Sparks v Immigration Advisors Complaints and Disciplinary Tribunal
[2017] NZHC 376
•8 March 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-589 [2017] NZHC 376
UNDER the Judicature Amendment Act 1972,
Part 30 of the High Court Rules and the
New Zealand Bill of Rights Act 1990IN THE MATTER OF
an application for judicial review
BETWEEN
LINDSAY CHARLES SPARKS Applicant
AND
IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL
First Respondent
IMMIGRATION ADVISERS AUTHORITY
Second Respondent
Hearing: 7 February 2017 Counsel:
M S Smith for applicant
No appearance for first respondent (abiding)
C A Griffin and M F Clark for second respondentJudgment:
8 March 2017
RESERVED JUDGMENT OF DOBSON J
SPARKS v IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL [2017] NZHC
376 [8 March 2017]
Contents
Introduction ....................................................................................................................................... [1] The hearing before the Tribunal .....................................................................................................[11] The application for judicial review ................................................................................................ [14] Interpretation of the Code .............................................................................................................. [16] Discussion .................................................................................................................................... [26] The Tribunal’s analysis of the complaint ...................................................................................... [35] Breach of clauses 8(b) and 8(d).................................................................................................... [55] Finding of dishonest and misleading conduct .............................................................................. [70] Outcome on challenges to the substantive decision ...................................................................... [80] Authority’s delay in disclosing details of complaints not pursued .............................................. [83] Refusal to require Mr Balatbat to give evidence .......................................................................... [88] Tribunal’s refusal to control lawyer’s website ............................................................................ [108] Refusal of request to prevent cross-examination of Mr Sparks .................................................[116] Summary ........................................................................................................................................ [123] Costs ............................................................................................................................................... [126]
Introduction
[1] At all times relevant to this proceeding, the applicant (Mr Sparks) was in business as an immigration adviser licensed as such under the Immigration Advisers Licensing Act 2007 (the Act). Mr Sparks conducted his practice through his Christchurch-based company, Business Immigration NZ Limited (BIL). One component of his business was to assist Filipino workers to obtain New Zealand jobs and work visas.
[2] In his business as an immigration adviser, Mr Sparks was obliged to comply with the Licensed Immigration Advisers Code of Conduct, which had been issued pursuant to the Act (the Code). The form of the Code in effect at the relevant time was issued in 2010. Compliance by licensed immigration advisers (Advisers) with the Code is monitored by the second respondent, the Immigration Advisers Authority (the Authority), which is established pursuant to s 34 of the Act. The functions of the Authority include maintaining competency standards and the Code, monitoring the conduct of Advisers, including receiving and considering complaints in relation to the conduct of Advisers. The Authority acts via its Registrar, a position that is also provided for under s 34 of the Act.
[3] The first respondent, the Immigration Advisers Complaints and Disciplinary
Tribunal (the Tribunal), is established under s 40 of the Act. Its functions include
making decisions on complaints referred to it by the Registrar. The Tribunal can act by any one member, including its Chair, and there is no right of appeal from Tribunal findings that an Adviser has breached the Code, as occurred in the present case. Accordingly, this challenge is brought by way of application for judicial review. The Tribunal has indicated that it abides the Court’s decision.
[4] Between May and October 2014, the Authority received 17 substantially similar complaints brought by Filipino workers for whom Mr Sparks had acted. These complaints alleged his non-compliance with the provisions of the Code in the course of acting for those complainants. The complaints were co-ordinated by another Christchurch Adviser, Mr Max Palmer (Mr Palmer), who described them as a “class action complaint”. The complaints raised issues including alleged failures by Mr Sparks to personally provide advice on matters mandatorily required to be covered by the Code, and alleged failures to adequately itemise in advance fees to be charged to the clients.
[5] In December 2014, following relatively brief dialogue between the Authority and Mr Palmer in June 2014 but without interviewing any of the individual complainants, the Authority decided not to refer five of the complaints on to the Tribunal.
[6] In May 2015, the Authority wrote to Mr Sparks seeking detailed responses to
12 of the complaints. These included the complaint brought by Mr Balatbat, a Filipino aluminium fabricator. In mid June 2015, Mr Sparks provided a detailed response to those 12 complaints. At the end of June 2015, the Authority filed a statement of complaint with the Tribunal in relation to Mr Balatbat and the 11 others.
[7] The Tribunal reviewed procedural matters with the parties and in February
2016 acceded to Mr Sparks’ request to set down Mr Balatbat’s complaint for hearing on its own as a “test case”. In preparing for the hearing, Mr Sparks’ solicitors pressed the Authority for full disclosure of matters potentially relevant to Mr Sparks’ defence of the complaints. Mr Sparks was critical of the allegedly late disclosure by the Authority of the circumstances in which it had decided not to pursue a number of the complaints that had been made in substantially the same terms.
[8] Mr Sparks also made a pre-hearing application to the Tribunal, asking that the Tribunal issue a witness summons to Mr Balatbat requiring his attendance to give evidence on the basis that Mr Sparks’ counsel wished to cross-examine him.
[9] Mr Sparks made a further pre-hearing application for a direction that the Christchurch lawyers acting for the complainants be required to remove from their website statements describing the “exploitation of Filipino workers” by Mr Sparks and his company. Comments on the website included the observation that it was going to be very difficult for Mr Sparks’ business to carry on as it had been doing. The application was brought on the basis that it was an incident of the Tribunal’s
power to regulate its own procedure, as the Tribunal thinks fit.1 It was argued that
the presence of the statements on the website raised the prospect of unfairly prejudicing the disciplinary process, and raised questions over the integrity of the Tribunal’s processes and its standing.
[10] On 29 March 2016, the Tribunal issued an interlocutory decision on the applications brought by Mr Sparks, declining to issue a witness summons to Mr Balatbat on the terms sought. It also declined to make a direction affecting the continued presence on the complainants’ lawyers’ website of the material referring to the complaints against Mr Sparks.
The hearing before the Tribunal
[11] The Tribunal conducted the substantive hearing of the Balatbat complaint on
4 and 5 April 2016. At the outset of the hearing, Mr Smith, as counsel for Mr Sparks, applied for an order that counsel for the complainant not be permitted to cross-examine Mr Sparks when he gave oral evidence. The application was made on the basis that equality of treatment required the exclusion of cross-examination of Mr Sparks if his counsel was not permitted to cross-examine Mr Balatbat. The application was declined and counsel for both the Authority and for the complainants
cross-examined Mr Sparks.
1 Immigration Advisers Licensing Act 2007, s 49(1).
[12] The essence of the conduct in issue, as elicited from Mr Sparks’ own statements prior to the hearing and his evidence at it, was that he acted for Mr Balatbat adopting procedures that were relatively standard practice for Mr Sparks. That system involved Mr Sparks’ office providing to a recruitment service in the Philippines the forms needed to apply for New Zealand visas and work permits, and the terms of a contract for the prospective worker’s engagement of Mr Sparks’ company. Mr Sparks did not have any dealings with Mr Balatbat prior to the latter’s arrival in New Zealand. He instead relied on the terms of the forms presented to Mr Balatbat, and the services of the recruitment service and a lawyer in the Philippines to carry out steps required of an Adviser by the Code.
[13] The Tribunal issued its decision on 25 May 2016. It found that Mr Sparks had breached numerous provisions in the Code so that Mr Balatbat’s complaint was made out. The Tribunal’s decision did not address the matter of sanctions for the findings, it being contemplated that the issues of whether Mr Sparks had also committed breaches of the Code in his dealings with the remaining complainants would be determined first.
