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High Court of New Zealand Decisions |
Last Updated: 20 December 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-002533 [2012] NZHC 3247
UNDER the Judicature Act 1908
IN THE MATTER OF an application for judicial review
BETWEEN RICHARD ZHAO Plaintiff
AND THE LEGAL COMPLAINTS REVIEW OFFICER
First Defendant
AND YU NIE
Second Defendant
Hearing: 10 October 2012
Appearances: F Deliu for Plaintiff
No appearance for First and Second Defendants
W Pyke for Intervener (New Zealand Law Society) Judgment: 4 December 2012
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Tuesday, 4 December 2012 at 4:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Law Office, (D Soper/D Consedine) Wellington
Alice Lawyers (A Nie), Mt Albert, Auckland
Counsel:
F C Deliu (Barrister) Auckland
W C Pyke (Barrister) Hamilton
ZHAO V THE LEGAL COMPLAINTS REVIEW OFFICER & ANOR HC AK CIV-2012-404-002533 [4
December 2012]
Introduction
[1] This is a proceeding in which the plaintiff, Mr Zhao, seeks to judicially review the decision of the Legal Complaints Review Officer relating to a complaint made against him by the second defendant, Ms Nie.
Parties
[2] The plaintiff, Mr Richard Zhao, is a barrister practising in Auckland. He practices in association with Mr Frank Deliu and others under the auspices of Amicus Barristers’ Chambers.
[3] The first defendant, the Legal Complaints Review Officer (“LCRO”) is a statutory office created by Part 7 of the Lawyers and Conveyancers Act 2006 (“LCA”). There is both an LCRO and deputy LCRO. The powers and responsibilities of the LCRO are set out in the LCA. The LCRO has a role in disciplinary proceedings under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“the CCC Rules”). The LCRO who conducted the review in this case was Ms Bouchier. The LCRO abides by the decision of the Court.
[4] The second defendant, Ms Yu (Alice) Nie, is a barrister and solicitor practising in Auckland. Her practice is known as Alice Lawyers. The second defendant also abides the decision of the Court.
[5] The New Zealand Law Society (“NZLS” and “the intervener”) sought leave to intervene in these proceedings by interlocutory application dated 29 June 2012. The grounds on which the NZLS sought to be heard are addressed below. Leave to
intervene was granted.1
1 See [47] below.
Factual background
[6] This proceeding is based on a dispute between two parties represented by Ms Nie and Mr Zhao which led to a complaint against Mr Zhao. The complaint was dealt with by the NZLS and, in particular, it’s Auckland Standards Committee No. 3 (“the Auckland Committee”). The decision of the Auckland Committee was then reviewed by the LCRO. The manner in which the LCRO conducted that review and her decision are the focus of this claim for judicial review. I mention the facts and the progression of the complaints process in some detail as it is important to do so for the disposition of this review application.
Ms Nie’s complaint
[7] On 8 June 2010, Mr Zhao faxed a letter to Ms Nie in relation to a dispute over land. Mr Zhao was acting for the purchaser and Ms Nie acted for the vendor. Mr Zhao sought the return of a deposit paid by his client.2 The transmission time on the copy provided to the court records that it was sent at 3.17 pm. The letter was couched in the following terms:
Therefore we request the immediate refund of $20,000 to our Client, regardless of whether a separate rental agreement in fact exists. Failing it will result a complaint to be made against you at Auckland District Law Society and application for directions from Northshore District Court for the release of the fund, and you are Put on Notice that should this approach be inevitably taken then costs will be sought on an indemnity basis.
...
You are put on notice that you have until 11 June 2010 to at least refund the above said $15,380, which are put forward to you and your client in a Without Prejudice Manner Save as to Costs and also as a Calder Bank offer for you to release the fund. Failing it will result the carrying out of court proceedings and no further notice will be given to you and your client.
[8] Ms Nie replied by a fax which appears to have been sent sometime between the 3.17 pm fax and a subsequent email to her from Mr Zhao at 4.50 pm. Ms Nie’s
2 Record of the Legal Complaints Review Officer (“RLCRO”) at 6.
fax message addressed some of the substance of the dispute but also included the following:3
We note that you are barrister chambers. We note that [the CCC Rules] clause 14 has provided the practice restrictions in relation to barrister sole. We believe your behaviour is representing as solicitor for this client and you have exceeded the restrictions as a Barrister unless you may provide evidence under clause 14.6.
We also reserve our right to complain to the NZLS against you in relation to the same.
...
Any vexatious complain and threatening would result in our counter- complain against you.
[9] In an apparent response to that fax, Mr Zhao sent an email at 4.50 pm on
8 June 2010. The relevant parts of that email were:4
Firstly, you have raised the [CCC Rules] but you have failed to clarify the basis of your belief that I was representing myself as a solicitor nor was it your business to inquiry into the briefs I receive from my Client. R2.7 [of the CCC Rules] states a lawyer must not threaten, expressly or by implication, to make any accusations against a person or to disclose something about any person for any improper purpose. I can only see this as a vexatious move and an attempt to prevent you from retrieving the $20,000 deposit for my Client from you. However, if you feel the need to make a complaint on such an ambiguous ground I am happy to deal with it and if required, will take the matters to the Supreme Court if I have to.
...
This can only lead me to believe the conduct of you and your firm are unsatisfactory, as required by Section 12 [LCA] ... Further, your conduct has also raised questions as to whether your practice follows the [LCA] (Trust Account) Regulations 2008...
I will now take instructions from my client regarding whether to add you as a party to this proceeding and I advise you to inform your insurer regarding the likely upcoming proceedings.
[10] That email appears to have prompted a reply from Ms Nie to Mr Zhao which was sent at 6 pm that day. It read, relevantly:5
We noted your baseless arguments.
3 RLCRO at 73.
4 RLCRO at 9.
5 RLCRO at 74.
With respect, you may go ahead if you wish.
Your reference to the Supreme Court is kind of threatening, isn’t it? We will
have to refer the letter to NZLS relevant committee for comments.
The threatening initialled from your first fax to our office today. Are you referring yourself to R2.7?
Do you really believe you act on good faith?
[11] The chain of correspondence then appears to end with another email from Ms Nie suggesting that she will not be engaging in any further exchanges with Mr Zhao on the matter.
[12] On 9 June 2010, Ms Nie emailed her complaint to NZLS. That consisted of a report (“the first report”) by Ms Nie setting out the grounds for her complaint as well as copies of the faxed letter of 8 June (cited in [7]) and the email in reply from Mr Zhao (cited in [9]). Those documents formed the basis for the first ground of complaint relating to Mr Zhao’s professionalism and courtesy.
