MR IP of Auckland v SI of Auckland v SH of Auckland
| Jurisdiction | New Zealand |
| Judge | Hanneke Bouchier |
| Judgment Date | 27 February 2012 |
| Neutral Citation | [2012] NZLCRO 12 |
| Docket Number | LCRO 179/2010 and 180/2010 |
| Court | Legal Complaints Review Officer |
| Date | 27 February 2012 |
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
of Auckland
of Auckland
And
of Auckland
[2012] NZLCRO 12
Hanneke Bouchier
LCRO 179/2010 and 180/2010
Law Practitioners — Application for review of determination of National Standards Committee with regard to issuing of costs warning – complainant and respondents both lawyers – respondent lawyer issued an indemnity costs warning to the applicant lawyer personally – context involved a claim against respondents’ client which respondent lawyer believed to be completely groundless – whether issuing of warning was in breach of r10 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“Client Care Rules”) (professional dealings by a lawyer).
In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:
IP as the Applicant
SI as the Respondent
SH as the Respondent
The National Standards Committee
The New Zealand Law Society
This decision covers a review of two decisions of the National Standards Committee on complaints made by Mr IP(the Applicant), against Mr SI and Mr SH (the Practitioners). The same complaint was made against both Practitioners in relation to the same item of correspondence, and it is appropriate that this review cover the Standards Committee decisions in relation to both of the Practitioners.
The parties to this review are all lawyers. The Applicant acted for H who claimed to have been injured by a product made by the company that was represented by the Practitioners. The company's extensive enquiries had concluded that the incident was not the result of its product, but due to the way the product had been stored. The Practitioners denied any wrongdoing or liability on the part of their client company.
There were exchanges of correspondence between the Applicant and the Practitioners in relation to this matter. A particular letter written by the Applicant to the Practitioners' firm on 16 September 2009 led the Practitioners to lodge a complaint against the Applicant with the New Zealand Law Society (NZLS). The Applicant was notified of the complaint and invited to respond.
In his reply (of 6 October 2009) the Applicant not only responded to the Practitioners' complaint, but raised complaints of his own against the Practitioners. His complaints concerned a letter sent to him by the Practitioners on 9 September, the week before his reply to them (which became the subject of their complaint). The Applicant asked the Standards Committee to accept this as a separate complaint of his own against the Practitioners.
The parts of the Practitioners' letter that the Applicant objected to were paragraphs 8 and 9 which were as follows:
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8. “In the event that your client brings a claim against our client, it will be opposed and our client will seek indemnity costs in opposing any application. This letter and earlier correspondence, will be produced to the Court in support of any application. In view of the lack of any merit in any claims against our client, which could only be viewed as an abuse of process, our client has confirmed that it will instruct us to file an application against you and co-counsel for bringing any such claim.
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9. We note that whilst many firms make indemnity costs warnings as a matter of course, this firm does not do so. However, in the clear circumstances of this case we have been instructed to do so. We note this so that you and your client are fully aware of the matters.”
All of the complaints were considered by the National Standards Committee which determined, pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006, that no further action was necessary or appropriate having regard to all the circumstances. The Committee expressed the view that the Applicant's complaint lacked merit and support.
The Applicant applied for a review of the decisions and asked to be personally heard in respect of his applications. An Applicant-only hearing was arranged and attended by the Applicant and one of his staff in support. He objected to the Applicant-only hearing, which he considered denial of his rights to proper process.
By virtue of s 206 of the Lawyers and Conveyancers Act 2006 the LCRO may regulate his or her own procedures as considered fit, subject to complying with the rules of natural justice. While the LCRO Guidelines set out the usual pathways for the review process, they are not exhaustive and cannot address all circumstances in which review applications are made.
The nature of an Applicant-only hearing is explained in the LCRO Guidelines, a copy of which was sent to the Applicant. In this case the Applicant sought to be personally heard on his review application, as he was entitled to do. I considered that an Applicant-only hearing was sufficient as a first-step. I also add that there is nothing to prevent further enquiry being undertaken by the LCRO following an Applicant-only hearing, or a further hearing should that be considered appropriate.
Having heard from the Applicant, reviewed all of the information on the Standards Committee file and that provided for the review, I considered that there was no need to make further enquiry, also taking into account the Practitioners' advice that they stood on submissions already made and had nothing further to add.
The Applicant based his review application on three grounds. The first was a jurisdictional concern about his complaints file having been transferred from a regional standards committee to the National Standards Committee. He stated that no proper explanation was given for the transfer which he described as “mysterious”, suggesting that the complaints were “transferred to the National Standards Committee apparently on some secret Board direction.”
The reason that the National Standards Committee dealt with the complaint is because of a resolution made by the New Zealand Law Society Board that this, and all future complaints involving this Applicant, are to be referred to that Committee. This resolution followed numerous complaints of a serious nature having been made by the Applicant against a number of individuals involved in the Auckland complaints service. The resolution is in the nature of a standing order.
The evidence showed that the Applicant had in fact been sent a copy of that resolution. I therefore do not accept that he could have been unaware of the reason for the transfer of his complaints to the National Standards Committee despite his suggestion that no explanation had been given to him.
The second ground of review alleged that the Standards Committee had not provided reasons for its decision to take no further action on the Applicant's complaints. He considered that he had provided sufficient information to have lead to an adverse finding against the Practitioners. In his view a Standards Committee had an obligation to justify its reasons for deciding to take no further action. He attached to his review application a lengthy discourse on the importance of a judicial or quasi judicial body providing reasons for a decision.
In this case the Committee's decision comprised a summary of the exchanges that had occurred between the Applicant and the Practitioners, and ended with the conclusion that no further action was necessary or appropriate. The Committee may have assumed that the description of the discourse was a sufficient explanation for its decision to take no further action. Any omission in providing reasons can be cured by the review process.
The third ground of review alleged that an error of law had occurred. The Applicant submitted that the Standards Committee's decision was...
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