IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CIV-2020-404-1367
[2020] NZHC 2876
UNDER

the Judicial Review Procedure Act 2016 Part
30 of the High Court Rules 2016

BETWEEN

DAMIEN MITCHELL GRANT
Applicant

AND

RESTRUCTURING INSOLVENCY &
TURNAROUND ASSOCIATION NEW
ZEALAND INCORPORATED
Respondent

Hearing:

21 October 2010

Appearances:

R J Hollyman QC, J K Grimmer and N G Lawrence for the
Applicant
S M Hunter QC and R M Stewart for the Respondent

Judgment:

3 November 2020

JUDGMENT OF MUIR J
This judgment was delivered by me on Tuesday 3 November 2020 at 2.00 pm
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel:
R J Hollyman QC, Auckland
J K Grimmer, Auckland
N G Lawrence, Auckland
S M Hunter QC, Auckland
Solicitors:
Waterstone Insolvency, Auckland
Fee Langstone, Auckland

GRANT v RESTRUCTURING INSOLVENCY & TURNAROUND ASSOCIATION NEW ZEALAND
INCORPORATED [2020] NZHC 2876 [3 November 2020]

 Introduction
[1]

Mr Damien Grant, a well-known Auckland-based liquidator with a high media

profile, seeks judicial review of a decision by the respondent (RITANZ) declining to
admit him as a member of that Association.1

Such decision was based on an

assessment that Mr Grant had not satisfied the “good character” requirements of
admission. In turn, that conclusion was reached having regard to serious dishonesty
offending by Mr Grant during the period 1987 – 1994, when he was aged between
22 and 27.
[2]

Mr Grant is now in his mid-fifties. He points to an exemplary life since service

of his sentences and says that, in making its assessment, RITANZ did not apply the
correct legal test, took into account irrelevant matters, failed to take into account
relevant matters, and reached a decision which was unreasonable in an administrative
law sense. He also takes issue with aspects of its process – resulting, he says, in an
unfair hearing. In particular, he says the decision is tainted by apparent bias.
[3]

Mr Grant does not pursue membership of RITANZ for purely social, educative

or related reasons.

Recent legislative changes mean that, failing admission to

membership, he will be unable to continue to practise as a liquidator – his chosen and
successful profession over the last 14 years.
[4]

Although it is not the role of this Court on review of a membership decision by

RITANZ to itself make an assessment of Mr Grant’s “good character”, he says the
case is of such an exceptional nature that, if satisfied RITANZ made one or more
reviewable errors, the Court should make orders admitting him to membership now.
Alternatively, he seeks remission of his application for rehearing, in accordance with
the observations of this Court.
The legislative background
[5]

Although the Companies Act 1996 and its predecessors have, for many years,

imposed extensive obligations on liquidators, receivers and administrators there has

1

The decision was made by the Board of RITANZ which empanelled five members. I will hereafter
refer to it as the Panel’s decision.

 not, until recently, been any legislative regime prescribing who may be subject to
appointment.
[6]

Over time, isolated instances of unscrupulous and, in some cases, illegal

behaviour by appointees, resulted in increasing public pressure to introduce such a
regime. In the result, the Insolvency Practitioners’ Regulation Act 2019 (IPR Act) was
enacted. Its purpose is “to promote … quality, expertise and integrity in the profession
of insolvency practitioners…”.2 It introduces a co-regulatory model under which
accredited professional bodies are responsible for licensing.
[7]

Currently the only accredited body under the IPR Act is the New Zealand

Institute of Chartered Accounts (NZICA).

To become a licensed insolvency

practitioner, a person must be a member of NZICA or fall within one of the three
exceptions created by s 57.3 This structure reflects the fact that, historically, most
insolvency practitioners have been chartered accountants.
[8]

[9]

The exceptions created by s 57 are for:
(a)

Overseas insolvency practitioners;

(b)

Members of a “recognised body”; and

(c)

Members of certain religious orders.

RITANZ is a recognised body. Mr Grant is not a chartered accountant and his

only realistic path to accreditation as a licensed insolvency practitioner is therefore
through membership of RITANZ.
[10]

RITANZ does not issue the relevant licence, as suggested by Mr Grant in his

submissions. That function is performed by NZICA. Membership of RITANZ is,
however, one way in which an applicant can fulfil one of the criteria relevantly
invoked by NZICA.4

2
3
4

Insolvency Practitioners Regulation Act 2019, s 3(a).
Section 9(2)(c).
Refer ss 9 and 57 of the Act.

 RITANZ
[11]

RITANZ is an incorporated society which was established in 2014.

Its

purposes include promoting standards in the insolvency profession and fostering
cooperation and collaboration between its members. Membership decisions are made
by empanelled members of an elected board (the Panel) and in accordance with
procedures set out in Section 5 of the Association’s Rules. Rule 5.2 states that :
In order to qualify for membership, an applicant must, among other things:
…
(d)

[12]

Be of good character (as determined by the Board in its absolute
discretion).

Clause 5.5 reiterates that decisions of the Board are in its sole discretion and

r 5.6 records that the Board is “not required to give any reason for determining not to
admit an applicant to membership”.
[13]

Despite references to “absolute” and “sole” discretion, RITANZ accepts that it

must, nevertheless, act in accordance with the principles of natural justice and in
accordance with law, that decisions declining admission to membership involve an
evaluative assessment and that they are potentially reviewable by this Court.
[14]

By way of high-level commentary on this new statutory regime, RITANZ

makes three points with which I am in agreement:
(a)

The Act was consciously introduced to lift the levels of professionalism
and public reputation of the insolvency profession. Parliament also
contemplated the possibility that some existing practitioners would not
be licensed.5 The good character requirement in RITANZ’s Rules is
mirrored in a fit and proper requirement within the legislation itself.6

5

6

At the first reading of the Insolvency Practitioners’ Bill in 2010, the Honourable Judith Collins
stated that there was “a small minority of individuals practising as insolvency practitioners who
simply should not be” (24 August 2010) 666 NZPD 13543.
See s 57(1)(c)(ii).

 (b)

In providing for NZICA and RITANZ to make their own membership
decisions, Parliament chose a different regulatory approach to that
which exists for lawyers. Under the Lawyers’ and Conveyances Act
2006, the High Court itself carries out the assessment of character
which is a precondition to admission. In the typical case, it will rely on
the Law Society for certification to that effect. Where the Society
declines to certify, then the High Court will, on application, conduct its
own inquiry. By contrast, the relevant character assessment in this case
was one for RITANZ to make.7
For present purposes, the most important consequence of this
distinction is to emphasise that the legislation does not envisage this
Court deciding whether Mr Grant can now (despite his previous
criminal history) be considered of sufficiently good character to be
licensed as an insolvency practitioner. Its focus must determinedly be
whether the entity responsible for that enquiry undertook it in
accordance with its administrative law obligations. While therefore the
case presents against a backdrop of the redemption themes which have,
since time immemorial, been the mainstay of novelists, playwrights,
librettists, song and (latterly) screenplay writers and which ultimately
have their origin in religion and philosophy,8 these are issues which the
legislative framework ultimately requires RITANZ and not this Court
to grapple with. In saying that, I acknowledge at the outset that the task
is not an easy one. In circumstances where courts are required to make
an assessment of fit and proper status, as in the context of legal
practitioners, its decisions are often characterised by a divergence
among reasonable and even eminent minds. The Supreme Court’s
recent decision in New Zealand Law Society v Stanley9 where it divided

7

8

9

Assuming the application for a licence is made pursuant to s 57(1)(a)(ii) of the Act, the applicant
must not only meet the criteria for membership of RITANZ but must also satisfy NZICA that he
is a “fit and proper person” (IPR Act 2019, s 9(2)(a)(ii)). There has not yet been any instance
whereby NZICA has declined to recognise as fit and proper, a person who RITANZ accepts as
being of sufficiently “good character”.
For an erudite discussion, see Kirby P in Law Society of New South Wales of the Forman (No 2)
[1994] 34 NSWLR 408 (CA) at 419.
New Zealand Law Society v Stanley [2020] NZSC 83.

 three – two in circumstances where the applicant for admission to the
bar had four prior breath/blood alcohol convictions, exemplifies the
point.
(c)

The involvement of other industry professionals (even, in a literal
sense, competitors) in the decision-making process is an inevitable
consequence of the statutory regime. Under the IPR Act, “recognised
bodies” for the purposes of s 57, must be approved by the Registrar of
Companies. RITANZ has been so approved – its approval having been
given on the basis of rules which had been in place since 2014. These
rules provide for membership decisions to be made by the Board who
are themselves industry participants. This represents important context
to any suggestion that good character adjudication by a panel of
potential “competitors” is tainted by apparent bias.10

