Reid v New Zealand Law Society

[2024] NZHC 411

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-836

[2024] NZHC 411

UNDER

The Lawyers and Conveyancers Act 2006

BETWEEN

DAVINA VALERIE REID

Applicant

AND

NEW ZEALAND LAW SOCIETY

Respondent

Hearing:	On the papers (Applicant’s submissions 4 February 2024, Respondent’s submissions 13 February 2024)
Counsel:	J Mason and L Thompson for Applicant P Collins for Respondent
Judgment:	1 March 2024

JUDGMENT OF MUIR J

This judgment was delivered by me on 1 March 2024 at 4pm, Pursuant to Rule 11.5 of the High Court rules.

Registrar/Deputy Registrar Date: ……………………………

Solicitors:

Phoenix Law Limited, Wellington New Zealand Law Society, Wellington

REID v NEW ZEALAND LAW SOCIETY [2024] NZHC 411 [1 March 2024]

Introduction

[1]    The applicant, Ms Davina Reid, seeks leave to appeal my decision of 30 August 2023,1 dismissing her appeal from a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) declining an application for restoration to the Roll of Barristers and Solicitors.2 Disposition of her application has been delayed on account of representation issues.

[2]    Her principal argument is that my decision failed to give adequate consideration to what her counsel, Ms Mason, refers to as “tikanga law”.3

The guiding principles

[3] Leave applications are made under s 254(1) of the Lawyers and Conveyancers Act 2006 (the Act). Subsection (2) is also relevant:

254     Appeal to Court of Appeal on question of law

(1)Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 56 of the Senior Courts Act 2016 applies to any such appeal.

(2)In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.

…

[4]    I accept Mr Collins’ submission on behalf of the respondent (the Society) that, although subs (2) is directed at the approach to be taken by the Court of Appeal, on first application to the High Court, the same essential principles apply, being those relating to leave to bring second appeals generally.4

1      Reid v New Zealand Law Society [2023] NZHC 2370.

2 Lawyers and Conveyancers Act 2006, s 246.

3      Indeed counsel (inaccurately) claims that I gave “no consideration whatsoever to tikanga law”.

4      Hong v Auckland Standards Committee No. 5 [2020] NZHC 1572 at [3].

[5]Those principles are:

(a)Leave to appeal may be granted only where the appeal raises one or more questions of law capable of bona fide and serious argument and the case involves some interest, public or private, of sufficient importance to outweigh the costs and delay of a further appeal.5 Ultimately the question is whether a grant of leave is in the interests of justice.6

(b)The applicant must be able to demonstrate that the alleged error or errors of law are sufficiently important to justify a second appeal.7

Ms Reid’s argument

[6]    Ms Reid’s extensive submissions in support of the application for leave8 do not directly address the relevant legal test. Instead, as Mr Collins notes, they focus on assertions of error in the High Court judgment and Tribunal decision in a manner more characteristic of an appeal submission than a leave submission. Nevertheless, I identify her principal argument to be that, although tikanga is “an instrumental part of Aotearoa New Zealand’s law” it was not treated as an “integral part of the legal framework” in my decision. She says that the only “independent” tikanga evidence provided to the Disciplinary Tribunal, that of Mr John Tamihere, was “disregarded, contrary to the requirement under law that tikanga is a critical part of the common law”.

[7]    She also says that I failed to consider relevant considerations “in the round” and “inappropriately used contextual explanations in relation to her previous misconduct, and her statements of advocacy for her position … to negate her statements of genuine remorse”.

5      Hong v Auckland Standards Committee No.5 [2020] NZCA 561 at [8].

6      Deliu v National Standards Committee of New Zealand Law Society [2015] NZCA 399 at [18(c)].

7      Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

8      Eighteen pages plus appendices.

Discussion

[8]    I do not regard there as being any bona fide and serious argument that, in paragraphs [25] to [34] of my judgment, I materially misstate the law (as now authoritatively established in the Supreme Court’s decision in New Zealand Law Society v Stanley).9 Admission and restoration applications are determinedly forward looking and underpinned by the values of redemption and forgiveness, which as a society we have very practical reasons to be fully invested in. Nor do I consider there to be any bona fide argument that one aspect of the holistic assessment will always be how the applicant now responds to his or her previous offending, with the existence of full and unambiguous acknowledgment of wrongdoing being an important requirement in any assessment into whether past conduct remains relevant.10

[9] Although my judgment was the first appeal to be heard from a s 246 decision of the Tribunal under the Act, a more recent appeal judgment similarly endorses the established principles.11 These are neither unsettled, contradictory nor otherwise controversial. The real issue on the application is to what extent this accepted framework was appropriately adapted to the particular tikanga principles on which Ms Reid relied. As indicated, she says that I failed to treat tikanga as an integral part of the relevant legal framework.

[10]   The Society accepts (as I of course likewise do) that the development of the law relating to tikanga and te ao Māori and its application in individual cases is a matter of public importance in terms of the jurisprudence of Aotearoa New Zealand. It says however, that Ms Reid’s restoration application was dismissed on principled and lawfully consistent grounds, not displaced by tikanga or te ao Māori concepts and that a second appeal, focused on those issues, is not warranted.