The application for judicial review
[14] In August 2016, Mr Sparks commenced this application for judicial review. In addition to challenging the substantive determination against him, the claim also sought judicial review of the interlocutory rulings by the Tribunal refusing his request for a witness summons to be issued to enable cross-examination of Mr Balatbat, and refusing to direct deletion of material from the complainants’ lawyers’ website. Refusal of Mr Sparks’ oral application at the start of the hearing that counsel for Mr Balatbat not be permitted to cross-examine Mr Sparks was also challenged. In addition, Mr Sparks sought judicial review of the Authority’s conduct in not providing full and timely disclosure of the circumstances in which other similar complaints were not proceeded with.
[15] At the core of Mr Sparks’ challenge to the Tribunal’s substantive decision was an argument that the Tribunal incorrectly interpreted the extent to which obligations imposed on Advisers by the Code are required to be discharged
personally. Mr Sparks’ views on the extent to which he could delegate the performance of those obligations also impacted materially on his expectations in relation to the Tribunal’s treatment of his pre-hearing applications. Because of the overriding relevance of the correctness of the Tribunal’s approach to the requirement for personal discharge of the obligations in the Code, it is appropriate to consider that challenge to the legal interpretation first, and then to deal with the remaining criticisms, in light of the outcome on this principal ground.
Interpretation of the Code
[16] The complaint against Mr Sparks alleged that he had breached numerous obligations set out in the Code. They were as follows:
1.1 Care, respect, diligence and professionalism
A licensed immigration adviser must, with due care, diligence, respect and professionalism:
a) perform his or her services; and
b) carry out the lawful informed instructions of clients; and
…
1.4 Code of conduct
A licensed immigration adviser must:
a)explain to and provide clients with a copy of the Licensed Immigration Advisers Code of Conduct 2010 before any agreement is entered into; and
…
1.5 Written agreements
A licensed immigration adviser must ensure that:
a)before any agreement is entered into, clients are made aware, in writing and in plain language, of the terms of the agreement and all significant matters relating to it; and
…
c)Clients are advised that they are entitled to seek independent legal advice before entering into agreements; and
…
2.1 Legislation and operating requirements
A licensed immigration adviser must, at all times:
…
b)act in accordance with immigration legislation, including the Immigration Act 2009 and regulations made under it, the Immigration Advisers Licensing Act 2007, and
…
f) uphold the integrity of New Zealand’s immigration system and the
Immigration Advisers Authority; and
…
3. Business management
A licensed immigration adviser must maintain professional business practices relating to finances, records, documents, contracts and staff management, including:
a)confirming in writing to clients when applications have been lodged, with ongoing timely updates; and
b)confirming in writing to clients when work ceases part way through the immigration process on clients’ instructions or by the action of the adviser; and
c)obtaining agreement in writing to any material increase in costs as soon as the increase is known to the adviser; and
d)providing any refunds payable upon completing or ceasing a contract for services; and
e)maintaining complete client records that track all transactions for a period of seven years and making those records available for inspection on request by the Authority; and
f) confirming in writing the details of material discussions with clients;
and
g) maintaining correct and up to date business contact details.
…
8. Fees
A licensed immigration adviser must:
…
b)before commencing work incurring costs, set out the fees and disbursements (including Immigration New Zealand fees and charges) to be charged, including the hourly rate and the estimate of
the time it will take to perform the services, or the fixed cost for the services; and
…
d)ensure that fees, disbursements and payment terms and conditions are provided to clients in writing prior to the signing of any written agreement; and
…
9. Provision of complaints procedures
A licensed immigration adviser must:
…
b) explain to and provide clients with a copy of the adviser’s internal
complaints procedure before any agreement is entered into; and
c)explain to, and provide clients with, the details of the complaints and disciplinary procedures that are outlined in the Immigration Advisers Licensing Act 2007; …
[17] The content of the Authority’s complaint was summarised by the Tribunal as follows:2
[That Mr Sparks]
[53.1] failed to obtain informed instructions (Clauses 1.1(a) and (b) of the
2010 Code).
[53.2] failed to ensure that his client relationship was initiated in accordance with the Code, including by failing to take personal responsibility for ensuring that the written agreement, Code of Conduct, and complaints procedures were provided and explained to the complainant (Clauses 1.4(a), 1.5(a), 9(b) and 9(c) of the 2010
Code).
[53.3] failed to, before commencing work incurring costs, set out the fees and disbursements (specifically Immigration New Zealand fees) to be charged, and ensure that this was provided to the client prior to signing the written agreement (Clauses 8(b) and 8(d) of the 2010
Code).
[53.4] maintained business practices under which he relied on unlicensed people acting as his employees or agents to provide immigration advice to his client (Clauses 2.1(b) and 3 of the 2010 Code).
[53.5] failed to protect against the risk of inaccurate information being supplied to Immigration New Zealand (Clause 2.1(f) of the 2010
Code).
2 Balatbat v Sparks [2016] NZIACDT 27.
[53.6] failed to perform his services with due care, diligence and professionalism, including by failing to take responsibility for the actions of those holding themselves out as his agent (Clause 1.1(a)).
[18] In addition to these alleged breaches of the Code, the Authority alleged that Mr Sparks had engaged in dishonest or misleading behaviour, contrary to the provisions of s 44(2)(d) of the Act, in that he had represented to Immigration New Zealand that he had been involved in preparing the documents on behalf of Mr Balatbat for submission to Immigration New Zealand. Most particularly, the visa application form included a declaration completed by Mr Sparks, which included the following terms:
I certify that the applicant asked me to help [him] complete this form and any additional forms. I certify that the applicant agreed that the information provided was correct before signing the declaration.
[19] The effect of the evidence before the Tribunal was that Mr Sparks completed this declaration without being personally involved in the preparation of the forms by or on behalf of Mr Balatbat.
[20] The Authority’s position has consistently been that an Adviser’s obligations in dealings with a client had to be discharged personally by the Adviser. Mr Sparks’ response was that the Code did not require him to personally discharge these obligations, and that they were able to be delegated by him to others. Mr Sparks also argued that legal obligations arising under Philippines law required some of the steps involved to be undertaken by a Philippines entity that was licensed and regulated under relevant rules in that country. Mr Sparks had an on-going arrangement with a recruitment agency based in the Philippines, Sacred Heart International Services Inc (SHI). In Mr Balatbat’s case, Mr Sparks left it to personnel at SHI to conduct the dealings with Mr Balatbat in the Philippines.
[21] Mr Sparks put in evidence before the Tribunal rules and regulations of the Philippines Overseas Employment Administration (POEA), which regulated agencies operating in the Philippines in the business of recruitment and employment of land-based overseas workers. His argument was that because the POEA rules required certain functions to be undertaken by businesses operating in the Philippines such as SHI, their effect was to exclude the prospect of the same or
similar functions being performed by the New Zealand Adviser who was involved in the recruitment of workers from the Philippines.
[22] The Tribunal adopted the interpretation the Authority contended for, which required personal attendances by Mr Sparks to discharge a number of the obligations under the Code, including each of those set out in [16] above.
[23] The Tribunal’s interpretation of the obligations under the Code is reflected in the following passages:3
[27] It is evident that the legislative scheme is designed to exclude unlicensed people from engaging in the delivery of professional services to a degree that is far from universal in the regulation of professional service delivery.
…
[54] … The relevant parts of the 2010 Code direct all those obligations to a licensed immigration adviser personally. Every one of the relevant provisions in the Code in issue commences with the words “A licensed immigration adviser must”. Whatever Mr Sparks’ agent did in the Philippines, Mr Sparks was required personally to ensure that it occurred; regardless of whether his agents acted lawfully or otherwise.
