C v The Legal Complaints Review Officer

[2012] NZHC 3528

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE APPLICANT INCLUDING THE IDENTITY OF THE LAW FIRM WHERE SHE WORKS, THE NATURE OF THE LEGAL WORK SHE UNDERTAKES, THE DETAILS OF THE COMPLAINT AND RESPONSES TO IT

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-812 [2012] NZHC 3528

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF a decision made pursuant to the provisions of the Lawyers and Conveyancers Act 2006

BETWEEN  C Applicant

ANDTHE LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

PETER LLOYD MACHIRUS Second Respondent

THE STANDARDS COMMITTEE OF THE CANTERBURY/WESTLAND BRANCH OF THE NEW ZEALAND LAW SOCIETY

Third Respondent

Hearing:         13 November 2012

Counsel:        C A McVeigh QC for applicant P N Collins for first respondent Second respondent in person

G H Nation for third respondent

Judgment:      19 December 2012

RESERVED JUDGMENT OF DOBSON J

C v THE LEGAL COMPLAINTS REVIEW OFFICER HC CHCH CIV-2012-409-812 [19 December 2012]

Contents

The Standards Committee determination ..................................................................................... [10] The LCRO’s decision ...................................................................................................................... [14] Grounds for judicial review ............................................................................................................ [17] The scope of the LCRO’s powers ................................................................................................... [22] Natural justice/legitimate expectation ........................................................................................... [60] Remaining grounds of challenge .................................................................................................... [70] The position of Mr Machirus ......................................................................................................... [72] Position of the Standards Committee ............................................................................................ [76] Outcome ........................................................................................................................................... [79] Costs ................................................................................................................................................. [81]

[1]      In this proceeding, the applicant law practitioner (the practitioner) seeks to challenge by way of judicial review the outcome of a review initiated by the practitioner before the first respondent, the Legal Complaints Review Officer (LCRO).  The practitioner contends that the outcome was unlawful on a number of grounds.

[2]      To assess the challenges, it is necessary to traverse the factual background in a little detail.  The second respondent (Mr Machirus) was one of a number of alleged offenders facing a District Court trial on charges of burglary and receiving.   The prosecution case depended in substantial measure on the evidence of a co-offender (Mr L) who had pleaded guilty to his involvement in the matter at an early stage, and was giving evidence for the Police.  At his sentencing in relation to this offending, Mr L was given credit for early guilty pleas and also for the assistance he was giving to the Police which led to additional charges being laid.

[3]      Mr Machirus (acting for himself) and counsel for his co-accused challenged the admissibility of the evidence Mr L was to give at their trial, on the basis that Mr L had been offered an inducement to give that evidence.  Mr Machirus’s initial concern in this regard was that the most serious of other unrelated charges that were pending against Mr L had been reduced from home invasion to a charge of male assaults female, to which Mr L had then pleaded guilty, and that compromises had also been reached on the remainder of that group of unrelated charges.  Mr Machirus was  apparently  suspicious  that  a  deal  had  been  struck,  under  which  Mr L had promised to co-operate in giving evidence against Mr Machirus and others, in return for a reduction in that most serious of the unrelated charges that Mr L was facing.

Those matters were being dealt with in the District Court in another South Island centre.   Although Mr L entered pleas on the reduced and rationalised number of charges, his sentencing on them was deferred until after he had given evidence for the Police against Mr Machirus and others.

[4]      The practitioner was appearing for the Crown prosecuting the charges against Mr Machirus and his co-accused, and was responsible for opposing the challenge to the admissibility of Mr L’s evidence.  The issue of whether Mr L had been offered an inducement to give evidence extended to any indication that he would be sentenced on a more lenient basis for the convictions in the unrelated offending, on account of his preparedness to give evidence for the Police at the trial of Mr Machirus and his co-accused.

