READT Chair appointment ‘unlawful’, hundreds of cases at risk

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THE CHAIRMAN of the Crown agency that deals with rogue real estate agents is facing the axe after revelations his appointment four years ago was unlawful.

In 2011 the Government handpicked former district court judge Paul Barber to head the Real Estate Agents Disciplinary Tribunal in a move supposedly heralding a new environment of accountability for the industry.

However, Barber’s days could be numbered after confirmation from the New Zealand Law Society yesterday the 78-year-old, who still refers to himself as a judge, did not hold a practising certificate – a requirement under the Real Estate Agents Act 2008 to fulfil the role of chairman.   

Auckland University law professor Bill Hodge was reluctant to comment on whether Barber should stay or go, but said there was a requirement under section 100 of the Act for the tribunal chairman to be a barrister or solicitor with no less than 7 years’ legal experience.

Hodge said a barrister was defined under Section 6 of the Lawyers and Conveyancers Act 2006 ‘as a person “enrolled as a barrister and solicitor of the High Court  …and practicing as a barrister… or solicitor.”

“So the statutory definition refers to both enrolment and practicing,” he said.

'Judge' Paul Barber

‘Judge’ Paul Barber

Barber’s fate is now likely to rest in the hands of Associate Justice Minister Simon Bridges, who yesterday was out of the country and not available for comment.

If Bridges does act and sack Barber that could lead to calls for a review of the hundreds of tribunal cases Barber has adjudicated on over the past four years.

If he doesn’t act, then there is likely to be a complete erosion of public confidence in the ability of the tribunal to promote the interests of property owners and deal with alleged breaches of conduct by real estate agents.

Barber was a District Court Judge from 1981 until 1997 when he officially retired.

Since 1997 he has held Taxation Review Authority and Customs Appeal Authority positions, and has been hearing Accident Compensation Appeals since 2001.

In 2009 he was appointed as an ‘acting judge’ by Attorney General Chris Finlayson to help lighten some of the workload on members of the judiciary.

He would have been 72 at the time – two years older than the mandatory retirement age for judges in New Zealand.

Under section 10 of the District Courts Act 1947 a former judge who has reached the age of 70 years may be appointed for a period of up to one year, or for two or more periods not exceeding four years in the aggregate. But Section 10 also specifies that each appointment must not exceed one year if the person is 72-years-old as in Barber’s case.

If that provision of the law was applied as it should have in the case of Barber, he would not have held a judge’s warrant when he was appointed chairman of the Real Estate Disciplinary Tribunal.

But despite that, during his tenure as chairman he has continued to refer to himself as a judge.

On the READT website Barber is referred to as “Judge Barber’. On tribunal decisions he signs off as ‘Judge PF Barber’ – he’s even down as ‘Judge PF Barber’ on his White Pages listing.

This week Barber finally admitted he was not a judge.

He did. However, admit signing off tribunal decisions as ‘Judge PF Barber’ but blamed his staff who kept referring to him as a district court judge despite the fact he did not have a warrant.


cookStephen Cook is a multi award winning journalist and former news editor and assistant editor of the Herald on Sunday.

 


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  • Spyda

    He admitted signing off as Judge Barber but blamed his staff who kept refering to him as a District Court Judge. I would refer to him as an Incompetent Trougher after reading some of the decisions he has handed down.
    Let all his decisions be put aside and lets have some sunlight put on the Real Estate Institute. They like this Judge are incapable of monitoring their own business.

    • Time For Accountability

      His decisions are worse than anyone could imagine and should be vacated.

      I concur the first and unassimilated part of the rot is within the REAA and its associated CAC committees.

  • peterwn

    The staffers who organised the appointment need their bottoms kicked – it would seem they assumed as a judge he held a practicing certificate, however judges (District and High) turn in their practicing certificates upon judicial appointment. A District Court judge who resigns or retires can apply for a practicing certificate which is granted unless there are rare exceptional circumstances. He could apply for one today. So in this instance the lack of a practicing certificate is no more than a technicality and if cases are likely to be challenged remedial legislation can be put through, although this is embarrassing to the government and allows the opposition parties a free debate opportunity. The situation is similar to the one where postmasters were able to exercise the powers of a JP but upon corporatisation the mew act made no such provision but no one told post shop managers who were previously postmasters they could no longer act as JP’s. Validating legislation was put through in that case.

  • Time For Accountability

    As an appellant who was an original complainant and are awaiting a decision as to penalties. I advised him and him panel to recuse himself.

    I will follow up today and reinforce it.

    The CAC committees are even worse than this silly old fool.

    I regard it as false representation as to status and fraudulent. I have already advised him via our submissions as to penalties I was going to lay the debacle out to the Ministry and that was before I was aware of his status.

  • Seriously?

    I don’t know the questions you posed to Mr Hodge, but I’m sure that he would be quick to advise you that (leaving the Interpretation Act aside) the meaning assigned to terms in one Act do not indiscriminately apply to the use of the same term in other Acts.

    All Acts are required to be given a purposive interpretation, with their own context being key.

    I would have thought that the purpose of the chair being an experience lawyer is so that they have the necessary legal skills, including the skills to run a hearing. If that is what you are after, then who better for the job than a judge, be it a retired judge or a current one.

