SC v KB [2020] NZLCRO 53 (30 April 2020)

Last Updated: 6 June 2020

LEGAL COMPLAINTS REVIEW OFFICER ĀPIHA AROTAKE AMUAMU Ā-TURE

	[2020] NZLCRO 53 Ref: LCRO 009/2020
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	SC Applicant
AND	KB and ZR Respondents

DECISION

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

Introduction

[1] Ms SC has applied for a review of a decision by the [Area] Standards Committee

[X] (the Committee) to take no further action in respect of her complaints concerning the conduct of the respondents, Ms KB and Mr ZR.

Background

[2] The background to Ms SC’s complaint is succinctly set out at the commencement of the Committee’s decision of 25 November 2019.

[3] I repeat that brief summary here:1

• [1] In early 2011 Ms [SC] instructed Ms [KB] on behalf of her family to advance a Treaty of Waitangi claim.
  
• [2] Legal aid funding was initially granted, and Mr [ZR] was the Lead Provider for a period. Mr [ZR] ceased practising in 2013 at which point he was appointed a [redacted] judge.2
  
• [3] In around 2015 Ms [SC] complained about Ms [KB]’s representation (file 13692). The complaint was considered by a Standards Committee, which [in a decision delivered in May 2016] decided to take no further action.
  

The complaint and the Standards Committee decision

[4] Ms SC lodged the complaint that has led to this review with the New Zealand Law Society Complaints Service (the Complaints Service) on 15 May 2019. The substance of her complaints (expressed in her words) was that Ms KB and Mr ZR had:

• (a) “perverted the course of justice”;
  
• (b) “racially discriminated my family”;
  
• (c) “[sabotaged] our claim so to advance the treaty, under the Maori Military Veterans Inquiry, Wai 2500”; and
  
• (d) “defrauded the Legal Aid System”.
  

[5] As a standalone complaint against Ms KB, Ms SC alleged that Ms KB had;

• (a) in 2011, withdrawn from representing her in an appeal before the High Court, four days before the appeal was to proceed;
  
• (b) “submitted claims into the Wai 2500, Maori Military Veterans Inquiry, with similar grievance to mine”;
  
• (c) this presenting as “a conflict of interest and extremely racist”;
  
• (d) “deliberately, and fraudulently sabotaged my claim, the Justice system, and then the Crown”, this with the purpose of advancing her treaty claims;
  
• (e) “defrauded the Legal Aid System”; and
  
• (f) failed to return files.
  

1 Standards Committee determination, 25 November 2019.

2 I will refer to Judge ZR throughout this decision as Mr ZR.

[6] On receipt of Ms SC’s complaints and following request made of Ms SC to identify the practitioners against whom she was making complaint, the Complaints Service opened two separate files.

[7] Ms SC was advised that a Standards Committee would review her complaints and then make a decision to either take no further action or refer the complaint for early resolution.

[8] It would appear to be the case that the complaints were managed through the Early Resolution Process. That process involves a Standards Committee completing an initial assessment of a complaint and forming a preliminary view as to outcome.

[9] The Standards Committee delivered its decision on 25 November 2019. The decision issued addressed the complaints made against both Mr ZR and Ms KB.

[10] The Committee determined, pursuant to s 138(1)(f) and 138(2) of the Lawyers and Conveyancers Act 2006 (the Act) that no further action on the complaints was necessary or appropriate.

[11] In reaching that decision the Committee concluded that:

• (a) Ms SC’s complaint amounted to a repetition of allegations that had previously been raised by Ms SC and addressed in an earlier Committee decision.
  
• (b) It did not consider that evidence produced by Ms SC and described by her as new evidence, was sufficient to justify a reconsideration of matters that had already been the subject of previous complaint.
  
• (c) The nature of the serious allegations raised by Ms SC demanded that the allegations be substantiated by a commensurately serious level of evidence. Ms SC had failed to meet that standard.
  
• (d) There was nothing in the complaints raised by Ms SC capable of sustaining allegations that either Ms KB or Mr ZR acted in breach of their professional duty.
  

Application for review

[12] Ms SC filed an application for review on 14 January 2020.

