Tennet v Wellington Standards Committee 2

[2023] NZHC 2500

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-308

[2023] NZHC 2500

UNDER

Part 7 of the Lawyers and Conveyancers Act 2006

IN THE MATTER

of an appeal against a decision of the New Zealand Lawyers and Conveyancers

Disciplinary Tribunal

BETWEEN

CHRISTOPHER JAMES TENNET

Appellant

AND

WELLINGTON STANDARDS COMMITTEE 2

Respondent

Hearing:

21 August 2023

Appearances:

W C Pyke for Appellant

M Mortimer-Wang for Respondent

Judgment:

6 September 2023

JUDGMENT OF McQUEEN J

[1] On 26 October 2022, Mr Tennet (the appellant), was found guilty by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) under the Lawyers and Conveyancers Act 2006 (the Act) of a charge of misconduct alleging wilful or reckless breach of relevant rules (the liability decision).1

[2]    On 17 May 2023, the Tribunal ordered that Mr Tennet be suspended from practice as a barrister or as a solicitor for twelve months commencing at 6:00 pm on

1      Wellington Standards Committee 2 v Tennet [2022] NZLCDT 37 [Liability Decision].

TENNET v WELLINGTON STANDARDS COMMITTEE 2 [2023] NZHC 2500 [6 September 2023]

22 June 2023, pursuant to ss 242(1)(e) and 244 of the Act (the penalty decision).2 The Tribunal also ordered  a period of supervision upon his return to practice, and that  Mr Tennet was to:

(a)attend courses on ethics, professional behaviour and self-management;

(b)undergo counselling;

(c)pay costs to the Wellington Standards Committee 2 (the Standards Committee) of $40,798.40; and

(d)pay costs to the New Zealand Law Society for the Tribunal’s costs of

$12,182.

[3]    Mr Tennet appeals against the Tribunal’s penalty decision and the determination that he pay costs, saying that he should not have been suspended at all. He accepts the Tribunal’s liability findings. Mr Tennet sought a stay of the penalty decision pending this appeal. That application was granted by Ellis J on 21 July 2023 (the stay judgment).3

[4]    Broadly, Mr Tennet alleges that the Tribunal imposed an excessive and disproportionate penalty, inconsistent with other cases. Mr Tennet says that the Tribunal failed to have regard to the fact that he had no previous misconduct findings against him, that it was an isolated incident, and that he has a long history of service to the profession and public. Mr Tennet also says the costs order was unreasonable and his inability to pay should have been taken into account.

[5]    The Standards Committee opposes Mr Tennet’s appeal. The Standards Committee says that in the circumstances a twelve month suspension is the least restrictive outcome available, and that the Tribunal did not err. It submits that the appeal should be dismissed, and the orders for costs upheld.

2      Wellington Standards Committee 2 v Tennet [2023] NZLCDT 20 [Penalty Decision].

3      Tennet v Wellington Standards Committee 2 [2023] NZHC 1932 [Stay Judgment].

[6]    For the reasons below, I consider that the appeal should be allowed and that the period of suspension should be reduced to nine months. I uphold the orders for costs.

Factual Background

The charge

[7]    Mr Tennet was charged with misconduct under the Act in relation to his actions in respect of a client called ‘M’, with alternatives of negligent and unsatisfactory conduct. Mr Tennet represented M in criminal proceedings. On 24 April 2017, following a sentencing indication, the court ordered that an alcohol and drug assessment be undertaken (the report), for the purpose of informing the ultimate sentencing decision. Mr Tennet, expressing the view that he could achieve a more lenient sentence than that indicated, persuaded M to obtain a private assessment rather than the routine, free assessment. The charge faced by Mr Tennet arises from subsequent matters relating to the report.

1. By the time the charge was before the Tribunal, it was alleged that Mr Tennet:

(a)falsely inflated the cost of the resulting report at $3,450 instead of

$1,200;

(b)destroyed a copy of that report, and failed to inform M’s new lawyer or the court that the report was completed; and

(c)filed a memorandum with the court on 15 August 2017 that was misleading as to whether the report had been completed.

The liability decision

[9]    The Tribunal first set out the circumstances relating to M. M was the partner of a “prominent criminal” for whom Mr Tennet acted, and who indicated to Mr Tennet that he would pay M’s legal expenses. M was pregnant when Mr Tennet first took instructions. She had an extensive list of convictions and her personal background included prostitution, illicit substance use, excessive alcohol use, violent associates,

chaotic social circumstances, and financial dependence on her partner, who allegedly assaulted her while Mr Tennet was retained. The Tribunal considered that M was a vulnerable person.4

[10]   There were difficulties in obtaining the report, as M did not attend the first appointment, then on the second appointment, did not pay the report writer (referred to in the decision as “Ms G”) as Mr Tennet had told Ms G that she would, being a fee of $1,200, agreed by Mr Tennet. Ms G sought further information from Mr Tennet that he was unable to supply.

[11]   On 15 August 2017, following the alleged  assault  on  M  by  her  partner, Mr Tennet filed a memorandum with the court seeking leave to withdraw, on the basis that he was conflicted. On 16 August 2017, Mr Tennet sent M an invoice with a charge of $3,450 for the report. M was subsequently assigned new counsel, who obtained a new alcohol and drug report.

[12]   Mr Tennet admitted the aspect of the charge relating to the false invoice at the standard of unsatisfactory conduct before the Tribunal, but disputed that it amounted to misconduct.5 Mr Tennet suggested that he had  been misled by the fact  that the  Ms G’s employer generally charged $3,450 for such reports. He also claimed that he never expected M to pay the invoice—but rather sent it to her in an attempt to move things forward regarding eventual payment. He provided evidence showing that he had previously made payments of the same amount to Ms G’s employer. Ms G, who gave evidence before the Tribunal, was “perplexed” by that evidence.6 Evidence obtained from Ms G’s employer by the Standards Committee’s investigator indicated that the mean cost of reports prepared for clients of Mr Tennet was $1,255. Further, Mr Tennet did not produce before the Tribunal any invoice relating to reports to support the claim that he believed they cost $3,450. The Tribunal therefore considered that claim had no credible basis.7 The Tribunal also considered that the correspondence

4      Liability Decision, above n 1, at [3].

5 At [5].

6 At [21].

7 At [25].

from the relevant time revealed that Mr Tennet knew that the cost of the report was

$1,200 in cash.8

[13]   The Tribunal noted that the invoice of $3,450 was therefore a lie to M, finding that Mr Tennet knew at the time that it was a lie, and an attempt to lever money from her. Mr Tennet accepted that he had intentionally given M incorrect information to obtain money from her.9 The Tribunal considered that these deliberate falsehoods were a breach of r 3.1 of the Lawyers:  Conduct  and  Client  Care Rules  2008,  in  that Mr Tennet did not treat M with respect and courtesy, at a time when she was significantly vulnerable. The Tribunal stated:10

We find that he did so as a means of advancing his own pecuniary interests with callous disregard for the circumstances of his client.

