The charges were based on Mr K’s conduct in “long-running, inflamed custody proceedings” in Australia, and subsequently in related proceedings in New Zealand. Throughout the relevant period, Mr K was employed as an inhouse lawyer. Mr K’s wife was the child’s mother, but the child had been conceived in an ex-nuptial relationship and the father lived in Australia. The child’s father was granted custody and Mrs K brought various proceedings in Australia to regain custody. Mr K initially supported his wife as a McKenzie friend and was later joined as a party.

In summary, the Committee alleged Mr K had misconducted himself in Australia by bringing proceedings which were deemed vexatious by the Court, refusing to pay costs orders and making inappropriate comments about the proceedings in court documents. When the child’s father sought to register an Australian costs order against Mr K in New Zealand, the Committee alleged that Mr K erred by making inappropriate and misleading comments about the Australian proceedings in court documents, breached the conditions of his practising certificate by acting for his wife and acted whilst subject to a conflict of interest.

The first issue for the Tribunal to determine was whether conduct occurring overseas was susceptible to discipline in New Zealand. The Tribunal was conscious of restricting its finding to Mr K’s case, but considered that “where the conduct would justify finding in New Zealand that the lawyer is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer”, it is appropriate for the Tribunal’s disciplinary reach to extend to protect the New Zealand public. It noted that misconduct may be found when a lawyer is undertaking work overseas that clearly relates to the practice of New Zealand law (such as witnessing a relationship property contracting out agreement or briefing an overseas witness for New Zealand litigation). It noted that typically a lawyer who is registered in two jurisdictions would be dealt with in the overseas jurisdiction, but there will be cases where it may be appropriate for disciplinary steps to be taken in both jurisdictions.  

The Tribunal then considered the nature of Mr K’s involvement in the proceedings, including whether Mr K was acting as his wife’s lawyer in the court proceedings. The Tribunal did not consider their litigation relationship to be one of lawyer and client. It found the character of Mr K’s involvement in both the Australian and New Zealand proceedings was as a litigant in person. The Tribunal found that Mr K’s reference to his status as a lawyer in the Australian proceedings or the fact that he acted jointly with his wife did not alter the character of his involvement.

A related question was whether Mr K’s conduct was personal or professional in nature. The Tribunal noted this was a mixed question of law and fact and the context of the individual case will always be important. The Tribunal held Mr K’s conduct was “essentially personal”, noting the private nature of Family Court proceedings and that the conduct was unrelated to the ordinary work undertaken by Mr K in his day to day employment. The Tribunal did not consider that Mr K was a risk to the public, noting “although Mr K is somewhat consumed by the Australian case, we have no basis for thinking that his behaviour, generally, would be askew”.

The Tribunal therefore turned to considering whether any of the conduct reached the threshold for personal misconduct (being conduct which would justify a finding that he was not a fit and proper person or otherwise unsuited to engage in practice). While the Tribunal was critical of aspects of Mr K’s conduct (including calling some of his comments “unattractive, indulgent and unwise”), it considered that the conduct (when considered both separately and cumulatively) did not meet the threshold for personal misconduct. Accordingly, the Tribunal dismissed all charges. Mr K was granted permanent name suppression.