VW v HR [2019] NZLCRO 46 (9 May 2019)

Last Updated: 22 May 2019

	LCRO 30/2019
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	VW Applicant
AND	HR Respondent

DECISION

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

Introduction

[1] Dr VW has applied for a review of a decision made by the [Area] Standards Committee [X] (the Committee), which determined his complaint about Mr HR’s conduct on the basis that further action was not necessary or appropriate, pursuant to s 138(2) of the Lawyers and Conveyancers Act 2006 (the Act).

Complaint

[2] Dr VW’s complaint about Mr HR includes reference to the fact that Mr HR had not advised him how he might contact his former landlord, Mr NF, prior to the court hearing. The court hearing was part of a proceeding Dr VW had initiated in 2003 pursuant to the Judicature Amendment Act 1972, which was in effect at the time of events, but has since been repealed.

[3] The Judicature Amendment Act 1972 made provision for a single procedure for the judicial review of the exercise or failing to exercise a statutory power.

[4] Mr NF was Dr VW’s landlord. There is no indication at all that he was exercising a statutory power. It seems that when Dr VW commenced proceedings against the Tenancy Tribunal, which had exercised statutory powers and therefore was susceptible to judicial review, he had mistakenly included Mr NF as a party to that proceeding.

[5] For unrelated reasons, Dr VW discontinued his application for judicial review in March 2004, then changed his mind in 2010 and applied to have the notice of discontinuance he had filed set aside. He instructed Mr HR.

[6] One of the Judges who considered Dr VW’s application to set aside the notice of discontinuance noted a number of serious flaws in his application, one of which was that Mr NF had been a party, albeit in error, and was therefore a person affected by the proceeding, and should be served. His Honour also noted that the application was hopelessly out of time because having been made six years later, it had missed the 25 day time limit allowed for by the Court rules by a significant margin.

[7] As Mr NF should not have been a party in the first place, he would have been well placed to argue that any legal costs he had incurred as a result of being wrongly joined as a party in the first place, and then troubled again by the revived proceeding, should be met by Dr VW. Nonetheless, Dr VW considered Mr NF should have been served. He contends that Mr HR should be held to account for failing to tell him what Mr NF’s address was or how he could go about obtaining it. Dr VW’s position is that once the Judge had mentioned service on Mr NF, he asked Mr GC, another of his lawyers, for advice and Mr GC told him he may be able to locate Mr NF through an inquiry agent.

[8] On this basis, Dr VW says in his application for review Mr HR’s conduct fell below a proper professional standard because he omitted to tell Dr VW what Mr NF’s address was, and did not tell him he could trace Mr NF through an inquiry agent.

[9] Viewed in context, the fact that Mr GC, another of Dr VW’s lawyers, did explain to him how to go about finding a person, such as Mr NF, is not evidence that an omission to do the same thing constitutes a professional standards issue for Mr HR.

[10] Dr VW had joined Mr NF as a party to the proceeding in error. Perpetuating that error attracted a costs risk for Dr VW, which would have been counter-productive. As the High Court judge considered Mr NF should have been joined, there is no reason to believe that, given the chance, Mr HR would not have set about that task if Dr VW had instructed him to do so, but Dr VW spoke to Mr GC instead.

[11] I have carefully considered all of the materials available on review, which include Dr VW’s complaint, Mr HR’s replies in the course of the complaints process, Dr VW’s application for review, Mr HR’s response to that, and the correspondence exchanged in the review process.

[12] Having considered all of that information I am satisfied that no reasonable cause of action has been disclosed by Dr VW in his application for review.

[13] In the circumstances, this review is determined pursuant to s 205(1)(a) of the Act which says:

• (1) The Legal Complaints Review Officer may strike out, in whole or in part, an application for review if satisfied that it—
  
  • (a) discloses no reasonable cause of action; ...
    

Decision

[14] Pursuant to s 205(1)(a) of the Lawyers and Conveyancers Act 2006 the application for review by Dr VW is struck out in whole for the reason that I am satisfied it discloses no reasonable cause of action.

DATED this 9TH day of May 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:

Dr VW as the Applicant Mr HR as the Respondent

[Area] Standards Committee [X]

New Zealand Law Society