Q v Legal Complaints Review Officer
[2012] NZHC 3082
•20 November 2012
SUPPRESSION ORDERS EXIST IN RELATION TO THE PLAINTIFF UNTIL FURTHER NOTICE.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2012-485-1158 [2012] NZHC 3082
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for judicial review
BETWEEN Q Plaintiff
ANDLEGAL COMPLAINTS REVIEW OFFICER
First Defendant
ANDJAMES HEGARTY Second Defendant
Hearing: 1 November 2012
Counsel: A C Beck for plaintiff
M F McClelland for second defendant
Judgment: 20 November 2012
RESERVED JUDGMENT OF DOBSON J
Contents
Context of the judicial review........................................................................................................... [1] Background........................................................................................................................................ [5] Review Officer’s decision................................................................................................................ [14] Grounds of challenge ...................................................................................................................... [20] Committee’s analysis assumed Dr Hegarty had been a witness ................................................... [20] Breach of r 13.8? .......................................................................................................................... [31] Breach of r 2.3? ............................................................................................................................ [43] Breach of r 10? ............................................................................................................................. [54] Complete transcript now available ................................................................................................ [62] Anonymisation of plaintiff .............................................................................................................. [69] Outcome ........................................................................................................................................... [89] Costs ................................................................................................................................................. [91]
Q v LEGAL COMPLAINTS REVIEW OFFICER HC WN CIV-2012-485-1158 [20 November 2012]
Context of the judicial review
[1] This proceeding comprised an application for judicial review of the lawfulness of a decision made by the first defendant (the Review Officer) on 4 May
2012.1 The Review Officer’s decision relates to an application brought by the
second defendant (Dr Hegarty) for review of a determination by the Otago Standards
Committee (the Committee) convened under the Lawyers and Conveyancers Act
2006 (the Act). The Committee had dismissed a complaint brought by Dr Hegarty in relation to the professional conduct of the plaintiff (the practitioner). The Review Officer had reversed that outcome and upheld Dr Hegarty’s complaint.
[2] The statutory process under the Act provides for complaints in relation to the conduct of legal practitioners to be referred, in the first instance, to a Standards Committee. Standards Committees have a range of powers including inquiry into the complaint, upholding it, deciding to take no action on it or directing that steps be taken to explore the possibility of resolving the complaint by negotiation, conciliation or mediation.
[3] In cases where a Standards Committee has made a final determination in relation to a complaint, a range of identified persons, including the complainant or the person in respect of whom the complaint was made, may apply to the Review Officer to review all or any aspects of the determination made by a Standards Committee.2
[4] The Act provides for Standards Committees to be dominated by practitioners, but to include a lay member. The Review Officer is to be a person who is not a practising lawyer. The Act does not provide any right of appeal from decisions of the Review Officer. In the absence of such a right, the present statement of claim alleges that the Review Officer’s decision “was erroneous in law or logically unsupportable” on eight specified grounds, at least the majority of which, if not all,
are criticisms of the correctness of the outcome as would be appropriate in a general
1 Hegarty v Q LCRO 129/2011, 4 May 2012.
2 Lawyers and Conveyancers Act 2006, s 193.
appeal, rather than challenges to the lawfulness or adequacy of the process by which
the Review Officer’s decision was made.
Background
[5] In May 2010, the practitioner was acting for a Mr P, in relation to Mr P’s claim to entitlements under the accident compensation legislation. In administering Mr P’s entitlements, the Accident Compensation Corporation (ACC) had required a neuropsychological assessment of him and nominated two assessors, from whom Mr P was to choose the one who would assess him. Dr Hegarty was one of those nominated by ACC. Mr P resisted being assessed by either of the two nominated assessors, and initially insisted instead on attending a third assessor of his choice. Ultimately, ACC had made an appointment for Mr P with the other of the two assessors it had nominated, after Mr P consented to being assessed by that person. Mr P had then missed that appointment, leading to ACC deciding to cancel his entitlements. The practitioner had not acted for Mr P when the appointment was arranged. However, he sought review of ACC’s decision on Mr P’s behalf, leading to a hearing before an ACC reviewer on 17 May 2010.
[6] The practitioner pursued arguments at the ACC review hearing that ACC had not provided a meaningful choice of assessors for Mr P. This was because Dr Hegarty, as one of the psychological assessors nominated, was perceived by the practitioner as having a disqualifying conflict of interest because he was retained as a branch adviser to ACC, in addition to being retained by ACC to provide psychological assessments. On the practitioner’s argument, because one of the two options offered by ACC was not a genuine option at all, then Mr P had not been given the choice of assessors to which he was entitled, and no steps adverse to his interests could be taken on the basis that he had failed to comply with a requirement for an assessment.
[7] Dr Hegarty was not present at the ACC review hearing, which was conducted in private. ACC subsequently reported to Dr Hegarty that the practitioner had made criticisms of him in the course of the hearing, including referring to him as “a crook”.
[8] Dr Hegarty pursued a complaint in respect of the practitioner’s conduct, invoking rr 2.3, 10 and 13.8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Those rules provide as follows:
Proper purpose
2.3A lawyer must use legal processes only for proper purposes. A lawyer must not use, or knowingly assist in using, the law or legal processes for the purpose of causing unnecessary embarrassment, distress, or inconvenience to another person’s reputation, interests, or occupation.