[5]      The practitioner and others in her office made enquiries on that topic after a form of sentencing indication had been given to Mr L at the time his sentencing was adjourned.   The practitioner understood from counsel appearing for Mr L that he would not be receiving any discount on the unrelated sentencing on account of his assistance in giving evidence for the prosecution in the case against Mr Machirus and others.   Mr L also shared that view, apparently in reliance on his counsel’s interpretation of the comments that had been made by the Judge when giving a sentencing indication.

[6]      However,  before  reporting  to  the  accused  and  to  the  Judge  hearing  the challenge to the admissibility of Mr L’s evidence, the practitioner was also provided with a transcript of the Judge’s comments.  Although there was a measure of inconsistency  between  observations  made  by  the  Judge  at  various  points  when Mr L’s sentencing was adjourned, one part of those comments made it clear that a discount  was  contemplated  for  Mr L’s  co-operation  with  the  Police  in  giving evidence in the case against Mr Machirus and others.

[7]      The practitioner did not provide the transcript of comments by the Judge in Mr L’s case.   Instead, she summarised what she understood to be the effect of the comments in a letter to Mr Machirus, counsel for his co-accused and copied to the

Court.  The practitioner’s advice set out one portion of the observations made by the

District Court Judge as follows:

Secondly, I record that I have indicated the fashion in which I intend to sentence, and my reason for doing so is that it must not be thought that the sentence that I am going to impose would be influenced in any way by the course of conduct which may occur in Christchurch.  In other words, [L] will not influence the sentence that is to be imposed by his conduct in Christchurch.  Am making that clear as much for [L’s] protection and so that the prosecution are not left in a  position where it is suggested that the evidence that he may give may be influenced – that he may hope to gain some advantage in these proceedings by the evidence that he may give.

[8]      Those comments had been preceded by other ones that were not reflected in the practitioner’s advice. They were to the effect that Mr L’s involvement in a trial in Christchurch involved what was to transpire being “very much to his credit” and when projecting the likely length of a prison sentence, “… and of course significant discount for the matter which involves the Christchurch trial”.   The comments continued:

… That plainly [L] is in custody and will remain so.  He has to give evidence in Christchurch.  If he is a sentenced prisoner, his safety may be in issue.  I am told that he has enhanced safety if he is a remand prisoner.  Accordingly what is sought is a further remand before sentence is imposed until after the Christchurch case.

[9]      Mr L’s  evidence  was  ruled  admissible.    Mr Machirus  was  convicted  but thereafter discovered that Mr L was given a discount on his subsequent sentencing on  the  unrelated  convictions.    Mr Machirus  pursued  an  appeal  to  the  Court  of Appeal, which accepted his complaint that the District Court had been misled as to the prospect of inducements for Mr L when ruling his evidence admissible.1    The Court of Appeal considered that the existence of an inducement was clear at the time the practitioner represented to those interested in the issue that there was no inducement, and that such non-disclosure constituted a miscarriage of justice.2   The

convictions were set aside and the Police subsequently elected not to pursue a retrial.

1      R v Machirus [2008] NZCA 477.

2 At [21].

The Standards Committee determination

[10]     Mr Machirus  then  pursued  a  complaint  with  the  Law  Society  about  the practitioner’s conduct.   His complaint was considered by the third respondent (the Standards Committee).  The matter had extended over a lengthy period, even at that point.  The trial of Mr Machirus and his co-accused (which was itself a retrial of one that had to be aborted the previous year) commenced at the end of July 2007 and concluded in September 2007.  The relevant sentencing indication had been given to Mr L  on  31 May  2007  and  he  was  subsequently  sentenced  on  the  unrelated convictions (a week or so after he had given his evidence) on 29 August 2007.  The Court  of  Appeal’s  judgment  allowing  Mr Machirus’s  appeal  was  delivered  in November 2008 and Mr Machirus’s complaint was lodged against the practitioner (and  additionally against others but their  position is not relevant  in the present proceedings) in May 2009.

[11]     Thereafter, the Standards Committee considered written materials submitted to  it  by  the  practitioner  and  Mr Machirus,  and  issued  a  decision  initially  in September 2010, following that with a re-issued decision on 17 November 2010.

