Donna Marie Tai Tokerau Durie Hall

• Jurisdiction: New Zealand
• Judge: Mr D Mackenzie,Mr W Chapman,Mr S Maling,Mr W Smith,Ms P Walker
• Judgment Date: 07 November 2013
• Neutral Citation: [2014] NZLCDT 1
• Docket Number: LCDT 015/11
• Court: Lawyers and Conveyancers’ Disciplinary Tribunal
• Date: 07 November 2013

In the Matter of the Lawyers and Conveyancers Act 2006 and the Law Practitioners Act 1982

and

In the Matter of

Donna Marie Tai Tokerau Durie Hall of Welligton Solicitor

[2014] NZLCDT 1

CHAIR

Mr D Mackenzie

MEMBERS OF TRIBUNAL

Mr W Chapman

Mr S Maling

Mr W Smith

Ms P Walker

LCDT 015/11

NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Charge that law practitioner Hall (“H”) had been negligent or incompetent in her professional capacity, and that her negligence or incompetence had been of such a degree as to reflect on her fitness to practise or as to bring her profession into disrepute — H alleged to have acted for multiple parties (vendor, purchaser and lender) involved in a land transaction contrary to r1.04 Rules of Professional Conduct for Barristers and Solicitors 2006 (without informed consent) and r1.07 (without advising parties as to conflict, independent advice and/or without declining to act) — lengthy delays in hearing charge — whether stay of proceedings appropriate — whether appropriate to allow Standards Committee to amend the charge under the Lawyers and Conveyancers Act 2006 to a charge under the Law Practitioners Act 1982 — whether professional disciplinary charge made out.

APPEARANCES:

Mr G Turkington for the Standards Committee

Ms H Cull QC for the Practitioner

REASONS FOR DECLINING AN APPLICATION FOR STAY REASONS FOR ALLOWING AN APPLICATION TO AMEND THE CHARGE RESERVED DECISION ON THE SUBSTANTIVE CHARGE

Contents/Index

Subject/Part	Page
Introduction	3
Background	4
PART I: APPLICATION FOR STAY
The Application for Stay	5
Record of decision declining Application for Stay	8
Reasons for declining Application for Stay	9
PART II: APPLICATION TO AMEND CHARGE
The Application to Amend the Charge	14
Record of decision allowing Amendment Application	15
Reasons for allowing the Amendment Application	16
PART III: RESERVED DECISION ON CHARGE
Issues arising from the allegations	22
The transaction concerned	25
The nature of Ms Hall's activities	28
Ms Hall's role for the parties involved	36
Discussion	38
Determination	49
Costs	50

Introduction

1 In August 2011, after Wellington Standards Committee No 2 (“the SC”) had investigated and enquired into allegations that Ms Hall had conducted herself improperly in relation to a land transaction, a professional disciplinary charge was laid against Ms Hall by the SC.

2 The charge alleged that between 1 November 2006 and 16 July 2007 Ms Hall had been negligent or incompetent in her professional capacity, and that her negligence or incompetence had been of such a degree as to reflect on her fitness to practise or as to bring her profession into disrepute.

3 Ms Hall was alleged to have acted for multiple parties (the vendor, the purchaser, and a lender) involved in a land transaction:

• (a) without the prior informed consent of each party; and/or,

• (b) without advising each of the parties concerned of areas of conflict or potential conflict; and/or without advising the purchaser and lender that they should each take independent advice (and she did not arrange any such advice); and/or, without declining to act further for the purchaser and lender where acting for them would be likely to disadvantage one or both of them.

4 As is normal, the SC filed evidential affidavits in support of the charge at the time the charge was laid.

5 Ms Hall was obliged to respond to the charge once laid, stating which of the facts alleged in the charge were admitted and which were denied, and if the charge itself was admitted or denied. 1 By her response dated 18 October 2011, Ms Hall denied the charge and the factual particulars alleged.

6 Ms Hall subsequently filed a series of evidential affidavits from a number of defence witnesses, addressing the charge and providing some further background. Ms Hall did not herself provide an affidavit in her defence of the charge laid.

Background

7 There is some history in the process followed in respect of the charge which is relevant, and which we now set out.

8 The Tribunal sits in two divisions, and the charge was originally heard by the other division of the Tribunal, chaired by Judge D Clarkson, on 2 and 3 April 2012. At the conclusion of the case for the prosecution at that hearing, Ms Hall, by her counsel Ms H Cull QC, made a submission that there was no case to answer.

