nottingham's submissions as to the evidence establishing a conspiracy. Of these, the only relevant submission appeared to be that Mr Honey had instructed Mrs Honey to obtain an explanation from Mr Taka. The Judge held that that could not amount to a conspiracy. No agreement was disclosed, and none could be inferred.
Accordingly, the charge was dismissed.27
[26]In a judgment delivered on 13 July 2016, Judge Paul continued non- publication orders, and made orders that Mr Nottingham pay costs to Mr Honey and Mr Taka, totalling $117,000.
Mr Nottingham's appeal to the High Court
[27]Mr Nottingham applied for leave to appeal against Judge Paul's decision under s 296 of the Criminal Procedure Act 2011, pursuant to which an appeal can be brought, with leave, on a question of law arising from a ruling arising in proceedings relating to or following the determination of a charge, or in the determination of the charge. The application for leave was dismissed in a judgment delivered by his Honour Justice Davison on 24 July 2017.28
[28]Justice Davison set out the grounds of the application pursued by Mr Nottingham as follows:29
“ … that there was no evidence to support the factual findings made by the District Court Judge, or alternatively that the Judge had failed to draw an inference of fact which was the only one reasonably possible on the evidence, namely that the accessible RE/MAX pages linked to Mr Honey's Ray White branded website, were not accessible by reason of an inadvertent error, but were a deliberate and intentional means by which Mr Honey sought to benefit his Ray White agency business by means of his former association with RE/MAX.”
[29]He summarised Mr Nottingham's submissions as follows:30
“[Mr Nottingham] presented extensive written and oral submission in which he focussed on the trial evidence, in support of a submission that the defendants' claim that unintentional accessible RE/MAX branded pages remained on Mr Honey's website following the change to the Ray White franchise in February 2009 was implausible. He submitted, by reference to this evidence, that the prosecution had established that Mr Honey knew about the presence of the RE/MAX pages well prior to [Mr Nottingham's] phone call to Mrs Honey on 19 April 2010. That being the case, says [Mr Nottingham], the exculpatory explanations and evidence given by the defendants to the [Authority], [Complaints Assessment Committee] and [the Tribunal] were false and were made by the defendants in concert and with intent to mislead and to pervert the course of justice. … ”
27 At [68]-[75].
28 Nottingham v District Court at Auckland [2017] NZHC 1715.
29 At [27].
30 At [28].
[30]With respect to the charges against Mrs Honey and Mr Taka, Justice Davison held that Judge Paul had correctly held that Mr Nottingham was required to establish what benefits they respectively obtained, and failed to do so. He recorded that Mr Nottingham had submitted that the loss caused by the actions of Mr and Mrs Honey and Mr Taka was established by the evidence of Mrs West, of a client seeking to contact her by means of a RE/MAX search being redirected to Mr Honey's Ray White website, and that he had alleged that Mr Honey had sought to increase his Google ranking without paying for it, and that there was a loss to RE/MAX of advertising, franchise fees, and lost inquiries for listings. He said that:31
“Mrs West's evidence did not prove that any RE/MAX franchise, including the RE/MAX franchise operated by [Mr Nottingham] and his business associates, suffered any loss as a result of the events she described in her evidence. In fact her client was looking to make contact with her personally and did so. As regards Google rankings, there was no evidence that any such benefit was obtained.”
[31]Justice Davison concluded that Mr Nottingham had not identified a question of law that would justify leave being granted to appeal in relation to s 240 of the Crimes Act, or its application in the case before him.32
[32]In respect of each of the four charges against Mr Honey, Justice Davison found that there was evidence before Judge Paul which provided a foundation for his findings.
[33]Regarding the charge set out in charging document CRN 15004503829 (referred to in paragraph [17], above), based on Mr Honey's evidence to the Tribunal of seeing RE/MAX material on a Real Estate Guys website, his Honour referred to evidence given in the District Court by Mrs Payne, an IT expert called by counsel for Mr Honey, as to testing carried out on the Real Estate Guys website, and her conclusion that old or earlier RE/MAX information had been left behind when the RE/MAX website was changed or upgraded to become the real Estate Guys website. He concluded:33
“Having regard to Mrs Payne's evidence, it is clear that there was evidence before the Judge that provided a foundation for his finding that the prosecution had failed to prove that Mr Honey's evidence about the screen-shot photograph showing the RE/MAX logo on the real Estate Guys website was intended by Mr Honey to mislead the Tribunal.”
[34]Regarding the charge set out in charging document CRN 15004503838 (referred to in paragraphs [18] and [19], above), based on Mr Taka's email of 19 April 2010, Justice Davison found:34
“[89] In relation to this charge the Judge found that there was simply no evidence of a conspiracy between Mr Honey and his
31 At [61].
32 At [70].
33 At [84].
34 At [89]-[90].
wife pursuant to which he arranged for her to obtain a false explanation for the accessible RE/MAX pages from Mr Taka. In the absence of any direct evidence to the contrary, the obvious inference to be drawn from Mr Taka's email is that it is entirely consistent with there being an innocent explanation for the presence of the accessible RE/MAX webpages, and that the whole process of creating the new Ray White website had been undertaken in good faith with the intention of removing all live and accessible references to RE/MAX.