Mr Grant’s criminal history
[15]

Mr Grant has 34 convictions for dishonesty offences. These occurred in two

clusters.
[16]

The first involved offending for which he was sentenced in December 1987

and February 1988, at which point he was 22 years old. The Panel identified this
offending as the “credit card frauds”, although on the face of his criminal record other
related dishonesty offending appears to have been involved.11

Mr Grant was

sentenced to a period of non-residential periodic detention. The sentencing notes are
no longer available.
[17]

The second tranche of offending occurred approximately six years later. The

decision under review describes it as the “share theft frauds”. It involved more serious

10

11

In the present case, the Panel which considered Mr Grant’s application was, on the evidence,
broadly reflective of the professional composition of RITANZ in that it comprised two
accountants, two lawyers and a banker. Only a minority of the Panel (Mr Fisk and Ms Johnstone)
where themselves insolvency practitioners. Their evidence was that, professionally, their paths
seldom crossed those of Mr Grant.
The charges for which he was convicted included: take credit card for pecuniary advantage,
take/obtain/use document for pecuniary advantage and theft.

 offending with the total value of the frauds in the hundreds of thousands of dollars.12
It resulted in convictions for theft, forgery, personification by fraud, altering a
document with intent to defraud, taking/obtaining/using a document for pecuniary
advantage, conspiracy to defraud and related charges. The sentence imposed was 30
months’ imprisonment of which Mr Grant appears to have served 16 before being
paroled, apparently on a second application.
Although, again, no sentencing notes are available, some insight into the nature

[18]

of the offending, Mr Grant’s stated role and whether he attempted to minimise the
same is, however, available from the Court of Appeal’s decision in respect of
Mr R Paton who, along with Mr L Zalkalnins was charged as a co-offender. It
described the share theft frauds as characterised by a “complicated scheme which used
stolen investment records, fraudulent declarations of loss of script and interference
with postal boxes, in order to obtain duplicate stock certificates which were then sold
and the proceeds converted into gold bullion”.13
Unlike Mr Grant and Mr Zalkalnins, Mr Paton pleaded not guilty to the

[19]

charges. At his trial, Mr Grant gave evidence for the Crown. The Court of Appeal’s
decision records that:
[Mr Grant] said that [Mr Paton] was the originator and brains behind the stock
frauds, which were [Mr Paton’s] concept and plan, and for that reason he was
to receive the lion’s share of the proceeds although he, Grant, and Zalkalnins
had carried out the physical steps necessary to obtain and then sell the
duplicate script.

By contrast, Mr Zalkalnins, who gave evidence for the defence, said that

[20]

Mr Grant was a principal party in the stock frauds and that Mr Paton was not involved
at all.
[21]

Subsequent to Mr Paton’s conviction, the Crown Solicitor at Auckland was

told by police that they held an outstanding file relating to an earlier and smaller stock
fraud which had been carried out using the same complex scheme and in which

12

13

Mr Grant says something in the range of $400,000 to $600,000 plus the value of gold bullion
ultimately recovered.
R v Paton CA354/94, 2 November 1994, to which I will return subsequently in this judgment.

 Mr Grant and Mr Zalkalnins were implicated but not Mr Paton. This information was
provided to Mr Paton’s defence and formed the basis of his appeal against conviction.
[22]

The Court of Appeal held:14
However, we are satisfied that the appellant’s conviction on the fraud charges
must now be considered unsafe. Grant’s evidence was central to the Crown
case against the appellant and the Crown concedes that the new information
must affect the credibility of his claim that the appellant was the planner and
instigator of those frauds.

[23]

The Panel’s decision records that, while it had referred this judgment to

Mr Grant, he did not comment on it and that in his affidavit in support of admission to
RITANZ he deposed that Mr Paton taught both him and Mr Zalkalnins how they could
take advantage of the minimal security around the issuing and transfer of shares in
listed entities. Significantly however, although Mr Grant was questioned extensively
at the hearing in relation to other matters, no specific questions were asked in respect
of the Court of Appeal’s decision.
[24]

For completeness I note that no subsequent charges were brought against

Mr Grant for the earlier alleged share fraud referred to in the Paton judgment.
[25]

I also note the Panel’s observation, that at no stage did Mr Grant suggest that

the offending for which he was prosecuted and convicted in 1987, 1988 and 1994
represented the totality of his criminal activities over that period. On his own
admission he lived “a criminal lifestyle” for a period of five to six years between the
ages of approximately 22 and 27.
[26]

In summary the position is, therefore, that Mr Grant has a serious history for

dishonesty offending, albeit that the last such offences occurred 27 years ago. There
were real victims and the losses were substantial. Although Mr Grant pleaded guilty
with the acknowledgement of implicit wrongdoing in such a plea, the credibility of
both his historic and contemporary claims that Mr Paton was “the mastermind” or
“principal player” in respect of the share theft frauds remains in dispute. Mr Paton

14

R v Paton CA354/94, 2 November 1994 at 3.

 died before any retrial of his charges could take place, so that credibility issue is not
now likely to be capable of definitive resolution.
Mr Grant’s reform
[27]

Mr Grant has not re-offended since 1994. Indeed he presents as something of

a “poster boy” for reform. In prison, he recommitted himself to earlier academic
studies, enrolling with the Open Polytechnic. On release, he completed his Bachelor
of Commerce Degree and Honours Degree in Economics. He then worked in the gas
industry. In 2006, while a consultant to that industry, he accepted his first appointment
as a liquidator. He then undertook extensive private study in respect of insolvency law
and practice. That is the genesis of what is now Waterstone Insolvency – a firm of
which he is the principal and sole director and which has now grown to in excess of
20 employees. Mr Grant has himself been appointed to over 800 insolvencies (i.e.
liquidations, receiverships and voluntary administrations). His current appointments
number approximately 200.15 He says that over the last three years he has been
appointed in respect of approximately three per cent of all insolvency applications in
New Zealand and approximately five per cent of all non-IRD appointments.
[28]

He deposes that his approach as a liquidator is “very pro-active … to creditor

rights”. Cases in which he has been involved have made a significant contribution to
New Zealand insolvency law.
[29]

In addition he has developed a significant media profile based on his libertarian

political philosophy. His writings have included discussion of his criminal past. He
describes prison as something that “does not change you. It is not a laboratory for
crime and it offers no paths for redemption for people who do not alter their life’s
trajectory”. True to the tenets of his political philosophy, therefore, he considers
reform is ultimately a matter of personal responsibility. Mr Grant is now married and
has a seven-year old son. All outward indicia are therefore of a person who has
successfully put his criminal past behind him and who now contributes to society at
its highest commercial and other levels.

15

Under transitional arrangements Mr Grant may continue in respect of existing appointments
despite the non-admission to RITANZ until 1 September 2021.

 The path to this application
[30]

Mr Grant made his initial application for RITANZ’s membership on

12 February 2020. It was supported by seven character references.
[31]

There was no substantive response until 14 May when Mr Richard Gordon on

behalf of the RITANZ Board offered Mr Grant an opportunity to comment on
information that had “come to [the Board’s] attention” from outside sources and which
it saw as being relevant to his extant application. Mr Grant’s solicitor responded on
26 May 2020 providing certain additional information and questioning the relevance
of some of the material which had come to the Board’s attention. Mr Grant also
objected to three of the Board members who would be on the Panel that had been
tasked with consideration of his application. Two of those members subsequently
recused themselves.
[32]

On 2 June RITANZ advised Mr Grant that it had declined his membership

application. It gave no reasons for its decision.
[33]

Mr Grant then commenced judicial review proceedings for which the Court

allocated a priority fixture on 17 August 2020. These proceedings were resolved by
way of agreement on the part of RITANZ to conduct a rehearing of the application
before 31 July 2020. As part of the agreement Mr Grant was invited to attend the
rehearing in person with counsel and RITANZ agreed to provide a written decision
with reasons within 14 days. In the result, RITANZ withdrew its June decision and
Mr Grant discontinued his judicial review proceedings with no issue as to costs.
[34]

The rehearing took place on 27 July 2020. On 24 July RITANZ advised

Mr Grant that the Board members hearing his application would be John Fisk (Chair),
Matt Kersey, Mornet van der Merwe, Kare Johnstone and Jennifer Tunna. It also
provided him with copies of judgments in respect of both Mr Paton and Mr Zalkalnins.
It observed that it wished “to discuss these with Mr Grant and to hear [his] comments
on them” at the hearing.
[35]

