Mr Lydd v Mr and Mrs Maryport

 
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[2009] NZLCRO 49

Legal Complaints Review Officer

LCRO 164/2009

Concerning An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

Concerning A determination of the Otago Standards Committee No.1

Between
Mr Lydd
Applicant
and
Mr And Mrs Maryport
Respondent
Appearances (if applicable)

X for the applicant

G for the Respondent

Z for the Standards Committee

Application for review of decision of Standards Committee on basis civil proceedings were a more appropriate way of determining a dispute between solicitor and client.

The names and identifying details of the parties in this decision have been changed.

HEARD BY TELEPHONE CONFERENCE ON 14 OCTOBER 2009

Held: The assertion that the complaints process should not proceed until hypothetical proceedings had been disposed of was not sustainable. In any case, neither the appointment of the investigator nor the decision of the SC not to exercise its discretion to take no further action were reviewable “determinations”, and the application for review was therefore outside of jurisdiction.

DECISION
Background
1

Mr Lydd is the subject of a complaint by Mr and Mrs Maryport. The complaint concerns the conduct of Mr Lydd in the creation of certain trust structures and subsequent dealing with trust matters. One of the allegations is that Mr Lydd improperly altered an instrument of transfer relating to trust property. The complaint was made on 27 November 2008, though the issues had been raised with Mr Lydd through Mr and Mrs Maryport's counsel in earlier exchanges of correspondence.

2

The complaint was forwarded to Mr Lydd by the Society on 1 December and he was invited to comment on it. A response was provided on 19 December in which Mr Lydd observed that civil proceedings in respect of the subject matter of the complaint had been threatened and expressed the view that in all the circumstances Mr and Mrs Maryport were inappropriately using the complaints procedure. Mr Lydd submitted that the Committee should summarily dismiss the complaint (as it is empowered to do by s 138 of the Lawyers and Conveyancers Act 2006).

3

The Committee then sought clarification of the status of any proceedings in the matter. Mr Lydd informed the Committee by letter of 4 May 2009 that no proceedings had been issued by Mr and Mrs Maryport in the matter. A copy of the earlier response of Mr Lydd was provided to Mr & Mrs Maryport for comment on 12 May 2009. That response was provided on 27 May 2009. On 4 August further submissions were made to the Committee on behalf of Mr Lydd by his counsel.

4

After considering the material provided to it by the parties the Committee resolved to appoint an investigator. On 1 September 2009 an investigator was appointed under s 144 of the Lawyers and Conveyancers Act 2006. On 10 September 2009 the Society wrote to Mr Lydd and informed him of the appointment.

5

On 6 October 2009 this office received an application for the review of the appointment of the investigator by the Committee. I observe that the application itself sought a review of the appointment of the investigator. However, in the written submissions of the applicant in the matter and at that hearing itself this was expanded somewhat to cover objections to various steps taken by the Committee (or possibly the investigator) in this matter. It was accepted that given the relatively short time frame involved this was appropriate to ensure the matter was properly heard and considered.

6

The general tenor of the application was that the Standards Committee failed to give due regard to the information and submissions of Mr Lydd and his counsel in reaching its decision and that the appointment of an investigator was unduly prejudicial to Mr Lydd. A second thread of the application was that the complaint was not made in good faith and the complaints process was being used inappropriately by the complainants in this matter in an effort to obtain an illegitimate advantage in the dispute that exists and in any proceedings which might eventuate.

7

I observe that Mr Lydd was concerned that the investigation was continuing. In light of the fact that this office has only those powers conferred by the Lawyers and Conveyancers Act 2006 (the Act) and those powers do not include the power to stay any order of a Standards Committee the hearing of this matter was expedited.

Jurisdiction
8

The parties were asked to address the initial question of whether the powers of review conferred by the Lawyers and Conveyancers Act extended to the power to review a decision of the nature currently objected to (however characterised).

9

It was common ground that if jurisdiction to review this matter existed it was pursuant to s 194(1) of the Act which deals with applications for review in respect of complaints. That provision provides:

This section applies to any determination, requirement, or order made, or direction given, by a Standards Committee (or by any person on its behalf or with its authority)

  • (a) in relation to a complaint (including a decision to take no action or no further action on a complaint); or

  • (b) on a matter arising from a complaint.

10

It is clear that not every step taken by a Standards Committee is reviewable. Rather the action must fall within one of the categories set out in s 194(1). Mr X submitted for Mr Lydd that jurisdiction existed because:

  • [a] The decision not to exercise its discretion under s 138 of the Act to take no further action on the complaint was a “determination” that is reviewable. This argument might also be expressed by the contention that the decision to investigate the complaint further was a determination (which avoids the unfortunate double negative inherent in a decision not to take no action).

  • [b] The decision by the Committee to appoint an investigator pursuant to s 144 was a “determination” that is reviewable.

  • [c] The instructions given to the investigator by the Committee pursuant to s 146 are a “requirement” that is reviewable.

  • [d] The investigator has indicated an intention to exercise his powers of investigation which is reviewable.

11

In arguing that there had been a determination which was reviewable Mr X sought to make a distinction between a final determination and a determination which is other than final. He noted the phrase “final determination” appears in s 133 (in relation to a complaint based on the failure to comply with a final determination), s 203 (scope of review of final determination), s 204 (power to request an explanation in respect of reasons of final determination). Reference was also made to s 152(4) which states that (subject to the right of review) every determination made under s 156 or 157 is final.

12

In contradistinction, Mr X argued, the word determination is used alone in a number of other places in the Act. These include s 158 (notice of determination must be provided), s 194 (power of review in respect of complaints), s 195 (power of review in relation to inquiries), s 207 (power to receive evidence in review of a determination), s 211 (power to confirm modify or reverse determination).

13

The argument was that any decision of a Committee (which was more than trivial or merely administrative) was a determination which was prima facie reviewable and that the legislature had distinguished between final determinations (of the merits of the complaint) and determinations more generally.

14

Ms G for Mr and Mrs Maryport submitted that there is no power to review a decision to appoint an investigator and argued that the appointment did not amount to a “determination requirement order or direction” in terms of s 194. She argued that the application was an inappropriate attempt to review the failure of the Committee to resolve to take no further action on the complaint (although I note that Mr X would argue that this is also a determination).

15

It was observed that the appointment of the investigator and other steps taken by the Committee are preliminary and are not of themselves determinative of any rights or liabilities of the parties. As an aside I observe that it might properly be said that the appointment is adverse to the interests of Mr Lydd in so far as he is to be subject to the investigative process. Ms G argued that in the absence of clear legislative intent such preliminary or procedural decisions should not be amenable to review.

16

Mr Z for the Committee observed that the powers of this office are constrained by the legislation and also argued that the Committee had not taken any step which was reviewable under s 194. He observed that s 194 gives an express power to review a “requirement” of an investigator (for example to produce documents). It was suggested that had Parliament intended an appointment of an investigator to be reviewable then it would have said so clearly.

Has there been a “determination”?
17

I am not persuaded that the drafters of the legislation intended the subtle distinction between final determinations and determinations of another sort suggested by Mr X. I am of the view that a determination for the purposes of the power of review of this office is a determination...

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