[90] Accordingly, the prosecution has failed to show that the Judge's finding in relation to this charge was clearly untenable and not supported by the evidence. … ”
[35]In relation to charging document CRN 15004503839 (referred to in paragraphs [20]—[23], above), concerning the letter to the NZ Police dated 28 February 2011, Justice Davison said:35
“[94] The Judge then noted that while there was evidence that Mr Honey was aware that the RE/MAX pages were live and not cached, it was the conspiracy element that was determinative of the charge. The Judge concluded that the evidence in that regard was equivocal. …
[95] It is clear from the Judge's statement that the conspiracy element was determinative and that the evidence presented by the prosecution had failed to prove that Mr and Mrs Honey were parties to a conspiracy to make false accusations against [Mr Nottingham] and his business associates Mr McKinney and Mr McPherson. In his letter addressed to the Police, Mr Honey referred to the telephone call to Mrs Honey in April 2010. Mr Honey also said that [Mr Nottingham] had recently, in February 2011, sent him text messages and correspondence which he described as being threatening. He explained that he and his wife were upset and concerned for the safety of himself and their young family. Mr Honey further detailed his transfer from RE/MAX to a Ray White franchise, and repeated the explanation that he had obtained from Mr Taka regarding the accessible RE/MAX branded webpages.
[96] It is appropriate to note that in his letter addressed to the New Zealand Police dated 28 February 2011, Mr Honey attached the email containing Mr Taka's explanation. This charge alleged that Mr Honey had stated in the 28 February 2011 letter that he was unaware of the fraudulent RE/MAX webpage being live with Ray White listings however the letter contains no such statement.
…
[98] It is clear that if leave were granted, [Mr Nottingham] would be unable to show that the Judge had reached an untenable conclusion on the evidence before him. There was certainly credible evidence before the Judge that provided a foundation for the conclusion he reached. … ”
[36]Similarly, in relation to the dismissal of the charge set out in charging document CRN 15004503831 (referred to in paragraphs [24]—[25],
35 At [94]-[96] and [98].
above), concerning Mr Honey's letter of 10 June 2011 to the Complaints Assessment Committee, Justice Davison recorded that Judge Paul had found that the allegation of conspiracy had not been proved, and that there was a complete absence of any evidence that would establish a conspiracy. He said:36
“[102] … By that finding the Judge effectively although not expressly, accepted the presence of the RE/MAX branded and accessible webpages on the martinhoney.co.nz site was the result of a mistake and not due to a deliberate plan to deceive the public. Mr Chappell, the expert witness called by the prosecution, did not substantially disagree with Mrs Payne, and accepted under cross- examination that the internet accessibility of the ‘left behind’ RE/MAX branded pages could have been a mistake on the part of Mr Taka when he was designing the new Ray White branded website. The charges brought against [Mr Honey, Mrs Honey, and Mr Taka] are all based on the proposition that Mr Honey, aided and assisted by his wife and Mr Taka, had set up and was operating a fraudulent website. On that premise, the prosecution case against Mr Honey was that he knowingly provided false and misleading information to the [Authority, Complaints Assessment Committee and Tribunal] in an attempt to conceal his illegal actions and in order to make a false complaint against [Mr Nottingham]. However, once the Judge determined that there was no evidence whatsoever of a conspiracy between the defendants, the basis for the charges of attempting to pervert the course of justice fell away.
[103] It is clear that there was credible evidence which provided a foundation for the Judge's conclusion that Mr Honey was not acting to deceive the [Authority, Complaints Assessment Committee and Tribunal] pursuant to a conspiracy to present a false complaint against [Mr Nottingham]. Accordingly, if leave were granted, [Mr Nottingham] would not be able to show that the Judge reached an unsupportable and clearly untenable conclusion on the evidence before him. … ”
[37]His Honour then considered “Other issues — Mrs West and the former staff witnesses”. He referred to “evidence called by the prosecution from three former staff members who gave evidence of accessing the RE/MAX branded webpages following the conversion to the Ray White franchise on 13 February 2009”. He recorded that the RE/MAX and Ray White sites had both remained live for one month following the changeover “in accordance with arrangements made by Mr Honey and RE/MAX”. He referred to Mrs West's evidence of having typed in “RE/MAX Martin Honey” in around July 2009, and being taken to a RE/MAX page with Mr Honey's current Ray White listings shown. Mrs West said she told Mr Honey about this and he had said he “must do something about it”. He said that on the basis of that evidence, Mr Nottingham said that Mr Honey's subsequent complaint to the Authority and the content of his letter to the Police could be shown to be untrue, and submitted that the evidence contradicted the District Court Judge's determinations in relation to the charges, and was of such significance that the Judge's failure to make a finding on that
36 At [102]-[103].
basis amounted to an error of law upon which leave to appeal should be granted.37
[38]Justice Davison did not accept this submission. He said:38
“[105] In considering this issue, it is important to note that whether or not Mr Honey was told about the accessible RE/MAX branded webpages in July 2009, his knowledge of it from that time does not mean that it must have been the result of any deliberate measures employed at the time of his agency's transition from a RE/MAX franchise to the Ray White franchise. Moreover, as explained by Mr Honey in the letters he wrote to the Police and to the [Authority], he was not aware of any business coming to him at Ray White that was misdirected and diverted away from any RE/MAX branded real estate agents. Mr Taka's explanation to Mr Honey as to why this was happening, set out in his email of 19 April 2010, was that it was likely to be due to the Google process of ‘caching’. Mr Taka said in his email that “The site changeover to Ray White has been managed in good faith and all branding and references removed from the website. Mr Taka went on to say ‘We will delete these pages from the server and Google will remove them from web searches over time. We would usually keep the pages in this non-available mode as you have invested time and effort in these pages.’