[13] Importantly, however, her complaint also included documents that Ms Nie had found on a Chinese language forum on life in New Zealand called Skykiwi (http://www.skykiwi.com). These related to Ms Nie’s second ground of complaint. These documents consisted of forum posts on the Skykiwi forums. The documents provided were largely in Chinese characters though some technical expressions and user details were in English. Ms Nie reproduced passages of these forum posts which she had translated, in her first report, and attributed these forum posts to Mr Zhao. There was also a document which appears to be taken from the publicly
searchable register of the NZLS of those holding practising certificates.6 That
recorded that Mr Zhao held a practising certificate as a barrister only.7
[14] The grounds of Ms Nie’s complaint can be divided into two broad categories which I will refer to as the “unprofessionalism complaint” and the “scope of practice complaint”. Under the unprofessionalism complaint, Ms Nie suggested that Mr
Zhao breached the following provision of the CCC Rules:
6 The current, searchable edition of the database used is at http://www.nzls.org.nz/RegistrationDB/faces/presentation/general/FindLawyerOrOrganisation.jsp.
7 RLCRO at 17.
(a) Rule 2.3 which provides that a lawyer must use legal processes only for proper purposes;
(b) Rule 2.7 which prevents a lawyer from threatening to take action against any person for an improper purpose; and
(c) Rule 2.10 which prohibits a lawyer from using or threatening to use the complaints and disciplinary procedure for improper purposes.
[15] Ms Nie suggested that Mr Zhao’s letter, with its heavy-handed references to disciplinary and court action, amounted to unprofessional conduct.
[16] The scope of practice complaint turned on the material that Ms Nie had located on the Skykiwi forum.8 As translated the forum posts seemed to show a person, posting under the username AMICUS_LAW and using the same Amicus logo which appears on correspondence from Amicus Barristers’ Chambers, giving information to forum members in relation to legal problems. AMICUS_LAW responded to questions relating to a share-purchase, a commercial lease, the process
of marital separation in New Zealand for foreign nationals and marital separation more generally. Ms Nie attributes posts by AMICUS_LAW to Mr Zhao in her translation. Issues surrounding the translation provided by Ms Nie and the content and effect of those forum posts are addressed in greater detail later.
[17] The scope of practice complaint alleges that Mr Zhao breached:
(a) Rule 2.11(a) by providing unauthorised services in reserved areas of work;
(b) Rule 14.2 by practising beyond the scope of a barrister sole’s practice;
(c) Rule 14.6 which relates to the intervention rule;
(d) Rule 11.1 in that he engaged in misleading and deceptive conduct; and
8 RLCRO at 10-16.
(e) Rule 2 which deals with a lawyer’s duties to the court, the rule of law and the administration of justice.
Action by the NZLS
[18] The complaint was accepted by the NZLS and referred to the Auckland Committee. On June 21 2010, the NZLS wrote to Mr Zhao setting out the complaint made by Ms Nie, advising him that the matter would be put before the Auckland Committee and inviting him to respond by 5.00 pm on 5 July 2010.9
[19] Following the receipt of the NZLS letter Mr Zhao appears to have attempted, through intermediaries, to resolve the complaint with Ms Nie.10 That seems to have been unsuccessful so Mr Zhao sent an email to Ms Nie directly on 29 June 2010.11
In that email Mr Zhao sought to apologise for the tone of his letter and email. He also offered a series of reasons why he believed that the actions of the user AMICUS_LAW on the forum would not be a breach of the CCC Rules. Mr Zhao suggested that the complaint be withdrawn. The relevant parts of that email are as follows:
In response, if you felt that I was rude to you I am happy to apologise for the way the letter was drafted and perhaps I will be more diligent should we ever have the opportunity to encounter in future. Regarding the solicitor’s work. I would dismiss that complaint for two reasons. Firstly, I do not personally handle solicitors’ work and would normally pass them to my instructing solicitors. I thank you for providing evidence from Skykiwi.com but then again, that itself showed no wrongfulness of its own regardless it being the pro bono nature of the advise offered to public, or that I require the clients to contact me for referral to my solicitors’ instruction. Secondly, I am not sure if you have noticed that the law society has been in process of removing the barristers’ intervention rule...
[20] Ms Nie took steps to report this further correspondence to the NZLS. On 30
June 2010 Ms Nie sent the following to the NZLS:12
9 RLCRO at 21.
10 RLCRO at 24.
11 RLCRO at 26.
12 RLCRO at 23.
(a) A letter in which Ms Nie sought “to make a second confidential report against the misconduct” and which included a wish that the matter be kept confidential;
(b) A document (“the second report”) titled “A Further Confidential
Report against Barrister Sole – Richard Zhao”;13
(c) A copy of Mr Zhao’s email of 29 June 2010.14
[21] The second report was not framed as a fresh complaint but rather as updating or supplementary material. The NZLS, however, refer to it internally as a new complaint.15 Nothing turns on this. Ms Quigley, the Legal Complaints Officer for NZLS, emailed Ms Nie noting that the matters raised in the second report could not be addressed unless its contents were disclosed to Mr Zhao.16 Ms Nie emailed Ms Quigley explaining why she did not want to have the document disclosed:17
I do not want to disclose the second report to him [in order to avoid any negative consequences for an intermediary].
The second report is only to inform the law society that I would not withdraw my complaint due to his threatening behaviour and I wish the Society know that this barrister sole was continuing threatening me and disturbing my normal work...
[22] The effect of this email appears to be that, following an explanation of the procedure and the requirement for disclosure of complaints, Ms Nie did not consent to the second report being disclosed and did not intend it to function as a second complaint.
[23] On 9 July 2010 the NZLS wrote to Mr Zhao noting that it had not received any reply from him in respect of the complaint by the requested response date of
5 July 2010.18 On the same day, proceedings were apparently begun by Mr Zhao’s
13 RLCRO at 24-25.
14 RLCRO at 26-27.
15 RLCRO at 28-29.
16 RLCRO at 31.
17 RLCRO at 31.
18 RLCRO at 33.
client in the North Shore District Court against both Ms Nie’s client and her
personally.19
[24] Between 12 July and 21 July 2010 there was an exchange of correspondence between the NZLS and Mr Frank Deliu, who has been acting as counsel for Mr Zhao in the complaint, LCRO and judicial review proceedings. In that correspondence Mr Deliu pointed to the court proceedings commenced against Ms Nie, and stated that he believed Ms Nie had misled the NZLS by not disclosing the full background
to the complaint,20 and made a number of submissions as to the grounds and bona
fides of the complaint. He also sought an extension of time for filing a reply maintaining that he had not had sufficient time to prepare the matter for hearing before the Committee.21 The NZLS extended the deadline to 27 July 2010.22
[25] Mr Deliu sent an email to the Society on 27 July 2010 setting out a number of authorities which he believed justified Mr Zhao’s behaviour in respect of the “unprofessionalism complaint”. He then stated that:23
Her other complaint is not only one which I do not fully understand, but is also – insofar as it makes sense – frivolous, vexatious and an abuse of process I do not intend to address it further other than to say it has no merit and is instigated to harass Mr Zhao which is an ulterior purpose and indeed abusive of the complaints procedure and insulting of him as a fellow court officer.
