DS v WH
| Jurisdiction | New Zealand |
| Judge | LCRO Vaughan |
| Judgment Date | 16 August 2011 |
| Neutral Citation | [2011] NZLCRO 44 |
| Docket Number | LCRO 163/2010 |
| Court | Legal Complaints Review Officer |
| Date | 16 August 2011 |
Concerning an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
and
Concerning a determination of the Wellington Standards Committee 1.
The names and identifying details of the parties in this decision have been changed
[2011] NZLCRO 44
LCRO Vaughan
LCRO 163/2010
Legal Complaints Review Officer, Hamilton
Application for review of determination of the Wellington Standards Committee that practitioner did not breach r r13.5.4 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“Client Care Rules”) (must not make submissions or express views to a court in terms conveying lawyer's personal opinion on the merits of that evidence or issue) — applicant applied to Supreme Court for leave to appeal decision of Court of Appeal in a tax related dispute — claimed respondent made submissions that were unsupported by evidence and therefore were the respondent's own opinion — whether the respondent had breached r13.5.4 Client Care Rules.
In November 2009 the Applicant applied to the Supreme Court for leave to appeal a decision of the Court of Appeal which involved tax assessments issued by the Inland Revenue Department for the Applicant, his wife, and a partnership between them.
The application was declined, and one of the reasons given by the Court for declining the Application was recorded in the following terms:–
The case is very unusual because it involves the issuing of manual instead of computer generated assessments. The facts are therefore quite special and we cannot regard them as giving rise to any point of law of general or public importance or of commercial significance.
In his submissions to the Court, the Respondent had stated that “the facts of this case are unusual, in that it is very rare for manual “Notices of Assessment to be issued”“. This submission was drafted by Mr WF who had acted for the Commissioner of Inland Revenue in the Taxation Review Authority, the High Court, and the Court of Appeal.
The Applicant complained to the Complaints Service of the New Zealand Law Society that the Respondent had breached Rule 13.5.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Client Care Rules.) which provides as follows:–
A lawyer must not make submissions or express views to a Court on any material evidence or material issue in a case in terms that convey or appear to convey the lawyer's personal opinion on the merits of that evidence or issue.
In support of the complaint, the Applicant submits that the evidence before the Court did not support the submission and that therefore the Applicant was conveying his own opinion, (or that of Mr WF) to the Court.
The Standards Committee declined to take any further action in respect of the complaint pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006. It provided the following reasons:–
1. There was no evidential basis for Mr DS's assertion that Mr WH had breached Rule 13.4 [this should be a reference to Rule 13.5.4].
2. Mr WH's submissions had an evidential foundation and a clear factual basis.
3. The complaint appeared to be an attempt by Mr DS to re-litigate the matter.
The Applicant has applied for a review of that decision and asserts that there is no evidential foundation to support the submission made to the Court. He requested that the matter be properly and honestly investigated and the decision reversed or modified.
In his original complaint to the Complaints Service, the Applicant sought an apology and an order that the Crown apply to recall the judgment, as well as costs. It must be noted that neither the Standards Committee nor this Office have any power to order the Respondent to apply for a recall of the judgment and the focus of this review is on the conduct of the Respondent.
The review proceeded by way of a hearing in Hamilton on 7 July 2011, attended by the Applicant, the Respondent and Mr WF.
Before proceeding with the substance of the review, I must first address procedural issues that arose immediately prior to the hearing, as a result of which the Applicant advised that he attended the hearing under protest, and alleged that my decision would be tainted by unfairness.
The Applicant did not consent to the matter being dealt with on the papers and the review hearing was scheduled to take place on 7 July in Hamilton. The Respondent was to come from Wellington, Mr WF and myself from Auckland.
In his response to the application for review, the Respondent referred to a letter from Mr WF to him which had been provided to the Complaints Service which refers to evidence of the IRD witness, Mr DT. The Respondent asserted that this provided the evidential foundation for his submission to the Supreme Court and was the subject of Mr WF's oral submissions to the Court of Appeal.
