Sisson v The Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society

• Jurisdiction: New Zealand
• Judge: Panckhurst J,Chisholm J,Whata J
• Judgment Date: 28 February 2013
• Neutral Citation: [2013] NZHC 349
• Docket Number: CIV 2012-409-000079
• Court: High Court
• Date: 28 February 2013

Between

Therese Anne Sisson

Appellant

and

The Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society

Respondent

[2013] NZHC 349

Court:

Panckhurst J Chisholm J Whata J

CIV 2012-409-000079

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

Appeal from an order of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal striking the appellant from the roll of barristers and solicitors on the basis she was not a fit and proper person following a breach of s66 Legal Services Act 2000 (listed providers not to take unauthorised payments) — appellant also found to have misled the Standards Committee during the disciplinary process — appellant deducted monies from client's account without the knowledge of or authority from the client or the Legal Services Agency — appellant deducted legal costs when the costs were covered by legal aid, to the client's disadvantage — appellant obtained more from an alleged private retainer than she would have been entitled to under legal aid — impact of personal difficulties — previous disciplinary hearings — whether striking off was the most appropriate penalty — consideration of the correct appellate approach in disciplinary case.

Counsel:

R A Peters for Appellant

G H Nation for Respondent

A Time is extended and leave to appeal against penalty granted.

B The appeal is dismissed.

C Costs are reserved.

JUDGMENT OF FULL COURT

Introduction

1 On 24 November 2011 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) made an order that the appellant be struck off the roll of practitioners as it was satisfied that she was not a fit and proper person to practise as a barrister or solicitor. This is an appeal against the striking off order. Other aspects of the decision, namely that the appellant pay compensation to her former client and a contribution towards the Law Society's costs, were not challenged.

2 There is a considerable history to the appeal which is outlined in bare detail below. A consequence of that history is that the appellant requires leave to appeal because her penalty appeal is based on a notice of appeal filed quite recently.

The strike off decision

3 Following a complaint to a Standards Committee of the Canterbury-Westland Branch of the New Zealand Law Society two charges of professional misconduct were laid before the Tribunal. The essence of the first was that in the context of acting for a client, Ms H, in a de facto relationship property claim the appellant ‘deducted from monies held for Ms H the sum of $17,454.80 in payment of (legal) costs without seeking or receiving authority to do so from the Legal Services Agency’. The second charge alleged that the appellant deducted the legal costs without Ms H's authority and when the costs were covered by a grant of legal aid, this being to her personal advantage but the client's disadvantage; and that later she misled a Standards Committee by saying that she and Ms H discussed and agreed upon a private retainer in lieu of the legal aid assignment.

4 The Tribunal heard the misconduct charges on 17–18 May 2011. The appellant represented herself. On 5 July 2011 the Tribunal released a decision in which it found both charges to be proved to the requisite standard. We shall refer to the reasons for these findings shortly. The Tribunal required that submissions on penalty be filed in anticipation of a penalty hearing.

5 This eventuated on 24 November 2011. At the end of the hearing, Judge Clarkson on behalf of the Tribunal announced its decision that the appellant was struck off, with reasons for that decision to be provided in writing. These were released on 7 December 2011 and we shall refer to them in a moment.

Appeal delay

6 The appellant filed separate appeals against the misconduct and penalty decisions in August and December 2011, respectively. The filing fee in relation to the former was paid by cheque, but the cheque was dishonoured. Subsequently a deputy registrar issued a notice that the appeal was deemed to be abandoned when payment of the fee had not eventuated. An application for waiver of the filing fee was foreshadowed in relation to penalty appeal, but never filed. A notice purporting to confirm that this appeal had likewise been ‘adjudged’ to be abandoned was issued in April 2012.

7 The High Court Fees Regulations 2001 govern payment of filing fees. They do not contain a deemed abandonment provision. The notices to that effect were nullities. The respective files should have been referred to a Judge for judicial direction.