[26] The Auckland Committee first considered the complaint on 6 August 2010. The Committee resolved to set the matter down for a hearing on the papers and the NZLS notified the parties accordingly on 13 August 2010.24 The Notice of Hearing
summarised the issues as:25
Threatening another lawyer (Ms Nie) with litigation
and with a complaint to the Society for an improper purpose (LCCC
Rules
2.3,
2.7 and 2.10);
Failing to treat Ms Nie with respect and courtesy (LCCC
Rules 10,
10.1);
19 RLCRO at 36.
20 RLCRO at 35.
21 RLCRO at 46.
22 RLCRO at 47.
23 RLCRO at 50.
24 RLCRO at 53.
25 RLCRO at 55.
Practising as a solicitor and offering conveyancing when he
is the holder of a practising certificate as a barrister sole (LCCC
Rules
14.2 and 14.4);
Offering misleading and incorrect information to members of
the public through an online discussion forum (LCCC Rules 3 and 11);
Offering an ostensibly free/pro bono service through
the online discussion forum and then inviting users to telephone for
further
legal advice; or text messaging fee details (LCCC Rules 3.4, 3.5 and Chapter
9)
[27] The deadline for filing submissions was ultimately extended to 10 September
2010.26 Mr Deliu filed a 17 page document on that day in which he set out grounds of opposition to the complaint.27 He also made three complaints against Ms Nie.28
[28] The Auckland Committee met on 10 September.29 On 14 September Ms Percy emailed Mr Deliu to advise him, inter alia, that the Auckland Committee had decided to take no further action (and a formal determination to that effect would be forthcoming) and the counter-complaint against Ms Nie had been referred to the National Standards Committee (“National Committee”) as was the policy for all complaints involving Mr Deliu.30
[29] On 22 September 2010 a Notice of Determination of the complaint was sent to the parties. In it the Auckland Committee resolved to take no further action in respect of each of the matters in the complaint.31 After recounting the factual background, the Auckland Committee briefly recorded:
Determination
The Committee carefully considered Ms Nie’s complaint and Mr Deliu’s explanation on behalf of Mr Zhao. The Committee considered that Mr Zhao’s conduct was not such as to raise any professional standards issues. Accordingly the Committee made a determination that it take no further action...
26 RLCRO at 57.
27 RLCRO at 58.
28 RLCRO at 70.
29 RLCRO at 75.
30 RLCRO at 75.
31 RLCRO at 77.
The LCRO’s actions
[30] On 4 October 2010 Ms Nie made an application for a review of the Auckland Committee’s determination by the LCRO.32 In an accompanying letter she also requested that the matters in her second report of 30 June 2010 be kept confidential.33 The grounds for review were said to be the lack of reasons for the determination and the failure to consider whether Mr Zhao had acted without an instructing solicitor.34
[31] Following the filing of the application there was correspondence between the
LCRO’s staff and Ms Nie as to the confidentiality sought for her second report.35
This ultimately led to Ms Nie accepting that the material could be disclosed.36
[32] Mr Deliu emailed the LCRO case manager on 13 October 2010 querying the legitimacy of the review application and the procedure adopted in respect of both the application and Ms Nie’s second report. Mr Deliu suggested any review should be postponed pending resolution of his complaint against Ms Nie.37
[33] On 15 November 2010, the LCRO wrote to the Auckland Committee asking that it provide reasons for its determination to not take any further action on the complaint.38 On 15 December 2010 the Auckland Committee replied, setting out its
reasons :39
The Committee had regard to Mr Zhao’s level of experience and his period of legal practice. The Committe considered that the communications from Mr Zhao, while perhaps ill-advised, were not sufficiently serious or discourteous to warrant a finding of unsatisfactory conduct.
The statement of an intention to sue was not an idle threat, as proceedings were indeed issued.
As to the alleged offering of conveyancing services on the Skykiwi website, the Committee noted that there are no longer any advertisements of the kind
32 RLCRO at 82.
33 RLCRO at 83.
34 RLCRO at 86.
35 RLCRO at 83, and 98-102.
36 RLCRO at 102.
37 RLCRO at 106.
38 RLCRO at 107.
39 RLCRO at 110 (the letter is dated 15 October 2010).
objected to by Ms Nie on that site, and that it was possible that there was misinterpretation of the Chinese script on that site which was potentially ambiguous. The Committee was not satisfied on the evidence that it considered that Mr Zhao was actively offering conveyancing services to potential clients. The Committee also noted that the communications in question had been removed from the site.
[34] On 21 March 2011 the LCRO wrote to the parties, who had been provided with the reasons, asking for any comment they wished to make by 4 April 201040 and advising Mr Deliu that the review would proceed notwithstanding his complaint about Ms Nie.41
[35] On 5 April 2011, Mr Deliu wrote to the LCRO advising that he “was not in a position to respond to the application” as he considered it did not disclose any real basis for a review and suggesting other reasons why the hearing should not proceed at that time.42
[36] On 8 April 2011 Ms Nie provided a short submission setting out the grounds on which she was applying for a review:43
3. In its determination of 19 September 2010 the [Auckland Committee] dismissed my complaint against Mr Zhao saying that “Mr Zhao’s conduct was not such as to raise any professional standards issues.” I could not understand how the Committee arrived at this conclusion.
... On reading the further reasons, I now understand the reasoning of the Committee, although I still believe that the Committee arrived at the wrong result. If lawyers’ conduct is excused based on their lack of experience, the improper conduct will become ingrained ...
[37] The LCRO decided to hold a hearing which was ultimately set for
14 December 2011.44 On 12 December 2011, Mr Deliu wrote to the LCRO objecting to the requirement that Mr Zhao attend and raising a number of other issues about
the hearing:45
40 RLCRO at 114.
41 RLCRO at 115.
42 RLCRO at 120.
43 RLCRO at 121.
44 RLCRO at 135.
45 RLCRO at 137.
(a) He objected to the hearing taking place given an alleged lack of particulars and consequent failure of natural justice;
(b) He requested that a transcript of the hearing should be provided following its completion;
(c) He sought to inquire as to the identity of the LCRO member conducting the hearing; and
(d) He maintained his stance that Mr Zhao would not be required to answer questions or provide information that might incriminate him if Mr Zhao attended the hearing.
[38] The LCRO responded on 12 December 2011 confirming that the hearing would go ahead and noted that Mr Zhao had received the material submitted by Ms Nie (cited in [36]) on which the review was based.46 Mr Deliu again objected to this and also sought to have the LCRO recuse herself. The LCRO declined to address this in correspondence but assured Mr Deliu that he would have an opportunity to make submissions at the hearing. Mr Zhao was also directed to appear.47 The hearing before the LCRO took place on 14 December 2011 with the parties and counsel present.