In response, the Applicant stated:–
I was present at the Court of Appeal hearing, and confirm that no such submissions were made by Mr [WF] and if there were such submissions made by Mr [WF] we have a situation again where counsel has given evidence under the guise of a submission.
That statement echoes a statement made by the Applicant in an email to the Complaints Service dated 1 June 2010 where he stated:–
I was at the Court of Appeal hearing and Mr [WF] spoke for less than five minutes and he definitely did not state manual assessments are a rare thing. I recall that at the TRA hearing it was stated that file corruption was a rare thing but nothing was said about manual assessments. I understand a transcript of the hearing in the Court of Appeal may be available to confirm that Mr [WF] said nothing about the rarity of manual assessments. Had he done so there was no evidential basis.
The Applicant again asserted in a letter of 25 March 2011 that:–
“Mr [WF] did not give evidence or state or make any submissions that manual assessments were a rare thing in the Court of Appeal. The issue never arose there. The issue only became relevant pursuant to section 13 of the Supreme Court Act regarding public interest. This appears a false statement of Dr [WH].”
In response to an enquiry from this office as to whether the content of Mr WF's oral submissions could be verified, the Respondent advised that the Court of Appeal Registry had told him that there was no transcript available from the hearing of the appeal.
On 18 April, Mr WF made formal written inquiry of the Court of Appeal Registrar as to whether or not a recording of the hearing was made.
That request was acknowledged on 5 May by email from the Acting Registrar at Auckland where the hearing had taken place.
On Monday 4 July, the Respondent forwarded to this Office a copy of a letter from Mr WF sent to him on the previous Friday 1 July, in which Mr WF stated:–
Following my request to the Court of Appeal by letter 18 April 2011 about audio recording of [DS] appeal, the Court of Appeal advised me late last week that they had located it and sent it by email to the Auckland High Court Manager [X]. After I had left voice mail messages for him on Friday 24th and Monday, 27th [X] rang me on Tuesday, 28th June and I went up to Court and listened to the audio the same day at 11.30 a.m. Apparently it was recorded as a “wave file” and it needed to be played on the Court audio system.
Mr WF included his transcript of the audio hearing which recorded the submission as follows:–
This was an unusual case because there was some corruption in the IRD computers in relation to Mrs [DS]'s statement of accounts or ledgers and they were issued manually. So it is not a common occurrence and in all my experience of tax cases
……[Judge interrupts with a question].
That letter was forwarded by this Office by email to the Applicant on 4 July at 1.14 p.m.
On the morning of 6 July, this Office received an email from the Applicant seeking an adjournment of the hearing for the reason that the Applicant had intended to have his barrister, Mr DU, attend the hearing as counsel. Mr DU had represented the Applicant at the Court of Appeal hearing and also appeared for him in support of the Application to the Supreme Court. I am unsure as to whether he had represented the Applicant at the Taxation Review Authority or the High Court, but that is of no relevance to this review.
It must be noted that the Applicant had not previously advised this Office that Mr DU was to attend the hearing as counsel, notwithstanding that the letter from this office advising of the scheduled hearing noted that “if you intend to bring a support person or a representative to the hearing, please contact our Office immediately to discuss this if we have not already been advised of this.”
The reason provided by the Applicant for the request for an adjournment was that in the light of the evidence provided by Mr WF “it is obvious that Mr [DU] is now a potential witness”. Mr DU had advised the Applicant that in those circumstances he could not appear as Counsel as he considered that to do so would put him in breach of Rules 13.5.1 and 13.5.4 of the Client Care Rules.
Because Mr DU considered that he could not appear as Counsel and also provide evidence to the hearing, the Applicant advised that he needed time to consider alternative counsel, and that was not possible in the time available. He requested confirmation by 3.00 p.m. that the hearing was adjourned.
I was mindful of the travel arrangements that all parties would have made to attend the hearing, and in addition, of previous communications from the Applicant to this Office complaining about the delays that had occurred in processing the complaint and this review. In that correspondence, the Applicant had...
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