Barry John Hart v Auckland Standards Committee 1 of New Zealand Law Society

• Jurisdiction: New Zealand
• Judge: Lang J
• Judgment Date: 07 June 2013
• Neutral Citation: [2013] NZHC 1331
• Docket Number: CIV-2012-404-5528
• Court: High Court
• Date: 07 June 2013

BETWEEN

Barry John Hart

Applicant

and

Auckland Standards Committee 1 of New Zealand Law Society

Respondent

[2013] NZHC 1331

CIV-2012-404-5528

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for leave to appeal to Court of Appeal — applicant was facing disciplinary charges before New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”) — applicant's counsel produced medical certificate and sought adjournment — Tribunal declined adjournment and proceeded in applicant's absence — counsel had not been instructed to defend charges and was given leave to withdraw — applicant argued that obstruction charge should not have been referred to Tribunal under threshold test in Orlov v New Zealand Law Society— CA had heard appeal on Orlov and decision was currently reserved — whether a defendant could not be considered to have waived the right to attend a hearing unless he or she knew of the possibility that the trial might proceed notwithstanding his or her absence — whether there was any point in asking the CA to reconsider Orlov test again in the context of the present litigation.

Counsel:

J Bioletti for Applicant

P Collins for Respondent

JUDGMENT OF Lang J

[On application for leave to appeal to Court of Appeal]

1 In a decision delivered on 2 August 2012, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”) held that the Auckland Standards Committee No 1 had proved three out of four charges it had laid against Mr Hart under the Lawyers and Conveyancers Act 2006 (“the Act”) and the Conduct and Client Care Rules 2008. 1 After hearing submissions as to penalty, the Tribunal delivered a further decision on 14 September 2012 in which it ordered that Mr Hart be struck off the roll of barristers and solicitors. The Tribunal also ordered him to pay costs of just over $116,000, and to pay the sum of $20,000 to the complainants in relation to one of the charges. 2

2 Mr Hart appealed against both decisions. In a judgment delivered on 5 February 2013, a Full Court of this Court 3 dismissed the appeal. 4 Mr Hart now seeks leave to appeal to the Court of Appeal against that decision.

Relevant principles

3 There is no dispute regarding the principles to be applied in considering an application for leave to appeal to the Court of Appeal in the present context.

4 The application is governed by s 254 of the Act, which provides as follows:

254 Appeal to Court of Appeal on question of law

• (1) Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that Court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 66 of the Judicature Act 1908 applies to any such appeal.

• (2) An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.

  …

5 In applying s 254, the principles established in cases dealing with applications for leave to appeal to the Court of Appeal under ss 66 and 67 of the Judicature Act 1908 are relevant. They relevantly provide as follows:

66 Court may hear appeals from judgments and orders of the High Court

The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.

67 Appeals against decisions of High Court on appeal

• (1) The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision-

  • (a) to the Court of Appeal; or

  • (b) directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).

….

6 The principal distinction between s 67 and s 254 is that, whereas leave to appeal can be granted under s 67 on points of both fact and law, leave can only be granted under s 254 on a point of law.

7 In Waller v Hider, 5 the Court of Appeal emphasised that a second appeal must raise a question of law or fact that is capable of bona fide and serious argument, and that the case must involve some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. 6 Blanchard J, who delivered the decision of the Court, described the function of the Court of Appeal in determining a second appeal as follows: 7

Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the

parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

8 The Court of Appeal confirmed these principles in Snee v Snee. 8

The proposed questions of law

9 Counsel for Mr Hart submits that two questions of law arising out of this Court's judgment satisfy the requirements of s 254. He formulates these as follows:

• (i) Under New Zealand law, does a defendant waive the right to be present at his or her trial if he or she does not know that the hearing may proceed in his or absence?

• (ii) Was this Court correct to reject the proposition that a charge could only be referred to the Tribunal where it was sufficiently serious to give rise to a real risk that, if the charge was proved, the practitioner might be suspended or struck off?

The first proposed question

10 This issue arises as a result of the fact that Mr Hart was not present during the hearing that led to the Tribunal's decision that the charges had been proved. At the commencement of the hearing, counsel for Mr Hart had sought an adjournment on the ground that Mr Hart was too ill to attend. Counsel produced a medical certificate from Mr Hart's doctor in support of his submission that an adjournment should be granted.

11 The Tribunal took the view that Mr Hart had elected not to attend the hearing, and observed that the procedural history of the charges demonstrated an “extraordinary history of delay and prevarication” by Mr Hart. The Tribunal declined to grant an adjournment, and then proceeded with the hearing in Mr Hart's absence. Mr Hart's counsel did not have instructions that extended to defending the charges, and the Tribunal granted him leave to withdraw.

12 When this Court heard the appeal, both counsel accepted that the principles governing the exercise of the discretion to proceed in the absence of a defendant were those identified by the English Court of Appeal in R v Hayward, 9 and approved by the House of Lords in R v Jones. 10 The Tribunal did not refer to either of those cases when declining the application for an adjournment.

13 Applying the principles identified in Hayward and Jones, this Court held that that the Tribunal was “well justified” in concluding that Mr Hart was not medically unfit to attend the hearing, and that his absence was “consistent with his earlier delaying and obstructive conduct.” 11 The Court noted that the Tribunal had taken a cautious approach, and concluded that it had been entitled to refuse the adjournment.

14 Counsel for Mr Hart now seeks to refine his argument regarding the manner in which the principles identified in Jones should be applied in this country. As noted above, 12 Jones came before their Lordships after the appellant, Mr Jones, had absconded before his criminal trial. The trial proceeded in his absence, and he was found guilty. The English Court of Appeal dismissed Mr Jones' appeal against conviction, and in doing so identified factors that may be relevant when a trial Judge must determine whether to proceed with a trial in the absence of the accused. 13

15 When the case proceeded to the House of Lords, their Lordships were divided on the question of whether the Court of Appeal had been correct to conclude that Mr Jones had waived his right to be present at the trial. The majority, comprising Lords Bingham, Nolan and Hutton, upheld the decision of the Court of Appeal on this point. They considered that a person who “voluntarily chooses not to exercise a right cannot later be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it.” 14

16 The minority, comprising Lords Hoffman and Rodger, took the view that a defendant could not be considered to have waived the right to attend a hearing unless

he or she knew of the possibility that the trial might proceed notwithstanding his or her absence. Lord Rodger explained his reasoning as follows:

These facts certainly justify the inference that the appellant knew that he would not be present when his trial was due to take place. That does not, in itself, justify the conclusion that he had waived his right to be present or to be represented at any trial of the charges against him. Such an inference could be drawn only if one could be satisfied that the appellant not only knew that the trial was due to take place when he would be absent, but also knew that it could take place even though he was not there and even though he was not represented. …

17 Counsel for Mr Hart contends that the courts in New Zealand should adopt the approach advocated by the minority of their Lordships in Jones. He frankly concedes that he did not advance this argument at the hearing in...