LCRO’s decision
[39] The LCRO gave her decision on 4 April 2012. The result was to uphold the dismissal of the “unprofessionalism complaint” but to accept that the “scope of practice” complaint should be reviewed. The detail of that decision is considered below. Suffice it to say that the LCRO found that the Committee, in not considering a professional translation of the Skykiwi posts, had failed to investigate the scope of
practice complaint and directed it to do so.
46 RLCRO at 141.
47 RLCRO at 143.
The professional translation
[40] In an affidavit filed in this proceeding, Mr Zhao provided a copy of the posts on the Skykiwi forum which have been professionally translated by an accredited translator (“the professional translation”). That translation is dated 26 November
2010; this was after the Auckland Committee had considered the complaint. This is the professional translation which the LCRO refers to in her decision.
[41] When compared, the professional translation and the translated passages in Ms Nie’s first report are very similar in content though some of the phrasing differs. However there are other differences. In Ms Nie’s translation the posts under the username AMICUS_LAW are attributed to Mr Zhao personally whereas in the professional translation they are simply shown as having been posted under that username. There is one reference to Mr Zhao in the professional translation. That is in what appears to be a standard signature appended to each post by AMICUS_LAW setting out a range of contact details for Amicus Chambers. It includes the following (translated from the Chinese):
For enquiry concerning legal matters: Yu ZHAO 021- [...]
For enquiry concerning immigration and international students: Miss SUN
021-[...]
Email: info@amicuslawyers.co.nz
...
[42] The professional translation was produced and provided to the NZLS in relation to complaint proceedings taken by Mr Deliu against Ms Nie.48
48 See [28] above.
Statement of claim
Grounds of review
[43] Mr Zhao filed a statement of claim seeking judicial review on 9 May 2012. In his statement of claim, Mr Zhao seeks judicial review of the LCRO’s decision on the following grounds:
(a) That the LCRO made errors of fact in relation to two points:
(i) The timing of the receipt of the professional translation;
(ii) The capacity in which Mr Deliu appeared at the Committee’s
hearing;
(b) That the LCRO acted ultra vires in two respects:
(i) That the second defendant never raised the issue as to the need for professional translations in her application for review hence depriving the LCRO of jurisdiction;
(ii) That the second defendant effectively withdrew her application for review at the hearing before the LCRO thus negating any dispute (a lis) and the need for the LCRO to give a decision;
(c) That there was a breach of natural justice on the review in that the matter of the translations was never suggested to be in issue and Mr Zhao therefore had no opportunity to respond to it;
(d) That the LCRO failed to take into account relevant considerations in three respects:
(i) That the decision that lawyers do not have a right to silence before the LCRO failed to take into account domestic and international provisions and authorities;
(ii) That the second defendant should have acquired professionally translated evidence before making a complaint and did not do so in the time provided;
(iii) That the second defendant’s complaint was frivolous,
vexatious and an abuse of process;
(e) That the decision of the LCRO was unreasonable insomuch as it concluded that the disciplinary process under the LCA is an inquisitorial one and not an adversarial one.
[44] I record that the plaintiff’s statement of claim originally recorded an additional ground of bias but that that ground was withdrawn by counsel before Gendall J on 11 June 2012.49 Finally, there was an additional ground alleging an error of law in the LCRO’s decision in that it applied a decision of the Supreme Court when that decision is said to be a nullity and in any event, incorrectly applied the legal test set out therein.50 That ground was not pursued before me.
Relief
[45] The plaintiff seeks the following relief in this proceeding:
(a) Judgment granting the application for judicial review; (b) An order quashing the LCRO’s decision in full;
49 Zhao v Legal Complaints Review Officer HC Auckland CIV-2012-404-2533, 11 June 2012.
50 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1
NZLR 35.
(c) A direction that there should be no further decision (or reconsideration) by the LCRO of the review application made by the second defendant; and
(d) A declaration that the second defendant’s complaint and/or her
application for review be stayed permanently.
[46] The plaintiff also sought costs against the first and second defendants though not against the intervener. I record also that the prayer for relief originally contained a request that any judgment of the Court be referred to Parliament in order for Parliament to consider the current LCRO’s fitness for office. That was withdrawn by
counsel again before Gendall J.51
The position of the intervener
[47] Kós J in a minute of 26 July 201252 granted leave to the NZLS to appear as intervener. In the application the NZLS sought to be heard on two issues which were phrased as follows:
(a) Whether lawyers have a right to silence in the context of inquiries and proceedings under Part 7 of the [LCA] (Ground 9d. of the Statement of Claim refers).
(b) Whether inquiries and proceedings under Part 7 of the [LCA] are inquisitorial, adversarial or otherwise (Ground 9e. of the Statement of Claim refers).
[48] Kós J noted that the decision to allow an intervener to take part in the hearing of a proceeding could be made on a number of different bases. He referred to rr
4.56, 1.6 and 7.9 of the High Court Rules, s 10 of the Judicature Amendment Act
1972 and, in the absence of power under those provisions, the inherent jurisdiction of the High Court. Each of those devices gave the court considerable power to control its own jurisdiction. The Court was not necessarily required, by any rule of court,
statute or principle, to define the intervener’s role in the limited way that it did.
51 Zhao v Legal Complaints Review Officer HC Auckland CIV-2012-404-2533, 11 June 2012.
52 Zhao v Legal Complaints Review Officer HC Auckland CIV-2012-404-2533, 26 July 2012.
[49] I also note that in his decision on the role to be played by the intervener Kós J did not close the door as it were on counsel for the intervener playing a larger role and reserved that point for consideration by the trial judge.
[50] The use of “outsiders” (for want of a better word) occurs in a number of different contexts. The amicus curiae is probably the most frequently used mechanism by which the court can seek to have a critical assessment made of the legal situation or the full scope of the legal arguments exposed. Amicae play a number of different roles depending on the context but their primary role is, as the name suggests, to assist the court.
[51] There is no formal definition of an intervener in the High Court Rules and the character and roles played by interveners may vary considerably. The Attorney- General is a frequent and particular example of an intervener.53
[52] In other cases the appointment of persons as contradictors has been actively sought when a decision of public importance is concerned, active representative is seen as necessary, and the Attorney-General feels unable to act. However, the expression contradictor is also undefined in the respective rules.54
[53] In cases where the decision of a statutory officer or tribunal is challenged then there is there is also provision to have the decision-maker provide a report to the court under r 20.15.
