DS v WH
 NZLCRO 44
Legal Complaints Review Officer, Hamilton
Concerning an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
Concerning a determination of the Wellington Standards Committee 1.
The names and identifying details of the parties in this decision have been changed
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.
The issue was: whether WH had breached r13.5.4 Client Care Rules.
The complaint focused on whether or not evidence had in fact been given which supported the submissions made by WH to the Supreme Court. The evidence in question was the evidence given by the IRD witness, DT, whose evidence was given before the Taxation Review Authority (TRA).
DS asserted that there was no reference in the Court of Appeal to the fact that these circumstances were unusual. The provision of the transcript obtained from the audio refuted that claim. However, that issue was not the focus of the Court of Appeal hearing. It had only arisen by reason of the fact that the Supreme Court declined leave to appeal for the reason (among others) that “the case is very unusual because it involves the issuing of manual instead of computer generated assessments.” The case did not therefore meet the requirements of the Supreme Court Act for appeals to that Court to be considered.
Rather than being a breach of r13.5.4, it could be suggested that the WH had misled the court and had therefore breached r13.1 (lawyer has an absolute duty of honesty to the court and must not mislead or deceive the court). Although this rule was not the focus of the complaint, the investigation or the Standards Committee, the onus was not on the DS to identify which rules had potentially been breached.
The issue came down to a consideration of whether WH's submission represented such a distortion of the evidence that it amounted to personal opinion, or misled or deceived the Court. On the information before the LCRO, there had not been a breach of either rule.
Comparing DT's evidence to the submission to the Supreme Court there was a difference, namely, that while the evidence was that corruption of the IRD computer system was a rare thing, necessitating the issue of manual assessments for the DS, WH's submission was that the issue of manual assessments was a rare thing.
In considering the matter, it was relevant to consider the material that would have been before the Supreme Court, and the submissions of WH as a whole. The Supreme Court would have had the Court of Appeal decision before it and all of the circumstances giving rise to the dispute between DS and the IRD were correctly recorded. The Court therefore had before it, both WH's submissions to the dispute and other material information related to the dispute. While the submission, if considered in isolation, did not strictly reflect the evidence given by DT, the other material provided the factual background.
Decision of the Standards Committee was confirmed.
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...
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