ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE APPLICANT	
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2018-485-510
[2019] NZHC 601	

IN THE MATTER	of an application for judicial review	
BETWEEN	G
Applicant	
AND	LEGAL COMPLAINTS REVIEW OFFICER
Respondent

NEW ZEALAND LAW SOCIETY
Intervenor	

Hearing:	27 February 2019	
Counsel:	A O’Connor for Applicant
P I C Comrie-Thomson for Intervener No appearance required for Respondent	
Judgment:	27 March 2019	

JUDGMENT OF THOMAS J

[1]	Mr G and Ms M had been partners in their law firm since 1987 when, in 2015, a former client laid a complaint against them to the New Zealand Law Society in respect of work they carried out on a relationship property agreement (the Complaint). Following a hearing on the papers, they were found to have engaged in unsatisfactory conduct and censured. After receiving submissions on the question of penalties and possible publication, the Law Society Standards Committee (the Committee) ordered

G v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 601 [27 March 2019]

they pay, on a joint basis, compensation, a fine and costs. The Committee also directed that the facts should be published, including identifying details of both lawyers.

[2]	Mr G and Ms M applied for a review of the decision on penalty and publication. The Legal Complaints Review Officer (the Review Officer) revised the financial penalties and decided there was no public interest in publishing Ms M’s name but it was in the public interest to publish Mr G’s name.1

[3]	Mr G seeks a review of the decision that his name be published (the Decision), claiming the Review Officer made errors of fact and the Decision was not reasonable. He seeks to have the Decision remitted to the Review Officer for reconsideration after evidence and submissions have been filed.

[4]	The Review Officer abides this Court’s decision. The New Zealand Law Society (the Law Society) was joined as an intervenor to assist the Court on any relevant issues of principle. The Law Society is “neutral” as to the review but filed submissions and was represented at the hearing.

Judicial review

[5]	Judicial review is the supervisory function of the Court which ensures public power is exercised according to the law.2 It is primarily concerned with examining procedural compliance, not the substance of the decision itself, when assessing whether a decision should be allowed to stand.3

[6]	Any error of law must be material, that is, “one which may well have altered the ultimate decision”.4 This can arise, for example, where a decision-maker has applied a gloss to a statutory test, or asked him or herself the wrong question.5 A

1	M v C LCRO 154/2016, LCRO 155/2016, 21 June 2018.
2	Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd  [1994] 2 NZLR 385 (PC)    at 388.
3	Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
4	Astrazeneca Ltd v Pharmaceutical Management Agency HC Wellington CIV-2011-485-2314,  22 December 2011 at [73] citing Bulk Gas Users Groups v Attorney General [1983] NZLR 129 (CA) at 136 per Cooke J.
5	Matthew Smith New Zealand Judicial Review Handbook (Brookers, Wellington, 2011) at 709 and Philip Joseph Constitutional and Administrative law in New Zealand (4th ed, Brookers, Wellington, 2014) at 985.

failure by a decision-maker to take into account relevant considerations is an error of law whereas the weight the decision-maker places on a relevant consideration is a matter for the decision-maker. Therefore, failing to take into account relevant considerations is a ground of judicial review but failing to have sufficient regard to relevant factors is not.6

[7]	I am, therefore, broadly concerned not with the substance of the Decision, but whether it was made according to the law, applying the correct legal tests and taking into account the correct considerations in applying that test.

[8]	Unreasonableness is one of the most problematic grounds of Judicial review.7 As discussed above, judicial review is concerned with the legality, as opposed to the merits, of administrative decisions. As this Court will not substitute its decision for that of the specialist decision-maker, the reasonableness of a decision has historically been approached from the high standard of Wednesbury unreasonableness.8 Unreasonableness was explained in Wednesbury as a decision “that no reasonable body could have come to”.9 This high standard of unreasonableness has been applied in the context of Review Officer decisions,10 although there is some disquiet about whether this approach is too stringent.11

The Complaint

[9]	The events which gave rise to the Complaint occurred in 2010 when the complainant, Ms C, instructed the law firm to act for her and her then partner, Mr J, in relation to their relationship property. In 2004, the couple had entered into a relationship property agreement prepared by Ms M whereby the relationship home in Waiwhetu Road, Lower Hutt (the Property) was owned 75:25 in favour of Ms C.