[54] There are no hard and fast rules in proceedings of this type either. In Deliu v Hong,55 another review proceeding concerning the LCRO, an amicus was appointed. In that case the amicus appears to have played a full role. In Harold v Legal Complaints Review Officer56 Asher J accepted an intervener with what appears to have been a wide mandate. The possibility of having the LCRO provide a report was
considered by Whata J in C v Legal Complaint Review Officer.57
53 Canterbury Regional Council v Attorney-General [2009] NZHC 1027; [2009] NZAR 611 (HC) at [25]-[26].
54 Contradictors v Attorney-General [1999] 2 NZLR 523 (CA).
55 Deliu v Hong [2012] NZHC 158, [2012] NZAR 209.
56 Harold v Legal Complaints Review Officer [2012] NZHC 145.
57 C v Legal Complaints Review Officer [2012] NZHC 2085.
The statutory scheme
[55] It may be useful to examine the statutory scheme under which complaints to the NZLS are made and determined and under which they may also be reviewed by the LCRO.
The disciplinary process
[56] Complaints about the behaviour of practitioners are made to the NZLS complaints service. Complaints will then be reviewed by a Standards Committee in order to decide what initial action to take.58 A Committee may decide, for a number
of reasons, to take no further action59 or it may decide to investigate the complaint
fully.60 If a Committee decides to take no further action then it must give notice of this to the complainant, the object of the complaint and the NZLS.61 Notably the section includes the requirement for the Committee to give reasons for its decision. If the matter proceeds to an inquiry then the Committee has a number of powers requiring the practitioner to co-operate in respect of that investigation.62
Review by the LCRO
[57] The LCA gives parties affected by a Standards Committee’s decision a right of review.63 The LCRO is the statutory office charged with undertaking those reviews and has an obligation to do so under the statute.64
[58] The scope of the LCRO’s review is a wide one and may review all aspects of the matter which is the object of the review.65 In exercising that review function the office-holder has their own powers of inquiry as well as the powers of a Standards
Committee.66 The powers and role of the LCRO on review have, in a decision of
58 Lawyers and Conveyancers Act 2006, s 137.
59 Section 138.
62 Sections 147-
170 
.
63 Sections 193-197.
64 Sections 192 & 199.
65 Section 203.
66 Sections 202 & 204.
this Court,67 been characterised as being more extensive than those attaching even to a general appeal.
[59] The general procedural approach of the LCRO is defined in s 200 of the
LCRO which is worth setting out in full given the context of this case:
200 Avoidance of unnecessary formality
The Legal Complaints Review Officer must conduct any review with as little formality and technicality, and as much expedition, as is permitted by—
(a) the requirements of this Act; and
(b) a proper consideration of the review; and
(c) the rules of natural justice.
Sections 207 and 208 are also important in determining how a hearing should be conducted.
The LCRO’s decision in detail
[60] The LCRO’s decision deals first with a number of procedural matters raised at the hearing including submissions from Mr Deliu that the LCRO had committed “judicial fraud” in relation to the handling of an earlier complaint against Mr Deliu.68
This was followed by a submission that the LCRO was biased against Mr Deliu and/or Mr Zhao.69 Mr Deliu, as counsel, also advanced a procedural argument relating to the hearing of the review and the notice given of it.70 The LCRO found that none of these objections were well founded.
[61] On the substantive matter of the review, the LCRO regarded Ms Nie’s
application as being founded on, in essence, her dissatisfaction that no proper investigation of her complaint had taken place.
67 Deliu v Hong and the Legal Complaints Review Officer [2012] NZHC 158; [2012] NZAR 209 (HC) at [39]-[41].
68 Nie v Zhao LCRO 198/2010, 4 April 2012 at [8]-[9].
69 At [9]-[10].
70 At [13]-[16].
[62] The key point in the LCRO’s decision relates to the translations of the Skykiwi forum posts. The LCRO recorded the situation, as she understood it, as follows:
[18] The website postings that were the subject of Ms Nie’s complaint were in Chinese on Skykiwi ... The Standards Committee’s decision had referred to Ms Nie’s own translation of the postings, and it considered that any further investigation of the matter would require a third-party supplied translation.
[19] Ms Nie said that she had in fact provided a third-party translation, and had sent it to the Standards Committee. No mention of this was made by the Standards Committee. There is nothing on the Standards Committee file to indicate that the Committee had received or considered all of Ms Nie’s correspondence.
...
[22] What appears to have happened is that information sent by Ms Nie in relation to her complaint against Mr Zhao, ended up in the complaint file that was opened in relation to Dr Deliu’s complaint against Ms Nie.
...
[24] The result of this was that Dr Deliu’s complaint file (against Ms Nie) was sent to the National Standards Committee for consideration. Ms Nie’s complaint against Mr Zhao was considered by an Auckland Standards Committee. In these circumstances it appears that the information sent by Ms Nie in relation to her complaint against Mr Zhao, and/or information she sent in response to [Dr] Deliu’s complaint against her, did not find their way to the correct files.
[25] Having assessed the Standards Committee file ... there is nothing on the file to suggest that the Standards Committee which considered Ms Nie’s complaint had received a copy of the third party translation of the website material provided by Ms Nie. I am satisfied from my review that the Committee did not have this translation in front of it when it decided to take no further action on her complaint.
[63] The LCRO decided that because this material had not been before the Auckland Committee it had failed to fulfil its obligation to investigate complaints. The LCRO decided that the appropriate outcome would be to refer the matter back to the Auckland Committee for it to consider the complaint with the benefit of the
professional translation.71
71 At [26]-[27].
[64] The LCRO also commented on the question of Mr Zhao being compelled to appear and answer questions about the complaint. In her decision, the LCRO suggested that the Auckland Committee, under s 141 LCA, had power to require any person subject to a complaint to explain themselves, and that this tended to suggest that disciplinary proceedings under the LCA were of a more inquisitorial than
adversarial nature.72
[65] The LCRO also noted that the Auckland Committee might wish to consider the potential for confusion or breaches of the rules surrounding advertising caused by the use of what might loosely be called the “Amicus” mark.73 The LCRO’s formal directions to the Auckland Committee in respect of all the matters canvassed were:74
(a) To undertake a full investigation the scope of practice complaint against Mr Zhao;
(b) To acquire material from the file relating to the complaint against Ms
Nie in order to assist it in doing that; and
(c) To undertake an enquiry into any other compliance issues that the investigation of the scope of practice complaint might suggest existed.
Mistake of fact
[66] I take the ground of review relating to mistake or error of fact first as it is the most substantial and seems to dispose of the application for review.
[67] Mistake of fact as a ground of judicial review has been argued in a number of cases and has proved sufficient reason to overturn the decision under review. The
attraction of mistake of fact is obvious as Tipping J has noted:75
72 At [27]-[28].
73 At [36].
74 At [37].
75 Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606 (HC) at 637.
... it seems to me that if a Minister or other decision-maker in coming to a decision acts in ignorance of or defiance of an incontrovertible fact or an established and recognised opinion relevant to the issues, the law would be deficient if a remedy were not available.
[68] That sentiment is also reflected in other High Court cases.76 There is also some support for mistake of fact as a ground of review in certain judgments of members of the Court of Appeal but that Court appears never to have definitively determined the matter.
