UE v OV

 
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[2013] NZLCRO 10

LCRO 213,245 & 296/2011

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

Counsel:

UE as the Applicant

OV as the Respondent

The National Standards Committee

The New Zealand Law Society

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.

Held: Section 198 Lawyers and Conveyancers Act 2006 (“LCA”) (application for review) provided that every application for review had to be in the prescribed form. An application for review could not be accepted if it was not in the prescribed form or not accompanied by the prescribed fee. OV's application for review was on the prescribed form and he paid the prescribed fee. OV's failure to include a copy of the Standards Committee determination with his application did not offend the requirement to make the application on the prescribed form, but rather related to compliance with directions on the form and the provision of accompanying documentation.

Regulation 3(2) Lawyers and Conveyancers Act (Legal Complaints Review Officer) Form and Fee Regulations 2008 provided that the form could be varied as the circumstances of a particular case required. The LCRO could therefore vary the requirements and content of the form. A copy of the Standards Committee determination was already provided by UE with his review application. It would therefore, be superfluous to insist upon another copy to be provided and whether or not a copy was provided did not affect the progress of the review as the LCRO had all the necessary information before it.

In addition, it could be argued that s200 LCA (avoidance of unnecessary formality) applied to a review once underway. The policy of that section was that reviews had to be conducted with as little formality and technicality as possible. It would be extremely technical to reject an application for review on the grounds submitted by UE. Any discretion which resided in the LCRO should be exercised with that in mind. The failure to provide a copy of the determination was not fatal and OV's application was valid.

Even if the OV's application was invalid, any issue that OV wished to raise could be addressed in the process of considering UE's application which was under way ( Deliu v Hong). Further, OV could not withdraw his application without consent as the statutory obligation to conduct the review rested with the LCRO. Consent would not be granted if the LCRO considered that there were issues to be addressed.

The decision to decline to accept the complaint in the first instance was not made by a Standards Committee or with the authority of a Standards Committee. It was therefore not a decision which was reviewable by the LCRO. The LCRO had no authority to issue any direction or order to the Complaints Service as to how matters were dealt with, or to affect or alter any procedural decision made by the Service. The LCRO had before it the determination of the Standards Committee. The LCA required the LCRO to conduct a review of the Standards Committee determination.

LCRO had the jurisdiction to proceed with review.

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...

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