…
[68] Clauses 1.4 and 9 required that Mr Sparks as the licensed immigration adviser had to “explain” the relevant documents to his client. He had to explain the 2010 Code, the internal complaints procedure, and the complaints and disciplinary procedure. That was a personal professional duty; he could not delegate any of it to a Philippines lawyer. …
…
[71] … the 2010 Code clearly required Mr Sparks to engage in a Skype communication; or other means of communication, to explain documents; using an interpreter if necessary, and to personally comply with the 2010
Code in each of these respects. …
[24] Mr Smith argued that this interpretation of the Code was wrong. He submitted that the wording of the respective obligations did not stipulate that the obligations had to be discharged personally by an Adviser, nor did a purposive interpretation taking into account the mischief addressed by the various rules in the
Code suggest that personal discharge of the obligations was required.
3 Balatbat v Sparks, above n 2.
[25] Mr Smith attributed to the Tribunal reasoning that the obligation to perform such matters was required personally of the Adviser because of the inclusion of the mandatory term “must”. However, I do not accept that the mandatory nature of the obligation was the relevant consideration on which the Tribunal made its decision. Rather, it was that each of the mandatory obligations required in carrying out the business of an Adviser were expressed to be done by the Adviser.
Discussion
[26] Advisers can only be licensed under the Act on an individual basis. Section 10 of the Act requires applicants to be natural persons who are able to satisfy the Registrar that they meet the competency standards that are set out in the Act. The purposes of the Act in s 3 include providing for the regulation of persons who give immigration advice. By definition, that can only be natural persons. Whatever their form of business organisation, whether within an incorporated company or otherwise, the licensing and regulation process deals with each Adviser on an individual basis.
[27] The background to introduction of the Act included recognition of complaints of exploitation of workers, and lax standards. In the first High Court decision considering the disciplinary provisions in the Act, Priestley J observed:4
In passing the Act, Parliament has clearly intended to provide a system of competency, standards, and a Conduct Code to clean up an industry which hitherto had been subject to much justified criticism.
That explains a more stringent focus on personal responsibilities than appears in the regulation of some other occupational groups.
[28] A further indication of the focus on personal obligations is that s 63 of the Act creates an offence for any person to provide immigration advice (which is extensively defined in the Act) without being either licensed, or exempt from the
requirements to be licensed.
4 ZW v Immigration Advisers Authority [2012] NZHC 1069 at [41].
[29] The obligations in the Code are structured implicitly on the basis that they apply and are to be policed on an individual basis. The tone is set in cl 1.1 which starts with an obligation for each Adviser to perform his or her services with due care, diligence, respect and professionalism. That contemplates personal discharge of that overriding obligation, and is the antithesis of a standard of behaviour that can be met by delegating the discharge of those obligations to others.
[30] In the same way, cl 1.4 of the Code requires Advisers to explain the Code to any client before an agreement is entered into. The task of explaining the Code requires a level of expertise with its subject matter. That can be assumed to be knowledge held by individuals who have established the requisite competence to be licensed, and involves an interactive process requiring at least a measure of dialogue between the person doing the explaining, and the person receiving the explanation. The natural interpretation of that obligation is therefore one that is personal to the individual who has been licensed to operate under the terms of the Code.
[31] The terms of cl 1.5 of the Code impose a mandatory obligation in arguably less direct terms. The Adviser must “ensure” that the terms of an agreement between the Adviser and a client are brought to the client’s attention, and that the client is aware, before entering into an agreement, that he or she is entitled to seek legal advice on its terms. Arguably, an Adviser might devise systems that provide for others to discharge these obligations, provided that the personnel and systems for doing so reasonably entitled the Adviser to rely on confirmation that the requisite steps had been undertaken. The obligations of making clients aware of matters and advising them are expressed in passive and impersonal terms (“clients are made aware” and “clients are advised”), rather than in active and personal terms such as:
· … the Adviser must make the clients aware;
· … the Adviser must advise the clients that they are entitled to seek …
[32] However, in the context of all the terms of the Code, I consider the preferable interpretation of this obligation is that it is also a personal one imposed on the Adviser. The generic obligations to clients in cl 1.1 clearly require that discharge of
obligations to clients is a personal responsibility. In addition, in the context of the obligations in cl 1.4 to explain the Code, an inconsistency would arise if the obligations in cl 1.5 were relaxed so that they could be discharged by means of delegated involvement of others on behalf of the Adviser.
[33] The obligations in cl 2.1 to comply at all times with relevant legislation and uphold the integrity of New Zealand’s immigration system are also cast in terms that are personal to Advisers who have achieved licensed status. It would be inconsistent with the regime of personal licensing and regulation if those obligations were able to be delegated.
[34] I therefore find that the Tribunal’s interpretation of the relevant Code provisions so as to require personal discharge of those obligations was not in error.
The Tribunal’s analysis of the complaint
[35] The first issue addressed by the Tribunal was whether Mr Sparks’ breaches of the obligations to attend personally to the requirements in the Code had occurred negligently, or intentionally.
[36] Mr Sparks accepted in cross-examination that the Registrar had explained to him the Authority’s expectation of personal compliance with the Code obligations prior to his dealings with Mr Balatbat and others in 2012. In addition, the expectation of personal discharge of the requirements has also been addressed on numerous occasions since then.
[37] In 2012, the Tribunal had considered complaints brought by the Authority against Mr Sparks and a Ms Maerean who was working for his company as an Adviser. Following a minute issued by the Tribunal in dealing with that complaint in August 2012, Mr Sparks filed an affidavit that addressed the manner in which his business operated. As paraphrased by the Tribunal in its decision, Mr Sparks’
affidavit included acknowledgements that he had not complied with the Code:5
5 Immigration Advisers Authority v Maerean [2013] NZIACDT 6.
[55] Mr Sparks accepted he had not always complied correctly with the Code of Conduct, as he had not had the personal contact with clients that is required, having regarded compliance as a company issue rather than requiring the personal compliance of the licensed immigration adviser.
[56] Mr Sparks has taken steps to ensure that he and others he works with understand this obligation, and the necessity of ensuring people he works with comply. …
[38] On the hearing of Mr Balatbat’s complaint in April 2016, the Tribunal may have assumed from his response to the 2012 complaint that Mr Sparks accepted the need for him to personally discharge the relevant obligations under the Code. The Tribunal asked Mr Sparks questions on a number of occasions as to how he could have discharged his obligations in acting for Mr Balatbat when he had no contact with him prior to Mr Balatbat arriving in New Zealand. The tenor of Mr Sparks’ answers was that those obligations were discharged on his behalf either by personnel at SHI, or by the Filipino lawyer retained to take Mr Balatbat through the terms of Mr Sparks’ Immigration Consultant’s Agreement (ICA) and provide an explanation of Mr Sparks’ obligations under the Code.
[39] Mr Sparks’ further explanation for leaving these matters to those involved in the Philippines was that the terms of the POEA rules required SHI to carry them out. Mr Sparks considered he would be committing, or contributing to, breaches of Filipino law if he undertook immigration advisory services in the Philippines.
[40] The Tribunal did not accept that the terms of the POEA rules created any constraint on personal discharge by Mr Sparks of the relevant obligations under the Code. Ms Griffin submitted for the Authority that the two sets of rules were entirely complementary, with no overlap that affected Mr Sparks’ ability to carry out his obligations under the Code when acting for a client in the Philippines. At most, Mr Sparks might need to attend on his clients, together with a representative of SHI, but none of the POEA provisions required his exclusion from the personal attendances that were required by the Code. Face-to-face attendances were not essential, and Skype attendances qualified as personal involvement. I accept that analysis as correct.