For the purposes of the hearing Mr Grant provided a total of 20 affidavits in

support from a variety of senior and respected business and professional people. These

 included Dr Don Brash, former governor of the Reserve Bank of New Zealand and
leader of the opposition, Mr Roger Partridge, former chairman of Bell Gully, Mr Bruce
Shepherd, a well-known shareholders’ rights advocate, Mr Michael Dineen, a
longstanding former partner of Buddle Findlay and many others.
[36]

The rehearing took approximately three hours. Mr Grant was represented by

counsel, Mr Hollyman QC who presented oral and written submissions. Mr Grant
read from an affidavit sworn for the rehearing, becoming emotional at the point he
recounted aspects of his criminal past. He was questioned at length. I consider a fair
reading of the transcript indicates significantly greater focus on Mr Grant’s past,
including the genesis of his offending, aspects relating to his apprehension and plea,
the extent of any amends etcetera, than on his subsequent history as a successful
member of New Zealand’s commercial community.
RITANZ’s decision
[37]

At the outset of its decision the Panel acknowledged that although RITANZ’s

rules provided for membership admission to be at the “sole discretion” of the Board,
the good character requirement in the rules imposed an objective test necessitating an
evaluative judgment rather than exercise of pure discretion. The Panel was correct in
that approach. It said that its consideration was informed by the objects of RITANZ
because the focus of the inquiry was to determine whether Mr Grant had sufficiently
good character to be a member of the organisation and therefore an accredited
insolvency practitioner.
[38]

In a key paragraph it then stated that:
3.3

[39]

In evaluating “good character” where there are prior convictions of a
serious nature, we seek to consider and weigh the aggravating factors
associated with them against evidence of insight into them, remorse
and reform from those acts and present positive qualities that
demonstrate integrity, probity and trustworthiness”

Mr Hollyman takes issue with this formulation of the test. Whether he is

correct in that submission is probably the most critical issue in the proceedings.

 [40]

The Panel considered that the good character assessment permitted it to take

into account wider public interest considerations, such as whether admission would
risk damage to the reputation of the insolvency profession. It said its assessment of
good character was informed by authorities relating to the admission of lawyers,
although accepting the professions were different. Again Mr Hollyman takes issue
with that proposition.
[41]

The Panel referred to the approach of the Court of Appeal in Re Owen16 a case

involving admission of a legal practitioner – in terms that it “would need to be satisfied
that the frailty or defect of character indicated by the convictions can now be regarded
as entirely spent”. Put another way, that the applicant had achieved such a complete
turnaround or reformation that the convictions could be safely ignored”.17
[42]

The Panel then set out at length what it regarded as the evidence in relation to

both the convictions and Mr Grant’s reform. It noted, in respect of the share theft
frauds, that Mr Grant had initially absconded but later pleaded guilty. It said that it
was unable to establish the precise quantum of the sums dishonestly obtained in the
course of either tranche of offending and implicitly criticised Mr Grant for not
providing it with further details in respect of any other offending for which he was not
charged or convicted. It noted that one commentator had suggested the share theft
frauds were in the “multi-million dollar” category but in a 2018 interview by the
National Business Review Mr Grant said the approximate range was between
$400,000 and $600,000 plus the value of five kilograms of gold which was recovered.
It referred to the Paton18 decision which it said “implicated” Mr Grant “in a second
fraud ‘using the same complex scheme’ for which he was apparently not charged”. It
assumed that “in at least some cases Mr Grant has not disclosed the full extent of his
criminal history to those who provided affidavits in support”. It noted that no medical
or psychological evidence had been submitted in support of his application nor
probation reports provided. It recorded the fact of Mr Grant’s previous criminal
history was now a matter of some “notoriety” in the insolvency industry, and perhaps

16
17
18

Re Owen [2005] 2 NZLR 536.
Re Owen [2005] 2 NZLR 536 at [35].
R v Paton CA354/94, 2 November 1994.

 more widely, pointing out that he had engaged with the press pro-actively, albeit after
he was aware the press had been investigating his past.
[43]

As to evidence of reform, it noted the now historic nature of the offending, Mr

Grant’s public demonstrations of remorse on many occasions, what it regarded as “a
sincere” demonstration of emotion at the hearing when reflecting on his prior
transgressions, the fact he was now a husband and father with a young son and that he
had built a successful business and writing career. It recorded that he produced
affidavits from a number of deponents who had deposed that he had acted with
integrity and honesty in his dealings with them and that two of his legal employees
had supported him at the rehearing.
[44]

In its analysis section, comprising a little over two close-typed pages, the Panel

then set about the “weighing” exercise which it had predicated in [3.3] of its decision.
In respect of the convictions it said that there were “a number of aggravating aspects”
which were of particular concern, namely:
(a)

the offending was serious, prolonged and premeditated;

(b)

in respect of the credit card frauds, Mr Grant had initially declined to
co-operate but when presented with a plea bargain changed his mind;

(c)

in respect of the share theft fraud, he had initially absconded before
finally co-operating;

(d)

there were questions about whether he had given honest evidence about
the extent of his role in the share theft fraud – citing the Court of
Appeal’s observations in R v Paton;19

(e)

the offences were all relatively complex;

(f)

they were premeditated, and in the case of the credit card frauds there
was also involvement in the criminal market to sell the stolen goods;

19

R v Paton CA354/94, 2 November 1994.

 (g)

the offending involved sustained dishonesty over a period of five to six
years during which Mr Grant clearly knew what he was doing was
wrong;

(h)

there was significant value in the property stolen;

(i)

Mr Grant was an adult throughout the offending and relatively mature
by the time of the share theft fraud;

(j)

the second tranche of the offending invited a sentence of imprisonment;
and

(k)

other than the proceeds of the gold recovered and monies held by
Mr Grant at the time of arrest, he had made no “effort at restitution”.

[45]

Weighed against these aggravating factors the Panel noted:
(a)

his guilty pleas (although again referencing the comments of the Court
of Appeal in Paton);20

(b)

the “very long time” since he was last convicted – 27 years;

(c)

his many demonstrations of remorse, although noting that Mr Grant did
not appear to have “been interested in acknowledging his offending in
public until the media threatened to expose him”;

(d)

his public profile as a result of a well-developed writing career (but
noting the corollary that his convictions now have “a higher prospect
of drawing public attention” if he was to become an accredited
insolvency practitioner);

20

R v Paton CA354/94, 2 November 1994.

 (e)

the emotion expressed at the hearing which appeared to the Panel to
confirm “genuine guilt or shame” in relation to his prior “selfdestructive path”;

(f)

the very significant number of affidavits from senior members of the
business and legal community (noting, however, that only one of the
affidavits was from an accredited insolvency practitioner and that it was
“not clear how many had actually been informed of the full extent of
Mr Grant’s offending or criminal past”); and

(g)

Mr Grant’s acknowledgement that although as a liquidator there were
many opportunities for him to act dishonestly, that was not the life he
now intended to live.

[46]

[47]

It then concluded:21
5.4

We understand that the purpose of applying the “good character”
requirement in the Rules is not to punish for past misconduct or
perceived personal flaws, but to protect the public and to promote the
integrity of the profession as a whole and public confidence in it. We
have been unable to identify any examples from New Zealand or
overseas of a person with as significant relevant criminal offending as
Mr Grant being admitted as either a lawyer or insolvency practitioner.

5.5

Overall, we are left with significant doubt about the extent of
Mr Grant’s offending, his insight into it and the degree to which he
has been open about it. We are therefore not satisfied that grant can
confidently be regarded as a person of good character under the Rules.

It therefore declined his application for admission.

Mr Grant’s case
[48]

Mr Grant advances three grounds in support of his application for review:
(a)

21

the decision was made in error of law;

Hearing of application for membership of RITANZ: Damien Grant. Notice of decision and
reasons 10 August 2020.

 (b)

the decision took into account irrelevant matters and failed to take into
account those that were relevant and, as a result, was “unreasonable and
unlawful”; and

(c)

alleged procedural impropriety involving an unfair process, apparent
bias and predetermination.