We find that, in deliberately lying to his client, he breached fundamental obligations. Those include his obligations to be independent in providing regulated services; and to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients. He put his interests before those of his client. It is a breach of Rule 5.1: The relationship between lawyer and client is one of confidence and trust.

[14]   The Tribunal did not accept that M’s conduct mitigated Mr Tennet’s actions, or that Mr Tennet had made a rash decision in a time of panic. The Tribunal considered that Mr Tennet’s conduct in sending the false invoice was misconduct under s 7 of the Act, “because it was undertaken when he was providing regulated services, and it is conduct that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable”.11

[15]   Mr Tennet had received the report on 17 August 2017. This was two days after he had filed his memorandum seeking leave to withdraw. Mr Tennet then destroyed the report, instructing a staff member to electronically delete it and shred any physical copies. Before the Tribunal, he suggested that to delete the report was proper behaviour because he was no longer acting for M and it was improper to retain her personal information. He questioned whether the report provided was actually the final report, and said that he had not read it. The Tribunal did not agree.

8      Liability Decision, above n 1, at [27].

9      At [35]–[37].

10     At [39]–[40]. (Footnotes omitted).

11 At [42].

[16]   The Tribunal considered that the report provided was final, as Ms G had signed it, and also that Mr Tennet had in fact read it. At the time, Mr Tennet knew who M’s new lawyer was, and could have alerted them as to the report. The Tribunal considered that Mr Tennet retained obligations to perform such actions as he was still the solicitor on record for M, and his legal and fiduciary duties continued until he was relieved of that role. In destroying the report, Mr Tennet denied M a litigation advantage, and she was ultimately forced to undertake another enquiry and assessment. The Tribunal considered that Mr Tennet had deprived M of the effective use of the report, which was her property. Ms G was also unaware of the fact that M had not received the report. Accordingly, the Tribunal considered that:12

Mr Tennet’s conduct in deleting the report and failing to alert M or her new lawyer about it, were breaches of his duties and the rules in all respects as we have found in respect of the falsely stated invoice. We find this aspect of the charge, too, proved as misconduct.

[17]   The Tribunal then turned to the memorandum filed by Mr Tennet on 15 August 2017, for a hearing concerning M on 18 August 2017. That memorandum sought leave for Mr Tennet to withdraw, and stated:

1.This matter was set for sentence at a time when the writer was away on a trial (but that date was arranged by His Honour Judge Butler). Mr Fraser will be appearing.

2.Although a drug and alcohol report was called for, the writer had arranged for the [the Trust] to do one privately. Counsel understands that [M] did not see Roger Brooking for that reason.

3.A conflict of interest has arisen for various reasons, one of which Counsel can address.

4.Unfortunately [the report process was] never completed because of inadequate instructions.

5.If, as Counsel expects, this matter has to be put off for a fresh sentencing date then the Drug and Alcohol report should be ‘revived’, with respect because it will be very useful to both [M] and the Court.

6.Accordingly, Mr Fraser will be seeking leave to withdraw from the appearance.

[18]   As noted, Mr Tennet was conflicted because M had allegedly been assaulted by her partner, another client of Mr Tennet. New counsel was appointed for M, and

12     Liability Decision, above n 1, at [54].

therefore Mr Tennet was at least inferentially granted leave to withdraw. Before the Tribunal, the Standards Committee alleged that the memorandum was misleading because it stated that the report was never completed, and although that was true at the time the memorandum was filed, it was no longer true by the hearing scheduled for 18 August 2017.

[19]   As the memorandum was not misleading at the time it was filed, the Tribunal dismissed that aspect of the charges against Mr Tennet.13 It also made orders permanently suppressing the names of M, Ms G, and clients of Mr Tennet who were mentioned or named in documents in the course of the investigation or hearing.14

The penalty decision

[20]   At the penalty hearing on 3 March 2023, Mr Tennet was permitted to be re- sworn and give further evidence in chief. Mr Tennet addressed a difficult personal relationship he had been in and its impact on him. After the conclusion of the hearing, Mr Tennet sought leave to file a psychological report. The Tribunal concluded that it was appropriate to grant this request as its “fundamental business was … trying to understand the context in which Mr Tennet did what he did”. The Tribunal also ordered that the report obtained address whether “any organic cause” might explain the misconduct.

[21]   On 17 May 2023, the Tribunal released its decision on penalty. It described its findings on liability as follows:15

Mr Tennet falsely overstated, in a bill, the cost of a report on his client’s substance use at $3,450 when he had only incurred cost of $1,000. Then, when he received the report electronically, he deleted it and failed to alert the client or her subsequent lawyer. At the hearing, Mr Tennet, who had taken a combative approach to his defence, finally admitted that the representation in the bill was a lie. The lie was also embedded in surrounding communications he had with the client. This was not an invoicing, clerical or office error. It was not conduct influenced by any other person. This was Mr Tennet’s own, deliberate conduct.

Mr Tennet is a seasoned criminal lawyer who has served as duty solicitor, mentored younger lawyers, and served on committees and charitable bodies.

13     Liability Decision, above n 1, at [61]–[62].

14 At [63].

15     Penalty Decision, above n 2, at [1]–[2].

He was formerly a member of an Ethics Committee. His misconduct seems puzzling. He struggled to advance a sound reason for it. His many referees seemed puzzled too. Many could not believe it; some thought his conduct must have been influenced by another person.

[22]   The Tribunal found it difficult to reconcile Mr Tennet’s conduct with the depth of his experience and service to the profession. It considered that Mr Tennet’s explanations were unconvincing, and that his misconduct was aggravated because of M’s vulnerability and impecuniosity.

[23]   The Tribunal was unconvinced that Mr Tennet’s misconduct was caused by an unhappy personal relationship. The Tribunal considered that Mr Tennet was casting about for a reason or excuse for his behaviour that it could latch on to. It found that the psychiatric report provided did not establish that he had some cognitive impairment nor that he was suffering from post-traumatic stress disorder. The Tribunal did, however, acknowledge a number of character references it received regarding Mr Tennet, which noted his skill and knowledge of the criminal law, generosity, and good character.

