Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee No.2)

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 20 December 2010
• Neutral Citation: [2010] NZHC 2305
• Docket Number: CIV-2010-419-1209
• Court: High Court
• Date: 20 December 2010

Under the Lawyers and Conveyancers Act 2006

In the Matter of an Appeal against order striking name from Roll Of Barristers And Solicitors

BETWEEN

James Charles Morris Parlane

Appellant

and

New Zealand Law Society (Waikato Bay of Plenty Standards Committee No.2)

Respondent

[2010] NZHC 2305

CIV-2010-419-1209

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

Appeal under s253 Lawyers and Conveyancers Act 2006 (Appeal against order or decision of Disciplinary Tribunal) against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal which struck the appellant off the roll of Barristers and Solicitors for professional misconduct — appellant lent finance to a friend to facilitate the purchase of a house and registered a mortgage — appellant refused to discharge mortgage and demanded withdrawal of a complaint made to a Standards Committee — appellant deliberately obstructed the investigation by the respondent — whether the striking off was manifestly excessive and unjust — appellant suffering mental health problems — whether the appellant was a fit and proper person.

Appearances:

P J O'Sullivan for Appellant

P N Collins and K J-O Kelly for Respondent

JUDGEMENT OF Cooper J

Table of Contents

	Para No
Introduction	[1]
The charges	[4]
The professional misconduct charge	[5]
The factual basis of the professional misconduct charge	[7]
Mrs R	[9]
Refusal to produce files/obstruction	[35]
Complaint by DM	[47]
Complaint by ABV	[55]
The decision on penalty	[66]
The appeal	[71]
Discussion	[83]
Result	[114]

Introduction

1 On 16 September 2010 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”) made an order striking the appellant's name off the roll of Barristers and Solicitors. 1 The Tribunal had earlier, in a decision dated 4 June 2010, 2 determined that Mr Parlane had been guilty of misconduct in his professional capacity as had been alleged (“the professional misconduct charge”) by the Waikato Bay of Plenty Standards Committee (“the Committee”).

2 There was a further charge, alleging unsatisfactory conduct in Mr Parlane's professional capacity. That charge was determined on 22 July 2010. 3 The Tribunal also found that charge was proved, but in its decision of 16 September it decided not to impose a separate sanction in relation to it because of the order striking Mr Parlane off the roll on the more serious charge.

3 Mr Parlane has appealed against the order striking him off the roll. He claims that it is manifestly excessive and unjust, inappropriate in the circumstances and inconsistent with the outcome of disciplinary proceedings taken in respect of other

legal practitioners. Mr Collins told me that this is the first time that an appeal to this Court has been pursued under the Lawyers and Conveyancers Act 2006

The charges

4 Mr Parlane does not challenge the Tribunal's factual determinations, nor its conclusions that he was guilty of the two charges. The charge of unsatisfactory conduct concerns statements made to a self-represented person involved in a fencing dispute with a client of Mr Parlane. It was established that he made disrespectful and discourteous statements about that person in a letter dated 5 June 2009, contrary to r 12 in the Conduct and Client Care Rules 2008. It is not necessary to discuss the conduct giving rise to that charge any further since no penalty was imposed in respect of it and it is plain that the Tribunal did not rely on it in reaching its decision to strike Mr Parlane's name off the roll.

The professional misconduct charge

5 The professional misconduct charge was based in part on Mr Parlane's actions in respect of a person, Mrs R, for whom he acted in relation to the purchase of her home. Three of the particulars of misconduct advanced by the Standards Committee were rejected by the Tribunal, but it found that the following particular was established:

• 4 During the period June 2007 to July 2009 he wrongly refused to discharge the mortgage granted to him by Mrs R to secure the earlier personal loan and:

  • (a) Obstructed Mrs R's solicitor in her attempts to facilitate refinancing and to discharge the mortgage; and

  • (b) Relied on his status as mortgagee to demand payments and concessions from Mrs R to which he was not entitled.

