In Re Complaint Against Morley [2010] CKCA 5; CA 10 2008 (19 July 2010)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

CA No. 10/08

IN THE MATTER of the Law Practitioners Act 1995-96

AND

IN THE MATTER of a complaint against Brett William Morley by Parau Tupangaia

AND

IN THE MATTER of a ruling by Williams CJ dated 15 December 2008

Coram: Barker, P
Fisher, JA
Paterson,JA

Hearing: 19 July 2010 (at Auckland)
Decision: 19 July 2010

Counsel: A R Galbraith, QC (of the New Zealand Bar) for the Appellant
R A Edwards as Amicus Curiae

REASONS FOR JUDGMENT OF THE COURT
Dated 20^th September 2010

Solicitors: Browne Harvey & Associates, Rarotonga for Appellant

1. Mr Morley appealed against a ruling of Williams CJ given on 15 December 2008. The Court at that hearing allowed the appeal and now gives its reasons for doing so.

2. The ruling given by the Chief Justice was on a complaint pursuant to Section 4 of the Law Practitioners Act 1995-96 (the Act) made by Mr Tupangaia against Mr Morley.

3. The Chief Justice did not uphold the more serious allegations made by Mr Tupangaia but found that the failure of Mr Morley to serve a memorandum on the solicitor acting for Mr Tupangaia's mother in High Court proceedings amounted to misconduct.

4. The Chief Justice in his ruling censured Mr Morley, directed he provide a formal apology to Mr Tupangaia and his solicitor, that a copy of the ruling be supplied to Grice J, the Registrar and the President of the Cook Islands Law Society and that the ruling be circulated by the President of the Cook Islands Law Society to all members of the Cook Islands Law Society.

The Facts

5. Taakoka Island Villas Limited (TIV), a company which had been in litigation with Mrs Tupangaia was, on 27 May 2006, struck off the Register of Companies in the Cook Islands. TIV applied for reinstatement and Mr Morley appeared before Grice J on 28 May 2008 in support of this application.

6. On 15 November 2007, Mrs Tupangaia was, on the application,of TIV, adjudicated bankrupt by the High Court of New Zealand.

7. In July 2008, Mrs Tupangaia applied to have her bankruptcy annulled on the ground that on 15 November 2007, TIV did not exist and had no standing. A hearing of this application was scheduled in the Napier High Court on 24 July 2008.

8. Grice J's decision on the application to reinstate was issued by the Registrar of this Court at 7.30am on 24 July 2008 (New Zealand time), two hours before the annulment proceeding was due to be heard in the Napier Court.

9. On 9 July 2008, Mr Morley forwarded to the Registrar of this Court a memorandum addressed to Grice J. It advised Her Honour that there were other proceedings which involved TIV and Mrs Tupangaia which could not be appropriately addressed or advanced until her decision was available. The memorandum referred to the application by Mrs Tupangaia to annul her bankruptcy and stated it had a first call in the Napier High Court on 24 July 2008. The memorandum concluded with the following:

Accordingly counsel respectfully enquires whether there is any prospect that the Court's judgment in this matter may be available before 24 July 2006.

10. Mr Morley did not serve a copy of the memorandum on the counsel for Mrs Tupangaia who had opposed the application for reinstatement of TIV.

11. On 22 July 2008, Mr Morley filed in the Napier High Court a notice of opposition to Mrs Tupangaia's annulment application with supporting affidavit. He served a copy of this memorandum on Mr Tupangaia who had been given leave to appear on behalf of his mother. The affidavit filed in support of the notice of opposition advised that Grice J's decision should be available prior to the hearing of the annulment application.

12. Before Mr Morley knew of the complaint against him he had filed and served on Mr Tupangaia in the New Zealand High Court a memorandum which referred to the availability and timing of Grice J's decision. He attached to that memorandum a copy of his memorandum of 9 July 2008 to the Registrar of this Court.

The Ruling

13. In his ruling the Chief Justice found that there was nothing improper in the filing of the memorandum of 9 July 2008 or its contents and accepted that the failure to serve it at once on opposing counsel was an oversight and not deliberate. He described the omission as:

a regrettable, unfortunate, and negligent oversight because it took his opponent in the Napier Court by surprise and it also raised valid suspicions and concerns on the part of Mrs Tupangaia and her son. That there arose the perception of bias is understandable.

14. The Chief Justice considered the test to be applied and adopted a test from the New Zealand case of the Complaints Committee of the Canterbury District Law Society v W: [2008] NZHC 1596; [2009] 1 NZLR 514 (the Canterbury case). Applying that case the Chief Justice considered whether Mr Morley's conduct fell below what is to be expected of the legal profession and whether the public would think less of the profession if the particular conduct was viewed as acceptable.

15. The Chief Justice noted the principle of open justice as being a fundamental element of the judicial system. This requires that all parties be treated equally and no party be entitled to communicate unilaterally or privately to a Judge or other judicial officer. He noted that the Registrar and Court staff were entitled to work on the assumption that counsel and solicitors always followed this rule. A related point was the highly desirable and well-established practice that when a memorandum is filed by a practitioner, the accompanying letter to the Court should confirm, except in ex parte applications that the memorandum has been or will be served on opposing counsel.

