UC v OX

 
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[2013] NZLCRO 9

LCRO 179/2011

LCRO 180/2011

Concerning an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006

and

Concerning a determination of the Auckland Standards Committee 3

BETWEEN
UC
Applicant
and
OX
Respondent
Counsel:

UC as the Applicant

OX as the Respondent

The Auckland Standards Committee 3

The New Zealand Law Society

Application for review of two Auckland Standards Committee determinations to take no further action in respect of two complaints about practitioner — predominant submission on review was that, because a lawyer had a duty not to mislead the Court (r13.1 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008), the Courts did not therefore apply a rigorous (or any) standard of proof to statements made by a lawyer to the Court and abdicated the role of assessing the veracity of those statements to the New Zealand Law Society disciplinary process — applicant submitted that therefore it was the role of the disciplinary process to examine and investigate the veracity of the statements made by lawyers to the Court — whether the Standards Committee erred in considering the conduct complained of did not warrant disciplinary proceedings and no professional standards issues arose.

Held: It was clear that UC continued in her belief, despite various court findings, that her view of the practitioner's actions was correct, and that the only reason the Courts did not find against the practitioner was because they accepted all that was put before them as being correct, relying on the disciplinary process to act as “policeman” against lawyers making false statements to the Court. Such a view completely discounted all of the rules of evidence and the ability (and obligation) of the Courts to apply the relevant standards of proof required before evidence was accepted. It amounted to an attack on the integrity of the Courts. There was no merit to such a view. The disciplinary process had no part to play in Court proceedings. Only if in the process of Court proceedings it was shown that a lawyer had breached the Conduct and Client Care Rules, was it properly the role of the disciplinary process to act accordingly against that lawyer.

UC sought that the Standards Committee and the Legal Complaints Review Officer (“LCRO”) examine and investigate material that had been put before the Court. If UC did not challenge affidavit evidence in Court then the Court was entitled to rely on that evidence and it was not the role of the disciplinary process to then somehow review all of the evidence and pronounce again on its veracity. That view would elevate the role of the disciplinary process to one of oversight of the Courts. UC's remedies lay with the Courts.

A Standards Committee (or the LCRO) could determine to take no further action in respect of a complaint where there was adequate remedy that would be reasonable for an aggrieved person to exercise (s138(1)(f) Lawyers and Conveyancers Act 2006 (decision take no action on complaint). UC had exercised all the remedies available to her but could not accept that her view was anything other than correct. The LCRO could not act as some sort of independent body which scrutinised evidence and proceedings before the Court.

Standards Committee determination confirmed.

DECISION
Introduction
1

UC applied for a review of the two determinations of Auckland Standards Committee 3 to take no further action in respect of two complaints about OX. The complaints arise firstly from events relating to the role that OX played in promoting new animal welfare legislation and subsequently establishing an approved organisation in terms of the legislation, and secondly in respect of OX's conduct in relation to the various proceedings between the parties.

Background
2

The history of events arising between the parties was recounted by Allan J in UC v OX & Ors. 1 I have incorporated a substantial extract here from that decision by way of background information: 2

  • [17] [UC] and [OX] were formerly colleagues in a voluntary organisation known as the [CCP] Trust. Regrettably, differences emerged between them and there was a falling out. [UC] made inquiries into a trust with which [OX] was involved. He had been instrumental in securing the passage of the Animal Welfare Act 1999. The trust was an approved organisation under the Act, and in that capacity had an arrangement with the [location] City Council for animal

    welfare purposes. [UC] considered that [OX] had been using the trust to advance his own interests.
  • [18] She in turn formed a competitor Trust. It maintained a website upon which [UC] published certain statements defamatory of [OX]. There were other defamatory comments in e-mails sent to a wide variety of recipients, including those involved in local government, board members of the [CCP] Trust (of which [UC] had formerly been a trustee), and the staff of the animal welfare section of the [location] City Council.

  • [19] [OX] issued proceedings in the District Court at Auckland. He alleged that certain statements in [UC's] communications or those of her company (the second plaintiff in this proceeding), were to the effect that [OX]:

    • a) was dishonest and had taken charitable funds for himself;

    • b) had deliberately misled a Minister of the Crown in seeking to have his own trust accepted as an approved organisation;

    • c) had misappropriated funds from his own trust;

    • d) was corrupt, untruthful and untrustworthy.

  • [20] There were also allegations of passing off, and of breach of the Fair Trading Act 1996.

  • [21] The present plaintiffs filed a counterclaim in the District Court. They alleged five causes of action including defamation. The counterclaim ran to 55 pages. Damages of $250,000 were sought.

  • [22] In a judgment given on 7 February 2007, Judge Sharp struck out the counterclaim on the basis that none of the causes of action could be sustained.

  • [23] On 19 March 2007, Judge Sharp delivered a further decision in which an application filed by the present plaintiffs against the present defendants to strike out the District Court defamation proceeding was dismissed. In each judgment, Judge Sharp urged [UC] to obtain legal assistance.

  • [24] Also on 19 March 2007, Judge Sharp ordered [UC] personally to pay indemnity costs of $6,806.72 to the counterclaim defendant, the [CCP] Trust, and further directed the present plaintiffs, jointly and severally, to pay the costs of the present defendants, amounting to $9,000 (a sum in excess of scale).

  • [25] On 10 May 2007, in a further judgment, Judge Sharp directed the present plaintiffs to pay scale costs of $3,200 in relation to the unsuccessful application to strike out the statement of claim.

  • [26] On 28 June 2007 there was a judicial telephone conference in the course of which the Judge made timetabling directions. The first direction was as follows:

    “Within 14 days the defendants [the present plaintiffs], or one of them shall pay in full all outstanding Costs awards payable to the plaintiffs failing which the defendants will be debarred from further defending the claims against them and statement of defence will be struck out.”

  • [27] The unless order was not the subject of a prior written application; neither was there any reference to it in a memorandum filed by counsel for the plaintiffs for the purpose of the conference. But it is not in dispute that [UC] participated in the telephone conference.

  • [28] The costs remained unpaid. On 19 July 2007 Judge Sharp made an order (without further argument or appearance) striking out the statement of defence in the defamation proceeding of the present plaintiffs. The minute of Judge Sharp, distributed to the parties by e-mail, read as follows:

    “The directions that I made on 29.06.07 were clear: by 13 June 2007 the defendants were to have paid in full the outstanding awards of costs against them in favour of the plaintiffs or their statement of defence would be struck out. The defendants offer no adequate excuse for their failure to comply with that direction. The plaintiffs now seek an order in terms of the direction made.

    I can see no reasonable ground not to make one as the defendants' failure to meet the costs awarded by the due date constitutes an abuse of the process of the Courts.

    Accordingly under r 209(c) I strike out the defendants' statement of defence.”

  • [29] On 13 March 2008, Judge Joyce QC presided over the trial of the defamation proceeding. It was conducted as a formal proof hearing. The present plaintiffs were entitled to participate in the hearing in respect of quantum and in relation to mitigation, despite the striking out of their statement of defence. In practice, they were permitted substantial latitude and were able to place before the Court a great deal of material. I return to this point below.

  • [30] Written submissions followed the hearing. They were complete by 16 April 2008.

3

UC applied for a stay of execution of the various...

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