[24]The Tribunal considered Mr Tennet’s previous disciplinary history, stating:16

In 2021, he was censured and fined $1,000 for failing to follow instructions and advance in a timely manner a proceeding for a serving prisoner. The client was vulnerable by reason of his incarceration. In 2021, he was censured and fined $2,000 for harassing correspondence with Department of Corrections staff. In 2022, he was censured again, and fined $3,000 and ordered to apologise for personal attacks on an employee of Legal Aid Services. The Legal Complaints Review Officer (LCRO) reviewed the decision and increased the fine to $10,000. In doing so, the LCRO characterised the severity and duration of the offensive behaviour as “prolonged bullying”.

[25]   The Tribunal considered that Mr Tennet’s misconduct was aligned with his previous disciplinary matters, and that in recent years “Mr Tennet, although capable of generous behaviour and showing a kindly face to peers, has acted in ways that are contrary to those that reflect a fit and proper person having the privileges of being a lawyer”.17 It found Mr Tennet’s conduct to be “self-indulgent pique” and that “he hit out at those he thought he could hurt with impunity”.18

16     Penalty Decision, above n 2, at [10].

17 At [11].

18     At [12]–[13].

[26]   The Tribunal noted the guidance given to it by the purpose of the Act, as set out in s 3, thus requiring the Tribunal to be alive to public confidence in the provision of legal services and to protect consumers. The Tribunal stated that “where a seasoned practitioner behaves arrogantly and dishonestly in dealing with a client, as here, the matter cannot be taken lightly”.

[27]   The Tribunal assessed the gravity of the behaviours as being so fundamental to the client-lawyer relationship to bring the possibility of strike-off into play. Against that was Mr Tennet’s many years of service to the profession and community, and the content of the references provided on behalf of Mr Tennet. The Tribunal considered that Mr Tennet should be offered the opportunity for redemption, noting that had it not been for the references filed on behalf of Mr Tennet, it would have imposed a suspension of 15 months. A mitigating factor was also that M never paid the relevant invoice and therefore suffered no financial loss. However, the Tribunal considered that this was of small moment because Mr Tennet’s actions were toxic to the relationship of trust she was entitled to expect in her lawyer.

[28]   The Tribunal considered that the appropriate penalty was a combined penalty, including censure, supervision, and suspension. It did not consider that a fine would be appropriate given that Mr Tennet had recently been fined, and that he would be required to pay costs in respect of the Tribunal’s hearings. As to supervision, the Tribunal noted:19

We make it plain that we do not regard either aspect of misconduct in this case to have been slips about handling money or slack office practice. The defaults fall squarely within the realm of ethical standards. We wish to do our best to ensure that Mr Tennet’s return to legal practice will direct him to remember proper standards of client interaction. For that reason, we have devised two components, one by a senior practitioner and the other by a suitable therapist

– to work in combination.

We do not agree that supervision by practitioners who are friends or former mentees of Mr Tennet will be effective. The supervision must be by someone of standing who can be at arms-length.

[29]Accordingly, the Tribunal made orders:

19     Penalty Decision, above n 2, at [24]–[25].

(a)censuring Mr Tennet;20

(b)suspending Mr Tennet from practice for a period of twelve months commencing at 6:00 pm on 22 June 2023, thereby allowing Mr Tennet to continue to act for a limited period;

(c)requiring Mr Tennet to be supervised by a senior practitioner upon his return to practice;

(d)requiring Mr Tennet to meet with a therapist for at least monthly for a period of at least four months;

(e)requiring Mr Tennet to pay costs to the Standards Committee in the sum of $40,798.40; and

(f)requiring Mr Tennet to reimburse the New Zealand Law Society for the Tribunal’s costs in the sum of $12,182.

Grounds of appeal

[30]   Mr Tennet’s appeal was filed on 8 June 2023.21 Mr Tennet advances nine grounds of appeal. These are:

1.The Tribunal imposed a suspension that was an excessive penalty and was punitive, and in doing so erred in law.

2.The Tribunal imposed a suspension that was inconsistent with other cases of unprofessional conduct at this level, and when doing so had insufficient regard to the need for consistency.

3.The overall penalty imposed was disproportionate to the nature and scope of the proven unprofessional conduct.

4.The Tribunal failed to have regard to this being the first finding of misconduct against the Appellant, and that the conduct was an isolated instance of its type.

5.The Tribunal had insufficient regard to the Appellant’s long history of service to the profession and the public.

20     See Penalty Decision, above n 2, at Appendix 1.

21     The order of suspension was stayed pending the appeal, see Stay Judgment, above n 3.

6.The Tribunal attributed too much weight to recent lower-level disciplinary history.

7.The Tribunal had no good reason to reject the nominated supervisor.

8.The purposes of the Lawyers and Conveyancers Act were satisfied by the imposition of a censure and supervision.

9.The costs award was unreasonable and failed to have regard to the appellant’s means to pay.

[31]As to relief, Mr Tennet seeks:

(a)that the order for suspension be quashed;

(b)that the order for costs be reversed and replaced; and

(c)costs for the appeal.

Approach to appeal

[32]   Pursuant to s 253 of the Act, a practitioner to whom an order relates may appeal to the High Court against any order or decision made by the Tribunal pursuant to pt 7 of the Act. Any such appeal must be by way of rehearing, following which the    High Court may confirm, reverse, or modify the order or decision appealed against.22 As stated by the Court in Hong v Auckland Standards Committee No 5:23

[54]      An appeal to this Court under s 253 of the Act from a decision of the Tribunal must be by way of rehearing. Whether the appeal is against a finding of misconduct or against penalty (with the exception of costs) the appeal is a general appeal.

[55]      The appellate court considers the merits of the case afresh. It must be persuaded that the decision under appeal is wrong but the weight the appellate court gives to the reasoning of the court or tribunal below is a matter for the appellate court’s assessment. The appellate court may consider it appropriate to give due regard to a specialist tribunal’s assessment.

[56]      The parties to the appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the court or tribunal below, then the

22 Lawyers and Conveyancers Act 2006, ss 253(3) and 253(4).

23 Hong v Auckland Standards Committee No 5 [2020] NZHC 1599; affirmed in National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins [2022] NZHC 1709, [2022] 3 NZLR 452 at [31].

decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.