6	Berryman v Solicitor-General [2008] 2 NZLR 772 (HC) at [84].
7	Joseph Constitutional and Administrative law in New Zealand, above n 5, at 997 citing Shaw v Attorney-General (No 2) [2003] NZAR 216 (HC) at 239.
8	Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).
9	At 239.
10	Q v Legal Complaints Review Officer [2012] NZHC 3082, [2013] NZAR 69 at [41]. This decision was overturned on appeal for unrelated reasons.
11	Q v Legal Complaints Review Officer [2013] NZCA 570, [2014] NZAR 134 at [45] and [46].

[10]	On 13 April 2010, the couple entered into an agreement to purchase a new relationship home to be owned equally between them. On the advice of Mr J’s sister, who was an accountant and said there would be tax advantages in the company structure, they decided that the Property would be sold to a company they incorporated on 28 April 2010 (the Company). The Company would operate the Property as a rental. Ms C and Mr J were both directors of and equal shareholders in the Company. On 10 May 2010, the couple signed an agreement to sell the Property to the Company.

[11]	Ms C says she instructed Ms M to act for her and Mr J in purchasing the new relationship home, varying their existing relationship property agreement and transferring the Property to the Company.

[12]	A problem arose because the new relationship property agreement, signed on 20 May 2010 (the 2010 Agreement), provided that the Property was to be owned 70:30 per cent in Ms C’s favour.12 However, on the day following execution of the 2010 Agreement, the Property was transferred into the name of the Company, with the result that it was owned, in effect, 50:50 by Ms C and Mr J. Following the couple’s separation, the Family Court determined that the protection intended to be achieved by the 2010 Agreement was lost.13

[13]	It was Mr G who prepared the first draft of the 2010 Agreement and made some changes to it. It appears this took place when Ms M was away from the office due to illness. It was Ms M who provided Ms C with independent advice on the effect and implications of the 2010 Agreement and certified she had done so.

[14]	The findings of the Committee are set out in the notice of determination as follows:14

10.	The Standards Committee noted at the outset that the essential intention of the 2010 agreement did not appear to be in dispute. It was intended to preserve Ms [C]’s unequal interest in the property from Mr [J], albeit that this was to gradually erode over time. It was also apparent that the 2010 agreement had failed to preserve Ms [C]’s

12	This increased Mr J’s share and provided for him to increase his ownership share further over time.
13	C v J [2014] NZFC 6876.
14	The Board of the Law Society gave the Committee its prior approval to the publication of the practitioners’ names.

unequal interest in the property, given the subsequent transfer of the property to the company and failure to ensure that any adequate safeguards were in place. Indeed Ms [M],  in  her  affidavit  dated  23 September 2015, had stated that “in hindsight, [the 2010 agreement] should have referred to the shares in [the Company] as opposed to the property”.

11.	In the Standards Committee’s view, the 2010 agreement was inadequate to preserve the interests of Ms [C] and failed to reflect the instructions Ms [C] had provided in light of the transfer of the property to the company. The Standards Committee was satisfied that it ought to have been apparent to both practitioners that the 2010 agreement would fail to preserve Ms [C]’s unequal interest in the property once it was transferred to the company. The Standards Committee was also satisfied that the advice provided by the practitioners was deficient to such a degree that it amounted to a failure to act competently and in compliance with their duty to take reasonable care.15 It was also sufficient to amount to a failure to protect Ms [C]’s interests.16 In the Standards Committee’s view, the failure to properly advise Ms [C] of the effects of the transfer was an omission that no competent and experienced practitioner would make.

12.	The practitioners submitted that although the wording of the 2010 agreement was not perfect, it adequately recorded the intentions of the parties with respect to the ownership rights of the property. However, for the reasons set out above, the Standards Committee did not accept this argument.

