Hart v Auckland Standards Committee 1 of New Zealand Law Society Hc Ak

JurisdictionNew Zealand
JudgeWinkelmann J,Hart J
Judgment Date05 February 2013
Neutral Citation[2013] NZHC 83
Docket NumberCIV-2012-404-5076
CourtHigh Court
Date05 February 2013
BETWEEN
Barry John Hart
Appellant
and
Auckland Standards Committee 1 of New Zealand Law Society
Respondent

[2013] NZHC 83

Court:

Winkelmann J, Hart J

CIV-2012-404-5076

CIV-2012-404-5528

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for judicial review of decisions, actions or omissions by the defendant in relation to the development of an adjoining property — development involved demolition of the existing dwelling, building two new houses and the subsequent subdivision of the property into two lots — plaintiff alleged illegality (breach of District Plan and resource consent), breach of natural justice (lack of consultation), breach of legitimate expectation (that respondent would consult, make decision in a transparent way and give reasons) and misrepresentation (applicant provided notes to defendant that plaintiff did not oppose the development which may have mislead the defendant) — plaintiff sought declaration that subdivision and code compliance certificate were invalid — whether jurisdiction existed to grant the relief sought.

Appearances:

A Trenwith, J Bioletti and M Porner for Appellant

P Collins and M Treleaven for Respondent

Paul Collins, Barrister, Auckland

A Trenwith, Barrister, Auckland

JUDGMENT OF THE COURT
Table of Contents

Para No

Introduction

[1]

The charges

[2]

Approach on appeal

[12]

First ground of appeal — refusal to adjourn/proceed in the appellant's absence

[13]

Relevant principles

[23]

Analysis

[28]

Second ground of appeal — was the Tribunal entitled to consider the third charge?

[69]

Statutory framework

[73]

The reasoning in Orlov

[92]

Analysis

[101]

Third and fourth grounds of appeal — did the Tribunal err by failing to call witnesses who had provided evidence in support of Mr Hart?

[111]

Fifth ground of appeal — fees charged to Mr A and his family

[131]

Background

[132]

Expert evidence

[144]

Tribunal's decision

[159]

Analysis

[175]

Sixth ground of appeal — was striking off a disproportionate response?

[181]

The approach taken by the Tribunal

[182]

Discussion

[185]

1. The nature and effect of the conduct giving rise to the present charges

[191]

(a) The first charge

[191]

(b) The third charge

[196]

(c) The fourth charge

[211]

2. The manner in which Mr Hart responded to the present charges

[220]

(a) The events leading up to the hearing on 16 and 17 July 2012

[221]

(b) Mr Hart's response to the Tribunal's liability decision

[225]

Decision

[232]

Seventh ground of appeal — should the orders as to costs be revisited having regard to Mr Hart's current financial circumstances?

[240]

Summary of findings

[244]

Result

[245]

Suppression

[246]

Costs

[247]

Introduction
1

Mr Hart faced four charges before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”). The charges were laid by the Auckland Standards Committee No 1 under the provisions of the Lawyers and Conveyancers Act 2006 (“ LCA”), and under the Conduct and Client Care Rules 2008 (“the Rules”).

The charges
Charges one and two
2

These charges arose after Mr Hart hired a private investigator, Mr D, to carry out investigation work for a client whom Mr Hart was representing in relation to criminal charges.

3

There was significant delay in Mr Hart paying Mr D's fees. Although Mr Hart's client applied for legal aid, this was declined. Mr D rendered invoices in mid-2008 for sums totalling $4,682.36. Mr Hart paid half of this sum after Mr D complained to the Law Society in April 2009, and paid the balance after Mr D filed a claim against Mr Hart in the Disputes Tribunal.

4

Charge one alleged that Mr Hart was guilty of misconduct in his professional capacity in failing to inform Mr D that payment of his fees was subject to the Legal Services Agency (“LSA”) approving the fees, and that the LSA might not approve the fees either in whole or in part. The charge also alleged that Mr Hart failed to inform Mr D of any alternative arrangement for payment in the event that the LSA did not approve and pay his fees in whole or in part.

