Parlane v Waikato Bay of Plenty Standards Committee HC Hamilton CIV 2010-419-1209

[2010] NZHC 1721

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2010-419-1209

BETWEEN  JAMES CHARLES MORRIS PARLANE Appellant

ANDWAIKATO BAY OF PLENTY STANDARDS COMMITTEE Respondent

Hearing:         22 September 2010

Counsel:         P O'Sullivan for Mr Parlane

T Braun for the Standards Committee

Judgment:      22 September 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

O’Sullivans Lawyers, RD 2, Taupiri Glaister Ennor, PO Box 63, Auckland Harkness Henry, PO Box 3077, Hamilton

PARLANE V WAIKATO BAY OF PLENTY STANDARDS COMMITTEE HC HAM CIV 2010-419-1209  22

September 2010

[1]      Following  a  hearing  over  two  days  in  March  2010,  the  New  Zealand Lawyers’ and Conveyancers’ Disciplinary Tribunal (the Tribunal) gave a reserved decision, on 4 June 2010, finding allegations of misconduct against a Te Awamutu barrister and solicitor, Mr Parlane, proved.[1]

[1] Waikato Bay of Plenty Standards Committee v Parlane [2010] NZLCDT 8.

[2]      It is unnecessary to go into the detail of the findings for present purposes, though it is clear that serious questions about the appropriateness of Mr Parlane continuing in practice arose out of that decision.

[3]      A penalty hearing was held on 13 September 2010.  In a decision given on 16

September 2010, the Tribunal ordered that Mr Parlane’s name be struck off the roll of Barristers and Solicitors.[2]

[2] Waikato Bay of Plenty Standards Committee v Parlane [2010] NZLCDT 26.

[4]      Mr Parlane has appealed against that decision and seeks interim relief to enable him to continue in practice, pending determination of the appeal.   Mr O’Sullivan, on his behalf, has reiterated Mr Parlane’s grounds for appeal; namely that the penalty is manifestly excessive and unjust.

[5] The Lawyers and Conveyancers Act 2006 expressly contemplates the possibility of some interim relief being required when a practitioner is ordered to be struck off the roll. Section 255(3) of the Act provides that if an appeal were commenced, the order striking the practitioner off the roll takes effect only as an order that he or she be suspended from practice pending determination of the

appeal.[3]

[3] See also s 242(1)(c) of the Lawyers and Conveyancers Act 2006.

[6]      Mr O’Sullivan filed a helpful memorandum, in which he submitted that additional interim relief was required to avoid an injustice which could have the effect of putting Mr Parlane’s livelihood at risk.   However,  given the terms of s 255(3) of the Act, I take the view that Parliament intended to limit the scope of any interim relief ordered.  To the extent that there may be jurisdiction to go further than

the treatment of the order as a suspension, I am of opinion that the Court would need persuasive evidence to so act.

[7]      In a case where the appeal can be heard promptly, I see no reason to depart from the statutory provisions.  Were the position otherwise, it may be (and I make no finding on jurisdiction) that the Court would need to consider the impact on the practitioner in the interim to determine whether relief beyond that contemplated by s 355(3) could be required.  This case falls into the former category because time is available on 4 October 2010 for the penalty appeal to be heard.

[8]      It is clear that a limited number of documents will be required because Mr Parlane does not contest the factual findings made by the Tribunal, in its misconduct decision.  The material to be included in a bundle for the use of the appeal Judge and counsel will need to include: copies of the charges brought against Mr Parlane, a copy of the misconduct decision, a copy of the penalty decision and any additional material that was before the Tribunal that either Mr Parlane or the Standards Committee consider is required.

[9]      I leave it to Mr O’Sullivan to liaise with counsel who will be appearing for the Standards Committee, Mr Collins, to finalise the form of the agreed bundle.  That bundle shall be filed in Court and exchanged between the parties by 5pm on 28

September 2010.

[10]     Written  submissions  in support  of  the  penalty appeal,  shall  be filed  and served by 5pm on 29 September 2010.  Written submissions in opposition shall be filed and served by 5pm on 1 October 2010.

[11]     Ideally, an agreed bundle of all authorities referred to by counsel in their submissions should be compiled and made available to the presiding Judge at the start of the hearing.

[12]     The appeal is set down for hearing at 10am on 4 October 2010.  One half day has been allocated.

[13]     I expressly decline to make an order for security for costs, given the nature of the appeal.

[14]     All questions of costs in relation to the appeal are reserved.

P R Heath J