Lawyers’ Email Row Sees Judge’s Rebuke From the Court of Appeal

Davidgendall

The Fallout: Justice Gendall’s judgment gets politely dismantled

In a pointed decision delivered by the Court of Appeal, Hardie & Brant v NZ Law Society & NSC No. 2 [2024] NZCA 90, the case involving two lawyers who exchanged controversial cricket-themed emails has turned into a masterclass on what not to do when handling professional regulation and perhaps also a cautionary tale about judicial tunnel vision.

At the heart of the matter was the High Court’s decision from Justice Gendall to dismiss a judicial review under the Declaratory Judgments Act by lawyers Peter Hardie and Giles Brant, critical of the process they went through and the order to keep confidential a decision from the National Standards Committee No. 2 (NSC2) that had, to put it mildly, thrown shade at the pair.

But as the Court of Appeal has now made abundantly clear: a bit of shade is still shadow, and procedural fairness requires a right to step into the light and respond.

Gendall J’s “Nothing to See Here” Call

Justice Gendall held that the comments made by NSC2 in its Notice of Decision, that the lawyers’ emails were “at the lower end” of conduct justifying disciplinary response, were harmless and not deserving of a reply.

The Court of Appeal wasn’t having it, however.

In a passage that reads like the appellate version of a raised eyebrow, the Court said that such remarks, no matter how diplomatically phrased, carry professional weight. They’re the kind of thing that can tail a lawyer through judicial applications, insurance renewals, and the ever-watchful eyes of Law Society panels.

Confidentiality as a Curtain?

Justice Gendall also upheld the NSC2’s decision to keep its findings confidential, without hearing from the lawyers first. He found no issue with this “standard” approach and agreed with the Law Society that the matter should be kept on the quiet.

The Court of Appeal pulled that rug right out: transparency is not optional, especially when a body like the NSC2 decides to make remarks that could affect a lawyer’s professional standing. The Court found that the lawyers should have been given a chance to comment on both the adverse statements and the question of publication.

As the Court noted, “even mild criticism … can have significant implications.” Gendall J’s view that the comments were harmless was a generous reading of the NSC2’s prose.

Professional Conduct vs. Private Banter

The issue began with two emails sent in the style of locker-room banter, referencing transgender athletes and plant-based teammates.

NSC2 launched an own-motion investigation following an anonymous complaint which referenced communications which allegedly were “which is distastefully sarcastic, extremely discriminatory, unprofessional, and unbecoming of lawyers and the partiesrespective law firms.”

But while the Committee ultimately decided not to take formal action, it added some parting words that landed more like passive-aggressive post-it notes than findings.

Justice Gendall viewed the remarks as innocuous and internal. The Court of Appeal saw them as adverse and potentially damaging, especially since the emails weren’t tied to “regulated services” and should have been viewed in their private context.

The broader message from the Court is clear, that disciplinary transparency and procedural fairness are non-negotiable, especially in a self-regulating profession.

The judgment reminds regulators—and judges—that if you’re going to make even mild criticisms:

  • ✅ They must be based on clear jurisdiction.
  • ✅ The subject must be allowed to respond.
  • ✅ And confidentiality must not be wielded as a shield against scrutiny.

Final Word

Justice Gendall, who we encountered on the lawsuit brought against myself by now-deceased Russian oligarch Sergey Grishin and in whose favor the Judge granted costs on two occasions, may have thought he was keeping things tidy by upholding a quiet resolution. But in doing so, he made a major misread, missing what the appellate judges called “a clear failure of natural justice.”

Natural justice, one might think, should come naturally.

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