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Lawyers Complaints Service: Leave to appeal strike off dismissed

10 October 2014

The Court of Appeal has dismissed Therese Anne Sisson’s application for special leave to appeal her strike off in [2014] NZCA 424. The New Zealand Lawyers and Conveyancers Disciplinary Tribunal ordered on 24 November 2011 that Ms Sisson be struck off in [2014] NZLCDT 35.

Her appeal to the High Court was dismissed on 28 February 2013 and her application for leave to appeal to the Court of Appeal was dismissed by a Full Court of the High Court on 20 February 2014.

Ms Sisson then sought leave from the Court of Appeal under s 254 of the Lawyers and Conveyancers Act 2006, which provides for an appeal to the Court of Appeal on a question of law.

“We are not persuaded that the applicant has raised any question of law and certainly not one that, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision,” Justices O’Regan, Randerson and Harrison said in their judgment.

“The nature of the [Lawyers and Conveyancers Disciplinary] Tribunal’s jurisdiction and the standard of proof required to find charges proved are well settled.

“Once charges are proved, the Tribunal has a discretion to decide penalty and is required to weigh all relevant factors in the light of the well-understood purposes of disciplinary proceedings including the public interest in the protection of the public,” the Court said.

“There is nothing to suggest that any of the issues raised, even if treated as questions of law, has any reasonable prospect of success. In particular:

a. Neither the Tribunal nor the High Court misconstrued the test for fitness to practise and did not limit their considerations to focusing on the particular matter charged.

b. There was a clear link established between the conduct complained of and the protection of the public, particularly taking into account the previous finding of misconduct.

c. It was plainly open to the High Court and the Tribunal to conclude that the applicant’s conduct was sufficiently serious to warrant striking off. In reaching their conclusion, neither the High Court nor the Tribunal limited their consideration to the conduct in question but took into account a full range of factors, both positive and negative.

d. The High Court and the Tribunal were entitled to take into account the applicant’s previous misconduct although we agree that the High Court was right to limit its consideration to the established charge of misconduct in 2008. We also agree that the applicant’s conduct during the disciplinary process was appropriately weighed since it reflected on the ability of the applicant to conduct herself in future in conformity with her legal and ethical obligations as a practitioner.

e. We are unable to discern any breach of natural justice. This complaint was not clearly articulated by the applicant but we understand it relates to membership of the Tribunal or Standards Committee by a practitioner who had been involved in the Inland Revenue litigation. This issue has been raised in other proceedings but, as we understand it, the practitioner in question was not a member of the Tribunal in relation to the matters at issue in this application and there does not appear to be any arguable case of a breach of natural justice.

f. The applicant’s personal difficulties that post-dated the conduct in question were clearly relevant to her ongoing fitness to practise and were properly taken into account. The Tribunal and the High Court were entitled to look both forward and back in assessing penalty.

g. There is nothing to suggest that the High Court or the Tribunal did not appropriately deal with any factors beyond the applicant’s control. It is evident from the findings both in the High Court and the Tribunal that the focus of the misconduct was on the applicant’s deliberate actions in obtaining a fee as a private retainer when she well knew she was not entitled to do so and her subsequent attempts to explain her conduct by false or misleading evidence at the Tribunal. It is difficult to see how these factors could have been materially influenced by matters beyond the applicant’s control or that they might have been treated less seriously in consequence.

Last updated on the 17th March 2016