YP v MA [2019] NZLCRO 25 (18 March 2019)

Last Updated: 30 March 2019

	LCRO 178/2018
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 [X]
BETWEEN	YP Applicant
AND	MA Respondent

DECISION

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

Introduction

[1] Mr YP has applied for a review of a decision by [Area] Standards Committee [X] (the Committee) which decided to take no further action on his complaint about conduct on the part of Ms MA, a non-lawyer employee of [lawfirm] (the firm).

Review on the papers

[2] This review has been undertaken on the papers pursuant to s 206(2) of the Act because it appears that it can be adequately determined on the basis of the information available. Having carefully read the complaint and associated materials, including the Committee’s decision and materials provided on review, no additional issues or questions arise that require further comment by either party.

Nature and Scope of Review

[3] The nature and scope of a review have been discussed by the High Court, which said of the process of review under the Act:1

... 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.

[4] More recently, the High Court has described a review by this Office in the following way:2

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.

Discussion

[5] The firm acted for Mr YP’s daughter in law, DM (also known as ZH) who wanted a residence visa so she could stay in New Zealand. DM’s husband was RV. DM’s visa application was based on her partnership with RV. RV was in ill health and passed away on 20 April 2018. Mr YP considers DM and Ms MA bear some responsibility for what Mr YP believes was RV’s premature death, indeed Mr YP goes so far as to say that Ms MA was a party to the criminal offence of accelerating RV’s death. Although RV was seriously unwell, Mr YP believes that the pressure of his involvement with DM and Ms MA pushed him over the edge.

[6] The Committee’s decision reflects the position that the lawyers’ professional obligations were owed to their client, DM. The concerns Mr YP expressed to Ms MA related to the pressure Mr YP felt RV was under. Ms MA sensibly suggested that another

1 Deliu v Hong [2012] NZHC 158, [2012] NZAR 209 at [39]–[41].

2 Deliu v Connell [2016] NZHC 361, [2016] NZAR 475 at [2].

family member might be able to support DM’s residency application, relieving RV of that responsibility. It seems no one else was willing to volunteer to support DM in her application. It is difficult to see what else Ms MA could have suggested to advance DM’s position.

[7] Although Mr YP understandably finds RV’s death difficult to accept, it is far from clear that there is a direct correlation between Ms MA’s part in DM’s application for a visa, and RV’s death. Sympathy for Mr YP over the loss of his son does not translate into a professional standards issue for the firm, or for its employee, Ms MA.

[8] Having carefully considered all of the materials available on review, there is no basis on which to reach a different conclusion to the Committee’s which is that further action on Mr YP’s complaint would be inappropriate.

[9] In the circumstances, the Committee’s decision is confirmed.

Decision

[10] Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 the Committee’s decision is confirmed.

DATED this 18TH day of March 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:

Mr YP as the Applicant

Ms MA as the Respondent Mr CT as a Related Person

[Area] Standards Committee [X] New Zealand Law Society