New Zealand Law Society - No basis to apply 'without notice'

No basis to apply 'without notice'

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[The name used in this article is fictitious]

A barrister has been censured for filing and certifying a without notice application that was far below the threshold set by the Family Court Rules and the principles in Martin v Ryan [1990] 2 NZLR 209.

When imposing the censure, a lawyers standards committee said it found the unsatisfactory conduct to be serious.

The barrister, Browdie, filed a without notice application to remove an existing order preventing her client’s children travelling to Australia. As part of the application Browdie certified that the application and every affidavit filed with it complied with the requirements of applicable legislation and on reasonable grounds that the order being sought fell within the grounds on which an order can be made.

The application was made on the basis that the respondent (the other parent) had originally made the application preventing removal of the children from New Zealand without notice.

Browdie’s client deposed that the main reason she needed to have the order changed was to facilitate a proposed trip four months later in the year to Australia for a family celebration which she speculated might be prevented by the respondent.

The Family Court Judge who considered the application recorded in a minute that there was “no basis for this order to be applied for on a without notice basis”.

The Judge also noted there was no urgency in the application “and no proper basis to not give the respondent, who has obtained an order, an opportunity to be heard”.

The Judge directed the Family Court Registrar to forward material relating to the application to the Lawyers Complaints Service, to consider whether a disciplinary inquiry was required.

“A lawyer’s duty to the court to assist the court in its proper purpose is paramount and the court must be able to rely absolutely on a lawyer’s certification,” the standards committee said.

By signing the certification required by the Family Court Rules for this without notice application, Browdie’s conduct “fell significantly below that required of a reasonably competent lawyer”.

Browdie told the standards committee that as a result of changes to the Family Court in 2014, if an application isn’t without notice a lawyer may not act. The committee said that Browdie implied that because the ‘on-notice’ process is reasonably complex for a lay person to complete, this justifies lawyers making without notice applications with limited merit. Browdie also said that many counsel file without notice applications that may be considered borderline, and that she had been unfairly “singled out” for disciplinary sanction.

“In the committee’s view these are difficult arguments to sustain. Simply because counsel does not like the effect of the change in rules does not justify counsel failing to comply with them.

“Equally, the argument of ‘everyone else is doing it’ is not acceptable when considering counsel’s compliance with statute and rules,” the committee said.

The committee considered that the application filed by Browdie “fell far below the without notice threshold. We do not accept that this is an application that most other counsel would have made”.

The committee determined that Browdie breached her duty to the court and that was unsatisfactory conduct.

As well as imposing the censure, the standards committee ordered Browdie to pay $1,000 costs.

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