[33]   Further, although the appeal is a rehearing, deference to a specialist Tribunal is often appropriate because it is well established that “a specialist tribunal may, and indeed is expected to, assess the evidence using its professional knowledge and experience”.24

Position of parties

Mr Tennet

[34]   Mr Pyke, counsel for Mr Tennet, submitted that a suspension was not necessary to fulfil the purposes of the Act, and in the alternative, its length is excessive. He relies on Jefferies v National Standards Committee, in which a suspension of six months was reduced to four months, on the basis that was “the minimum credible suspension in light of its purpose of maintain public trust and confidence”.25 He says that the Tribunal must have regard to the professional background and reputation of the practitioner, any prior disciplinary history of the practitioner, and the practitioner’s likely response to alternative penalties. Mr Pyke accepts that there are no tariffs or guidelines relating to the suspension of lawyers by the Tribunal and submits that the exercise is instead fact intensive. Mr Pyke nevertheless referred to the cases of Duff,

Harper, O’Boyle, Clews and Ms W as of most assistance.26

[35]   Mr Pyke submits that the Tribunal erred by failing to have sufficient regard to Mr Tennet’s prior history, the references tendered in his support, and his very long history of professional service. He says that Mr Tennet has accepted his wrongdoing.

24 See A v A Professional Conduct Committee [2018] NZHC 1623 at [17]. See also Williams v A Professional Conduct Committee [2018] NZHC 2472 at [103]; and Reid v New Zealand Law Society [2023] NZHC 2370 at [24].

25 Jefferies v National Standards Committee [2017] NZHC 1824, [2017] NZAR 1323 at [40].

26 Otago Standards Committee v Duff [2022] NZLCDT 4; Wellington Standards Committee 2 v Harper [2020] NZLCDT 29; O’Boyle v Auckland Standards Committee 4 [2022] NZHC 3141; Auckland Standards Committee 5 v Clews [2014] NZLCDT 19; and Auckland Standards Committee 5 v Clews [2014] NZLCDT 49. Following the hearing of this matter, and with the consent of the Standards Committee, I granted leave for Mr Pyke to file Auckland Standards Committee 3 v Ms W [2023] NZLCDT 35 for the Court’s consideration.

He highlights also the acute pressures faced by criminal lawyers in New Zealand, as referred to by Ellis J in the stay judgment.27

[36]   Mr Pyke submits that it appeared that some members of the Tribunal formed an overly negative personal impression of Mr Tennet prior to the penalty hearing. He says that the Tribunal was prepared to draw an inference from an absence of evidence of the possibility of similar past conduct, and that this was incorrect reasoning. He says that the penalty decision verges on personal comment.

[37]   Mr Pyke emphasises Mr Tennet’s relatively unblemished career. He submits that the Tribunal has failed to give Mr Tennet a second chance. He says that the Tribunal provided no reasoning behind the starting point of 15 months or the three month reduction and that a period of four months’ suspension would be the least restrictive outcome necessary. Mr Pyke submits that 12 months’ supervision for a legal aid lawyer living hand to mouth at this stage of his life is “a crushing blow”. He also notes that Mr Tennet has been undertaking supervision and rehabilitation since the penalty hearing, which shows he has “got the message”.

[38]   As to costs, Mr Pyke submits that an order of suspension means that Mr Tennet will have little income and would be unable to pay the order for costs. He submits that the Tribunal disregarded his lack of means when assessing costs. He says that should a period of suspension remain, the order for costs should be reduced in order to take account of his lack of means.

The Standards Committee

[39]   Mr Mortimer-Wang, counsel for the Standards Committee, submits that a distinction in Mr Tennet’s case is that until the penalty hearing he denied misconduct in respect of the false invoice and any wrongdoing in respect of the deletion of the relevant report. He says that this illustrates that Mr Tennet’s insight as to his behaviour is somewhat lesser than the practitioners in the cases relied upon by Mr Pyke, who promptly admitted the charges against them. Mr Mortimer-Wang highlights that the

27     Stay Judgment, above n 3, at [15]; citing Morwenna Grills and James Barnett “A true picture of our broken legal aid system” (2021) 948 LawTalk 15.

invoice was designed to try to extract payment, that Mr Tennet knew it was a lie, and that he had read the report  prior to  deleting  it.  Mr Mortimer-Wang  submits  that Mr Tennet’s conduct involved outright and calculated dishonesty.

[40]   Mr Mortimer-Wang submits also that Mr Tennet took an unnecessarily combative approach to the charges against him. Mr Mortimer-Wang says that this conduct is relevant to an assessment of penalty, as a penalty under the Act is forward- looking and turns on insight and risk. He says that the gravity of this conduct properly brought the possibility of strike off into play, as wilful dishonesty normally justifies striking off.28

[41]   Mr Mortimer- submits that there can be no suggestion that the Tribunal formed an “overly negative personal impression” of him, but rather, such behaviour is in fact relevant to penalty.29 Mr Mortimer-Wang seeks also to distinguish the cases referred to by Mr Pyke, and instead relies on two further cases, Guest and Hemi.30

[42]   Mr Mortimer-Wang submits that the Tribunal correctly assessed Mr Tennet’s mitigating factors—in stepping back from the possibility of strike off, to a moderate period of suspension, thereby accounting for the character references provided on behalf of Mr Tennet and his many years of service. Mr Mortimer-Wang submits that the Tribunal’s findings in relation to the personal relationship matters advanced by Mr Tennet cannot be impeached, as the psychiatric report described his relationship as an “extenuating set of circumstances”, rather than something that could provide significant mitigation for dishonest conduct. Nor was there any evidence of cognitive impairment.  Accordingly,  he  says  that  the  Tribunal  appropriately  considered  Mr Tennet’s personal factors, and provided a significant discount from the starting point of strike off.

[43]   As to Mr Tennet’s appeal of the costs award, Mr Mortimer-Wang submits that in matters of discipline “it is generally accepted that members of the profession should

28     Dorbu v New Zealand Law Society [2012] NZHC 464, [2012] NZAR 481 (HC) at [35].

29     Hart v Auckland Standards Committee 1 of the New Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103 at [185]–[187].

30     Guest v Complaints Committee 2001 of the Otago District Law Society HC Wellington AP34/02, 29 July 2002; and Canterbury-Westland Standards Committee 3 v Hemi [2013] NZLCDT 23.

not have to bear the costs of proceedings brought for the primary purpose of protecting the public”.31 He says also that Mr Tennet’s conduct throughout the proceedings exacerbated the cost of the proceedings and that Mr Pyke accepted before the Tribunal that in any event an award of costs would follow.

Relevant law

[44]   An appeal against a decision of the Tribunal must be considered in light of the purposes of the Act, which include the need to maintain public confidence in the profession, and to protect the consumers of legal services.32 Of note are the fundamental obligations of lawyers, described in s 4 of the Act as:

(a)the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:

(b)the obligation to be independent in providing regulated services to his or her clients:

(c)the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:

(d)the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.

