Sisson v Canterbury District Law Society

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHarrison J
Judgment Date09 Mar 2011
Neutral Citation[2011] NZCA 55
Docket NumberCA464/2009

[2011] NZCA 55

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

O'Regan P, Randerson and Harrison JJ

CA464/2009

Between
Therese Anne Sisson
Appellant
and
Canterbury District Law Society
First Respondent

and

The Canterbury Law Practitioners Disciplinary Tribunal
Second Respondent
Counsel:

Appellant in person

P M James for Respondents

Appeal against a decision of High Court declining appellant's application for judicial review of a decision of Canterbury Law Practitioners Disciplinary Tribunal — professional misconduct for failing to honour a written undertaking — censured and prohibited from carrying out certain conveyancing work — appellant suing a partner in Tribunal member's firm — whether Tribunal member biased — whether appellant waived her right to object to Tribunal member's presence — whether Tribunal had jurisdiction to make findings on issues of law and fact on a solicitor's conduct where those issues were in dispute.

Held: In practical terms, when considering allegations of bias, the court had to enquire into what and how the decision-maker might possibly stand to gain from a result adverse to the complainant; Saxmere Company Ltd v Wool Disestablishment Company Ltd ( Saxmere (No 1)). S claimed that Stanway fell within the rule of automatic disqualification; Metropolitan Properties Co (FGC) Ltd v Lannon. Her case as argued and pleaded was simply that S was suing one of his partners and his personal interest emanated from that fact alone.

The pleading was inadequate. Proof of the existence of adverse proceedings was insufficient in itself. Proof of Stanaway's knowledge of the adverse proceedings and of S's interest in the proceedings was essential to establishing a personal interest. Without knowledge of those two facts, Stanaway could not have had an interest in deciding the charge other than on its merits because he would have had no identifiable motivation to deviate from his duty.

S had never been named as a party in any proceedings issued by Chesterfields. S had been charged by CDLS; an affirmative finding by the Tribunal could not have been material to the result of Chesterfields' misfeasance claim against Shamy. S had failed to establish how a personal interest of the type alleged might have influenced Stanaway to decide the charge other than on its merits. That was because S's professional conduct would not be in issue at the misfeasance proceeding.

While claims of apparent bias have become an increasingly popular avenue of collateral attack on adverse judgments, Saxmere (No. 1) showed that they were to be determined by an analytical assessment, not by reliance on general impression or presumption. Taking into account all relevant circumstances, there was no tenable nexus or logical connection between Stanaway's alleged personal interest, even if it had existed, and his participation in the Tribunal hearing.

Even if the claim had been made out, S had waived her right to rely on that ground. The Tribunal chariman had expressly introduced each member to S and had given her an opportunity to object to any member sitting. She had not protested then or at time during the hearing. S's failure to object when the Tribunal had offered her a specific opportunity do so was fatal. Her affirmation had been given with full knowledge of all the material facts and the consequence of the choices available to her.

S's contention that the Tribunal's statutory powers excluded jurisdiction was rejected. Section 106 Law Practitioners Act 1982 (powers of District Disciplinary Tribunal), which was in force at the time of the hearing, empowered the Tribunal to enquire into a charge without any material limitations. There was no dispute about the construction or meaning of S's letter of undertaking. The primary area of dispute was whether it was qualified or varied by an oral agreement. That was a purely factual issue that the Tribunal was uniquely placed to determine in accordance with its wide statutory power.

Appeal dismissed.

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellant is to pay the first respondent's costs on a Band A basis together with usual disbursements.

REASONS OF THE COURT

(Given by Harrison J)

Introduction
1

The appellant, Ms Therese Sisson, is a lawyer practising in Christchurch. The first respondent, the Canterbury District Law Society (the Society), charged her with professional misconduct for failing to honour a written undertaking. The second respondent, the Canterbury Law Practitioners Disciplinary Tribunal (the Tribunal), found her guilty of the charge. She was censured, prohibited from carrying out certain conveyancing work and ordered to pay costs.

2

Ms Sisson has challenged the Tribunal's decision on two alternative fronts. She applied to the High Court for judicial review given that the Tribunal had exercised a statutory power of decision. 1 French J dismissed her application. 2 Ms Sisson now appeals against that judgment. Separately, she has appealed against the Tribunal's decision to the New Zealand Law Practitioners Disciplinary Tribunal. 3 By agreement, that appeal has been stayed pending determination of the High Court proceeding.

