Solicitor-General v Miss Alice Ca168/06
[2006] NZCA 301
•25 October 2006
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA168/06
BETWEENTHE SOLICITOR-GENERAL
Appellant
ANDMISS ALICE (PREVIOUSLY ROBERT ALEXANDER MOODIE)
Respondent
Hearing:5 September 2006
Court:Glazebrook, Chambers and Chisholm JJ
Counsel:C R Gwyn and T J Warburton for Crown
M Alice in Person
Judgment:25 October 2006 at 10 am
JUDGMENT OF THE COURT
AThe appeal is allowed and the order of the High Court preventing Mr Dobson QC and Mr Lithgow having any further role in the proceedings is set aside.
BCosts of $6,000 plus usual disbursements are awarded to the Solicitor‑General.
____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1]
Has there been a change in function for Mr Dobson and
Mr Lithgow? [8]
Would Mr Dobson and Mr Lithgow have an undue advantage
because of their previous role as amici? [20]
Was the special character of contempt proceedings given
sufficient weight? [24]
Should Mr Lithgow have been allowed to continue acting? [25]
Should the Judge have allowed Mr Dobson and Mr Lithgow
to brief new counsel? [26]
Other matters raised by Dr Alice [27]
Result and costs [28]Introduction
[1] During 1994 a beekeeper was killed when the bridge over which he was travelling collapsed. The bridge was on the property of Mr and Mrs Berryman but had been built by the New Zealand Army. In 2003 Mr and Mrs Berryman commenced judicial review proceedings challenging the decision of the Solicitor‑General not to order a further coronial inquest into the beekeeper’s death, the original inquest having largely attributed responsibility for the beekeeper’s death to Mr and Mrs Berryman. Around August 2004, Dr Alice (then known as Dr Robert Moodie) was instructed to act for the Berrymans in those proceedings.
[2] In September 2004, Dr Alice obtained access to documents held by the New Zealand Defence Force (NZDF) including a report, the “Butcher report”, originally prepared by the NZDF on the causes of the bridge collapse. Provision of the documents arose out of a non‑party discovery process. The documents were provided on conditions contained in a consent memorandum filed with the High Court in February 2004. These conditions included a condition that the report not be admitted in evidence. An attempt by the Berrymans to have the conditions lifted was ultimately unsuccessful in the High Court (see Berryman v Solicitor-General [2005] NZAR 512). As a result, the Berrymans discontinued their proceedings.
[3] In early March 2005, Dr Alice released the Butcher report to Television New Zealand (TVNZ). On 24 March 2005, the High Court ordered Dr Alice to return all NZDF documents, including the report. In April, Dr Alice received a further copy of the report from another source and disseminated copies to the media, as well as posting it on the internet.
[4] Mr Dobson QC was appointed by the High Court as amicus curiae to identify whether Dr Alice was in contempt of court in releasing the Butcher report. On 31 August 2005, Mr Dobson produced a memorandum saying that it was tolerably clear that Dr Alice was in contempt when he provided the report to TVNZ and that he was arguably so when he disseminated the further copies in April. The memorandum identified various issues of law that might arise and made a number of observations on how seriously the conduct might be viewed by the Court.
[5] After this memorandum was filed, Mr Lithgow, a counsel experienced in contempt proceedings, was appointed as an additional amicus. Mr Dobson and Mr Lithgow put forward a suggestion as to how contempt proceedings might be instituted but eventually the Solicitor-General decided that it was constitutionally appropriate for him to present the case against Dr Alice. Dr Alice sought an order that Mr Dobson and Mr Lithgow be prevented from appearing for the Solicitor‑General in the proceedings and, on 24 July 2006, Fogarty J granted that application. He provided his reasons the following day in Solicitor-General v Moodie HC WN CIV 2005‑485-001026 25 July 2006. In his view, to allow Mr Dobson and Mr Lithgow to change their role from amici to acting for the Solicitor-General risked undermining public confidence in the administration of justice and in a fair process.
