FOR WHAT IT’S WORTH…

The New Zealand Law Society is a bad law unto itself

In a judgment issued on 8 April 2024, New Zealand’s Court of Appeal has vindicated two lawyers labelled ghastly bigots by the New Zealand Law Society. The lawyers are Peter Hardie and Giles Brant. You can read the Court’s decision here:

https://www.justice.govt.nz/jdo_documents/workspace___SpacesStore_fd04eb25_0a7f_46b9_a607_af82f9504e0b.pdf

Lawyer Karen Radich, as “Convenor” of a Law Society Standards Committee, led this black and adderish attempt at debagging and radishing the HardieBrant duo.

The alleged HardieBrant bigotry involved email communications between them in the lead up to a social cricket game. The emails covered an English cricketer named Maxine Blythin, a biological male (man) who identifies as a woman and plays cricket with and against biological females (women). Maxine…you’re not the only one.

This Substack is not, however, about the fairness of men competing against women or - for that matter - about the quality of humour in the gents’ emails. (Humour is a prime casualty in the Culture War.) It’s about free speech and the unlawful conduct of the New Zealand Law Society, the very body that should be expected to be front and centre in upholding the rule of law and the fundamentals of natural justice. Unfortunately, the Law Society’s conduct is just not cricket.

The egregiously unsound email communications were as follows:

Meantime the Newstead Nancy Boys CC [one of the social cricket teams] have been working hard transitioning their losing side and have dedicated themselves to becoming more diverse and better more inclusive people. Mr Wright and John Gubbard of Newstead have launched an initiative to make cricket available to Transgender persons. He has been inspired by Kent CC who have recently named a fully and entire man as its “Woman Player of the Year”.

…

Please support Gubbard and Giles as they transition.

…

The very woke Newstead XI is well ahead of all this….which is now very passé…we are fully inclusive and aware and will be selecting a cauliflower in our team as opening bat to represent the oppressed plant life of our planet…oppressive fast bowlers will be protested and cancelled if they try and humiliate the cauliflower…We will also be selecting a koala as opening bowler as representing all non-human animal life which has have been oppressed by Man… the recent Man made climate change caused NSW fires have only served to victimize Koalas…any attempt to score runs off the Koala will be protested and cancelled as to humiliate this victim will not be tolerated…To build their self-esteem the cauliflower and Koala will each be credited with a century, a 5 wicket bag and a spectacular catch in the slips…

Finally all WASPs in our team will be obliged to apologise to everybody for everything before the game (which will be non-competitive of course)…

Yours in inclusiveness and hugs

As far as “anti-Trans” content goes, the communications obviously involved a light-hearted dig at the dubious notion that a man, simply by identifying as a woman, becomes entitled to play competitive sport against women. The bigots also lampooned the Identitarian dogmas of white privilege and guilt and that everything on planet Earth is either oppressor or oppressed, together with the excesses and internal contradictions of “Inclusivity”.

Unbeknownst to HardieBrant, someone was watching their emails and snitched to the Law Society.

Any reasonable person with more than half a brain will struggle to see how HardieBrant could have attracted the Law Society’s venomous wrath over their flippant email exchange. But we live in strange times. Aotearoa is now a nation that celebrates crusading ideologically-driven snitches and curtain twitchers, aided and abetted by Woke-warped institutions, industry bodies and corporates.

It seems the Society never tried to identify the Snitch, so HardieBrant never got to know who their accuser is. In not identifying the Snitch, the Society chose to ignore the fundamental principle of natural justice that an accused is entitled to know their accuser. (The Snitch is of course not a victim in need of the protection of anonymity.)

Through the Society’s website portal, the sanctimonious Snitch shrieked:

There has been a email conversation initially instigated by Peter Hardie, to which Giles Brant has replied, which is distastefully sarcastic, extremely discriminatory, unprofessional, and unbecoming of lawyers and the parties’ respective law firms. The emails were sent on 27 November 2019. I am unsure how I am to attach a screenshot of the email thread on this however I will copy and paste the contents of the emails…

[Text of the Hardie email]

[Text of the Brant email]

I was disgusted to not only have seen such emails, but to also know that they were sent by these men in their professional capacity. I do not wish to provide any personal details of myself, so unfortunately you will not be able to contact me. I understand without screenshots this may be a hard matter to pursue.

However, I urge you to do your best. As lawyers, these men are supposed to represent people of standing in our communities. With a willingness to openly share such repulsive and discriminatory views in their professional capacities, demonstrate these men are in fact the exact opposite.

About all we really know for sure about the Snitch is that They were not remotely “disgusted”. Quite the opposite. They were brimming with self-righteous delight at being able to secretly snitch on the Dastardly Duo.