[69] There are at least two matters that may be responsible for the caution with which mistake of fact is approached. In many cases, where the facts suggest a mistake of fact, pleading it as a ground of review may be superfluous as other clearly recognised grounds of review may be available or overlap with it. Secondly, mistake of fact as a ground of review may mistakenly cast the impression that the Court is concerning itself with the findings of fact and hence the merits of the decision rather than the propriety of the decision-making process. While that is not so, the risk that parties will mistakenly view judicial review based on mistake of fact as an opportunity to conduct a wide-ranging review of the merits, can make it seem unappealing.
[70] The English Court of Appeal’s decision in E v Secretary of State for the Home Department77 goes to great lengths to address the potential difficulties surrounding mistake of fact. The case concerned decisions by an Immigration Tribunal where it was argued certain factual material should have been considered by the Tribunal and that in failing to address it the tribunal had proceeded on a mistaken basis of fact.
[71] Carnwath LJ (with whom the other members of the Court agreed) provided both an analysis of the reasons for and against admitting mistake of fact as a ground of review and proposed a set of criteria which would limit it to those cases where it
can properly be used to challenge a decision-maker:
76 Gholami v Minister of Immigration HC Wellington CP71/93, 3 March 1994 at 8; and Oggi
Advertising v Auckland City Council [2005] NZAR 451 (HC) at [8];
77 E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] 1 QB 1044.
[66] In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.
[72] There are three New Zealand High Court decisions which directly discuss the
E case. It has also been mentioned in other recent decisions.78
[73] The case of Squid Fishery Management Company Ltd v Minister of Fisheries79 focused on a challenge to the decision of the Minister of Fisheries in setting the acceptable mortality rate for sea lions as a result of squid fishing. There were numerous grounds of review and the underlying subject matter was complicated but mistake of fact was one ground of review raised. One of the metrics involved in setting the mortality rate was the population of sea lions in the affected
area. The Minister decided not to include the sea lion population of the Campbell Islands. France J referred to a number of cases concerning mistake of fact (including E v Secretary of State for the Home Department) and noted in her judgment that the Court of Appeal had sounded cautious notes about mistake of fact:
[203] The reference to a precedent fact resonates in the observation in Lewis v Wilson & Horton, above, at para [92] where Elias CJ stated:
"[92] Whatever the scope of mistake of fact as a ground of judicial review.., the additional facts put forward in the High Court do not establish reviewable error. The approach adopted in the High Court would have the effect of permitting any conclusion of fact to be reopened on application for judicial review. The supervisory jurisdiction does not go so far, except where the decision of fact is a condition precedent to the exercise of power or where the error of fact results in a decision which is unreasonable. In such cases, the decision-making process will have miscarried. .. it is unnecessary to consider the point in more detail."
...
78 Progressive Enterprises Ltd v North Shore City Council [2006] NZRMA 72 (HC) at [71].
79 Squid Fishery Management Company Ltd v Minister of Fisheries HC Wellington CIV-2003-485-
2706, 27 February 2004.
[205] For myself, I am not convinced there is a need in the present context, to expand the orthodox grounds of review. As deSmith notes, the taking into account of a factual error can "just as easily be absorbed into a traditional legal ground of review (DeSmith, Woolf & Jowell's "Principles of Judicial Review", 1999, at pp 142-143). The decisions involve an evaluation of scientific and other information. Review on the basis of mistake of fact becomes a merits-based review. Further, the requirement in s 10(a) to take into account the information principles as well as the traditional relevant/irrelevant considerations, provides a basis for challenge to matters of a factual kind where the information is relevant to the power
[74] On this ground and a number of others, the plaintiff was unsuccessful and France J upheld the Minister’s decision. That conclusion was appealed. The Court of Appeal ultimately overturned France J’s decision but declined to make any definitive statement on the question of mistake of fact, noting:80
[104] As is apparent from what we have said, we see it as more likely than not (and thus proved for present purposes) that the Minister did not understand the degree of head-room available between rule 320 and the point at which the agreed conservation criteria were not met. On this basis there would appear to have been a fundamental flaw in his approach to the issue he was required to determine. This could be (and indeed this was the argument of Mr Scott) an independent ground for judicial review. But this line of argument is so intimately tied up with the conclusions we have just expressed that we do not think it necessary to explore the not entirely easy jurisprudence as to the circumstances in which a fundamental mistake of fact warrants judicial review.
[75] The next case is Zafirov v Minister of Immigration81 which involved a Macedonian immigrant to New Zealand who had been convicted and imprisoned for sexual offending. For the purposes of parole a report on Mr Zafirov’s likelihood of reoffending was prepared using a model known as the Static-99 test. The test showed that Mr Zafirov was at a “moderate-to-low” risk of reoffending. The decision was made to deport him following his release from prison and that decision was upheld by the Deportation Review Tribunal (“DRT”). The Static-99 test was subsequently replaced by the Automated Sexual Recidivism Scale (“ASRS”). This had occurred by the time of the hearing.
[76] The DRT, in considering whether Mr Zafirov should be deported, adopted the
“moderate-to-low” assessment and held that any risk of reoffending above a low
80 Squid Fishery Management Company Ltd v Minister of Fisheries CA39/04, 13 July 2004 at [104].
81 Zafirov v Minister of Immigration [2009] NZHC 419; [2009] NZAR 457 (HC).
level would require, for the sake of the public interest, Mr Zafirov’s deportation.82
Mallon J, in the High Court challenge to the DRT decision, considered that the central question of the case was whether the DRT had erred in assessing Mr Zafirov’s risk of reoffending. The DRT had proceeded on the basis of a mistaken assessment of fact when an uncontentious and material fact, the ASRS result, would
have been available to it.83
[77] In Mallon J’s view this ignorance of the availability of the ASRS assessment method was a matter on which the review should succeed. While the Judge acknowledged that this failure could have been characterised as a failure to take into account a mandatory relevant consideration, she felt that it was better expressed as a mistake of fact induced by ignorance of the availability of relevant evidence (adopting the E criteria). As Mallon J found:
[81] Considered on this basis the failure to consider the ASRS score meets the four criteria in E v Secretary of State and gave rise to unfairness before the Tribunal. There was a mistake as to the availability of evidence (the Tribunal and the parties were not aware of Mr Zafirov’s ASRS score and that this was now the preferred assessment tool in New Zealand); this evidence is uncontentious and objectively verifiable (there is no issue about Mr Zafirov’s scoring on that test nor that it had become the Department’s preferred tool); Mr Zafirov was not responsible for the mistake (here I accept that by the time of the Tribunal hearing it was not widely known that the ASRS test had replaced the Static-99 test); and the mistake played a material part in the Tribunal’s reasoning (the Tribunal relied on the agreed evidence before the Parole Board that Mr Zafirov was a “moderate-to-low” risk and because that put him above “low” it found that it would be contrary to the public interest if Mr Zafirov were to remain in New Zealand).
