P v National Standards Committee of the New Zealand Law Society

[2019] NZHC 3159

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANT, LAW FIRM AND AFFECTED PERSON.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2484

[2019] NZHC 3159

UNDER

the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990 and Part 30 of the High Court Rules

IN THE MATTER

of an application for judicial review

BETWEEN

P

Applicant

AND

THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY

Respondent

Hearing:	28 November 2019
Appearances:	R S Reed QC and J L Libbey for the applicant M J Mortimer for the respondent
Date of judgment:	3 December 2019

JUDGMENT OF PALMER J

The judgment was delivered by me on 3 December 2019 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

R S Reed QC, Auckland

Cook Morris Quinn – City Branch, Auckland Meredith Connell, Auckland

P v THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2019] NZHC

3159 [3 December 2019]

What happened?

[1]    The National Standards Committee (NSC) is a standards committee of the New Zealand Law Society (NZLS). It initiated an own-motion investigation of a lawyer, Mr P, in relation to conduct he concedes was unwelcome and offensive verbal and physical attention, of a sexual nature, towards another person. In May 2019, the Committee made a decision to refer the matter to the Disciplinary Tribunal, including for the reason that Mr P’s conduct was potentially capable of constituting misconduct. But Mr P suspects the Committee had made a different decision in February 2019 and was not lawfully able to change it to a different one later. Under r 8.20 of the High Court Rules 2016, Mr P applies for pre-commencement discovery to obtain two documents, concerning the determination he suspects was made in February, before filing a judicial review proceeding.

[2]    Before the first call of the proceeding in the Judicial Review List, Mr P and the NSC filed a joint memorandum seeking suppression orders to protect the identity of the person affected by Mr P’s actions. On 19 November 2019, I agreed to suppress the identity of the affected person. The parties also sought orders suppressing the identity of the relevant law firm, details of the alleged incident and Mr P’s name, nature of practice and other identifying information. I indicated I was not inclined to grant these orders, in advance, and invited them to pursue the matter in the List if they wished. They did so.

Submissions

[3]    Ms Reed QC, for Mr P, submits the identity of Mr P, the affected person and the relevant law firm should all be suppressed for the purposes of this application. She submits, if his identity is published, there is a real risk that the identity of the firm and, by way of a concertina effect, the identity of the affected person, will become known. That person wishes to maintain their privacy and is not taking any part in the NSC’s process. Ms Reed submits the case law indicates the balance of considerations at an interlocutory stage should be weighted against publication until the substance of the matter is determined. She also submits that, if judicial review proceedings are taken, and are successful, the NSC would need to consider the question of publication then, within its own legal framework. If judicial review is not successful, the Disciplinary

Tribunal will need to do that. She submits the discretion about suppression appropriately lies with those bodies. She submits the suppression orders should last until two weeks after the application for pre-commencement discovery is determined, in order to allow for the applicant to make decisions about a substantive proceeding.

[4]    The relevant law firm, appropriately, abides the Court’s decision about its own identification. But it is “certain” the affected person will not want their identity known and would regard publication as personally harmful.

[5]    Mr Mortimer, for the NSC, submits its primary concern is to avoid identification of the affected person and orders should be put in place to prevent that risk. He acknowledges the concertina effect submitted by Ms Reed is a risk in the circumstances of this case. He submits, ordinarily, the NSC might take the point that those coming to the High Court for relief could expect open justice but he submits the more pressing risk here is that of identification of the affected person. He also agrees that the importance of open justice is less for an interlocutory application than a substantive proceeding.

[6]    I note Mr Mortimer is representing the NSC. I recently issued a judgment in Shand v Legal Complaints Review Officer, which observed that, ordinarily, it is appropriate for such a decision-maker to abide a judicial review of its decision and, if the proceeding lacks a contradictor, the NZLS would offer to act as counsel assisting the Court.1 I am not convinced by Mr Mortimer’s submission that the NSC is acting in a prosecutorial role in this proceeding, as it would before the Disciplinary Tribunal. This application does not concern that phase of the disciplinary process. However, the issue in this application concerns discovery of documents, over which the NSC maintains it has deliberative privilege, and that has precedential implications for the operations of the NSC and other standards committees. I accept that circumstance constitutes a legitimate exception to the ordinary rule that a decision-maker abides a challenge to its decision.

1      Shand v Legal Complaints Review Officer [2019] NZHC 3105.

Should suppression orders be granted

[7]    The usual starting point in considering suppression orders in a civil proceeding is the fundamental constitutional principle of open justice which maintains public confidence in the administration of justice.2 But most rules have exceptions. I do not say all rules have exceptions because there may be an exception to that. As the Supreme Court noted in Erceg v Erceg, there are circumstances in which the interests of justice require that rule be departed from, to the extent necessary to serve the ends of justice.3

[8] It is relevant that s 188 of the Lawyers and Conveyancers Act 2006 restricts the disclosure of information acquired by a Standards Committee in the course of its investigation. Under reg 31 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, Standards Committee decisions must remain confidential unless the Committee directs publication. The High Court in Rabson v New Zealand Law Society held that the intention of the Act and regulations is that the complaints process is confidential unless a practitioner is censured or reprimanded and the public interest warrants it.4 Even if that is so, however, the considerations relevant to whether a Standards Committee directs publication must include the public interest in knowing whether a particular law practitioner has been censured or reprimanded.

[9]    In this case, I do not consider the statutory context regarding the disciplinary process for law practitioners is enough to justify departure by the courts from the principle of open justice in relation to Mr P, other things being equal. If he wishes to use the Court’s processes to challenge a step in the disciplinary process, he should expect the usual principles governing the Court’s processes to apply.

[10]   However, Mr P’s challenge to the disciplinary process should not be permitted to reveal the identity of the affected person and who is taking no part in the process. And I accept Ms Reed’s submission, and Mr Mortimer’s acknowledgement, that there is a real risk of a concertina effect leading from identification of Mr P to identification

2      Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].

3 At [3].

4      See Rabson v New Zealand Law Society [2017] NZHC 2153 at [12].

of the relevant law firm to identification of the affected person. The factors on which I base that finding are not all spelt out in this judgment, so as not to provide further details which might themselves lead to such identification.

[11]   Accordingly, for this application for pre-commencement discovery, I grant the application, by consent, for suppression of the identity of the affected person, the identity of the relevant law firm, details of the incident and of Mr P’s name, nature of practice and other identifying information. Because suppression is ordered to protect the identity of the affected person, the suppression will last until further order of the Court. I give leave for either of the parties, or the affected person, to apply to lift or vary the suppression orders, with notice to each other. Mr P’s name will be anonymised (as Mr P) and the file must not be searched without leave of a judge who first obtains the views of the parties on application to search it

.

Palmer J