9 After hearing submissions on no case to answer and retiring to consider the matter, the division of the Tribunal originally hearing the charge ruled that there was evidence which prima facie could support the charge. It declined to dismiss the charge as it considered there was a case to answer.

10 The hearing did not proceed further on that day because of Ms Hall's wish to understand the detailed reasoning for the decision to disallow her no case to answer submission before continuing. Full reasons for the Tribunal's decision were provided in writing after the hearing. 2

11 Subsequently, after receiving those full reasons, Ms Hall appealed the Tribunal's decision on her submission of no case to answer. The appeal was heard by the High Court on 11 and 12 February 2013.

12 In a decision of 18 April 2013 3 Woodhouse J allowed Ms Hall's appeal on the basis that the division of the Tribunal originally hearing the charge had applied an incorrect test when deciding whether there was a case to answer. His Honour set aside the Tribunal's decision and directed that the proceedings be referred to a freshly constituted Tribunal.

13 As a consequence this division of the Tribunal proposed to hear the matter as soon as it could arrange a suitable hearing date. In the meantime Ms Hall applied for a stay of proceedings, and the SC applied to amend the charge. The Application for Stay was heard by this division on 5 November 2013. The application was refused, and at the commencement of the substantive hearing on 6 November 2013 the Tribunal heard the application to amend the charge. That application was allowed, and the substantive hearing proceeded that day, and continued into the next, 7 November 2013.

14 This determination arises from those hearings. It provides, in Part I, full reasons for declining to grant the permanent stay which Ms Hall sought. It also provides, in Part II, full reasons for allowing the amendment to the charge sought by the SC, and it delivers the Tribunal's reserved decision on the substantive charge, in Part III.

PART I: APPLICATION FOR STAY

The Application for Stay

15 At a pre hearing telephone conference on 15 August 2013 counsel for Ms Hall confirmed that her client intended to seek a permanent stay of proceedings.

16 By notice dated 11 September 2013, an Application for Stay of Proceedings was lodged by Ms Hall. The grounds advanced were that it would amount to an abuse of process and/or that it would be oppressive and unreasonable to:

• (a) Continue the hearing of the charge in circumstances where Ms Hall had already “ sought a determination on a no-case submission in three hearings to date” that remained unanswered;

• (b) Continue the disciplinary process when “…circumstances do not give rise to the charge of negligence” ;

• (c) Entertain an amendment to the charge sought by the SC “from a charge under the Lawyers and Conveyancers Act 2006 to a charge under the Law Practitioners Act 1982, when a different statutory process has been undertaken in the first hearing and on appeal” ;

• (d) Commence a rehearing of the charge.

17 In support of her application for stay, it was submitted by Ms Cull QC, for Ms Hall, that Ms Hall had accepted the jurisdiction of the Lawyers and Conveyancers Act 2006 (“ LCA”) and had responded to the charge on that basis. In the course of responding to the charge she had formally denied it, filed affidavits in support of her position, and had made a no case to answer submission at the completion of the case for the SC at the first hearing before the other division of the Tribunal in April 2012.

18 After Ms Hall's submission on no case to answer had failed at the first hearing before the Tribunal, Ms Hall had appealed against that decision under the provisions of LCA. She had sought, as part of that appeal, a definitive answer on the merits of the charge from the High Court. The SC had sought, unsuccessfully, to strike-out her appeal. When her appeal was eventually heard, the High Court declined to address the substantive issue of the merits of the charge, and it referred the matter back to the Tribunal for reconsideration.

19 Ms Hall was also concerned about the propriety of the SC seeking “ to belatedly amend the charge, which was improperly laid in the first place.” As well as saying that the amendment changed the threshold test for assessing the seriousness of any negligence found, it was submitted that the process could not be moved from LCA to the Law Practitioners Act 1982, particularly after procedural and jurisdictional steps had been taken by both the SC and Ms Hall under LCA. Ms Hall claimed that as a consequence the SC was estopped from amending the charge.

20 It was also suggested for Ms Hall that as the matter now before the Tribunal was not a rehearing, but simply a referral back for reconsideration of the no case to answer submission, the proposed amendment to the charge was not permissible.

21 Cumulative delay “ from 1 November 2006 to the present” was said to make it unfair to require Ms Hall to continue to face the charge having regard to the history of the proceedings. It was also submitted for Ms Hall that the opportunity to obtain further relevant evidence from a witness who had died was lost and evidential efficacy had been prejudiced by delay. Other prejudice noted for Ms Hall was continuing adverse publicity in the absence of a suppression order, and...