O'Connor v Wellington Standards Committee (NZLS)

[2023] NZHC 1615

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-300

[2023] NZHC 1615

IN THE MATTER OF

the Lawyers and Conveyancers Act 2006

BETWEEN

ALWYN O’CONNOR

Appellant

AND

WELLINGTON STANDARDS COMMITTEE (NZLS)

Respondent

Hearing:

26 June 2023

Appearances:

G A Paine for the Appellant

N M Pender for the Respondent

Judgment:

27 June 2023

JUDGMENT OF GRICE J

(Application for stay of strike off pending appeal)

Solicitors:

G A Paine, Barrister, Dunedin

N M Pender, Barrister, Wellington New Zealand Law Society, Auckland

O’CONNOR v WELLINGTON STANDARDS COMMITTEE (NZLS) [2023] NZHC 1615 [27 June 2023]

Introduction

[1] On 8 May 2023 the appellant, Mr O’Connor. was found guilty by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal under the Lawyers and Conveyancers Act 2006 (the Act) on one charge of misconduct and one charge of negligence such as to reflect on the lawyer’s fitness to practice (the liability decision).1 On 9 June 2023 the Tribunal ordered that he be struck off the roll of barristers and solicitors, pursuant to ss 242(1)(c) and 244 of the Act (the strike off decision).2 Mr O’Connor has appealed against both the liability and the strike off decisions.

[2]    This application for stay has been brought on urgently pending the hearing of the appeal on 14 August 2023. A number of the points raised in argument on this application are matters which will be properly aired at a full hearing on appeal when all the material is before the court. My views as to the merits are necessarily preliminary and for the purpose only of the stay application.

[3]    The Tribunal made the following particular orders on liability which concerned dealings by Mr O’Connor with two clients, Mr Coles and Mr Allerton:

(a)Mr Coles — that while providing regulated services [which is not in dispute] he engaged in conduct that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable, and that he recklessly contravened relevant professional obligations under the Act and rules.

(b)Mr Allerton — that he was guilty of negligence or incompetence in his professional capacity in relation to Mr Allerton of such a degree as to reflect on his fitness to practice.

[4]    The liability hearing was held on 3 May 2023 and on the same date the Tribunal indicated orally what its findings would be.3 It then invited an application for an

1      Wellington Standards Committee 2 v O’Connor [2023] NZLCDT 18 [the liability decision].

2      Wellington Standards Committee 2 v O’Connor [2023] NZLCDT 25 [the strike off decision].

3      Wellington Standards Committee 2 v O’Connor [2023] NZLCDT 17 [oral interim suspension decision].

interim suspension order, which was made by the Standards Committee and heard and granted by the Committee in the afternoon on the same date. The reasons for the liability decision were delivered by the Tribunal on 8 May 2013. On that date the appellant applied for a revocation of the interim suspension order. That was heard and dismissed on 15 May 2023. Reasons were issued on 17 May 2023.4

[5]    Both parties acknowledge that the grounds for the present application for interim stay pending appeal are the same as those advanced in the Tribunal in support of the revocation of the interim suspension. Since that time the Tribunal has issued its penalty decision on 6 June 2023 in which it made an order striking Mr O’Connor off the roll of barristers and solicitors.

Stay of proceedings

1. Rule 20.10 of the High Court Rules 2016 provides:

20.10   Stay of proceedings

(1)An appeal does not operate as a stay—

(a)of the proceedings appealed against; or

(b)of enforcement of any judgment or order appealed against.

(2)Despite subclause (1), the decision-maker or the court may, on application, do any 1 or more of the following pending determination of an appeal:

(a)order a stay of proceedings in relation to the decision appealed against:

(b)order a stay of enforcement of any judgment or order appealed against:

(c)grant any interim relief.

(3)An order made or relief granted under subclause (2) may—

(a)relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:

(b)be subject to any conditions for the giving of security the decision-maker or the court thinks just.

4      Wellington Standards Committee 2 v O’Connor [2023] NZLCDT 21 [application for revocation of interim suspension decision].

[7]    Rule 20.10(2) confers a broad discretion. In Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd, Asher J observed:5

… The aim is to prevent developments in the interim which may stop the appellate Court being able to do justice on the points at issue, when they are determined. The rule is headed “Stay of proceedings and execution”. The relief sought must have a direct connection to the proceedings, or execution of the judgment.

