Wolverhampton v Shaftesbury
| Jurisdiction | New Zealand |
| Judgment Date | 23 June 2010 |
| Neutral Citation | [2010] NZLCRO 23 |
| Date | 23 June 2010 |
| Docket Number | LCRO 145/09 |
| 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 Auckland Standards Committee 3
The names and identifying details of the parties in this decision have been changed.
[2010] NZLCRO 23
LCRO 145/09
LEGAL COMPLAINTS REVIEW OFFICER, AUCKLAND
Application for review of a Standards Committee determination. Applicant complained to the NZ Law Society that the Practitioner had lost/mislaid a contracting out agreement and had falsely blamed her for its disappearance. Though the agreement did turn up there was disagreement as to how. The Standards Committee resolved to take no further action after the agreement was found and the Applicant was unwilling to provide a full copy of the original — whether the Practitioner had discharged his professional obligation to the Applicant.
On 24 April 2009 Mrs Wolverhampton (the Applicant) complained to the New Zealand law Society that Mr Shaftesbury (the Practitioner) had (a) lost or mislaid a Contracting Out Agreement that he had prepared for her in 2002, and (b) falsely blamed her for its disappearance. Her complaint set out events that had occurred in 2004 when she had contacted the Practitioner's office seeking a copy of it, that it could not then be located, and that she provided a photocopy of the “half-signed” agreement (i.e. containing only the signatures of her partner and his lawyer).
The complaint was notified to the Practitioner who responded on 3 June 2009, denying the allegation, and alleging that the Applicant was being “deliberately misleading in virtually all material respects”. He informed the Standards Committee that the document was last known to be in the possession of the Applicant. He enclosed a copy of a letter sent by his firm in September 2004 to the lawyer who had acted for her (former) partner, S, in response to an enquiry by that firm which recorded the firm's advice that the Applicant had acknowledged holding both copies and would give one to her partner that day.
On 9 June 2009 the Applicant informed the Standards Committee that she had found the Agreement (one original) in her letter box. She said it had not been posted nor had it been placed in an envelope. The Standards Committee informed the Practitioner accordingly.
The Practitioner wrote again to the Standards Committee on 15 June 2009 challenging the truthfulness of the Applicant's claim that she did not know how the document came to be in her letter box. He contended that she had found the document among her papers and had herself placed it there. He reiterated his earlier stance that the Applicant had the document all along. He sought confirmation that this was the end of the complaint. The letter was sent on to the Applicant. In several further communications with the Standards Committee the Applicant and the Practitioner forwarded further information and submissions, each contesting what the other had written. The Applicant sought compensation from the Practitioner for legal costs she had incurred in trying to assemble evidence of the Agreement's existence, prior to it being found.
The Standards Committee asked the Applicant to provide a copy of the Agreement she had found in her letter box so that the date on which it was shown to have been signed could be matched to the date that the Practitioner advised that the mortgages had been signed. The Applicant was unwilling to provide the full copy of the Agreement. In these circumstances the Standards Committee did not pursue the complaint further and issued its determination declining to uphold the complaint, citing, as reasons, that the Agreement had been found and the Applicant's unwillingness to provide a full copy of the original document. The Committee resolved pursuant to section 138(2) of the Lawyers and Conveyancers Act 2006 to take no further action.
The review application related to both the original complaint, but also to the Applicant's discovery of the original document in her letter box. Although she was initially uncertain about who might have put it there, the substance of the Applicant's contention was that the Practitioner was last known to be in possession of the original documents. She disagreed with the Committee's decision that no further action was necessary because she was significantly out of pocket due to legal costs incurred prior to the document turning up.
This review commenced with a hearing on 27 October 2009 attended only by the Applicant, which is a first step enquiry where the information provided appears to the Legal Review Complaints Officer to be insufficient to show that there is a case for a Practitioner to answer. It became apparent in the course of that hearing that the evidence of the parties was in conflict on almost every issue and with respect to almost every detail. In these circumstances it appeared appropriate to hear from the Practitioner and I wrote to the parties on 29 October 2009 referring to “disputed evidence which gives rise to issues of credibility”. The parties were invited to consider the possibility of mediation but this was declined and a substantive hearing was then arranged.
I heard from both the Applicant and the Practitioner at a substantive hearing on 13 January 2010. After that hearing the Applicant was asked to provide some further information relating to evidence she had provided at the hearing, and thereafter I arranged for a further meeting with the Practitioner only, to clarify some parts of his earlier evidence and also to give him an opportunity to respond to further information provided by the Applicant. Some further exchanges of information followed. The Practitioner has received a copy of all information forwarded by the Applicant and has had the opportunity to comment.
I mention at this point that at the hearing the Applicant confirmed her reluctance to produce the original Agreement. The reasons were not altogether clear but were understood to relate to current court proceedings which she considered could be compromised by making the document available. Her particular concern surrounded the date that the Agreement was shown to have been signed, which she claimed was incorrect and bore no relationship to the actual date of signing. She had nevertheless provided a photocopy of the front and back pages of the Agreement (but excluding the top of the front page showing the signing date) and this was provided to the Practitioner. The Applicant was willing to allow me to view the original document found in her letterbox but I declined to receive any evidence that could not be placed before the Practitioner, and the Applicant was informed accordingly. I need also mention the Practitioner was equally reluctant to disclose the actual date that the Applicant attended his office to sign the Agreement, also for reasons which were not clear.
I record that the Practitioner raised two grounds for challenging the jurisdiction of this office to undertake the review. The first claimed that the Applicant had not lodged her review application within the statutory time frame. The dates were re-checked and the Practitioner was informed that the review application was in fact received by this office on the last day that it could have been accepted, which clearly brought the application within the statutory time frame.
The second ground of challenge related to the Applicant's unwillingness to produce the original Contracting Out Agreement that she said had been placed in her letterbox. The Practitioner considered that this omission was prejudicial to him. I did not accept that this went to the jurisdiction of this office, and ruled accordingly, but I accepted that this was relevant to matters of evidence. The Applicant was again reminded that it was her responsibility to provide sufficient evidence to support her complaint, that failure to produce the original document could limit the enquiry and that inferences could be drawn from her refusal to produce evidence.
Notwithstanding that the original Contracting Out Agreement had been found in the Applicant's letter box I considered that some enquiry should be made into the original complaint alleging that the Practitioner had mislaid the document in 2002. I did not feel constrained to undertake such an enquiry despite the subsequent discovery of the Contracting Out Agreement document, because the complaint related to events preceding that discovery, the Applicant had incurred legal costs in trying to assemble evidence of its existence, and because the evidence forwarded by the parties concerning who last held the documents conflicted in almost every detail.
I informed the Practitioner that the conduct complained of occurred in September 2002, bringing it within the 6 year limit for bringing of complaints. I also informed him that my investigation would focus on the original complaints which were directed at the Practitioner's professional responsibilities in regard to the 2002 legal work he undertook for the Applicant in respect of the Contracting Out Agreement. That is to say, my investigation and review did not extend to considering the question of how the document eventually came to be found in the Applicant's letterbox. The Applicant's reluctance to produce the original document made any such enquiry impossible and she was made fully aware that an enquiry into her complaints would be limited in these circumstances.
The Practitioner had acted for the Applicant in relation to her divorce, and in 2002 she sought his further services in relation to the preparation of a Contracting-Out Agreement (and related refinancing) after she had commenced a de facto...
To continue reading
Request your trial