    Unless there is something in the REAA that requires the phrase “barrister or solicitor” mean what another Act defines it to be (like a cross-referencing definition as is a common drafting tool), then there may be room to argue the phrase has a wider meaning in the context of the REAA. Certainly it seems it should encompass a current Judge (why on earth would you want to exclude them from eligibility?) and you tell us they do not have practising certificates. If they are included then you’re already beyond the definition in the other Act, and why should you not include a retired judge (who would seem the perfect person for the job)?

    I certainly don’t think this is as simple you portray it.

    • JC

      Actually, the words “barrister” and “solicitor” in the REAA have precisely the same meaning as in the Lawyers and Conveyancers Act 2006 – by section 21 of that Act, a person is not able to provide legal services and call him or herself a barrister or a solicitor unless he or she holds a practising certificate. The LCA defines “barrister” and “solicitor” for all purposes. The REAA does not provide for the appointment of a “retired” barrister and solicitor, or for the appointment of someone who no longer holds a practising certificate. They might be silly rules, but they are the rules.

      • Seriously?

        I disagree, I don’t think s21 of the L&C Act has the effect on the interpretation of the REAA that you assert, but you may be right. Like I said, it might make a good law school mooting question.

    • You must hold a practising certificate to use those titles. If not than any man and his dog could call themselves a lawyer, solicitor or barrister. The two things go hand in hand. Paul Barber does not have a practising certificate, and he is not a Judge, therefore under the law he was ineligible for appointment.

      • duve

        Does that apply to all professions? Most retired doctors still use the title “Dr”.

      • Seriously?

        Why must you?

        According to the Lawyers and Conveyancers Act (s21 as JC points out below – but perhaps missing the conjunctive link as well as the issue I replied to him about) you must hold a practising certificate in order to be someone who “provides legal services in New Zealand” and “describes himself, herself, or itself as… a barrister… [or] a solicitor”.

        See http://www.legislation.govt.nz/act/public/1974/0001/latest/DLM411821.html

        If that is the governing section (and it appears to be) you may call yourself a barrister, solicitor, lawyer, etc if you like without offending that Act, but if you then look to provide legal services your in trouble. I suppose you might be committing a fraud of some kind even if you don’t seek to provide legal services, depending on the context in which you use the title, but that is a different matter altogether.

        The mischief you point out is prevented by the prohibition on the combination to the two limbs.

  • Time For Accountability

    We were lead to believe the Tribunal is under the justice system completely separate from the REAA

  • Time For Accountability

    I am left wondering if I can lay a judicial complaint given he is not a judge.

    I was going to lay a complaint about failing to stop for lunch 10 minutes early when I had an angina attack whilst in the middle of cross examination.

  • Paul King
  • Paul King

    The other day a “doctor” was prosecuted for not having a practising licence and had to pay costs even though he has been a doctor for 30 years and treats people in third world countries for free etc and then comes back to NZ to earn money as a doctor for medicine .. if he got prosecuted the so should Barber .. and what about John Davy who got prosecuted and had to pay all his wages back and got sent to jail for faking his CV? The law is the law and Paul Barber should know this better than anyone.
    See: http://m.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11527438
    Also http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11477142

  • peterwn

    Whether he should call himself a ‘judge’ or not is of no great moment. However I interpret s100 of the Real Estate Agents Act (REAA) as meaning that he need not hold a practicing certificate. As long as he has clocked up seven years as a barrister or solicitor (which he obviously has) he meets the requirement of s100. My argument is as follows. There is also a Real Estate Agents Authority and under S13 of the Act the chair must be a ‘lawyer’ of not less than 7 years of legal experience, and s4 of the Act gives the same meaning as ‘lawyer’ as in the Lawyers and Conveyancers Act and in that Act a ‘lawyer’ is one who holds a practicing certificate. This is cut and dried. If those who drafted the (REAA) had intended the chair of the Disciplinary Tribunal to hold a practicing certificate, they would surely have used the same wording as for chair of the Authority. However s100 REAA refers to barristers or solicitors and not lawyers and REAA does not define barristers or solicitors. While barristers and solicitors, as well as lawyers are defined in the Lawyers and Conveyancers Act, the interpretation of barristers and solicitors has no formal standing outside that Act. So the interpretation issue is whether a barrister or solicitor is one who holds a practicing certificate for the purposes of s100 of that Act. It comes down to s5 of the Interpretation Act ‘an enactment must be interpreted in accordance with its text and in the light of its purpose’ as well as whether Parliament intended that the Tribunal chair holds a practicing licence. I think it would be quite common that Parliament envisaged that current or retired judges or retired lawyers would be appointed to chair tribunals and did not see any need in general for them to hold practicing certificates (judges do not hold practicing certificates). A bit of digging could unearth similar cases. The ‘purpose’ of s100 REAA is fulfilled as long as the chair has had at least 7 years as a lawyer, therefore s100 can be interpreted as the chair not needing a practicing certificate. This would be especially as the Department administering the Tribunal could tomorrow ask the current Chair to obtain a practicing certificate which the Law Society would grant. If someone attempts to challenge a Tribunal decision, then this would be the argument that Crown Law would most probably run.

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