TL v RY [2024] NZLCRO 87 (4 July 2024)

Last Updated: 13 July 2024

LEGAL COMPLAINTS REVIEW OFFICER ĀPIHA AROTAKE AMUAMU Ā-TURE

	[2024] NZLCRO 087 Ref: LCRO 36/2023
CONCERNING	an application for review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING	a decision of the [Area] Standards Committee [X]
BETWEEN	TL Applicant
AND	RY and SK Respondents

DECISION

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

Introduction

[1] The applicant, Mr TL, has applied for review of a determination of the [Area] Standards Committee [X] (the Committee) to take no further action on his complaint dated 13 May 2022 about the professional conduct of the respondents, Mrs RY (Mrs X) and Mr SK (Mr Y).

[2] At the relevant time, Mrs X was an employed lawyer and Mr Y a principal of a law firm that undertook the Crown Solicitor’s work in a regional centre.

Background

[3] The applicant held an engineering role in an organisation’s information technology department. In March 2014, his employer put him on leave and made a

complaint to the Police about him. The Police charged him with two, computer system- related criminal offences.

[4] In November 2014, the Police transferred their file relating to the two charges to the Crown Solicitor’s office. Mr Y had overall responsibility for the prosecution from that point.

[5] On 27 November 2014, Mrs X, who was an intermediate prosecutor, reviewed the file and recommended to Mr Y that the evidential test under the Crown Prosecutor’s Guidelines 2013 (the Guidelines) was met but that the public interest test was not met and that prosecution should not proceed.

[6] On 3 December 2014, Mr Y reviewed her recommendation and the file, met with the Police and formed the opinion that both tests were met but that the alleged offending was low-level (although both were category 3, indictable offences).

[7] On 23 December 2014, Mrs X emailed the applicant’s lawyer, copying in Mr Y, relevantly stating:

Hi ...,

... We have reviewed this file and consider the offending to be at the lower end of the scale. Would your client be willing to plead to the 2 year charge (.....) as a complete resolution? ...

[8] On 13 January 2015, the applicant’s lawyer responded to Mrs X that the applicant’s response was “a categorical no”.

[9] On 14 January 2015, Mrs X emailed the applicant’s lawyer a witness statement she had received.

[10] On 21–22 January 2015, Mr Y reviewed the file again and formed the view that the witness statement materially changed the evidential position regarding the charges. He concluded that the tests for prosecution under the Guidelines were not met and the charges should be withdrawn.

[11] On 27 January 2015, Mr Y wrote to the Police advising them of his view and Mrs X filed a memorandum in Court seeking leave to withdraw the two charges.

[12] On 4 February 2015, the Court granted leave to withdraw the charges.

The complaint

[13] The applicant filed his complaint with the New Zealand Law Society (NZLS) in May 2022. His complaint was that the respondents had not complied with the Guidelines

in their process leading to Mrs X sending her email of 23 December 2014. He stated, with reference to the Guidelines, in summary and in my words rather than the applicant’s, that:

(a) a decision to prosecute has to meet the evidential test and the public interest test;

(b) in his opinion, the evidential test was not satisfied;

(c) the respondents knew that when Mrs X wrote to his counsel on 23 December 2014;

(d) the respondents contravened cl 18.7.2 of the Guidelines, which provides that it is not acceptable for prosecutors to agree to a plea of guilty to an offence not disclosed by the evidence;

(e) the respondents contravened cl 19.1 of the Guidelines, which provides that the overarching duty of a prosecutor is to act in a manner that is fundamentally fair;

(f) the respondents contravened cl 19.3 of the Guidelines, which provides that prosecutors should not strive for a conviction;

(g) the respondents’ conduct overall lacked integrity.

[14] The applicant’s own expression of the above elements of his complaint included concepts such as failure of analysis, malice, jumping to conclusions, manipulation, game-playing, a mess of indecision, lying, recklessness and an inappropriate exercise of a power imbalance.

[15] The respondents responded to the complaint; in Mr Y’s case, through counsel.