Professional dealings
10 A lawyer must promote and maintain proper standards of
professionalism in the lawyer’s dealings.
Reputation of other parties
13.8A lawyer engaged in litigation must not attack a person’s reputation without good cause in court or in documents filed in court proceedings.
13.8.1 A lawyer must not be a party to the filing of any document in court alleging fraud, dishonesty, undue influence, duress, or other reprehensible conduct, unless the lawyer has taken appropriate steps to ensure that reasonable grounds for making the allegation exist.20
13.8.2 Allegations should not be made against persons not involved in the proceeding unless they are necessary to the conduct of the litigation and reasonable steps are taken to ensure the accuracy of the allegations and, where appropriate, the protection of the privacy of those persons.
[9] Dr Hegarty’s complaint was considered by the Committee. It dealt with the complaint on the papers at a hearing on 3 May 2011, and on 17 May 2011 it issued a determination that it would take no further action on the complaint.
[10] The Committee (and subsequently the Review Officer) had before them very limited extracts of a transcript of what the practitioner had said at the private hearing before the ACC reviewer. The particular reference to the complainant being “a
crook” was in an extract provided in the following terms:3
3 Hegarty v Q at [25].
I’m saying from a general perspective there is a conflict of interest situation and potential because of the dual roles that [Dr Hegarty] holds; one as Branch Psychology Advisor giving advice to ACC about cover, critiquing reports and so forth on the one hand and providing a substantive assessment concerning a claimant on the other. … it seems to me that there is at least a conflict potentially in that in carrying out of an assessment for any claimant, [Dr Hegarty] has in mind, “Well, I’m also the Branch Psychology Advisor here and it’s my role to be advising ACC about these things”. … I am not saying that he’s a crook and that he routinely does things like this to either “feather his own nest” as a psychologist in town or whether he’s an ACC patsy. All I’m saying is that this doesn’t look good and, as I understand the current law in New Zealand, particularly that involving Justice Wilson in the Supreme Court, courts at the moment are very sensitive about what doesn’t look good. What – is there in appearance here of things that could cause problems and that’s all I’m saying. As I say, I haven’t felt free to articulate these statements in other forum because of the fear of being sued.
[11] In light of this extract from what had been said by the practitioner, the Committee was satisfied that a breach of the rules could not be made out. Its decision included the following observations:4
It is clear from the parts of the transcript provided by ACC that [the practitioner] did not call Dr Hegarty a “crook”, quite the opposite. It is clear that [the practitioner] has questioned Dr Hegarty’s impartiality and suggested a conflict of interest may exist.
That suggestion was put in a robust manner. However, counsel is entitled to pursue the interests of his or her client not just in a robust manner, but must do so fearlessly.
It is a normal part of testing the credibility of an expert witness to probe issues of competence, knowledge, and impartiality. Doing so is not, of itself, a breach of either Rules 10 or 13.8.
[12] The Committee had treated Dr Hegarty’s complaint as also involving a separate part, namely that he objected to the practitioner’s previous complaints about Dr Hegarty to the office of the Health and Disability Commissioner, the Psychologists’ Board, the Office of the Ombudsman and the ACC. The Committee found that pursuit of those complaints by the practitioner did not involve a breach of any relevant rules of conduct.
[13] An aspect of Dr Hegarty’s application to the Review Officer was that the
Committee had misunderstood his reference to those earlier matters as an additional complaint, when they were intended only as matters of background and context that
4 Notice of Determination of Otago Standards Committing concerning Complaint No 2899,
17 May 2011 at 2.
were relevant to his complaint about the practitioner’s unwarranted attack on his character in the course of the ACC review.
Review Officer’s decision
[14] On the basis of the same materials as had been before the Committee, the Review Officer came to the opposite conclusion. In a decision dated 4 May 2012, the Review Officer found the practitioner’s conduct to be unsatisfactory in terms of s 12 of the Act. The practitioner was censured pursuant to s 156 of the Act, ordered to pay a fine of $4,500 and ordered to pay the sum of $1,200 towards the cost of the review.
[15] The Review Officer accepted Dr Hegarty’s first criticism that the Committee had inappropriately treated matters of “background and context” as a discrete complaint. The Committee had accordingly erred in perceiving that as a complaint.
[16] The Review Officer interpreted the comments in the Committee’s decision cited in [11] above as reflecting a belief on the part of the Committee that Dr Hegarty had been present at the ACC review hearing, and had been cross- examined by the practitioner. Dr Hegarty made it clear to the Review Officer that he had not been present at the hearing, and nor had he had any involvement with the practitioner’s client (Mr P) in respect of whose ACC entitlement the review hearing was being conducted. The Review Officer observed in her decision that “…the Practitioner seemed surprised at [Dr Hegarty’s] evidence that he had had no
involvement with [Mr P]”.5
[17] The Review Officer treated the assumption of Dr Hegarty’s presence and cross-examination at the ACC review hearing as an error on the part of the Committee.