[11]   Addressing Ms Reid’s argument that I failed to consider “tikanga law in its own right” the Society says that this misconstrues the approach developed by the Supreme Court in Ellis v R,12  which said that tikanga principles did not control the

9      New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50.

10 As discussed in my decision, above n 1, at [33].

11     Twigley v New Zealand Law Society [2023] NZHC 3537.

12     Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239.

outcome in that case but provided an important perspective.13 It says, and I agree, that the case is not authority for the proposition that tikanga displaces established common law principles, rather that it may better inform those principles in the development of the law. It may, in this case for example inform the decision maker about a person’s insight into their past transgression and the appropriate steps to achieve redress and restorative justice. However, I agree that it does not create a new or different fit and proper person test or a new or different standard for restoration to the roll.

[12]   Ms Reid says that my consideration of tikanga was in the “afterthought” category. That submission in my view fails properly to recognise what my role was as an appellate judge. Although required to consider the merits of the case afresh,14 Ms Reid was nevertheless required to persuade me that the decision under appeal was wrong. My primary focus was thus necessarily on whether the Tribunal had erred in its application of tikanga principles. I concluded, based on the material before me that it had not.

[13]   This brings me to a related point. As I have indicated, the application of the principles of tikanga and te ao Māori is undoubtedly a matter of public importance. But if the Court of Appeal is to consider such issues in the context of an application for readmission, this is far from being a paradigm case. That is because there was no independent expert evidence led by Ms Reid before the Tribunal about what tikanga principles were potentially applicable and how they might interact with the established jurisprudence in respect of readmission.15

[14]   I do not, in this context deprecate the contribution of Mr Tamihere but he was (and is) effectively Ms Reid’s employer and was clearly invested in the outcome of her application. Likewise, Ms Reid’s own evidence about the application of tikanga principles essentially focused on one aspect only – “The cloak of whakamā” that she said  she   had   worn   since   her   striking   off.   It   fell   to   Tribunal   member,  Mr Hector Matthews, the executive director of Māori and Pacific Health at the

13     For example, the judgments of Glazebrook J at [142] and Williams J at [256].

14     On the well established principles in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

15     And no application to adduce further evidence on appeal.

Canterbury District Health Board and a person with a high level of competency in   te ao Māori and fluency in te reo, to bring a full measure of independence to the tikanga enquiry.16 It is clear from the Tribunal’s decision, that he (and therefore the Tribunal) was concerned that the principle of muru (reciprocity) for Ms Reid’s wrongs had neither been understood nor undertaken by her with the result, as the Tribunal found, that “Ms Reid’s journey of redemption is, at best, in early stages and currently falls far short of what tikanga would require”. On appeal I was unable to identify any error in that approach.

[15]   Insofar as Ms Reid’s other challenges to my judgment are concerned, and in particular, her proposition that I failed to weigh relevant considerations “in the round”, the Society submits that I “considered all relevant factors and was entitled to apportion weight to those factors as part of essential judicial processes”. It says that I correctly weighed in the balance the following issues:

(a)The correct approach on an appeal from a specialist Tribunal. In this respect, the Society says that I was correct in accepting but not being blinded by the Tribunal’s specialist competency.

(b)The limited relevance of the Criminal Record (Clean Slate) Act 2004, in light of s 19(3)(b) of the Act.

(c)Whether the Tribunal was unconsciously influenced by the applicant’s relationship with Mr Reid. The Society says that I addressed this issue in a straightforward way, saying it was irrelevant and had no bearing on the outcome of the appeal. Indeed, I do not think I could have been more “straightforward” on this point, observing “Ms Reid loves her husband. She is entitled to do so”.17

(d)Whether there was any unconscious racial bias in the Tribunal’s decision. The Society refers to my rejection of the proposition that there was, my emphasis on “the diversity of the panel and the quality

16     Reflected in relevant exchanges during the hearing.

17     Reid v New Zealand Law Society, above n 1, at [44].

of its members” and my conclusion that “Ms Reid’s ethnicity had no bearing on the Tribunal’s decision which was based solely on its assessment of her character”.18

(e)The seriousness of the offending for which the applicant was convicted under the Corrections Act 2004 and its connection with her role as a lawyer.

(f)The nature of the defence she ran in the context of the District Court trial in which she was self-represented and her witness (Mr Reid) falsely accused prison staff of corruptly planting the contraband items.

(g)The necessity of a forward looking evaluation, by reference to the past conduct and the applicant’s attitude to it.

[16]   Although on an application for leave to appeal, a judge should adopt an undefensive approach to their judgment, I agree with the Society that it is difficult to see any bona fide and serious argument that there was a failure on my part to weigh these considerations in the round. Certainly, it was at least my intention to follow an orthodox judicial process setting out the established principles, and analysing the facts of the case and the appropriateness of the Tribunal’s assessment (including its conclusions on the tikanga arguments advanced before it) applying the correct appeal standard.

[17]   For these reasons I am not satisfied that the case meets the criteria which would justify a second appeal. That conclusion may, of course, be tested on a further application to the Court of Appeal under s 254(1) of the Act.

Result

[18]I decline the application for leave to appeal.

18     Above n 1, at [45].

[19]   I reserve the position in respect of costs pending advice as to the outcome of Ms Reid’s application for legal aid.19 If that application is declined and the Society wishes to advance an application for costs, it may file a memorandum. In that event, Ms Reid is to respond within three weeks of filing, and I will deal with the matter on the papers.

Muir J

19     Noted as uncertain at the time of the Society’s submissions.