[106] While [Mr Nottingham] says that this initial Google caching explanation is at odds with the explanation provided by Mrs Payne, any inconsistency does not mean that the ‘Google cache’ explanation was deliberately false, and therefore evidence of an intention to deceive being in operation from the time of the conversion of the RE/MAX site into a Ray White branded site. In my view Mr Taka's initial explanation as contained in his 19 April email is entirely consistent with him advancing what he honestly and genuinely believed to be the reason for the accessible RE/MAX branded pages. Mr Honey had obviously relied on Mr Taka's computer expertise to undertake the conversion of the RE/MAX branded website to the Ray White branded site that would replace it. It cannot be expected that a person without expertise in the field of computers and the internet would have sufficient knowledge to understand the computer and internet based mechanisms which would lead to and explain this occurrence.”
…
Appeals by Mr Nottingham
[40]Mr Nottingham filed an application for leave to appeal to the Court of Appeal against the judgment of Justice Davison. In a judgment delivered on 7 August 2018, the Court of Appeal held that under the relevant provisions of the Criminal Procedure Act (ss 213, 300 , and
303) the decision of the High Court declining leave to appeal was final, there could be no appeal to the Court of Appeal against that decision.39
37 At [104].
38 At [105]-[106].
39 Nottingham v District Court at Auckland [2004] NZCA 345 at [9]-[21].
[41]The Supreme Court refused leave for Mr Nottingham to appeal to that Court.40
Mr Nottingham's conviction for criminal harassment
[42]On 18 May 2018, Mr Nottingham was convicted after a jury trial in the Auckland District Court on five charges of criminal harassment. [redacted]. He was sentenced to nine months' home detention (with six months' post-detention conditions) and ordered to complete 100 hours of community work. 41
[43]In a judgment delivered on 20 July 2019, the Court of Appeal dismissed Mr Nottingham's appeal against conviction and sentence, and allowed the Crown's appeal against sentence. The Court of Appeal quashed the District Court sentences of home detention and replaced them with new sentences of 12 months' home detention.42
The Tribunal’s decision on Mr Honey’s strike out application
[29] The Tribunal summarised the procedural history, the directions it made requiring the filing of submissions and the relevant proceedings in both the District Court and the High Court, much as set out above. It then recorded the submissions filed by the parties. It noted the power to strike out conferred on it by s 109A of the Act and observed that it is in very similar terms to the power to strike out conferred on the High Court under r 15.1 of the High Court Rules. It considered that case law under r 15.1 can be used to interpret s 109A. It also accepted that s 109A should be interpreted in light of the purpose of the Act, as set out in s 3.
[30] The Tribunal recorded that Mr Grove, appearing on behalf of Mr Honey, based the strike out application on s 109A(b) to (d). It referred to case law in the Court of Appeal and the House of Lords dealing with abuse of process,43 as well as to commentary in McGechan on Procedure in this regard.44
[31] The Tribunal summarised the appellants’ complaint as noted above in [8]; it also noted the summaries of Mr Dermot Nottingham’s case against Mr Honey, Mrs Honey and Mr Taka given in the District Court (see [28] above – citing text in
40 Nottingham v Taka [2018] NZSC 102.
41 R v Nottingham [2018] NZDC 15373,
42 Nottingham v R [2019] NZCA 344.
43 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89]; Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 543.
44 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR 15.1.05].
bold in [15] of the Tribunal’s judgment which in turn cited [9] of Judge Paul’s judgment) and by Davison J in his judgment (see [28] above – citing text in bold in
[36] of the Tribunal’s judgment which in turn cited [102] of Davison J’s judgment). The Tribunal considered that the issues raised by the complaints and in the charges brought in the District Court were the same. As a result, it held that the factual findings made by Judge Paul in the District Court, which Davison J found formed a proper basis for Judge Paul’s decision to dismiss all the charges, could not be ignored by it.
[32] The Tribunal noted that the appeals45 had been remitted back to a differently constituted tribunal to give further consideration to Mrs West’s evidence and to consider the evidence of Mrs Earlam and Mrs Muller in relation to the complaints made against Mr Honey. The Tribunal considered that this was the limit of its jurisdiction. It went on to note that Mrs West, Mrs Earlam and Mrs Muller all gave evidence before Judge Paul, and noted that Judge Paul accepted that there was evidence that Mr Honey was aware that the RE/MAX pages were live and not “cached”. However, Judge Paul went on to find that the allegation of conspiracy made in the criminal proceedings was not proved. It noted that Judge Paul found that Mr Taka honestly and genuinely believed that the RE/MAX web pages had been cached and that Mr Honey relied on Mr Taka’s advice. The Tribunal noted that Judge Paul found that Mr Nottingham had not proved that Mr Honey conspired with Mrs Honey and Mr Taka “to invent a Google caching excuse” or to make a false allegation against the appellants or that Mr Honey intended to mislead the Tribunal, the Authority or the police. The Tribunal also noted Davison J’s observation that Mr Taka’s explanation for the cached pages was consistent with a genuine and honest explanation and that Mr and Mrs Honey’s subsequent repetition of it was reasonable because they could be expected to rely on Mr Taka. It noted that Davison J found that there was credible evidence for Judge Paul’s conclusion that Mr Honey had not acted to deceive the Tribunal or the Authority and that the presence of the RE/MAX branded accessible web pages was the result of a mistake and not a deliberate plan to deceive.
