IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2020-404-882
[2021] NZHC 196	

UNDER	the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990 and Part 30 of the High Court Rules	
IN THE MATTER	of an application for judicial review	
BETWEEN	P
Applicant	
AND	THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY
Respondent	

Hearing:	9 February 2021	
Appearances:	R S Reed QC and J L Libbey for Applicant C P Paterson for Respondent	
Judgment:	17 February 2021	

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 17 February 2021 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:	Cook Morris Quinn, Auckland
Meredith Connell, Auckland

Counsel:	R S Reed QC, Auckland

P v THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2021] NZHC
196 [17 February 2021]

Introduction

[1]	This judgment determines an application by P to set aside or modify a claim to privilege made by the respondent (“NSC”), a standards committee established under the Lawyers and Conveyancers Act 2006 (“Act”).

[2]	P has commenced a proceeding for judicial review in respect of a determination that NSC made or purported to make on 27 May 2019 (“May determination”). The effect of the May determination was that P’s  case should be considered by the    New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“Tribunal”), also established under the Act.

[3]	In his proceeding, P seeks a declaration that the May determination was made unlawfully and is a nullity, and that what P contends is a determination that NSC made on 21 February 2019 remains operative (“February determination”). The February determination was  that P had  engaged  in  unsatisfactory  conduct  in  the  sense  of s 152(2)(b)(i) of the Act. Most practitioners would consider this a preferable outcome to a reference to the Tribunal, as provided for in the May determination.

[4]	NSC has filed an appearance in the proceeding abiding the decision of the Court. New Zealand Law Society is to appear as contradictor (“NZLS”). NSC also abides the Court’s decision on the current application but Ms Paterson, counsel for NSC and NZLS, appeared at the hearing and made very helpful submissions.

Discovery to date

[5]	By way of what counsel refer to as “informal disclosure”, NSC has provided an unsworn list of documents held in respect of its investigation regarding P. This list identifies some documents for disclosure, others as having been redacted in whole or in part to preserve confidentiality, and others as “withheld on the basis of deliberative privilege”.

[6]	Those to be disclosed have been provided to P, and some exhibited to an affidavit he swore in December 2020.

[7]	Although there is no sworn list of documents, the parties have asked the Court to proceed as if P had made an application under r 8.25, High Court Rules 2016, for an order setting aside or modifying a claim to privilege made in an affidavit of documents. I shall proceed as counsel propose but note I would prefer to be working with a sworn affidavit of documents in NSC’s control, a formal application for an order under r 8.25 which complies with the High Court Rules, and likewise a notice of opposition, if one were to be filed. Formality is the best course when discovery becomes contentious.

[8]	NSC has provided the Court with a copy of the challenged documents. Neither P nor his counsel, Ms Reed QC and Ms Libbey, have seen these but I have inspected them for the purposes of determining this application. The documents comprise minutes of meetings of NSC; emails between members of NSC and a solicitor assisting NSC (“solicitor”); drafts of a written notice of determination (referred to below); and comments on those drafts. The solicitor to whom I have referred is appointed by NSC to undertake certain delegated functions, including drafting written notices of determination.

Background

[9]	What follows is a summary of the events apparent from P’s affidavit.

[10]	In or about May 2018, NSC commenced an own motion investigation into an incident which had occurred in December 2016 between P, then a partner in a law firm, and an employee of the firm.

[11]	On 14 January 2019, the solicitor advised P, through his counsel, that the matter was set down for a hearing on the  papers, which NSC expected to conduct on        21 February 2019. The letter also stated P would be advised of the outcome by written notice of determination, which it might take some weeks to deliver.

[12]	To put what follows in context, s 152 of the Act provides that, after inquiring into a complaint or, in this case, matter, and conducting a hearing in respect of the same, a standards committee may make one or more of three possible determinations, these being that the matter be considered by the Tribunal (that is the May

determination); that there has been unsatisfactory conduct on the part of, in this case, P (that is the February determination); or that the committee take no further action with regard to the matter.