[41] It follows that the Tribunal was entitled to arrive at the finding it did, that Mr Sparks had intentionally breached the obligations for him to personally carry out the requirements of the Code.
[42] On a number of the components of the complaint, Mr Smith argued that the nature of what had occurred in the Philippines could not be the subject of findings adverse to Mr Sparks without his having the opportunity to cross-examine Mr Balatbat on what had occurred. That misses the point that Mr Sparks’ own acknowledgement of what occurred made out the elements of the breaches. It was open to the Tribunal to find the breaches made out on Mr Sparks’ evidence, irrespective of the extent to which Mr Balatbat may have been able to complete the various forms himself, or the extent to which he understood the matters that Mr Sparks was required to explain to him.
[43] Rejection of Mr Sparks’ criticism that the Tribunal erred in requiring personal attendances to discharge his obligations under the Code addresses his primary ground for challenging the lawfulness of the findings of breach. Few of the criticisms that are specific to particular findings of breach remain arguable if the alleged error in interpreting the personal nature of the obligations is not sustained.
[44] For instance, Mr Sparks’ challenge to the findings of breach of cls 1.1(a) and (b) relied on the argument that the Code did not require the various services to be carried out personally. Mr Smith supported the arguments on interpretation by arguing that a purposive interpretation did not require the provision of the services personally when Mr Balatbat got what he wanted at the price (so far as Mr Sparks’ services were concerned) that he contracted for at the outset. However, breach is to be assessed by reference to the requirements of the Code, not the needs of a particular client and whether those needs were met.
[45] Breaches of cls 1.4(a), 1.5(a), 9(b) and 9(c) were considered together as breaches of duties to explain relevant matters to the client. The Tribunal’s approach was that these reflected personal professional duties that could not be satisfied by having Mr Balatbat sign documents acknowledging that he understood the
documents and their implications. Mr Smith’s criticisms all fall away once the correctness of the Tribunal’s approach requiring personal involvement is upheld.
[46] The findings of breaches by Mr Sparks of the obligations in cls 2.1(b) and 3 of the Code were based in the same way on the requirement for an Adviser’s obligations to be discharged personally. Those clauses required an Adviser to act in accordance with relevant immigration laws, including international obligations, and to maintain professional business practices. The breaches were alleged to occur because Mr Sparks did not maintain proper business practices and relied on unlicensed people acting on his behalf to provide immigration advice to clients.
[47] The Tribunal reasoned that the steps undertaken in the Philippines included some that inevitably came within the extensive definition of immigration advice in s 7 of the Act. Mr Sparks was required to provide that advice personally, but his business practice was to depend instead on those with whom a client would deal in the Philippines. Accordingly, the Tribunal reasoned that he had failed to meet the obligations under the Act and failed to maintain professional business practices. I am satisfied that that conclusion was justified.
[48] Mr Smith criticised a component of the Tribunal’s reasoning on these breaches, which focused on the work done by those in the Philippines whom Mr Sparks depended on. The Tribunal observed that those carrying out steps that included the provision of immigration advice in the Philippines, and who did so without being licensed advisers, would be committing an offence under the Act if they did so knowingly. Mr Smith argued that this observation was wrong as a matter of law, and in breach of obligations of natural justice to afford those criticised as having committed an offence under New Zealand law an opportunity to defend themselves.
[49] Mr Smith’s criticism is misconceived. The observation was not an aspect of the Tribunal’s reasoning in finding breaches of cls 2.1(b) and 3. There was no prospect that the observation put the unidentified individuals in the Philippines in jeopardy. However, the prospect that personnel in the Philippines carrying out work that was reserved for licensed Advisers might be doing so in breach of the Act
reflects the seriousness of the lapses as perceived by the Tribunal. That observation did not affect the legal and factual analysis relied on in finding that Mr Sparks breached these provisions. No errors of law or breaches of natural justice stem from the Tribunal’s finding.
[50] The next finding was of breach of cl 2.1(f) of the Code. The Tribunal found that the extent to which Mr Sparks delegated tasks of supervising the content of the relevant applications by Mr Balatbat failed to protect against the risk of inaccurate information being provided to Immigration New Zealand. Mr Smith criticised an observation in the Tribunal’s decision that Mr Balatbat did not speak English as a first language. He also criticised the Tribunal’s failure to acknowledge that Mr Balatbat had not been shown to provide any information that was false.
[51] Those criticisms cannot justify the argument that the Tribunal could not make a finding of breach of this obligation. The extent of Mr Balatbat’s competence in English, and the accuracy of the information he actually did provide, cannot be determinative where the complaint was that Mr Sparks’ work practice did not include the level of personal involvement required of him by the Code in the preparation of information to be conveyed to, and relied on by, Immigration New Zealand. The system for preparing and presenting applications to Immigration New Zealand depends on the involvement of licensed advisers whose competence and obligations to comply personally with the Code provide an important assurance as to the accuracy of the information that Immigration New Zealand will rely on.
[52] The Tribunal was entitled to reject Mr Sparks’ arguments that a written warning to his clients of the serious adverse consequences of providing any incorrect information was sufficient. It was similarly open to it to reject Mr Sparks’ claim that subsequent vetting of documents to test for internal inconsistencies was a sufficient performance of his personal obligations.
[53] In this case, Mr Sparks adopted a work practice that deprived the information submitted to Immigration New Zealand of the assurance of reliability that his personal involvement in preparing it should have provided. No material error of fact, and no error of law, arises.
[54] I turn next to criticisms that can be advanced independently of the requirement for Mr Sparks to comply personally with the provisions in the Code.
Breach of clauses 8(b) and 8(d)
[55] These provisions (see [16] above) require an Adviser to set out the fees and disbursements that are to be charged and to ensure that those details, together with the terms for payment of fees, are provided to clients in writing prior to the signing of an ICA. In this case, Mr Sparks stipulated a total fee of US$3,400, split into three components that would be payable on achieving certain stages of the tasks. The schedule also indicated that the costs would be “plus government visa fees”, with no indication of their extent. There was no indication of the extent of fees Mr Balatbat would incur with SHI.
[56] The particulars of the complaint as prepared by the Authority stated that Mr Sparks may have failed to set out the fees and disbursements (specifically Immigration New Zealand fees) that were to be charged prior to commencing work and providing such details to Mr Balatbat before any agreement was signed.
[57] The Tribunal found that Mr Sparks breached the obligations under cls 8(b) and (d) by not stipulating the extent of government visa fees, not providing a more detailed explanation of the work that his fees covered, and by not specifying the extent of fees that Mr Balatbat would incur with SHI.
[58] The Tribunal’s reasoning on the fees Mr Balatbat incurred with SHI was as follows:
[76] The first point to observe is that Mr Sparks allowed [SHI] to provide the complainant with an agreement saying Mr Sparks would provide immigration services. The front page of the document has Mr Sparks’ licence number, and the logo used by licensed immigration advisers. He also provided a certificate saying he was bound by the Licensed Immigration Advisers Code of Conduct. He said he would “manage and facilitate and advise on the various procedures for an immigration application”. In my view, those representations made Mr Sparks responsible for all financial matters relating to the agreements, and for the money, the complainant paid to [SHI] for their work. That is because:
[76.1] The agreement referred to the recruitment process by BIL, and the certificate referred to the work performed by [SHI].
[76.2] Mr Sparks put his license number and references to his status as a licensed immigration adviser at [SHI’s] disposal. [SHI] informed the complainant that he entered into the agreement and paid money with the protection of Mr Sparks’ status and accountability as a licensed immigration adviser.
[76.3] Accordingly, Mr Sparks is responsible for delivering what the Code of Conduct required, having allowed his agent to promise his status as a licensed immigration adviser would ensure that was so.