45 The Tribunal stated that the “appellants’ complaint” had been remitted back – Nottingham v Real Estate Agents Authority [2019] NZREADT 53 at [61]. This was not correct. It may well have been a typographical error. Nothing turns on this.
[33] The Tribunal repeated that Thomas J had directed it to reconsider Mrs West’s evidence and to consider the evidence of Mrs Earlam and Mrs Muller. It considered that that reconsideration had been undertaken by Judge Paul in the District Court, as a result of the prosecution brought by Mr Dermot Nottingham. It noted that both Judge Paul and Davison J had accepted the evidence given by Mrs West, Mrs Earlam and Mrs Muller, but found that that evidence did not establish the appellants’ claim that Mr Honey operated a fraudulent RE/MAX website and invented a “Google caching excuse” to mislead the Tribunal.
[34] The Tribunal recorded that it was conscious that charges before it would be determined on the balance of probabilities and that the criminal standard of beyond reasonable doubt applied to the District Court charges. The Tribunal however went on to say that, given the serious nature of the allegations made by the appellants in their complaints, it did not consider that the application of a different standard of proof would cause it to reach a different conclusion. The Tribunal held as follows:
[69]By pursuing their appeals to the Tribunal and seeking charges against Mr Honey, the appellants are attempting to do what the House of Lords … and the Court of Appeal … held cannot be done: to relitigate issues which have been explored in considerable detail in the proceedings they brought in the District Court, and in respect of which they had the full opportunity (which they took) to contest the District Court's decision on appeal to the High Court and Court of Appeal.
[70]We find that it would be frivolous, vexatious, and an abuse of the Tribunal's processes to repeat the re-consideration and consideration directed by Justice Thomas, and already undertaken by Judge Paul, whose findings were upheld in the High Court. As a result of that process, the appellants' appeals can properly be described as “meritless”.
Submissions
[35] I did not find the appellants’ submissions helpful. Despite Powell J setting out in a minute what the appellants should focus on, they did not do so.46
[36]Three sets of submissions were filed by Mr Dermot Nottingham.
46 “… Judge Paul’s decision is not and cannot be at issue in this proceeding. Instead it is clear the issue is whether the disciplinary tribunal, essentially relying upon the findings of Judge Paul and Paul Davison J, had a basis for striking out the appellants’ appeal without itself undertaking an analysis of the evidence” – Nottingham v Real Estate Agency Authority, Minute dated 26 February 2020 at [10]; And see further Minute, 4 March 2020 at [6].
(a)His written submissions were little more than a rather bitter polemic. He did not focus on the Tribunal’s decision and the reasons given by the Tribunal for it. Rather, he descended into an attack on various of the decision makers who have dealt with this matter over the years; he sought to attribute bias or worse to those decision makers. These written submissions were not however pursued at the hearing.
(b)Further written submissions were presented at the hearing. Again, Mr Nottingham did not focus on the issue. Rather, he sought to take issue with the factual decisions made by Judge Paul and confirmed by Davison J. It was put it to me that there has been “a divergence of conduct on certain matters between two sets of judicial officers and quasi-judicial officers”. Essentially Mr Nottingham asserted that one set of judicial officers had ignored and/or not taken into account what he considers is crucial evidence, and that another set has done so. Mr Nottingham also argued that the judgments given by Judge Paul and Davison J are opinion, and not evidence, and that they are inadmissible before the Tribunal.
(c)Notwithstanding that he was not given leave to do so, Mr Nottingham filed further submissions after the hearing had been concluded. He was given limited leave to reply to further papers I directed the Authority to provide, but his further submissions went well beyond that.
[37] Mr Phillip Nottingham and Mr McKinney made separate oral submissions at the hearing. They both adopted Mr Dermot Nottingham’s submissions, but also covered additional matters from their own perspectives.
[38] Mr Grove, for Mr Honey, criticised the appellants for not engaging with the Tribunal’s decision. He put it to me that they had “yet again attempt[ed] to argue their view of the world based upon incomplete and cherry picked documents and statements”. He also argued that the appellants’ written submissions were in part scandalous. Mr Grove submitted that the sole issue for determination on the appeal was whether or not the Tribunal was entitled to rely upon Judge Paul’s and Davison
J’s decisions. He referred to s 109(1) of the Act, which permits the Tribunal to receive as evidence any statement, document, information or matter that may, in its opinion, assist it to deal effectively with the matters before it, and whether or not that material is admissible in a Court of law. He argued that this answered the issue. He also referred to other decisions by the Tribunal where it has relied upon court decisions. He argued that there is no proper basis on which it can be asserted that the Tribunal was unable to rely upon the earlier judgments. He submitted that the appeals lack merit and that they are vexatious and an abuse of the Tribunal’s processes. He submitted that the Tribunal properly struck them out.
[39] Mr Hodge, on behalf of the first respondent Authority, referred to the Tribunal’s power to strike out proceedings conferred by s 109A of the Act. He discussed the text and purpose of the provision, and submitted that regard should be had to s 3 of the Act. He argued that guidance can properly be drawn from the equivalent High Court rule and noted various situations where proceedings had been struck out in the High Court as being an abuse of process. He also referred me to the decision of the Court of Appeal in Oy v Complaints Hearings Committee and Presbytery of Auckland.47 Mr Hodge noted Mr Honey’s argument that the appellants are seeking to relitigate issues decided in the unsuccessful private prosecution brought by Mr Dermot Nottingham. He suggested that, if the Court accepts this, then case law supports the Tribunal’s finding of abuse of process. Mr Hodge also submitted that it was open for the Tribunal to rely on the decisions given in the private prosecution, relying on s 109(1) of the Act.
