Hall v Wellington Standards Committee (No. 2)

• Jurisdiction: New Zealand
• Judge: Woodhouse J
• Judgment Date: 18 April 2013
• Neutral Citation: [2013] NZHC 798
• Docket Number: CIV-2012-404-2608
• Court: High Court
• Date: 18 April 2013

UNDER the Lawyers and Conveyancers Act 2006

AND UNDER the Law Practitioners Act 1982

IN THE MATTER OF an appeal against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal

BETWEEN

Donna Maria Tai Tokerau Durie Hall

Appellant

and

Wellington Standards Committee (No. 2)

Respondent

and

Ngati Tuwharetoa Wai 575 Steering Committee

Intervener

[2013] NZHC 798

CIV-2012-404-2608

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Appeal from a decision of the Lawyers and Conveyancers Disciplinary Tribunal and determination of the respondent Standards Committee not to dismiss a charge laid against the appellant lawyer — charge related to an allegation the appellant had acted for more than one party to a transaction in circumstances where she should not have done so — Tribunal held that the test to be applied in determining the application was same applied on an application to strike out a civil proceeding, on the grounds that the statement of claim did not disclose a reasonably arguable cause of action — whether the respondent had applied the wrong test — if yes, whether the Court should determine whether there was a case to answer.

Counsel:

H A Cull QC and S J Arcus for the Appellant

G L Turkington for the Respondent

K S Feint for the Intervener

JUDGMENT OF Woodhouse J

1 At a hearing before a Lawyers Disciplinary Tribunal the appellant, Ms Hall, applied for an order that a charge against her be dismissed on the grounds that there was no case to answer; that the evidence before the Tribunal did not establish a prima facie case against her. The Tribunal held that the test to be applied in determining the application was the test applied on an application to strike out a civil proceeding on the grounds that the statement of claim does not disclose a reasonably arguable cause of action. Applying that test the Tribunal dismissed Ms Hall's application to dismiss the charge. 1

2 Ms Hall appeals against the Tribunal's decision on the grounds that the wrong test was applied and that, in a number of respects, the Tribunal failed properly to weigh the evidence.

The primary issues

3 The primary issues that arise on this appeal are:

• (a) Issue 1: Did the Tribunal apply the wrong test?

• (b) Issue 2: If so, should this Court determine whether the charge is established by the affidavit evidence, or should the matter be sent back to a disciplinary tribunal for that purpose?

4 Ms Hall also appeals on two other matters. These raise discrete issues and are discussed after considering issues 1 and 2.

The hearing before the Tribunal

5 The essence of the charge against Ms Hall is that she acted as a lawyer for more than one party to a transaction in circumstances where she should not have done so. It is alleged, in terms of the charge, that this occurred “with negligence or incompetence in her professional capacity, and … the negligence or incompetence

has been of such a degree as to reflect on her fitness to practice or as to bring her profession into disrepute”

6 Ms Hall denies the charge and has vigorously contested it from the outset.

7 There was a hearing before the Tribunal which commenced on 2 April 2012. This was to determine Ms Hall's application that the charge be dismissed on the grounds that there was no case to answer. Before the hearing commenced the following documents had been filed:

• (a) Four affidavits obtained and filed by the respondent Standards Committee. These affidavits contained the entire evidence relied on by the Standards Committee to seek to establish the charge.

• (b) Eight affidavits filed for Ms Hall and relied on by her in answer to the charge.

• (c) Written submissions of Mr Turkington for the Standards Committee and Ms Cull QC for Ms Hall. Both submissions addressed the question whether the evidence contained in the affidavits was sufficient to establish the charge. The submissions of Ms Cull QC for Ms Hall explicitly stated that the evidence relied on by the Standards Committee did not establish a case for Ms Hall to answer.

8 The course of the hearing is summarised in an earlier judgment of this Court as follows: 2

• [9] Mr Turkington, counsel for the WSC took the Tribunal through his submissions and the evidence relied upon by the WSC. At approximately 3.45pm Ms Cull QC, counsel for Ms Hall commenced her submissions. Those submissions took most of the following day. By 4.10pm on 3 April 2012 the Tribunal had heard all submissions on whether or not there was a case for Ms Hall to answer. The Tribunal adjourned for ten minutes, then resumed its sitting at 4.20pm when it said:

  The Tribunal does find that there is a case for the practitioner to answer. We will in due course provide reasons for that decision but we are mindful of the time constraints and we would prefer to press on with the matter at this stage. I thought perhaps if we could have a brief discussion with counsel about where that takes us to in terms of the hearing and the timing.