[49]

As to the first ground, Mr Hollyman’s principal submission is that in

purporting to “weigh” the aggravating factors in Mr Grant’s three decade old
offending against the evidence of reform and his positive qualities, the Panel misstated
the appropriate test in a way which led to an unduly retrospective focus on the detail
of the offending rather than the prospective focus required by law (including the
obvious evidence of his reform).
[50]

He submits that there were a number of further and subsidiary errors of law

including that:
(a)

the Panel’s emphasis on its stated inability to ascertain exactly what the
offending had involved, almost 30 years ago, invited a retrial of
Mr Grant contrary to the observations of the Full Court of the High
Court in Leary v New Zealand Law Practitioner’s Disciplinary
Tribunal;22

(b)

the Panel’s suggestion that Mr Grant lacked “insight” into his
offending,23 indicated that it had fallen into the same error corrected in
Leary where it was observed that Mr Leary’s “inability to discern the
wellsprings of his past inexplicable and wrongful behaviour should not
be confused with an inability to know it occurred and now recognise it
as wrong”;24

22
23

24

Leary v New Zealand Law Practitioners Disciplinary Tribunal [2008] NZAR 57 (HC) at [51].
A proposition which Panel member Ms Tunna explained in her affidavit was an allusion to his
unwillingness “to go into significant detail about his life circumstances at a time when his
criminality prevailed”.
Leary v New Zealand Law Practitioner’s Disciplinary Tribunal [2008] NZAR 57 (HC) at [43] –
[51].

 (c)

the Panel erred in failing to identify material differences between
lawyers and insolvency practitioners and that, as a result, an
unnecessarily stringent approach to the good character requirement was
imposed; and

(d)

that it failed to identify that Mr Grant was not a new entrant into the
insolvency profession and the fact that the Panel’s decision therefore
amounted to a de facto striking off for well-known matters that long
predated his involvement in the profession.

[51]

In respect of the second ground of review, Mr Hollyman submits that the Panel

took into account irrelevant considerations in the following respects:
(a)

By drawing an adverse inference from the Court of Appeal’s
observations in R v Paton,25 when in fact Mr Grant gave honest
evidence at Mr Paton’s original trial and would have repeated that
evidence had Mr Paton’s ill-health and subsequent death not prevented
a retrial. He emphasises that Mr Grant was not charged for any related
offending and the evidence given about the totality of losses and the
extent of recoveries made related to the totality of all share theft
offending.

(b)

By regarding as an aggravating factor “of particular concern”
Mr Grant’s initial failure to co-operate with police in respect of the
credit card frauds in circumstances where he ultimately pleaded guilty.
Mr Hollyman submits that this converts what is properly a mitigating
factor into an aggravating factor and reinforces the conclusion that the
Panel adopted an unduly retrospective approach.

(c)

By improperly minimising expressions of remorse on account of the
fact that Mr Grant had only publicly acknowledged his criminal past
when presented with likely press exposure. Mr Hollyman submits that
a person can be genuinely remorseful without public purgation. Indeed

25

R v Paton CA354/94, 2 November 1994.

 he suggests it is a “nonsense” that a person seeking to rehabilitate
themselves would adopt such a course when they were seeking to put
their past behind them. He further submits that this again shows an
unduly retrospective emphasis and that RITANZ’s concern should have
been to assess whether Mr Grant was, as he presented to the Panel in
2020, genuinely remorseful. He also criticises the fact that the matter
of Mr Grant’s alleged reticence in acknowledging his criminal past was
not clearly put to him in the course of the hearing and that there was no
basis therefore for the Panel to have concluded that he appears “not to
have been interested” in any acknowledgment prior to media inquiry.
(d)

By dismissing or minimising Mr Grant’s character references on the
basis that none of the deponents had “conducted a thorough
investigation and nor do they apply the legal test for good character
when providing their opinions”. Mr Hollyman says that the referees
were not required to have had that level of background detail and that
this further demonstrates RITANZ’s improper fixation on historical
events and limited interest in the forward looking exercise mandated by
the authorities. He also submits that most of the referees were, in any
event, well aware of at least the general tenor of Mr Grant’s previous
convictions and the fact that he had been imprisoned but that
nevertheless they were able to attest to his current good character. He
describes the approach of the Panel as one which incorrectly acquired
an “adjudicative” role whereby the referees conducted their own factfinding inquiry and then applied the “legal test” for good character. He
submits that this fundamentally misstates their role which is to help a
decision maker assess the current attributes of an applicant including
their reputation within the community. He submits that, as a result, the
Panel gave insufficient weight to the references of numerous eminent
and responsible people whose confidence in Mr Grant’s current good
character should have assuaged the Panel’s concerns that his admission
to the Association would create an unacceptable risk to the reputation
of the insolvency profession. Finally, he submits that the Panel’s
reference to only one of the referees being an accredited insolvency

 practitioner again incorrectly minimised the relevant evidence. He says
that Mr Grant was never told that references from accredited
insolvency practitioners would carry any particular premium and that
there is no reason to suggest that such practitioners were any better
qualified than other prominent members of the commercial and
professional community to depose on issues of character.
[52]

In respect of the third ground of review Mr Grant alleges that RITANZ acted

unfairly by, respectively, under and over-emphasising the matters previously referred
to. He says also that its decision was affected by apparent bias in that:
(a)

Members of the Panel were competitors in the insolvency industry.

(b)

RITANZ had, during the infancy of the legislation, sought to have any
person with a previous conviction disqualified as an insolvency
practitioner.

(c)

Undue emphasis was placed during the course of the hearing on the
convictions and Mr Grant’s historic conduct.

(d)

The Panel adopted a “dismissive” approach to the overwhelming
weight of the referee’s evidence and their “gravitas”.

(e)

There were indications in the recording of a discussion between Panel
members at the morning tea adjournment that they regarded Mr Grant’s
display of emotion during his evidence as inappropriate or even a
matter of humour.

[53]

In summary, he submits in respect of the third ground, that the approach

adopted in the decision was in each case to focus on the most negative aspects and
most negative interpretation possible and to minimise the overwhelming body of
evidence indicating reform and thus present good character. He submits that this is
indicative of apparent bias, the origins for which may ultimately lie in the fact that
Mr Grant was in direct and sometimes adversarial competition with some of the

 decision makers – both those involved in the initial decision and those empanelled for
the rehearing.
[54]

In terms of relief, Mr Hollyman submits that the Court’s first response must be

to quash the decision. That much is uncontentious if appropriate grounds are made
out. He goes on, however, to say that this is one of those rare cases where the Court
should substitute its own decision and admit Mr Grant to the Association.

He

acknowledges that it is only rarely that the Court is persuaded to adopt such a course
and that it will only do so if it is a “clear case”. But he says that no further factual
findings are necessary, Mr Grant has already been held out of membership for over
eight months since his initial application and the delay associated with any rehearing
would inevitably be costly to him in terms of interim inability to accept further
appointments and in terms of reputational damage. He submits that this Court is in as
good a position to make the decision as RITANZ but that if the Court is unpersuaded
to follow this approach it may be appropriate for it to require that the matter be
considered entirely afresh by a newly constituted Panel.
What was the legal test the Panel was required to apply? – The principles
applicable to assessment of good character
[55]

Because of the novelty of the relevant legislation the Panel did not (and neither

does this Court) have the assistance of any decisions specific to it. Nor were counsel
able to identify any decisions from foreign jurisdictions which would directly assist.
[56]

At the outset I adopt the Supreme Court’s observation in Stanley v New

Zealand Law Society,26 that the content of a good character requirement may vary
according to context. The context here is not simply admission to a voluntary
organisation for cultural, educational or community purposes. Under the relevant
legislation RITANZ now has a gateway function in terms of ability to conduct the
business of an insolvency practitioner. It was entitled to make an assessment of good
character premised on an intended application by Mr Grant to NZICA to be licenced
in that respect and on the assumption that its assessment of good character would likely
inform the outcome of that application. It was also entitled to take into account its

26

Stanley v New Zealand Law Society [2020] NZSC 83.

 own purposes in promoting the standards of the insolvency profession and the extent
to which there was any legitimate reputational damage to the organisation from
Mr Grant’s admission.
[57]

There are a wide range of professions which have good character and

competence requirements for entry. In the absence of authority specific to insolvency
practitioners, the Panel considered its assessment “informed by the legal authorities
relating to admission of lawyers”. Mr Hollyman submits that although it was entitled
to be so “informed”, the Panel erred in failing to identify material differences inherent
in the good character test for lawyers as opposed to insolvency practitioners.
Simultaneously, however, he relies on several authorities relating to legal practitioners
for the proposition that the Panel erred in its approach. I address this issue now
because, in a landscape dominated by decisions concerning legal practitioners, it is
important to understand whether the approach to good character assessment in those
cases is fairly referable to the present.
[58]