[12]     The Standards Committee rejected the argument for the practitioner that the misstatement  in  relation  to  an  inducement  for Mr L in  giving  evidence  was  an inadvertent error of judgment.   Rather, the failure to provide the transcript of the sentencing indication could not be described as a minor error of judgement, particularly in light of the serious consequences of the argument for exclusion of Mr L’s evidence being heard on a fundamentally incorrect basis.  Mr Machirus had been convicted and had served 14 months in prison.  The Standards Committee had regard to the Court of Appeal’s view of the omission which treated it relatively seriously.

[13] The Standards Committee’s analysis of the consequences of its findings was complicated by the need to have regard to transitional provisions between the former Law Practitioners Act 1982 (the 1982 Act) and the Lawyers and Conveyancers Act

2006 (the Act).  The Standards Committee concluded that the practitioner’s conduct

did not amount to either professional misconduct or conduct unbecoming, but that

the conduct was negligent to a degree that brought the profession into disrepute. Those were forms of misconduct provided for under the 1982 Act.   If the conduct had occurred after 1 August 2008 so that it was governed by the new statutory regime, a finding of unsatisfactory conduct would have been made.  In terms of the transitional provisions, the ultimate conclusion was a finding of unsatisfactory conduct on the part of the practitioner pursuant to s 152(2)(b) of the Act.   The Standards Committee reserved all questions of penalty and publication of the matter for further submissions.  However, no further steps have been taken by the Standards Committee because the practitioner then instituted an application for review by the LCRO.  That application was filed on 20 October 2010 and was heard on 19 July

2011, leading to a reserved decision being given on 18 January 2012 (the LCRO

decision).3

The LCRO’s decision

[14]     The LCRO’s decision contained a relatively thorough review of the evidence, an analysis of the Standards Committee’s consideration of Mr Machirus’s complaint, and conclusions on the review.   The LCRO’s conclusions were that the Standards Committee’s findings adverse to the practitioner were warranted, and the LCRO could  find  no  basis  for  viewing  the  conduct  as  having  any  lesser  degree  of

seriousness or culpability than was judged by the Standards Committee.4

[15]     Most relevantly for the present judicial review application, the LCRO went on to observe that a relevant issue had not been raised by either the practitioner or Mr Machirus, which  was one that she considered ought to be addressed by the Standards Committee.   This was the concern that insufficient attention had been given by the Standards Committee to the practitioner’s duty to the Court.   The LCRO’s   decision   expressed  surprise   that   the   Standards  Committee   did   not specifically address the practitioner’s duty in a manner that included her duty as an officer of the Court.  The LCRO considered that the Standards Committee ought to

have addressed this as a separate and distinct conduct issue.5    Because of that, the

3      C v Machirus LCRO 216/2010 and 253/2010, 18 January 2012.

4 At [71].

5 At [80].

LCRO concluded that the Standards Committee’s inquiry was not full and complete. She therefore vacated the Standards Committee’s determination of unsatisfactory conduct and directed the Standards Committee:

(a)       To conclude its investigation by undertaking an enquiry into that part of the complaint that gives rise to the professional obligations owed by the Practitioner to the Court, and to determine whether any disciplinary issues arise in respect of that complaint, and

(b)       After considering all matters arising from the complaints and taking into account all matters, to decide what the appropriate outcome should be.

[16]     The  LCRO  acknowledged  that  the  issue  of  breach  of  a  practitioner’s obligations as an officer of the Court, when appearing in Court proceedings, was a matter that should relevantly be measured by practitioners, and explicitly recorded that her reference back of the matter to the Standards Committee was “not intended to signal any particular outcome as this is the responsibility of the Standards Committee”.6   However, Mr McVeigh QC submitted persuasively that it was implicit in the reference back that the LCRO considered that a more serious finding than unsatisfactory conduct could well be warranted.   In that sense, the judicial review

was argued on the premise that the LCRO decision to refer the matter back to the Standards Committee was an initiative with actual or potential adverse consequences for the practitioner.