13.	The practitioners additionally submitted that Ms [C] was confident in her accountant’s advice as to the transfer of the property to the company, and that she waived legal advice on this issue. However, in the Standards Committee’s view, it was incumbent on the practitioners to fully and properly advise Ms [C] on the essential effect the transfer would have on the 2010 agreement and they had failed to do so. As Ms [C] ' s solicitors, the practitioners were under a duty to give such advice despite any guidance Ms C may have received from any other party.

14.	The Standards Committee noted that Mr [G], in his response to the complaint, asserted that he was not required to give advice to Ms [C] and that he had not acted for her. He said he was not present at the meeting on 20 May 2010, and that his role in the matter was limited to drafting the 2010 agreement and emailing it to Ms [C] for her perusal. However the Standards Committee was satisfied that Mr [G] had sufficient involvement to be on notice of the issues and to be obliged to take steps on Ms [C]'s behalf to address matters. Not only had Mr [G] prepared the initial draft of the agreement, he had also amended the draft agreement after receiving emailed instructions from Ms [C].17 Whilst his involvement was minimal, it was sufficient

15	As required by r 3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
16	As required by r 6 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
17	See Ms C's email to Mr G dated 19 May 2010.

to trigger his professional obligations, including the obligation to provide appropriate advice regarding the effect of the 2010 agreement and the implications of the subsequent transfer of the property. In the Standards Committee's view, it was not sufficient for Mr [G] to rely on his limited dealings with Ms [C] and his recommendation that Ms
[C] obtain separate independent legal advice to exempt him from complying with his professional obligations.

15.	Therefore the Standards Committee, for the reasons set out above, was satisfied that Mr [G] and Ms [M] had failed to provide Ms [C] with adequate legal advice regarding the effect of the 2010 agreement and the transfer of the property to the company.

The Decision

[15]	The Review Officer began by noting that the Committee’s determination of unsatisfactory conduct and censure was not the subject of an application for review and she therefore proceeded on the basis of the Committee’s determination. The application for review was on the grounds that the compensation should be eliminated or reduced, the fine was disproportionate, and the lawyers’ names should not be published. While previously the interests of Mr G and Ms M aligned, their position on review was somewhat different. As the Review Officer said:18
[5]	On review, Mr [G] submits that his part in the retainer was so limited that he should not be held responsible for any consequences. He submits that responsibility sits squarely with the lawyer who certified the agreement pursuant to s 21 of the Property (Relationships) Act 1976 (PRA). That lawyer was Ms [M], because she explained the effects and implications of the agreement to Ms [C] before she signed it. Mr [G] accepts, however, that he had some part in drafting the agreement and that this review cannot affect the determination that there was unsatisfactory conduct on his part or the order censuring him.

[6]	It is noted that Ms [M] has suffered some ill health in more recent times. She said at the review hearing on 25 May 2018, that she did not intend to renew her practicing certificate and had effectively retired from practice.

[7]	With Ms [M]'s retirement, Mr [G] is unsure where his future lies. However, he has given no indication that retirement from legal practice is on his immediate horizon. On that basis, it is assumed he intends to continue in practice for the time being, which is a consideration that would be relevant to considerations of public protection which can be met by publishing a practitioner's name.

[16]	The Review Officer noted that neither lawyer had any involvement in Ms C and Mr J entering into the transactions, or forming the Company or its equal

18	M v C, above n 1.

shareholding, observing that neither lawyer seemed to have a clear grasp of the whole arrangement. She said, nevertheless, one or other should have checked how the couple had structured their affairs and ensured the 2010 Agreement reflected that. She also noted Ms M’s untested belief that Ms C knew what it meant for her interests when she signed the documents transferring the Property to the Company.

[17]	As the Review Officer observed, it was difficult to say with any degree of certainty who precisely was responsible for what. Nevertheless, the Committee had made the determinations and those were not subject to review.