8 In the event both appeals were called before Chisholm J on 13 June 2012. He made directions to enable applications for leave to appeal out of time, or for reinstatement of the previous notices of appeal, to be heard. In August and October 2012 the time allowed to take steps was enlarged, on the second occasion subject to an unless order with a 16 November 2012 deadline. Such deadline was further enlarged to 30 November. Following ongoing default Chisholm J directed that a conference with counsel be convened. This took place on 18 December 2012, but in the meantime Mr Peters filed a fresh notice of appeal and an application for leave to appeal out of time. A covering letter dated 3 December 2012 recorded that the intended appeal was restricted to “sentence” – in particular the striking off order.

9 However, by the time of the conference on 18 December 2012 the appellant had instructed counsel that she wished to pursue appeals against both the misconduct findings and penalty (as well as a separate appeal against another decision of the Tribunal on an unrelated matter, which we shall need to mention later).

10 Chisholm J, in light of the unless order, struck out all applications save for the leave application and its associated notice of appeal on the basis that these were confined to the appeal against sentence. These became the subject of further directions and were set down for a full Court hearing on 4 February 2013. We shall return to the leave application towards the end of the judgment.

11 On 14 January 2013 the appellant filed an appeal against Chisholm J's strike out decision. Pending a decision of the Court of Appeal, she sought an adjournment of the 4 February 2013 hearing. Whata J heard the adjournment application on 29 January. It was declined.

Approach to the appeal

12 The appellant's conduct which was the subject of complaint occurred between late 2004 and July 2008. A complaint was made on 28 August 2008, a few weeks after the Lawyers and Conveyancers Act 2006 came into force. Pursuant to s 351 of that Act the complaint was to be dealt with under the new Act, but ‘any penalty imposed in respect of that conduct must be a penalty that could have been imposed … at the time when that conduct occurred’: s 352(1).

13 Section 112(2) of the Law Practitioners Act 1982 prescribed the available penalties, including a striking off, suspension for up to three years, a prohibition upon the practitioner's ability to practice on her own account, a financial penalty and a censure. An order striking a practitioner's name off the roll could only be made if the Tribunal found a charge against the practitioner proved and was of the opinion that, by reason of that conduct, the practitioner was not a fit and proper person to practice as a barrister or solicitor: s 113(1).

14 Recent cases show a divergence of view concerning the correct appellate approach in disciplinary cases. Under both the Law Practitioners Act 1982 and the Lawyers and Conveyancers Act 2006, appeals against any order or decision of a disciplinary tribunal are by way of rehearing; s 118(2) and s 253(3)(a), respectively. In Bhanabhai v Auckland District Law Society, 1 a full Court (Priestley, Heath and Winkelmann JJ) favoured a divided approach whereby professional misconduct

findings were to be considered afresh, but penalty decisions by reference to the principles that govern the exercise of a discretion. In Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee (2)), 2 Cooper J concluded that penalty decisions involved an evaluative exercise, were not discretionary in nature, and that the appellate Court should, therefore, form its own view. But, in Auckland Standards Committee (1) v Fendall, 3 Wylie J preferred the approach adopted in Bhanabhai. Most recently, in Hart v Auckland Standards Committee (1) of New Zealand Law Society, 4 a full Court (Winkelmann, Lang JJ) concluded that, credibility determinations and matters involving technical expertise aside, an appellate Court must come to its own view on the merits of misconduct and penalty decisions without deference to the views of the Tribunal

15 This division of opinion flows from the difficulty in applying Austin, Nichols & Cox Inc v Stichting Lodestar 5 in the present context. We think it unnecessary to record the reasons advanced in support of the various viewpoints. We prefer the view that both misconduct findings, and the resulting penalty decision, require an assessment of fact and degree and entail a value judgment; such that it is incumbent upon the appellate Court to reach its own view on both aspects. We found the decision of the Supreme Court in Kacem v Bashir 6 helpful in arriving at this conclusion.

The factual background

16 The appellant was retained by Ms H in December 2004 in relation to the relationship property claim. At this time, Ms H was living apart from her former de facto partner in rented accommodation in Christchurch whereas the former home was situated in Invercargill.

17 An application for legal aid was made to the Legal Services Agency (LSA). On 1 February 2006 the LSA advised that legal aid was granted in the amount of $1,730 in relation to the first steps in the proceeding. Relationship property proceedings were issued in the High Court. In early 2007 the appellant...