There is no doubt that there are significant differences between practice as a

lawyer and a liquidator. Insolvency practitioners do not take an oath of office like
lawyers do. In particularly contentious or complicated matters they will invariably
engage lawyers to act on their behalf. Although insolvency practitioners do act as
fiduciaries in some respects, the exercise of their statutory rights under the Companies
Act are subject to significant levels of Court supervision. I accept that they do not
typically have as close and confidential a relationship with their clients as lawyers do.
[59]

The Panel recognised that this was the case. It said, “we accept that the

professions are different”. However, it also highlighted some similarities, including
the fact that both lawyers and insolvency practitioners routinely handled money and
property belonging to others. It correctly noted that liquidators have significant
control over the results flowing to creditors and other vulnerable parties in failed
companies and other entities.
[60]

At least on the facts of this case, I consider such distinctions as exist between

the professions to be irrelevant. Mr Grant was declined admission to RITANZ for the
reason only of prior criminal offending involving dishonesty. It is axiomatic that,

 given the extent of control that insolvency practitioners have over others’ financial
affairs, they be trustworthy. It has been the failure of some to meet that basic
requirement which can be seen as part of the catalyst for the current legislation. As
Mr Grant himself acknowledged in his evidence “the opportunities that you get to act
dishonestly as an insolvency practitioner are enormous”.
[61]

I accept that given one of the purposes of the Act was to promote integrity

among insolvency practitioners, it would be wrong to suggest that any lesser standard
of honesty and trustworthiness was appropriate to insolvency practitioners than to
lawyers. It can be no more appropriate to admit to practice a potential liquidator
formerly convicted of complex fraud than it can be a lawyer with similar convictions.
However, the case law in respect of lawyers suggests there is no immutable bar in that
respect and likewise there should be no immutable bar for insolvency practitioners.
The Panel did not suggest that there was. Nor on the hearing of this application did
Mr Hunter QC submit that Mr Grant was never entitled to be admitted to membership
and could thus permanently be precluded from pursuing his chosen vocation.
[62]

I therefore revert to the principles which would be applicable to a lawyer

seeking admission in such circumstances.
[63]

The most recent and definitive discussion of these occurs in the Supreme

Court’s decision in Stanley.27 Regrettably this was released a week after the Panel’s
decision declining Mr Grant’s admission. The Panel would have no doubt greatly
benefitted from it.
[64]

Mr Stanley sought admission as a barrister and solicitor despite four

breath/blood alcohol convictions over the period 1978 to 2004. The Law Society
decided that he was not a fit and proper person.28 In the Supreme Court the majority
decision includes a discussion at [35] – [54] of the approach to be taken to the fit and
proper person standard. The minority was in “general agreement” with this exposition
of principle,29 although differing in terms of outcome.
27
28

29

Stanley v New Zealand Law Society [2020] NZSC 83.
As the Supreme Court observed at [13], under the current Law Practitioners Act good character is
a subset of the fit and proper person standard.
At [105] and [106].

 [65]

The following points emerge from the majority discussion:30
(a)

The fit and proper person test has both a prophylactic purpose, in terms
of protecting the public, and a reputational aspect reflecting the need to
maintain public confidence in the legal profession. I note at this stage
that I accept these purposes apply equally to the present case.

(b)

The evaluation is a “forward looking exercise” because the decision
maker is required to make a judgment at the time of undertaking the
evaluation in terms either of risks to the public and/or damage to the
reputation of the profession if the applicant is admitted.

(c)

The evaluation is objective – it should not in any way be influenced by
sympathy for the position of the applicant.

(d)

The approach is not punitive – it is to be based exclusively on the need
for public protection or the maintenance of public confidence in the
profession. The applicant must be honest, trustworthy and a person of
integrity. Again that accurately captures the character requirements in
my view necessary for any insolvency practitioner.

(e)

Where the potential barrier to admission is the existence of prior
convictions three aspects will be particularly relevant – the nature of
the offence, the time that has elapsed since the offending and the
applicant’s age when the offence was committed.

(f)

The nature of the offending is an important consideration and some
convictions will inevitably be problematic by their very nature. The
Court identified dishonesty offences in that category because of the
direct connection to legal practice. As I have already accepted, exactly
the same connection exists in respect of insolvency practitioners. The
Court did not, however, suggest that prior dishonesty convictions,

30

The minority did not take issue with this analysis. It diverged from the majority on application of
the principles to the facts of Mr Stanley’s applications.

 however historic, would be a permanent bar. It cited this Court’s
decision in Re Owen31 where the Court was satisfied that despite very
serious dishonesty offending for theft and burglary (coupled with
convictions for wilfully setting fire to property, drug possession and
driving offences), the applicant for admission to the bar had undertaken
such a complete reformation that he could now be regarded as of good
character and a fit and proper person.32 In reference to that case, the
Supreme Court noted commentary by Webb, Dalziel and Cook33 to the
effect that:34
While the wrongdoing was in many ways of the most serious
kind and wholly inconsistent with the status of a barrister and
solicitor, the Court was convinced the [applicant] was a “new
man” in a real and not trivial sense.

(g)

Cases like Owen were to be contrasted with those like Layne v Attorney
General of Grenada35 where the offending was so serious – in that case
involving conviction for murder – that (as the Privy Council held) an
applicant could never effectively meet good character criteria.

(h)

Some convictions will be in the trivial category, or be so dated as to
lose any significance, or may simply stem from youthful immaturity.

(i)

The inquiry reflected in the previous authorities in terms of whether the
“frailties” or “defects in character” reflected in the convictions can now
be regarded as “entirely spent”, is appropriately updated in terms of
whether and to what extent the conduct remains relevant at the time of
the current inquiry. Whether past conduct remains relevant is a fact
specific inquiry in respect of which “the Court must look at all of the
evidence in the round and make a judgment as the present ability of the
applicant to meet his or her duties and obligations as a lawyer”.36

31
32
33

34
35
36

Re Owen [2005] 2 NZLR 536.
At [37] – [39].
Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the
Lawyer (3rd ed, LexisNexis, Wellington, 2016) at 143.
Stanley v New Zealand Law Society [2020] NZSC 83 at footnote 99.
Layne v Attorney General of Grenada [2019] UKPC 11, [2019] 3 LRC 459 at [36].
Stanley v New Zealand Law Society [2020] NZSC 83 at [54(e)].

 (j)

The standard is necessarily a high one but the Court should not “lightly
deprive someone who has otherwise met the qualifications of the
opportunity of practising as a lawyer”.37 Perfection is not required.

(k)

The onus is on the applicant. However, applications are unlikely to turn
on fine questions of onus.

Discussion
Reviewable error?
[66]

I start with Mr Hollyman’s lead submission that the Panel “mangled” the

relevant legal test by stating that it involved a process of “weighing” the aggravating
factors of the offending against matters of insight, remorse and reform and “present
positive qualities”.
[67]

I note at the outset that, having stated the test in these terms, the Panel went on

to invoke the standard pre-Stanley language in terms of whether the convictions “can
now be regarded as entirely spent” or “can be safely ignored”. But in its analysis
section it adhered closely to the “weighing” or “balancing” formula by first
enumerating at length what it said were aggravating aspects of the offending and then
identifying matters said to “support his reform”. This tabulation was then followed
by the brief conclusion that, overall, the Panel was left with “significant doubt about
the extent of Mr Grant’s offending, his insight into it and the degree to which he had
been open about it”. Significantly all three of these so-called significant doubts have
a retrospective focus. At no stage did the Panel say that it had significant, or even any,
doubts Mr Grant has truly moved on from his criminal past to become the “new man”
predicated in Owen.
[68]

I do not need to go as far as Mr Hollyman invites me to, 38 but I am satisfied

the Panel did apply an incorrect test.
37

38

Stanley v New Zealand Law Society [2020] NZSC 83 at [52] citing Lincoln v New Zealand Law
Society [2019] NZCA 442.
Some cases, for example Leary v New Zealand Law Practitioners Disciplinary Tribunal [2008]
NZAR 57 (HC) at [55], refer to the decision under review/appeal as placing “overmuch weight”
on retrospective factors and “too little weight” on reformative efforts, but that expresses the
consequences of error; the test itself is not premised on a “weighing” approach.

 [69]

I do not ultimately see the relevant inquiry as involving a “weighing” or

“balancing” exercise because that presupposes a relevancy in respect of the previous
convictions which may no longer be the case. In expressing the test in the way it did,
I consider the Panel sowed the seeds for an approach which unduly focused on the
historic position and insufficiently on:
(a)

evidence of reform;

(b)

the very extended period since the offending;

(c)

Mr Grant’s significant contributions to the commercial and media
worlds in the intervening period; and

(d)

the substantial number of prominent New Zealanders who considered
that his admission to the Association would, in light of the
completeness of his redemption, bring no ill-repute to it.