16. Having determined that there was misconduct, the Chief Justice imposed the censure and the other conditions referred to earlier in these reasons.

Discussion

17. An unusual factor in an appeal under Part III of the Act is that there is no provision for a respondent. In similar cases in other jurisdictions a charge is brought by a Law Society or a committee of it. In the Cook Islands a complaint is made to the Chief Justice who investigates, determines the complaint, and if upheld imposes the sanction. This Court on an appeal does not receive the benefit of submissions and assistance from a counsel seeking to uphold the decision made. The Court recommends that the Government give this matter consideration and either by amendment or otherwise institutes provisions under which there is provision for a respondent in such appeals so that the Court can be assisted by legal submissions on any appeal.

18. This Court is grateful to Ms Edwards, who at short notice and without assurance of remuneration, accepted the Court's invitation to act as amicus curiae. The submissions given by her as well as those by Mr Galbraith QC for the appellant were of considerable assistance. The Government is recommended to make provision by legislation for the remuneration of an amicus appointed by the Court to assist it, as happened here.

19. Under section 21 of the Act, the appeal is not by way of rehearing and only lies on questions of law. This Court, even if it unanimously takes a different view from the Chief Justice, can only uphold the appeal if there has been an error of law.

20. Although the ruling referred to section 15(2)(d) of the Act, the Court, as do both counsel take the view, that this was an error and the Chief Justice made his ruling under section 15(2)(c) of the Act. That subsection gives the Chief Justice jurisdiction to uphold a complaint if there has been negligence "of such a degree ... to reflect on his fitness to practise as a barrister and solicitor ..., as will tend to bring the profession into disrepute" (provisions of the subsection not relevant to this appeal have been omitted).

21. Although the Chief Justice in his ruling made a finding that Mr Morley's conduct amounted to misconduct, the Court accepts as submitted by Ms Edwards that the term "misconduct" was not used in the sense it is used in section 15(2)(a) of the Act. (A complaint may be made about misconduct under section 15(2)(a).) The New Zealand authorities, which the Court accepts on this point, make it clear that the type of misconduct referred to in section 15(2)(a) must be of sufficient gravity to be termed "reprehensible" or "inexcusable" or "disgraceful" or "deplorable" or "dishonourable". An oversight cannot fall within any of these epithets.

22. The difficulty with section 15(2)(c) is that unlike the New Zealand equivalent Act which presumably formed the basis of the Cook Islands Act, the phrase "as will tend to bring the profession into disrepute" commences with "as" and not "or". Counsel differed as to whether "as" should be read as "or" or "and". If "and" is a correct interpretation the appeal must be upheld. Mr Morley's actions do not reflect on his fitness to practise. 'The Court however accepts Ms Edwards' submissions that the correct interpretation is "or" and that there is a drafting error. This interpretation is consistent with the objects of the Act (to regulate the legal profession) as it gives the Chief Justice a wider scope to intervene in circumstances where either one of the requirements in subsection (c) has been met. The interpretation also gives full meaning and effect to the words "as tends to bring the profession into disrepute".

23. It is clear from the Canterbury case that in considering the correct test, the relevant Tribunal, in this case the Chief Justice, must have regard to the circumstances of the case. Applying the qualification that the action must tend to bring the profession into disrepute, the Tribunal is required to put itself in the place of the reasonable public aware of all the circumstances.

24. In his ruling the Chief Justice did not deal with public perception although he did cite the correct test. The facts upon which he made his findings were that the Registrar and staff were entitled to work on the assumption that counsel and solicitors always copy relevant memorandum to the other counsel. If counsel when forwarding a memorandum to the Court make no comment on service, it is to be assumed that the memorandum has been or will be served on opposing counsel. No consideration was given as to whether in the particular circumstances of this case, the reasonable public would conclude that the omission tended to bring the profession into disrepute.

25. The circumstances of this case are that, because of an oversight a Memorandum which had no bearing on either the case in which it was filed or the annulment proceeding in New Zealand was not served on opposing counsel. The fact that the memorandum had been filed was disclosed to Mr Tupangaia prior to him making his complaint. This was a one off failure with no consequences flowing. It is difficult to see that the reasonable member of the public apprised of these circumstances would consider that Mr Morley's actions tended to bring the profession into disrepute.

26. In the circumstances of this case the Court determined that the ruling should be set aside and that it was not necessary to direct that the Chief Justice reconsider the matter. On the facts before the Court, which are the same as those which were before the Chief Justice, this Court is of the view that a finding of breach of the relevant provision of the Act is unsupportable.

27. There is another factor in this case which was not raised by counsel but on which the Court may have sought further submissions if it had not come to the view that there was an error of law. Disciplinary cases in which claims of negligence are brought against a member of the legal profession almost inevitably involve allegations of negligence towards the legal practitioner's client. Negligence is based on a duty to a client. In this case, it is difficult to see that Mr Morley had any duty to Mr Tupangaia and there must be a serious question as to whether a finding based on negligence could be upheld. However, in view of the findings already made it is not necessary to take this point further.

28. For the reasons given above, the appeal was on 19 July 2010 dismissed.

Barker P

Fisher JA

Paterson JA