Application to stay

[8]    Mr Paine for Mr O’Connor has filed a notice of appeal. He intends to amend that notice of appeal in terms of a timetable issued for the appeal to be brought on for hearing. The notice of appeal before me sets out a number of grounds of appeal. First, in relation to pre-hearing matters, the appellant says that propensity evidence which was prejudicial and of no probative value was admitted, and that he was not allowed to appear remotely for cross-examination on medical grounds. In relation to the hearing, the grounds include that the Tribunal had predetermined the outcome and breached the principles of natural justice by imposing a timetable that was unachievable.

[9]    The primary ground in support of the application for interim stay which was pursued by Mr Paine in his oral submissions is that the nature of the matters which Mr O’Connor seeks to continue to act on presently means there is little or no risk to the public (namely consumers of legal services) if a stay is granted. This is because the matters are court or tribunal matters and the findings against Mr O’Connor are not in relation to his technical ability as a lawyer and in particular as a litigation lawyer, but in relation to ethical breaches. In addition, Mr Paine in his written submissions pointed out that Mr O’Connor is employed and working under the supervision of a barrister and solicitor, Mr Surridge. Mr Paine submitted on behalf of Mr O’Connor that the failure to grant a stay pending appeal would have a serious detrimental effect on his clients, particularly those for whom Mr O’Connor acts on a pro bono basis, and on his employer.

5      Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Tāmaki Makaurau | Auckland CIV- 2009-404-7207, 23 Pēpuere | February 2011 at [15].

[10]   Mr O’Connor produced a list of matters on which he would continue to act for clients for the period of the interim stay sought. Mr Paine suggested that any stay be limited to those matters so that Mr O’Connor could progress them to enable them to be transferred to new lawyers, if the appeal against his striking off were unsuccessful. Mr Paine suggested the court might require Mr O’Connor to provide a report in, say, a month’s time to update the court on how he was progressing those matters by way of supervision.

[11]   There were approximately 27 matters in the list, which had also been before the Tribunal when Mr O’Connor sought a stay of his interim suspension. Some are pro bono, some matters have no description of how Mr O’Connor will be remunerated (but some of them are probably legal aid matters), and others are matters for which he would charge a fee. The feepaying work includes work for Mr Gambitsis, an accountant and a body corporate administrator, for whom Mr O’Connor has been acting since 2017. Some of the litigation in which Mr O’Connor is acting for Mr Gambitsis is, according to Mr Surridge, “complex and hostile”. Mr Surridge says Mr Gambitsis would face some difficulty in obtaining a lawyer to take over the matters. In an affidavit dated 8 May 2023, Mr O’Connor says that he had made initial enquiries about transferring the retainers in the list of files which he produced “with very little success to date”. He said the pro bono clients “haven’t got a chance.” He further says there had been no one available to take instructions at the beginning and he considered their representation “very important and about access to justice”. These were points emphasised by Mr Paine in his submissions today.

[12]   In his affidavit of 8 May 2023, which was sworn before the penalty was imposed, Mr O’Connor says there was a lot the Tribunal did not yet know about him, referring to his community service, which would become known at the penalty phase of the process. He confirmed that Mr Surridge supervised every aspect of his work and said he did not owe any clients any money, nor would he ever borrow any money from a client. Similarly, he said he did not act for “friends – current or historic.”

[13]   Mr Paine also submitted that there had been no complaint about the quality of Mr O’Connor’s technical work for clients and therefore, in essence, the pro bono clients would continue to benefit from his skills. Mr Paine also commented that his

submission about competence was related to the matter involving Mr Coles. He accepted that the charge in relation to Mr Allerton which the Tribunal found to be made out involved negligence by Mr O’Connor in negotiating with Mr Allerton’s employer. That must reflect on competence. However, Mr Paine distinguished that matter as being only a matter of negotiation rather than Mr O’Connor appearing before a court or tribunal or lacking in technical competence.

Background

[14]   As noted, Mr O’Connor had been found guilty on 8 May 2023 and an interim suspension order was made pending the penalty hearing. The suspension took effect on 10 May 2023. The Tribunal dismissed Mr O’Connor’s application for revocation of interim suspension pending the penalty hearing on 17 May 2023.6 The grounds advanced for the interim suspension application made to the Tribunal were the same as the grounds now advanced in this Court  and are supported by the affidavits of   Mr O’Connor, Mr Surridge and Mr Gambitsis which were filed in support of the application for the stay of interim suspension which was dismissed by the Tribunal.

