UE v OV

• Jurisdiction: New Zealand
• Judgment Date: 18 March 2013
• Neutral Citation: [2013] NZLCRO 10
• Date: 18 March 2013
• Docket Number: LCRO 213,245 & 296/2011
• 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

BETWEEN

UE

of Auckland

and

OV

of Auckland

[2013] NZLCRO 10

LCRO 213,245 & 296/2011

Challenge to the jurisdiction of the Legal Complaints Review Office (“LCRO”) to proceed with a review of the Standards Committee determination on grounds the complainant did not include a copy of the Standards Committee decision with the review application, and that once the Complaints Service declined to accept the complaint as a valid complaint, it was functus officio and could not then reconsider its decision and later accept the complaint — whether the failure to provide a copy of the determination with the review application was fatal to the review application and if not, whether the application was valid — whether the LCRO had jurisdiction to proceed with the review.

Counsel:

UE as the Applicant

OV as the Respondent

The National Standards Committee

The New Zealand Law Society

Decision as to jurisdiction

Background

1 On 20 September 2011 the National Standards Committee issued its determination in respect of a complaint by OV about UE in which it determined to take no further action in respect of the complaint. It sought submissions from the parties as to whether costs should be awarded against UE pursuant to s 157(2) of the Lawyers and Conveyancers Act 2006 (the Act) and if so, in what sum.

2 On 22 September 2011 UE lodged an Application for Review of that determination.

3 On 28 October OV lodged an Application for Review of the same determination.

4 On 14 November the National Standards Committee issued its determination as to costs.

5 On 20 December UE lodged an Application for Review of that determination.

6 This Office has determined to deal with all three review applications concurrently.

7 In accordance with a Minute dated 7 August 2012, a hearing took place with UE on 27 November, which OV attended for part of the time.

8 As directed by me, UE provided his initial submissions on 13 November. OV provided his submissions in reply dated 22 January 2013, and UE has provided further submissions dated 4 February 2013.

9 In accordance with [11](f) of the Minute dated 7 August, I now need to consider how this review is to proceed. However, in his submissions, UE has raised issues as to jurisdiction which I have determined to address at this stage.

Jurisdiction

10 UE has challenged the jurisdiction of this Office to continue with OV's application for review on two grounds:–

• 1. OV did not include a copy of the Standards Committee decision with his application; and

• 2. Once the Complaints Service declined to accept OV's complaint as a valid complaint it was functus officio and could not then reconsider its decision and later accept the complaint.

OV's failure to include a copy of the determination

11 UE submits that because OV did not include a copy of the Standards Committee determination with his application, the application is therefore invalid and should be rejected. He makes the following points:–

• 1. LCRO Form 01/11–1 requires the Standards Committee determination to be included and there must be a reason for that;

• 2. The LCRO Guidelines refer to the requirement to include a copy of the determination.

• 3. The LCRO website also indicates a copy of the Standards Committee determination is required to accompany the application.

• 4. The Lawyers and Conveyancers Act (Legal Complaints Review Officer) Form and Fee Regulations 2008 require every application to be made in the format set out in the Schedule.

• 5. The High Court decision in Dorbu v NZLS 1 establishes that there is a strict requirement to comply; failing which, rights will be lost due to lack of jurisdiction.

• 6. LCRO decisions establish that where procedural requirements are not complied with, review rights are lost.

• 7. Logic dictates that a copy of the decision is required by the reviewing body.

12 Section 198 of the Act provides that every application for review must be in the prescribed form. It also requires the application to be lodged within a specified time frame. This Office has determined on a number of occasions that there is no discretion to vary the time limits within which an application must be made. 2

13 Similarly, there is no discretion to accept an application for review which is not on the prescribed form, or which is not accompanied by the prescribed fee.

14 In this instance, OV's application was on the prescribed form and he paid the prescribed fee.

15 UE's objection is that he did not include a copy of the Standards Committee determination with his application. This does not offend the requirement to make application on the prescribed form, but rather, relates to compliance with directions on the form and provision of accompanying documentation.

16 Regulation 3(2) of the Lawyers and Conveyancers Act (Legal Complaints Review Officer) Form and Fee Regulations 2008 provides that the “form set out in the Schedule may be varied as the circumstances of a particular case require.” This indicates to me that there is a discretion for this Office to vary the requirements and content of the form.

17 In D v T 3 the LCRO noted at [8] that “[t]he reasons for using a prescribed form are to ensure that essential information for the progressing of the review is obtained.” In this instance, a copy of the determination had already been provided by UE with his review application. It was superfluous therefore to insist upon another copy being provided and whether or not a copy was provided did not affect progress of the review. This...