[70]

As the Supreme Court emphasised in Stanley39 the ultimate test in any case

involving past convictions is whether the conduct remains relevant, not whether the
offending was so egregious, or the “aggravating” factors associated with it are so
serious, that the conduct outweighs the evidence that Mr Grant is, 27 years later,
someone who can be considered a person of sufficiently good character to be admitted
to membership.
[71]

The danger, as I see it, in the Panel’s approach is that in the case of serious

dishonesty offending, as for example in this case and likewise in Owen,40 a balancing
approach may leave the scales permanently weighted against admission. That is not
to say that the nature of the offending is not important. Conspicuously it is. And, as
the Supreme Court acknowledged, dishonesty offending, will always be “problematic”
in the case of admission to a profession or vocation where honesty is essential. The
Court of Appeal in Stanley went further and suggested that “dishonesty leading to
imprisonment will generally be viewed as disqualifying a person from admission,

39
40

Stanley v New Zealand Law Society [2020] NZSC 83 at [106].
Re Owen [2005] 2 NZLR 536.

 particularly if the applicant was an adult at the time of offending”41. But what is
“generally” the position or what might be regarded as a “problematic” case does not
mean to say that the door is permanently closed. The Supreme Court acknowledged
as much in stating that convictions may, for example, be so dated as to lose any
significance.42 And as Kirby P noted in Law Society of New South Wales and Forman
(No 2):43
For cultural and historical reasons redemption and forgiveness are important
attributes of the shared morality of our society… In part it derives from the
self-interest which any community has to encourage the rehabilitation of those
who lapse and hold out to them the hope that by diligent and honourable
efforts over a period, their past may be forgiven and they may be restored to
the good opinion of their family, friends, colleagues and society.

[72]

I note also the Supreme Court’s emphasis in Stanley on the fact that the focus

of the evaluation exercise must be resolutely forward looking. A “weighing” or
“balancing” exercise does not have that perspective and carries the inherent danger
that applicants for admission are further punished for their past conduct. When a test
is framed in terms of whether the previous convictions remain relevant, inevitably the
primary focus turns from the past to the present. In that sense nuance is important and
if, as Mr Hunter acknowledges, the door cannot be considered permanently closed to
Mr Grant and he is free to apply again in the future, the question must inevitably arise,
if not now, when? Is 35 or 40 years of honest commercial and media endeavour really
any different in this sense to 27 years? Is, as I inquired in argument, Mr Grant only to
be admitted to (perhaps) honorary membership in his dotage? In that context the fact
that he is now 54 years of age with probably only 10 to 15 years of frontline
commercial activity still ahead of him must be a consideration.
[73]

Summarising to this point, I consider the Panel erred in approaching the task

by weighing aggravating factors against evidence of reform because inherently such
an approach diverts attention from the prospective focus which is necessary – both in
terms of whether the public can be expected to be adequately protected for the future
and in terms of any wider ongoing risk of danger to the reputation to the profession.
Its proper inquiry was into whether the previous offending remained “relevant”.

41
42
43

Stanley v New Zealand Law Society [2019] NZCA 119 at [35].
Stanley v New Zealand Law Society [2020] NZSC 83 at [43].
Law Society of New South Wales and Forman (No 2) (1994) 34 NSWLR 408 at [419].

 [74]

The “fall-out” from its error is evident both on a fair reading of the hearing

transcript, which, as I have indicated, shows a significant focus on the genesis of the
offending, and from the decision itself. For example, the decision emphasises the fact
that, in respect of the earlier credit card offending, a guilty plea did not occur at the
earliest opportunity and a “plea bargain” may have been reached. In my view
identification of this level of minutiae in respect of offending which occurred now
more than 30 years ago by an offender then 22 years of age is indicative of an unduly
retrospective focus. As the authorities recognise, inquiries into the actions which led
to a conviction or (as features in many of the cases) a “striking off”, is necessary, but
primarily in the context of assessing whether the applicant accepts those actions
occurred and that they transgressed societal norms or relevant legal or ethical
standards.44 As the Full Court recognised in Leary, without recognition that actions
breached applicable standards and the consequences of the breaches, it would be
difficult to conclude the same actions would not be repeated should similar
circumstances arise in the future. But recognition of the wrongness of the acts should
be sufficient.45
[75]

A related point – the Panel placed emphasis on the fact that Mr Grant had not

“repaid his victims (other than losing any remaining proceeds available at the time of
his imprisonment) nor made any effort at restitution”. Mr Grant’s evidence was that
significant recoveries had been made as a result of recovery of the bullion which had
been purchased with the proceeds of the share theft. There was also, apparently, some
recovery of cash still in accounts at the time of arrest. Mr Grant accepted, however,
that there had been a shortfall for which reparation had not been provided. However,
that too must be placed in context. Mr Grant served a custodial sentence. He has in
that sense paid his debt to society. The sentence would undoubtedly have been reduced
if full reparation had been possible. As the Full Court in Leary pointed out:46
[45]
… requiring demonstration of “atonement” or “purgation” invites retrying the earlier matters, even though all authorities agree that should be
eschewed. Recognition of wrongness of the acts which led to the striking-off
should be sufficient.

44

45
46

Leary v New Zealand Law Practitioner’s Disciplinary Tribunal [2008] NZAR 57 (HC) at [43]
and[44].
At [45].
At [45].

 [76]

On a fair reading of all of the evidence, supported by Mr Grant’s long history

of having “owned” his past it would, in my view, be difficult to suggest that he had
not fully and completely accepted the wrongness of his acts.
[77]

The Panel placed significant emphasis on the fact that, although at the hearing

Mr Grant alluded to events in his past which may have set him on a path of criminality,
it was left with “significant doubt” in respect of his level of “insight”. This risks the
same error into which the Law Practitioners Disciplinary Tribunal fell in Leary. As
the Full Court noted:47
[A] fair reading of the transcript of Mr Leary’s cross-examination suggests it
focuses significantly on the circumstances of the incidence which led to his
striking off and unfairly drew inferences from his inability, even now, to
explain why he undertook those actions. His inability to discern the
wellsprings of his past inexplicable and wrongful behaviour should not be
confused with an inability to know it occurred and now recognise it as wrong.

[78]

That must be especially so in respect of offending which in some cases is now

more than 30 years old. Mr Grant would not be the first adult not to fully understand
why, in comparative youth, he or she had acted as they did.
[79]

Nor do I consider the Panel correct, again adopting its retrospective lens, in

criticising Mr Grant for his apparent “[un]interest in acknowledging the offending in
public until the media threatened to expose him”. I accept Mr Hollyman’s submission
that there is no logical connection between Mr Grant’s present remorse and the fact
that his public acknowledgements occurred in the context of developing media
interest. A person can be genuinely remorseful for their actions without expressing it
in public and it was, in my view, an error to discount or minimise his remorse for that
reason. I also accept Mr Hollyman’s point that any person seeking to rehabilitate
themselves and to build a new and honest life is unlikely to wish to broadcast their
earlier offending “from the roof tops”. Some discretion can be expected at least until
the point at which the reformed individual has sufficient confidence in his or her new
standing in society that they can appropriately claim “that was then, this is now”.
Again the Panel’s focus should have been prospective, not retrospective. Its concern
was to assess the extent and genuineness of his present remorsefulness as an indicator

47

Leary v New Zealand Law Practitioners Disciplinary Tribunal [2008] NZAR 57 (HC) at [51].

 of the good character necessary for future protection both of the public and the
profession’s reputation.
[80]

These several examples confirm me in my belief that the error in articulation

of test has set the Panel off in a direction which has resulted in it overemphasising the
retrospective position.48 In assessing that position it has also given undue emphasis to
issues such as purgation, reparation, and the psychological origins of the offending
which the authorities indicate should have little, if any, impact on the evaluation.
[81]

As in Leary and Stanley,49 the corollary is also true. Although the Panel

acknowledged Mr Grant’s reform as part of the equation, its approach, in my view,
underemphasises the point.
[82]

Mr Hollyman relies in particular on the Panel’s treatment of Mr Grant’s

character references. These totalled 19. Most were from people of significant stature
in the New Zealand community. Some were from individuals who had dealt with
Mr Grant in a professional context, others were people who knew him in a social
setting. They attested to Mr Grant’s current integrity and good character.
[83]

I accept Mr Hollyman’s submission that the Panel gave only relative cursory

consideration to this substantial body of evidence and indeed that it minimised it to an
extent. It did so on the grounds that:
(a)

“in at least some cases” Mr Grant had not disclosed the full extent of
his criminal history to those who had provided affidavits in support;

(b)

the

individuals

concerned

had

not

“conducted

a

thorough

investigation”; and
(c)

they did not apply the legal test of good character when providing their
opinions.

