C v Legal Complaints Review Officer

[2013] NZHC 2633

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE PLAINTIFF

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7220 [2013] NZHC 2633

BETWEEN

C Plaintiff

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Defendant

AUCKLAND STANDARDS COMMITTEE 2 OF THE

NEW ZEALAND LAW SOCIETY Second Defendant

NEW ZEALAND LAW SOCIETY Third Defendant

Hearing:	9 October 2013
Counsel:	H Laubscher for Applicant ML Broad for Third Defendant
Judgment:	9 October 2013

JUDGMENT OF BREWER J

Solicitors:           Lockhart Legal (Auckland) for Applicant

Kensington Swan (Auckland) for Third Defendant

C v LEGAL COMPLAINTS REVIEW OFFICER [2013] NZHC 2633 [9 October 2013]

[1]      The plaintiff seeks judicial review of aspects of a determination by the first defendant against him.   The determination was issued on 25 February 2011 and followed an application for review of a determination by the second defendant.  The plaintiff takes issue with the first defendant increasing a fine to which he was subject from $2,500 to $12,000.  The plaintiff also takes issue with the first defendant’s decision to remove restrictions imposed by the second defendant on publication of the plaintiff’s identifying details.

[2]      The first defendant, second defendant and third defendant abide the decision of the Court, save that the third defendant reserves the right to make submissions on two matters which, as events have transpired, I do not need to address.

[3]      In  opening  his  submissions  on  behalf  of  the  plaintiff  this  morning, Mr Laubscher told me that the decision permitting publication  of the  plaintiff’s identifying details cannot stand.  That is because such a decision can follow only if there has been a censure.  There was no censure, nor any mention of censure in the impeached determination. This issue has been the subject of a recent decision of the

Court of Appeal.1

[4]      Mr  Broad,  who  appears  for  the  third  defendant,  accepts  readily  that Mr Laubscher is correct in the submission he makes.   In the absence of censure, there can be no publication in the way that the first defendant approached the matter. I accept that.

[5]      Mr Laubscher then had to consider his client’s position given that this is an application for judicial review.   If his application generally were to be successful then the usual remedy would be for me to quash the decision of the first defendant and require him to reconsider the review application from the beginning.  The risk for the plaintiff is that the first defendant might, on a reconsideration, decide to enter a censure.

[6]      I have given Mr Laubscher the opportunity to take instructions.  As a result, Mr Laubscher submits that I should quash that part of the first defendant’s decision

1      The New Zealand Law Society v B [2013] NZCA 156.

relating to the publication of identifying details of the plaintiff.  He would then withdraw the application for review of the quantum of the fine.  Mr Broad has no submissions to make in opposition.

[7]      Accordingly,  I  grant  leave  to  the  plaintiff  to  withdraw  that  part  of  the application for judicial review which contests the quantum of the fine.  I grant the application for judicial review of the decision permitting identifying particulars of the plaintiff to be published.  That decision is quashed.  There is no need for that matter to be reconsidered given the lack of legal basis for the decision in the first place.

[8]      In view of the circumstances, and having canvassed the matter first with counsel, I make no order for costs. Costs will lie where they fall.

Brewer J