The Standards Committee’s decision

[16] The Committee resolved to inquire into the complaint under s 137(1)(a) of the Lawyers and Conveyancers Act 2006 (the Act) on the express basis that the Guidelines constituted ethical obligations under r 13.12(d) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

[17] It declined a number of requests from the applicant to exercise its statutory power to appoint an investigator.

[18] In its decision dated 7 March 2023, it set out in some detail the differing views held about the evidence by the applicant, Mrs X and Mr Y respectively but noted that it was not appropriate for the Committee to undertake its own assessment of the evidence.

[19] The Committee considered, in summary, that:

• (a) the course of events indicated a robust legal analysis rather than a “mess of indecision”;
  
• (b) the respondents acted responsibly by withdrawing the charges;
  
• (c) there was no evidence of bad faith in the proposed plea arrangement on the basis of the respondents’ analysis of the file up to that point;
  
• (d) there had been no breach of the fairness requirement of the Guidelines.
  

[20] The Committee also rejected the applicant’s allegations of malice, misleading or deceptive conduct and lying and, in summary, found no breach of the Guidelines.

[21] The Committee’s determination was to take no further action on the complaint pursuant to s 138(2) of the Act on the grounds that further action was neither necessary nor appropriate.

Application for review

[22] The applicant’s application for review is dated 23 March 2023. The outcome he sought was “... what the normal person would deem a sensible, unbiased outcome which was fair and showed accountability”. The accountability aspect was focused on compliance with the requirements of the Guidelines.

[23] The applicant’s supporting reasons for the application included reference to numerous matters including:

• (a) the use by the Committee of various techniques to benefit the parties complained about;
  
• (b) an unwillingness by the Committee to gain access to all sources of relevant information;
  

(c) an assertion that “... the Crown Prosecutor operates in a power imbalance situation that is unheard of anywhere else in Western society”;

(d) abuse of privilege;

(e) historical cases of unnecessary imprisonment, impliedly because of the improper actions of Crown Prosecutors.

• (f) the Committee’s decision being “... the best example of sickness in the human species I have seen”;
  
• (g) an allegation of “... bias, predetermined outcomes, and potentially lying...” on the part of the Committee;
  
• (h) the abuse of absolute power by the Committee;
  
• (i) apparently pre-emptively, the LCRO being implicated in the alleged sickness as well.
  

[24] The summary was accompanied by a cumulative 31 pages of materials setting out the applicant’s analysis of his own case in terms of the Guidelines, the defects in the Committee’s inquiry process and decision-making, the provisions of the Crimes Act under which he was charged, rights of access to information under the Privacy Act and Official Information Act, the Guidelines, other cases, the actions of Mr Y in other cases, the actions of other Crown Prosecutors in other cases, the Committee’s lack of integrity and his opinion of the flaws in the submissions of counsel for Mr Y in response to the complaint. This is not necessarily an exhaustive list.

Review process

[25] One of my Review Officer colleagues undertook an initial appraisal of the review file to determine how the review was to be progressed. He formed the provisional view that the review might appropriately be dealt with “on the papers”, which is shorthand for considering the parties’ written submissions together with the original complaint file and making a determination without the need for any of the parties to attend a formal hearing.

[26] My colleague provided all parties with the opportunity to comment on that provisional view, as required by s 206(2A)) of the Act. The applicant advised that he wished to attend a hearing in person. The respondents expressed no objection to a hearing on the papers. After considering the comments received, my colleague advised all parties in June 2023 that he remained of the view that the matter could be adequately determined on the papers.

[27] There has been regrettable delay in progressing the matter since then owing to the workload of the LCRO’s office. I have reviewed the file afresh. I am of the same view that this matter can properly be determined on the papers and that it is appropriate to do so.

Nature and scope of review

[28] 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.

[29] The High Court has also 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.

[30] Given those directions, the approach on this review, based on my own view of the fairness of the substance and process of the Committee’s determination, has been to consider the available and relevant material afresh, including the Committee’s decision, and provide an independent opinion based on those materials.

