PD v [City A] Standards Committee
| Jurisdiction | New Zealand |
| Judgment Date | 30 November 2015 |
| Neutral Citation | [2015] NZLCRO 69 |
| Date | 30 November 2015 |
| Docket Number | LCRO 75/2015 |
| Court | Legal Complaints Review Officer |
Concerning an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
and
Concerning the [City A] Standards Committee
[2015] NZLCRO 69
LCRO 75/2015
Application to review a request made by a Standards Committee to commence an own motion inquiry and to require the practitioner to comment on the issues raised — the committee had received a confidential report under r2.8 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) (lawyer who had reasonable grounds to suspect… misconduct, must make a confidential report) — the practitioner submitted that the LCRO's power to review a Committee's decision to initiate an own motion inquiry, and to seek comment from a practitioner, was allowed by s195(b) Lawyers and Conveyancers Act, 2006 (LCA) which provided that a right of review existed in respect to a “requirement” — whether there was jurisdiction under s130(c) LCA (investigate of its own motion any act…) for the LCRO to review a Standards Committee's decision to commence an own motion inquiry or a request for a practitioner to provide explanatory response to the matters under investigation — whether, as a result of an earlier judicial review decision, the LCRO was bound to require that any inquiry be conducted by a different committee.
Mr PD as the Applicant
[City A] Standards Committee as the Respondent
Mr HU as Representative for [City A] Standards Committee
The New Zealand Law Society
Mr PD has applied to review a request made by the [City A] Standards Committee of Mr PD to comment on issues arising from the Committee's decision to commence an own motion inquiry.
The Complaints Service resolved, after receiving a confidential report under
of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules), to initiate an own motion inquiry into matters involving Mr PD.
On the 13 March 2015, the Complaints Service advised Mr PD that:
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(a) A Standards Committee had concluded that it had jurisdiction to inquire into conduct matters involving Mr PD which arose prior to 1 August 2008, the date that the Lawyers and Conveyancers Act came into force.
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(b) The Committee was seeking response from Mr PD in regard to a revised set of issues.
It is apparent from the Complaints Service correspondence of 13 March 2015, that there had been some initial exchange of correspondence between the Complaints Service and Mr PD (that initial exchange may have touched on issues of jurisdiction). What is clear is that the correspondence of 13 March 2015 served as notice to Mr PD of the Committee's intention to commence an own motion inquiry, and its desire to obtain response from Mr PD in respect to matters which were to be the focus of the inquiry.
Mr PD's response to the Committee's request was to file, on 16 April 2015, an application to the Legal Complaints Review Officer (LCRO) to review the Committee's request of him to provide his views on the issues to be addressed by the inquiry.
Mr PD's application to this Office to exercise its power of review was initiated at a point in time when the Committee's inquiry was in its infancy.
Issue immediately arises as to whether the LCRO has jurisdiction to review both a decision of a Committee to commence an inquiry, and a request made by a Committee for a practitioner to provide explanatory response to the matters under investigation.
The engagement of the LCRO in the complaints process is most commonly sought at the stage in the disciplinary process where a Standards Committee has completed its inquiry, delivered its determination, and request is then made of the LCRO to review the Committee's decision.
Mr PD filed extensive submissions in support of his application. In significant part, those submissions traverse matters which have little relevance to the critical question as to whether this Office has jurisdiction to conduct a review.
In his first set of submissions filed on 16 April 2015, Mr PD:
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(a) Provided a comprehensive summary of what he describes as the “background facts” to the complaint.
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(b) Advises that he is intending to file proceedings against one of the parties involved in the transaction which (presumably) provides the backdrop to the complaint.
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(c) Advises that he has commenced legal proceedings against members of the Standards Committee.
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(d) Indicates that one of the objectives he seeks to achieve through the review process, is to have the LCRO provide an opinion on the proper operation of “whether some legal parameters ought to be set down for the own motion inquiry power”. 1
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(e) Provides background to the High Court proceedings in which application had been made to strike out his claim.