[15]   The Tribunal discussed the relevant factors before it in the application for stay as follows:7

[33]      While accepting that Mr O’Connor’s clients, including his current pro bono clients and Mr Gambitsis, may have some difficulty in transitioning their matters to other lawyers, we consider that this inconvenience does not outweigh the risk to the public posed by the following factors:

1.The seriousness of the failures as found in the liability decision. These were connected with the use of client funds (in respect of which lawyers have clear and prescribed fiduciary duties and ethical obligations). The failures with respect to Mr Coles are exacerbated by the “robbing Peter to pay Paul” practice, as found in the liability decision, in that Mr O’Connor borrowed from another client to repay Mr Coles.

In his affidavit, Mr O’Connor states: “I do not owe any clients any money, nor would I ever borrow any money from a client. Similarly, I do not act for friends – current or historic”. This would seem to be entirely at odds with the findings in the liability decision, in that the discrepancy between the transfers

6      Application for revocation of interim suspension decision, above n 4.

7      Footnotes omitted.

from Mr Coles’ account and back into it left $61.75 outstanding. In addition, there is a further $22,251.39 of transactions from Mr Coles’ accounts which have never been explained and remain outstanding. The Tribunal rejected Mr O’Connor’s denials in relation to those sums and found that amount was never repaid to Mr Coles.

2.The Tribunal made express findings about Mr O’Connor’s lack of candour in his engagement with it and gave specific examples where it found he had lied under oath. As Ms Pender submits, “There is a risk that public confidence in the profession could be undermined if, despite these findings, the Tribunal permitted Mr O’Connor to continue acting as an officer of the Court”.

3.The historical convictions for dishonesty offending lend considerable weight to the Tribunal’s finding that Mr O’Connor is not a fit and proper person to practice.

Had Mr O’Connor not been found guilty of the misconduct described in these proceedings and had thoroughly reformed, it is likely that these convictions could have been left in the past. However, he appears to have done again what he has been convicted for in the past. It revives the relevance of the earlier convictions, in that a pattern has emerged. Although Mr O’Connor was given an opportunity to reform, he has failed to do so and, in doing so, abused the privileges of being a legal practitioner.

4.In addition, the Tribunal found negligent conduct towards another client which leads to concerns about his competence.

5.The Tribunal was struck by the manner in which Mr O’Connor conducted himself at and before the hearing:

(a)He failed to be candid with the inspector. Omissions and lies were uncovered.

(b)Prior to the hearing, there was prevarication, delay and late filing of documents.

(c)Mr O’Connor made use of a medical certificate which, when amplified, gave explanations about his health which were the opposite description of those conveyed to the Tribunal by his counsel. This medical certificate was used to attempt to avoid appearing in person.

[16]   The Tribunal also commented that the submissions made in support of the application for stay included that the charge relating to Mr Coles did not involve “technical” failings but rather were in relation to the “friendship” and pro bono work undertaken by Mr O’Connor for Mr Coles. This submission was rejected by the

Tribunal, which took it as an indication that Mr O’Connor was still not aware of the serious impropriety involved and the responsibilities he had as a lawyer.

[17]   In its initial oral decision granting the order for interim suspension, the Tribunal had noted that, in relation to the two charges, the first involved a significant breach of Mr O’Connor’s obligations as a lawyer.8 It said:

[2]        … The most grave matter was that concerning Mr Coles, where Mr O’Connor fell short of proper conduct in a number of startling ways. Mr Coles was a vulnerable client, socially isolated and having drug use and mental health issues, he was in contact first with Mr O’Connor.

[3]        Mr O’Connor acted for him in a number of important events in Mr Coles’ life and did so without providing a letter of engagement to clarify the terms the arrangement.

[4]        Against the background of his acting for Mr Coles, Mr O’Connor regarded the relationship as one of friendship. He took control of Mr Coles’ bank account, which had I think in excess of $150,000 in it, obtained from the net proceeds of his share in his father’s estate … Mr O’Connor treated those funds as his own …

[18]   These matters referred to by the Tribunal, which weighed heavily against the grant of the interim stay then, similarly weigh heavily in this court against the grant of a stay pending appeal.