Grounds for judicial review

[17]     The first two of the six heads of the practitioner’s challenge to the LCRO’s decision  overlap,  and  can  be  considered  together.    They  were  that  the  LCRO breached relevant obligations of natural justice in ordering an outcome that could not reasonably have been anticipated, and in respect of which the practitioner ought to have been given warning with an opportunity to make submissions.  This criticism was allied to the second claim for breach of legitimate expectation, in that the nature of  proceedings  before  the  LCRO  justified  an  expectation  on  the  part  of  the

practitioner that she would be advised in advance of any possible adverse outcome of

6 At [92].

the hearing.   This claimed expectation arose particularly in light of the statutory provisions and certain guidelines for parties to review hearings.

[18]     The third head of challenge was that the LCRO had made a series of mistakes of law.  This included a criticism that the LCRO misdirected herself as to the nature of her jurisdiction in that she assessed the Standards Committee’s decision for error, when arguably her review ought to have been conducted on a wider basis requiring her to form an independent view of the merits.  In addition, it was argued that the permissible outcomes were confined to determinations under either s 205 or s 211 of the Act, and that the manner in which the review occurred did not conform with ss 209 and 213 of the Act.   In addition, the LCRO was  alleged to  have failed properly to apply provisions in ss 351 and 152 of the Act.

[19]     The next head of challenge raised alleged mistakes of fact.  Such criticisms are unlikely to be determinative in a judicial review of this type.

[20]     Next was a series of criticisms that the LCRO had failed to take into account relevant considerations and had taken into account irrelevant considerations. Finally, it was pleaded that the LCRO’s decision was unreasonable in the administrative law sense in that it was not one that any reasonable LCRO, correctly directed on the law, could have made.

[21]     It is appropriate to address the third of these grounds first because assessing the challenge to the scope of the LCRO’s powers and manner of dealing with such a review provides context for consideration of the more case-specific criticisms.

The scope of the LCRO’s powers

[22]     Part 7 of the Act deals with complaints and discipline.  It contains extensive provisions for:

the making of complaints in respect of practitioners; Standards Committees of lawyers to consider complaints;

the separate office of an LCRO;

provisions  dealing  with  the  scope  of  powers  of  an  LCRO  and  the procedure that is to apply on review; and

separate provisions in relation to the Disciplinary Tribunal established by

the Act.

[23]     The LCRO cannot be a practising lawyer or conveyancing practitioner.7   He or  she  has  the  powers  of  review  conferred  by  the Act,  and  is  to  promote  in appropriate cases the resolution of complaints by negotiation, conciliation or mediation.  Those who make complaints against practitioners and persons in respect of whom complaints are made, and where they have been the subject of a determination  by a  Standards Committee,  may apply to  the  LCRO for review.8

There is no right of appeal from a decision of the LCRO.  A consequence of that is

the developing jurisprudence in proceedings such as the present, seeking judicial review of determinations of the LCRO.

[24]     In   terms   of  process,   complaints   are  to   be  considered   by  Standards Committees on the papers.  If review is pursued before the LCRO, then a hearing is to occur, unless the parties consent to the matter being dealt with on the papers.9

Reviews are to be conducted in private, and the LCRO must perform his or her functions and duties in a way that is consistent with the rules of natural justice.10

The LCRO is required to conduct reviews with as little formality and technicality as is permitted by the requirements of the Act, a proper consideration of the review and the rules of natural justice.11

[25]     The LCRO can seek evidence or information of his or her own initiative, but anything obtained must be disclosed to the parties to the review before the LCRO.12

7 Lawyers and Conveyancers Act 2006, s 190.

8 Lawyers and Conveyancers Act 2006, s 194.

9 Lawyers and Conveyancers Act 2006, s 206.

10 Lawyers and Conveyancers Act 2006, s 206(3).

11 Lawyers and Conveyancers Act 2006, ss 200.

12 Lawyers and Conveyancers Act 2006, s 208.

In any case where an adverse comment is to be made, the person concerned must have been given a reasonable opportunity to be heard.13

[26]     The procedure that is followed by the LCRO has been explained in published guidelines intended to be a plain language explanation.  Those guidelines explain in some detail how hearings are to occur and describe a party’s right to be personally heard and to make submissions.  They also explain the range of orders that may be made by the LCRO.  In his submissions for the LCRO, Mr Collins submitted that the guidelines are a reliable source that puts a participant in a review proceeding on notice of the range of consequences that might ensue.