[59] These findings are challenged on a number of grounds. First, that Mr Sparks was not put on notice that inadequate narration of the work he would undertake amounted to a breach, nor was he on notice that he might be attributed with responsibility for quantifying, at the outset, the extent of fees that might be charged by SHI.
[60] I do not consider Mr Sparks was given inadequate notice that the adequacy of the narration of the work he would undertake was in issue. The terms of the complaint reasonably put him on notice that the adequacy of the description of what was covered for his own fees may well arise. Further, the Tribunal’s finding of inadequate narration was not critical to the outcome.
[61] The prospect of finding a breach of these clauses in the Code because Mr Sparks did not advise Mr Balatbat in advance of the costs he would incur with SHI is in a different category. The closest the complaint came to this point was the allegation that Mr Sparks allowed SHI to act as his agent, including providing SHI with a certificate to provide to Mr Balatbat that referred to SHI as the agent of Mr Sparks as the Adviser. The complaint then referred to the lack of control that Mr Sparks had over SHI’s practices, including them charging fees that may have
been more than reasonable.6
[62] If the complaint had alleged failure to itemise SHI’s fees in advance as a breach of the Code, Mr Sparks might well have approached his response to this aspect of the complaint differently. Certainly, his counsel was entitled to an opportunity to prepare a response to the notion that Mr Sparks was responsible for
advising Mr Balatbat at the outset of the extent of costs the latter would incur in the
6 Statement of complaint, 30 June 2015, at [14] and [15].
Philippines, when it was common ground that Mr Sparks had no direct involvement with what occurred there. This criticism was sufficiently discrete to require specific notice prior to the hearing, and the lack of it constitutes a deficiency in the procedure that amounts to an error. Further, if the criticism had been more specific, it may have put a different complexion on the assessment of potential relevance of testing Mr Balatbat under cross-examination at the liability stage of the disciplinary proceeding.
[63] Mr Smith also challenged the lawfulness of the Tribunal’s reasoning that attributed responsibility to Mr Sparks for the level of fees that were to be charged by SHI. Arguably, in [76.3] of its decision,7 the Tribunal attributed a principal/agent relationship between Mr Sparks and SHI, without knowing the terms of the contract between SHI and Mr Balatbat. Casting Mr Sparks in a position to control the conduct by SHI was arguably contrary to the evidence that it conducted its business
in the Philippines consistently with the obligations under the POEA rules, and independently of Mr Sparks.
[64] The terms of the complaint and the Tribunal’s analysis relied in part on the printed terms of a certificate that Mr Sparks used with clients such as Mr Balatbat. The Tribunal accepted the Authority’s interpretation that the certificate characterised SHI as Mr Sparks’ agent. The certificate included an agreement by the client
(Mr Balatbat) that he has:8
… provided all the requested documentation to process the immigration application to your recruitment agent “ ” for the purpose of it being sent to New Zealand so your appointed adviser can manage and facilitate the various procedures for this immigration application on behalf of the client to Immigration New Zealand …
[65] The identity of the recruitment agent was left blank in Mr Sparks’ form, but was intended to be SHI in this case. Although the meaning intended by this acknowledgement is not entirely clear, the overall context suggests that SHI was Mr Balatbat’s recruitment agent, rather than Mr Sparks’ agent. The reference appears in the same sentence as the reference to “your appointed adviser”, which can
only be Mr Balatbat’s adviser, namely Mr Sparks. Consistency requires that it be
7 Cited at [58] above.
8 Record of Proceedings, Volume 2, tab 9 at 333.
interpreted as referring to Mr Balatbat’s recruitment agent and his appointed adviser (respectively SHI and Mr Sparks). If SHI was appointed as agent for Mr Sparks, it is reasonable to anticipate that that detail would have been completed before the form was despatched for the remaining details to be personalised for Mr Balatbat. I am satisfied that the Tribunal erred in interpreting the certificate as acknowledging SHI as Mr Sparks’ agent for the purposes of services provided to Mr Balatbat in the Philippines.
[66] More generally, the Tribunal attributed a principal/agency relationship as following inevitably from the structure of the arrangements Mr Sparks had in place for provision of services to Mr Balatbat in the Philippines. Those services included aspects of immigration advice that were required to be provided by an Adviser. Implicitly, the reasoning was that because Mr Sparks arranged for SHI to provide such services by SHI standing in for him, then that necessarily created a principal/agent relationship.
[67] I am not satisfied that that conclusion was open to the Tribunal. In the absence of any contract between Mr Sparks and SHI acknowledging a requisite agency (and further in the absence of terms of contractual arrangements between SHI and Mr Balatbat), the evidence could not exclude the prospect that SHI and Mr Sparks treated SHI as an independent contractor. Accordingly, I find that the Tribunal’s reasoning erred in this respect as well. The Tribunal was justified in finding that Mr Sparks intentionally breached the obligations in the Code requiring personal provision of various forms of advice. Those findings do not justify compounding the extent of the breaches by attributing a principal/agent relationship as the inevitable means by which SHI provided services on Mr Sparks’ behalf, when the attributed relationship is materially different from the legal effect of the arrangements as Mr Sparks understood them to be at the time.
[68] Mr Sparks also criticised the Tribunal’s interpretation of the extent to which “disbursements” were required to be specified. He argued that he did not itemise the Immigration New Zealand fees because they were beyond his control, and liable to change. Payments, including accounting for the Immigration New Zealand fees, would incur banking charges that also fluctuated with exchange rates, and such
matters were also beyond the parties’ control. In addition, a revised Code promulgated in 2014 addressed the obligation to stipulate disbursements in greater detail. Mr Smith argued that that change implicitly recognised that the more limited reference to disbursements in the 2010 Code was inadequate to require the detail that the Tribunal considered was required.
[69] I do not accept that the Tribunal made an error of law in this regard. The purpose of the requirements in cls 8(b) and (d) was to fairly inform any prospective client of the extent of costs that would be incurred in New Zealand, before the client made a contractual commitment to the Adviser. Compliance reasonably required an indication of fees currently being charged by Immigration New Zealand, sensibly with a qualification that those fees were liable to change and were a matter beyond Mr Sparks’ control. Advice in those terms would be far more meaningful for persons in Mr Balatbat’s position and is no more than is reasonably required on the natural meaning of the clauses. Greater specificity in a revision of the Code does not amount to an acknowledgement that this appropriate level of detail was not reasonably required by the 2010 wording.
Finding of dishonest and misleading conduct
[70] The final component of the Tribunal’s findings was that Mr Sparks had engaged in dishonest and misleading behaviour, contrary to s 44(2)(d) of the Act. The relevant component of the Authority’s complaint cited two aspects of Mr Sparks’ conduct as alternative respects in which he may have been dishonest or misleading. First, that a declaration provided to Immigration New Zealand indicated he had not provided immigration advice when he had in fact done so. Secondly, that Mr Sparks had not provided immigration advice, but had dishonestly told Mr Balatbat that he would do so.
[71] The complaint cast these two aspects of Mr Sparks’ behaviour as alternatives. That was not strictly necessary, as they might both have been made out in that the first complained of a misstatement to Immigration New Zealand, and the second a misstatement of Mr Sparks’ intentions as conveyed to Mr Balatbat.
[72] The first instance of dishonest or misleading behaviour related to a part of the visa application Mr Sparks submitted to Immigration New Zealand on behalf of Mr Balatbat. The application form contemplated that Mr Sparks would tick an acknowledgement that he had provided immigration advice to Mr Balatbat. Mr Sparks had not ticked that box and he explained in evidence that he understood from the Registrar that the box was not to be ticked unless he had provided in person advice to the client. Arguably by omitting to tick the box, Mr Sparks was acknowledging that there had been no advice of that type.