6 The other particulars of misconduct that the Tribunal found were proved give this case a particular and unusual flavour. The Tribunal found that Mr Parlane had set out to deliberately obstruct the Standards Committee in the actions that it was

taking to try to deal with Mrs R's complaint and also in relation to complaints by other former clients, DM and ABV. The Tribunal found that the following particulars of misconduct had all been established on the evidence before it

• 5 In relation to Mrs R's complaint against him to the Lawyers Complaints Service, he refused to comply with the requirements of the Standards Committee, that he produce his relevant files and records, such requirements being communicated to him in writing by notices delivered on or about 27 August 2008, 5 October 2008, and 20 May 2009, and he thereby obstructed the Standards Committee in the lawful exercise of its statutory functions and powers.

• 6. In relation to the investigation into Mrs R's complaint during the period February 2008 to April 2009 he communicated in writing with the Complaints Committee, and subsequently with the Standards Committee, in an unprofessional and belligerent manner and thereby obstructed the Complaints Committee and the Standards Committee in the lawful exercise of their statutory functions.

• 7. In relation to a complaint by a former client, DM, in October 2008, he communicated in writing with the Standards Committee in an unprofessional and belligerent manner and thereby obstructed the Standards Committee in the exercise of its statutory functions.

• 8. In relation to a complaint by a former client, ABV, during the period February to June 2009, he communicated in writing with the Standards Committee in an unprofessional and belligerent manner and thereby obstructed the Standards Committee in the exercise of its statutory functions.

The factual basis of the professional misconduct charge

7 The Tribunal heard evidence from Mrs R and Mrs Miles, a solicitor practising in Te Awamutu as a principal in the firm Gallie Miles, who commenced to act for Mrs R after the dispute with Mr Parlane arose. It also heard evidence from Ms McDonald, another solicitor, who was employed by Gallie Miles and acted for Mrs R in a summary judgment application that she made in the Hamilton District Court. The Committee also called evidence from Mr Michael Dixon, a Hamilton solicitor employed part time as the Complaints Standards Officer at the Waikato Branch of the New Zealand Law Society, and prior to the Lawyers and Conveyancers Act 2006 coming into effect, as the Complaints Officer of the Waikato Bay of Plenty District Law Society. 4

8 There is no challenge to any of the Tribunal's findings.

Mrs R

9 The genesis of the misconduct charge was Mr Parlane's dispute with Mrs R. Mrs R and Mr Parlane were friends. She instructed him in relation to the purchase of a house property. She needed to obtain mortgage finance on an urgent basis and Mr Parlane offered to help her purchase the property by offering her a bridging loan until longer term finance could be arranged.

10 On 23 August an agreement for sale and purchase was executed in respect of the property that Mrs R wished to acquire. However, the purchaser in the agreement was stated to be Mr Parlane or his nominee. There was a deed of nomination, signed by Mrs R and her three sons, which authorised Mr Parlane to make the purchase on their behalf. The deed was dated 25 August 2005. Mr Parlane had advised that the property should be owned by a family trust, with Mrs R and each of her sons the beneficiaries. The property was acquired for $178,000, of which $38,000 was advanced by Mr Parlane.

11 A dispute arose between Mr Parlane and Mrs R over the sums required to be paid in reduction of the loan, and as to its terms. As a consequence, Mrs R decided to take independent legal advice from Mrs Miles. She first met with Mrs Miles on 23 March 2007. Initially, Mrs Miles found it difficult to understand precisely how the purchase of the property had proceeded. Mrs R complained to Mrs Miles that she had understood she had a loan from Kiwibank, not from Mr Parlane. The Tribunal found that in fact Mr Parlane had advanced funds sufficient to enable the purchase to proceed and that Mrs R had subsequently made payments to Mr Parlane in reduction of the loan although she had mistakenly believed that the payments were in fact reducing a loan from the bank. The property was not in fact acquired by a

family trust, because one of the proposed trustees of the trust, one of Mrs R's sons, declined to sign the mortgage documents, thus preventing the trust from drawing down a loan from Kiwibank to repay Mr Parlane. The family made no further effort to progress ownership of the property by a family trust

12 From 11 June 2007 Mrs Miles made various attempts to uplift Mrs R's file from Mr Parlane. She wrote to him on a number of occasions, attempted to telephone, and visited him at his office. She obtained a search copy of the mortgage in favour of Mr Parlane and a copy of the title which in fact showed that the property was owned by Mrs R and her three sons as trustees of the family trust. Mr Parlane was the mortgagee. The mortgage related to Mrs R's interest in the property and was for a sum of “up to” $40,000. Although Mrs R complained that the property had been registered...