Valuers Registration Board - [2020] NZHC 2050

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-395

[2020] NZHC 2050

IN THE MATTER of the Declaratory Judgments Act 1908

AND IN THE MATTER

of the Valuers Act 1948

RE

VALUERS REGISTRATION BOARD

Plaintiff

Hearing: 5 August 2020

Counsel:

C F Finlayson QC and S H Hussain for Plaintiff D P H Jones QC and R B Moon for New Zealand Institute of Valuers

A H Waalkens QC and M J Francis for Intervenor

Judgment:

13 August 2020

JUDGMENT OF SIMON FRANCE J

[1] There is uniformity in the law governing disciplinary procedures brought against a member of a profession. Generally, in determining whether a charge is proved, the decision maker will undertake a two-step inquiry. However expressed, the two steps are:

(a)first determine whether the alleged conduct fulfils the requirements of the charge, be that charge negligence, incompetence, misconduct, conduct unbecoming, or malpractice. How the charge is worded will reflect the applicable statutory regime; and

RE VALUERS REGISTRATION BOARD [2020] NZHC 2050 [13 August 2020]

(b)second, if so, undertake a discrete assessment of whether the proven conduct is such as to merit a sanction. It is not every failure to meet standards that merits a formal finding of guilt and sanction.

[2] Sometimes captured by the observation that “mere negligence” is not enough, an early formulation of the second stage inquiry was that of Elias J (as she then was) in B v Medical Council,1 where her Honour described the issue as being whether the conduct of the practitioner was deserving of discipline.

[3] One of the cases Elias J referred to was a New South Wales Court of Appeal decision, Pillai v Messiter (No 2).2 That case applied the two-step approach, and became regularly cited for this proposition. There was, however, another aspect to Pillai that also became a focus of analysis, but which was not as uniformly adopted as the two-step aspect.3

[4] When considering what conduct meets the threshold for professional misconduct, as the charge was in that case, Kirby P observed:4

…the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of privilege which accompany registration as a medical practitioner.

[5] The issue that emerged from this, and which arises again in this proceeding, is whether the italicised statement is laying down the test that must be met for all disciplinary charges, or whether a lower level of negligence can suffice for lesser allegations. The argument has been settled for many professional areas by a process of legislative reform where the various disciplinary schemes have been redrafted in a way that makes such a high threshold inapt for the wide range of conduct able to be charged.

1 B v Medical Council HC Auckland HC11/96, 8 July 1996.…

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

AGLC: Valuers Registration Board [2020] NZHC 2050
Case: [2020] NZHC 2050
Decision Date: 13 August 2020

CaseChat Overview and Summary

This case concerns the interpretation and application of the disciplinary procedures outlined in the Valuers Act 1948, specifically addressing the threshold for disciplinary action against valuers. The Valuers Registration Board initiated proceedings to seek a declaration that the high threshold for the second step of the disciplinary process, as established in the case of King v Valuer-General, is incorrect. The New Zealand Institute of Valuers and TelferYoung Ltd intervened in support of the status quo.

The court considered two main issues: first, whether the offences under s 31(1)(c) of the Act require conduct that renders a valuer unfit to be registered or simply improper, unethical, or incompetent conduct. Second, whether the Board of Appeal's adoption of the high threshold for the second step of the disciplinary process, as identified in Pillai v Messiter, was correct.

On the first issue, the court concluded that the conduct prohibited by s 31(1)(c) includes improper, unethical, or incompetent conduct by a valuer in the performance of their duties, not limited to conduct that renders a valuer unfit to be registered. This interpretation aligns with the purposes of the Act and the practicalities of implementing its disciplinary procedures.

On the second issue, the court found that the Board of Appeal in King erred by adopting the high threshold for the second step of the disciplinary process. The court held that such a high threshold is unnecessary and undermines the statutory scheme, which already includes protections against overreach through the use of terms like "improper," "unethical," and "incompetent," the existence of a second-step inquiry, and the availability of a range of penalties. The court concluded that the second-step inquiry should assess whether proven misconduct is deserving of discipline, considering all relevant factors when determining the appropriate sanction.

In summary, the court upheld the lower threshold for disciplinary action against valuers, ensuring that the disciplinary procedures under the Valuers Act 1948 can effectively maintain professional standards while providing adequate protections for valuers.

Orders