[18] The Review Officer found that submissions made by the practitioner raising concerns of a conflict of interest arising because of Dr Hegarty’s dual positions could
not be objectionable. However, the Review Officer found that the practitioner
5 Hegarty v Q at [29].
“clearly went further than referring only to matters relating to conflict”. The Review
Officer’s decision continued:6
There is no logical connection between the submission concerning the Applicant’s possible conflict, and juxtaposing this with (or linking it to) references to “crook”, “feathering his own nest” and “ACC patsy”, even if these are expressed in the negative form of “I’m not saying that …”. These were derogatory statements, which raised notions of dishonesty and pursuit of self interest on the part of the Practitioner, and which, in my view, were intended to add emphasis to the Practitioner’s submissions concerning the Applicant’s unsuitability as a potential assessor for ACC.
I can see no explanation for the words being included in the Practitioner’s submissions other than as reflecting the Practitioner’s intention that the person hearing them (the ACC Reviewer in particular) should be influenced by the conjunction of these concepts so as to add weight to his submissions concerning conflict. In the circumstances in which they were made, these comments were wholly gratuitous, and I cannot avoid concluding that the Practitioner intended by these words to discredit the Applicant in the eyes of ACC.
…
… The inferences were damaging to the Applicant, and were unrelated to, and served no purpose in connection with, the Practitioner’s client’s ACC review application.
[19] It was apparent that the practitioner had made numerous complaints to various bodies about Dr Hegarty undertaking psychological assessments for ACC purposes. Dr Hegarty had conveyed at least an outline of these to the Review Officer, and her decision also included the following observation:7
… I conclude from the evidence that the Practitioner took advantage of the situation of the review hearing to advance, in that forum, his earlier complaints and concerns about the Applicant that had found no traction elsewhere. There was no proper purpose in the comments he made, which were wholly unrelated to the review application involving his client. I also find that the purpose of the Practitioner’s submission was intended to cause embarrassment, distress or inconvenience to the reputation, interests or occupation of the Applicant.
6 At [40], [41] and [43].
7 At [45].
Grounds of challenge
Committee’s analysis assumed Dr Hegarty had been a witness
[20] Mr Beck’s first criticism of the Review Officer’s decision related to her finding that the Committee had erred in assuming that Dr Hegarty had been present at the ACC review hearing, and had been cross-examined in that forum by the practitioner. Mr Beck argued that it was wrong of the Review Officer to attribute this misunderstanding to the Committee when the Committee’s decision was equally open to an interpretation that they had appreciated there was no cross-examination, and that Dr Hegarty had not been present at the ACC review hearing.
[21] These arguments involved competing interpretations of the passages from the decision of the Committee that are cited at [11] above. Mr Beck argued that a “suggestion” can equally be put in a robust manner in submissions as in the course of cross-examination. Further, that a reference to testing the credibility of an expert witness was appropriately raised by the Committee as an analogy and did not necessarily reflect a misunderstanding that the comments had been made in testing Dr Hegarty in cross-examination. Arguably, that point could also arise as an observation on the grounds for a challenge to Dr Hegarty having a conflict of interest.
[22] On this and other aspects of the appeal, Mr Beck submitted that the Review Officer ought to be very cautious before intervening where a Committee’s determination relates to what is appropriate in litigation. He submitted that it would only be in the most egregious of situations that the Review Officer could be justified in finding that the conduct in relation to Court proceedings by an advocate has been in breach of the professional conduct rules, when a group of experienced practitioners had concluded that it was not. In support of this, Mr Beck cited guidelines issued for parties to any review proceedings before the Review Officer which include the following comment in a section on the scope of the Review Officer’s functions:
… where the matter under review concerns the exercise of a discretion by a Standards Committee or the professional propriety of a particular course of action, the LCRO will be cautious to substitute his/her judgment for that of the Standards Committee without good reason.
[23] The appropriate approach to be adopted on review has been considered by Winkelmann J in another recent judicial review of the conduct of the Review Officer.8 Her Honour observed:9
In my view the power of review is much broader than an appeal. It gives the Review Officer discretion as to the approach to be taken on any particular review as to the extent of the investigations necessary to conduct that review, and therefore clearly contemplates the Review Officer reaching his or her own view on the evidence before her. Nevertheless, as the Guidelines properly recognise, where the review is of the exercise of a discretion, it is appropriate for the Review Officer to exercise some particular caution before substituting his or her own judgment without good reason.
[24] I agree with that approach.
[25] However, that does not require the Review Officer to uniformly defer to views reached by Standards Committees where the complaint relates to the conduct of litigation. Certainly, there is no warrant for the Review Officer to refrain from reaching a different conclusion unless satisfied that it was an “egregious situation”.
[26] Mr McClelland submitted that the meaning of the relevant paragraphs in the context of the Committee’s decision amply justified the Review Officer’s conclusion that the Committee had dealt with the matter on the incorrect assumption that Dr Hegarty had been present at the ACC review hearing, and that he had been cross- examined. Mr McClelland argued that there was no point in making an analogy with the legitimate scope of cross-examination when assessing the propriety of points raised in submissions because of the different functions of those components of a hearing. In particular, credibility is a stage removed from the issue of competence to provide a psychological assessment, and would become relevant only after an
assessment had been provided.