5

Charge one further claimed that Mr Hart failed to honour the full payment of Mr D's account in circumstances where he was required to do so under r 7.03 of the then applicable Rules of Professional Conduct for Barristers and Solicitors. Rule 7.03 provides that a practitioner engaging another person to provide services for a client is liable for prompt payment for the fee of that person. The rule also required Mr Hart to inform Mr D that the client was legally aided and of the requirements and consequences of this.

6

Charge two was laid in the alternative to charge one. It alleged that the same failures amounted to conduct unbecoming of a barrister.

Charge three
7

The third charge alleged that Mr Hart had refused to disclose his file relating to a former client, Mr W, after having been required to do so by the Auckland District Law Society Complaints Committee 2 and the s 356 Standards Committee. 1 The latter committee had assumed responsibility for the investigation of a complaint made by Mr W under the transitional provisions of the LCA.

8

This charge alleged that Mr Hart's failure to disclose the file amounted to misconduct in his professional capacity because it obstructed the Complaints Committee and the Standards Committee in the course of their investigations.

Charge four
9

The fourth charge was laid after the family of Mr A, a 19 year old man who faced serious criminal charges, engaged Mr Hart to represent Mr A. This charge alleged Mr Hart was guilty of misconduct in his professional capacity by grossly overcharging Mr A's family; Mr Hart had charged the family the sum of $35,000 in relation to services he and his colleagues provided. The charge also alleged that Mr Hart breached r 3.4 of the Rules because he failed to provide information to Mr A's family about the basis upon which he proposed to charge them for his services, including his hourly rate and the nature and extent of legal services covered by particular fees. It was alleged that this behaviour constituted professional misconduct.

10

In a decision delivered on 2 August 2012, the Tribunal held that charges one, three and four had been proved to the required standard. 2 As the Tribunal found the first charge proved, it was therefore not required to consider the second charge. 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 Mr Hart 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. 3

11

Mr Hart now appeals to this Court against both decisions. The grounds of appeal can be shortly stated as follows:

  • (1) The Tribunal erred in refusing Mr Hart's application to adjourn the hearing of the charges, brought on the ground that he was medically unfit to attend. The decision to proceed in his absence has resulted in a miscarriage of justice.

  • (2) The Tribunal erred in considering charge three. It was insufficiently serious for referral to the Tribunal and should have been dealt with by the Standards Committee.

  • (3) The Tribunal should not have found the first charge proved in circumstances where the complainant did not appear at the hearing.

  • (4) The Tribunal erred in failing to request that Mr Daniel Gardiner appear before it in connection with charge one, and in failing to request that Mr Alistair Haskett appear before it in connection with charge four. Both were legal practitioners who had sworn affidavits for Mr Hart.

  • (5) The Tribunal erred in rejecting the expert evidence tendered for Mr Hart in connection with charge four.

  • (6) The decision to strike off Mr Hart was a disproportionate response.

  • (7) Changes in Mr Hart's financial position (partly flowing from the Tribunal's penalty decision) have made the order requiring him to pay costs manifestly excessive.

Approach on appeal
12

This is a general appeal by way of rehearing under s 253 of the LCA. On an appeal by way of rehearing, the appellate court must come to its own view on the merits, and need not defer to the views of the Tribunal. However, when forming its view of the merits the appellate court is entitled to take into account that the Tribunal may have an advantage in terms of technical expertise, and may also have had the opportunity to assess issues of credibility where witnesses have given evidence before it. Where credibility determinations of the Tribunal are in issue on appeal, the appellate court may properly be cautious in differing from the Tribunal in relation to those findings. But the extent of consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment. 4 The Court has the power under s 253 to confirm or modify the decision of the Tribunal.

First ground of appeal — refusal to adjourn/proceed in the appellant's absence
13

This ground challenges the Tribunal's refusal to grant Mr Hart's application for adjournment of the hearing, and its decision to proceed to hear the charges in his absence.

14

The hearing was scheduled to commence on Monday, 16 July 2012. On the Friday preceding the hearing, Mr Hart communicated to the Tribunal that he would not be able to attend on the Monday due to ill health, providing a medical certificate as part of that...

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