Auckland Standards Committee No. 1 v Ilaisaane Valu-Pome'e
| Jurisdiction | New Zealand |
| Judge | D F Clarkson,Mr S Grieve QC,Mr W Smith,Mr I Williams |
| Judgment Date | 01 December 2014 |
| Neutral Citation | [2014] NZLCDT 87 |
| Docket Number | LCDT 028/14 |
| Court | Lawyers and Conveyancers’ Disciplinary Tribunal |
| Date | 01 December 2014 |
In the Matter of the Lawyers and Conveyancers Act 2006
[2014] NZLCDT 87
Judge D F Clarkson
MEMBERS OF TRIBUNAL
Mr S Grieve QC
Mr S Grieve QC
Mr W Smith
Mr I Williams
LCDT 028/14
NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNA
Reserved decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal on liability and penalty — the practitioner faced 13 charges (some laid as alternatives) arising out of her conduct when acting for the complainants in an adoption application and connected immigration applications — only one set of complainants were involved — the practitioner's failures were numerous and serious and covered a period of six years — included failing to respond to court directions resulting in the proceedings being struck out, making misrepresentations to her clients and to Immigration New Zealand and failing to hold amounts in a trust account — the practitioner did not engage in the disciplinary process — she was a relatively inexperienced practitioner and this was her first disciplinary finding — whether the practitioner should be struck off — whether compensation should be paid to her clients.
Mr P Davey for the Standards Committee
The Respondent did not appear
Ms Valu-Pome'e faced 13 charges (some laid as alternatives) which were considered by the Tribunal on 1 December. Ms Valu-Pome'e did not appear, but a little over one hour before the scheduled hearing, sent an email to say she was unwell and sought to be excused. She did not seek an adjournment and said she would abide the decision of the Tribunal. She briefly referred to family deaths over recent years.
This was the lawyer's only participation in the disciplinary process.
All charges arise out of her conduct in acting for the complainants on an adoption application and connected immigration applications. Although only one set of complainants are involved, the failures of the lawyer are numerous and serious and cover a period of six years.
Having heard formal proof of the charges, the Tribunal found 8 established: 2 misconduct; 2 negligence; 1 and 4 unsatisfactory conduct. Five alternative charges were dismissed.
The Tribunal considered penalty, and reached the unanimous view that the seriousness of the offending demanded the ultimate sanction which had been sought by the Standards Committee, of striking the lawyer from the roll of barristers and solicitors. We reserved our reasons for that order.
We also provided Ms Valu-Pome'e with the opportunity of informing us further as to her personal and financial circumstances, in relation to costs orders sought. We reserved our decision in relation to those orders.
We adopt paragraphs 4 to 28 as follows, of the submissions of the Standards Committee, which we consider fairly sets out what happened in this case:
‘4. Ms Valu-Pome'e does not hold a current practising certificate. She previously held a practising certificate as a barrister for the year ended 30 June 2013. She did not renew her practising certificate in time but applied for a practising certificate in August 2013. She subsequently agreed to withdraw her application pending the outcome of these complaints but provided no response to them to the Committee and has not responded to the charges that have been filed with the Tribunal. The factual background set out below is therefore based on the affidavit evidence and inferences to be drawn from that evidence, which includes documents obtained from the Family Court file and Immigration New Zealand.
5. In about June 2007 Mr and Mrs L instructed Ms Valu-Pome'e to commence adoption proceedings for them to adopt S and to apply to Immigration New Zealand for a permit for her so that she could remain in New Zealand. S was Mr L's niece and she had been living with them in New Zealand. She was less than one year old at the time.
6. At that time, Ms Valu-Pome'e was employed as a solicitor by another lawyer, Mr F. She prepared the necessary court documents for Mr and Mrs L to adopt S, which were filed with the Manukau Family Court in July 2007. By letter dated 31 August 2007 Ms Valu-Pome'e also applied to Immigration New Zealand for a temporary visitor's permit for S while the adoption proceedings were being pursued.
7. For some reason, Ms Valu-Pome'e advised Mrs L that S's permit had not been granted and that they needed to appeal to the Minister of Immigration. By letter dated 19 October 2007 she wrote to the Minister of Immigration advising that the permit had been declined and sought a special direction from the Minister to intervene in the case. However, by letter dated 9 November 2007 Immigration New Zealand advised that S had been granted a temporary visitor's permit. A letter dated 28 January 2008 on behalf of the Associate Minister of Immigration also confirmed that S's permit application had been approved in November 2007 and that she held a valid permit until 29 May 2008.