8 Deliu v Hong [2012] NZHC 158.
9 At [41].
[27] Here, there was no way of knowing whether the practitioner would be instructed to challenge Dr Hegarty’s opinion because the doctor had not provided an assessment. The relevant issue was whether Dr Hegarty had what Mr Beck described in argument as a “positional conflict”10 that affected his availability to provide an assessment of Mr P. The practitioners on the Committee can be expected to have been fully aware of these distinctions. Seen in this light, the third paragraph
of the observations cited at [11] above only made sense if they reflect on a context where the Committee thought that Dr Hegarty had been cross-examined by the practitioner.
[28] I am satisfied that from the context and content of the terms used by the Committee that it was open to the Review Officer to interpret its analysis as depending on the assumption that Dr Hegarty was present at the ACC review hearing, and had been cross-examined. It follows that the Review Officer was entitled to treat that as a wrong impression of the circumstances in which Dr Hegarty’s complaint had been made.
[29] Therefore, this aspect of the Review Officer’s reasoning cannot be made out as an error of law.
[30] Turning then to the Review Officer’s analysis of the complaint. Mr Beck argued that her analysis in respect of breach of each rule was unsustainable. The Review Officer dealt first with r 2.3, then r 13.8, and finally r 10. It is appropriate to consider the challenge to the Review Officer’s decision in respect of a breach of r 13.8 first.
Breach of r 13.8?
[31] It was common ground that the ACC review forum constituted a “court” for
the purposes of r 13.8. Having accepted that it was legitimate for the practitioner to raise the existence of an alleged conflict by virtue of the two different types of
10 That is, a conflict created by the competing interests in providing advice to ACC in two distinct capacities.
retainer Dr Hegarty had with ACC (ie the so-called “positional conflict”), the Review Officer treated the additional comments as going further than matters relating to conflict.11 She saw no logical connection between the potential positional conflict and juxtaposing this with references to the prospects of “a crook”, “feathering his own nest” and “ACC patsy”. The Review Officer did not treat those derogatory comments as sufficiently distanced from Dr Hegarty by their expression in a negative form with the preamble “I’m not saying that…”. Rather, in the context of other observations that the practitioner had made, the Review Officer was
satisfied that the derogatory comments were still capable of being linked to Dr Hegarty, and that adverse inferences against Dr Hegarty arose because they were made in connection with comments about him.
[32] I understood Mr Beck’s submission as accepting that r 13.8 would have been breached if these derogatory comments were reasonably interpreted as applying to Dr Hegarty. The alleged error on the part of the Review Officer was in interpreting them as applying to Dr Hegarty when Mr Beck argued that they did not, and could not, convey that meaning.
[33] Mr Beck submitted that the use of the disclaimer (“I’m not saying that …”) was definitive and prevented any such inference, as was taken by the Review Officer, from arising. He argued that it amounted to an error of law or unreasonableness for the Review Officer to take the meaning she did from the comments that were made.
[34] The Committee and the Review Officer had only three paragraphs from the transcript of the hearing of the ACC review. One of those, prior to the extract quoted in [10] above, included the practitioner stating that he was aware of information about Dr Hegarty that was “germane”, and which (in the view of the practitioner) provided him with good reasons to not want any of his clients assessed by Dr Hegarty, but that such matters “did not form part of the present case”. He further advised the ACC reviewer that those matters had been canvassed in other arenas, and that he had been threatened with a defamation action by two lawyers for Dr Hegarty.
Later in the limited extract, the practitioner said that he “hadn’t felt free to articulate
11 At [39].
these statements [about Dr Hegarty] in other forum [sic] because of the fear of being
sued”.
[35] The Review Officer had also been advised by Dr Hegarty that the numerous complaints that the practitioner had made in respect of him to various independent bodies had been resolved with none of those complaints being upheld.
[36] It was against that background that the Review Officer found that despite the derogatory comments about Dr Hegarty being preceded by the disclaimer “I’m not saying that …”, the overall context nonetheless conveyed that the information the practitioner had about Dr Hegarty meant that such derogatory comments could be attributed to him. The Review Officer was reinforced in these views by the last extract from the transcript that was available to her, in which the practitioner had returned to the prospect of being sued for defamation, in the terms cited at [34] above.
[37] The references to potential defamation claims reinforces the impression of there being two separate components of the practitioner’s objection to Dr Hegarty, the second being sensitive, implicitly because they were adverse to good reputation or character. That additional component adds to the context in which the audience, hearing all of the practitioner’s comments, would associate the adverse comments that he stated explicitly he was not making about Dr Hegarty, with the unspoken views he did hold about Dr Hegarty.
[38] The Review Officer’s analysis is somewhat akin to that undertaken in testing whether defamatory inferences arise from statements that do not, on their literal terms, appear defamatory of a complainant. The “sting” can legitimately depend on context and the mental connections that an audience could reasonably make to infer the defamatory meaning.12
[39] The analysis is not whether the Court would necessarily come to the same conclusion, but rather whether, in the context of the statutory power being exercised,
it was either unlawful or unreasonable for the Review Officer to do so. I am not
12 Lewis v Daily Telegraph [1964] AC 234 at 258 (HL).
satisfied that the Review Officer erred in either respect. Context is everything, and on the information available to the Review Officer, it was open to her to treat the criticisms of Dr Hegarty as comprising two distinct elements. First, the prospect of a so-called positional conflict, which was readily understandable, and legitimately raised.
