DELIU v CONNELL [2016] NZHC 361, 4 March 2016.

This case note considers a recent High Court decision in which an Auckland lawyer, Mr D, challenged the decision of the Legal Complaints Review Officer (LCRO) by way of judicial review. The LCRO had rejected a complaint made by Mr D against another lawyer (Mr C). In the course of considering Mr D’s judicial review proceeding, the court made important observations on the nature of the LCRO’s function and the weight the LCRO must give the Standards Committee decision being reviewed.

Background

Mr C acted for a builder who was trying to recover the cost of building work from the home owner, for whom a lawyer employed by Mr D acted (“Ms X”). Ms X filed a proceeding against the builder which included a claim in deceit.

Mr C’s client made a complaint to the New Zealand Law Society against Ms X, saying that Ms X did not have grounds to allege deceit. This complaint was eventually upheld and Ms X was censured and fined. But the complaint against Ms X prompted a cross-complaint by Mr D against Mr C, alleging that Mr C’s complaint was designed to intimidate Ms X.

Mr D’s cross-complaint was dismissed by the Standards Committee. It resolved to take no further action on the basis that it considered that, because Mr D overlooked the evidence Mr C had to support his claim, Mr D’s cross-complaint was vexatious and not made in good faith.

Mr D applied to the LCRO to review this decision. The LCRO not only rejected Mr D’s review application but upheld the Standards Committee’s finding that he was acting vexatiously. He was ordered to pay costs to the NZLS and to Mr C.

Mr D brought judicial review proceedings in the High Court against the LCRO and Mr C. The Law Society applied to be and was joined to the proceedings.

What is the nature of the LRCO’s function?

Much of the judgment of the High Court concerned the nature of the LCRO’s review function, compared with other complaints processes.

The Court held that the LCRO’s role differs greatly from judicial review or an appeal. It was described by Parliament as having an “ombudsman-like role”. The Court characterised the complaints process as “sui generis” and “unique”. Under the relevant legislation the LCRO must “conduct any review with as little formality and technicality” as permitted by the Act and the rules of natural justice. The High Court described the LCRO review as being “informal, inquisitorial and robust”.

The Court held that because the LCRO takes a different role than a court, the fact that she did not address particular issues or submissions, one by one in a judicial manner, did not mean that she failed to take them into account. The LCRO carried out a “robust review”, looking at the evidence and coming to her own view of it, as was her role under the Act’s legal framework.

Did the LCRO commit an error of law?

Mr D’s review application included reliance on a large number of grounds of challenge. One of the more substantive arguments was that the LCRO had made an error of law by failing to apply the principles set out in another decision in which Mr D complained about the behaviour of a lawyer - Deliu v Hong. In this case the High Court held that the LCRO’s power of review contemplates the officer reaching his own view on the evidence, while at the same time recognising that the “Review Officer should exercise particular caution before substituting his or her own judgment without good reason”.

The Court found that the LCRO had applied the principles of Deliu v Hong even though she did not specifically refer to them in the decision. The LCRO had characterised her role as determining whether there was “good reason” to disturb the Committee’s decision. While the Court noted that this could be taken as deference to the Committee’s decision (which would be inappropriate given the LCRO had to consider the case afresh) it was clear from the rest of the decision that the LCRO did come to her own view on the evidence.

Mr D’s challenge to the LCRO’s substantive decision was rejected.

Was Mr D’s complaint vexatious?

The LCRO found that Mr D’s complaint was vexatious because Mr D had ignored the factual basis for Mr C’s complaint. This was interpreted by LCRO as indicating vexatious behaviour on the part of Mr D.

While the High Court disagreed with the LCRO’s analysis it held that the LCRO’s decision was not so unreasonable that it should be substituted with the Court’s own view.

Should Mr D pay costs?

The Court agreed with Mr D on one aspect, namely that the LCRO erred by not taking into account an application Mr D had made to recuse the LCRO and submissions opposing costs (which were filed late).

There were two costs decisions made by the LCRO. After receipt of the first one, Mr D told the LCRO that he had not received Mr C’s submissions on costs. As a result, the decision on costs was recalled. In between the first and the second costs decision, Mr D made an application that the LCRO recuse herself from deciding on costs, because she had already decided against Mr D in the first costs decision. The LCRO issued a second costs decision without referring to the recusal application.

The Court held that the LCRO failed to take into account relevant considerations in her decision and so acted unreasonably. As a result the costs decision was quashed.

Summary

The decision reaffirms that the LCRO has a wide-ranging inquisitorial function, so that the LCRO must not approach the review by asking if there is a reason to depart from the Standards Committee’s decision. Instead, the LCRO must look at the matter afresh, albeit with a reluctance to substitute his or her own judgment for that of the Standards Committee, except where there is a good reason to do so.

Philippa Fee and Lucin Fraser acted for Mr C in this case