T v Lawyers and Conveyancers Disciplinary Tribunal

[2022] NZHC 1101

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000021

[2022] NZHC 1101

BETWEEN

T

Appellant

AND

LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Respondent

Judgment: 19 May 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 19 May 2022 at 10 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

CWJ Stevenson, Wellington. PN Collins, Auckland.

MJ Mortimer-Wang, NZLS.

T v LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2022] NZHC 1101 [19 May 2022]

[1]    Adjournments are often granted other than by judgment. This because they contain no point of principle. This adjournment requires a short judgment.

[2]    T is a lawyer. T faces disciplinary action in the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.1 T sought interim name suppression (pending determination of the  charge(s)).  The  Disciplinary Tribunal  declined  suppression 11 January 2022. T filed an appeal 2 February 2022. On 2 March 2022, and by agreement, Gault J fixed 24 May 2022 as the hearing of the appeal.

[3]On 9 May 2022, Mr Stevenson filed this memorandum:

I have been instructed by [T].

I am currently collating the file and will be acting on the name suppression matter.

I am unavailable on the scheduled date, 24 May 2022.

Could the registry please contact me to allocate a new date.

[4]In response, I issued this electronic Minute:

I refer to Mr Stevenson’s memorandum of 9 May 2022. The memorandum wrongly presupposes the Registry has an obligation to schedule a new date.  I invite Mr Stevenson to recalibrate, and to provide more information in support of an adjournment application—which is what is in issue. I also invite a response on behalf of the [Standards Committee].

[5]    Mr Stevenson replied to the Registrar by email to the effect he could not provide much  more  information  than  that  conveyed.  On  behalf  of  the  Standards Committee prosecuting T, Mr Collins filed a memorandum inviting the Court to hear the appeal as scheduled. I convened a telephone conference.

[6]    At the conference, Mr Stevenson said T approached him to represent him after the fixture had been allocated. Mr Stevenson said he could not accommodate the fixture as he would be on leave, with family, in the South Island. Mr Stevenson added a considerable amount of material underlay the charge(s), which anyone arguing the appeal would need to get to grips with.

1      Disciplinary Tribunal.

[7]    Mr Collins was sympathetic to Mr Stevenson’s position. However, Mr Collins expressed concern about delay. He noted T’s earlier lawyer, Charl Hirschfeld, advised the Disciplinary Tribunal 18 April 2022 he could no longer act. It followed T had known since mid-April he needed to arrange representation for the appeal hearing. Moreover, T failed to comply with Gault J’s timetable directions in relation to the appeal. As Mr Collins observed, deadlines came and went “with silence”.

[8]    I granted the adjournment despite these unsatisfactory features, and even though Mr Stevenson had presented the Court with a fait accompli. To have done otherwise would have left T without counsel at the hearing of the appeal; no one else could pick up the brief and digest everything by 24 May. I also directed the Registrar to allocate a priority fixture.2 I explain my thinking here.

[9]    The Supreme Court has described the principle of open justice as “fundamental to the common law system of civil and criminal justice”, and as of “constitutional importance”.3 This is why the identity of litigants is ordinarily known from the commencement of proceedings, unless countervailing interests of sufficient importance require otherwise.

[10]   The Disciplinary Tribunal operates according to these principles. Its starting point is open justice. But, by s 240 of the applicable legislation, it may suppress a practitioner’s name if it is “proper to do so”.4 So, lawyers enjoy no special treatment. Things could hardly be otherwise in a credible system of justice.

[11]   An appeal in relation to a refusal to grant name suppression, irrespective of jurisdiction or case nature, typically results in continued suppression until the appeal is determined. Otherwise, the appeal would be worthless to the appellant—and moot. This, of course, carries risk: a beneficiary of name suppression may not prosecute her or his appeal with diligence. Why hurry to a potentially adverse result when you already have the benefit of interim suppression through filing an appeal? This explains

2      In consultation.

3      Erceg v Erceg [2016] NZSC 135; [2017] 1 NZLR 310 at [2].

4 Lawyers and Conveyancers Act 2006.

why Courts tend to keep name suppression appeals on a tight leash. To do otherwise could imperil the public interest, including confidence in the administration of justice.

[12]I directed allocation of a priority fixture for these reasons.

……………………………..

Downs J