Auckland Standards Committee 1 v Fendall Hc Ak

• Jurisdiction: New Zealand
• Judge: Wylie J
• Judgment Date: 02 August 2012
• Neutral Citation: [2012] NZHC 1825
• Docket Number: CIV 2012-404-001059
• Court: High Court
• Date: 02 August 2012

UNDER The Lawyers And Conveyancers Act 2006 And The Law Practitioners Act 1982

BETWEEN

Auckland Standards Committee 1

Appellant

and

Robyn Philippa Joy Fendall

Respondent

[2012] NZHC 1825

CIV 2012-404-001059

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Appeal by Standards Committee under's 253 Lawyers and Conveyancers Act 2006 (appeal against order or decision of Disciplinary Tribunal) against penalty imposed by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal on ground that it was manifestly inadequate — respondent had made excessive legal aid claims — agreement had been reached between the Law Society and respondent that she pay all costs — Tribunal considered misconduct due to negligence rather than dishonesty — Tribunal found professional misconduct and censured her — ordered that she pay half of the Law Society's costs — whether a decision as to penalty was the exercise of discretion — whether imposition of censure was manifestly inadequate andpenalty of suspension was required — whether the costs award was inadequate in light of agreement between parties.

Counsel:

G M Illingworth QC for Appellant

D Jones QC for the Respondent

[RESERVED] JUDGMENT OF Wylie J

Introduction

1 The Auckland Standards Committee 1 (“the Committee”), appeals against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”) dated 14 February 2012. The respondent had pleaded guilty to a charge of misconduct in her professional capacity, and in its decision, the Tribunal censured the respondent, and ordered her to pay the costs of the appellant and to make a contribution towards its costs.

2 The Committee in its notice of appeal asserted that the penalty imposed on the respondent was manifestly inadequate given the seriousness of her misconduct and further, that the order for costs was manifestly appropriate in all the circumstances. The appeal is opposed by the respondent. It was asserted on her behalf that there is no compelling reason to find that the censure imposed was manifestly inadequate, or that the Tribunal improperly exercised its discretion in limiting the respondent's contribution to its costs.

Background

3 The respondent is in her early fifties. She has practised law since 1983, initially as a solicitor, and since 1996, as a barrister. She practised principally in the criminal area, as a youth advocate, in the mental health area as a mental health advocate, and as counsel for the child in Family Court matters. Most, if not all, of her work was undertaken at the behest and cost of either the Legal Services Agency or the Ministry of Justice.

4 On 28 August 2009, the Legal Services Agency wrote to the New Zealand Law Society, Auckland Branch, advising that the respondent's listing approvals to provide services under the legal aid and duty solicitor schemes had been cancelled as from September 2009. The cancellation came to the attention of the media and it was reported by the New Zealand Herald, under a somewhat sensational heading, on 26 September 2009.

5 The matter was referred to the Committee, and the Committee considered it at a meeting on 30 October 2009. The Committee resolved to commence an own motion investigation pursuant to s 130(c) of the Lawyers and Conveyancers Act 2006.

6 Inter alia, the Committee obtained a copy of the decision made by the Suspension Consideration Panel of the Legal Services Agency cancelling the respondent's listing approvals. That decision was dated 24 August 2009. It referred to three audits of the respondent's invoicing to the Agency. During the period 24 February 2005 to 22 June 2006, there had been 31 dates of concern, and the respondent had over-billed the Agency for duty solicitor and legal aid work in the sum of $8,325. In the period 1 September 2006 to 1 September 2007, there had been 13 dates of concern, and there had been over-billing in the sum of $742.50. In the period 1 September 2006 to 30 September 2007, there had been 31 dates of concern, and over-billing had occurred in the sum of $4,176. During this latter period, the respondent had also over-billed the Ministry of Justice $4,123 on 12 separate days. All sums over-billed had been repaid.

7 The respondent sought to review the Suspension Consideration Panel's decision to cancel her listing approvals. This review was conducted by a body known as the Suspension Review Panel. In a decision dated 19 January 2010, it upheld the decision of the Suspension Consideration Panel.