[13] She submits that:

• (a) Her first complaint (2015) had not been given proper consideration by the Committee charged with the responsibility for conducting an inquiry into the complaint.
  
• (b) The Law Society has a conflict of interest when considering complaints engaging Treaty of Waitangi claims.
  
• (c) The Law Society had violated her human rights and been influenced by racism when considering her complaints.
  
• (d) The Law Society had neglected to investigate the complaints.
  
• (e) The Law Society was engaging in a cover up, and its negligence in failing to take her complaints further would have consequences for the security of the country.
  

[14] By way of remedy, Ms SC seeks:

• (a) Her research to be returned.
  
• (b) That research to be officially recognised under the Treaty of Waitangi as native under the third article of the Treaty.
  

[15] Ms KB and Mr ZR were invited to comment on Ms SC’s review application.

[16] Mr ZR submits that:

• (a) He has no recollection of Ms SC from his time in practice as a barrister.
  
• (b) Since being appointed to the bench as a [redacted] Judge in 2013, he has had no involvement in the management of legal aid files.
  

[17] Ms KB was given opportunity to respond to Ms SC’s review application but elected not to do so.

[18] The powers available to a Legal Complaints Review Officer (LCRO), include the power to strike out an application.

[19] Section 205(1) of the Act provides that:

205. Legal Complaints Review Officer may strike out, determine, or adjourn application for review
     

• (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; or
    
  • (b) is likely to cause prejudice or delay; or
    
  • (c) is frivolous or vexatious; or
    
  • (d) is otherwise an abuse of process.
    

Analysis

[20] Having carefully considered the complaint filed by Ms SC, and the submissions filed by her in support of her application for review, I have concluded that this is an appropriate case in which to exercise the discretion available to an LCRO to strike out an application.

[21] My reasons for adopting that approach follow.

[22] It is important to emphasise that it is not the role of an LCRO to consider fresh complaints that are raised by a complainant on review. Whilst an LCRO has broad powers to conduct an investigation, those powers do not extend to considering fresh complaints that have been raised by an applicant when seeking to review a Committee decision.

[23] The review guidelines provided to assist parties with understanding the review process, advise parties that no new complaints will be considered at the review stage, and that in general, the LCRO will not accept new information which should have been placed before the Standards Committee.

[24] A party who seeks to introduce information which was not made available to the Standards Committee is required to provide good reasons as to why the information was not made available to the Standards Committee, and to establish that the information is relevant to the review.

[25] In brief, the task of an LCRO when conducting a review is, for the most part, confined to addressing the matters that were put before the Committee by way of formal complaint.

[26] The submissions provided by Ms SC in support of her application for review do not, in significant part, address the matters that were the subject of her complaint in 2019. Rather, viewed in their totality, they present as an expression of her dissatisfaction with the inquiry conducted by the Committee charged with investigating her 2015 complaints.

[27] Ms SC complains that the Complaints Service did not deal with her 2015 complaints fairly.

[28] She makes serious allegation that the inquiry into her first complaints had been contaminated by negligence and discrimination and suggests that the Law Society had an agenda to suppress her complaints in order to advance the interests of third parties.

[29] Putting to one side the fact that Ms SC provides no evidence to support such serious allegations, it is abundantly clear that Ms SC is asking the LCRO on review, to resurrect her 2015 complaint.

[30] If Ms SC wished to challenge the decision issued by the Committee in 2016, her opportunity to do so was by taking steps to seek to review the decision. If she wished to exercise her right to review the Committee’s decision, she was required to file her review application within 30 working days of the date of the Committee issuing its decision.

[31] To the extent that Ms SC’s review application specifically traverses matters raised in her 2019 complaint, I am satisfied, having carefully read the 2016 decision, that the Committee was correct to conclude that the issues raised by Ms SC in 2019, were substantially addressed in her 2016 complaint.

[32] I also agree with the Committee, that Ms SC’s 2019 complaint largely comprises a repetition of allegations that she had previously raised.

[33] Ms SC suggests that she had obtained fresh evidence which throws new light on her complaints. The Committee concluded that the information provided was insufficient to merit a reconsideration of matters that had already been complained about.

