Gardner-Hopkins Rejection From ‘Fast Track’ Panel Upheld by Court of Appeal

Jamesgardner

The decision of the Court of Appeal on the decision of the expert panel to appoint James Gardner-Hopkins as a member of the panel, nominated by the Nagti Paoa Trust Board was rejected by the Court of Appeal (media statement on the decision is below).

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Justice Ministry Media Statement on Gardner-Hopkins case –

The respondent, the Ngāti Paoa Trust Board, nominated Mr James Gardner-Hopkins as a member of an expert panel to decide a fast-track application for resource consent.

The fast-track process was established under now-repealed legislation, the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTCA). The Panel Convener, Judge Newhook, declined to appoint Mr Gardner-Hopkins, essentially on character grounds. Mr Gardner-Hopkins is serving a three-year suspension from practice as a lawyer following a decision that he was guilty of professional misconduct. The Board sought judicial review of the Convener’s decision.

Was the Convener entitled to consider Mr Gardner-Hopkin’s past misconduct when deciding whether to appoint him?

Held: Yes. Panels perform a quasi-judicial function and therefore the public must have a high level of confidence in their work. Just cause includes, but is not limited to, misconduct, inability to perform the functions of office, neglect of duty and breach of duty.

All of these relate to behaviour or characteristics of the individual concerned. Grounds for removal are not limited to conduct which happens while the person holds the office. What matters for present purposes is that they concern fitness for office. The Convener was entitled to consider Mr Gardner-Hopkins’s past misconduct when deciding whether to appoint him.

Was the Convener entitled to reject Mr Gardner-Hopkin’s nomination? Held: Yes.
Mr Gardner-Hopkins was suspended because his misconduct was found to be so inconsistent with the standards required of a lawyer that he was not a fit and proper person to practice law at that time. The public might reasonably wonder why a person who has yet to complete a period of suspension to re-establish his fitness to practise law is a suitable appointee to a quasi-judicial body which performs important public functions and needs a high degree of public confidence.

The Convener might reasonably think the risk of controversy was high having regard to the seriousness of the misconduct and the publicity which had attended the disciplinary proceeding. The High Court Judge erred in substituting his own assessment for that of the Convener.

Further the refusal to appoint him does not amount to the Convener punishing him again for past misconduct.

Was the decision inconsistent with Treaty principles? Held: No.
The Board’s right to nominate was respected and they were offered the opportunity to nominate someone else. An iwi authority does not have a right under the FTCA to have its nominee appointed, given the possibility that a number of iwi may make a nomination.

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Appeal From Former Criminal Barrister To Restore Name to Roll Dismissed

Davina

Former criminal barrister Davina Reid had her appeal for restoration of her name to the roll of barristers and solicitors was dismissed by the High Court.

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Justice Press Release on Davina Reid –

Ms Davina Reid is a former criminal barrister who was struck off the roll of barristers and solicitors of the High Court of New Zealand (the roll) in 2015 following conviction for having delivered contraband to a prisoner in contravention of the Corrections Act 2004. In April 2022, Ms Reid applied for the restoration of her name to the roll. The Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) declined her application. Ms Reid now appeals that decision to the High Court.

HELD: appeal dismissed.

An assessment into whether a person is fit and proper for the purposes of restoration to the roll is a forward-looking exercise. That exercise necessarily reflects the values of redemption and forgiveness.

When considering past convictions, the Court must simply determine whether the offending remains relevant. Notably, in this case, the Tribunal appropriately incorporated tikanga principles into its assessment.

Ms Reid’s conviction was for serious offending which affected the standing of the legal profession and constituted an abuse of professional privilege. However, despite the passage of more than 10 years since her offending, Ms Reid continues to demonstrate a serious lack of insight into her wrongdoing.

Before the Tribunal, Ms Reid attempted to downplay her misconduct, exhibited a preoccupation with self-interest, largely limited her expressions of regret to the damage she caused herself, and failed to show genuine remorse for those impacted both directly and indirectly by her offending. For these reasons, the Court cannot be satisfied that the conviction no longer remains relevant to Ms Reid’s present-day character.

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