[19]   At the time of the application to stay the interim suspension orders, the Tribunal had before it the previous history of Mr O’Connor.9

[20]   Mr O’Connor’s criminal history, includes seven dishonesty convictions in 2000 and nine in 2005 for dishonesty (including use of a document for pecuniary advantage). In September 2006 Mr O’Connor was imprisoned for 18 months for three counts of assault on a child (and two other offences which were overturned on appeal). In June 2008 there was a further conviction (apparently arising out of the same circumstances as in 2006) in which Mr O’Connor pleaded guilty to ill-treatment or neglect of a child under 16 years.10

8      Oral interim suspension decision, above n 3.

9      Application for revocation of interim suspension decision, above n 6, at [20]–[22].

10     The convictions were listed in detail in the strike off decision, above n 2, at [21].

[21]   Those convictions were disclosed to the New Zealand Law Society at the time Mr O’Connor sought admission to the bar. He had obtained support of senior members of the profession and in due course, admission was allowed, and a practising certificate granted. The Tribunal pointed out, however, that what Mr O’Connor did not disclose were two previous bankruptcies.11 These apparently emerged later when he sought permission to practise on his own account, when, following advertisement, the bankruptcies were notified.12

[22]   The Tribunal canvassed the earlier convictions in detail in the penalty hearing. The Tribunal noted that within 18 months of the applicant being admitted to the roll of barristers and solicitors, having obtained a practising certificate, he had begun offending by taking money from Mr Coles’ bank account, for which he had been found guilty of misconduct.13

[23]   The Tribunal  rejected  Mr  Paine’s  submission  that  taking  into  account  Mr O’Connor’s previous convictions was double punishment. It noted that those convictions, particularly the dishonesty convictions, were taken into account in order to make an assessment of Mr O’Connor’s overall fitness to be a lawyer. The Tribunal concluded that the present offending “exposes the same pattern of dishonest behaviour and taking from other people without thought as to consequence.”14 It went on to say that this offending “continues the pattern of offending that began in 2000 and ended with the last criminal conviction in 2005.”15

[24]   The Tribunal concluded its decision determining to strike Mr O’Connor off the roll of barristers and solicitors with the following comment:

[49] Sadly, we do not consider that we can take the risk of further exposing this practitioner to the public. We do not consider, at this stage, that he is capable of the level of rehabilitation necessary for him to be trustworthy in the role of a lawyer. For all of those reasons, we propose to order that he be struck off the roll …

11     Application for revocation of interim suspension decision, above n 6, at [23]–[24].

12     At [24]

13     Strike off decision, above n 2, at [8] and [29].

14 At [28].

15     At [28]

Analysis

[25]   The ultimate issue for a stay application is to determine where the interests of justice lie.16 As Heath J said in Tucker v Real Estate Agents Authority, the likely impact of the cancellation on the appellant’s pending appeal and protection of the public are relevant considerations.17 The appellant must place before the Court some ground for making an order staying the orders, and if the appellant does advance some tangible reason for a stay it becomes a matter of comparing the grounds for and against a stay without any predisposition toward the result.18 In the end it is a broad discretion to be exercised in the interests of justice.19

[26]   Consideration of an application for stay must also be undertaken in light of the purposes of the Act. The Act has a consumer protection focus, as reflected in the purposes in s 3 and the fundamental obligations in s 4. Those provisions insofar as relevant here are as follows:

3Purposes

(1)The purposes of this Act are—

(a)to maintain public confidence in the provision of legal services and conveyancing services:

(b)to protect the consumers of legal services and conveyancing services:

(c)to recognise the status of the legal profession and to establish the new profession of conveyancing practitioner.

(2)To achieve those purposes, this Act, among other things,—

(a)reforms the law relating to lawyers:

…

(d) states the fundamental obligations with which, in the public interest, all lawyers and all conveyancing practitioners must comply in providing regulated services

16 Tucker v Real Estate Agents Authority [2017] NZHC 54, [2017] NZAR 264 at [14].

17 At [17].

18 T v Preliminary Proceedings Committee of the Medical Council of New Zealand HC Tāmaki Makaurau | Auckland HC21/96, 23 Pēpuere | February 1996 at 2, referring to LWB v Preliminary Proceedings Committee HC Tāmaki Makaurau | Auckland HC169/95, 18 Tīhema | December 1995, cited in Tucker, above n 16, at [13].

19 At 2, cited in Tucker, above n 16, at [13].

…

4Fundamental obligations of lawyers

Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:

(a)the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:

(b)the obligation to be independent in providing regulated services to his or her clients:

(c)the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:

(d)the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.