[18]	The Review Officer concluded that Mr G’s attempt to attribute all responsibility to Ms M was misplaced and Mr G was involved in the drafting process to some extent. She said that was not managed competently or with diligence. As the Review Officer noted, her task was limited to considering what orders, if any, were appropriate pursuant to s 156 of the Lawyers and Conveyancers Act 2006 (the Act) and whether one or both of the lawyers’ names should be published in the context of the Committee’s decision.

[19]	While noting that both lawyers had been censured but those censures were beyond her jurisdiction on review, the Review Officer considered it relevant to note the significance of a censure for the purposes of considering her review. She reminded herself that a censure is likely to be of particular significance and would inevitably be taken seriously.19

[20]	The Review Officer referred to Ms M’s retirement, saying:20

[42] … A censure is a significant and serious consequence for both of the lawyers, but will have little or no practical impact on Ms [M]’s future in practice because she intends not to have one.

[21]	The Review Officer then considered the Committee’s award of $12,000 compensation, observing that:

19	New Zealand Law Society v B [2013] NZCA 156, [2013] NZAR 970.
20	M v C, above n 1.

[48]  … Without being able to properly analyse all of the relevant evidence, it is impossible to apportion compensation according to the contributions of those whose conduct or advice caused losses.

[22]	She said:

[51]	Although there were problems with the 2010 agreement, there were also problems with the way the couple had structured their affairs, and the way the shares were owned. All of those problems were manageable if the lawyers had been diligent in ascertaining how the couple have structured their affairs. Although the 2010 agreement was later said to be deficient, Ms [M]'s evidence is that Ms [C] understood exactly what she was doing when she signed the 2010 agreement and transferred property to the company.

[52]	One of them is wrong, but Ms [M] is correct in saying the existence of extrinsic evidence informs what the parties' intentions were in 2010. It is not clear exactly what Ms [M] was aware of in terms of extrinsic evidence at the time she advised on and certified the 2010 agreement. Testing of her evidence is no longer possible for medical reasons.

[53]	What is clear, however, is that by reason of deficiencies in the 2010 agreement Ms [C] suffered some loss. The difficulty, which was recognised by the Committee, is in assessing the value of the lawyers' contribution to the loss in circumstances where there is no evidence available on review from some of the others who were involved in events in 2010. As the complaint and review processes are inquisitorial, Ms [C] cannot be cross examined in the context of those processes.

[54]	In my view, the evidence is so incomplete as to make it unreliable. It is virtually impossible to quantify the amount of compensation that might properly be payable to Ms [C] without proper tested evidence.

…

[56] It is not good enough to take an educated guess. There has to be some principled basis on which to calculate contributions, particularly when lawyers are ordered to pay significant sums in compensation under the Act, albeit for amounts well within the statutory cap of $25,000.

[23]	The Review Officer then revised the order that the lawyers pay $12,000 towards Ms C’s legal costs to $1,500. She did not, however, alter the payment of
$2,000 in respect of Ms C’s inconvenience and stress on the basis:

[62] It follows from the discussion above that the lawyers could and should have done better. The failure to properly enquire and to understand and document the agreement in a way that dovetailed with the way the couple had structured their affairs left Ms [C] (and Mr [J]) with a problem to resolve when their relationship ended.

[24]	The Review Officer confirmed the fine of $3,000 imposed by the Committee, saying:

[74] … A fine of $3,000 punishes the practitioners, encourages other practitioners to act with diligence and competence in drafting and certifying relationship property agreements. A fine at that level also reflects the public's and the profession's condemnation, or opprobrium, of the practitioner's conduct in failing to ensure that the agreement reflected the structure of the couple's affairs and preserved Ms [C]'s interests.

[25]	Similarly, the costs order of $1,000 in favour of the Law Society was confirmed.

[26]	The Review Officer then turned to consider publication, noting that, having obtained approval from the Law Society, the Committee ordered publication of a summary of facts and details identifying both lawyers. The reasoning and conclusion of the Review Officer was as follows:

[78]	The decision to publish was driven at least in part by the lawyers' disciplinary histories. Mr [G]'s name has previously been published in the context of a disciplinary matter in which he accepted he was responsible for negligence. Although the facts were different, the underlying problem is the same. At the review hearing Mr [G] demonstrated an inappropriately casual approach to the drafting of a document that was intended to become legally binding on Ms [C] and Mr [J], describing the work he had done as “secretarial”. That casual approach is reflected in the factual matrix and is not acceptable in a professional person. The public should be protected. Publication of Mr [G]'s name is necessary and desirable in the public interest.

