XO v QY [2018] NZLCRO 7 (2 February 2018)

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	LCRO 100/2014
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of [Area] Standards Committee [X]
BETWEEN	XO Applicant
AND	QY _Respondent

The names and identifying details of the parties in this decision have been changed.

[1] Mr XO has applied for review of the determination by [Area] Standards Committee [X] (the Committee) to take no further action in respect of his complaints about Mr QY arising out of a requirement by Mr QY that Mr XO produce a full copy of his driver’s license to prove his identity.

[2] Mr XO was a beneficiary of a relatives’ estate. He was unknown to the executors of the estate.

[3] Mr QY acted for the executors, who instructed him to verify the identity of each beneficiary.

[4] Mr QY required all beneficiaries to provide photographic ID such as a driver’s license or passport as proof of identity. He specifically required that the copy of the driver’s license or passport include the expiry date and relevant number.

[5] Mr XO objected on the grounds that this was an invasion of his privacy. He complained about Mr QY’s requirements to the Lawyers Complaints Service. The Committee considered the matter and determined to take no further action on Mr XO’s complaints. The determination was confirmed on review.

[6] Mr XO complained to the Privacy Office. The Privacy Commissioner held that Mr QY was in breach of principle 12(4) of the Privacy Act 1993 but took no further action in that regard.

[7] Mr XO also lodged a claim against the executors with the Disputes Tribunal, but the Tribunal declined jurisdiction.

[8] Mr XO has now received payment of his legacy. There is no information about whether or not he complied with Mr QY’s requirements, but that has no relevance to this review.

b) Mr QY disregarded the ruling of the Office of the Privacy Commissioner; and c) When the funds being held for Mr XO were eventually paid out an amount of

Mr QY provided no breakdown or explanation apart from that these were costs associated with administering the Will and he was entitled to charge for that.

_{claiming that “certain information could no longer be private as
it had already been}

supplied”.2 The Standards Committee considered that the question as to whether or not the information required by Mr QY was “private information” (and therefore covered by the Privacy Act) was a legal issue to be determined by the Privacy Commissioner. It could not therefore form the basis of a complaint.

[12] Mr XO complained that Mr QY had advised him at the previous review hearing, that Mr XO could go to Hamilton and sight the Will, “implying that the executors’ details were on it, which was misleading”.3 The Committee determined that Mr QY “could never have realistically implied that the executors’ details were in the will” and that “no professional conduct issues arise as Mr QY has no control over Mr XO’s misunderstanding or the implication he took from Mr QY’s statement.4

[13] The Committee determined this allegation could not be considered to be unsatisfactory conduct.

[14] “The Committee considered that the deductions were legitimate and that there was nothing to indicate that the deduction was for anything other than the additional costs of administering the estate”.5

[15] Mr XO holds strong principles about disclosure of his personal information. He is free to adhere to those principles.

[16] Mr QY has reacted strongly to Mr XO, and to the procedures and complaints instigated by him. He questions why “the Society persist[s] in allowing XO’s persistent and serial complaints?”.

[17] He asserts “the Privacy Commissioner has no authority to tell trustees how to conduct their affairs nor have they any jurisdiction over [his] trust accounts”. He says he “was not interested in [the Privacy Commissioner’s] opinion”.

[18] As recorded in LCRO 131/2011, neither party has indicated a willingness to resolve their differences.6 Mr XO has now received his legacy and it is expected this review will mark the end of all contact between the parties. Both parties are on notice that if any further reviews come before this Office consideration will be given to imposing costs on either or both.

[19] An applicant only hearing by telephone was convened on 25 January 2018. The hearing was conducted by Mr Vaughan acting as a delegate duly appointed by the Legal Complaints Review Officer (LCRO) pursuant to clause 6 of schedule 3 of the Lawyers and Conveyancers Act 2006. The LCRO has delegated Mr Vaughan to report to me and the final determination of this review as set out in this decision is made following a full consideration of all matters by me after receipt of Mr Vaughan’s report and discussion.

[20] Mr XO is not reassured that the Committee comprehended the issues raised by him. The Committee’s decision is somewhat brief and lacking in reasoning in parts, which does not assist Mr XO’s comprehension. However, in some instances Mr XO has himself misunderstood the Committee.

[21] Mr XO provided detailed comments with his application for review and his subsequent responses to Mr QY’s correspondence are comprehensive. Although this decision is itself brief, Mr XO can be assured that all issues raised by him have been considered.

[22] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:7

... the power of review conferred upon Review Officers is not appropriately equated with a general appeal. The obligations and powers of the Review Officer as described in the Act create a very particular statutory process.

The Review Officer has broad powers to conduct his or her own investigations including the power to exercise for that purpose all the powers of a Standards Committee or an investigator and seek and receive evidence. These powers extend to “any review” ...

... the power of review is much broader than an appeal. It gives the Review Officer discretion as to the approach to be taken on any particular review as to the extent of the investigations necessary to conduct that review, and therefore clearly contemplates the Review Officer reaching his or her own view on the

evidence before her. Nevertheless, as the Guidelines properly recognise, where the review is of the exercise of a discretion, it is appropriate for the Review Officer to exercise some particular caution before substituting his or her own judgment without good reason.

[23] More recently, the High Court has described a review by this Office in the following way:8

A review by the LCRO is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

[24] Any question of law as to what constitutes ‘private information’ is an issue to be addressed by the Commissioner. As noted by the Committee it cannot form the basis of a complaint.9

[26] It is unlikely the statements attributed by Mr XO to Mr QY at the previous hearing are correct. Mr Vaughan is familiar with estate administration and is aware that a will does not record the contact details of the executors. That information would only be recorded on a lawyer’s file or administrative records. It would seem Mr XO may have misheard or misunderstood Mr QY’s remarks at that hearing. Mr Vaughan was not misled.

[27] It is the responsibility of the Privacy Commissioner to take appropriate action where an offence against the Privacy Act has occurred. It would be only where a lawyer

_{has been convicted of an offence that the Lawyers Complaints Service has
a role to play.}

[28] The executors were responsible to properly administer the estate and it was their role to ensure the beneficiaries received their entitlements pursuant to the will. Mr QY followed the executors’ instructions, albeit that the executors were following Mr QY’s advice. Mr XO in effect complains about the executors’ requirements and Mr QY is entitled to charge for all attendances relating to the administration of the estate.

[29] Each of Mr XO’s complaints have been addressed in this review. Although the reasoning adopted may differ from the reasons of the Standards Committee, the outcome is the same — further action on the complaints is neither appropriate or necessary.

Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the determination of the Standards Committee is confirmed.

In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

New Zealand Legal Complaints Review Officer

XO v QY [2018] NZLCRO 7 (2 February 2018)