[13]	The Act then provides the procedures which apply consequent upon the determination(s) reached. If the committee makes a determination of unsatisfactory conduct, s 156 permits it to make various orders, including payment of a fine and costs.

[14]	Section 158 provides the committee must forthwith give written notice of a determination of unsatisfactory conduct, or indeed one to take no further action. Amongst other things, the notice must state the determination and the reasons for it, and specify any orders made under s 156.

[15]	As to the procedure a committee is to follow, this is to be found in the Act; the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008; and a practice note issued by the NZLS, being Practice Note Concerning the Functions and Operations of Lawyers Standards Committees.

21 February 2019

[16]	NSC met on 21 February 2019 (“February meeting”). In so far as they relate to P, the minutes of this meeting, which were approved at a meeting in March 2019, and which have been disclosed to P state:

NSC1 determined:

•	Unsatisfactory conduct pursuant to sections 12(b), 12(c) and 152(2)(b) of the Act.
•	$10,000 fine.
•	$1,500 costs.
•	Censure.
•	Anonymised publication (section 142(2) of the Act).

[17]	A note next to the entry records this as having been a unanimous decision.

[18]	P’s case is that the minutes evidence that NSC, at its February meeting, determined P had engaged in unsatisfactory conduct and, consequent upon that

determination, ordered under s 156 that he should pay a fine and costs, and be censured.

[19]	Counsel for P and the  solicitor  exchanged  a  handful  of  emails  between 19 March 2019, when counsel enquired as to when P might expect NSC’s decision, and 9 May 2019. The gist of the solicitor’s response was that NSC regretted its workload was such it had not yet been possible to deliver its written notice of determination.

[20]	On 9 May 2019, the solicitor advised P’s counsel that NSC would “be considering this matter further” at its meeting the next day, stating this was “effectively a continuation of its hearing on the papers” from its previous meeting, presumably that on 21 February 2019. Counsel objected saying that she had understood from the solicitor’s prior communications that NSC had already made its decision. The solicitor’s response was that a determination “is not formally made until written confirmation of the same ... is delivered”.

[21]	On 21 May 2019, the solicitor advised counsel that NSC would continue its hearing of the matter on 27 May 2019.

27 May 2019

[22]	NSC convened by telephone on 27 May 2019. NSC has disclosed to P the following extract from the minutes of this meeting:

NSC1 resolved not to finalise the preliminary decision made on 21 February 2019 and it approved the contents of the decision set out in the Notice of Determination circulated to members earlier today.

...

d) the communication to [P] of the written Notice Of Determination (to be issued later today, once signed by the convenor) will represent NSC1’s determination.

[23]	The same day NSC delivered the written notice of determination referred to in that subparagraph, that is notice of its determination to refer the matter to the Tribunal.

[24]	Paragraphs [15] and [16] of the notice refer to NSC’s earlier consideration of the matter as follows:

15.	The Standards Committee deliberated over the course of three meetings, held on 21 February 2019, 10 May 2019 and (by telephone conference) on 27 May 2019. At the meeting on 21 February 2019 a provisional decision was made, subject to considering and approving written reasons for that decision. At the meeting on 10 May 2019 the Standards Committee considered draft reasons for its provisional decision on 21 February 2019 and asked for alternative draft reasons to be prepared for further consideration. At its meeting on 27 May 2019, the Standards Committee resolved not to finalise the preliminary decision made on 21 February 2019 and it approved the decision set out in this Notice of Determination.