The issues

[31] This is a review, not an appeal. The review is “from the beginning”. This means that I start from the very beginning of the same process as was undertaken by the Committee. The first step in a standards committee’s process on receiving a complaint for consideration is to undertake an initial consideration of it under s 137(1) of the Act. In a sense, this is an initial ‘gateway’ hearing on the papers. Under that section, the three available alternatives are:

• (a) to resolve to inquire into the complaint;
  

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].

(b) to refer the parties to one of various types of alternative dispute resolution processes specified in the section; or

(c) to decide to take no action on the complaint under one of the grounds specified in s 138(1) of the Act.

[32] Under s 211(1)(b) of the Act, a Review Officer may exercise any of the powers that could have been exercised by the standards committee in the proceedings in which the decision was made or the powers were exercised or could have been exercised.

[33] This is plainly not a matter susceptible to alternative dispute resolution. Consequently, the preliminary issue I need to determine is whether to inquire into the complaint or to decide to take no action on it.

[34] The Committee resolved to inquire into the complaint under s 137(1)(a) of the Act. I acknowledge that it was both courteous and cautious of it to do so on the information then available to it and I do not criticise its decision. This does not mean I need to make the same decision. At this point and as a result of the Committee’s inquiry, I have the benefit of a much greater body of evidence and submission material than was available to the Committee at the same stage of its consideration of the complaint.

[35] Under s 138(1) of the Act, there are six specified grounds on which a standards committee may, in its discretion, decide to take no action on a complaint at the gateway stage. Four of those grounds are of no possible application to the current circumstances. The two that are of potential application are:

• (a) the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made is such that an investigation of the complaint is no longer practicable or desirable; or
  

...

(c) the complaint is frivolous or vexatious or is not made in good faith.

[36] Both formulations are disjunctive. Under paragraph (a), investigation of a complaint can be either impracticable or undesirable, although it can be both. Under paragraph (c), the complaint may be either frivolous or vexatious or not made in good faith, although there is potential overlap between the three elements and a complaint may be any combination of them.

[37] There are several aspects of this matter that prompt me to consider taking no action on the applicant’s complaint at the gateway stage. The first and most obvious is that the complaint was made almost seven and a half years after the events giving rise to it.

[38] I acknowledge immediately that there is no statutory time limit on making a professional conduct complaint under the Act. Nevertheless, s 138(1)(a) exists to enable a standards committee or a Review Officer to exercise a degree of constraint on the excessively dilatory pursuit of a complaint.

[39] Although limitation periods under the Limitation Act 1999 are of no technical relevance, the fact that they exist is an expression of the public policy expectation that citizens who believe they have been wronged are expected to exercise whatever remedies are available to them within a reasonable time. This is particularly so where no explanation is offered, and no objectively reasonable explanation is apparent, for the aggrieved person taking no action.

[40] The Committee noted in its decision that the applicant offered no explanation for the significant delay in lodging the complaint. There is similarly no explanation in his review application. Fundamentally, his complaint is that the respondents should have recognised immediately on receiving the file from the Police that there was insufficient evidential basis for the prosecution to proceed.

[41] There is objectively no reason why the applicant could not have formed that view and made his complaint reasonably promptly after the respondents’ brief responsibility for the matter on behalf of the Crown concluded with the Court granting the respondents’ application for the charges to be withdrawn.

[42] From the respondents’ perspective, the difficulty with the passage of time is the difficulty of recollection of the reasoning behind judgement calls made many years before.

[43] The applicant’s complaint ostensibly relies on documentary evidence but, in reality, he is challenging both the reliability of the respondents’ recollections of the views each of them formed between 27 November and 3 December 2014 on the application of the evidential test under the Guidelines to the evidence available to them on the Police file they received. Put simply, it is unreasonable to expect that of the respondents after all this time.

[44] The applicant may well disagree with that but, in my view, he needs to reflect on the fact that it took him seven and a half years to develop the views that he then put forward in support of his complaint. During the same seven and half years, any recollection the respondents would have had of the matter would have been declining.