Analysis
Relevant provisions in the Real Estate Agents Act
[40]Relevantly, s 109A of the Act provides as follows:
109A Disciplinary Tribunal may strike out, determine, or adjourn proceeding
(1)The Disciplinary Tribunal may strike out, in whole or in part, a proceeding if satisfied that it—
47 Oy v Complaints Hearings Committee and Presbytery of Auckland [2013] NZCA 107.
(a)discloses no reasonable cause of action; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of process.
[41] I agree with Mr Hodge that the section falls to be interpreted by reference to its text and purpose; s 5 of the Interpretation Act 1999 so requires. In this regard I accept that s 3 of the Act is relevant. It provides as follows:
3 Purpose of Act
(1)The purpose of this Act is to promote and protect the interests of consumers in respect of transactions that relate to real estate and to promote public confidence in the performance of real estate agency work.
(2)The Act achieves its purpose by—
(a)regulating agents, branch managers, and salespersons:
(b)raising industry standards:
(c)providing accountability through a disciplinary process that is independent, transparent, and effective.
Clearly it is the interests of consumers in respect of transactions that relate to real estate that are paramount, and not the interests of licensees involved in an internecine dispute. Such disputes are better resolved through civil litigation and not through the disciplinary processes under the Act.
[42]Returning to s 109A, the following should be noted:
(a)The Tribunal is given power to strike out a “proceeding”. That word is not defined in the Act, but I accept Mr Hodge’s submission that the power to strike out extends to appeals from Committee decisions to take no further action on complaints, whether pursuant to s 89(2)(c) or s 79(2)(a).
(b)Before the power to strike out can be exercised, the Tribunal must be satisfied that one or more of the jurisdictional pre-requisites set out in
s 109A(1) is met. In the disciplinary context, being satisfied means making up one’s mind that something is the case. It does not require the Tribunal to be satisfied to any particular standard that one or more of the four pre-requisites is established.48
(c)If one or more of the pre-requisites is met, the Tribunal retains a discretion. The section provides that it “may strike out” the proceeding, either in whole or in part.
(d)A strike out is not an all or nothing prospect – the Tribunal has the power to strike out a proceeding, either in whole or in part. For example, the Tribunal can strike out a ground or grounds in a notice of appeal, and permit the rest of the appeal to proceed.
[43]The appeals struck out by the Tribunal in this case were:
(a)Mr Nottingham’s appeal against the Committee’s decision of 28 March 2012 made pursuant to s 89(2)(c) of the Act to take no further action on his and PBRL’s complaint against Mr Honey; and
(b)Mr Nottingham’s and PRBL’s appeal against the Committee’s decision of 18 July 2012 made pursuant to s 79(2)(a) of the Act to take no further action on the complaints lodged by Mr Dermot Nottingham and PRBL. As noted at [15] above, it seems that neither Mr Phillip Nottingham or Mr McKinney appealed this decision. It follows that their only role in this appeal is pursuant to my consent order noted in fn 9 above. They appear in PRBL’s shoes.
Both were struck out in their totality.
[44] It is helpful to consider briefly the statutory scheme for dealing with complaints.
48 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [96].
(a)Under s 74(1) of the Act, any person can complain in writing to the Authority about the conduct of a licensee. A licensee is defined – s 4 – as a real estate agent who holds a current licence as an agent under the Act. The definition extends to a former licensee and a person who is or has been an officer of a company that is or has been a licensee – s 71. Here, as I understand it, there is no dispute that Mr Honey was, at all relevant times, a licensee.
(b)Two types of conduct by a licensee are caught by the Act, unsatisfactory conduct as defined in s 72 and misconduct as defined in s 73.
(c)Under the Act as it stood at the time the underlying complaints were lodged,49 the Authority was required to refer any complaint to a Committee, and to notify the person complained of about the reference
– s 74(2).
(d)It is the Committee’s function to inquire into and investigate complaints made under s 74. It can also, on its own initiative, inquire into and investigate allegations about any licensee, and inter alia, lay and prosecute charges before the Tribunal – s 78.
(e)On receipt of a complaint, the Committee has to consider the complaint and determine whether to inquire into it – s 79(1).
(f)The Committee can, pre any more fulsome inquiry, determine that the complaint alleges neither unsatisfactory conduct under s 72 nor misconduct under s 73 and dismiss it – s 79(2)(a). The Committee so found in its 18 July 2012 decision in relation to the June 2011 complaints lodged by Mr Dermot Nottingham and PBRL, by Mr Phillip Nottingham and by Mr McKinney.
49 Section 74 was amended in 2018 – Tribunals Powers and Procedures Legislation Act 2018, s 231.
(g)The Committee can also determine to inquire into a complaint – s 79(2)(e). This is what the Committee did in relation to the February 2011 complaint lodged by Mr Dermot Nottingham and PBRL.
(h)The Committee is required to give notice of its decision both to the complainant and to the person complained about – s 81.
(i)If the Committee determines to inquire into a complaint it must do so as soon as practicable – s 82(1).