[6] The Solicitor-General appeals against that order. He submits that the role Mr Dobson and Mr Lithgow would perform in acting for the Solicitor-General was the one that it had always been envisaged that they would play and thus that there was no change of function. Secondly, Mr Dobson and Mr Lithgow would have no improper advantage in any substantive hearing. Thirdly, it is submitted that Fogarty J failed adequately to take into account the nature of contempt proceedings and the role of the Solicitor-General in such proceedings. Even if these submissions are rejected, the Solicitor-General argues that the Judge should have differentiated between the roles of Mr Dobson and Mr Lithgow in the proceedings to date and that, given his lesser role, Mr Lithgow should have been allowed to continue acting. Finally, the Solicitor-General submits that, at the least, Fogarty J should have given Mr Dobson and Mr Lithgow time to brief the new counsel for the Solicitor-General rather than being required to cease to act immediately.
[7] The issues for this appeal, therefore, are:
(a) Has there been a change in function for Mr Dobson and Mr Lithgow?
(b)Would Mr Dobson and Mr Lithgow have an undue advantage because of their previous role as amici?
(c)Was the special character of contempt proceedings given sufficient weight?
(d)Should Mr Lithgow have been allowed to continue acting?
(e)At the least, should the Judge have allowed Mr Dobson and Mr Lithgow to brief new counsel?
Has there been a change in function for Mr Dobson and Mr Lithgow?
[8] Fogarty J’s judgment was predicated on the basis that there had been a change in role when Mr Dobson and Mr Lithgow began acting for the Solicitor‑General. In order to assess that submission we need to set out the procedural background in more detail.
[9] The first relevant step for our purposes was taken on 25 May 2005 by Ronald Young J, who sent a memorandum to Dr Alice indicating that two matters had arisen regarding his conduct that may establish contempt of court or justify the Court invoking the power in s 94 of the Law Practitioners Act 1982. The memorandum set out in summary form the two matters: the allegation that Dr Alice had breached an express undertaking given to opposing counsel in the consent memorandum dated 2 February 2004 by releasing the report to TVNZ and the allegation that Dr Alice had breached the Court order of 24 March 2005 by distributing the report more widely in April 2005.
[10] On 14 June 2005 Dr Alice’s then counsel agreed that Dr Alice would file an affidavit setting out in full all of the circumstances relating to the alleged contempt. Ronald Young J said in his memorandum of the same date:
[3] Once all relevant factual material is identified the Court through an Amicus (to be appointed) will identify the objectionable conduct (if any) which may give rise to contempt of court.
[4] If objectionable conduct is identified then a hearing will be held before a Full Court to identify whether such conduct is a contempt and if so what if any penalty is appropriate.
[5] An Amicus is to be appointed to assist the Court. Such an Amicus is to be appointed by the Registrar of the High Court at Wellington.
[11] As indicated above, Mr Dobson was appointed as amicus. There was then a telephone conference before the Chief High Court Judge, Randerson J, on 7 July 2005 with counsel for Dr Alice and Mr Dobson present. In the minute of that conference, it was stated that the appointment of Mr Dobson had the support of Dr Alice’s then counsel, Mr Ellis. It was also noted that, as directed by Ronald Young J in his minute of 14 June 2005, the next step was for Mr Dobson to consider the factual material and to identify whether there was any conduct which, in his view, may give rise to a contempt of court. Mr Ellis agreed to provide Mr Dobson with a copy of Dr Alice’s affidavit of 4 July 2005, along with the two bundles of documents appended to that affidavit.
[12] Mr Dobson’s memorandum of 31 August 2005 (referred to at [4] above) was duly filed. On 7 September 2005, there was a further conference before Randerson J with Mr Ellis, for Dr Alice, and Mr Dobson. In the conference minute, Randerson J summarised the findings of Mr Dobson’s report and said that, at that stage, he had not formed any view on those findings. He did, however, say that, in view of Mr Dobson’s report, it was appropriate that the issues be tested at a substantive hearing. He went on to say:
[4] In the course of the conference today there was discussion about the role of Amicus. Again, I accept the view expressed by Mr Ellis that the Court should adopt the traditional role of neutral adjudicator leaving it to Mr Dobson as Amicus to advance the case in support of contempt allegations against Mr Moodie. I direct that this is the role which Mr Dobson should adopt.
