Auckland Standards Committee 1 v Brett Dean Ravelich

• Jurisdiction: New Zealand
• Judge: Mr D J Mackenzie,Mr J Clarke,Mr G Craig,Mr C Lucas,Mr P Shaw
• Judgment Date: 29 April 2011
• Neutral Citation: [2011] NZLCDT 11
• Docket Number: LCDT 015/10
• Court: Lawyers and Conveyancers’ Disciplinary Tribunal
• Date: 29 April 2011

BETWEEN

In The Matter of the Lawyers and Conveyancers Act

Auckland Standards Committee 1

Applicant

and

Brett Dean Ravelich, of Auckland, Barrister

Respondent

[2011] NZLCDT 11

CHAIR

Mr D J Mackenzie

MEMBERS OF THE TRIBUNAL

Mr J Clarke

Mr G Craig

Mr C Lucas

Mr P Shaw

LCDT 015/10

IN THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Disciplinary proceedings for professional misconduct under s351-s361 Lawyers and Conveyancers Act 2006 (transitional provisions in respect of complaints and disciplinary proceedings) — operation of transitional provisions in respect of proceedings challenged — historic particulars supporting some of the charges of misconduct fell outside the limitation period in transitional provision — whether transitional provisions applied to commencement of proceedings by own motion procedure or only to commencement by way of complaint — whether s19 Interpretation Act 1999 (effect of repeal on prior offences and breaches of enactments) would enable the charges to be brought — whether the tribunal could read into s351(1) Lawyers and Conveyancers Act (complaints about conduct before commencement of section) a provision extending the subsection to own motion.

REPRESENTATION

Ms K Davenport and Mr M Treleaven for Auckland Standards Committee 1

Mr J Wiles for Mr Ravelich

HEARING at Auckland on 15 March 2011

DECISION OF THE TRIBUNAL ON CHARGES, PENALTY, AND COSTS

Introduction

1 Mr Ravelich faced three disciplinary charges, which had been laid by the Auckland Standards Committee in August 2010. The charges arose from a number of criminal convictions that had been recorded against Mr Ravelich over an extended period of time.

2 Two of the charges related to matters occurring at a time when the Law Practitioners Act 1982 was in force for matters of professional discipline. That Act was repealed on 1 August 2008, which raised a legal issue relating to the operation of the transitional provisions of the Lawyers and Conveyancers Act 2006, which replaced the Law Practitioners Act. We shall discuss that issue later in this decision.

Disciplinary charges

Charge 1

3 The first disciplinary charge alleged that Mr Ravelich had been convicted of the offence of resisting arrest in February 2009. That is an offence that may be punished by imprisonment.

4 That charge was brought under S.241(d) Lawyers and Conveyancers Act 2006, which provides, so far as relevant, that if the Tribunal is satisfied that a person “…has been convicted of an offence punishable by imprisonment and the conviction reflects on his or her fitness to practise, or tends to bring his or her profession into disrepute…” the Tribunal may make any of the orders authorised by S.242 of that Act, that being the section containing the various disciplinary sanctions available.

5 The requirement of the section is two-fold. First, the person concerned must have been convicted of an offence punishable by imprisonment. Second, the conviction must either reflect on fitness to practise or tend to bring the profession into disrepute.

6 The first limb will normally be a straight forward matter of formal proof, but the second limb must require the Tribunal to take a view on the seriousness of the conduct which led to the conviction. If such a qualitative exercise was not to be undertaken there would be no point in the second limb, with the mere fact of conviction on an offence punishable by imprisonment being sufficient to prove the disciplinary charge.

7 As Mr Ravelich has pleaded guilty to this charge, the Tribunal takes the view that both the first and second limbs of the charge are established, without the Tribunal, as part of its substantive decision process, being required to undertake the qualitative assessment of the conduct which would otherwise be necessary. In such a case, the actual nature of the conduct which gives rise to conviction will only be a relevant consideration in deciding what sanction should be imposed.

Charge 2

8 The second disciplinary charge faced by Mr Ravelich alleged that he had been convicted of the offences of driving with excess breath alcohol, driving with excess blood alcohol, refusing to give a blood specimen, and resisting arrest. All of these offences may be punished by imprisonment.

9 Mr Ravelich's breath alcohol offence resulted in a conviction in February 1989, and his blood alcohol conviction was in June 1990. The refusal to give a blood specimen resulted in a conviction in May 2008, and the resisting arrest conviction was in April 2008.