[78] Subsequently in Queenstown Lakes District Licensing Agency Inspector v Turnbull Group Ltd84 the High Court was asked to review the Liquor Licensing Authority’s (LLA) conclusion that a shop was a grocery. This was an important finding because the Sale of Liquor Act 1986 makes grocery stores eligible to receive an off-licence whereas convenience stores and dairies are not.85 The Act requires
that a grocery has as its principal business “the sale of main order household
82 Zafirov v Minister of Immigration [2007] NZDRT 15 at [125].
83 Zafirov v Minister of Immigration [2009] NZHC 419; [2009] NZAR 457 (HC) at [75]-[76] and [79].
84 Queenstown Lakes District Licensing Agency Inspector v Turnbull Group Ltd [2011] NZHC 598; [2011] NZAR 554 (HC).
85 Sale of Liquor Act 1989, s 36.
foodstuff requirements”.86 Case law concerning this provision suggests that items such as confectionary, tobacco, drinks and takeaway food are not generally regarded as falling within the household foodstuff category.87
[79] In the High Court the Inspector claimed that the LLA had underestimated the percentage of the shop’s turnover that was attributable to the sale of confectionary and drinks. This was said to amount to an error of fact materially undermining the LLA’s decision. The LLA’s decision had adopted the percentage of sales of confectionary and drink as a percentage of total turnover rather than as a percentage of main order spending.88
[80] Whata J was prepared to accept that a material error of fact could provide a sufficient basis for overturning the decision. In doing so, he largely accepted the criteria suggested by the Court of Appeal in E:
[35] A review of the authorities on “error of fact” further confirm that care must be taken when invited to examine facts on an appeal of law. The following elements should normally be present:
(a) the error should be an obvious mistake as to existing fact;
(b) the error is one of verifiable or established fact – that is, the error can be objectively identified and verified (and it helps if it is beyond dispute); and
(c) it must be material to the legality of the overall decision.
[81] The Judge was less convinced that the question of who bore responsibility for the mistake should enter into the consideration of whether a mistake of fact had occurred. As he noted in a footnote:89
Note in E, the Court of Appeal also added that the appellant or advisers must have not been responsible for the mistake. I am not convinced about this. It might be a matter that better goes to discretion.
86 Sale of Liquor Act 1989, s 36(1)(d)(ii).
87 CH and DL Properties Ltd v Christchurch District Licensing Agency HC Christchurch CIV-2009-
409-2906, 27 July 2010 at [34] and [62].
88 Queenstown Lakes District Licensing Agency Inspector v Turnbull Group Ltd [2011] NZHC 598; [2011] NZAR 554 at
[22]-[23].
89 At note 13.
[82] Ultimately, Whata J was satisfied that the challenge to the LLA’s decision was more concerned with the way in which the LLA had interpreted the factual background than with some error in the facts themselves.90 He held that this objection to the LLA’s evaluation was not a proper ground for judicial review.
[83] Lastly, though it does not cite E v Secretary of State for the Home Department, I note the decision of Winkelmann J in Deliu v Hong & the Legal Complaints Review Officer.91 That case also involved a mistake of fact that was said to be central to the decision. Winkelmann J noted:
[45] However, it is apparent from reading the Review Officer’s decision that she proceeded upon the mistaken basis that Mr Deliu had not immediately responded to Mr Hong’s conduct by lodging a complaint. She saw this as relevant to the bona fides of the complaint. In fact, Mr Deliu’s complaint was lodged the day following receipt of the letter which initiated this series of events. Consideration of the Review Officer’s reasons makes clear that this mistaken view was critical in her decision, and that this mistake of fact has therefore given rise to an error of law.
Application
[84] The first particular of this ground of the application is sufficient to dispose of the proceeding. That is because the LCRO misapprehended the background to the professional translation and the Auckland Committee’s decision.
[85] The Auckland Committee met in September 2010 and resolved to take no further action on the complaint. The professional translation is dated 26 November
2010. The LCRO’s finding that the Auckland Committee ought to have considered the professional translation and conducted its investigation on that basis is therefore at odds with the facts.
[86] This case puts mistake of fact squarely in issue. While in some instances where there is a mistake as to the factual record it may be possible to categorise it as a matter of relevant or irrelevant considerations or regard the decision as unreasonable, those possibilities are unsatisfactory in this case. The professional
translation, had it been available to the Auckland Committee, would clearly have
90 At [41].
91 Deliu v Hong & the Legal Complaints Review Officer [2012] NZHC 158; [2012] NZAR 209 (HC).
been a relevant matter and the LCRO would have been right to consider it. A decision based on a mistake of fact might be called unreasonable in the sense of being “so absurd that no sensible person could ever dream it lay within the powers of the authority”.92 However, to do so would add little to the already numerous senses in which the word unreasonable is used in judicial review.93 It would be better, if mistake of fact as a ground of judicial review can be shown to be necessary, to
recognise it as such on terms that will confine its application to the proper cases.
[87] The Queenstown Lakes District case, the Zafirov case, the Squid Fisheries case and this case disclose four different matters which in each case, it has been argued, fall within the ambit of judicial review for mistake of fact. Insomuch as the alleged mistake of fact in Queenstown Lakes District is more aptly characterised as an attack on the LLA’s assessment of a data set, I agree that that is beyond the scope of review for mistake of fact. The Squid Fisheries case, while overturned on appeal, was concerned with the choice of approaches to scientific information and the decision to exclude a data set from a model. While that decision might be reviewable it is difficult to regard it as a mistake of fact.
[88] The mistake in the Zafirov case was one induced by ignorance of the availability of material showing that the Tribunal’s conclusion as to a material fact was mistaken. While that falls within the ground of judicial review for mistake of fact, it raises more questions than a pure mistake on the factual record before the decision-maker. This may mean that the Courts will need to develop additional rules to deal with mistake of fact based on ignorance.
[89] This case is more straightforward as the material which led to the mistake of fact was before the decision-maker at the time. Of the criteria set out in E, three are relevant to this case:
(a) There was a mistake of fact in that the LCRO believed the professional translation had been produced and submitted to the
92 Associated Provincial Picture Houses, Ltd. v Wednesbury Corporation [1948] 1 KB 223 (EWCA)
at 228.
93 GDS Taylor Judicial Review: A New Zealand Perspective (2nd ed, LexisNexis, Wellington, 2010) at
[14.40].
NZLS (though not necessarily to the Auckland Committee) prior to it reaching its decision when in fact it was produced sometime afterwards.
(b) That the professional translation was produced at that time is uncontested, plainly and objectively verifiable.
(c) The LCRO’s decision rests on the Auckland Committee’s lack of consideration of the professional translation; in that respect it was materially influenced by a mistake of fact.