[13] Randerson J directed Mr Dobson to file a memorandum defining the issues further including the issue of jurisdiction and process. The Judge noted that there had been a discussion about the status of the affidavit filed by Dr Alice – see at [10] above. The question was whether it was appropriate for that affidavit to be used in any substantive contempt hearing. Counsel were instructed to discuss the status of the affidavit and a further conference date was set. Mr Dobson then asked for a second amicus to be appointed and in due course the appointment of Mr Lithgow was approved by Randerson J.
[14] A further memorandum was filed by the amici on 22 September 2005, suggesting that the Registrar of the High Court at Wellington make an application under Part 4A of the High Court Rules alleging the contempt and providing particulars of that contempt. The amici envisaged that they would draft that application and would appear in support of it.
[15] By minute of 11 October 2005, Randerson J expressed reservations about the suggested role of the Registrar. He therefore referred the matter to the Attorney‑General. As indicated above, the Solicitor-General then made an application for orders that Dr Alice be held in contempt of court. For completeness, we note that issues with regard to the Solicitor-General’s role have been the subject of separate proceedings dealt with by Panckhurst J - see Moodie v Lithgow & Ors HC WN CIV 2006-485-1732 1 September 2006. Those issues are, however, not before us in this appeal and we must assume for these purposes that the Solicitor-General is the appropriate plaintiff.
[16] It is patently clear that it was always envisaged that Mr Dobson would first prepare a report as to whether there had been objectionable conduct and that he would then “prosecute” the contempt allegations, if his initial report raised issues that the Court considered merited a substantive hearing – see at [5] of Ronald Young J’s minute of 14 June 2005 (set out at [10] above) and at [4] of Randerson J’s minute of 7 September 2005 (set out at [12] above).
[17] There is nothing improper in amici taking a partisan role of this type. Indeed, as Ms Gwyn pointed out, they are commonly appointed for this very purpose: see Krislov “The Amicus Curiae Brief: from Friendship to Advocacy” (1963) 72 Yale LJ 694. Amici have been appointed to present legal arguments for a party who does not appear (for example in Wanganui District Council v Tangaroa [1995] 2 NZLR 706 (HC) and B v M [2006] NZSC 86), for a class of persons that might be affected by the judgment (for example in NZ Dairy Workers Union Inc v New Zealand Milk Products Ltd [2004] 3 NZLR 652 (CA)) or for a person who is representing him or herself (for example in Ambros v Accident Compensation Corporation HC AK CIV-2004-404-003261 21 March 2005 where the appointment was continued for the appeal which is currently reserved for judgment).
[18] It is common in criminal cases for former counsel for an accused to be appointed as an amicus where the accused chooses to represent him or herself, a practice approved by this Court in R v Lee [2006] 3 NZLR 42 at [111].There could well be instances where, for example, an accused may wish to re-instruct the former counsel who has been acting as amicus. It would in our view be both wasteful of resources and unfair to an accused to require him or her to instruct totally new counsel if the amicus was prepared to act. The same situation might arise in other situations where the amicus had effectively been taking a partisan role. Where, as here, a change from a role as amicus to one acting for a party involves no change in function, then we cannot see any reason in principle why this should be proscribed.
[19] Further, it is also clear from the procedural history of this matter that Mr Ellis, on behalf of Dr Alice, consented to the appointment of Mr Dobson as amicus in clear knowledge of the functions Mr Dobson was to perform – see at [10] and [11] above. It is also clear that he consented, even after Mr Dobson’s initial report was filed, to Mr Dobson taking a partisan role in the proceedings – see minute of 7 September 2005 (discussed at [12] above). There is nothing to suggest that Mr Ellis or Dr Alice objected to the appointment of Mr Lithgow as additional amicus. It is true that the actual nominal party to the proceedings was not decided until later. The fact that the Solicitor-General subsequently decided to take this role, however, makes no difference to the already agreed role of Mr Dobson and Mr Lithgow, which was always to be to one of investigation of the facts and then, if warranted, one of prosecution of the alleged contempt. No reason has been advanced for allowing Dr Alice to withdraw his consent.