3

Ms Sisson's statement of claim pleads five reviewable errors. French J considered and rejected them all. Ms Sisson's notice of appeal maintained the same five grounds. However, before us she limited her appeal to two grounds – principally, apparent bias by one of the Tribunal members and, secondarily, a lack of jurisdiction to determine the charge. The remaining grounds were plainly not amenable to judicial review in any event.

Background
4

Ms Sisson acted for a Ms Shelly Travis on an agreement to purchase a leasehold interest in a property in Christchurch. The underlying freehold title was part of a larger block comprising a number of titles owned by an incorporated society. These other properties were leased to its members.

5

Ms Sisson discovered that the incorporated society was to be wound up. On that event the lessees were to surrender their leases and obtain freehold titles. So Ms Travis was effectively agreeing to purchase a leasehold interest in the expectation of obtaining a freehold title. Her agreement was due for settlement in June 2005. However, Ms Sisson was advised that the application to the High Court to wind up the incorporated society had been delayed past June due to unresolved litigation. Ms Travis' acquisition of the freehold was thus of a contingent nature.

6

The Southland Building Society (SBS) granted Ms Travis a loan for part of the purchase price (around $20,000 of a total consideration of $148,000). In accordance with standard lending practice the SBS required security by way of a mortgage.

7

What happened in exchanges between Ms Sisson and the relevant SBS employee was the subject of a factual contest before the Tribunal. Ms Sisson wrote to the SBS advising that a freehold title was available but because of litigation in the High Court that title was not then being transferred. The SBS employee was confused by this advice and phoned Ms Sisson. His evidence, which the Tribunal accepted, was that Ms Sisson orally advised him that Ms Travis would nevertheless be in a position to give the SBS a mortgage over the property on settlement in late June. The Tribunal accepted that the SBS understood that the mortgage was to be granted over a freehold, not the leasehold, title and rejected Ms Sisson's evidence to the contrary.

8

The SBS then forwarded Ms Sisson a loan facility agreement and a standard mortgage document with a letter requesting her to act for the lender in preparing and registering a first mortgage over the freehold title. Additionally, the letter advised that the SBS would rely upon Ms Sisson to protect its interests at all times so that it obtained the requisite security. Ms Sisson prepared the mortgage documents and arranged for execution by Ms Travis. She sent a fax to the SBS confirming execution.

9

On 27 June Ms Sisson signed and forwarded the standard SBS solicitor's certificate and undertaking that she was in a position to:

… and shall immediately (on receipt of the loan money if applicable) register the mortgage with the ranking as specified in your instructions so that the society should obtain priority of security required by it.

10

On receipt of Ms Sisson's undertaking, the SBS advanced $19,800 to her trust account. Shortly afterwards she disbursed the funds to Ms Travis. Ms Sisson accepted that when giving her certificate and undertaking she knew that the freehold title remained in the name of the incorporated society and that she would not be in a position to register the security immediately on receipt of the loan funds. In fact, the litigation relating to the incorporated society's winding up occupied a further two years including an appeal to this Court; title was not registered in Ms Travis' name until 1 November 2007. In the meantime, the SBS complained to the Society following Ms Sisson's repeated failures to reply to its enquiries into the whereabouts of its copies of the security documents.

11

Ms Sisson represented herself at the hearing before the Tribunal on 15 July 2008. Her principal defence was that her undertaking was subject to or qualified by an oral understanding that she would only register a first mortgage security when the freehold title became available even though the SBS had advanced funds in the interim. The Tribunal unanimously rejected that defence, held the charge proved and imposed its penalty at the end of the hearing. The Tribunal's reasons were set out in a formal decision delivered on 20 August 2008.

12

We shall now address each of Ms Sisson's two grounds of appeal, which we describe as predetermination and jurisdiction.

Predetermination
Apparent bias
(i) Ms Sisson's case
13

Ms Sisson alleged that the Tribunal's decision was vitiated because one of its six members had a personal interest in the...

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  • Sisson v The Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society
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    ...v Canterbury District Law Society HC Christchurch CIV 2008-409-2950, 7 July 2009, French J. 9 Sisson v Canterbury District Law Society [2011] NZCA 55. 10 New Zealand Lawyers and Conveyancers Disciplinary Tribunal, Minute of the Chair, D J Mackenzie, 19 February 2010. 11 Hart v Auckland Stan......
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    ...In that case, the applicant for judicial review had waived her right to rely on bias as a 3 Sissons v Canterbury District Law Society [2011] NZCA 55, [2011] NZAR ground of judicial review. The applicant had been asked at the outset of the disciplinary hearing whether she had any objection t......