Hart v Auckland Standards Committee No 1 of The New Zealand Law Society

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 19 December 2013
• Neutral Citation: [2013] NZCA 673
• Docket Number: CA443/2013
• Court: Court of Appeal
• Date: 19 December 2013

BETWEEN

Barry John Hart

Applicant

and

Auckland Standards Committee No 1 of the New Zealand Law Society

Respondent

[2013] NZCA 673

Court:

Ellen France, Stevens and Wild JJ

CA443/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Application for special leave to appeal a decision of the Full Court of the High Court (“HC”) — applicant had been found guilty on charges before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal of professional misconduct and an order was made that he be struck off, pay costs of just over $116,000, and that he pay one of the complainants $20,000 — applicant had provided medical certificate just before hearing stating he was unfit to appear — Tribunal had proceeded with hearing in his absence — on appeal, HC determined that his H's non-attendance was not due to ill health but was rather a conscious decision to disengage from the proceeding — HC also considered that when deciding penalty, Tribunal had been correct to consider previous incidents of similar behaviour (overcharging) — whether the HC erred in considering there had been no breach of natural justice by the Tribunal's decision to proceed in applicant's absence — whether Tribunal should have compelled applicant's attendance — whether the Tribunal erred when considering the penalty by wrongly taking into account an irrelevant factor, namely the applicant's previous disciplinary history, in circumstances where supervision had not be tried before.

Counsel:

P F Chambers for Applicant

P N Collins for Respondent

• A The application for special leave to appeal is dismissed.

• B The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

1 The applicant, Barry Hart, applies for special leave to appeal against a decision of the Full Court of the High Court (Winkelmann and Lang JJ). 1 In that decision, the High Court dismissed an appeal by Mr Hart against the decisions of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) finding him guilty of charges of professional misconduct, 2 ordering that he be struck off the roll of barristers and solicitors, that he pay costs of just over $116,000, and that he pay one of the complainants the sum of $20,000. 3 Mr Hart sought leave to appeal from the High Court, but his application was dismissed by Lang J. 4

2 Mr Hart's application for special leave focuses on the Tribunal's decision to proceed to hear the charges in his absence and on the penalty imposed.

Background

3 Mr Hart faced four charges before the Tribunal. The charges were laid by the Auckland Standards Committee No 1 under the provisions of the Lawyers and Conveyancers Act 2006 (the Act) and under the Lawyers and Conveyancers Act (Conduct and Client Care) Rules 2008. Charges numbered one and two alleged, respectively, misconduct in a professional capacity and conduct unbecoming of a practitioner. Charge number two was laid in the alternative to charge number one. Both charges related to delays in paying the fees of a private investigator hired by Mr Hart to carry out investigative work for a client whom Mr Hart was representing in relation to criminal charges. Charge number three was an allegation of misconduct in a professional capacity. The charge related to Mr Hart's refusal to disclose his file relating to a former client after having been required to do so by a Complaints Committee and then by a Standards Committee. Charge number four was a further charge of misconduct in a professional capacity and related to gross overcharging and the failure to provide information to a client's family about the basis upon which Mr Hart proposed to charge for services.

4 The charges were set down to be heard in July 2012. That was the fifth fixture set for the hearing of the matter, the previous fixtures all having been adjourned. 5 On the Friday before the hearing (due to begin on the Monday), Mr Hart provided a doctor's certificate which was light on detail and did not include a diagnosis but said that Mr Hart was unfit for work, particularly court work. The Tribunal promptly advised Mr Hart that it may wish to cross-examine the doctor in relation to the medical certificate. A further certificate was provided on the morning of the hearing which said that Mr Hart had been reviewed by the doctor and one of his symptoms had not improved. The Tribunal asked that the doctor attend so that the Tribunal might obtain further information about Mr Hart's medical condition. The Tribunal adjourned briefly for arrangements to be made. The Tribunal was advised that the doctor refused to appear, preferring to seek legal advice. An application made on Mr Hart's behalf for an adjournment was refused. Mr Hart's counsel did not have instructions encompassing defending the charges and was given leave to withdraw.

5 The matter proceeded to a hearing in Mr Hart's absence. Various witnesses appeared and were questioned by the Tribunal. In its decision, the Tribunal held that charges one, three and four had been proved to the required standard. 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, as well as the further penalties listed above. 6

6 On Mr Hart's appeal the High Court reviewed afresh the evidence before the Tribunal relating to the decision to proceed in the absence of Mr Hart. The Court also considered new evidence, received by consent, from Mr Hart as to his health at the time of the hearing. The Court was of the view that the “complete chronology” provided “very strong” evidence of a “concerted strategy of delay and obstruction”. 7 That chronology included adjournments of fixtures in 2011 on the application of Mr Hart, significant delay in providing relevant documentation in relation to one of the charges and failure to make necessary arrangements for witnesses (called by

Mr Hart) to attend for cross-examination. The Court said it was satisfied that the Tribunal correctly concluded Mr Hart's non-attendance was not due to ill health, “[r]ather, he made a conscious decision to disengage from the proceedings”. 8

7 The High Court also dealt with whether the Tribunal had considered relevant matters before concluding it could proceed in Mr Hart's absence. The Court said that the Tribunal had considered whether, if the hearing proceeded in Mr Hart's absence, Mr Hart would receive a fair hearing. In relation to that aspect, “extensive” evidence had been filed on behalf of Mr Hart. 9 As well, “over the lengthy procedural history …, there had been numerous interlocutory arguments, so the Tribunal was well aware of the nature of the defences Mr Hart intended to raise”. 10 The Court also accepted there was considerable public interest in the hearing proceeding. The charges were serious and the events forming the basis of the charges were, by the time of the hearing, dated. In addition, the Tribunal had not simply conducted a formal proof exercise. The Tribunal required the Standards Committee to call many of its witnesses and the witnesses were questioned “at some length”. 11

8 The High Court concluded that, “[h]aving reviewed the transcript and the Tribunal's decision ourselves”, it was satisfied no miscarriage arose from the decision of the Tribunal to proceed in the absence of Mr Hart, even though that meant he was unrepresented. 12

9 As to penalty, the High Court examined each of the charges and reached a view on the seriousness of the conduct involved. The Court considered it was an aggravating feature that this was not the first occasion on which there had been some similar conduct. To illustrate the point, in relation to the fourth charge involving overcharging, Mr Hart had been found guilty of conduct unbecoming of a practitioner in respect of overcharging in March 2010, June 2010, and July 2011. 13

10 The Court also considered that the way in which Mr Hart treated his obligations to the Tribunal was a very serious matter. The Court observed that public confidence in the profession depends in large part upon the premise that...