(j)After it has inquired into the complaint and conducted a hearing (which can be on the papers unless the Committee otherwise directs – s 90(1)), the Committee can determine to take no further action with regard to the complaint or allegation or any issue involved in the complaint or allegation – s 89(2)(c). This is what the Committee decided in regard to Mr Nottingham’s and PBRL’s February 2011 complaint by its 28 March 2012 decision.
(k)Again, the Committee is required to give notice of its decision in this regard – s 94.
(l)There is a right of appeal to the Tribunal pursuant to s 111 of the Act – ss 81(2)(b) and 94(2)(c)(i).
(m)Any appeal before the Tribunal is by way of rehearing. After considering the appeal, the Tribunal can confirm, reverse or modify the determination of the Committee. If the Tribunal reverses or modifies a determination of the Committee, it can exercise any of the powers that the Committee could have exercised – s 111(3), (4) and (5).
What happens if an appeal against a decision to take no further action succeeds?
[45] The Tribunal is not given the power under s 111 to remit a complaint back to the Committee to reconsider. It seems that the practice which has been adopted is for the Tribunal to itself draft any charge or charges it considers should have been laid by
the Committee. This seems to be envisaged, albeit obliquely, under the Act.50 As the Court of Appeal has observed, notices given under either ss 81 or 94 are respectively decisions not to take any further action, or to do so. Where the Tribunal reverses a determination of a Committee under s 111(4), it can, under s 111(5) exercise any of the powers the Committee could have exercised. Inter alia it can draft and lay a charge.
[46] Where the Tribunal reverses a decision made under s 89, it assumes the functions of the Committee under s 89. The Tribunal’s options in doing so are set out in s 89(2). It can make a determination that the complaint or allegation be considered by it; it can determine that it has been proved, on the balance of probabilities, that the licensee has engaged in unsatisfactory conduct; it can determine to take no further action with regard to the complaint or allegation or any issue involved in the complaint or allegation. The Court of Appeal has commented as follows:51
[79] The somewhat unusual consequence is that the outcomes could include the Tribunal (standing in the shoes of the [Committee]) determining to refer a complaint to itself for consideration. So long as the Tribunal confines the scope of such appeals from [Committees] within appropriate boundaries, this sequence of events is indeed workable, and does not create a risk of prejudice to any of the parties involved. At the appeal stage, it is open to the Tribunal to find that the [Committee] erred in not recognising that the licensee had a case to answer on the complaint and not framing the complaint as a charge. At the second stage, the Tribunal would determine whether that charge was made out.
[47] Adopting the same reasoning, it must follow that, in respect of a complaint which the Committee has dealt with pre-inquiry under s 79(2)(a), the Tribunal’s options, if it reverses the Committee’s decision, are set those out in s 79(2). It can determine that the complaint alleges neither unsatisfactory conduct nor misconduct and dismiss it; determine that the complaint discloses only an inconsequential matter and that it need not be pursued; determine that the complaint is frivolous or vexatious or not made in good faith and need not be pursued; determine that the complaint should be referred to another agency and so refer it; determine to inquire into the complaint.
[48] It also follows that, in either situation, the Tribunal could exercise the powers in s 80. Section 80(1) permits it, in the exercise of its discretion, to take no further
50 Nottingham v Real Estate Agents Authority, above n 5, at [77].
51 Ibid.
action on a complaint if, in its opinion, the length of time that had elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made is such that investigation of the complaint is no longer practicable or desirable, or the subject matter of the complaint is inconsequential. Section 80(2) permits it to decide, in its discretion, not to take any further action on a complaint if, in the course of the investigation of the complaint, it appears to the Tribunal that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.
[49]These matters have consequences for the way in which any rehearing proceeds.
The rehearing process
[50] Appeals to the Tribunal from decisions made by the Committee not to lay charges, are appeals from the exercise of the prosecutorial discretion which is vested in the Committee.52 An appellant seeking to overturn the exercise of that discretion must establish an error of law or principle, or that the Committee took into account irrelevant considerations, failed to take into account relevant considerations, or made a decision that was plainly wrong.53
[51] On a rehearing, the Tribunal will not be required to rehear all of the oral evidence that would be heard if a charge had been laid. Indeed, if the Tribunal were to allow a full hearing involving potentially all of the oral evidence that would be heard if a charge had been laid, it would err. This is because, at the rehearing, the Tribunal will only be addressing the preliminary issue of whether or not the Committee erred in not bringing a disciplinary charge or charges. The appeal is conducted by way of a rehearing of the proceedings before the Committee – s 111(3). The Committee conducts its hearing on the papers unless it otherwise directs – s 90(1). The Tribunal has the same power, as long as the parties are first consulted – s 107A. Except in exceptional circumstances, full oral rehearings before the Tribunal will not be appropriate, because holding a full oral rehearing risks not only drawing the Tribunal away from the material comprising the record before the Committee, but also raises
52 Nottingham v Real Estate Agents Authority, above n 5, at [36].
53 Kasim v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
the spectre of credibility findings in contests between complainants and the licensee who might be the subject of a charge that would expose the Tribunal to criticism of pre-determination if a charge is then laid.54 Generally such appeals will start with the record of the material that was before the Committee, together with any additional material that was not before the Committee but which should be considered. The Tribunal will be entitled to consider and treat as evidence the judgments given by Judge Paul and Davison J if it wishes to do so.55
[52] The Tribunal is only required to address the preliminary issue of whether the Committee erred in the exercise of its decision not to bring disciplinary charges or to exercise any of the other powers conferred by ss 79(2), 89(2) and 80(1) or (2). The Tribunal is not required to and should not make credibility findings.