[34] In my view, there is little indication of Ms SC providing what could reasonably be described as fresh evidence.

In respect to the complaint made against Mr ZR, Ms SC produces a document which I assume had been issued by a [City] based office that had been involved in managing legal aid applications.

[35] The document is dated 15 January 2015. The document is stamped “copy”. It is unclear precisely what the document is providing evidence of, but records Mr ZR as being a legal aid provider.

[36] Mr ZR became a judge in [date] 2013. He says he had no involvement in any legal aid matters subsequent to being appointed to the bench.

[37] I accept Mr ZR’s evidence.

[38] When a lawyer is appointed to the bench, that lawyer can have no further involvement in active legal practice. The document exhibited by Ms SC falls well short of establishing that Mr ZR had any involvement with her case subsequent to his appointment as a judge. To the extent that Mr ZR had any involvement with Ms SC, that involvement appears to have been limited to acting as a legal aid provider for Ms KB.

[39] I think it probable that the document provided by Ms SC, to the extent that it references Mr ZR, is simply recording the fact that Mr ZR had earlier fulfilled the role of a legal aid provider. It certainly does not establish evidence of any improper conduct on the part of Mr ZR.

[40] A further difficulty with Ms SC’s application is that she fails to identify, with any degree of specificity, precisely what the nature of her conduct allegations are.

[41] I intend no discourtesy to Ms SC, but the expansive and generalised manner in which she advances serious allegations entirely unsupported by evidence, make it difficult to comprehend precisely what professional breaches the lawyers are said to have committed.

[42] Vague and sweeping accusations of conflict of interest, racism, improper process, dishonesty and negligence, do not, in the absence of clear and plausible supporting reference to specific instances of improper professional conduct, establish a conduct complaint.

[43] Both Ms SC’s complaint and review application are permeated with broad-brush allegations of improper conduct, those allegations levelled not just at the lawyers who are the subject of her complaint, but also directed towards individuals and government departments who Ms SC considers have frustrated her ability to advance her claim.

[44] The cumulative effect of the approach adopted by Ms SC in advancing both her complaint and her review application in this manner, is to render it difficult to distil from the raft of broad allegations, the precise complaints she is levelling at the lawyers.

[45] To the extent that she identifies specific complaints in respect to Ms KB, I am satisfied that these matters were comprehensively addressed by the first conduct inquiry.

[46] It is also clear that Ms SC is endeavouring to utilise the complaints process as a means to litigate her claim before the Waitangi Tribunal.

[47] This is amply evidenced by the remedy she seeks on review. She seeks a direction that her research be returned and to be “officially recognised in the Treaty of Waitangi as native under the third article of the Treaty of Waitangi 1840”.

[48] This is not a remedy that a Review Officer has jurisdiction to grant.

[49] Ms SC believes that her ability to progress a Treaty of Waitangi claim was compromised by the representation she received from Ms KB. As noted, those concerns were addressed in the Committee decision issued in May 2016. She resurrects those concerns (and expands them to include other parties) in her second complaint filed in 2019.

[50] It is not intended, nor is it desirable, for parties to be provided with continuing opportunity to bring complaints against a lawyer. A complaint once heard and addressed, can only be revisited in those rare circumstances where there are compelling reasons to justify a further inquiry.

[51] Ms SC did not provide evidence of fresh matters such as would merit a reconsideration of the issues she had made complaint of in 2015. Ms SC’s review application discloses no reasonable cause of action or, as more appropriately expressed in a disciplinary context, no foundation for a conduct complaint.

[52] Ms SC’s review application is, pursuant to s 205 of the Lawyers and Conveyancers Act 2006, struck out and the decision of the Standards Committee to take no further action confirmed.

Anonymised publication

[53] Pursuant to s 206(4) of the Act, I direct that this decision be published so as to be accessible to the wider profession in a form anonymising the parties and bereft of anything as might lead to their identification.

Decision

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

DATED this 30TH day of April 2020

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:

Ms SC as the Applicant

Ms KB and Mr ZR as the Respondents [Area] Standards Committee [X]

New Zealand Law Society Secretary for Justice