Auckland Standards Committee 1 v Brett Dean Ravelich

 
FREE EXCERPT

[2011] NZLCDT 11

IN THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

CHAIR

Mr D J Mackenzie

MEMBERS OF THE TRIBUNAL

Mr J Clarke

Mr G Craig

Mr C Lucas

Mr P Shaw

LCDT 015/10

BETWEEN

In The Matter of the Lawyers and Conveyancers Act

Auckland Standards Committee 1
Applicant
and
Brett Dean Ravelich, of Auckland, Barrister
Respondent
REPRESENTATION

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

Mr J Wiles for Mr Ravelich

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.

The issues were: whether the transitional provisions of LCA provided for both modes of commencement of disciplinary proceedings; whether s19 Interpretation Act 1999 (effect of repeal on prior offences and breaches of enactments) would enable the charges to be brought; whether the court could read into s351(1) LCA a provision that extended the transitional right to commence proceedings under that Act for matters that occurred pre 1 August 2008 to own motion matters.

Held: Section 19 Interpretation Act could not help in this case. The section only referred to offences and breaches of enactments. In respect of professional discipline, the Law Practitioners Act 1982 (“the LPA”) provided only a framework and processes for hearing such matters. It was not clear that there was an actual “offence” or “breach of enactment” as required by s19. The better course was to rely on s351 LCA.

The purpose of the transitional provisions was to ensure that there was no hiatus in the application of the disciplinary regime at the time of the transition from the LPA to the LCA. The threshold jurisdictional issue could not be resolved by claiming that the limitation in s351(2) only applied to complaint and not own motion matters as on that reasoning, there would be no jurisdiction to commence own motion proceedings under s351(1) as this only referred to complaints. Furthermore the same issues would apply in respect of sanction limitations in s352

On their face, the transitional provisions did not seem to extend to own motion matters. While complaints and own motion matters were distinct, there was no real difference in process following the making of the complaint or motion. There was no substantive difference in the rights or obligations of the person charged whether the proceedings arose from an own motion or a complaint.

The limitation period was fixed and excluded conduct prior to 1 August 2002. The intention of Parliament was that conduct from 1 August 2002 be dealt with under s351, no matter when it was discovered. The 6 year limitation period only arose in the transitional period and it reflected a policy decision to close off the former disciplinary regime for matters arising pre 1 August 2002.

It was appropriate to read into the provisions a reference to the own motion procedure to fill a gap in the provisions so as to enable the legislation to operate effectively ( R v McKay; Northland Milk Vendors Association Inc v Northern Milk Ltd). The scheme of the LCA allowed disciplinary charges to be initiated by either a complaint or by own motion. The consequence of this was that although s351(1) would allow for own motion initiation of proceedings, s351(2) would likewise be read as applying to both procedures and the limitation would apply.

The particulars of conduct occurring pre 1 August 2002 could not be relied on to support the charges. However historical offending could be considered when determining sanctions for admitted or proved charges.

R suspended from practice as a barrister for stipulated time period.

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,...

To continue reading

REQUEST YOUR TRIAL