• [10] Discussions then took place about whether or not Ms Hall would be giving evidence. Ms Cull asked the Tribunal to give in writing its reasons for concluding that there was a case for Ms Hall to answer and reserved the option of Ms Hall giving evidence once she had an opportunity to consider the Tribunal's reasons for its determination.

The Tribunal's decision

9 The Tribunal recorded at the outset that its decision addressed Ms Hall's submission that there was no case to answer and that the charge should be dismissed. It then said:

• [3] This is of course not a criminal case, the Tribunal considers it is an application to strike out a case on the basis that it discloses no reasonably arguable cause of action. The principles to be applied in such a case are summarised by the Court of Appeal in Attorney-General v Prince & Gardner 3 and endorsed by the Supreme Court in Couch v Attorney-General. 4 Significantly an application to strike on this basis must proceed only in those cases where the cause of action is clearly untenable and indeed in Couch, Elias CJ and Anderson J held at para 33 that:

  “It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed.”

10 I will refer to this as the ‘strike out test”. There was no discussion in the decision as to why the strike out test should be applied beyond what is contained in [3].

11 The Tribunal referred to the applicable rule relating to conflict of interest for lawyers and judicial comment on conflict of interest. 5 It then noted Ms Hall's contentions that there was no conflict, or none that had not been properly managed, and the contrary contentions for the Standards Committee.

12 The Tribunal then said, in summary:

• (a) It had resolved to focus on whether a conflict existed.

• (b) The matters raised by Ms Hall amounted to positive defences and were not appropriately part of a strike out application. 6

• (c) There was no evidence from Ms Hall.

• (d) Ms Hall did not wish to cross-examine any of the deponents for the Standards Committee.

13 When noting the evidence before it, the Tribunal said:

[15] The Tribunal while assisted by the affidavits, believed that it should look for contemporaneous records of the conduct of the parties. In that regard it is greatly assisted by the bundles of documents prepared by the Society.

14 Following this the Tribunal set out in considerable detail the contents of minutes of meetings of one of the parties for whom Ms Hall was said to have been acting, and the content of some letters. There was a summary of some subsequent events. All of this covered approximately 10 pages of the 16 ¹/₂ page decision (in its original format).

15 In the remainder of its decision the Tribunal discussed the evidence it had set out. It commenced by directing itself as follows:

[41] The Tribunal is conscious that it should exercise its power of strike out sparingly and only in a situation, where there is no evidence which could support the charge. It is intended that the threshold in this regard is of necessity pegged as a low evidential threshold.

16 The Tribunal applied this test to only some of the elements of the charge and to only some of the evidence that was before it. It then concluded:

[45] Whether these matters are sufficient for a finding of guilt is of course a matter for another day. The Tribunal makes clear, that it has reached no final decision in this regard and specifically notes Ms Cull's advice from the practitioner that no final decision has been made as to whether the practitioner will herself give evidence.

[46] All that the Tribunal is required to do at this stage is to decide whether or not there is evidence which prima facie could support the charge brought by the Society. For the reasons given above, the Tribunal does so find, it is a matter for another day as to whether this evidence, together with any evidence which the practitioner may elect to give or call meets the higher burden of proving the charge to the requisite standard.

[47] It is the decision of the Tribunal therefore, that the practitioner's application to have the charge dismissed on the basis that there is no case to answer fails.

Discussion: Issue 1: Did the Tribunal apply the wrong test?

17 Mr Turkington submitted that the Tribunal reached the correct decision. However, it is fair to say that he did not argue to any extent that the strike out test was appropriately applied in response to a submission that there was no case to answer. That was a responsible approach. I am in no doubt that the Tribunal did apply the wrong test. I am also satisfied that, in consequence, the issues raised by Ms Hall were not properly addressed.

18 There is no good reason why a practitioner facing a...