[45]   Also of relevance is the purpose of penalties in this context, which include deterrence, prevention, accountability and the maintenance of public confidence in the profession.33 The standard placed upon legal practitioners to ensure the maintenance of public confidence in the profession is one of fitness and trust. The obligations of a practitioner are, as noted, fiduciary in nature. When considering that standard, this Court has previously stated:34

In considering sanctions to be imposed upon an errant practitioner, a disciplinary tribunal is required to view in total the fitness of a practitioner to practise, whether in the short or long term. Criminal proceedings of course reflect badly upon the individual offender, whereas breaches of professional standards may reflect upon the wider group of the whole profession, and will arise if the public should see a sanction as inadequate to reflect the gravity of the proven conduct. The public are entitled to scrutinise the manner in which

31     A v National Standards Committee [2020] NZHC 563 at [104].

32 Lawyers and Conveyancers Act, s 3(1).

33     Bolton v Law Society [1994] 1 WLR 512 (CA) at 518.

34     Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850, [2011] NZAR 639 at [34].

a profession disciplines its members, because it is the profession with which the public must have confidence if it is to properly provide the necessary service. To maintain public confidence in the profession members of the public need to have a general understanding that the legal profession, and the Tribunal members that are set up to govern conduct, will not treat lightly serious breaches of standards.

[46]   The Supreme Court has also previously considered what ‘fit and proper person’ means, summarising the relevant principles as:35

(a)The purpose of the fit and proper person standard is to ensure that those admitted to the profession are persons who can be entrusted to meet the duties and obligations imposed on those who practise as lawyers.

(b)Reflecting the statutory scheme, the assessment focusses on the need to protect the public and to maintain public confidence in the profession.

(c)The evaluation of whether an applicant meets the standard is a forward looking exercise. The Court must assess at the time of the application the risk of future misconduct or of harm to the profession. The evaluation is accordingly a protective one. Punishment for past conduct has no place.

(d)The concept of a fit and proper person in s 55 involves consideration of whether the applicant is honest, trustworthy and a person of integrity.

(e)When assessing past convictions, the Court must consider whether that past conduct remains relevant. The inquiry is a fact-specific one and the Court must look at all of the evidence in the round and make a judgement as to the present ability of the applicant to meet his or her duties and obligations as a lawyer.

(f)The fit and proper person standard is necessarily a high one, although the Court should not lightly deprive someone who is otherwise qualified from the opportunity to practise law.

(g)Finally, the onus of showing that the standard is met is on the applicant. Applications are unlikely to turn on fine questions of onus.

[47]   This Court discussed the Tribunal’s suspension jurisdiction in Daniels, stating:36

It is well known that the Disciplinary Tribunal’s penalty function does not have as its primary purpose punishment, although orders inevitably will have some such effect. The predominant purposes are to advance the public interest (which include “protection of the public”), to maintain professional standards,

35     New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50 at [54].

36     Daniels, above n 34, at [22]–[25].

to impose sanctions on a practitioner for breach of his/her duties, and to provide scope for rehabilitation in appropriate cases. Tribunals are required to carefully consider alternatives to striking off a practitioner. If the purposes of imposing disciplinary sanctions can be achieved short of striking off then it is the lesser alternative that should be adopted as the proportionate response. That is “the least restrictive outcome” principle applicable in criminal sentencing. In the end, however, the test is whether a practitioner is a fit and proper person to continue in practice. If not, striking off should follow. If striking off is not required but the misconduct is serious, then it may be that suspension from practising for a fixed period will be required.

…

A suspension is clearly punitive, but its purpose is more than simply punishment. Its primary purpose is to advance the public interest. That includes that of the community and the profession, by recognising that proper professional standards must be upheld, and ensuring there is deterrence, both specific for the practitioner, and in general for all practitioners. It is to ensure that only those who are fit, in the wider sense, to practise are given that privilege. Members of the public who entrust their personal affairs to legal practitioners are entitled to know that a professional disciplinary body will not treat lightly serious breaches of expected standards by a member of the profession.

It will not always follow that a practitioner by disposing of his practice and undertaking not to practise can avoid or pre-empt an order for suspension. The consideration of whether to suspend or not requires wider consideration of all the circumstances. The real issue is whether this order for suspension was an appropriate and necessary response for the proven misconduct of the appellant having regard not only to the protection of the public from the practitioner but also to the other purposes of suspension.

[48]   Finally, in Ellis v Auckland Standards Committee 5, this Court referred to the above decisions, noting that the penalty was to be the “least restrictive” and that the following were relevant considerations:37

(a)the nature and quality of the misconduct established;

(b)previous disciplinary history;

(c)any evidence of remorse or insight;

(d)the need for deterrence; and

(e)any aggravating or mitigating features.

37     Ellis v Auckland Standards Committee 5 [2019] NZHC 1384 at [21].

Analysis

[49]   The focus of Mr Tennet’s appeal was the order for suspension and the order for costs. There is no dispute as to the Tribunal’s findings on liability, censure, or the need for supervision and therapeutic assistance. While the notice of appeal refers to the Tribunal’s decision to not allow Mr Tennet to have a colleague to supervise him, this ground was not pursued at the hearing. It appears to have been overtaken by the supervision arrangements already in place.

[50]   I turn then to consider the necessity of a suspension order and the comparisons drawn with other decisions. As noted above, Mr Pyke referred to the cases of Duff,

Harper, O’Boyle, Clews and Ms W:38

(a)In Duff, a practitioner was found guilty of misconduct as a result of advising a client (not connected to his legal practice) to make a payment in a manner that would enable the avoidance of goods and services tax. As the conduct concerned private business arrangements, the Tribunal did not consider the conduct to be at the most serious end of the scale and nor was there any harm to clients to whom he was providing legal services. Many positive references were provided supporting the practitioner. The Tribunal ordered that he be censured and fined

$10,000. No suspension order was made.

(b)In Harper, a practitioner was found guilty of misconduct for significant and historical breaches of the rules relating to the witnessing and certification of documents over a period of six and a half years. The Tribunal described the practitioner as having put client convenience before adherence to the rules, in practising in a rural area. While there was no loss or disadvantage to her clients or any personal gain for her, the Tribunal considered that the misconduct was moderately serious, and aggravated by the quantity and extent of non-compliance. The practitioner had no previous disciplinary findings, had an otherwise

38Duff, above n 26; Harper, above n 26; O’Boyle, above n 26; Clews, above n 26; and Ms W, above n 26.

exemplary record, expressed remorse, and many positive references were provided on her behalf. The Tribunal, taking into account the impact of suspension on the practitioner’s clients, family, workplace and community, ordered that she be censured and subject to random file supervision. No suspension order was made.

