Whiteboard for 8 May 2008
Recent cases
Law practitioners
Professional misconduct – respondent barrister was brought before New Zealand Practitioners Disciplinary Tribunal on charges of professional misconduct, arising out of the issue by him of two separate solicitor’s certificates to Westpac Banking Corporation – on both occasions respondent certified it was in order for Banks to make loans in respect of conveyancing transactions – respondent charged with: - (a) misconduct in his professional capacity on grounds that, by signing certificates, he had breached s56(2) Law Practitioners Act 1982 (the Act) by acting as a solicitor when he did not hold a practising certificate as a solicitor, or as a barrister and solicitor; - (b) misleading the bank by reason of statements made in certificates; - (c) failing to honour undertakings he gave in certificates
Tribunal found that, whilst respondent had breached s56(2) and, whilst his conduct was unacceptable, he had not engaged in intentional wrongdoing so as to amount to professional misconduct - submission for appellant that Tribunal erred in adopting test for misconduct in a professional capacity articulated in ADLS v Atkinson; that professional misconduct required default to be of sufficient gravity to be termed "reprehensible" (or "inexcusable", "disgraceful" or "deplorable" or "dishonourable") or for default to arise from negligence which was either reprehensible or of such a degree, or so frequent, as to reflect on fitness to practise – expression "misconduct" in a professional capacity s112(1)(a) of the Act, considered - whether Tribunal erred in finding conduct did not amount to professional misconduct
HELD: test adopted in Atkinson incorrectly described as "professional misconduct", conduct which was properly charged under s112(1)(c) of the Act as negligent to such as degree "as to reflect on his fitness to practise" – further, expressions such as "disgraceful", "dishonourable", "inexcusable" and "reprehensible", whilst describing the seriousness of misconduct, revealed little of the type of conduct intended to be caught by s112(1)(a) - Tribunal had also erred in directing itself that intentional wrongdoing was an essential element of a charge under s112(1)(a) – a range of conduct might amount to professional misconduct, from actual dishonesty through to serious negligence of a type that evidenced an indifference to, and an abuse of, privileges which accompanied registration as a legal practitioner
Looking at evidence, respondent knew bank required a solicitor's certificate, and it was for that reason he did not amend certificate to accurately reflect his role in transaction and his practising status – conduct established respondent purported to act as a solicitor when he was not the holder of a solicitor's practising certificate – this was so even if highest standard of proof beyond reasonable doubt was required, which was doubted - civil standard was apposite given purpose of disciplinary proceedings – respondent's conduct was intentional; not the result of a rushed mistake nor the result of a belief that, as a barrister, he was entitled to issue solicitor's certificates – conduct fell well below required standard of professional conduct for a legal practitioner and amounted to misconduct in a professional capacity – representations made in certificates created misleading impression respondent was personally, or by his staff, undertaking all necessary steps and inquiries to protect Bank's interest as mortgagee – this was not the case - required steps were taken by Cullen Conveyancing, who did not act under the control or at the direction of respondent - conduct in making various misleading statements in certificates was such a significant departure from acceptable standards of conduct for legal practitioners as to amount to misconduct in a professional capacity – appeal allowed – matter referred back to Tribunal for imposition of penalty
Auckland District Law Society v C (HC, Auckland, CIV 2007-404-4646, 29 April 2008, Randerson, Williams, Winkelmann JJ)
From the Times
Real estate agents
A case involving real estate agents and commission. It was held that to be entitled to a commission under a sole agency agreement the agent must have introduced the client to the eventual purchaser.
Foxtons Ltd v Bicknell [2008] EWCA Civ 419
Public law
The government issued guidance to National Health Service trusts which provided that the NHS should only offer training positions in hospitals to international graduates if there were no suitable applicants in the resident labour market. This had the effect of preventing overseas trainee doctors from being offered postgraduate training places in hospitals. This was held to be unlawful.
R (BAPIO Action Ltd & Anor) v Secretary of State for the Home Department [2008] UKHL 27
Notices & notes
Final sitting for His Honour Judge McElrea
There will be a special sitting to mark the retirement of His Honour Judge McElrea.
Courtroom No. 7, Auckland District Court on Thursday 29 May 2008 at 4:00 pm.
All practitioners welcome.
Service for Norman Shieff
A memorial service will be held for the late Norman Shieff at Chancery Chambers on Sunday, June 1, 2008, commencing at 2.30 pm. All practitioners and members of the judiciary are invited to attend.
In 1989, Mr Shieff, who died last month aged 87, was instrumental in negotiating for ADLS the purchase of the landmark building which the society now occupies. One of the meeting rooms in Chancery Chambers is named after Mr Shieff in recognition of his significant contribution to ADLS.
For catering purposes, please advise of your intention to attend the memorial service to Eileen Yee.
Twenty years on from the Cartwright Report
Key figures involved in the cervical cancer inquiry will speak at a forthcoming conference marking the twentieth anniversary of the Cartwright Report. The one-day conference, "Twenty years after the Cartwright Report: What have we learned?", will be hosted by the Faculty of Law at The University of Auckland and held at the Hyatt Regency on 29 August.