And what did the Law Society do to HardieBrant? How did it glove them? Let us count the ways…

While it could’ve done nothing, the Society instead instigated an “own motion” investigation of HardieBrant, through a National Standards Committee. Section 130(c) of the Lawyers and Conveyancers Act provides that “functions of each Standards Committee are… to investigate of its own motion any act, omission, allegation, practice, or other matter that appears to indicate that there may have been…unsatisfactory conduct on the part of a practitioner”.

The Committee gleefully leapt to a preliminary conclusion that HardieBrant were guilty of “unsatisfactory conduct” under section 12(b) of the Act, being “conduct that would be regarded by lawyers of good standing as being unacceptable, including… conduct unbecoming a lawyer or…unprofessional conduct”.

But the Committee faced a clear and insurmountable difficulty is pinning “unsatisfactory conduct” on HardieBrant. In order to be entitled to find “unsatisfactory conduct”, the Act requires that the “conduct of the lawyer…occurs at a time when he or she…is providing regulated services”, with “regulated services” meaning, for present purposes, doing legal work for a client.

In its haste to persecute, the Committee ignored its own rule that it’s the content of the communication - not the form - that determines whether regulated services have been provided.

The discerning layperson will readily wonder how the HardieBrant emails could possibly have anything to do with doing legal work. But that didn’t deter the Law Society zealots. Grasping at the thinnest of straws, the Society decided the emails were “regulated services” simply because…wait for it…the Terrible Twosome had used their work email addresses, including their automatic work email sign-offs.

And in predictably Kafkaesque fashion, the Committee never explained to HardieBrant why they were deemed guilty of “unsatisfactory conduct”.

Brazenly continuing to assert that the HardieBrant conduct involved “unsatisfactory conduct” in providing “regulated services”, the Law Society demanded the emails. But HardieBrant were not willing to be bullied. Rightly recognising that the Society didn’t have a legal leg to stand on and was just trying to execute an unlawful ideologically-driven vendetta, they told the Society – in no uncertain terms - to get stuffed.

With HardieBrant having shown their teeth, the Society dimly recognised its nasty little game could be up and on 30 July 2020 quietly decided to back off. But, in the words of the Court of Appeal’s decision, “Remarkably, neither the existence nor the content of the 30 July 2020 decision was communicated to the appellants until the Notice of Decision on 29 June 2021.” The Notice of Decision was signed by the Law Society’s smiling would-be assassin, Karen Radich.

The Notice of Decision continued to stubbornly assert the absurdity that the HardieBrant emails entailed doing legal work, and ended with the pompous, censorious warning “However, Mr Hardie and Mr Brant are advised to consider the tone and content [of] correspondence sent from their professional email accounts, particularly where their lawyer sign-off is included, as the way in which they hold themselves out when sending it will in turn determine whether it is conduct by them as lawyers which might be able to be considered as a disciplinary matter.”

In tactic acknowledgement of how indefensible the content of the Notice of Decision is, the Society then asserted that the Notice of Decision should remain forever confidential. (If the Notice had remained confidential, New Zealand lawyers would never have known that their Society thinks their private communications are fair game.)

But curmudgeons HardieBrant wished to tidy up the loose ends. Understandably unwilling to leave hanging the pejorative remarks about them in the Notice of Decision, HardieBrant applied to the High Court for declarations that:

• the Law Society’s failure to allow HardieBrant to be heard on the Notice of Decision was unlawful

• the Notice of Decision should not be confidential

• the Law Society’s handling of the matter was legally invalid and should be reversed

Unfortunately for all concerned (including himself), High Court Judge David Gendall had not trouble finding against HardieBrant on all counts, and awarded costs against them. Astonishingly (or not), Gendall conveniently ruled that his preposterously flawed decision should also remain eternally confidential.

Undeterred, HardieBrant appealed to the Court of Appeal, which unceremoniously reversed the High Court decisions on all counts – vindicating HardieBrant - and awarded costs against the Law Society. The Notice of Decision and Gendall’s High Court decision are now public.

So, what on earth went on here?

This sorry saga is reminiscent of the sense of bewilderment sublimely captured in For What It’s Worth, the Buffalo Springfield song written by Stephen Stills, with such iridescent and inspired lyrics as:

There's something happening here
But what it is ain't exactly clear

There's battle lines being drawn
Nobody's right if everybody's wrong

Paranoia strikes deep
Into your life it will creep
It starts when you're always afraid
Step out of line, the men come and take you away

You better stop
Now, what's that sound?
Everybody look, what's going down?

How did New Zealand degenerate to such a nauseous nadir that our own national Law Society maliciously and unlawfully hounds a couple of lawyers over a private exchange of emails, simply because they happened to dislike the lawyers’ personal views on Mrs. Trans WoMan competing against women?

And how could High Court Judge Gendall get the law so wrong, without being deliberately biased?

Mercifully, the Court of Appeal has stepped up, as a voice of reason, and nullified the nonsense. But don’t put it past the Law Society to squander more of its constituent lawyers’ annual fees on an appeal to the Supreme Court, which could be guaranteed to give heterodox HardieBrant another smacking.