QW v CN [2019] NZLCRO 18 (26 February 2019)

Last Updated: 23 March 2019

	LCRO 216/2016
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a determination of the [Area] Standards Committee
BETWEEN	QW Applicant
AND	CN Respondent

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

DECISION

Introduction

[1] QW has applied for a review of a decision by the [Area] Standards Committee (the Committee) to take no further action in respect of his complaint concerning fees charged by the late CN.

Review

[2] CN passed away after the Committee issued its decision but before this review was determined. In the circumstances, a Direction dated [Date 1] was issued indicating that, as this Office cannot comply with its statutory obligation to perform its functions and duties and exercise powers in a way that is consistent with natural justice, QW should consider withdrawing his application for review.

[3] QW’s reply, on [Date 2], was to seek an undertaking from this Office or CN’s estate that he be released from liability for the unpaid balance of CN’s fees.

[4] It is unfortunate that QW declined to withdraw his application for review, and that in November 2018, when arrangements were made for a hearing, this Office lacked the statutory jurisdiction to determine a review on the papers without the consent of the parties.

[5] However, in accordance with QW’s wishes, he appeared in person at a review hearing in [Town] on [Date 3] and was heard. The review hearing proceeded in the absence of any representation on the part of CN.

[6] At the review hearing, QW referred to recordings he had made of meetings he had with CN which, he said, underlined his concerns about the way CN had treated him. Those recordings were available to QW at the time of the complaint process and he did not produce them then. As those recordings were not before the Committee, CN did not have the opportunity to comment on their content. It is too late now to introduce those to support QW’s application for review.

Discussion

[7] While law firms can charge legal fees, the matters of professional conduct referred to by QW in support of his complaint that the fees should be reduced are personal to CN.

[8] Nothing QW presented to the Committee, or sought to present in the course of the review process, provides a basis on which to depart from the view that, in Mr CN’s permanent absence, this Office cannot comply with its statutory obligation to perform its functions and duties and exercise powers in a way that is consistent with natural justice. Beyond the materials CN provided to the Committee and earlier in the review process, he can no longer be heard.

[9] There is nothing in the materials available on review that is indicative of any wrongdoing on the part of CN, either as to his conduct or his fees.

[10] It was inappropriate for QW to request an undertaking from this Office. If QW is unable to negotiate the release he seeks with CN’s personal representatives, as previously explained, liability would be a matter of law for the civil jurisdiction, not for this Office. Similarly, any challenge QW may wish to raise to the quantum of CN’s fees could be determined in the civil jurisdiction on the basis of sworn evidence.

[11] In short, QW has an appropriate remedy elsewhere, and it would be reasonable for him to exercise that.

[12] This review is determined pursuant to s 138(1)(f) of the Act on the basis that no further action will be taken with regard to the complaint, because QW has an appropriate remedy elsewhere, and it would be reasonable for him to exercise that.

Decision

[13] Pursuant to s 211(1)(b) and 138(1)(f) of the Lawyers and Conveyancers Act 2006, no further action will be taken with regard to QW’s complaint because he has an appropriate remedy elsewhere, and it would be reasonable for him to exercise that.

DATED this 26th day of February 2019

D Thresher

Legal Complaints Review Officer

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

QW as the Applicant CN as the Respondent

[Area] Standards Committee New Zealand Law Society