10 As the convictions which form the particulars of this charge all occurred prior to the coming into effect of the Lawyers and Conveyancers Act 2006 on 1 August 2008, this charge refers to the equivalent of Section 241(d) Lawyers and Conveyancers Act, S.112(1) (d) Law Practitioners Act 1982.

11 That section is virtually identical to S.241(d), providing that if the Tribunal “… is satisfied that the practitioner has been convicted of an offence punishable by imprisonment, and is of the opinion that the conviction reflects on his fitness to practise as a barrister or solicitor, or tends to bring the profession into disrepute…” the Tribunal may make an order applying any of the sanctions permitted by that section.

Charge 3

12 The third disciplinary charge Mr Ravelich faced alleged that he was guilty of conduct unbecoming a barrister, as referred to in S.112(1)(b) Law Practitioners Act 1982, the disciplinary provision applicable at the time the conduct occurred. This charge arose from his conviction for the offences of careless use of a motor vehicle, excreting in a public place, and failing to remain for an evidential breath test.

13 The conduct which led to Mr Ravelich being convicted of these offences occurred in February 1995, August 2007, and November 2006 respectively. Unlike the first and second charges, the offences the subject of this third charge were not matters punishable by imprisonment, resulting in a different charge, that of conduct unbecoming a barrister.

14 We have treated the date of the conduct for which Mr Ravelich was found guilty of these offences as the relevant date for this third charge, as, unlike the first and second charges, the essential element of this charge is Mr Ravelich's conduct, not the fact of conviction.

Transitional provisions

15 The second and third disciplinary charges relate to matters arising at a time when the disciplinary provisions applicable were contained in the Law Practitioners Act 1982. That Act was repealed by S.349 Lawyers and Conveyancers Act 2006, prior to the disciplinary charges being brought, so the charges were laid and are to be addressed under the Lawyers and Conveyancers Act, which came into force on 1 August 2008. 1

16 The transitional provisions of the Lawyers and Conveyancers Act relating to complaints and disciplinary proceedings arising from pre 1 August 2008 conduct are contained in Ss.350 – 361 of that Act. Those transitional provisions provide mechanisms for disposing of disciplinary matters occurring in two situations; proceedings already commenced prior to 1 August 2008, but not completed; 2 and, disciplinary proceedings commencing after 1 August 2008, but relating to conduct before that date. 3

17 This right to bring disciplinary proceedings under the transitional provisions of the Lawyers and Conveyancers Act for pre 1 August 2008 conduct, was subject to a number of conditions, as would be anticipated where conduct occurring before the commencement of the new disciplinary regime was to be prosecuted under that new regime. Those conditions were set out in S.351 Lawyers and Conveyancers Act.

18 S.351 provides, so far as relevant;

• “(1) If a lawyer or former lawyer or employee or former employee of a lawyer is alleged to have been guilty, before the commencement of this section, of conduct in respect of which proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982, a complaint about that conduct may be made, after the commencement of this section, to the complaints service established under section 121(1) by the New Zealand Law Society.

• (2) Despite subsection (1), no person is entitled to make under this Act -

  • (a) a complaint that has been disposed of under the Law Practitioners Act 1982; or,

  • (b) a complaint in respect of –

    • (i) conduct that occurred more than 6 years before the commencement of this section, or

    • (ii) regulated services that were delivered more than 6 years before the commencement of this section; or,

    • (iii) A bill of costs that was rendered more than 6 years before the commencement of this section.”

19 As will be observed, the conditions include;

• (a) that the conduct alleged to have occurred must have been conduct for which proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982;

• (b) that it is not a matter which has been disposed of under that earlier Act; 4 and,

• (c) the application of a limitation period of 6 years from commencement of the section, so that conduct before 1 August 2002 is outside the ambit of the section.

20 The transitional provisions of the Lawyers and Conveyancers Act 5 also provide that from the Act's commencement no complaint may be made or referred under S.98 Law Practitioners Act, and no own motion investigation may be commenced under S.99 Law Practitioners Act.

21 As a consequence, from and including 1 August 2008, conduct occurring pre that date could not be the subject of new disciplinary proceedings under the Law Practitioners Act 1982, the Act which governed the legal profession at the time of such conduct. Such conduct could only be the subject of disciplinary proceedings commenced under the transitional provisions of the Lawyers and Conveyancers Act, provided the applicable conditions of those transitional provisions...