[79]	Ms [M] has not previously been identified in the context of a professional standards issue. She is no longer in practice and says she is unfit to return. Although it cannot be said with certainty that no responsibility rests with Ms [M], there is no public interest to be protected by publishing her name.

[80]	The Committee's decision that there had been unsatisfactory conduct on the lawyers' part has not been the subject of review. However, the Committee's decision to publish a summary of that decision is modified on review so that publication extends only to identifying Mr [G] within the context of a suitably drafted summary of facts. The content of the summary of facts and publication are left to NZLS.

[81]	Out of respect to Ms [M]'s present circumstances, there is no direction to publish this decision on review.

The application

[27]	Mr G challenges the Decision on two grounds:

(a)	That the Review Officer failed to take into account the following matters in modifying the Committee’s publication order to identify only Mr G:

(i)	publication of only Mr G’s name would provide an incomplete and misleading representation of the circumstances surrounding the Complaint;

(ii)	whether or not the “usual considerations” would be better met by publishing the facts without either of the lawyers’ details;

(iii)	the fact that eight years had elapsed since events the subject of the Complaint;

(iv)	the fairness of naming only one of the lawyers;

(v)	the impact publication would have on Mr G’s new practice;

(vi)	the “lack of recent evidence indicating a propensity [on the part of Mr G] to commit similar offending”; and

(vii)	the length of time Mr G has practised.

(b)	That, in accordance with natural justice and fairness, the Review Officer should have given Mr G further time to file submissions on the question of publication, given her decision not to publish Ms M’s name.

Complaints and discipline

[28]	The purposes of the Act include the maintenance of public confidence in the provision of legal services and protection of consumers of legal services.21

[29]	Part 7 of the Act provides a framework in relation to complaints about and disciplining of lawyers.	A complaint about a lawyer is referred to a Lawyers’

21	Lawyers and Conveyancers Act 2006, s 3(1)(a) and (b).

Standards Committee.22 Unless the Standards Committee decides to take no action on the complaint it may, after inquiring into the complaint and conducting a hearing,23 determine that:

(a)	the complaint be considered by the Disciplinary Tribunal;24

(b)	there has been unsatisfactory conduct;25 or

(c)	no further action will be taken.26

[30]	There is a significant difference between hearings before the Disciplinary Tribunal and those before a Standards Committee. Disciplinary Tribunal hearings must be held in public, except in certain circumstances, although the Tribunal can make orders prohibiting publication of the proceedings and the names of those involved.27 Hearings of Standards Committees and reviews by the Review Officer are to be conducted in private, the decisions not being published unless there is a determination to do so.28 This reflects the policy that the Disciplinary Tribunal deals with the more serious matters which in the public interest should be dealt with openly, whereas lesser matters are dealt with by Standards Committees and the Review Officer.29

Publication of identity

[31]	A Standards Committee has a discretionary power to direct publication of its decision, subject to the obligation to comply with natural justice and determine it is necessary to do so in the public interest.30 The Review Officer is also required to perform his or her functions and exercise his or her powers in accordance with natural justice.31

22	Section 130.
23	Section 137.
24	Section 152(2)(a).
25	Section 152(2)(b).
26	Sections 138 and 152(2)(c).
27	Sections 238(1)–(2) and 240.
28	Sections 142(2), 148(1), 206 and 206A.
29	New Zealand Law Society v B, above n 19, at [47].
30	Lawyers and Conveyancers Act 2006, ss 142(2) and 131(f).
31	Section 206(3).

[32]	Regulation 30 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (the Regulations) sets out the circumstances in which a Standards Committee may publish the identity of a person who has been censured. It is therefore the context in which to consider Mr G’s application for review.