8 The Ministry of Justice did not terminate its provider arrangements with the respondent.

9 On 1 February 2010, the Legal Services Agency laid a complaint against the respondent with the New Zealand Law Society. The complaint was referred to the Committee.

10 The respondent was given the opportunity to comment on both complaints. She took that opportunity, and correspondence was sent and submissions were made on her behalf.

11 On 18 June 2010, the Committee considered both the own motion complaint and the complaint by the Legal Services Agency on the papers. It considered that they should be determined by the Tribunal. As a result, charges were laid by the Committee against the respondent. There was some delay in laying the charges because relevant papers could not be found. In the event, the charges were only filed with the Tribunal on 15 July 2011.

12 The respondent faced two charges. First, she was charged with misconduct in her professional capacity. In the accompanying particulars, it was asserted as follows:

There was a second and alternative charge, alleging negligence or incompetence by the respondent in her professional capacity, of such a degree or so frequent as to reflect on her fitness to practice.

• (a) That at all material times, the respondent held a practising certificate as a barrister sole;

• (b) That in the period between February 2005 and September 2007, the respondent claimed from the Legal Services Agency and the Ministry of Justice various payments for professional attendances to which she was not entitled;

• (c) That at the time the excessive claims were submitted, the respondent had a duty to ascertain her entitlement to the amounts in question and that she failed to comply with that duty;

• (d) As a result of making the excessive claims, the practitioner was paid a total of approximately $13,343.50 by the Legal Services Agency, and $4,123 by the Ministry of Justice to which she was not entitled.

13 The respondent responded to the charges on 17 August 2011. Essentially, the first charge was admitted and the second charge was denied. On 5 October 2011, a joint memorandum was signed by counsel for the Committee and counsel for the respondent. The respondent pleaded guilty to the first charge, misconduct, on the basis that she made excessive claims, but that she did so in error, rather than with any deliberate knowledge. She agreed to provide a written statement personally acknowledging both the seriousness of her offending and the fact that her accounting practices had been grossly negligent. She also agreed to pay the New Zealand Law Society costs of $5,000 plus GST (if any), and to pay the costs of the Tribunal as might be ordered by it. The Society for its part, agreed that it would not seek an order that the respondent be struck off. It was to be free to make such other submissions as it saw fit concerning the appropriate period of any suspension, penalty, publication or otherwise. Similarly, the respondent was to be free to respond to those submissions and to adduce evidence, without limitation, except in respect of the points that had been expressly agreed.

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal decision

14 The Tribunal heard the matter on 31 January 2012. It issued its decision on 14 February 2012.

15 The Tribunal commenced its decision by noting the respondent's plea. It referred to the transitional provisions in the Lawyers and Conveyancers Act and then discussed the background to the charges. It noted the decisions made by the Panels set up by the Legal Services Agency. It observed that they had concluded that there was no dishonesty — rather there had been a failure to take proper care when recording time and subsequently invoicing charges based on those incorrect records. It referred to the joint memorandum, and the basis on which the respondent had pleaded guilty to the misconduct charge. It noted the amounts involved, and recorded that the Legal Services Agency's investigation had found that the overcharging had arisen principally because the respondent failed to sign off the duty solicitor attendance sheet when she switched roles during the course of the day, and made appearances providing either legal aid services or services as a youth advocate. It also noted an acknowledgement by the Committee that there was no evidence that the respondent knew she was not entitled to the amounts in question at the time she claimed payment. The Tribunal recorded that in its view, there had been negligence rather than dishonesty.

16 The Tribunal recorded that the Committee sought that the respondent should be suspended from practice for a period of two years. It noted that the respondent for her part submitted that suspension was neither warranted nor necessary, and that censure and costs would be adequate given the context of the overcharging and the respondent's “otherwise exemplary conduct”.

17 The Tribunal then went on to discuss whether suspension was the appropriate penalty. It considered the objectives of the professional disciplinary regime. It recorded that the respondent's negligence was properly in the realm of misconduct, but went on to record its view that the respondent's misconduct — essentially her...