X v Standards Committee (No. 1) of The New Zealand Law Society
| Jurisdiction | New Zealand |
| Judge | Toogood J |
| Judgment Date | 13 December 2011 |
| Date | 13 December 2011 |
| Court | High Court |
| Docket Number | CIV-2011-404-7750 |
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-7750
In The Matter of The Lawyers and Conveyancers Act 2006
and
A Trenwith for Plaintiff
M Treleaven for First Defendant
No appearance for Second Defendant
This judgment was delivered by me on 13 December 2011 at 5:00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
JUDGMENT OF Toogood J
On Friday, 2 December 2011 at 6:00 pm, I delivered a judgment 1 dealing with an urgent oral application by the plaintiff for interim orders suppressing publication of his name and prohibiting search of the Court file in respect of judicial review proceedings filed earlier that day. In the substantive proceeding, the plaintiff seeks certain orders variously quashing or declaring unlawful certain procedural directions made by the first and the second defendants in the course of disciplinary proceedings against the plaintiff under the Lawyers and Conveyancers Act 2006 (“the Act”). He also seeks prohibition and orders requiring the defendants to take certain steps.
The plaintiff's oral application for the interim orders was made without notice to either defendant. I was told during the hearing on 2 December that the second defendant was due to hear the disciplinary complaint against the plaintiff at a sitting beginning on Monday, 5 December 2011. It was said that the reason the application had been brought under great urgency was that the plaintiff or his advisers had become aware that representatives of the news media had been informed of the disciplinary proceedings and proposed to publish something about those proceedings over that weekend. I was told that, when the disciplinary proceedings began on the following Monday, the plaintiff would be applying for an adjournment to enable him to respond more fully to recently-made allegations of a serious nature and that he would also seek interim name suppression in respect of the Tribunal proceedings.
I was informed by the plaintiff that an application for name suppression had been made to the Tribunal but that it had not been dealt with. I was concerned, therefore, that unless the Court made an interim order suppressing publication of the plaintiff's name and identifying particulars and directing that the Court file should not be searched, the plaintiff's rights to apply to the Tribunal for interim name suppression might be compromised.
In the judgment I referred to the application of the principles of open justice but said I considered it appropriate to make the orders sought after balancing the public interest in an open hearing against the rights of the plaintiff to make an application for interim suppression to the Tribunal or to the Court, on a properly argued basis, before there was any publication which might render those rights nugatory.
I also expressed concern that the defendants had had no opportunity to be heard in respect of the application and directed that the plaintiff should file and serve by Wednesday, 7 December 2011, an application for interim suppression and any affidavits, together with copies of the substantive proceedings.
A telephone conference was scheduled for 9:00 am on Monday, 12 December 2011. I also directed service of a handwritten Minute on news media publications which might have been expected to publish something about the matter over the weekend of 7 and 8 December 2011.
In accordance with my direction, the plaintiff filed an application on notice for interim orders with supporting affidavits. In his affidavit, the plaintiff says, among other things:
- Since the initial orders were made on an ex-parte basis before his Honour Justice Toogood, it has been drawn to my attention that a decision was made earlier this year by the second defendant refusing me name suppression. While I had been aware that an application had made [sic], and advised his Honour of this, I was not aware that a decision had been made. I accept that the Tribunal sent an email to one of my email addresses with the decision attached on 4 May 2011. I was not aware of this until this week. Had I been aware of the decision I would have appealed it, and I would of course have advised the Court of the decision. I sincerely and unreservedly apologise for any incorrect impression which the Court may have been left with although I also assure the Court that it was entirely unintentional. I also note that the circumstances in which that application were made were very rushed and against the backdrop of a rapidly changing situation. At the same time, I do not believe that it would have made a difference to the Court's decision given that it was made on a very limited basis and for very short duration … 3. On 6 December 2011, the Chairperson of the second defendant also advised that she had made a direction that the parties would be notified of any applications to search the record and provided with an opportunity to be heard before a decision in that regard was made. While I was not previously aware of the direction, I would note that such a direction would not necessarily prevent publication of details of my case (beyond the charges) provided of course such information was not obtained from the Tribunal record.
The plaintiff also says that he denies the allegations made in the disciplinary proceedings and that the substantive hearing of the charges has been adjourned until late February 2012. 2
[Suppressed]
Counsel for the first defendant filed a memorandum on 7 December 2011. They noted that the solicitor and counsel for the first defendant were both in their respective offices on 2 December 2011 and expressed concern that the plaintiff did not advise them in advance that the proceedings were being filed and an oral application being made for interim orders. Counsel said they received a telephone call from an employee of the plaintiff's office at approximately 4:45 pm on 2 December 2011 and, shortly after 5:00 pm, a copy of the notice of proceeding was received by email without the statement of claim. Counsel note that they would have
been available to appear at short notice had they been given proper notice of the matter.Attached to the memorandum of counsel is a copy of a decision of the second defendant dated 18 March 2011 in which the Tribunal declined the plaintiff's application for interim name suppression. It is said by counsel that, due to an oversight, the decision was not emailed to counsel by the case manager until on or about 3 May 2011. In his affidavit, the plaintiff says that an email was sent to “one of my email addresses with the decision attached on 4 May 2011.” He does not explain why he had not become aware of the making of the order until last week.
The first defendant initially opposed the application and the continuation of the interim orders made on 2 December 2011. Counsels' memorandum were filed prior to receiving copies of the written application and the plaintiff's affidavits in support.
Unfortunately, Mr Treleaven, who represented the first defendant in the telephone conference held yesterday had not been given copies of the papers which had apparently been served on the first defendant's solicitors, in accordance with my direction, and the telephone conference was adjourned for 24 hours to give him an opportunity to consider them.
The first defendant's position now is that it abides the decision of the Court. Mr Treleaven took part in the second telephone conference, held this morning, but did not make any further submissions. There has been no appearance on behalf of the Tribunal but I understand its usual practice is to abide the decision of the Court, although Crown counsel are often briefed in order to provide any assistance which the Court may seek.
In most cases, Court proceedings are public proceedings. Thus, the concept that justice should be seen to be done is accepted as the basic starting point in respect of any request to withhold from the public information about proceedings in the Court. 3 In Liddell, the Court of Appeal said that, when considering an application for suppression of name, the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately as “surrogates of the public”. 4
This principle was reaffirmed by the Court of Appeal in Muir v Commissioner of Inland Revenue where the Court held that the open justice principle was equally applicable to civil cases. 5 In Clark v Attorney-General (No.1)6 the Court noted that the open justice principle applied to the identification of all parties involved in proceedings.
Since the High Court Rules do not provide the Court with any express power to suppress the publication of names or evidence, the Court exercises its inherent jurisdiction in doing so. 7 In a case involving an application for name suppression pending the hearing of an appeal by a medical practitioner against an order removing his name from the New Zealand Medical Register, the Court of Appeal said that the freedom of the press to report Court proceedings fairly and accurately should not be unnecessarily shackled. 8 In Gibson v Attorney-General, 9 John Hansen J interpreted this to...
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