16.	The Standards Committee gave consideration as to whether what it had decided at its 21 February 2019 meeting constituted a determination within the meaning of section 152(1) of the Act or whether it was free to continue the hearing and reach a different decision, with acceptable reasoning. In doing so, it considered an email from counsel for [P] dated 9 May 2019. The Standards Committee concluded that it had not made a final determination on 21 February 2019, that the hearing had not concluded, and that it was free to continue its deliberation and reach a different decision for the following reasons:

(a)	the decision that was reached at its meeting on 21 February 2019 was intended to be provisional and subject to approval of acceptable reasons;

(b)	no written determination had been finalised by the Standards Committee and delivered to the parties;

(c)	the Standards Committee is not functus officio because it had not completed its statutory function which includes the communication of a reasoned decision; and

(d)	the communication to [P] of this written Notice of Determination will represent the Standards Committee’s determination.

(footnotes omitted)

[25]	P commenced this proceeding on 16 June 2020.

Grounds of review

[26]	P seeks judicial review of the May determination on the grounds:

(a)	NSC was functus officio for the purpose of making any determination after the February determination, subject to giving the written notice of determination required by s 158;

(b)	alternatively there was a breach of natural justice as the composition of NSC at the May meeting was different from its composition at the February meeting.

[27]	As to [26](b), Mr Hampton QC, then the convenor of NSC, was present at the meeting on 21 February 2019 but resigned sometime afterwards, and was not party to subsequent discussions. Mr Skelton QC,  the  deputy  convenor  of  NSC  prior  to Mr Hampton’s resignation, was not present at the meeting on 21 February 2019.    Mr Skelton was appointed the convenor of NSC after Mr Hampton’s resignation and was present at subsequent meetings, including on 27 May 2019. There may also have been a change to the lay members of NSC between 21 February and 27 May 2019.

[28]	At the hearing of this application, Ms Reed advised that P proposed to amend his pleading to allege additional grounds, being a failure to give P a right to be heard on whether NSC had power to revisit (hopefully a neutral word) the February determination at its 27 May meeting, and whether NSC took into account irrelevant considerations. Ms Reed advised P suspected NSC decided to revisit the February determination following criticism from members of the profession of another standards committee decision, which had determined an instance of sexual harassment to be “unsatisfactory conduct” as opposed to referring the matter to the Tribunal.

Deliberative privilege

[29]	There is no dispute about the principles to be applied so I may deal with these briefly. In a more contentious case, a closer regard to the cases footnoted might assist.1

1	Nakhla v McCarthy [1978] 1 NZLR 291 (CA); Comalco New Zealand Ltd v Broadcasting Standards Authority [1995] 3 NZLR 469 (HC); Comalco New Zealand Ltd v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA); M v L [1999] 1 NZLR 747 (CA); ENZA Ltd v Apple and Pear Export Permits Committee [2001] 3 NZLR 456 (CA); Air New Zealand Ltd v Commerce Commission [2004] 3 NZLR 550 (HC); Contact Energy Ltd v Electricity Commission HC Wellington CIV-2005-485-624, 14 July 2005; and Orlov v New Zealand Law Society (Auckland Branch) (No 5) (2011) 21 PRNZ 52 (HC).

[30]	Deliberative privilege or immunity is intended to protect the deliberative process of a decision-making body from disclosure. The rationale for the privilege is that, whilst a body’s decision and the reasons for it should not be confidential, there is a public interest in keeping private the process by which that decision is reached. There is no express provision for this privilege in the Evidence Act 2006. It may be apposite to consider its application under s 69 which concerns non-disclosure on the grounds of confidentiality but I have proceeded on the authorities to which counsel referred me.

[31]	There is also no dispute the privilege applies in the context of the deliberations of a standards committee, Heath J having determined that point in an earlier case.2 So, to give an example, in a matter such as the present, documents evidencing communications between members of a standards committee as to the appropriate determination and as to the content of the written notice of determination would be privileged or immune from production.

[32]	However, it is equally common ground that the Court may order disclosure if “special circumstances” exist, these being when there is greater public interest in a party and the Court having access to information necessary to litigate and determine a case fairly.3

[33]	Accordingly, the parties are agreed the issues I have to determine are:

(a)	whether the documents evidence the deliberative process of NSC;

(b)	if so, whether special circumstances exist in the sense to which I have referred which warrant an order for disclosure.