[45] I do not consider that it is necessarily impracticable to inquire afresh into the applicant’s complaint. The Committee seems to have been able to do so, albeit with some difficulty. For the above reasons, however, I am of the clear view that it is

undesirable in principle to do so and, for the reasons discussed below, there are no countervailing circumstances demanding that an inquiry be undertaken.

[46] The first reason is that the respondents were not representatives of the prosecuting authority that laid the charges. The applicant was charged by the Police following a complaint by the applicant’s employer. The respondents have no responsibility for the fact that he was charged. On his own view of the facts, the supporting evidence, the elements of the charges and his analysis of the law, the applicant considers he should never have been charged. This is not a grievance that he can direct against the respondents.

[47] The second reason is that it is objectively as plain as day that it was the fact of the introduction of the independence of the Crown Solicitor’s office from the Police and the considered application of the Guidelines by the respondents that resulted, within a short space of time (roughly five working weeks), in an assessment that the prosecution was not appropriate and a decision by Mr Y to ensure the charges were withdrawn. Even if there was any substance to the applicant’s assertions of professional misjudgement in the writing of Mrs X’s email of 23 December 2014, this is a clear case of “no harm, no foul”.

[48] The next reason is that a standards committee normally comprises seven decision-makers of whom a minimum of two are lay people. The lay members can be considered to have the keenest appreciation of the consumer protection purpose of the Act and a sensitivity to any potential injustice arising in any particular instance from the power imbalance between State and citizen. It would not be impossible for the applicant to persuade me that a committee so constituted got this all entirely wrong regarding his allegations of improper motivation, bad faith and abusive exercise of power but it is highly improbable.

[49] Fourthly, in making his complaint focused on the application of the evidential test under the Guidelines to the available evidence at the time, the applicant was effectively asking the Committee (and is effectively asking me on review) to decide what a judge would have made of the evidence then available if the prosecution had proceeded to trial. This is not only inappropriate but impossible, which is why the Committee declined to be led down this path. The Committee was not a judge in the criminal jurisdiction and neither am I.

[50] Next, there is the context into which the applicant seeks to locate his complaint so as to make it seem more significant than it is. The applicant’s socio-political views about the systemic misuse of the powers of the State are irrelevant to potential inquiry into the Crown Solicitor’s handling of his prosecution file. They are nevertheless relevant to consideration of the potential vexatiousness of this complaint. The applicant is

perfectly entitled to hold his opinions and to express them. The professional disciplinary process, which is private and confidential, is not the appropriate avenue to do so.

[51] Lastly, there is the unwarranted expression of a complaint essentially about due process and professional judgement as a personalised attack on the professional probity and character of the two respondents and the use of extreme and emotive language to do so.

[52] Both “frivolous” and “vexatious” have legal meanings that are different from their common usage although in neither case is there a statutory definition or any universally accepted legal definition. Both tests exist partly to prevent the wastage of judicial resources on cases that have little or no chance of success.

[53] Expressions of the essence of a frivolous complaint have included not having any serious purpose or value, having no sound basis in fact or law, being unworthy of serious or sensible treatment, lacking in merit, substance or legal basis, manifestly insufficient on its face, not at all important and so obviously unlikely to succeed as not to warrant taking to hearing. The summarised formulation I adopt is that the complaint is one that has no serious purpose or value and/or is so without merit on its face that investigation of it is unwarranted.

[54] The legal meaning of “vexatious” is also slightly different from the dictionary meaning. The difference relates to the relevance of the complainant’s purpose or intention. The dictionary meaning, in this context, is to make a complaint without sufficient grounds to harass the respondent or cause the respondent annoyance, frustration, worry or cost. The legal meaning, in short, is to make a complaint without sufficient grounds that has any of those effects.

[55] As stated in Complainant P v Lawyer H:3

• [9] In Dyson v Attorney-General [1910] UKLawRpKQB 203; [1911] 1 KB 410, 418 (CA), Fletcher Moulton LJ was considering the power of the Court to strike out an action as vexatious and observed that:
  

The Court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to trial would be to allow the defendant to be vexed under the form of legal process when there could not at any stage be any doubt that the action was baseless.

