AP v RE [2019] NZLCRO 48 (17 May 2019)

Last Updated: 22 May 2019

	LCRO 63/2019
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	AP Applicant
AND	RE Respondent

DECISION

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

Introduction

[1] Mr AP has applied for a review of a determination made by the [Area] Standards Committee [X] (the Committee) in which the Committee made a finding of unsatisfactory conduct against him following inquiry into a complaint by Ms RE.

[2] Mr AP has applied to review the Committee’s determination, and an issue has arisen as to whether this Office has jurisdiction to deal with his application for review. The question is whether he lodged it out of time.

Timeline

[3] The Committee’s determination is dated 20 March 2019.

[4] On 20 March 2019 – a Wednesday – the New Zealand Law Society Lawyers Complaints Service (Complaints Service) emailed a copy of the decision to Mr AP at

the email addresses that he had provided to the Complaints Service, with a covering letter.

[5] Consistent with its usual practice, the Complaints Service is also likely to have mailed the original of its letter and the Committee’s determination to Mr AP at the address he would have provided. The practice of the Complaints Service is to do so on the same day that it emails those documents to the parties.

[6] On 13 May 2019 Mr AP emailed an application to review the Committee’s determination to this Office. Payment of the required $50 filing fee was also made electronically on that date.

[7] Thirty working days after 20 March 2019, is 6 May 2019. 13 May 2019 is 35 working days after 20 March 2019.

The Law

[8] Section 198 of the Lawyers and Conveyancers Act 2006 (the Act) provides:

Applications for review

Every application for a review under section 193 must—

(a) be in the prescribed form; and

(b) be lodged with the Legal Complaints Review Officer within 30 working days after a copy or notice of the determination, requirement, or order made, or the direction given, or the performance or exercise of the function or power, by the Standards Committee (or by any person on its behalf or with its authority) is served on, given to, or otherwise brought to the attention of, the applicant for review (which, in the absence of proof to the contrary, is presumed to have occurred on the fifth working day after it is made, given, or performed or exercised); and

(c) be accompanied by the prescribed fee (if any).

[9] The original wording of s 198 provided that the 30-working day period began on the day that the Standards Committee determination was made. The effect of this was that the time for filing a review application had already started to run before the applicant was aware the determination had been issued and provided with a copy.

[10] Section 198 was amended by the Lawyers and Conveyancers Amendment Act 2012.1 When the Act was first introduced, the general policy statement set out the explanation for amending s 198 of the Act.2

1 Lawyers and Conveyancers Amendment Act 2012, s 12.

2 Lawyers and Conveyancers Amendment Bill 2010 (120-1) (explanatory note) at 7.

(a) New section 198(b) ensures that those applications must be lodged within a 30-working-day period commencing on the day after a copy or notice of the decision or action is brought to the attention of the applicant for review.

(b) New section 198(b) also ensures that, in the absence of proof to the contrary, a copy or notice of that kind is presumed to have been brought to the attention of the applicant for review on the fifth working-day after the decision or action.

(c) By contrast under section 198(b), the 30-working-day period for lodging those applications starts when the decision or action is made or taken. The period for lodging those applications thus starts to run before the relevant decisions or actions are brought to the attention of possible applicants for review.

[11] It is clear that the reasoning for the amendment was to clarify that the 30- working day period runs from the day after the determination is served on, given to or otherwise brought to the attention of an applicant. This is to ensure that there is sufficient time for an application for review to be lodged.

[12] The second part of s 198(b), the presumption of service, need only be addressed if it is not clear when the applicant was provided with a copy of the determination, where the determination has not been served on or given to the applicant.

[13] There are two critical elements to s 198. First, the section ensures that applicants have adequate time to file an application for review. Secondly, the section imposes obligation on an applicant to file their application promptly. This is intended to ensure that the statutory objective of having complaints dealt with expeditiously is achieved.

[14] The provisions of s 198 of the Act are stated in mandatory terms and there is no statutory discretion to ameliorate their harshness, other than the ability for applicants to rebut the presumption that the decision was served on them within five working days after the decision was delivered.

[15] It is also important to note that an application for review is not lodged unless it is in the prescribed form and accompanied by the necessary filing fee. This means that both must be lodged within the 30-working day period.

[16] In KX v WA, this Office held:3

• [9] For the avoidance of doubt, the statutory requirement is for a review application to be “lodged with the Legal Complaints Review Officer within 30 working days after the determination...”, together with the fee. (Underlining added). There can be no lodgement of documents after the closing time of the Registry, which is generally recognised to be between the normal
  

3 KX v WA LCRO 84/2012 (30 April 2012) at [9]–[10].

working hours of 9:00 a.m. and 5:00 p.m. This is supported by AEL Group Ltd v Kensington Swan Lawyers 31/7/08, Associate Judge Christiansen, HC Christchurch CIV-2008-409-1225. There the Court found that service on a law firm after 5:00 p.m. on a business day would not be effective (although in the circumstances considered by the Court service by facsimile prior to 5:00

p.m. was effective.) In this case the review application was lodged with this office the following day, when staff were in a position to receive and date stamp it, this being 19 April.