(c)In O’Boyle, a practitioner was found guilty of misconduct and suspended from practice for a period of six weeks. The practitioner made allegations against a party in litigation that were inappropriate and factually incorrect. She alleged that the party had lied to the Family Court and to his employer about previous convictions. On appeal to the High Court, the period of suspension was set aside and replaced with a censure on the basis that the financial consequences of a suspension would be significant, as she derived 98 per cent of her income from undertaking legal aid work, and the effect of a six week suspension would be that she would be unable to undertake legal aid work for a period of nine to ten weeks. This was despite there being previous disciplinary findings against the practitioner that the Tribunal had been unaware of.

(d)In Clews, a practitioner was found guilty of two charges of serious misconduct. First, he had breached client privilege. Second, he had approached the client in prison, and obtained his authority to uplift files from his then lawyer, having been found guilty of unsatisfactory conduct in respect of that client, thereby creating a conflict of interest. The Tribunal considered that a period of suspension was necessary, but reduced the proposed suspension of six to nine months, to four months, on the basis of his 30 years of service to his clients and the profession.

(e)In Ms W, the practitioner admitted two charges of professional misconduct. The first related to accepting direct instructions and failing to act in a timely and competent manner. The second related to nine false statements made to her client and to the opposing lawyers. The Tribunal found that the misleading falsehoods “had an appearance of

coherence and consistency which adds to their pernicious nature”. The Tribunal then concluded that it was an appropriate case in which to extend a merciful approach given the practitioner’s physiological and mental ill-health. Reports from a psychiatrist and a psychologist established that she was severely depressed at the relevant time due to her experience of fertility treatment and multiple miscarriages. Having regard to mitigating features as to the practitioner’s performance elsewhere, contributions to the profession and exemplary steps to adjust her practice, the Tribunal concluded that a starting point of 18 months to two years suspension was appropriately reduced to two months (accompanied by other orders including that she may not practise on her own account unless authorised to do so).

[51]   As to the comparative cases relied upon by Mr Tennet, Mr Mortimer-Wang submits that all the cases relied upon by Mr Tennet are distinguishable, in that:

(a)although Duff involved dishonesty, it was dishonesty in a personal capacity, whereas this case involves dishonesty in a professional legal capacity;

(b)Harper involved factors that are not present in this case, including no harm to clients, no previous disciplinary history, and an admission of misconduct;

(c)O’Boyle and Clews involved no dishonesty; and

(d)The points of difference in Ms W do not support Mr Tennet’s position.

[52]Mr Mortimer-Wang instead relies on two further cases, Guest and Hemi:39

(a)In Guest, a practitioner lied to his client saying that she had been declined legal aid, knowing that was not true, and then also knowingly overcharged her $25,000. The Tribunal ordered that he be struck off.

39     Guest, above n 30; and Hemi, above n 30.

The High Court then upheld that finding on appeal, stating “No solicitor who abuses the fundamental solicitor/client relationship in a calculated and deliberate way for personal gain, and to the potential detriment of the client, can be permitted to continue in practice”.40

(b)In Hemi, a practitioner worked for a firm but personally solicited payments for legal fees from two clients, and then applied those payments for his own use. He admitted the charges, and had handed in his practising certificate, effectively voluntarily self-suspending for a period of 18 months. He had been facing pressures from an unwell family member and had a number of positive personal references. The Tribunal imposed a term of 18 months’ suspension.

[53]   Mr Mortimer-Wang submits that both Guest and Hemi involve the same type of conduct as in the present case, albeit involving different sums, and correctly adopted strike off as the starting point. He submits that the fact that the practitioners in those cases actually obtained the money sought is not a meaningful distinguishing feature as M in Mr Tennet’s case had no means to actually pay, and Mr Tennet’s follow up efforts demonstrated his intent. As Mr Tennet’s penalty is significantly less than the penalty in either Guest or Hemi, Mr Mortimer-Wang submits that a twelve month suspension cannot be seen as disproportionate. He says also that Mr Tennet’s other disciplinary history supports a significant suspension.

[54]   In response to Mr Mortimer-Wang’s reference to Guest and Hemi, Mr Pyke submits that Mr Tennet’s actions were muddled and irrational, and without reasonable explanation. He says that therefore Mr Tennet’s actions were not deliberately dishonest in a manner intended to deprive a client of their money.

[55]This Court has previously noted that:41

Detailed comparisons between the orders made in one case as against another are not likely to be of great assistance to the Tribunal, or to the Court on appeal. Nevertheless, the Tribunal itself said (in the decision presently under

40     Guest, above n 30, at [58].

41     Sorensen v New Zealand Law Society (Auckland Standards Committee Number 2) [2013] NZHC 1630 at [39].

appeal) that it was necessary to consider penalties applied in a comparable context to ensure that the sanction imposed was not disproportionately severe.42 Counsel for the Respondent accepted in her submissions that some parity of response is to be expected.

[56]   That statement appears to be entirely applicable to the present appeal. Parity and consistency are undoubtedly guiding factors but the breadth of factual circumstances that may properly be called misconduct does indeed mean that detailed comparisons between Tribunal decisions are unlikely to be helpful in all cases. The difficulty for Mr Tennet is that I consider that none of the cases relied upon by Mr Pyke as establishing that either a suspension was not required or that a suspension of lesser length was proper, appear to be factually similar to the present case. As submitted by Mr Mortimer-Wang, the driving determinant in Mr Tennet’s case was that of wilful dishonesty in respect of a vulnerable client, who as a result was deprived of a litigation advantage.

[57]   In particular, while there was dishonesty present in Duff, it was not in relation to legal services, did not involve a vulnerable person, and resulted in no disadvantage—a suspension would have therefore been disproportionate. Harper was in the nature of repeated and wilful omissions to comply with the rules relative to witnessing and certifying documents, but contextually concerned convenience, and a practitioner with no previous disciplinary history, who admitted her misconduct and expressed remorse. Clews involved no dishonesty at all. I do not consider those cases assist in establishing that the suspension imposed upon Mr Tennet was disproportionate, as the misconduct which occurred in those cases was not of the same nature or gravity. I comment on the relevance of Ms W below.

[58]   Nor do I accept Mr Mortimer-Wang’s submission that O’Boyle involved no dishonesty, as while certain matters contained in the allegations made by the practitioner were based on errors inherent in the information that had been provided to her, there was also additional information that was in fact false.43 The use of false information in an allegation designed to harm is dishonest conduct. Nevertheless, I do not consider O’Boyle to be a helpful comparator to the present case, as I consider that

42     Auckland Standards Committee 2 v Sorensen [2012] NZLCDT 23 at [30].

43     See O’Boyle, above n 26, at [15]–[16].

although the practitioner’s misconduct was dishonest and intentional, it was mitigated by the fact that she mistakenly relied on incorrect information (including some provided to her by the relevant court) and it did not result in a disadvantage to her client. It is not a case, such as the present, where the practitioner acted on incorrect information, knowing it to be false, and took further actions that were detrimental to his client.