[27]   I therefore first turn to look at the merits of the appeal in this case, recognising that the appeal is a general appeal and proceeds by way of rehearing according to the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar, under which the appeal court must be persuaded that the decision is wrong, but in reaching that view no deference is required to the original decision-making court “beyond the ‘customary’ caution appropriate when seeing the witnesses provides an advantage because credibility is important.”20

[28]   The grounds of appeal as presently formulated do not challenge the facts giving rise to the charges, but rather focus on procedural issues and an allegation of predetermination by the Tribunal. The grounds include that the Tribunal only deliberated for 23 minutes before delivering the preliminary decision, the Tribunal made comments on the veracity of the evidence of Mr O’Connor which went against the evidence, there were determinations made on matters not included in the charges or the evidence, and the lawyer for the committee spent time in the adjournments with the media and the Tribunal organised a special media meeting to explain its decision at the conclusion of the hearing. While those matters will be fully canvassed on appeal and my view is admittedly only based on the limited material I have before me, which

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

does not include the transcript of evidence, the grounds for predetermination and other procedural errors set out in the notice appeal do not appear strong.

[29]   I have copies of the four decisions of the Tribunal — that is, the liability decision, the oral interim suspension decision, the revocation application decision, and the penalty decision — and these indicate that the matters before the Tribunal and Mr O’Connor’s defences and material supplied in mitigation were examined in detail by the Tribunal and the decisions include careful reasons. Mr O’Connor was represented by counsel, Mr Paine, throughout the proceedings, including at all hearings.

[30]   I emphasise that a proper examination of the merits of the appeal is for the substantive appeal hearing and at that stage the court will have before it the transcript and no doubt other materials, including any amended grounds of appeal. Therefore, my comments on the merits are preliminary and for the purpose only of the stay application.

[31]   In Hart v Auckland Standards Committee 1 of New Zealand Law Society, Lang J observed that the Court would exercise the power to grant interim relief from suspension sparingly, and only in circumstances where it can be confident that any order it might make would not place members of the public at risk.21 Obviously, a stay in respect of a lesser penalty (such as a fine) may be more readily granted.

[32]   Turning to the public interest factor, I acknowledge that there will be some inconvenience and no doubt some  difficulty  in  obtaining  lawyers  to  take  over  Mr O’Connor’s matters, which will affect the interests of the clients involved. The nature of the allegations which the Tribunal has accepted, particularly those relating to Mr Coles, indicates that Mr O’Connor took advantage of the vulnerability of a client and his reliance on Mr O’Connor for advice. Mr O’Connor did not look after that client’s best interests. The allegation was made out that Mr O’Connor used that vulnerable client’s money for his own purposes, suggesting that he did not appreciate his fiduciary obligations to Mr Coles.

21     Hart v Auckland Standards Committee 1 of New Zealand Law Society [2012] NZHC 2496, [2012] NZAR 1085 at [28].

[33]   The list of clients produced by Mr O’Connor as being those for whom he would continue to act included a number of clients who are reliant on pro bono assistance and who are vulnerable due to their circumstances and reliance on such assistance. Such clients are vulnerable to the types of behaviour that led to the charges against Mr O’Connor, in particular in relation to Mr Coles. Mr O’Connor took advantage of what he said was a friendship to gain control of Mr Coles’ bank account and to use the money in that account. Mr O’Connor’s comments in his affidavit of 8 May 2023 indicating that he did not act for friends (“current or historic”) or borrow money from clients gives rise to concerns, as pointed out by the Tribunal, that Mr O’Connor still does not realise the nature of his obligations to his clients, friends or otherwise. Therefore, I conclude that in this case there is a serious public interest factor which weighs heavily against granting a stay pending appeal.

[34]   In relation to the other factors raised in connection with Mr O’Connor’s current employment and his acting for Mr Gambitsis, those are matters which, while they may create some inconvenience for the client and Mr O’Connor’s employer, are not matters which weigh heavily. There is no reason why alternative counsel cannot be briefed in the body corporate matter and/or  an  appropriate  person  be  employed  to  assist  Mr Surridge.

[35]   In this case the consumer protection objectives of the legislation and the nature of the allegations considerably outweigh the factors in favour of a stay. The latter include the orderly transfer of files.  However,  while, in Mr Paine’s  submission,   Mr O’Connor is presently in hospital and has been there for some eight days, it appears he has not taken advantage of the time that was made available to him to make arrangements for his clients. Ms Pender submitted that Mr O’Connor had been allowed a short period before the interim suspension order took effect to to transfer the files. In addition, he has had the eight weeks since then to make further arrangements. Although he was not entitled to practise law during that period that did not preclude other steps being taken.