[53]Against this background, I return to consider the Tribunal decision in this case.
Did the Tribunal err in striking out the appeals?
[54] The Tribunal conflated the two appeals and dealt with them together. Given the observation made by Thomas J, noted above in [18], which was implicitly endorsed by the Court of Appeal, the Tribunal was correct to do so.
[55] I also consider that the Tribunal was correct when it drew a parallel between r 15.1 of the High Court Rules and the power to strike out conferred on it under s 109A. The wording of the two provisions is strikingly similar, albeit not identical. The approach taken by the High Court assists in considering the Tribunal’s powers under s 109A. Relevantly, both the Court of Appeal and the Supreme Court have held that it is inappropriate to strike out claims summarily unless the Court can be certain that they cannot succeed. The jurisdiction is to be exercised sparingly, and only in clear cases. The strike out threshold is deliberately set high.56
54 Nottingham v Real Estate Agents Authority, above n 5, at [34] and [81]-[83].
55 Real Estate Agents Act 2008, s 109; Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2015] 2 NZLR 606 (HC) at [78]-[80].
56 Attorney General v Prince [1998] 1 NZLR 262 (CA) at [267]; Couch v Attorney General [2008] NZSC 45 at [33].
[56] Here, Mr Honey relied on r 109A(1)(b) to (d). These provisions are in all material respects the same as r 15.1(1)(b) to (d). The Court of Appeal has observed as follows:57
[89]The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuse of the court’s processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court’s processes. Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. In regards to r 15.1(1)(c), a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains an element of impropriety. Rule 15.1(1)(d) – “otherwise an abuse of process of the court” – extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a proceedings that has been brought with an improper motive or are an attempt to obtain a collateral benefit. An important qualification to the grounds of strike out listed in r 15.1(1) is that the jurisdiction to dismiss the proceeding is only used sparingly. The powers of the court must be used properly and for bona fide purposes. If the defect in the pleadings can be cured, then the court would normally order an amendment of the statement of claim.
(citations omitted)
[57] As is noted in McGechan on Procedure,58 abuse of process can take several different forms – attempts to relitigate matters already determined, suing with an improper motive or the aim of obtaining a collateral advantage beyond that legitimately gained from a proceeding, duplicating proceedings, or commencing or pursuing a proceeding in relation to a claim so stale that a fair hearing is impossible.
[58] What constitutes an abuse of process requires “a broad, merits-based” judgment in context.59
[59] In the present case, the Tribunal struck out the appeals because it found them to be frivolous, vexatious and an abuse of the Tribunal’s processes. It reached that conclusion, because it considered that, to undertake the reconsideration directed by the High Court and the Court of Appeal, would be to repeat the factual analysis undertaken by Judge Paul, whose factual findings were upheld by Davison J. It
57 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 43.
58 McGechan on Procedure, above n 44, at [HR 15.1.05(2)].
59 Z v Dental Complaints Assessment Committee, above n 48 at [2], [63], and [127], citing Lord Bingham in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (HL) at 31.
considered that the issues raised in the appellants’ complaints and by Mr Nottingham in the criminal proceedings in the District Court were the same, and that the factual findings made by Judge Paul could not be ignored by it. It considered that allowing the appeals to continue would amount to a collateral attack upon the final decision given in the criminal proceedings. As a consequence, it held that the appellants’ appeals could properly be described as meritless.
[60] It is not, in principle, an abuse of process for a later disciplinary inquiry to examine an element of a criminal charge that was not necessarily resolved in criminal proceedings. That element can still found a finding of unsatisfactory conduct or misconduct.60 This is because the purpose of criminal proceedings is materially different than the purpose of disciplinary proceedings. The purpose of criminal proceedings is to ascertain if a defendant has committed a crime, and if so, to impose due punishment.61 The purpose of disciplinary proceedings is to ascertain whether a regulated person has met appropriate standards of conduct in the occupation concerned, and what may be required to ensure that, in the public interest, such standards are met in the future. The protection of the public is the central focus.62
[61] Disciplinary hearings before the Tribunal can cover much wider ground than that litigated at a criminal trial. The Tribunal has power to summons witnesses – s 104 and Schedule 1, cl 6; it can receive as evidence anything that it considers might assist it to deal effectively with the matters before it, whether or not it would be admissible in a Court of law – s 109(1); at least one of its members must be a licensee – s 100(2).63 As the Supreme Court has noted, the combined effect of these factors makes it likely that in many cases different evidence will come before the Tribunal, which is addressed to wider aspects of a practitioner’s conduct than the strict regime of a criminal trial allows.64
[62] Judge Paul and Davison J were considering criminal charges being prosecuted by Mr Dermot Nottingham. They were considering whether or not each of the
60 Z v Dental Complaints Assessment Committee, above n 48, at [126].
61 At [127].
62 At [128]; And see [41] above.
63 Z v Dental Complaints Assessment Committee, above n 48, at [129]-[130].
64 At [130].
elements of each of the charges alleged was proved beyond reasonable doubt. As noted by the Tribunal in its decision and as recorded in [28] above, Judge Paul dismissed one of the charges because Mr Nottingham had not proved any benefit or loss. He dismissed another four charges alleging perjury in furtherance of the alleged conspiracy because it was not proved beyond reasonable doubt that Mr Honey knew of the matters in respect of which he was alleged to have perjured himself. Charges alleging conspiracy were dismissed because there was no evidence establishing a conspiracy. Davison J reviewed the evidence, and upheld Judge Paul’s factual findings.