Importantly his honour did not consider that the action must be brought with the intention of “vexing” or annoying the defendant. However where a claim is baseless the effect of it is simply to cause inconvenience to the defendant. It is the fact that it is clearly baseless and therefore has the sole effect of annoying the defendant that makes it vexatious. The intention[s] of the plaintiff (or in this jurisdiction the complainant) are therefore not relevant to this question. Where a

3 Complainant P v Lawyer H LCRO 02/2009.

complaint is brought which is in fact wholly groundless it may be vexatious even though the complainant mistakenly thinks it has merit.

[10] I note also that in s 138(1)(c) the word vexatious can properly be read along with the accompanying phrases of “frivolous” and “not made in good faith”. Although the sentence uses the disjunctive “or” between the concepts, there is considerable overlap in these terms: Cameron v Masters [1998] NZFLR 11.

[11] ... Where proceedings are brought for a collateral purpose this will weigh in favour of them being found to be vexatious: L v W (No 3) [2003] NZFLR 961 per Heath J at para 55 (upheld on appeal [2004] NZFLR 429).

[56] The distinction is not particularly relevant in this instance. The applicant’s glissade from an expression of opinion about the correct application of the Guidelines to a personalised attack on the respondents and the extremity of his language in doing so evidence that his purpose is to vex.

[57] The irony of the applicant making a complaint against the individuals responsible for him not being prosecuted should not be lost on anyone reading this decision.

[58] The applicant’s wide-ranging criticism of the criminal justice system is also an example of the use of the complaints process for a collateral purpose and pointlessly so given that the process is conducted in private.

Decision

[59] I determine that:

• (a) the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made is such that an investigation of the complaint is no longer desirable in terms of s 138(1)(a) of the Act; and
  

(b) the complaint is frivolous in terms of s 138(1)(c) of the Act; and

(c) the complaint is vexatious in terms of s 138(1)(c) of the Act.

[60] Each of those reasons stands independently of the others and any one of them is sufficient reason for the decision I make, which is to take no action on this complaint under ss 211(1)(b) and 137(1)(c) of the Act.

[61] Had it been necessary to do so, I would have taken the alternative procedural avenue available to me of striking out the application for review under paragraphs (a) and (c) of s 205(1) of the Act.

Publication

[62] Section 206(1) of the Act requires that every review must be conducted in private. Section 213(1) of the Act requires a Review Officer to report the outcome of the review, with reasons for any orders made to each of the persons listed at the foot of this decision.

[63] Pursuant to s 206(4) of the Act, a Review Officer may direct such publication of his or her decision as the Review Officer considers necessary or desirable in the public interest. “Public interest” engages issues such as consumer protection, public confidence in legal services and the interests and privacy of individuals.

[64] The position normally adopted by the LCRO is that decisions are published in a form that does not directly identify the parties or others involved in the matter. In this instance, I initially struggled to identify an element of potential public interest in the above terms arising from this complaint and had some concern about the privacy interests particularly of the applicant in being potentially embarrassed by publication of the findings I have made. Anonymisation does address that issue, however, and there may be some public interest benefit in my comments on the application of s 138(1)(a) of the Act.

[65] I am also conscious of the risk that a decision not to publish might be interpreted, wrongly, as a desire to prevent the applicant airing his views on the pervading sickness in the body politic and the lack of integrity and abusiveness of those who hold positions of influence in it. The applicant is entitled to express those views. They are just not relevant to his complaint other than, as I have stated, in assessment of its vexatiousness.

[66] Overall, having had regard to the issues raised by this review, I have concluded that it is desirable in the public interest that this decision be published in a form that does not identify the parties or others involved in the matter and otherwise in accordance with the LCRO Publication Guidelines.

DATED this 4TH day of July 2024

FR Goldsmith

Legal Complaints Review Officer

In accordance with s 213 of the Act, copies of this decision are to be provided to:

Mr TL as the applicant

Mrs RY and Mr SK as the respondents Mr MW KC as counsel for Mr SK [Area] Standards Committee [X]

New Zealand Law Society