[33]	Regulation 30 provides:

30	Publication of identity

(1)	If a Standards Committee makes a censure order pursuant to section 156(1)(b) of the Act, the Committee may, with the prior approval of the Board [of the New Zealand Law Society], direct publication of the identity of the person who is the subject of the censure order.

(2)	When deciding whether to publish the identity of a person who is the subject of a censure order, a Standards Committee and the Board must take into account the public interest and, if appropriate, the impact of publication on the interests and privacy of-

(a)	the complainant; and

(b)	clients of the censured person; and

(c)	relatives of the censured person; and

(d)	partners, employers, and associates of the censured person; and

(e)	the censured person.

[34]	Regulation 30(2) requires two broad considerations:

(a)	the public interest; and

(b)	if appropriate, the impact of publication on the interests and privacy of the complainant, clients, relatives, partners, employers, and associates of the censured person, and the censured person him or herself.

Analysis

[35]	The Review Officer modified the Committee’s determination to publish the identity of both lawyers, deciding Mr G’s name only would be published “in the context of a suitably drafted summary of facts”.32

[36]	In Mr Comrie-Thomson’s submission, for the Law Society, the decisions of both the Committee and the Review Officer clearly indicated that considerations of protection of the public were fundamental to the decision to publish Mr G’s name. There were two main reasons to distinguish his position from that of Ms M. First,  Ms M was no longer practising and that was a major consideration in the public interest evaluation. Secondly, in contrast to Ms M, Mr G has previously had his name published in the context of a disciplinary matter where he accepted he had been negligent.

[37]	In my assessment the real crux of the issue in this case is the lack of clarity surrounding the events at issue. Without that clarity, Mr G’s “culpability” cannot properly be analysed. The Review Officer recognised the problem a number of times in the Decision, noting that, while she did not have the jurisdiction to review the Committee’s decision that the lawyers demonstrated a lack of diligence and competence, she was frustrated because she could not analyse all the relevant evidence.33

[38]	The Committee described Mr G’s involvement as “minimal” but sufficient to trigger his professional obligations, including the obligation to provide appropriate advice regarding the effect of the 2010 Agreement and implications of the subsequent transfer of the Property. What was not clear, however, was the extent of Mr G’s knowledge in the context of having stepped in temporarily while Ms M was absent through illness.

[39]	The Review Officer began her discussion by noting that Mr G’s attempt to attribute all responsibility to Ms M was misplaced. He was involved to some extent

32	M v C, above n 1, at [80].
33	At [19], [54] and [65].

in the drafting process, which was “not manage[d] that competently or with diligence”.34 As to Ms M, she was left to provide advice on the effect and implications of the Agreement, which did not dovetail with how the couple had structured their affairs and she did not protect Ms C’s separate property interests.35 The Review Officer considered that Mr G demonstrated at the review hearing an inappropriately casual approach to the drafting of the document, and said that casual approach was reflected in the facts and was not acceptable. On that basis, she decided the public required protection, and publication of Mr G’s name was necessary and desirable.36

[40]	She then, in addressing Ms M, observed that it could not be said with certainty that “no responsibility” rested with her.37 The implication of that statement is that it was Ms M who had minimal involvement in the events which led to the Complaint. That statement does not reflect the Committee’s finding that it was Mr G whose involvement was minimal.

[41]	The Review Officer was, however, bound by the Committee decision on liability as that decision was not under review. With that as the backdrop and with no succinct analysis of findings of fact or what each of the lawyers knew or should have done but did not do, the Review Officer was in a difficult position. An understanding of the nature of a lawyer’s unsatisfactory conduct and culpability is fundamental (and therefore clearly relevant) to a decision on publicity.

[42]	The Review Officer then concluded that Mr G’s name only should be published, together with “a suitably drafted summary of facts” which she left to the Law Society.38

[43]	That, in my assessment, places the cart before the horse. In order to be satisfied that publication of Mr G’s name was warranted in accordance with the mandatory considerations of reg 30,39 the relevant summary should have first been provided. The

34	At [36].
35	At [36].
36	At [78].
37	At [79].
38	At [80].
39	Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008.

benefit of that would be two-fold. First, it would clarify exactly where Mr G’s culpability lay once that of Ms M was removed and, secondly, it would enable the reg 30 considerations to be considered in proper context.