[73] However, other aspects of the documentation Mr Sparks submitted to Immigration New Zealand included the certificate quoted at [18] above, and a further confirmation in the visa application:
I have assisted the applicant with recording information on the form.
[74] The Tribunal found, on the basis of Mr Sparks’ own explanation as to the process he adopted for applications such as Mr Balatbat’s, that both these written statements made in forms submitted to Immigration New Zealand were false.
[75] Mr Smith argued that there was significant inconsistency between an allegation that Mr Sparks had declared to Immigration New Zealand that he had not provided immigration advice, and a finding that Mr Sparks had falsely made a statement that he had provided such advice. He submitted that the lack of adequate notice of the second form of wrongful conduct was in breach of his right under s 27(1) of the New Zealand Bill of Rights Act 1990 and co-extensive obligations owed at common law to provide him with adequate notice of the charge he was facing. Arguably, it was also a breach of his substantive legitimate expectation as to process.
[76] As the Tribunal noted, the explanation for Mr Sparks’ dealings with both Mr Balatbat and Immigration New Zealand became clear only during his oral evidence. The contradiction between completion by Mr Sparks of certificates within the forms he submitted to Immigration New Zealand that he had assisted Mr Balatbat, and his acknowledgement in evidence that he had not done so, provides strong grounds for a finding by the Tribunal that that component of his behaviour
was dishonest and misleading. In the circumstances of this case, I am not satisfied that the difference in the nature of the behaviour alleged to be dishonest and misleading, and the nature of it that became apparent at the hearing, should have prevented the Tribunal finding that it had been made out.
[77] It is relevant that Mr Sparks accepted in his oral evidence that the Registrar had warned him before his 2012 dealings with Mr Balatbat that the Authority expected an Adviser’s obligations under the Code to be discharged personally. Once Mr Sparks was on notice of that interpretation of the Code by the Authority, it was open to the Tribunal to find that it should not treat the inconsistency between Mr Sparks’ certificates to Immigration New Zealand and his absence of personal involvement with Mr Balatbat, as mere negligence or unintended conduct in breach of his obligations. The plain wording of the confirmations provided by Mr Sparks in those forms made personal involvement a clear requirement.
[78] As to the finding of dishonest and misleading conduct as between Mr Sparks and Mr Balatbat, the Tribunal assessed the written communications provided by Mr Sparks to SHI, which SHI was to provide to Mr Balatbat at the outset of his initiatives to obtain a New Zealand work visa. The representations as to what Mr Sparks would do included “manag[ing] and facilitate[ing] and advis[ing] on the various procedures for an immigration application [to Immigration New Zealand]”.9
[79] There was scope for the Tribunal to find on the evidence that the system Mr Sparks had in place for clients such as Mr Balatbat rendered that statement as to what he would be doing dishonest and misleading. The materiality of that misleading conduct could not be assessed without the Tribunal hearing from
Mr Balatbat.10
Outcome on challenges to the substantive decision
[80] With one exception, I have found the criticisms of the Tribunal’s conduct of the hearing and lawfulness of its decision cannot be made out. The Tribunal did not
err in its interpretation of the personal nature of the obligations under the Code, and
9 Record of proceedings, tab 9, at 333.
10 See [101]–[105] below as to considerations on sanctions.
in all but one respect adopted an adequate process appropriate to the forum, and made findings that were open to it on the evidence. Criticisms that the Tribunal failed to take into account relevant considerations, or relied on irrelevant considerations, cannot be made out.
[81] The one exception is the finding that Mr Sparks was obliged to specify the extent of SHI’s charges at the outset, and that he had to assume responsibility for their reasonableness. Mr Sparks was not given notice that that omission constituted a breach of the Code, and the legal analysis on which the Tribunal relied to attribute contractual responsibility to Mr Sparks for that aspect of the costs that Mr Balatbat would incur was not reasonably open to it.
[82] In light of those findings on Mr Sparks’ challenge to the substantive decision, it is appropriate to turn to the additional grounds of challenge to the earlier interlocutory rulings. My findings on what was the scope of relevant evidence at the substantive hearing is material in assessing whether interlocutory rulings affecting the procedure to be adopted give rise to any reviewable error.
Authority’s delay in disclosing details of complaints not pursued
[83] The first of Mr Sparks’ criticisms of the pre-hearing process was levelled at the Authority, rather than the Tribunal. Mr Sparks had pressed the Authority for detail on the reasons why five complaints were not being pursued. Mr Sparks sensed inconsistency of treatment and wished to know the detail which he considered may be helpful to him in defending Mr Balatbat’s complaint. That complaint was being heard as a test case. One working day before the Tribunal hearing, Mr Sparks was given an explanation that Mr Balatbat’s representative (presumably Mr Palmer) had lost contact with those five complainants, and that the staff working on the complaint had no other contact details for them. That was cited as a consideration when deciding whether or not to proceed with those complaints.
[84] Mr Smith alleged that that information had been deliberately withheld from him, given the absence of response to earlier requests seeking those details.
[85] The Authority denied there was any conscious decision to withhold the information. The solicitor at the Ministry of Business Innovation and Employment responsible for the conduct of the Authority’s case on the complaints before the Tribunal recorded that she had only just been advised of the fact when she emailed Mr Smith, and apologised for the late disclosure.
[86] Assuming, without deciding, that this aspect of provision of information to a person charged in such a disciplinary context constitutes the exercise of a power that is amenable to review, I would not be persuaded that any reviewable error occurred. A substantial focus in Mr Sparks’ response to the complaints was that they had been promoted by a trade competitor, and did not reflect genuinely motivated concerns by former clients where those clients had not previously complained about the outcome of Mr Sparks’ services for them. He was keen to expose inconsistency between complainants and attributed relevance to this information because of the prospect that it might assist him in doing so.
[87] The information was provided before the hearing started. As the issues were focused by the Tribunal, the status of other complaints against Mr Sparks were not relevant. As I explain below in dealing with the Tribunal’s refusal to issue a summons enabling Mr Balatbat to be cross-examined, the focus for the Tribunal was very much on Mr Sparks’ actions and omissions, and not on the conduct or views of the complainants. The genuine position of each of the complainants is likely to be relevant if and when matters of sanction are to be considered by the Tribunal. However, their views on the adequacy of Mr Sparks’ services for them was only incidental to the Tribunal’s assessment of whether Mr Sparks discharged his mandatory obligations under the Code. The concerns reflected in the complaint arose out of the business practices adopted by Mr Sparks and could have been pursued on an “own motion” complaint by the Registrar. Whilst earlier disclosure may have made for more orderly preparation of Mr Sparks’ case, the disclosure provided could not amount to a breach of reasonable expectations as to procedure.
Refusal to require Mr Balatbat to give evidence
[88] Consistently with Mr Sparks’ interest in the circumstances in which certain similar complaints were not pursued, Mr Sparks sought the opportunity to test Mr Balatbat’s version of events by having him called, with Mr Sparks’ counsel being entitled to cross-examine him.
[89] In response to the interlocutory application made for Mr Sparks for such an order, Mr Balatbat responded that he did not wish to give evidence in person and would rely on the papers that had been filed. On his behalf, counsel for Mr Balatbat accepted that his written testimony would be less persuasive than any oral testimony. That was recognised by the Tribunal in its decision declining the application
because:11
… if there is anything the complainant said, which Mr Sparks contradicts with believable evidence on oath, the Tribunal will necessarily accept Mr Sparks’ evidence.