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(f) Criticises the fitness of members of the Standards Committee to hold their positions, and makes accusation that the Committee members lack an understanding of fundamental legal principles.
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(g) Submits that there is a common view or perception that the Complaints Service discriminates against sole practitioners.
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(h) Seeks to have what he describes as the Standards Committee “decisions quashed”.
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(i) Submits that the complaint should be considered by another Committee, but requests that three particular Committees be excluded from consideration.
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(j) Calls for the LCRO's views on his perceived concerns that there are “major serious issues with our Lawyers complaints framework”. 2
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(k) Argues that a legal precedent needs to be set to establish obligation on a practitioner who files a confidential report to have, prior to filing any report, vetted evidence to ensure that allegations made could be “supported and arguable”. 3
On receipt of Mr PD's application, the LCRO made request of Mr PD to provide clarification as to the basis upon which he considered his application fell within
Mr PD provided response to that request on 17 April 2015. He submitted that:
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(a) Whilst the Committee had not delivered its determination, its decision to initiate an own motion inquiry, and to seek response from him, was a decision which was reviewable.
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(b) The jurisdiction to initiate an own motion inquiry arose from s 130(c) of the Lawyers and Conveyancers Act 2006 (the Act) and “thus I have taken such as there being no complainants and as such s 190 does not apply”. 4
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(c) His application for review is based on ss 193 and 195 of the Act.
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(d) The LCRO has jurisdiction to review the Committee's actions.
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(e) In the event that the LCRO was to determine it lacked jurisdiction, his intention, expressed as his preferred option, would be to take the matter to the High Court.
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(f) Any decision which denied a party access to justice must be sparingly exercised.
In a Minute issued on 24 April 2015, I invited Mr PD to reconsider whether he wished to continue with his review. It was noted that Mr PD's application raised immediate question as to whether the LCRO had jurisdiction to review decisions taken by a Committee during its initial stage of inquiry into a complaint, being decisions made prior to the merits of the complaint having been considered, and a determination delivered.
Mr PD filed further submissions on 30 April 2015. I do not propose to address those submissions in detail. Those submissions provided comprehensive response to matters raised by the complaint inquiry, made expansive criticism of the Standards Committee members, provided discursive comment on the complaints process, and railed against the injustices Mr PD perceives himself to have suffered in his engagement with the complaints process.
In as much as those wide ranging submissions focus on the jurisdictional issue addressed in my Minute, Mr PD submits that the LCRO's power to review a Committee's decision to initiate an own motion inquiry, and to seek comment from a practitioner, is allowed by s 195(b) of the Act, which provides that a right of review exists in respect to a “requirement”.
Without in any sense intending to be disrespectful to Mr PD, his unhelpful tendency to intermingle his submissions with argument about the merits of the complaint, his recitation of comprehensive submission on legal principle with little analysis of how the principle cited has relevance to the argument being advanced, and the lack of succinct focus on relevant issues, makes the extrapolation of clear argument from lengthy submission difficult. At times the submissions are intemperate, and regrettably veer into unsubstantiated attack on persons engaged in the disciplinary process. His persistent reference to intention to seek the intervention of the High Court if the particular remedy he seeks is not granted is unnecessary. Mr PD, as with any practitioner, is free to pursue whatever legal remedies he considers appropriate, but persistent reference to intention to seek remedy in another forum if he does not get what he wants, is not a proper submission to persistently advance.
Counsel for the Committee, Mr HU, provided response to Mr PD's application on 16 October 2015. Mr HU submits that:
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(a) The Committee's correspondence of 13 March 2015 which invited Mr PD to provide response, was not a decision.
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(b) The LCRO has no jurisdiction to review an own motion inquiry decision.
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(c) If the Review Officer was to determine that there was jurisdiction to review the exercise of a statutory authority under s 130(c), in any event the review application lacks merit and should be dismissed.
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(d) The rights of review in cases engaging an own motion...
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