48

49

The expression used in Leary v New Zealand Law Practitioners Disciplinary Tribunal [2008]
NZAR 57 (HC) at [53].
Leary v New Zealand Law Practitioner’s Disciplinary Tribunal [2008] NZAR 57 (HC) and
Stanley v New Zealand Law Society [2020] NZSC 83.

 [84]

I agree with Mr Hollyman that the approach again betrays an improper focus

on historic events at the expense of Mr Grant’s current character as required by the
“forward looking exercise” mandated in Stanley and other authorities.
[85]

I do not consider it appropriate that referees should have been required to

conduct an essentially adjudicative process against the “legal test” for good character.
Mr Hollyman submits that this fundamentally misunderstands the nature of references,
personal or professional. I agree. References are not generally intended to be
“investigatory”. Properly approached they are evidential. They help a decision maker
by informing it about the current attributes of the applicant, including his or her
reputation with people of standing in the community. I accept Mr Hollyman’s
submission that, viewed in this way, references allow a decision maker to make a value
judgment about an applicant’s present character (albeit one which takes into account
relevant evidence about an applicant’s past).
[86]

As to knowledge of Mr Grant’s criminal history, most of the referees expressly

deposed that they were either aware of this including that he had been imprisoned.
They were nevertheless able to attest to his current attributes and character. In his
affidavit in opposition to the present application, the Panel’s Chair, Mr Fisk, refers to
the fact that one of the referees (Mr Brenton Hunt) subsequently emailed him stating
he was not fully aware of the extent of the offending which he assumed had been a
“singular offence in relation to gold being smuggled out of the country”. However, in
a subsequent email to Mr Grant, Mr Hunt acknowledged an element of “covering my
arse” given the fact that his own licensing application was unresolved and “they have
already asked some questions I am surprised about”. In my view the Panel was
incorrect in minimising the impact of the references on account of the absence of
detailed knowledge on the part of the deponents about all facets of the previous
offending. The important point is that in almost all cases the referees deposed to the
knowledge of serious criminal offending resulting in imprisonment (unsurprising
given the extent to which that information is now in the public domain as a result of
Mr Grant’s own media articles) and yet considered themselves able to attest to his
current good character.

 [87]

Cumulatively these errors led, in my view, to the Panel understating the weight

properly attached to the references. There can be no doubt about the stature of many
of those attesting to Mr Grant’s current character. Notably they did so by way of sworn
affidavit. Again, Leary provides direction in terms of how the references should have
been treated:50
… the eminence and responsible nature of those who gave testimonials was
such that they would be cautious before putting pen to paper, careful in their
assessment of the applicant and at pains to ensure what they said was accurate
and not inflated.

[88]

The references should also have gone at least some way towards allaying the

reputational concerns expressed by the Panel.
[89]

As Dr Brash said in his affidavit:
I find it difficult to accept that given Mr Grant’s openness about his past
convictions and the way he continues to conduct himself in the public sphere,
there would be many, indeed any in the commercial community who would
feel that his being an accredited or licenced insolvency practitioner would
create a negative impact on the reputation of the profession.

[90]

Indeed it would have been appropriate for the Panel to consider the extent to

which the profession’s reputation might, at least in the eyes of some, be considered
enhanced by recognition of what Kirby P referred to in Foreman as “diligent and
honourable efforts over a period” to redeem a person’s reputation in society.
[91]

Finally in this respect, the approach of Tribunal gives rise to process concerns.

At no stage did it identify in advance of the hearing that Mr Grant’s referees would
need either to have a granular understanding of his historic offending, conduct their
own investigation into it or then apply the “legal test” for good character. Since
Mr Hollyman is correct that neither previous authority nor practice required as much,
the Panel’s approach was (apart from other objections) in breach of natural justice.
[92]

Nor do I consider it correct to minimise the overall impact of the references by

virtue of the fact that “only one of those who provided affidavits is an accredited

50

Leary v New Zealand Law Practitioner’s Disciplinary Tribunal [2008] NZAR 57 (HC) at [15].

 insolvency practitioner”.51 Again RITANZ never told Mr Grant that they considered
it necessary to obtain references from accredited insolvency practitioners. If there was
some particular premium attached to references from this source then, in my view, that
should have been telegraphed. However, more fundamentally, I agree with
Mr Hollyman there is no logical basis to suggest insolvency practitioners have any
unique or better ability to assess good character than other eminent members of the
legal, commercial, business and media community. It may have been otherwise if the
issue before the Panel was Mr Grant’s professional competence. But it was not.
[93]

Again, summarising to this point, I am therefore left in the position, as in Leary,

where I consider the Panel adopted an approach which focused overly on the historic
position and gave too little emphasis on Mr Grant’s reformative efforts over 27 years.
This is not, in my view, an error into which the Panel would have fallen if it had
formulated the relevant legal test with the precision required. On these grounds alone
the Panel’s decision must be quashed.
[94]

For completeness, however, and particularly in light of the form of relief

granted at the conclusion of this judgment, I make the following brief additional
observations:
(a)

I would not have been prepared to quash the decision on the grounds of
apparent bias arising out of the professional status of the Panel
members. I have already indicated the statutory regime precludes
challenge on the grounds that those adjudicating the application (or at
least some of them) may (in the broadest sense) be considered
competitors in Mr Grant.

(b)

Nor does the fact that his initial application was declined and a new
committee empanelled as a result of Mr Grant’s first application for
review raise any necessary suspicion about the objectivity of the second
Panel. Applying the relevant legal test, I would not consider a fairminded lay observer reasonably apprehensive that the second Panel did

51

Hearing of application for membership of RITANZ: Damien Grant. Notice of decision and
reasons, 10 August 2020, at [5.3(f)].

 not bring an impartial mind to its deliberations. My own assessment is
that new Panel applied itself conscientiously to a difficult task with an
open mind, albeit that its approach was in error.
(c)

I have considered in that context the “morning tea” exchange, evidence
which was admitted de bene esse. I do not ultimately consider this
establishes any element of apparent (or indeed actual) bias. The
recording of the exchange is not clear. I am not satisfied that the
“chortling” referred to in the transcript was in any sense laughter at
Mr Grant’s expense. I consider it more likely that it was in response to
a good humoured exchange with Mr Grant’s counsel. I am reinforced
in that conclusion by the fact that the Panel’s decision confirms on two
occasions52 that it regarded Mr Grant’s expressions of emotion at the
hearing as sincere and consistent with genuine guilt and shame.

(d)

In affidavit evidence filed in opposition to the application, Panel
member and senior solicitor Ms Tunna indicates that, during the course
of the Panel’s deliberations, it discussed concerns which had not been
raised with Mr Grant at any point, including:
(i)

how he managed conflicts of interest which could arise between
his role as an insolvency practitioner and owner of factoring and
litigation funding businesses;

(ii)

a number of judicial decisions which had criticised Mr Grant’s
conduct as an insolvency practitioner; and

(iii)

the appropriateness or otherwise of some of his comments in the
media.

(e)

Panel Chairman, Mr Fisk, also states that during the initial
consideration of the application “anecdotal accounts and concerns were

52

Hearing of application for membership of RITANZ: Damien Grant. Notice of decision and
reasons, 10 August 2020, at [4.3(e)] and [4.6(e)].

 raised by the membership committee in relation to Mr Grant’s actions
when carrying out formal insolvency appointments”.
(f)

In her evidence Ms Tunna goes on to say that, as the deliberations
progressed, “we felt it unnecessary to investigate, rely on, or refer in
our decision to any of these matters”.

(g)

There was a danger in the Panel’s approach. As Brennan J observed in
the High Court of Australia’s decision in Kioa v Minister of
Immigration and Ethnic Affairs,53 approved by Kόs J in Zhao v New
Zealand Law Society,54 there is always the risk that adverse information
can subconsciously affect a decision maker:
… in the ordinary case where no problem of confidentiality
arises an opportunity should be given to deal with adverse
information that is credible, relevant and significant to the
decision to be made. It is not sufficient for the repository of
the power to endeavour to shut information of that kind out
of his mind and to reach a decision without reference to it.
Information of that kind creates a real risk of prejudice, albeit
subconscious, and it is unfair to deny a person whose interests
are likely to be affected by the decision an opportunity to deal
with the information.