2	Orlov v New Zealand Law Society (Auckland Branch) (No 5), above n 1.
3	ENZA Ltd v Apple and Pear Export Permits Committee, above n 1, at [23].

Submissions

Are the documents privileged?

[34]	Ms Reed’s first submission was that documents created after 21 February 2019 could not be privileged. This is because, on P’s case, NSC having made its determination that day, any subsequent documents constituted discussions after the fact.

Discussion

[35]	I am not persuaded by this submission. With one exception, I am satisfied the documents evidence NSC’s deliberative process. It may be the trial Judge does determine NSC was functus officio in terms of making a further determination after 21 February 2019 but that does not deprive the subsequent documents of deliberative character even if, on Ms Reed’s case, those deliberations were pointless.

[36]	I have also considered Ms Reed’s submission that emails to and from the solicitor could not be privileged, he not being a member of NSC. In Contact Energy Ltd v Electricity Commission, Goddard J’s view was that a communication could only be subject to deliberative privilege if between two or more members of the deliberative body, in that case the Electricity Commission.4 I do not consider the privilege is so confined in this case. As I have said, the solicitor is the delegatee of NSC functions and, in large part, was a conduit for information or responsible for implementing the directions of another member of NSC. Accordingly, I propose to treat communications to which the solicitor was a party as covered by the privilege.

Special circumstances

[37]	Ms Reed submitted that special circumstances do exist in this case, which outweigh NSC’s right to privacy. She submitted P requires access to NSC’s file if he is to prosecute his case, as there is a paucity of relevant information before the Court.

4	Contact Energy Ltd v Electricity Commission, above n 1, at [45].

[38]	Ms Paterson disagreed. She submitted the privilege applied and was not outweighed by countervailing considerations. She submitted the additional discovery sought was unnecessary, as P is able to advance his pleaded (and quite possibly foreshadowed) grounds of review on the information that has been disclosed.

Discussion Case law
[39]	In ENZA, the Court of Appeal declined ENZA’s appeal from the High Court’s refusal to order provision of documents subject to deliberative privilege. In doing so, the Court said that “special circumstances” warranting an order for production of otherwise privileged documents would not exist if the High Court had sufficient material to enable it to reach a just determination on the issues.

[40]	The gist of the Court of Appeal’s decision was that the High Court had sufficient evidence of the reasons for the contentious decisions of the respondent committee and of the procedures that the committee had followed, and in a form sufficient to address the respects in which ENZA contended the committee’s process was flawed. In that case, three members of the committee, including the chairman, had sworn affidavits in response to ENZA’s claim. The Court of Appeal described the affidavits as a “conscientious response to the Committee’s obligation to inform the Court sufficiently to enable it to discharge its function”.5

[41]	The Court was also concerned that any record of the interaction of members of the committee would “inherently be fragmented and incomplete, and possibly also quite misleading”.6 Ultimately, the Court was satisfied the committee had put its position sufficiently before the Court to enable the issues in the proceedings to be properly addressed by the High Court, those issues being the adequacy of the committee’s reasons, rather than the “dynamics of how it got to them”.7

5	ENZA Ltd v Apple and Pear Export Permits Committee, above n 1, at [17].
6	At [19].
7	At [22].

[42]	In Air New Zealand Ltd v Commerce Commission, the plaintiffs were appealing the Commission’s refusal to authorise an acquisition. The plaintiffs sought an order that the Commission produce communications between it and experts, on the grounds the documents were required to consider their allegation of a breach of natural justice. Rodney Hansen J declined to order the Commission to produce the documents and was satisfied the information presently available sufficed to enable the plaintiffs to advance their case and for the Court to resolve the issues. The Judge went on to say:8
[33] Among the special circumstances which may warrant departure from the general rule – where a greater public interest outweighs that of deliberative privacy – are cases where the deliberative process itself is attacked. An allegation of bias is an example: ENZA at para [24] and New Zealand Vegetable Growers at p 171. But it could not be said that the natural justice ground raised in this case could justify access to evidence of the deliberative process. The commission has fully disclosed the changes it made to the model and the reasons for them. The natural justice implications of the steps it took after the conference can be fully explored on the information already available. It is the reasoning of the tribunal, not the dynamics of it, which is in issue: see ENZA at para [22].