[90] Mr Pyke, for the intervener, submitted that the LCRO’s decision might be upheld on the ground that the LCRO was correct in her conclusion that no third party translation was provided to the Auckland Committee, that this was a matter that it should have considered in its investigation of the complaint and the complaint should therefore be referred back to the Auckland Committee.
[91] I accept that the LCRO could, if she had never been provided with the professional translation, have come to the conclusion that the matter should be referred back to the Auckland Committee with a direction that it further investigate the complaint by obtaining a third party translation. However, given the central role that the professional translation played in the LCRO’s decision-making, it would be speculative to assume that, absent the mistake as to professional translation, the LCRO would have done so.
[92] This ground is sufficient to dispose of this application for review. However, before moving to consider the form of relief that should be granted I make some observations about the remaining heads of review.
Ultra vires
[93] Mr Deliu submitted that the LCRO lacked jurisdiction to consider the review either as a whole or insofar as it related to the translated documents. He submitted that what he termed “Ms Nie’s failure to understand the decision” could not provide
a basis for review. There was no lis or dispute before the LCRO and the LCRO
therefore lacked jurisdiction.
[94] With respect, I do not think that is a proper characterisation of the factual circumstances. Ms Nie initially sought review of the Auckland Committee’s decision because it had failed to provide reasons for its determination. Once reasons were provided Ms Nie still considered herself dissatisfied. At that point, in saying that she could not understand the determination, Ms Nie was expressing disbelief in the conclusion reached in that it seemed unreasonable, irrational or, in her submission, was plainly wrong. Ms Nie articulated some brief reasons why she believed that to be so. That an applicant for review, in a situation where reasons are belatedly provided, should adapt their submissions following receipt of those reasons is perfectly understandable.
[95] Given the comprehensive scope of the LCRO’s review jurisdiction, her powers on review and the explicit statutory caution that the LCRO’s jurisdiction is not one to be overly formalised, I would have been prepared to find that Ms Nie’s dissatisfaction with the decision of the Auckland Committee gave rise to a matter which it was proper for the LCRO to consider.
Breach of natural justice
[96] Mr Deliu submitted that there was a breach of natural justice when the professional translation was introduced at the hearing. It is not entirely clear from the factual background how these materials were brought to the LCRO’s attention. However, from the background I have detailed, one would expect that the parties, and Mr Deliu as counsel, would have been aware of them prior to the hearing given the other complaints in motion at this time. Given my conclusion on the mistake of fact ground, I express no particular conclusion on whether the introduction of the professional translation would have breached Mr Zhao’s right to natural justice.
Failure to take account of relevant considerations
[97] Mr Deliu also referred to a range of matters that the LCRO did and did not take into consideration. While not strictly necessary, I make the following comments on some of the other matters raised in the plaintiff ’s pleadings:94
(a) The plaintiff’s right to silence before the Committee or the LCRO is a matter of statutory interpretation and legal principle of some importance which would be better decided in a case where the matter is squarely in issue.
(b) I am also not required to engage with the issue of whether Ms Nie was bound to discharge an onus in preparing and laying her complaint though the statutory context suggests that the imposition of a strict legal burden in this context may be unwarranted.
(c) I am not convinced that Ms Nie’s complaint was frivolous, vexatious or abusive. Ms Nie’s complaint was in response to a communication which she felt was unnecessarily aggressive and attacked her personally. The Auckland Committee’s determination records that the matters relating to the unprofessionalism complaint fell short of unsatisfactory conduct but by no means suggests that the complaint was frivolous, vexatious or abusive.
(d) In relation to the scope of practice complaint there were indications in the forum posts which made reference to Mr Zhao though they fell short of identifying him as the AMICUS_LAW user.95 Equally Mr Zhao in his email of 29 June 2010 expressed a willingness to defend those posts.96 While it was perhaps somewhat hasty of Ms Nie to conclude that he was responsible for them and was, thereby, exceeding the scope of his practice, it was not a completely untenable
suspicion to draw from the material. Nor were her actions the result
94 At [43](c) above.
95 At [41] above.
96 At [19] above.
of an attempt to dissuade competition from Amicus Barristers’ Chambers or any of the other motivations that Mr Deliu sought to ascribe to her. Ms Nie’s actions fall far short of frivolity, vexatiousness or an abuse of process.
Unreasonableness
[98] Given my conclusion on the mistake of fact ground, consideration of this ground of review, in respect of which Mr Deliu submits that the LCRO was wrong to conclude that the disciplinary and review processes had inquisitorial aspects to them, is not strictly necessary. Like the right to silence, it is best left to a case where it is squarely in issue. I note, however, that the regulatory context, the jurisdiction, and the procedure of the LCRO that I have mentioned above mean that these processes are perhaps less than what would be regarded as entirely adversarial. I thank Mr Pyke for his comprehensive submissions in this regard.
Conclusion
[99] As a result of the misapprehension concerning the professional translation,
the LCRO’s decision was based on a material mistake of fact and should be set aside.
Relief
[100] Relief in judicial review proceedings is discretionary. In Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal97 the majority of the Supreme Court suggested that a stay of disciplinary proceedings may in some cases be a remedy in appeals or proceedings challenging the acts of the disciplinary
tribunal.98
97 Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [2006] NZSC 48, [2006] 3 NZLR 577.
98 At [40].
[101] In Harold v Legal Complaints Review Officer99 Asher J set aside the decision of the LCRO. In deciding that the matter should not be reheard, the Judge noted that:
(a) There was no way in which a properly directed Standards Committee
could find Mr Harold’s conduct unsatisfactory;100
(b) The basis on which misconduct was alleged had shifted and would effectively amount to a new complaint;101 and
(c) The lapse of time meant that further proceedings were not warranted.102
[102] I have noted the evidence going to the scope of practice complaint above. Without expressing any strong opinion on it, charging and proving unsatisfactory conduct that could be attributed to Mr Zhao would be somewhat difficult though not impossible. There has also been considerable delay since the complaint was first laid and since the matter was heard by the Auckland Committee. All of these matters convince me that there would be little utility in referring the matter back for reconsideration by LCRO (and presumably subsequently by the Auckland Committee). I direct that the complaints process in respect of Ms Nie’s complaint against Mr Zhao be stayed.
Costs
[103] If the parties wish to seek costs then I shall receive memoranda.
[104] I note that the first defendant took no steps and abides by the decision of the court. I also note that the second defendant took no part in these hearings, abiding by the decision of the Court, and that I do not accept that her complaint or
application for review was in any way mala fides.
99 Harold v Legal Complaints Review Officer [2012] 2 NZLR 559 (HC).
100 At [54].
101 At [55].
102 At [55].
[105] Mr Deliu earlier recorded that he had no intention to seek costs against the intervener given their limited role. I would ask him to inform the Court if he now wishes to do otherwise.
.....................................
Woolford J
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