New Zealand Law Society - Failed to inform court of cancelled fixture

Failed to inform court of cancelled fixture

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A barrister has been censured and fined $2,500 by a lawyers standards committee after she failed to advise the District Court she was not proceeding with a pre-trial fixture.

The barrister, Chivery, also failed to attend court on the day the hearing was scheduled, which the committee found to be unsatisfactory conduct.

The committee conducted an own motion investigation of the matter after the Lawyers Complaints Service was provided with a District Court judge’s decision, where the judge made a costs award against Chivery under s 364 of the Criminal Proceedings Act 2011 following her failure.

The judge issued a minute dated the same day as the scheduled pre-trial fixture. In it she advised Chivery that she was considering making a costs award against her and inviting her to respond. Chivery did not respond, and the judge ordered her to pay $500 costs.

The committee invited Chivery to make submissions to its own-motion investigation. However, no response was received by the due date to that invitation, nor to a further invitation.

More than a month after the due date for submissions following the committee’s second invitation, Chivery provided a response.

She explained that her chambers had changed telecommunications providers and this led to a failure of her email address.

Chivery said she had sent emails to the court the day before the pre-trial fixture saying that she no longer required the fixture.

The committee noted however, that Chivery failed to provide further requested information or respond to the request for an explanation regarding her failure to engage with the committee.

The committee said it considered Chivery’s “failure to supply the email correspondence was telling. It concluded it was more likely than not that [Chivery] did not, in fact, send the correspondence in question”.

The committee also noted that the barrister did not mention when she became aware her email address was malfunctioning.

It also said it was “surprising” that Chivery did not appear to have made any attempt to contact the court to offer an apology or, at the very least, an explanation to the judge.

The committee considered that Chivery’s breaches of her professional obligations were “relatively serious”. It noted that “there is a very real need for lawyers to ensure that scarce court resources are not wasted and that the various actors in the court system are not unnecessarily inconvenienced”.

While the committee considered ordering publication of Chivery’s name, it did not do so as Chivery had not been the subject of any previous adverse disciplinary findings.

As well as the censure and fine, the committee ordered her to pay $1,500 costs.

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