[10] The provisions of s 198 of the Act are stated in mandatory terms and there is no statutory discretion to ameliorate their harshness. I accept this may be a harsh result and there may be reasons why an application was not made within the requisite time. However, the obligation to comply with the procedural requirements in making an application clearly lies with the Applicant. This position is reiterated by previous decisions of this Office that the LCRO has no discretion to extend the timeframe.

[17] This was confirmed by this Office in UQ v OI as follows:4

As a matter of jurisdiction this office has no discretion to accept review applications that are outside of the statutory time limit. Section 198 of the Act requires an application for Review to be lodged “within 30 working days after a copy or notice of the determination...” is “served on, given to, or otherwise brought to the attention of, the applicant for review.”

Mr AP’s submissions

[18] Mr AP submits:

• (a) The Committee’s determination is dated 20 March 2019.
  
• (b) Information on the determination is to the effect that receipt is deemed to be five working days after that date of the determination itself.
  
• (c) An application for review must be filed within 30 working days after the five working days. In Mr AP’s case, that date is 13 May 2019.
  
• (d) The minimum time frame for receipt of the determination is five working days after its date. If it was intended to mean otherwise, the determination should read that receipt of the determination is deemed to be the date of the determination unless proved otherwise.
  
• (e) The New Zealand Law Society should amend the information on determinations so that it is crystal clear as to when applications for review must be filed.
  
• (f) Decisions of this Office setting out the time limit requirements should be appended to every Standards Committee decision “with a bold
  

4 UQ v OI LCRO 19/2013 (2 April 2013) at [5].

recommendation [to the parties] to read them so that they do not file out of time.”

Discussion

[19] There is no dispute that the Complaints Service sent the Committee’s determination to Mr AP on 20 March 2019, by email.

[20] No issue has been taken with the manner in which the Committee’s determination was served, given to or otherwise brought to Mr AP’s attention. Email is a common, if not the most commonly used, mode of service in matters that come before the Complaints Service and this Office. Indeed, Mr AP lodged his application for review by email to this Office dated 13 May 2019.

[21] Moreover, there are no legislative provisions relating to the operation of either the Complaints Service or this Office that preclude email as a means of filing or service.

[22] The Committee’s determination, as with every decision or determination issued by a Standards Committee, concludes with the following information:

Right to apply for a review – Legal Complaints Review Officer (LCRO)

You have a right to apply for a review of this decision by the LCRO. On review, the LCRO may:

(i) Direct the Standards Committee to reconsider the whole or any part of the complaint; or

(ii) Confirm, modify or reverse the decision of the Standards Committee; and

(iii) Exercise any of the powers that could have been exercised by the Standards Committee in relation to this complaint.

Any application for review of this decision must be lodged with the LCRO within 30 working days after a copy or notice of this decision is served on, given to, or otherwise brought to the attention of, the applicant for review. In the absence of proof to the contrary this is presumed to have occurred on the fifth working day after the date of this decision.

An application for review must be on the prescribed form and be accompanied by the prescribed fee of $50.00. Contact details for the LCRO are:

Private Bag 92535 Wellesley St Auckland 1141

For further information about the LCRO and the review process call 0800 367 6838 (extn 2) or go to:

http://www.justice.govt.nz/tribunals/legal-conplaints-review-officer

[Please note that the 30 working day period of review applies regardless of whether any further decision or determination is issued in relation to this complaint or matter.]

....

[23] Mr AP submits that counting the 30-working day period does not begin until five working days after the date of the determination.

[24] His interpretation of s. 198 appears to be that in every case, counting begins five working days after the date of the Committee’s determination. Extrapolating that rationale, he would also be compelled to argue that if it can be proved that the determination was not received within that five working-day period, then counting would begin on some other date after the five working-day period.

[25] Mr AP submits that if it was intended that counting the 30-working day period begins on the day after the date of the determination, the advice given to parties with Committee determinations should make it clear that receipt of the determination is deemed to be the date of the determination, unless otherwise proved.

[26] I do not agree with Mr AP’s criticism of the wording on Committee determinations. It accurately reflects the wording in s. 198 of the Act. It would be misleading for the Complaints Service to tinker with the clear statutory wording in the parties’ rights information that it adds to the end of each determination.

[27] Moreover, Mr AP’s interpretation could lead to a situation where there is no effective time limit for lodging an application for review in circumstances where it can be proved that the Committee’s determination was received later than five working days after the date of the determination.

[28] I do not agree with this interpretation. It is inconsistent with the aims of the Act, which is that complaints and reviews of complaints are to be dealt with fairly, efficiently and effectively.

[29] For the purposes of s. 198 of the Act, the determination was served on Mr AP on 20 March 2019. This means that day one of the 30-working day calculation was 21 March 2019.

[30] 30-working days expired at 5 pm on Monday 6 May 2019.

[31] Applying this Office’s decision in KX v WA, Mr AP had until 5 pm on 6 May 2019 to lodge his application for review including paying the prescribed fee.

[32] There is no provision in the Act for a Review Officer to extend the fixed time limit within which an application for review must be lodged. I accept that in some cases hardship may result in the strict application of the time limit prescribed by s 198 of the Act.

Outcome

[33] This Office has no jurisdiction to deal with the application for review that was lodged by Mr AP, as it was not lodged within 30 working days after the date on which the Committee’s determination was served, given to or otherwise brought to his attention.

DATED this 17th day of May 2019

R Maidment

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 AP as the Applicant Ms RE as the Respondent

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