Would Mr Dobson and Mr Lithgow have an undue advantage because of their previous role as amici?
[20] Another concern of Fogarty J was that Mr Dobson and Mr Lithgow would be advantaged in the substantive litigation because of their previous role as amici. Fogarty J noted that amici are always appointed for their expertise and that they are untrammelled by a client’s instructions. They are thus free to present only those arguments that they believe in. There was a risk therefore that the Court could put undue reliance on their arguments or, at least, that the public would perceive that to be the case. Dr Alice also expressed concern that, in their capacity as amici, Mr Dobson and Mr Lithgow had had access to material, such as his affidavit, which would not be admissible in the later proceedings.
[21] We do not accept the proposition that amici have an advantage over other counsel. A fully informed member of the public would understand that judges decide cases impartially on the merits and on the law and not on the basis of the seniority, expertise or manner of appointment of counsel. We thus do not accept that the administration of justice could be brought into disrepute by amici acting for one of the parties, particularly where, as here, this does not involve any change of function. This is not of course to suggest that advocacy skills and experience play no part in the outcome of a case but any effect is a result of the strength of the arguments and the skill with which they are put, not because of the status of the advocate.
[22] As to the concern that Mr Dobson and Mr Lithgow have had access to Dr Alice’s affidavit and other inadmissible material, Dr Alice, through his counsel, gave his consent to Mr Dobson being provided with a copy of Dr Alice’s affidavit in full knowledge of the role Mr Dobson would perform if it was decided to institute contempt proceedings – see at [11] above. Given that consent, we do not consider that Dr Alice can now use the possible inadmissibility of the affidavit as a basis for restraining Mr Dobson and Mr Lithgow from acting. In any event, it is relatively common for counsel to have had access to material that is not admissible in court (for example, where evidence has been excluded in a criminal trial because of breaches of the New Zealand Bill of Rights Act 1990). Except in cases of conflict of interest, this would not normally result in their disqualification from acting.
[23] Indeed, as a general point, we note that, while the Court does have jurisdiction to restrain counsel from acting even where there is no conflict of interest, parties should not lightly be deprived of their counsel of choice and that jurisdiction should be exercised only rarely: see Russell McVeagh McKenzie Bartleet v Tower Corporation [1998] 3 NZLR 641 (CA) at 651 and 655.
Was the special character of contempt proceedings given sufficient weight?
[24] The Solicitor-General submitted that the Judge did not pay proper regard to the special character of contempt proceedings and the role of the Solicitor-General as Law Officer representing the public interest. We accept the submission that this provides an added reason why Fogarty J’s order should not have been made.
Should Mr Lithgow have been allowed to continue acting?
[25] We do not need to deal with this point, given our conclusion that neither Mr Dobson nor Mr Lithgow should have been prevented from continuing to act.
Should the Judge have allowed Mr Dobson and Mr Lithgow to brief new counsel?
[26] It is not necessary for us to deal with this issue given our earlier findings. We consider, however, that, as the Judge’s finding was based on public perception with regard to their role, rather than, for example, because of any conflict of interest, the Judge should, in order to minimise unnecessary expense and disruption to the process, have allowed Mr Dobson and Mr Lithgow to brief new counsel.
Other matters raised by Dr Alice
[27] Dr Alice, in his submissions, made a number of submissions related to the contempt application itself and also to the underlying Berryman litigation with which he was involved when he received the NZDF report. The only issue before us is whether Mr Dobson and Mr Lithgow should be restrained from appearing as counsel for the Solicitor-General. We thus make no comment on these aspects of Dr Alice’s submissions.
Result and costs
[28] For the reasons given above, the appeal is allowed and the order of the High Court preventing Mr Dobson QC and Mr Lithgow having any further role in the proceedings is set aside.
[29] Costs of $6,000 plus usual disbursements are awarded to the Solicitor‑General.
Solicitors:
Crown Law Office, Wellington
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