(h)

Any information which had a “real risk” of influencing the Panel should
have been disclosed and, at a minimum, comment invited.

(i)

Likewise I have concerns about how the Panel dealt with the Paton
judgment.55 It is correct that late on the Friday afternoon before the
Monday hearing it provided Mr Grant with copies of both that and the
Zalkalnins judgments56 and invited comment. It did not specifically
identify in what respects such comment was sought. Nor were any
questions asked about the judgments during the course of the hearing,
even though there was adequate time to do so.57 Although it is correct

53
54
55
56

57

Kioa v Minister of Immigration and Ethnic Affairs (1985) 159 CLR 550 at 628 and 629.
Zhao v New Zealand Law Society [2012] NZHC 2169, [2012] NZAR 894 at [81].
R v Paton CA354/94, 2 November 1994.
I assume in respect of Mr Zalkalnins that this was the admissibility judgment cited as R v
Zalkalnins HC Auckland T84/94, 20 July 1994.
The hearing concluded at approximately midday.

 the Court of Appeal raised issues about Mr Grant’s credibility in the
Paton case, he was not a party to those proceedings and there is no
ultimate credibility finding against him. In this context particular care
was required before identifying the Court of Appeal’s concerns as “an
aggravating aspect of Mr Grant’s convictions and other criminality”, as
the Panel did. In the circumstances there was, in my view an obligation
to go further than simply the provision of the decision. Doubt as to
credibility (even by the Court of Appeal) should not have been elevated
to “aggravating” status absent the Panel’s own conclusion Mr Grant
had been untruthful. Inevitably careful interrogation of him and a
reasoned approach would have been necessary before coming to such a
conclusion.
(j)

Mr Hollyman is also critical of the Panel’s observation that Mr Grant
had not provided any medical or psychological evidence to RITANZ in
support of its application. He says that its approach was characterised
by “unhelpful silence” in this respect. He says that in Stanley58 the
Supreme Court criticised the Law Society for failing to inform the
applicant that he should have provided expert evidence as to his
relationship with alcohol.

(k)

That submission goes further than the relevant observation in Stanley.
At [74] the majority observed that Mr Stanley “should have provided
the High Court with such evidence”. Footnote 125 then states:
Mr Stanley did not receive a great deal of assistance from the
Law Society in this respect. He asked twice whether further
information was required but was advised to consult his
lawyer.

(l)

There are fine margins in this respect between what is a minimum
requirement of procedural fairness — that the decision maker inform
an applicant of the standard they are required to meet — and the fact
that ultimately, an applicant in this context carries the onus to establish

58

Stanley v New Zealand Law Society [2020] NZSC 83.

 good character and to call evidence accordingly. It would certainly
have been helpful if the Panel had indicated that it regarded
psychological evidence as important and, in a difficult case such as this,
evidence of such “helpfulness” may have better insulated the Panel’s
decision from attack. However, on the basis of my earlier findings in
this judgment it is unnecessary for me to go further. I note also that in
the context of the relief which I intend to give, the matter tends to the
academic.
Relief
[95]

Although it follows from what I have said the Panel’s decision is appropriately

quashed I am not persuaded that I should substitute my own decision and make an
order admitting Mr Grant to membership of RITANZ. The Court’s reluctance to
impose its own decision over that of the body with the statutory power to do so derives
ultimately from its concern about the usurpation of power reserved to others.59
Fundamentally judicial review is not concerned with the decision itself but with the
decision-making process. And if, with appropriate guidance, the decision making
body can be expected to revisit its decision, whether that be against the appropriate
legal test or perhaps better focused on relevant considerations, then that is the default
position. Only in what Williams J described in Ellis v Legal Complaints Review
Officer60 as a “clear case” will this High Court substitute its own decision. In Edwards
v Attorney-General the same Judge noted that such substitution was “only ever rarely
done”61.
[96]

This could never be described as a clear case. I have already indicated that I

consider honesty as much a prerequisite for practice as an insolvency practitioner as
for practice as a lawyer. I have also referred to the Court of Appeal’s observations in
Stanley and that dishonesty, leading to imprisonment, will generally be viewed as
disqualifying a person from admission to legal practice. The Supreme Court likewise

59

60
61

Mercury Energy Limited v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, [1994]
2 NZLR 385 (PC) at [389] per Lord Templeman citing Chief Constable of North Wales Police v
Evans [1982] 1 WLR 1155 (HL) at 1173, per Lord Brightman.
Ellis v Legal Complaints Review Officer [2013] NZHC 3514, [2014] NZAR 220.
Edwards v Attorney-General [2017] NZHC 3180 at [118].

 acknowledged such convictions as “inevitably … problematic” because of the direct
connection with the qualities expected of any admittee to the Bar. The hurdle
Mr Grant was required to cross was always therefore high, but not necessarily
insuperable because, as the Supreme Court went on to observe, convictions may be of
such antiquity as to lose relevance in terms of the ultimate inquiry.
[97]

As I said at the outset of this judgment the question of whether Mr Grant is

admitted to membership is and always was a difficult one. It is far from the clear-cut
case the authorities require before the Court should substitute its own decision on the
“headline” issue.
[98]

It follows that the correct response is remission of Mr Grant’s application for

admission to membership for reconsideration by RITANZ. I do not consider it
appropriate to be unduly proscriptive in that context. I do not, for example, know
whether there are currently sufficient members of the Board, apart from those who
have already participated in decision making relating to Mr Grant, who can be
empanelled for the purposes of a rehearing. I am not prepared to say at this stage that
any one or more of the previous Panel members are necessarily disentitled from sitting
again. The question will be whether they can bring the necessary objectivity and
independence to the role. Certainly the opportunity for subsequent attack on the
grounds of apparent bias must be considered much diminished for constitution of a
new Panel.
[99]

For the purposes of the review application, Mr Grant tendered 12 additional

affidavits as to good character. They were admitted de bene esse over RITANZ’s
objection (based on the fact this Court’s focus is on process and that they were
therefore irrelevant to the application). I envisage that all such information will be
before RITANZ at the further rehearing, and likewise the psychological evidence
Mr Grant has now obtained.62 Mr Hunter does not contend otherwise. The corollary
is that Mr Grant may have to face other matters, apart from those identified in the
existing decision, potentially bearing on his good character. These will need to be

62

Section 17(3) of the Judicial Review Procedure Act provides that a court may direct
reconsideration “generally” of the whole of any matter to which the application relates. Such
reconsideration is appropriate.

 clearly identified in advance if RITANZ regards them as potentially relevant to its
inquiry.
[100] There is an obvious premium on prompt reconsideration of the application.
Mr Grant is currently unable to accept further professional appointments. Within
10 months he will not be able to continue to act in respect of existing appointments.
There remains the possibility that any future adverse decision in respect of admission
will itself result in further judicial review proceedings.
[101] I also note that this may well be a case where the Board would benefit from the
appointment of senior counsel assisting.
The evidential challenges
[102] As indicated, RITANZ challenged:
(a)

evidence of the “morning tea” exchange on the basis a transcript thereof
was never intended to be provided and that the exchange was subject to
“deliberative privilege”; and

(b)

Mr Grant’s additional affidavits as to good character.

[103] Having regard to the basis on which this decision proceeds, it is unnecessary
for me to resolve these challenges. As indicated, RITANZ chose to meet the
suggestion that Mr Grant’s demonstrations of emotion elicited laughter and I am not
satisfied that what Mr Grant has said represents a correct interpretation of the events.
The question of whether the material is appropriately admitted or not is not ultimately
therefore decisive. In any event, my decision proceeds on grounds other than proof of
actual or apparent bias.
[104] Nor are the additional character references germane to the result.

My

expectation is, in any event, that each of these will be before RITANZ on
reconsideration of Mr Grant’s application.

 Result
[105] I quash the decision of the respondent dated 10 August 2020 declining the
applicant admission to RITANZ and direct reconsideration and determination of the
application on the basis of such evidence as the applicant choses to submit and in
accordance with the legal test stated in this judgment. I do so with the further guidance
and directions referred to.
Costs
[106] I have not been addressed on costs.

Provisionally, I consider these

appropriately payable to Mr Grant on a 2B basis. If counsel are unable to resolve
these, memoranda may be filed (maximum five pages plus any schedules).

__________________________
Muir J