[40] Distinctly from that were additional matters pertaining to Dr Hegarty’s reputation, which the practitioner treated as being relevant, and which were implicitly adverse to Dr Hegarty’s reputation. They were of a type that had been aired elsewhere and had drawn threats of defamation action. In the passage most focused upon, the practitioner acknowledged the alleged positional conflict, and continued that he was not saying a range of highly derogatory comments about Dr Hegarty, when each of those was directly relevant to why Mr P might resist being assessed by Dr Hegarty. In context, it is open to infer that the juxtaposition of those discrete topics prefaced by the phrase “I’m not saying that …”, as conveying “I’m not saying yet that …” or “I am not saying, but if forced into my second layer of criticisms could say that …” or, yet again, “I’m not saying but if you knew what I did about Dr Hegarty you might well think that…”.
[41] Continuing the defamation analogy, it would certainly be open to leave to a jury whether such inferences as these arose in establishing the sting of a libel. A verdict that the inferences were made out could not be challenged as unreasonable or perverse. I cannot accept Mr Beck’s submission that there was no possible basis on which the Review Officer could come to the view she did about the effect of the comments.
[42] Accordingly, the challenge to the lawfulness and reasonableness of the
Review Officer’s finding of breach of r 13.8 cannot be made out.
Breach of r 2.3?
[43] The effect of r 2.3,13 the second of those found to be breached, is to prevent lawyers using legal processes for improper purposes. The Review Officer’s decision finding a breach of that rule is reflected in the conclusion quoted at [19] above.
[44] Whereas r 13.8 imposes an absolute constraint on the nature of conduct that might legitimately be undertaken, r 2.3 involves constraint on conduct where it is inappropriately motivated. The same conduct in one context where there is a proper purpose for doing it would be a breach of the rule in the absence of that proper purpose.
[45] Here, the Review Officer was satisfied that the comments that constituted an unwarranted attack on Dr Hegarty (for the purposes of breach of r 13.8) were motivated for the improper purpose of advancing long-standing criticisms of Dr Hegarty and that they were made intending to cause him embarrassment, distress or inconvenience.
[46] The Review Officer had available to her the Committee’s file, and it included the practitioner’s numerous complaints and enquiries with a number of bodies challenging Dr Hegarty’s professional qualifications. The Review Officer noted that in each case the organisations had responded to the practitioner that no actions were
perceived to be necessary. Her decision then observed:14
The Practitioner appeared unwilling to accept responses as adequate, pointing to what he considered to be the shortcomings in those replies. It seems to me that any lack of precision in the responses sent to the Practitioner is readily explained by recognising that individuals writing those letters are not lawyers, and cannot be expected to write with legal precision.
… It is clear that none [of the recipients of complaints] considered it necessary to make any further enquiry.
That the Practitioner continues to hold his suspicions about [Dr Hegarty] is, of course, his own concern.
13 Cited at [8] above.
14 Hegarty v Q at [37], [38].
[47] The Review Officer had the opportunity of seeing the practitioner and making an assessment of the strength of his apparent animosity towards Dr Hegarty. That impression was a legitimate factor to take into account in attributing an intention to the practitioner to use of the ACC review hearing to pursue what might be called a campaign against Dr Hegarty.
[48] Mr Beck objected to the label of a “concerted campaign” being unjustifiably attributed to the practitioner, and drew attention to a letter to the complaints office at the Law Society from the practitioner dated 17 December 2010. That letter responded to the complaint on behalf of Dr Hegarty. In it, the practitioner acknowledged as accurate a statement that the practitioner would do whatever he believed was necessary to have assessments of clients he was acting for conducted by clinical psychologists other than Dr Hegarty. The practitioner’s letter continues:
Mr Bartlett [solicitor for Dr Hegarty] goes on to allege that since early 2008
I have embarked on a concerted campaign to discredit his client to such an extent that he would no longer be able to perform psychological assessments
for ACC purposes. I think with respect this is a rather emotive and
over blown statement. It is correct that my concerns about Mr Hegarty’s
competence arose at an early stage and my suspicion that he did not properly fulfil all of the requirements for the provision of neuropsychological services to ACC were not relieved either by ACC or Mr Hegarty himself for a considerable period of time.
[49] I am not satisfied that the Review Officer adopted an untenable characterisation of the practitioner’s on-going criticisms of Dr Hegarty. The practitioner’s references to a discrete ground of criticism beyond the perceived “positional conflict” were indeed gratuitous in the sense that the practitioner had not been acting for Mr P at the time Mr P rejected Dr Hegarty as one of ACC’s nominated assessors. Those discrete grounds for the practitioner’s criticisms could not be relevant to the reasonableness of Mr P’s refusal to submit to an assessment by either of the psychologists originally nominated by ACC. The practitioner had acknowledged in the first of the three paragraphs from the transcript that was available that those discrete concerns did not form part of the particular case that was before the ACC review hearing.
[50] Mr Beck argued that there was no scope to infer an intention by the practitioner to cause embarrassment to Dr Hegarty when the ACC review hearing was conducted in private, and its subject matter ought not to have been relied on in any other circumstances. Mr Beck argued that it was inappropriate for the ACC representative at the hearing to inform Dr Hegarty of what had been said about him in his absence, and that the context was not one in which the practitioner could reasonably expect his criticisms to have any impact, on ACC or otherwise.