[63] If disciplinary charges are ultimately laid against Mr Honey, the Tribunal will be required to consider whether whatever charge or charges are laid can be proved on the balance of probabilities – ss 89(2)(b) and 110(1). The allegations made in the complaints filed allege fraud and dishonesty. It remains to be seen whether any charge or charges laid will reflect these allegations. If fraud or dishonesty is charged, the Tribunal would likely require strong evidence of such serious allegations, before it would be prepared to find that the complaints were proved to its reasonable satisfaction.65
[64] There can be situations in which it would be an abuse of the discretionary power to charge, to refer allegations of aberrant conduct by a regulated person to a disciplinary tribunal, because the scope of any disciplinary inquiry would simply replicate the exercise the criminal court has already undertaken, and where that process has resulted in an acquittal. Charging bodies must be careful not to permit their processes to be used simply as a reserve means of punishing conduct of a criminal nature after criminal proceedings have been unsuccessful.66 If disciplinary proceedings substantially replicate criminal proceedings, then allowing the disciplinary proceedings to go ahead can undermine the integrity of the criminal justice system.67 Finality is integral to justice, because justice is concerned with the determination of rights.68
65 Z v Dental Complaints Assessment Committee, above n 48 at [4], [49], [50], [55], [102], [105],
[116] and [145].
66 At [133].
67 Oy v Complaints Hearings Committee and Presbytery of Auckland, above n 47 at [43].
68 Faloon v The Planning Tribunal at Wellington [2020] NZCA 170 at [3].
[65] Here no disciplinary charges have as yet been laid against Mr Honey. I am therefore unable to compare the criminal charges with whatever charge or charges might ultimately be laid against Mr Honey in the event that the rehearing proceeds, the Committee’s decisions to take matters no further are reversed, and the Tribunal decides to lay a charge or charges. Any charge or charges laid may not mirror the complaints. The Tribunal, following any rehearing, may determine that Mr Honey should be charged with either unsatisfactory conduct or misconduct, relying on matters arising out of the complaints, but not relying on conspiracy, fraud, dishonesty or the like. There is an additional difficulty. As I have already noted, under s 79(2), the Tribunal, if it reverses the Committee’s decision, has additional powers. The same applies under s 89(2). It may take one of the prescribed options, but not lay charges. As a result, I cannot be satisfied that the appellants are seeking to use the disciplinary proceedings to relitigate matters already determined in the unsuccessful criminal proceedings. It cannot be said that the principle of finality is breached.
[66] There is an additional consideration. While Thomas J’s decision pre-dated Judge Paul’s decision, the Court of Appeal’s decision did not. Judge Paul’s decision issued on 20 June 2016. The Court of Appeal’s judgment, confirming Thomas J’s judgment, issued on 27 February 2017. While I have been unable to find any reference in the Court of Appeal’s judgment to the criminal proceedings, given the nature of the underlying dispute, I doubt that the Court of Appeal was unaware of them. It nevertheless confirmed Thomas J’s direction to the Tribunal to rehear the appeals.
[67] It should also be acknowledged that delays following the release of the Court of Appeal’s judgment do not lie wholly at the feet of the appellants. As I have noted, timetable orders were made by consent. A date was fixed for the rehearing. It was subsequently vacated at the appellants’ request, while they pursued an appeal to this Court on a related issue. By 15 December 2017, the Authority was seeking a new date for the rehearing. The appellants’ appeal to this Court was dealt with shortly thereafter. However, no steps were taken by anybody, including the Tribunal, to set the rehearing down for a fixture.
[68] Accordingly, in my view, it cannot be said that it is an abuse of the Tribunal’s processes, or frivolous or vexatious, for the Tribunal to undertake the rehearing
directed by Thomas J and the Court of Appeal, notwithstanding that aspects of the alleged behaviour were considered by Judge Paul. It cannot, at this stage, be said that the appellants are seeking to relitigate matters already determined, because nobody has yet decided what matters, if any, will fall to be determined if the Committee’s decision is reversed and a charge or charges against Mr Honey are laid.
[69] For the sake of completeness, I record that I have considered whether or not these proceedings are so stale that a fair hearing is now impossible. Were I satisfied of that, then that of itself would mean that it would be an abuse of process to allow the appeals to proceed to a rehearing. There is however no evidence before me in this regard. The issue is better left for the Tribunal.
Result
[70]For the reasons I have set out, I allow the appeal.
[71] The appellants’ appeals are reinstated. The Tribunal is to proceed with the rehearing as soon as is reasonably practicable.
Costs/disbursements
[72] The appellants have succeeded in their appeal to this Court. They are however litigants in person, and they are not entitled to costs, although they are entitled to recover their reasonable disbursements.69 It is possible that this primary no costs rule could be relaxed if there are exceptional circumstances.70
[73]Accordingly, I direct as follows:
(a)any application for costs and/or disbursements is to be filed and served by way of memorandum within 10 working days of the date of this judgment;
69 McGuire v Secretary of State [2018] NZSC 116, [2019] 1 NZLR 335 at [55] et seq.
70 Ward v Lochore [2020] NZCA 23 at [9](b).
(b)any response, also by way of memorandum, is to be filed and served within a further 10 working days;
(c)memorandum are not to exceed five pages.
I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of counsel and/or the appellants.
Wylie J
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