[59]   As to the other cases relied upon by Mr Mortimer-Wang, these also appear to me to be unhelpful as the relevant conduct is undoubtedly more serious than that of Mr Tennet. In both Guest and Hemi the practitioners were wilfully dishonest for the purpose of obtaining a personal benefit, to the detriment of their clients, a factor which I accept is not entirely present in Mr Tennet’s case, his motivations being frustratingly opaque. Guest also involved significantly greater sums than that sought to be recovered by Mr Tennet. Accordingly, I rely on Guest and Hemi only for the purpose of concluding that Mr Tennet’s misconduct was not as serious as the practitioners in those cases.

[60]   I consider that Mr Tennet’s conduct in its totality was serious misconduct, properly bringing into consideration the possibility of strike off. The Tribunal’s conclusion in that respect cannot be said to be in error. As noted, Mr Tennet was wilfully dishonest, and acted in a manner that was detrimental to his client. While his objective does not appear to have been personal gain, his actions directly bear upon the fiduciary relationship between a lawyer and client, and the ethical parameters of that relationship, by abusing the trust that is expected.

[61]   Having traversed the authorities relied upon by counsel and considered their arguments, I am not satisfied that the Tribunal erred in imposing a suspension. I agree with the Tribunal’s analysis that while the combination of behaviours in this case brought strike off into play, it was appropriate to offer Mr Tennet an opportunity for redemption given his many years of service as a lawyer and to his community, and his character references.

[62]   The real question in my view is whether the length of the suspension was other than the least restrictive outcome in the circumstances. While Mr Pyke drew attention

to Williams J’s preference for the “minimum credible suspension in light of its purpose of maintaining public trust and confidence”,44 like the full bench of this Court in Gardiner-Hopkins, I do not consider that approach to be “particularly helpful or applicable in this case”.45 I note that the misconduct in Jefferies involved the practitioner being convicted of low-level drug offending. Instead, the proper approach is to determine the least restrictive outcome in the circumstances, having regard to the gravity of the misconduct, previous disciplinary history, evidence of remorse or insight, the need for deterrence, and any aggravating and mitigating factors.46

[63]   Mr Tennet, in more recent times, has a disciplinary history, described by the Tribunal as set out above. That was indeed a relevant consideration for the Tribunal, and I do not consider that the Tribunal erred in its consideration of that factor, especially given the manner in which the Tribunal has treated a lack of previous history in the cases relied upon by Mr Pyke. I do not consider that the Tribunal failed to have regard to the fact that this is the first finding of misconduct against Mr Tennet. Instead, it was open to the Tribunal to have regard to the fact that Mr Tennet’s recent behaviour has been different from his behaviour in the bulk of his career. Nor is there any basis upon which to conclude that the Tribunal placed too much weight on this factor.

[64]   As accepted by counsel, the highly mitigating factor in the present case  is  Mr Tennet’s long career of exemplary practice and service to the profession and community. That is not disputed, and I accept that up until very recently, Mr Tennet’s had no disciplinary history. The references provided upon his behalf are a testament to his dedication and expertise. Nevertheless, the Tribunal took those matters into account as a mitigating factor, and adopted a suspension of 15 months, effectively reduced from a starting point of strike off, and then in reliance on references received, further reduced the proposed suspension to twelve months. As noted, the accompanying orders also, in the Tribunal’s words, “offered [Mr Tennet] the opportunity of redemption”.47

44     Jefferies, above n 25.

45     Gardner-Hopkins, above n 23, at [111].

46     Ellis, above n 37, at [21].

47     Penalty Decision, above n 2, at [15].

[65]   A mitigating factor absent in Mr Tennet’s case was an admission of misconduct and/or expression of remorse before the Tribunal in respect of liability. Acceptance of the Tribunal’s findings after the fact is distinct from acknowledgment of misconduct and expression of remorse or insight. Mr Tennet chose to defend the charges before the Tribunal, and in doing so, offered evidence that was without foundation. In the circumstances, no credit could be given to him in relation to his response to the position that he has found himself in, and his lack of insight, despite the fact that he appears to have gained some insight since that time.

[66]   Nonetheless, there are several matters that have given me pause for thought in relation to the appropriate period of suspension in this case. The first is Mr Pyke’s criticism that the Tribunal provides no explanation for how it reached its starting point of fifteen months suspension nor the basis for calculating the reduction of three months from that starting point. The Tribunal does not discuss these matters other than to present them as its conclusions. However, this is not particularly surprising given that the Tribunal’s task is fact intensive and a matter of broad judgement, as counsel recognise. It seems to me that a starting point of fifteen months was appropriate in all the circumstances, particularly given there is no tariff that the Tribunal (nor indeed the Court) can refer to.

[67]   However, I consider that the reduction of three months does not sufficiently recognise three important matters. The first is Mr Tennet’s previously unmarred record of practising at the criminal defence bar. He has practised criminal law for decades prior to the relevant events occurring and was able to file a number of supporting character references. The evidence establishes that he practises substantially as a criminal legal aid provider. He serves an inevitably vulnerable community. The wellbeing concerns for the legal profession, particularly for the criminal bar, have been recognised and recently commented on by Chief High Court Judge and Chief District Court Judge.

[68]   The second matter is the  way  the  Tribunal  dealt  with  the  relevance  of  Mr Tennet’s  personal relationship at the relevant time and the psychiatric report.   Mr Pyke emphasises that it is not a question of arguing that ‘but for’ the relationship the misconduct would not have happened. Rather, he says that Mr Tennet’s emotional

state arising from the relationship, together with the pressures on practitioners in the criminal arena, provide context for the misconduct.48

[69]   I agree with the Tribunal that this evidence from Mr Tennet and the psychiatric report do not establish a cause for the misconduct. But I also accept they are relevant information properly considered in assessing an appropriate penalty. Such broader matters are commonly taken into account, as demonstrated in the case law discussed above. But they must always be considered in the particular circumstances in issue. For example, I do not consider that the information provided through Mr Tennet’s evidence and the psychiatric report to be equivalent to the evidence and expert assessment available in the circumstances of the decision in Ms W. For this reason, I do not accept Mr Pyke’s suggestion that the need for consistency with other decisions would require me to reduce the length of suspension as substantially as occurred in Ms W.