[90] The reasoning also acknowledged that the Tribunal had no interest in an inquiry into the motives of the complainant, and that it was dealing with a complaint against Mr Sparks.
[91] The Tribunal acknowledged that Mr Sparks could call Mr Balatbat as his own witness. The Tribunal was prepared to issue a summons for that purpose and, if so, the Tribunal indicated that the following procedure would be adopted:12
[15.1] Mr Sparks will give evidence first.
[15.2] The complainant, being a party, may remain in the hearing room while Mr Sparks gives evidence; he may choose not to remain.
[15.3] The usual constrains [sic] of not asking leading questions, and not cross-examining in the event of any unfavourable answers will apply to complainant’s evidence if it is part of Mr Sparks’ case.
[15.4] The Registrar and the complainant’s counsel may cross-examine the complainant.
[15.5] Re-examination with a strict application of the no cross-examination rule (with or without using leading questions) will then apply.
11 Balatbat v Sparks [2016] NZIACDT 16 at [13].
12 Balatbat v Sparks, above n 11.
[92] Mr Smith treated the Tribunal’s acknowledgement that Mr Sparks might call Mr Balatbat as his own witness as an acceptance of the relevance of the evidence he might give. However, permitting Mr Balatbat’s evidence on terms where Mr Sparks’ counsel could not cross-examine, but Mr Balatbat’s own counsel could, was characterised by Mr Smith as reflecting an improper purpose, and also amounted to pre-determination because it evidenced a closed mind as to what the relevant issues would be at the hearing. It was also characterised as a breach of natural justice, and as an unreasonable decision that was not open to the Tribunal. In that regard, the evidence on the judicial review included an affidavit from a Queen’s Counsel experienced in appearing in professional disciplinary proceedings who opined that the usual practice in such fora is for a complainant to give evidence, and to be tested on cross-examination.
[93] The statutory structure for a disciplinary process is relevant to the extent to which testing of evidence might reasonably be expected. This Tribunal was established on terms that it would deal relatively summarily with complaints referred to it by the Authority. The default position is that complaints must be heard by the Tribunal on the papers. Despite that, the Tribunal has an absolute discretion to request that any person appear before it to make a statement or provide an
explanation in relation to a complaint.13 There is no right of appeal from Tribunal
findings of breach of the Code.14
[94] A further indication of the summary nature of the powers vested in the Tribunal by the Act is the power to suspend an Adviser’s licence pending the outcome of a complaint.15 That may arise where a complaint has been made about an Adviser, and the Tribunal has given 10 working days within which the Adviser is to make written representations as to why the licence should not be suspended. Any such representations are to be taken into account by the Tribunal, which can then decide whether or not to suspend the licence.
[95] The disciplinary structures therefore contemplate that, without the Adviser having any right to appear before the Tribunal, or a requirement to hear a
13 Immigration Advisers Licensing Act 2007, s 49(3) and (4).
14 Section 51(3).
15 Section 53.
complainant, the Tribunal can suspend an Adviser’s licence and determine a complaint. This may trigger sanctions, including suspension and cancellation of licences and an Adviser being banned from applying for a further licence for a period up to two years.
[96] In preparing complaints, the Registrar’s obligations include giving written notice of the complaint to a person complained of, which must identify the complainant, unless the Registrar considers that exceptional circumstances justify withholding the complainant’s identity.16 That is a further indication that the Registrar may adopt the subject matter of the complaint and proceed with it, with less reliance on, or contemplating less involvement by, a complainant than would be the case in many other professional disciplinary contexts.
[97] Given the statutory context, consideration of any form of oral hearing was an exception to the usual procedure, and requiring a complainant to attend and be cross- examined would be a further exception from the Tribunal’s default procedure. I therefore find that declining the application to cross-examine Mr Balatbat was a course reasonably open to the Tribunal that did not constitute an improper purpose, or evidence pre-determination. I reach that view, despite the “harder look” unreasonableness review that Mr Smith urged should apply in a disciplinary context.
[98] Whether the refusal to compel Mr Balatbat’s attendance for cross- examination amounted to a breach of natural justice obligations depends on the reasonableness of the Tribunal’s perception of the scope of issues that were likely to arise in determining whether Mr Sparks’ conduct and omissions constituted breaches of the provisions in the Code cited in the complaint.
[99] For Mr Sparks, Mr Smith wished to test apparent inconsistencies in Mr Balatbat’s written complaint, and to challenge his motives for advancing the complaint on the terms he did, when he did. He also wished to establish the extent
and nature of his interactions with SHI.
16 Section 47(3).
[100] From the Tribunal’s perspective, the extent of SHI’s involvement and Mr Balatbat’s motivation were not relevant. Nor was the extent to which Mr Balatbat understood the documents presented to him, or was able to complete the forms without assistance. In the circumstances of this case, that was not pre- determination. The Tribunal has previously approached the interpretation of provisions in the Code requiring personal discharge by Advisers so that Mr Balatbat’s personal position and the terms of engagement with SHI were not at issue. Instead, the issue was confined to the extent to which Mr Sparks attended personally to his obligations under the Code. I find that was a reasonable apprehension of the issues for the Tribunal to apply prior to the hearing. I am also satisfied that in those circumstances, and given the statutory form of the procedure required of the Tribunal, the decision not to accede to Mr Sparks’ request was one reasonably open to it.
[101] A material factor on this issue is that the hearing would be confined to “the liability phase”, that is, whether breaches of the Code as set out in the complaint were made out. Ms Griffin acknowledged that materially different considerations would apply if the matter proceeded to a hearing on sanctions. The imposition of sanctions is a separate function for the Tribunal, provided for under s 51 of the Act. They include the prospect of ordering a refund of all or any part of expenses paid, and paying reasonable compensation to the complainant. The right of appeal from
Tribunal decisions is limited to the imposition of sanctions.17
[102] Clearly, Mr Balatbat’s motivation for bringing the complaint, and all of the circumstances of his dealings with Mr Sparks, would have potential relevance in the Tribunal’s assessment of any appropriate sanction.
[103] As Mr Smith pointed out, there has thus far been no testing by anyone of the accuracy of Mr Balatbat’s complaint. In circumstances where a trade competitor of Mr Sparks has presented a significant number of similar complaints as a “class action complaint”, a range of issues is likely to arise that would touch on the merits
of any financial consequences to Mr Balatbat’s advantage and at Mr Sparks’ cost.
17 Section 51(3).
[104] If the matter proceeds to that stage, then I accept Mr Smith’s argument that it is a very different context and one in which the Tribunal could not approach the issue of requiring evidence from Mr Balatbat in the same way.
[105] Further, the sequence contemplated in [15] of the interlocutory decision would not be appropriate where a sanctions hearing was effectively a test between the complainant, who is likely to seek a financial advantage out of the hearing, and Mr Sparks, who would be defending the scale of consequences of the breaches of the Code that have been found in the liability decision.
[106] However, those concerns do not affect the outcome on the challenge to the previous interlocutory decision made in the context of a liability hearing.
[107] Mr Smith’s very thorough attack on the Tribunal’s conduct included additional arguments that its refusal to facilitate cross-examination of Mr Balatbat breached Mr Sparks’ right to a fair hearing as acknowledged in s 27(1) of the New Zealand Bill of Rights Act, that it amounted to a material form of substantive unfairness, and that it was decided against Mr Sparks on irrelevant considerations. None of those additional arguments can alter the conclusion I have reached on the Tribunal’s entitlement to deal with the issue as it did.