[51] The relatively confined nature of the audience in which the comments were made is not a sufficient answer to the manner in which the Review Officer has found a second series of criticisms of Dr Hegarty were raised. Given the acknowledged extent of complaints made previously by the practitioner, raising the prospect with the ACC review hearing officer of criticisms beyond the positional conflict was a sufficient context in which to breach the rule of conduct not to cause unnecessary embarrassment to Dr Hegarty.
[52] Mr Beck also argued that the purpose for pursuing the ACC review was to advance Mr P’s interests in having ACC entitlements reinstated. That was clearly a proper purpose. Arguments in support of the reinstatement were properly put, and that was the only purpose that could be discerned from pursuit of the legal process involved. However, this argument takes an unrealistically narrow approach. Within the course of proceedings which themselves were legitimately undertaken, an opportunity arose for a collateral attack on Dr Hegarty, which is what the Review Officer has held to have occurred.
[53] Accordingly, it was neither unlawful nor unreasonable for the Review Officer to attribute to the practitioner the motive of personal criticism of Dr Hegarty as a collateral component of the argument for Mr P, resulting in a breach of r 2.3.
Breach of r 10?
[54] Mr Beck submitted that the addition of r 10 to the charge and to the Review Officer’s decision was unnecessary and unjustified. Chapter 10 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 is headed
“Professional Dealings” and after the initial rule, there is a series of subrules in 10.1 to 10.8 that regulate the manner in which any lawyer is to deal with other lawyers, and other lawyers’ clients. The subrules provide, for instance, a requirement to treat other lawyers with respect and courtesy, to refrain from communicating with another lawyer’s client, to honour undertakings and make payments appropriately and not to make a recording of any dealing with others without first informing that person of the intention to do so.
[55] In the context of those more detailed rules, Mr Beck argued that the practitioner’s conduct on behalf of Mr P at an ACC review hearing did not constitute a “dealing” as that expression is used in r 10.
[56] As there are separate and quite detailed rules in relation to the conduct of litigation, I consider it is valid to imply a constraint on the scope of “lawyers’ dealings” that excludes the interaction with, or impact upon, third parties as it arises in the course of carrying out professional instructions in relation to litigation. There will be exceptions where r 10 or one or more of its subrules apply beyond dealings between practitioners, but this is not one of them.
[57] As the Review Officer’s findings here demonstrate, there is a risk in which conduct will be found to breach a more specific rule and, by virtue of that breach, be treated as conduct not maintaining proper standards of professionalism. That additional finding is likely to apply to breaches of rules in diverse situations, when such an additional charge is not justified.
[58] The complaint of breach of r 10 was dealt with relatively summarily by the Review Officer. She treated it as “a more global rule, requiring a lawyer to promote and maintain proper standards of professionalism in the lawyer’s dealings”. This was followed with the finding:15
Clearly, if a lawyer engages in conduct that amounts to a breach of Rules 2.3 and 13.8, there may also be a failure to maintain proper standards of professionalism.
15 At [50].
[59] It is desirable that rules of professional conduct be applied as specifically as possible, rather than requiring adherence to general standards that may be difficult to interpret and apply. In the present case, it is not appropriate that the findings against the practitioner of breach of more specific rules also be treated as justifying a finding of breach of a generally expressed standard.
[60] I am satisfied that there was an error of law in the approach adopted by the Review Officer to the inclusion of the additional allegation under r 10. Accordingly, I find that the component of the decision finding a breach of r 10 is to be quashed and replaced with a finding that the charge of breach of r 10 cannot be made out.
[61] I am, however, not satisfied that that error has impacted in any meaningful way on the extent of penalties ordered by the Review Officer. I am satisfied that the outcome determined by the Review Officer would have been the same whether breach of r 10 had been alleged and found to exist, or not.
Complete transcript now available
[62] Subsequent to the decision by the Review Officer, ACC have provided a full transcript of the ACC review hearing. Without objection, it was among the materials filed on the present judicial review application. Mr McClelland spent some time identifying additional passages in the complete transcript that he argued provided strong additional justification for the findings the Review Officer had made in relation to breaches of rr 13.8 and 2.3. Mr McClelland acknowledged that as this material was not available to the Review Officer, the further passages could not be relevant to the correctness of her decision. However, he argued that they were nonetheless relevant on the basis that, if any error was made out, then a more fully informed decision might nonetheless rely on these additional passages to decline any relief.
[63] Immediately after the first of the three paragraphs in the extracts from the transcript that was available, the practitioner is recorded advising the ACC review officer that:16
… I am nervous about the kind of information that I might give. I am aware that in this forum, happily, as I understand the law, is an occasion of absolute privilege and that anything I say to you cannot be used by anyone to sue me and of that I am extremely grateful.
… then I become a witness and then I’ll tell you about these two gentlemen, if you want to hear it. It may not actually come to that because actually when you come to see my submissions that’s not what this case is all about at all. …
… It’s not that these two guys are ratbags. They are whatever – that’s not
the issue.
[64] Then, immediately before the second extract from the transcript that was before the Review Officer:17
Okay, well, my submissions really are quite simple and as I say hopefully we don’t need to go down the track of getting into the specifics about the unsuitability of the two nominees, …
[65] After the last of the edited extracts that were before the Review Officer, there is an exchange between the ACC reviewer and the practitioner where that reviewer cautions the practitioner that she does not share the practitioner’s view that all evidence he might give would be absolutely privileged in all circumstances, and the practitioner responded:18
Oh, well, I’ve got to be very careful then.