[70]   Mr Pyke also submits that the penalty decision demonstrates an overly stern and unsympathetic view of Mr Tennet. Mr Pyke says this is shown in the finding that the misconduct was “self-indulgent pique” (a description that Mr Pyke says was not put to Mr Tennet by the Tribunal) and the suggestion that Mr Tennet was “casting about” for a reason or excuse for his behaviour.

[71]   I accept Mr Mortimer-Wang’s submission that I should have regard to the fact that the Tribunal has had the benefit of seeing Mr Tennet in person. It has also had to deal with the way in which Mr Tennet and his previous counsel approached the charges from the beginning, including the taking of unnecessary steps. In my view, however, a Tribunal must be careful to ensure that the conduct of the defence at the liability stage does not inappropriately influence its conclusion as to the appropriate penalty. The conduct of the defence of these proceedings is properly recognised in the award of costs. In a case such  as  this  where  it  has  been  truly  difficult  to  understand Mr Tennet’s actions, it seems to me  that  the  additional  context  provided  about  Mr Tennet’s personal circumstances and state of mind is appropriately considered in a

48 See Stay Judgment, above n 3; and Thomas J and Chief Judge Taumaunu “Wellbeing of the Profession – Letter from Chief High and District Court Judges” (26 July 2023) New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture < profession-letter-chief-high-and-district-court-judges>.

more explanatory and generous manner than appears to have been the case by the Tribunal. Mr Mortimer-Wang suggested that the Tribunal sufficiently accounted for the information in the psychiatric report, but I am not convinced this is so.

[72]   The third matter relates to the impacts on Mr Tennet of the suspension. While there may have been little evidence before the Tribunal as to Mr Tennet’s financial position, this was clarified somewhat by the evidence Mr Tennet provided in support of his application for a stay. I consider that I may take this into account. In particular I note his evidence that he does not own a house and possesses only limited assets.

[73]   I enquired of Mr Pyke as to the practical steps for Mr Tennet to return to practice at the conclusion of any suspension. Mr Pyke properly wished to avoid giving evidence from the bar. While this matter was not the subject of submissions before me, there are two judgments that I draw attention to in relation to the impact of suspension.

[74]   In Young, Whata J referred to submissions made by the National Standards Committee.49 That Committee said that if a lawyer is suspended for more than six months, they must apply for a new practising certificate. It observed that the Law Society has released guidance on the process for former lawyers applying to regain their practising certificate after being suspended and that the guidance notes that an application may include supporting documentation, such as evidence of rehabilitation, good character, professional development and any further information such as steps that have been put in place to ensure that the factors or conduct which led to suspension will not recur.

[75]   In O’Boyle, Peters J discusses the process for reapplying for legal aid provider status.50 Her Honour records that suspension causes automatic cancellation of an existing grant of approval as a legal aid provider and states that “the best the appellant could hope for is to be reapproved as a legal aid provider within four or five weeks of the suspension ending, but it may be a longer period”.51 Peters J concluded that it was relevant to consider that the consequences of suspension are not confined to the period

49     Young v National Standards Committee [2019] NZHC 2268 at [86].

50     Above n 26, at [25]–[28].

51 At [28]. I note that the period of suspension in this case was only six weeks.

of suspension itself.52 I share that view, and consider that understanding that Mr Tennet will not immediately be able to return to work as a criminal legal aid lawyer at the end of the suspension period is a relevant factor in assessing the appropriate length of suspension.

Conclusion on suspension

[76]   In sum, while having due regard to the Tribunal as a specialist jurisdiction, I conclude that the Tribunal’s decision was wrong in that it imposed a penalty that was excessive. While there is no doubt that Mr Tennet’s conduct was dishonest and inappropriate, in my view, having considered all the relevant circumstances and the case law outlined above, a nine month suspension is the least restrictive outcome available. In coming to that conclusion, I rely on my findings above as to Mr Tennet’s previous record, the explanatory material provided, and the overall impacts of suspension.

The costs order

[77]   An appeal against an award of costs is an appeal against the exercise of a discretion. An appellant court will not interfere unless the decision under appeal was made on a wrong principle, failed to take into account some relevant consideration, took into account an irrelevant consideration or was plainly wrong.53  Pursuant to     s 249(1) of the Act, the Tribunal has a discretion to award costs, and as submitted by Mr Mortimer-Wang, it is generally accepted that members of the profession should not have to bear the costs of proceedings brought for the primary purpose of protecting the public.

[78]   Mr Tennet defended the charges, and added to the costs of the proceedings as a result of the approach that he took in the pursuit of his defence. Mr Pyke accepted before the Tribunal that an order for costs would follow as a matter of course and indicated to me that he could not point to any decisions where a reduction in costs had been ordered due to a practitioner’s lack of means. I consider that there is no material to suggest that the Tribunal erred in law or principle, that it took into account an

52     O’Boyle, above n 26, at [36]–[38].

53     Ward v Lochore [2020] NZCA 23 at [9(c)]; citing May v May (1982) 1 NZFLR 165 (CA) at 170.

irrelevant factor, that it ignored a relevant factor, or that its decision was plainly wrong. The Tribunal was entitled to make an order for costs and did not err in doing so.

The stay of suspension

[79]   At the hearing of this matter, I ordered that the stay of suspension continue until further order of the Court, effectively on the conditions agreed in the joint memorandum of counsel dated 8 August 2023.54

[80]   Mr Tennet has continued to work while this appeal has progressed, including taking on legal aid instructions. Mr Pyke indicated to me that Mr Tennet has several matters with upcoming hearing dates. Of note is a significant criminal matter in the Court of Appeal on 2 October 2023 for which Mr Pyke says it would be more difficult to arrange a transfer to new counsel. In the interests of an orderly transition, the stay of suspension should be lifted after that hearing.

[81]   The other orders of the Tribunal are to remain. As agreed by counsel, the term of the supervision and therapeutic assistance orders are to apply from the date of this judgment despite the fact that supervision and therapy are already underway.

Result

[82]Accordingly, for the reasons above, I:

(a)allow the appeal to the extent that I vary the length of Mr Tennet’s suspension from 12 months to nine months; and

(b)lift the stay of suspension from 4 October 2023.

Costs of the appeal

[83]   Each party has had some success. If counsel are unable to reach agreement as to costs, memoranda of no longer than five pages (plus a schedule) may be filed

54     See Tennet v Wellington Standards Committee 2 HC Wellington CIV-2023-485-308, 21 August 2023 (Minute of McQueen J) at [2].

withing 15 working days of the date of this judgment. Unless assistance from counsel is required, I will determine costs on the papers.

McQueen J

Solicitors:

Solicitors:

Regena Sommers, Wellington, for Appellant