[44]	This is closely aligned with Mr G’s complaint that, having decided Ms M’s name was not to be published, in accordance with natural justice the Review Officer should have invited further submissions from Mr G. Mr Comrie-Thomson has accessed the transcript of the hearing before the Review Officer. He confirmed there was no indication at the hearing that Mr G’s name might be published but Ms M’s might not.

[45]	A further issue is the fact the Review Officer reduced the compensation payable to Ms C. Whether and to what extent that is relevant to an assessment of culpability in the context of a decision on publication should also have been addressed and submissions invited in that regard.

[46]	The way in which the Review Officer dealt with the respective failings of the two lawyers before deciding that Ms M’s name should not be published, but Mr G’s should, was in error. The error can be viewed as a failure to take account of relevant considerations in respect of Mr G’s culpability, and a failure of natural justice.

[47]	A related issue was the potential for Ms M’s name to be identified if Mr G’s name were published. Regulation 30 requires the Review Officer, in modifying the Committee’s determination, to take account of the impact of publication on the interests and privacy of other persons, including “partners, employees and associates of the censured person”.40 Given the length of Mr G and Ms M’s partnership, the prospect of Ms M’s name being identified through the summary of facts must be a real possibility. That being the case, the Review Officer would need to consider whether having Ms M’s name identified in such circumstances would outweigh the public interest in publication of Mr G’s name.

[48]	Mr Comrie-Thomson helpfully provided an example of how the summary of facts could be drafted, identifying Mr G and his role but minimising the risk that Ms M

40	Regulation 30(2)(d).

would be identified. I acknowledge that the wording proposed by him was simply intended as an example and was not to be taken as a proposal from the Law Society. What it did, however, demonstrate was, when Ms M’s involvement was removed and Mr G’s “minimal” role described in accordance with the Committee’s decision, the decision to publish Mr G’s name in the public interest would seem at best to be a very finely balanced one. This comment is not intended to direct the Review Officer to a decision but it does perhaps emphasise that it was the combination of the roles within the partnership which must have contributed to the decision that both partners should be censured.

[49]	For the sake of completeness, I agree with Mr Comrie-Thomson’s submission that Mr G’s complaints to the effect the Review Officer failed to take account of the age of the Complaint, the “lack of recent evidence indicating a propensity to commit similar offending” and the length of time Mr G had been practising were matters Mr G had the opportunity to raise in submissions to, and hearing before, the Review Officer. The same applies to submissions concerning Mr G’s new practice, the type of law in which it specialises and whether Mr G had undertaken at his own behest any steps to ensure that there is no repeat of the type of behaviour which resulted in the censure.

[50]	For these reasons, I agree that there has been an error of law which may well have altered the ultimate decision by failing to take into account relevant matters in deciding to modify the Committee’s publication order and by failing to give Mr G the opportunity to make submissions on the impact of publication of his name only.

[51]	As recognised by the Court of Appeal, the effect of publication is likely to be considered a significant, if not the significant element of the penalty imposed, particularly if the lawyer will continue in practice.41 I am satisfied, therefore, it is appropriate to exercise my discretion and grant the application.

Result

[52]	For the reasons given, the application for judicial review is granted. The part of the decision dealing with publication of Mr G’s name is quashed and the matter is

41	New Zealand Law Society v B, above n 19, at [54].

remitted back to the Review Officer for reconsideration to take place after further submissions are requested from Mr G.

[53]	My provisional view is that Mr G is entitled to costs.	Counsel may file memoranda if the issue cannot be agreed.

[54]	I make an order prohibiting publication of the name or identifying particulars of the applicant.

Thomas J

Solicitors:
Iorns Legal, Porirua for Applicant
Crown Law, Wellington for Respondent Meredith Connell, Auckland for Intervenor