[36]   The suggestion by Mr Paine that Mr O’Connor have a “limited retainer” to deal only with the matters for the clients on his list and to report to this court as to progress, even if I were minded to grant to the stay, which I am not, would be unworkable. The

court is not in a position to supervise Mr O’Connor’s files. I note the Tribunal rejected a suggestion that supervision for Mr O’Connor would be feasible, commenting that “Mr O’Connor’s excuse-making and lack of insight also persuades the Tribunal that any conditions as to supervision would likely fail.”22

[37]   Accordingly, for the same reasons articulated by the Tribunal in refusing to stay the interim suspension order as well as for the further reasons I have outlined above, I have not been persuaded that the circumstances of the present case justify granting the stay that Mr O’Connor seeks. I cannot be confident that Mr O’Connor will pose no threat to his clients for whom he seeks to continue to act.

[38]   The application for an interim stay of the order striking off Mr O’Connor from the roll of barristers and solicitors is accordingly dismissed.

Waiver of security for costs

[39]Mr O’Connor has also sought a waiver of security for costs.

[40]   Under r 20.13 of the High Court Rules, there is a presumption that the appellant will provide security for the costs of the appeal in the event that it is unsuccessful. However, the Court may waive security for costs under r 20.13(2). An order for security will typically be made unless the appellant can show that is in the interests of justice that no security be provided. Security is the norm, and special circumstances (typically ones that are exceptional) are required to justify a waiver.23 Impecuniosity by itself does not justify a waiver, although it may be a reason to reduce the quantum of security.24 Legally aided appellants cannot be required to provide security.25

[41]   Mr Paine indicated that  an application for legal aid was to be made for      Mr O’Connor. However, he said Mr O’Connor had been in hospital, making it difficult to get the application signed. Mr Paine indicated that on the face of the application

22 Strike off decision, above n 2, at [40].

23 G v Chief Executive of the Ministry of Social Development [2010] NZSC 141, (2010) 20 PRNZ 705; and see Bernard v Space 2000 Ltd (2001) 15 PRNZ 138 (CA); Denzel v ACC (2002) 16 PRNZ 584 (HC); Tapp v Chief Executive of the Department Work and Income (2002) 16 PRNZ 587 (HC); and Thimbleby v Accident Compensation Corporation (2003) 16 PRNZ 1078 (HC).

24 RIG v Chief Executive of the Ministry of Social Development [2010] NZCA 370.

25 Schmidt v Jawad (2005) 17 PRNZ 807 (HC).

legal aid was likely to be granted. He agreed that if it was not granted no waiver for security would be appropriate. Ms Pender confirmed that if legal aid was granted the waiver would be automatic.

[42]In the circumstances no determination is necessary today.

[43]   However, unless the legal aid application is granted by 28 July 2023, security will be payable. The due date for payment of security is therefore extended to 28 July 2023. This date has been set on the indication by Mr Paine that the application would be filed within the week.

[44]   Unless legal aid was granted, I can see no grounds on the information before me suggesting that it is in the interests of justice that a waiver of security should be granted. Mr O’Connor had earlier submitted that it is in the interests of justice that no security be provided, factors in respect of which including impecuniosity, “huge” publicity around the matter and a consequent lack of employment prospects. Mr O’Connor also suggests it is a “draconian outcome” that failure to provide security results in the abandonment of an appeal, and it will not be in the best interests of his clients if he is struck off. He said his impecuniosity is a special circumstance justifying at least a reduction in the quantum of security, if not a total waiver. However, no evidence has been adduced to show that Mr O’Connor is impecunious. In any case, as noted, this is not a reason itself to justify a waiver. The ultimate test is whether a waiver is in the interests of justice.

[45]   As in the circumstances counsel have reached an appropriate resolution of this matter which I have recorded above, if the court receives notice the appellant is on legal aid by 28 July 2023, security will be waived. However, if it is not granted then the security is payable.

Costs

[46]   In relation to costs, I see no reason why costs should not be awarded in relation to this application on a 2B basis following the event ,in the ordinary course. The matter took approximately an hour and a half to hear and I am aware there was an earlier teleconference on the matter as well. If counsel are unable to agree on costs, a memorandum should be filed and served within five days of the 28 July 2023 (this being the date by which legal aid is to be granted to avoid the payment of security). Any response should be filed within a further three days and the matter may be determined on the papers.

Grice J

Solicitors:

G A Paine, Barrister, Dunedin

N M Pender, Barrister, Wellington New Zealand Law Society, Auckland