Decision

[43]	Ms Reed submitted that she required access to the documents to advance P’s case on the existing and “to be pleaded” grounds of review. She submitted that the information presently available does not enable any assessment of the accuracy of the statements in [15] and [16] of the written notice that are quoted above. Ms Reed said that the procedural rules applying to the deliberations of a standards committee do permit of a reserved decision but the minutes of the February meeting did not indicate any reservation or conditionality. Ms Reed submitted this was also relevant to her allegation that the change in composition of the NSC over the relevant period was a breach of natural justice. Overall, Ms Reed submitted this was a case in which the dynamics of the decision-making process were in issue, thus distinguishing it from ENZA and Air New Zealand.9

[44]	Ms Paterson submitted the issue of whether NSC was functus officio in the respect alleged is a legal issue, capable of determination by reference to the relevant

8	Air New Zealand Ltd v Commerce Commission, above n 1, at [33].
9	ENZA Ltd v Apple and Pear Export Permits Committee, above n 1; and Air New Zealand Ltd v Commerce Commission, above n 1.

statutory provisions and the minutes of NSC’s 21 February 2019 meeting, and possibly also the terms of the written notice of determination.

[45]	As to the allegation that the change in the composition of NSC was a breach of natural justice, Ms Paterson submitted there is no dispute as to which members of NSC participated at the various times, and the documents sought could have no bearing on P’s arguments in that respect.

[46]	Ms Paterson’s first submission does not address Ms Reed’s point as to [15] and
[16] of the written notice of determination. That may be relevant to the Court’s assessment of P’s functus argument, that is whether a provisional decision was made as opposed to one intended to be a final determination. I also accept Ms Reed’s submission that more information in that regard might be relevant to the Court’s assessment of Ms Reed’s contention that the change in the composition of the NSC was a breach of natural justice.

[47]	Given the absence of information available on these points, and having inspected the documents in issue, I am satisfied the public interest in disclosure of a very confined group of documents exceeds the public interest in maintaining their privacy. In the first instance, pending agreement or further order of the Court, the documents are to be disclosed to P’s legal advisers only.

[48]	I accept that what I am ordering is fragmentary disclosure which may well convey an incomplete picture. Regardless, I consider the production I have ordered to be the minimum required in the interests of justice. It is a matter for NSC if it wishes to provide additional information or documents.

[49]	I set aside the privilege claimed in the following documents to the extent noted:

(a)	the NSC agenda or file note of 21 February 2019 forming part of document 67. This document is the exception I referred to in [35] above;

(b)	81A: Email from solicitor to NSC members. Disclose first paragraph, [3], and paragraph starting “On reflection”;

(c)	81B: Draft Notice of Determination. Disclose paragraphs [37] to [51] inclusive;

(d)	85C: Email from one member of NSC to others. Disclose paragraph commencing “In my view…”. Redact name of sender and recipients and all other content if wished;

(e)	85F: Email solicitor to NSC members. Disclose from “Dear All” to fourth paragraph ending “Disciplinary Tribunal”;

(f)	126: Email solicitor to NSC members. Redact first two paragraphs, disclose the rest;

(g)	149: Minutes of 10 May 2019 meeting. Disclose all content relating to P;

(h)	150: Minutes of 27 May 2019 meeting. Disclose all, but redact the final sentence up to the words “NSC1 unanimously ...”.

[50]	I reserve leave to apply.

[51]	I expect counsel will be able to resolve issues as to costs, if any, but they may file brief submissions if not.

Peters J