8. In the meantime, the adoption proceedings had been allocated a hearing in the Registrar's List on 13 November 2007, following which there was an adjournment to 10 January 2008 for a social worker's report to be prepared. It appears that the social worker's report was filed with the Court on that date but Ms Valu-Pome'e had not yet received a copy of that report, which recommended that the adoption not proceed. On that date the Court made an order that a copy of the social worker's report be provided to Mr F (Ms Valu-Pome'e) and that he was to advise if the application was to be pursued.
9. On 16 May 2008 Mr and Mrs L again met with Ms Valu-Pome'e and paid her $280.00. Mrs L states that the purpose of the meeting was to extend S's permit and they gave S's passport to her together with two passport photos.
10. However, Ms Valu-Pome'e failed to file an application to extend Ss permit and she was effectively unlawfully in New Zealand from the end of May 2008. Mrs L contacted Ms Valu-Pome'e multiple times between May 2008 and August 2009 but was advised that she was waiting a response from Immigration New Zealand. On 4 February 2009 she sent an email to Ms Valu-Pome'e to check up on progress with S's case and was advised that the Court had appointed a lawyer to act for S. Ms Valu-Pome'e also falsely advised her that the immigration matter for S had been refused and that the next step was to appeal to the Minister of Immigration, which would cost a fee of $450.00.
11. The adoption proceedings were set down for hearings in the Family Court on 13 May 2009 and then on 3 August 2009. On 13 May 2009 the Court requested an updated social worker's report and a further report dated 28 May 2009 was provided to the Court, which was much more positive and the writer considered that Mr and Mrs L to be “fit and proper” persons. It appears that Ms Valu-Pome'e advised the Court on 3 August 2009 that the social worker';s report had not been provided to her. On that basis, the Court made orders which included adjourning the proceeding for 14 days to the Registrar's List and requiring counsel to file a joint memorandum for the next step including details of any hearing required. Subsequently, the proceeding was adjourned to the Registrar';s List on 16 October 2009 and 21 January 2010 to monitor compliance with the Judge';s directions.
12. On 28 October 2009 Ms Valu-Pome'e sent a letter to the Family Court advising that updated affidavits would be filed by Mr and Mrs L shortly but Mrs L did not receive any contact from her at that time.
13. By letter dated 28 January 2010 the Family Court advised Ms Valu-Pome'e that the case would be reviewed on 21 April 2010 and that “updated affidavits may be filed urgently by applicants.”
14. No affidavits were filed and by letter dated 21 April 2010 the Family Court requested Ms Valu-Pome'e to advise whether she had instructions to proceed with the application and, if so, what directions were sought to progress the matter. It also advised that if she was without instructions then the matter would be referred to a Family Court Judge on 21 July 2010 for consideration as to the striking out of the proceedings.
15. By letter dated 18 May 2010 Mr and Mrs L requested copies of all communications relating to the adoption of S from the Manukau District Court. The Court subsequently sent copies of letters to them and requested that they advise whether Ms Valu-Pome'e was still representing them. By letter dated 3 June 2010 Mrs L advised the Family Court that Ms Valu-Pome'e was still their lawyer.
16. No steps were taken by Ms Valu-Pome'e and on 21 July 2010 the Court struck out the proceedings for want of prosecution. A copy of the Judge's minute was sent to Ms Valu-Pome'e by letter dated 22 July 2010.
17. Mrs L also received a copy of the letter from the Court. She phoned Ms Valu-Pome'e and the person she spoke to said that she was in Tonga. Mrs L recognised Ms Valu-Pome'e's voice but when she enquired further she was told that it was her sister. She rang again the following week and Ms Valu-Pome'e said that she had not responded to the letter from the Court because she had been in Tonga. She said that she would follow it up and get back to her but did not do so.
18. Ms Valu-Pome'e did not make any further application to the Court but on 7 September 2010 she sent an email to Mrs L setting out questions for her to answer so that she could draft an updated affidavit the following week. Mrs L responded the following day with the information that had been requested but no further affidavit was filed.
19. Mrs L did not hear anything further and eventually on 14 March 2011 she sent an email to Ms Valu-Pome'e requesting that their file for S be returned to them. The file was not returned and...
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