Barry Hart's sick notes an excuse – Law Society

UPDATED / 5.10pm:

Struck-off lawyer Barry Hart has opened his bid to get back on the roll of barristers and solicitors at Auckland High Court this morning,

The veteran defence lawyer was disbarred after an undefended Lawyers and Conveyancers Committee Disciplinary Tribunal hearing in August.

He was found guilty of grossly overcharging and obstructing a Law Society investigation.

Mr Hart's appeal against the findings and the striking off is being heard by Justice Graham Lang – who declined his application for interim relief in September – and Chief High Court Judge Helen Winkelmann.

Mr Hart had made up his mind not to attend a disciplinary hearing before the committee that struck him off, and the medical certificate was just an excuse, the court was told this afternoon.

Stress symptoms, which Mr Hart claimed kept him from appearing at the July hearing, were those every person coming before a tribunal or court as a defendant would be able to show, the Auckland Standards Committee of the New Zealand Law Society argued, defending its decision to go ahead with the hearing in July, which resulted in him being disbarred.

Earlier in the day, Mr Hart's lawyer Anthony Trenwith had argued there had been a miscarriage of justice and the hearing should not have gone ahead without Mr Hart when he was unwell.

But the society's lawyer Paul Collins said the medical certificate the tribunal received was insubstantial and did not provide a suitable ground for adjourment.

The medical records revealed Mr Hart's infirmity consited of fatigue and stress-related symptoms and was not incapacitating, for example: "Feels flu coming on" and "occasional daytime symptoms," Mr Collins said.

Spending the weekend in bed was not the sort of thing that should keep you from court.

"The symptoms of stress were those which every person coming before a tribunal or court as a defendant would be able to show  symptoms of.  These matters are stressful for all parties involved," Mr Collins said.

"The medical certificate may be taken by this court as being insubstantial and not debilitating."

The tribunal had been deprived of the opportunity to explore the possibility of accommodating Mr Hart during the hearing, such as providing more frequent of longer breaks during the day.

"The compelling conclusion is that the appellant had already made up his mind not to attend the hearingand that the medical certificates were an attempt to give credibility to that decision."

Mr Collins said the hearing had an "extraordinary history of delay and prevarication" on the part of Mr Hart and had already been adjourned on two separate occasions earlier in 2011.

Mr Collins also said Mr Hart was author of his own misfortune when the adjournment application was refused.

No documents had been filed in relation to the pending hearing, even though Mr Hart had received more than three month's notice of the July 16 hearing.

Mr Hart had Stephen Cooke as solicitor from at least mid-2011 and the late Greg King as his counsel.

This morning, the court was told that one of Mr Hart's key grounds of appeal is that he was unwell during the disciplinary tribunal hearing in August, preventing his attendance.

His lawyer Anthony Trenwith says Mr Hart had been to see a GP during the hearing who had provided a medical certificate recommending Mr Hart was unfit for work, in particular court work, for a week.

Mr Hart had been waking up struggling to breathe in the middle of the night, Mr Trenwith says.

The symptoms were probably stress-related, but the doctor and a specialist had not been able to pin-point a diagnosis.

Mr Trenwith argued the tribunal had been too hasty in making its conclusions about Mr Hart, had not been forthcoming with a waiver of medical privilege and had not applied the correct test in determining to proceed in Mr Hart's absence.

Justice Winkelmann asked Mr Trenwith why Mr Hart, well  enough to travel to the doctor, was not well enough to travel to the tribunal hearing.

Mr Trenwith said the doctor was based in Waimauku, near his home and did not require a great distance of travel.

"How sick is sick?" Mr Trenwith asked. "Really, that's what we have doctors for."

Mr Hart watched on from the public gallery as his appeal was heard.

He has made numerous appearances in court this year as he has fought against the mortgagee sale of properties in his $26 million rural property portfolio.

ANZ has sold almost all the properties – security for his more than $34 million debt to the bank, accruing interest of more than $200,000 a month.

In the latest development,  the High Court granted Mr Hart a stay, until Thursday, of ANZ's attempt to sell the final property in Waimauku, where Mr Hart lives with his wife.

ANZ has also issued a bankruptcy notice against Mr Hart, requiring payment of some of its court costs awarded after it fought numerous injunction applications and caveats placed on the properties by Mr Hart, to obstruct the sale process.

Proceedings continue.