Responses to the Coroner's recommendations on the June 2003 Air Adventures crash
At the Minister of Transport’s request, the Auditor General has looked at how the Civil Aviation Authority and the Ministry of Transport considered, responded to, and reported on each of the Coroner’s recommendations about the 2003 Air Adventures crash in Christchurch.
New international human rights treaty comes into being
The United Nations Convention on the Rights of Disabled Persons became part of international law on 3 May 2008.
US-NZ Double Tax Agreement to be updated
The 25-year old double tax agreement between the United States and New Zealand is to be updated.
Identity Conference : Do you know who I am?
The Privacy Commissioner's keynote address at the Identity Conference 2008 held on 29-30 April in Wellington. .
Mt Eden Prison replacement project
Funding for the replacement of Mt Eden Prison has been approved..
Bell Gully competition specialists author pharmaceutical sector review
Bell Gully has authored the New Zealand chapter in a publication which looks at antitrust laws and regulations in the pharmaceutical industry across 29 jurisdictions worldwide.
Bell Gully property update
Changes brought about by an overhaul of property law have prompted reform and readjustment in New Zealand’s property sector.
Buddle Findlay legal update on commercial law
Buddle Findlay’s commercial lawyers have produced this legal update on commercial law developments. It is intended to be a short summary of significant or interesting developments combined with practical tips.
RAMs annual recruitment evening
The RAMs (Recently Admitted Members) annual recruitment evening sponsored by the legal profession’s leading recruiting agencies will be held on Wednesday, May 14, commencing at 5.30 pm at
Seba bar on Fort Street. Representatives of the sponsoring agencies who will be attending include Law Staff, Hays Legal, Hughes-Castell, Dolman, Mahlab, Momentum, McKenzie Ellis and Legal Personnel. Those recently admitted members who wish to attend are asked to RSVP to Eileen Yee.
1st New Zealand Bar Association International Conference
The 2008 New Zealand Bar Association Annual Conference will be held in Sydney this year, the weekend of Friday 15 and Saturday 16 August 2008. The Bar Association plans an exciting programme with input from the New South Wales Bar Association. The theme of the conference is A Global Approach to Law – Life as a Barrister in the 21st century.
Legal Research Foundation AGM and dinner
The Legal Research Foundation invites you to attend its Annual General Meeting on Wednesday 21 May 2008 at 5:30pm, Old Government House. Princes St and to hear Dr John Burrows speak on the topic "40 years as a legal academic - some reflections". This will be followed by dinner at O'Sarracino, 3 Mt Eden Rd, Eden Terrace at 7.00pm for 7.30pm.
Postgraduate week 12-16 May
Meet with the law postgraduate team and members of the faculty to find out about further study in law - Masters of Law, Master of Environmental Legal Studies, PhD
Thursday 15 May 2008, 5-7pm at the Law School, Leval 3, 1-11 Short St, Auckland. For more information contact Francoise Godet, tel. 09 373 7599 ext 82123.
President's breakfast
The President of the Auckland District Law Society invites members to hear from leading regulators and policy influencers of New Zealand. The breakfast sessions are aimed at delivering up to the minute legal and business information to lawyers practising in a range of disciplines.
Dates & speakers:
Wednesday 14 May - Phil O'Reilly, CEO, Business NZ
Wednesday 4 June - Bob Russell, CEO and Commissioner, Inland Revenue.
In the news...
Houlahan, Mike. "War against billion-dollar P trade being lost, says King". New Zealand herald, 1 May 2008, page A1.
Internet sites
PLoL: Public Library of Law
The Public Library of Law (PLoL), sponsored by FastCase, provides free online access to extensive primary sources of U.S. law. The searchable case law database includes all U.S. Supreme Court opinions, federal circuit court opinions from 1950 to the present, and state supreme and appellate court cases from 1997 to the present. When researching case law, PLoL allows advanced Boolean searching, narrowing by jurisdiction, and exact citation or docket number look up. Free registration is required to view judicial opinions. Also available are state and federal statutes and constitutions, state and federal court rules, federal regulations, and select state regulations. These resources are fed into the PLoL website from their most authoritative free online location. This allows users to research multiple jurisdictions without navigating to each state’s individual website. To assist users, PLoL offers two quick video tutorials on finding cases and statutes, as well as a general user guide. PLoL is a great new open access resource to help people research the law for free.
(From InSITE, 5 May 2008, © 2008 Cornell Law Library)
Chancery Bar Association
The Chancery Bar Association has a new web site. The Chancery Bar Association represents the interests of over 1,000 barristers handling the full breadth of chancery work, in London and throughout England and Wales. The site is light and bright and informative. It gives the history of Chancery work and describes the sort of work involved. It lists all Chambers with members of the Chancery Bar Association and provides news and updates; it also has a good set of legal links.
(From New on the Legal Internet, maintained by Delia Venables)
This Whiteboard update was provided by the ADLS Library & Research Centre
See the left menu for links to more Whiteboard updates.