Tribunal’s refusal to control lawyer’s website
[108] In the same interlocutory decision on 29 March 2016, the Tribunal declined Mr Sparks’ request that it direct lawyers representing Mr Balatbat and other complainants to remove certain content from their website that was critical of Mr Sparks’ practice, and anticipated pursuit of further complaints against him. Mr Smith had argued that the power to issue such a direction was a component of the Tribunal’s power to regulate its procedures as it thinks fit.18
[109] The Tribunal doubted its jurisdiction to issue what it treated as a mandatory order, and reasoned that the material on the website contained nothing that could
influence the Tribunal or bring the integrity of the Tribunal process into disrepute.
18 Section 49(1).
[110] Mr Smith challenged that decision on the grounds that the power to regulate its own procedure extended to controlling inappropriate content on the website of a law firm that was appearing before the Tribunal in the relevant complaint. Further, that on the merits here, the Tribunal ought to have appreciated that the test was not whether the Tribunal would be materially influenced, but whether permitting the continued presence of the criticism gave rise to an impression that the Tribunal was failing to not only ensure that justice was done, but also to make sure that justice was seen to be done. He submitted that persons facing serious allegations of wrong- doing need to be treated with dignity and respect.
[111] The last observation certainly reflects a reasonable expectation on the part of those appearing before disciplinary bodies. However, that is an entirely different matter from criticisms by the advocate for a complainant about Mr Sparks’ conduct which somewhat pejoratively anticipates what the outcome of disciplinary proceedings might be.
[112] It would be difficult to make a ruling that applied to all possible circumstances in which a Tribunal such as this might consider directions were warranted in respect of the conduct of those appearing before it. For the most part, and this case is one of them, the Tribunal would be vulnerable to challenge if it asserted a power over a non-party. I am therefore not persuaded that the Tribunal’s doubt about the existence of jurisdiction to make the order sought reflected any error.
[113] The Tribunal’s decision on this point included a comment:
Other bodies do have relevant jurisdiction if there is merit in the contention that the website is improper.
Mr Smith overstated the effect of that comment, contending that it amounted to an observation that the lawyer’s conduct could only be regulated under the Lawyers and Conveyancers Act 2006, which view he argued was wrong.
[114] That characterisation of the comment is not justified. In its context, the Tribunal’s comment conveys no more than that if the website content reflected improper conduct by a lawyer, then there may be other avenues for addressing
complaints about it. It does not indicate any material misapprehension by the
Tribunal as to the scope of its own jurisdiction.
[115] If the regulation of a Tribunal’s procedure does extend to regulating the conduct of those who might appear on behalf of parties before it, then there would always be a discretion as to whether such an unusual exercise of the power was warranted. In this case, it was clearly open to the Tribunal to reach the view that the comments would not influence the outcome and therefore did not seriously risk damage to the integrity of the Tribunal in general, or the quality of the specific proceeding.
Refusal of request to prevent cross-examination of Mr Sparks
[116] At the outset of the Tribunal hearing, Mr Smith sought a direction from the Tribunal that counsel for Mr Balatbat not be entitled to cross-examine Mr Sparks. Arguably, equality of arms between the two sides in the dispute would only be achieved where, if Mr Smith could not cross-examine Mr Balatbat, counsel for Mr Balatbat should not be able to cross-examine Mr Sparks.
[117] The Tribunal rejected the application on the basis that Mr Sparks had sought an oral hearing and elected to provide oral evidence in answer to the complaint. The Tribunal saw no reason in principle to restrict cross-examination of Mr Sparks in those circumstances.
[118] Mr Smith challenged that decision by claiming it breached natural justice, or alternatively s 27 of the New Zealand Bill of Rights Act. He cited a 1993 Court of Appeal decision in which equality of treatment was acknowledged in the context of criminal pre-trial depositions hearings where Cooke P observed:19
A defendant who seeks to insist on exposing a complainant to the ordeal of cross-examination in an attempt to discredit her can hardly complain if expected to undergo a similar test himself. … There would be no injustice in this, as the defendant would have given evidence voluntarily in the hope of destroying the prosecution case …
19 W v Attorney-General [1993] 1 NZLR 1 (CA) at 8.
[119] That situation is readily distinguishable. It arose in the pre-trial stage of criminal proceedings in an era when young complainants in trials for alleged sexual offending did not enjoy the protections now afforded by the laws of evidence. Here it is relevant that Mr Sparks sought the opportunity to give evidence, to endeavour to persuade the Tribunal that the complaint should not be upheld. The concept of equality of arms between the complainant whose concerns have been assessed and advanced on his behalf by the Authority and the member of a professional body subject to disciplinary action, is very different from the position of a young complainant in alleged sexual offending and the defendant charged with that offending.
[120] The Tribunal did not err in rejecting the application where it was premised on an expectation of equality of treatment.
[121] Mr Smith also cited article 14(1) of the United Nations Human Rights Committee International Covenant on Civil and Political Rights for the principle that equality of arms is applicable in criminal and non-criminal proceedings alike.20 That general aspirational notion does not avail Mr Sparks in this case. The Human Rights Committee notes that equality of arms can be subject to reasonable and justifiable exceptions.21 Such justification can be found in circumstances such as the present case where the legislative regime contemplates a fair default procedure from which a party elects to depart.
[122] Accordingly, no reviewable error can be made out in relation to the Tribunal’s decision not to restrict cross-examination of Mr Sparks once he had elected to offer oral evidence at the Tribunal hearing.
Summary
[123] None of the challenges to the pre-trial decisions of the Tribunal, or the conduct of the Authority in the extent and timing of disclosure provided by it, are
20 United Nations Human Rights Committee General Comment No 32: Article 14 – Right to equality before Courts and Tribunals and to a fair trial CCPR/C/GC/32 (2007) at [13].
21 At [13].
made out. Nor is the challenge to the ruling at the outset of the Tribunal hearing declining to constrain the right of other parties to cross-examine Mr Sparks.
[124] With one exception, no reviewable error is made out in respect of the terms of the Tribunal’s substantive determination. The exception is the Tribunal’s finding of a breach of the Code by Mr Sparks in not specifying for Mr Balatbat, before he signed an ICA, the extent of fees that would be charged by SHI. That matter was considered by the Tribunal without adequate warning that Mr Sparks was vulnerable to an adverse finding about it. The reasoning that attributed responsibility to Mr Sparks for the extent of fees charged in the Philippines by SHI relied on an error in the characterisation of the relationship between Mr Sparks’ company and SHI.
[125] I am not satisfied that that error warrants sending the matter of the extent of breaches of the Code back to the Tribunal. It is a matter that the Tribunal is directed to take into account if and when it proceeds to consider sanctions that might be imposed on Mr Sparks for the other breaches as found to have existed.
Costs
[126] Mr Smith requested that the matter of costs be left open for the filing of sequential submissions in light of the terms of my substantive judgment. For the Authority, Ms Griffin submitted that costs on a 2B basis ought to follow the event in the usual way.
[127] My provisional view is that the modest extent of Mr Sparks’ success does not justify a variation from the usual rule that the Authority has prevailed and is entitled to costs. Ms Griffin characterised the scope of the judicial review challenge as a “no stone left unturned” one, and Mr Smith’s extremely thorough submissions certainly put all possible matters in contention. A correspondingly thorough response on behalf of the Authority has been required.
[128] I will afford Mr Smith an opportunity of dissuading me from the provisional view I have indicated. He may do so in written submissions, which are to be a maximum of five pages. They are to be filed within 14 days of delivery of this judgment. Thereafter, counsel for the Authority will have a period of seven days in
which to respond with written submissions of no greater length. I will then make a final determination of costs on the papers.
Dobson J
Solicitors:
Lane Neave, Christchurch for applicant
Crown Law, Wellington for respondents
2