[66] Those additional passages provide substantial additional justification for the view that the practitioner considered he had knowledge which allowed him to make discrete adverse comments about Dr Hegarty. That in turn provides further justification for treating the context of the disclaimer “I’m not saying that” as being a qualified one where the context would otherwise enable a reasonable person hearing all of what the practitioner said to take the inference that the practitioner was
suggesting that Dr Hegarty had the negative characteristics that were then listed.
16 Transcript of the hearing before the ACC Review Officer at 4 and 5.
17 Transcript of the hearing before the ACC Review Officer at 22.
18 Transcript of the hearing before the ACC Review Officer at 40.
[67] Similarly, a review of the whole transcript would provide additional justification for a finding that the practitioner asserted this set of characteristics, adverse to Dr Hegarty, for the improper purpose of airing his criticisms of his professional reputation in another forum.
[68] Had I found that there was a material error of law in relation to the findings of breach of rr 13.8 and 2.3, then this additional information would most likely have been sufficient to dissuade me from granting any relief, beyond reversing the finding of a breach of r 10.
Anonymisation of plaintiff
[69] The proceedings were commenced with the identity of the plaintiff and the second defendant anonymised. No justification for doing so was pleaded in the statement of claim, and counsel for Dr Hegarty has now taken the point that pleadings in such an anonymised form are contrary to r 5.11(1)(g) of the High Court Rules. That rule requires the heading of a statement of claim to show the full name, place of residence and occupation of every plaintiff and defendant so far as they are known to the party presenting the document for filing.
[70] Mr Beck argued that confidentiality provisions in the statutory scheme for complaints before Standards Committees and the Review Officer entitled the practitioner (if not indeed obliged him) to continue anonymising at least his own identity in his judicial review of the outcome of those proceedings. In contesting the practitioner’s entitlement to confidentiality of his involvement in the proceedings, Dr Hegarty acknowledges that his own involvement as complainant should not remain confidential.
[71] Against the contingency that I might come to the view that the practitioner was not entitled to anonymise his position in these proceedings, I issued a minute after the conclusion of the hearing inviting counsel for the practitioner to make application for name suppression, in the conventional manner.
[72] Both at the hearing, and in his subsequent submissions, Mr Beck argued that under the Act and Regulations the investigation of complaints is to remain confidential at the Standards Committee and Review Officer stages. He argued that before both bodies the default position was confidentiality, and a specific order for publication had to be made, which was only available when censure has been
ordered.19 Mr Beck’s subsequent submissions went so far as to argue that because
the prior approval of the Law Society is required to publication of a matter that has been before a Standards Committee or the Review Officer, then the Society’s approval would also be required before there could be publication of a practitioner’s identity in proceedings seeing judicial review of a matter determined by either of those bodies.
[73] There are materially similar provisions regulating the procedure of the Committee in s 142(2) of the Act and the Review Officer in s 206(4). The latter section provides:
206 Proceedings of Legal Complaints Review Officer
…
(4) The Legal Complaints Review Officer may, subject to subsection (3), direct such publication of his or her decisions as he or she considers necessary or desirable in the public interest.
…
[74] Rule 30 of the relevant regulations20 stipulates that if a Committee has made a censure order, then it may, with the prior approval of the Law Society Board, direct publication of the identity of the person who is the subject of the censure order. The Full Court decision in B cited a Law Society practice note which, so far as proceedings before a Standards Committee is concerned, specified that publication of a censured lawyer’s name must first be approved by the Board of the Law Society.
[75] A Review Officer is empowered by s 211 of the Act to exercise any of the powers of a Standards Committee and it is a reasonable implication that the
19 B v Auckland Standards Committee of the New Zealand Law Society HC Auckland
CIV-2010-404-8451, 9 September 2011 at [34].
20 Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008
constraint on ordering publication that applies to a Standards Committee would also apply to a decision by the Review Officer. In this case, the Review Officer censured the practitioner. Her decision does not consider the issue of publication at all. In that event, the default position was that the outcome remained confidential.
[76] There are no provisions in the Act or relevant rules that extend the confidentiality afforded to proceedings before the Committee and the Review Officer in any disciplinary matter after that.21 Certainly, once the matter is within the jurisdiction of the High Court, the presumption in favour of open justice should apply and the onus is on the plaintiff to demonstrate the exceptional circumstances necessary to depart from that position.22
[77] A number of recent cases where plaintiffs have sought judicial review of a Review Officer’s decision have proceeded on an open basis.23 In those cases, it does not appear that the practitioner had sought name suppression. On the other hand, Mr Beck cited a number of cases in which judicial review proceedings have not published the identity of the practitioner involved.24
[78] In one of the latter group of proceedings, the practitioner was granted name suppression pending the substantive determination.25 In that case, what amounts to interim name suppression was held to be justified on the case-specific considerations of the extent of harm caused to the practitioner and her firm that were treated as sufficient at that stage of the proceedings to outweigh the interest in open justice. In the other cases in that group, the judicial review occurred in circumstances where the matter was still before a Committee or the Review Officer, or might be subject to
further consideration, independently of the judicial review.
