Tennet v Wellington Standards Committee 2 - [2023] NZHC 2500

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-308

[2023] NZHC 2500

UNDER Part 7 of the Lawyers and Conveyancers Act 2006

IN THE MATTER

of an appeal against a decision of the New Zealand Lawyers and Conveyancers

Disciplinary Tribunal

BETWEEN

CHRISTOPHER JAMES TENNET

Appellant

AND

WELLINGTON STANDARDS COMMITTEE 2

Respondent

Hearing: 21 August 2023

Appearances:

W C Pyke for Appellant

M Mortimer-Wang for Respondent

Judgment:

6 September 2023

JUDGMENT OF McQUEEN J

[1] On 26 October 2022, Mr Tennet (the appellant), was found guilty by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) under the Lawyers and Conveyancers Act 2006 (the Act) of a charge of misconduct alleging wilful or reckless breach of relevant rules (the liability decision).1

[2] On 17 May 2023, the Tribunal ordered that Mr Tennet be suspended from practice as a barrister or as a solicitor for twelve months commencing at 6:00 pm on

1 Wellington Standards Committee 2 v Tennet [2022] NZLCDT 37 [Liability Decision].

TENNET v WELLINGTON STANDARDS COMMITTEE 2 [2023] NZHC 2500 [6 September 2023]

22 June 2023, pursuant to ss 242(1)(e) and 244 of the Act (the penalty decision).2 The Tribunal also ordered a period of supervision upon his return to practice, and that Mr Tennet was to:

(a)attend courses on ethics, professional behaviour and self-management;

(b)undergo counselling;

(c)pay costs to the Wellington Standards Committee 2 (the Standards Committee) of $40,798.40; and

(d)pay costs to the New Zealand Law Society for the Tribunal’s costs of
$12,182.

[3] Mr Tennet appeals against the Tribunal’s penalty decision and the determination that he pay costs, saying that he should not have been suspended at all. He accepts the Tribunal’s liability findings. Mr Tennet sought a stay of the penalty decision pending this appeal. That application was granted by Ellis J on 21 July 2023 (the stay judgment).3

[4] Broadly, Mr Tennet alleges that the Tribunal imposed an excessive and disproportionate penalty, inconsistent with other cases. Mr Tennet says that the Tribunal failed to have regard to the fact that he had no previous misconduct findings against him, that it was an isolated incident, and that he has a long history of service to the profession and public. Mr Tennet also says the costs order was unreasonable and his inability to pay should have been taken into account.

[5] The Standards Committee opposes Mr Tennet’s appeal. The Standards Committee says that in the circumstances a twelve month suspension is the least restrictive outcome available, and that the Tribunal did not err. It submits that the appeal should be dismissed, and the orders for costs upheld.

2 Wellington Standards Committee 2 v Tennet [2023] NZLCDT 20 [Penalty Decision].
3 Tennet v Wellington Standards Committee 2 [2023] NZHC 1932 [Stay Judgment].

[6] For the reasons below, I consider that the appeal should be allowed and that the period of suspension should be reduced to nine months. I uphold the orders for costs.

Factual Background

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 2500
Decision Date: 6 September 2023

CaseChat Overview and Summary

The case before the court was an appeal by Christopher James Tennet (Mr Tennet) against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal). Mr Tennet had been found guilty of misconduct by the Tribunal and ordered to be suspended from practice for twelve months, and to pay costs. The central issues for the court were whether the Tribunal’s penalty of suspension was excessive and disproportionate, and whether the order for costs was unreasonable. The court considered the appeal under the principle that it must be persuaded that the decision under appeal is wrong, but the weight given to the reasoning of the court or tribunal below is a matter for the appellate court’s assessment. The court found that the Tribunal’s decision to suspend Mr Tennet for twelve months was excessive and disproportionate. While Mr Tennet’s conduct was dishonest and inappropriate, the court concluded that a nine-month suspension was the least restrictive outcome available. The court took into account Mr Tennet’s previous unblemished record, the explanatory material provided, and the overall impacts of suspension. The court found that the Tribunal did not err in ordering Mr Tennet to pay costs. The court lifted the stay of suspension from 4 October 2023, and each party was to bear their own costs of the appeal.

Orders