DV v WE
| Jurisdiction | New Zealand |
| Judge | LCRO Vaughan |
| Judgment Date | 17 August 2011 |
| Neutral Citation | [2011] NZLCRO 47 |
| Docket Number | LCRO 172/2010 |
| Court | Legal Complaints Review Officer |
| Date | 17 August 2011 |
Concerning an application for review pursuant to section193 of the Lawyers and Conveyancers Act 2006
Concerning a determination of the National Standards Committee
The names and identifying details of the parties in this decision have been changed.
[2011] NZLCRO 47
LCRO Vaughan
LCRO 172/2010
Legal Complaints Review Officer, Auckland
Application for a review of a decision by a Standards Committee not to take any further action on a complaint by the applicant lawyer against the respondent lawyer— comments defamatory of the applicant on a website were attributed to an employee of respondent — whether the Standards Committee had failed to fully investigate the complaint — whether a negative reference sent by the respondent to the Law Society, in response to a notification in LawTalk that the applicant had made application for approval to practice on his own account, amounted to a vexatious complaint.
In November 2009 the Applicant lodged a complaint with the Complaints Service concerning remarks made on the “ABM” website about him. “ABM” is a web site which provides comprehensive information to the X community in New Zealand and both the Applicant and the Respondent advertised on that site. The site incorporated a facility whereby comments could be posted by persons who had access to the site and various comments had been posted on that site which the Applicant alleged were defamatory, and had been lodged by a person employed by the Respondent (Mr WD).
The Applicant attributes those comments as being responsible for the fact that he no longer received instructions from clients through that website whereas previously he had been receiving six to seven sets of instructions per month through that medium.
He also complained that the action of the Respondent in providing the Complaints Service with a list of cases which the Respondent says raised issues about the Applicant's competence, was malicious and an abuse of Law Society processes.
The Respondent responded to the complaint and confirmed the following:
1) That he did not direct or permit the comments on the website to be made;
2) That he did not permit or direct an employee to post any comments on the website;
3) That Mr WD had never been employed by his practice;
4) That he was not responsible for the comments made by Mr WD. He accordingly denied the allegations.
With regard to the list of cases provided, the Respondent noted that his complaint was based on the Applicant's general incompetence and inability to comprehend the basic principles of law.
On 27 July 2010 the National Standards Committee issued its decision. It determined to take no further action in respect of the complaint pursuant to section 138 (2) of the Lawyers and Conveyancers Act 2006. This section provides that a Standards Committee may decide not to take any further action on a complaint if, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.
The Committee particularly took note of the following:
1) There was no evidence of malice in the Respondent's complaint;
2) There was a lack of evidence to support the claim that the Respondent made his complaint to avoid defamation proceedings or was a party to the posting of the defamatory comments;
3) The cross complaint made by the Applicant appeared to have been only in response to the original complaint made by the Respondent
The Applicant has applied for a review of this decision.
The review proceeded by way of an Applicant only hearing on 5 July 2011.
During the hearing I requested that the Applicant provide me subsequently with the material that was posted on the website. This was provided by a letter dated 21 July and included translations of comments posted on the website by Mr WD about the Applicant and Mr DW who had previously been part of the Applicant's chambers.
Mr DW issued defamation proceedings against the Respondent and Mr WD. In a reserved judgement in respect of those proceedings, Judge Hubble commented that “in my judgement these words are obviously defamatory. The emotive content indicates malice and I cannot see how a defence of fair comment, honest opinion or truth could possibly be raised. (DW & others against WE and BK) WD CIV 2010-004-XXXX at para 4).
By any measure the comments would seem to offend against Rules 10 and 10.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Client Care Rules) which requires that “a lawyer must treat other lawyers with respect and courtesy”.
Although the Respondent was named as a defendant in those proceedings, Mr DW discontinued against him. In a reserved judgement as to costs by Judge B M Wilson QC on 26 April 2010, Judge Wilson noted that at the time the proceedings were issued by Mr DW there was no evidence that the Respondent knew of, let alone authorised, the publication of the defamatory material by Mr WD (para 48). He goes on to say that “the very form of the translated words as set out in the affirmation of Mr WD makes the proposition that [the Respondent] had anything to do with it is very unlikely. It was printed in the X language in a website. There is no evidence that [the Respondent] understood the X language or read the website. These factors increased the level of unlikelihood” (para 49).
The question for the Standards Committee however differed from that which was necessary to determine in connection with the defamation proceedings. The Committee...
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