21 See s 240 for the reserve presumption once matters are before the Disciplinary Tribunal.
22 See, for example, X v Standards Committee of the New Zealand Law Society [2011] NZCA 676 at [9], and more generally Broadcasting Corporation of New Zealand v Attorney-General [1982]
1 NZLR 120.
23 For example, Slavich v Legal Complaints Review Officer HC Hamilton CIV-2009-419-1674,
16 July 2010; Harold v Legal Complaints Review Officer HC Auckland CIV-2011-404-3420,
16 February 2012; Deliu v Hong [2012] NZHC 679 and Corbett v Legal Complaints Review
Officer HC Auckland CIV-2009-404-003700, 14 August 2009.
24 B v Auckland Standards Committee HC Auckland CIV-2010-404-8451; U v Legal Complaints Review Officer HC Auckland CIV-2010-404-6350; C v Legal Complaints Review Officer [2012] NZAR 924.
25 C v Legal Complaints Review Officer [2012] NZHC 1726.
[79] A distinction can readily be drawn between cases where the complaint or disciplinary process is still on-going before a Law Society body, and those where they have been determined, as is the case here.
[80] In the context of a different type of complaints procedure under the Penal Institutions Act 1954, the Court of Appeal has noted that confidentiality and suppression of details within a complaints process prior to the commencement of High Court proceedings was irrelevant to whether the Court should depart from the
open justice principle.26 I respectfully adopt that approach.
[81] On the basis of these authorities, it is not appropriate for a plaintiff commencing judicial review proceedings where the matters before a Standards Committee or the Review Officer have been completed to assume that confidentiality constraints applying to previous steps in the complaints process will extend to anonymise the participants in any proceedings in this Court. To the extent that the Act and any rules or regulations under it create a code for the investigation of complaints and disciplinary proceedings of various types, those provisions can only regulate the proceedings for which the Act and regulations provide. In this case, the practitioner has applied to invoke the Court’s supervisory jurisdiction over the exercise of statutory powers. This proceeding is entirely separate from the course of proceedings under the Act to which it relates.
[82] I accept the submission for Dr Hegarty that the proceedings were not appropriately commenced in anonymised form and there can be no justification for non-compliance with r 5.11(1)(g) of the High Court Rules.
[83] In his subsequent submissions seeking suppression of the practitioner’s personal details, Mr Beck submitted that the identity of the practitioner was not a matter of public interest where the proceedings constituted court scrutiny of the conduct of a public official. He submitted that the public interest is confined to ensuring whether the Review Officer’s decision had been properly made. Further, that it would be an unwarranted interference if the practitioner’s privacy (which had
been respected by the process thus far under the Act) was now lost. He submitted
26 Clark v Attorney-General (No 1) [2005] NZAR 481 at [48].
that there is no sufficient seriousness in the conduct involved to justify a charge before the Disciplinary Tribunal and the complaint arose out of a specific incident, with no suggestion of a pattern of behaviour.
[84] The further submissions were supported by a separate affirmation completed by the practitioner in which he claimed that any publicity would be prejudicial to his reputation and to his on-going practice. The practitioner claims a profile as a “leading ACC lawyer” from which he considers it likely that a report identifying him would attract media publicity that would create the risk of misreporting or giving a wrong impression of how he conducted his practice.
[85] Counsel for Dr Hegarty responded with a short submission to the effect that the concerns raised did not justify name suppression on any of the usual criteria that apply.
[86] I am satisfied that the public interest in open justice is the most important consideration. It would be inconsistent with the importance accorded that principle in other contexts to recognise the concern on the part of a law practitioner to protection of his reputation as sufficient to override the public interest in such a case.
[87] I am not satisfied that the practitioner in the present circumstances will suffer any hardship greater than would normally be expected of someone in his position, given the circumstances of the complaint. Damage to his personal reputation as a practitioner is an insufficient reason to depart from the principle of open justice.27
[88] I am accordingly not prepared to grant name suppression. However, the importance of open justice does not make publication a matter of urgency. To afford the practitioner an opportunity to challenge my refusal to grant the name suppression he seeks, I intend issuing this judgment in a form that continues the anonymisation of his participation. Unless a stay of that part of my judgment has been obtained within 15 working days of delivery of the judgment, then I will reissue the judgment,
removing the anonymisation.
27 X v Standards Committee of the New Zealand Law Society at [8] and [19].
Outcome
[89] The judicial review is dismissed in respect of the challenge to findings of breach of rr 13.8 and 2.3. The judicial review is upheld in respect of the challenge to the finding of breach of r 10 and that finding is quashed. That has no impact on other aspects of the outcome.
[90] The practitioner was not entitled to anonymise the identity of the parties and a case is not made out for suppression of his name. Anonymisation in respect of the practitioner is continued for a period of 15 working days to afford the practitioner an opportunity to seek a stay of that aspect of the judgment.
Costs
[91] I was urged by Mr Beck to reserve the matter of costs for submissions in light of the outcome. My provisional view is that Dr Hegarty is entitled to costs, but counsel may file memoranda, if the issue cannot be settled.
Dobson J
Solicitors:
Joss Miller, Dunedin for plaintiff
Crown Law, Wellington for first defendant
Bartlett Law, Wellington for second defendant
2