MR BC v MR YT
| Jurisdiction | New Zealand |
| Judgment Date | 01 April 2011 |
| Neutral Citation | [2011] NZLCRO 20 |
| Date | 01 April 2011 |
| Docket Number | LCRO 215/2010 |
| Court | Legal Complaints Review Officer |
CONCERNING An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006
and
CONCERNING a determination of the National Standards Committee
[2011] NZLCRO 20
LCRO 215/2010
Application for review of National Standards Committee decision — applicant practitioner made a complaint about certain aspects of a complaint lodged by respondent practitioner against applicant — applicant complained respondent had been careless, reckless or had lied inalleging that the Court had been critical of applicant in a number of cases — applicant alleged respondent had made a material misrepresentation to a regulatory body that was known to be false — whether Committee erred in its view that there was no merit in the complaint.
Mr BC as the Applicant
Mr YT as the Respondent
The National Standards Committee
The New Zealand Law Society
This is an application for the review of a decision made by the National Standards Committee concerning a complaint made by the Applicant about certain aspects of a complaint lodged by the Respondent about the Applicant.
The genesis of the complaint by the Respondent was contained in correspondence from him to the Complaints Service of the New Zealand Law Society dated 16 September and 2 October 2009. With these letters, the Respondent had provided a list of cases in which he alleged that the Applicant had been criticised by the Courts.
He also complained about the contents of affidavits sworn by BD (BD) (the Applicant?s secretary) which he described as contemptuous, disdainful, and condescending. It is to be assumed that he means contemptuous, disdainful and condescending towards the Court. That complaint was directed against BD and the Applicant who he suspected of providing the input into the affidavit language and content.
The Applicant then lodged a complaint against the Respondent in respect of matters arising out of those complaints. The issues were summarised in the letter dated 3 December 2009 from the Complaints Service to the Respondent, and were as follows:–
-
•Gross incompetence and failing to adhere to a minimum standard of diligence in accusing the Applicant.
-
•Making a complaint without merit against BD.
-
•Making a complaint which is frivolous or vexatious or not made in good faith.
-
•The gross abuse of process using the Complaints process to attack the Applicant.
-
•Failing to provide the Society with a relevant subsequent judgment.
-
•Abusing the Complaints Service by attempting to make a complaint against BD which was impossible in law.
The basis for the Applicant's complaint as it related to the list of cases provided by the Respondent, is that the Respondent had been careless, reckless or had lied when alleging that the Court had been critical of the Applicant in all of those cases, as he had not appeared as counsel in four of them.
He considers that this is a serious matter in that if a similar approach were to be adopted by the Respondent in his dealings with the Court, then the integrity of the justice system would be severely compromised. He was also critical of the Respondent for not providing a favourable Court of Appeal decision in respect of one of the cases referred to. The Applicant alleged that the Respondent was selective in what he supplied to the Law Society.
The Applicant is also offended by the accusations made by the Respondent, and considers that the Respondent is using the Complaints procedure to conduct a vendetta against him in particular, while at the same time paying no heed to the shortcomings of other practitioners.
The National Standards Committee considered the complaint at its meeting on 16 September 2010. It resolved that no further action was required pursuant to Section 138(1)(b) of the Lawyers and Conveyancers Act 2006 as the subject matter of the complaint was trivial. Having regard to all the circumstances of the case and pursuant to Section 138(2) of the Lawyers and Conveyancers Act, the Committee was also of the view that there was no merit in the complaint and that any further action was unnecessary or inappropriate.
The Applicant applied for a review of the Standards Committee?s decision.
He intimated that his concern was primarily focused around the fact that the Respondent attempted to commit a fraud in his complaint against him or, de minimis was grossly reckless in accusing the Applicant without cause of having acted wrongfully in four cases where he did not appear as counsel.
He accused the Respondent of scurrilous behaviour of the highest order in that he had used his client to look for “dirt” on the Applicant.
He also submits that the Respondent acted in bad faith in lodging the complaint in that it constituted a personal attack on the Applicant and one of his staff members.
It is useful to record here that the Applicant advised that by “fraud” he means “a material misrepresentation to a regulatory body that is known to be false”. Similarly, although it is not directly relevant at this point, he advised that by “corruption”, he means circumstances in which a regulatory body does not function in the way it should, and likened it to the “corruption” of a computer file.
In his letter of 26 October 2010 which accompanied the application for review, the Applicant advised that he wished to be heard in person in support of his application. He also advised that he would be making submissions before the hearing.
It was considered that it was not necessary to hear from the Respondent as the Standards Committee file received by this Office contained correspondence and submissions from the parties in connection with the matter sufficient for the purposes of this review. Consequently, it was proposed to hold an Applicant-only hearing, the nature of which is set out in the LCRO Guidelines.
The Applicant objected to this, and by email dated 19 January 2011, reiterated earlier requests for “reasons why this particular file had been put on the ‘case to answer’ track”. He “demand[ed] to know why [he] was being denied his statutory right of review”.
The Applicant was advised that the LCRO wished to hear only from him at that stage and that direction was made pursuant to the authority provided by s206(5) of the Lawyers and Conveyancers Act to regulate procedure in such manner as the LCRO deems fit, subject to the provisions of the Act.
The Applicant was then advised by letter dated 24 January, that the hearing had been scheduled for Wednesday, 9 March 2011, and in that letter it was noted-
You have exercised your right to be heard in person. This will assist the LCRO in ensuring that he has a full understanding of the matters raised in your review application. Following that hearing, the LCRO will determine how the matter is to proceed.
The Applicant only hearing constitutes part only of the review. Further directions will be issued by the LCRO following that hearing.”
It was also noted that-
The hearing will be held in private and is estimated to be one hour long.
If you intend to bring a support person or representative to the hearing, please advise our office of this immediately.
The Applicant had previously been supplied with a copy of the LCRO Guidelines, and had indicated in his email of 19 January that he was “well versed in the LCRO process”. Paragraphs 39-44 of the Guidelines explain the nature of an Applicant-only hearing and it is pertinent to record those here in full.
39. An Applicant-only hearing most often arises in the context of an Applicant having declined to the review being conducted on the papers (see above) and has asked to be heard personally. In that situation the LCRO will have already assessed, from all of the information that has been made available, that the Respondent has fully addressed and responded to all of the issues and that there appears to be no further information to be obtained that requires the Respondent's attendance.
40. However, an Applicant only hearing does not prevent further enquiry being undertaken if the LCRO is of the view that information arising at the Applicant-only hearing discloses further matters that need to be addressed by the Respondent. Any subsequent enquiry may be done by way of a further hearing with both parties, but more often will involve the Respondent being required to provide information sought by the LCRO. All further information provided will be circulated to the parties.
41. Less commonly an Applicant only hearing may be arranged where the information provided by the Applicant does not set out sufficiently the basis of the...
To continue reading
Request your trial