DY v WB

 
FREE EXCERPT

[2011] NZLCRO 42

Legal Complaints Review Officer, Wellington

Judges:

LCRO Vaughan

LCRO 27/2011

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

BETWEEN
Mr Dy of Hamilton
Applicant
and
Mr Wb of Wellington
Respondent

The Names And Identifying Details Of The Parties In This Decision Have Been Changed.

Application seeking a review of a decision of a Standards Committee to take no further action in respect of a complaint against a lawyer, pursuant to s138(2) Lawyers and Conveyancers Act 2006. The Complaints Service responded, advising the Applicant that the application seeking review was required within 30 working days of the date of the Standards Committee decision but that the period over the Christmas holiday break was not to be counted when calculating the time limit. The advice given by the Complaints Service was incorrect and resulted in the application not being made within time — whether there was any discretion to extend the time limit within which the application could be considered.

At issue was whether there was any discretion to extend the time limit within which the application could be considered.

Held: The Legal Complaints Review Office had no discretion to extend the date by which applications for review must be filed, regardless of the circumstances.

Information provided to the Applicant led him to believe that the last day for filing was later than the correct date. It is also unfortunate that this file was progressed through to the scheduling of a hearing and it was not until the day before the hearing that the Respondent formally raised the issue of jurisdiction based on the filing date

In Commerce Commission v Roche Products (New Zealand) Ltd, the Court of Appeal strictly applied time limits applicable to the bringing of penalty proceedings under the Commerce Act 1986 and refused to recognise any power to extend time in respect of a statutorily imposed limitation period. This confirmed that if, for whatever reason, an application filed in the Legal Complaints Review Office was filed after 30 working days have expired, it could not in any circumstances be accepted. To do otherwise would render any decision made by the LCRO subject to challenge.

There was no jurisdiction to conduct a review in this matter.

DECISION
Application for review
1

On 13 December 2010 the Wellington Standards Committee 1 issued its decision in respect of a complaint by the applicant against the respondent. Its decision was to take no further action in respect of the complaint pursuant to s138(2) of the Lawyers and Conveyancers Act 2006.

2

At the end of that decision, information was provided as to the entitlement of the parties to apply for a review of that decision by this Office.

3

Included in that information was the following statement:

ENTITLEMENT TO REVIEW BY LEGAL COMPLAINTS REVIEW OFFICER (LCRO):

All parties to whom this notice is addressed are entitled to apply to the LCRO for a review of this decision. On review, the LCRO may:

  • (i) Direct the Standards Committee to reconsider the whole or any part of the complaint; or

  • (ii) Confirm, modify or reverse the decision of the Standards Committee;

  • (iii) Exercise any of the powers that could have been exercised by the Standards Committee in relation to this complaint.

Any application for a review of this decision by the LCRO must be made within 30 working days after the date of this decision. An application for review must be on the prescribed form and accompanied by the prescribed fee of $30.67.

The LCRO may be contacted by email: lcro@justice.govt.nz; Telephone: 0800 367 6838; Post: Private Bag 92020, Victoria Street West, Auckland 1142. web: www.justice.govt.nz/tribunals/legal-complaints-review-officer/contact-us

ENTITLEMENT TO REVIEW BY LEGAL COMPLAINTS REVIEW OFFICER (LCRO):
4

On 31 December 2010, the Applicant sent an email to the Wellington Branch of the Complaints Service advising that he wished to apply for a review of the decision.

5

On 10 January 2011, the Complaints Service responded to the applicant's email in the following terms:–

Dear Mr [DY]

Thank you for your email.

Any application for a review of the decision made by a Wellington Standards Committee needs to be made with the Legal Complaints Review Officer (LCRO) and must be made within 30 working days after the date of the decision. As the Office of the LCRO was closed from 25 December 2010 and re-opened on 5 January, the period (25 December 2010 to 4 January 2011) do not count as working days. Your application needs to be made by Thursday 3 February 2011. A form can be requested from the LCRO.

6

Section 198 of the Lawyers and Conveyancers Act provides as follows:–

Every application for a review under section 193 must –

  • (a) be in the prescribed form; and

  • (b) be lodged with the Legal Complaints Review Officer...

To continue reading

REQUEST YOUR TRIAL