New Zealand Law Society v Burton

IN THE COURT OF APPEAL OF NEW ZEALAND

CA700/2014
[2014] NZCA 621

BETWEEN	NEW ZEALAND LAW SOCIETY Applicant
AND	SHANE PETER BURTON Respondent

Court:

Randerson, Harrison and Stevens JJ

Counsel:

Z R Johnston for Applicant
No appearance for Respondent

Judgment:

(On the papers)

17 December 2014 at 2:30 pm

JUDGMENT OF THE COURT

AThe application for an order pursuant to s 266 of the Lawyers and Conveyancers Act 2006 that the name of Shane Peter Burton be struck off the roll of barristers and solicitors is granted.
B There is no order for costs.

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REASONS OF THE COURT

(Given by Randerson J)

On 24 February 2014 the New Zealand Law Society applied under s 266 of the Lawyers and Conveyancers Act 2006 (the Act) for an order that the name of the respondent be struck off the roll of barristers and solicitors.
The grounds for the application were:
(a)The respondent had pleaded guilty to a number of charges of obtaining by deception under ss 240 and 241 of the Crimes Act 1961, being offences punishable by imprisonment.
(b)By reason of the convictions, the respondent was not a fit and proper person to remain on the roll of barristers and solicitors.
(c)The order was necessary to maintain proper standards of the legal profession, protect the administration of justice and protect the public.
(d)The professional disciplinary procedures in Part 7 of the Act were unsuitable.
By way of brief background, the respondent was admitted as a barrister and solicitor of the High Court on 11 October 2002. He last held a practising certificate in 2005. Between August 2011 and February 2012 the respondent worked as a recruitment consultant. In that capacity, he created false invoices for payments to be made into his own personal bank account rather than the company he worked for. In doing so, he fraudulently obtained a benefit of $105,776.
On 19 November 2012, the respondent was sentenced in the District Court to six months home detention and ordered to pay reparation.[1]

The decision in the High Court

[1]New Zealand Police v Burton DC Auckland, CRI-2012-085-1938, 19 November 2012.

The application came before Moore J as a formal proof. The Judge was satisfied that:[2]
(a)The respondent had received notice of the application.
(b)The disciplinary procedures available in Part 7 of the Act were not available because the respondent did not hold a current practising certificate as a barrister and solicitor at the time of the relevant conduct.
(c)Given the gravity of the offending and gross breach of trust involved, it was appropriate to make an order striking the respondent’s name off the roll.

Process

[2]The New Zealand Law Society v Burton [2014] NZHC 2737.

Where the High Court is of the opinion that an application to strike off ought to be granted, the case must be reserved for the consideration of this Court in terms of s 267(1)(b) of the Act. Accordingly, the High Court made an order in terms of that provision on 4 November 2014. All the relevant materials from the High Court have been sent to this Court as required by s 267(2) of the Act.
In such a case, this Court must, as soon as practicable, consider the application and grant or dismiss it in terms of s 267(3) of the Act. The respondent has informed the Registrar of this Court by email of 5 December 2014 that he is content for the application to be determined on the papers and will not be contesting the application. The applicant similarly agrees that the matter may be determined on the papers.

Decision

We have considered the application and the supporting affidavit. We agree with the Judge, for the reasons he gave, that it is appropriate to make an order striking off the respondent’s name from the roll of barristers and solicitors. We order accordingly.
We make no order as to costs, noting that an order for costs was made in favour of the applicant in the High Court.

Solicitors:
Meredith Connell, Auckland for Applicant

The Court of Appeal of New Zealand heard an application by the New Zealand Law Society to have Shane Peter Burton’s name struck off the roll of barristers and solicitors. The application was made under s 266 of the Lawyers and Conveyancers Act 2006, with the applicant arguing that Burton was not a fit and proper person to remain on the roll due to his criminal convictions. Burton had been admitted as a barrister and solicitor in 2002 and had ceased to hold a practising certificate in 2005. He had subsequently engaged in fraudulent activities while working as a recruitment consultant, for which he was sentenced in 2012. The New Zealand Law Society argued that Burton's conduct demonstrated a gross breach of trust and that striking him off the roll was necessary to maintain proper standards within the legal profession.

The court had to determine whether the New Zealand Law Society’s application should be granted and if Burton’s name should be removed from the roll of barristers and solicitors. The key issues included the appropriateness of Burton's disciplinary procedures under the Act, given that he did not hold a current practising certificate at the time of the relevant conduct, and the necessity of striking off his name to protect the administration of justice and the public. The court also considered the gravity of Burton's criminal offences and their implications for his professional conduct.

The Court of Appeal concluded that the High Court was correct in its decision to grant the application. The judges agreed that Burton’s criminal conduct, particularly the significant breach of trust involved, warranted his removal from the roll of barristers and solicitors. The court noted that the disciplinary procedures under Part 7 of the Act were not applicable because Burton did not hold a practising certificate at the time of his offending. Consequently, the Court of Appeal upheld the decision to strike Burton’s name from the roll, emphasising the importance of maintaining professional standards and protecting the public. The Court made no order for costs, as a similar order had already been made in the High Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established