[27]     The alleged errors of law included a criticism that the LCRO’s purported vacating of the Standards Committee determination, and reference back to it of an aspect of Mr Machirus’s complaint, went beyond the range of options  available under the Act.

[28]     The power to direct reconsideration is in the following terms:

209     Power  to  direct  reconsideration  of  complaints,  matters,  or decisions

(1)      The Legal Complaints Review Officer may—

(a)       direct a Standards Committee to reconsider and determine, either generally or in respect of any specified matters, the whole or any part of the complaint, matter, or decision to which any application for review relates:

(b)      give  to  a  Standards  Committee,  in  any  case  where  the  Legal

Complaints Review Officer gives a direction under paragraph (a),—

(i)       his or her reasons for the direction; and

(ii)      such other directions as he or she thinks just as to the reconsideration or otherwise of the whole or any part of the complaint, matter, or decision that is referred back for reconsideration:

(c)       request, in giving a direction under paragraph (a), that the Standards Committee supply a follow-up report to him or her when it has complied with the direction.

…

13 Lawyers and Conveyancers Act 2006, s 214.

[29]     The LCRO also has the following powers:

211      Powers exercisable on review

(1)       The  Legal  Complaints  Review  Officer  may,  on  a  review  under section 193, do any 1 or more of the following things:

(a)      confirm, modify, or reverse any decision of a Standards Committee, including any determination, requirement, or order made, or direction given, by the Standards Committee (or by any person on its behalf or with its authority):

(b)       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.

(2)       Section 189 applies, with all necessary modifications, to any order made or power exercised under this section by the Legal Complaints Review Officer as if that order had been made or that power had been exercised by a Standards Committee.

(3)       Nothing in this section limits section 209, section 210, section 212, or section 215.

(Section 189 provides for the enforcement of orders made by Standards Committees, irrespective of whether the person against whom the order is made remains a practitioner or not.)

[30]     Further, as is often the case in providing powers for statutory bodies, the Act has an additional section in the following terms:

202      General powers

The Legal Complaints Review Officer has, in addition to the powers conferred on the Legal Complaints Review Officer by this Act, all such powers as are reasonably necessary or expedient to enable the Legal Complaints Review Officer to carry out his or her functions under this Act.

[31]     Another potentially relevant power for the LCRO is that in s 205, permitting the LCRO to decline to make any further inquiry or any further investigation in conducting  a  review  of  a  determination  that  had  been  made  in  relation  to  a complaint.

[32]     Mr McVeigh argued that the LCRO purported to exercise powers in this case that were not available to her under ss 205 and 211.  He argued that the power to

direct reconsideration by a Standards Committee under s 209 is not available as an alternative outcome of the review, but is limited to resolving situations that might arise in the course of undertaking a review.

[33]     In the limited response to this argument on behalf of the LCRO, Mr Collins disputed that the evident purpose of the provisions empowering the LCRO could ever be advanced by the fine distinctions Mr McVeigh sought to draw.  Mr Collins characterised the structure of the provisions as intending to afford flexibility to the LCRO, consistently with the requirement that he or she avoid formality and technicality.    Further,  s 209  would  be  worded  differently  if  it  was  confined  to circumstances where a review was disrupted part way through by a perceived need for a matter to be referred back to a Standards Committee.

[34]     I accept Mr Collins’ submission on these points.  There is certainly nothing in the terms of s 209 that suggests it is confined as Mr McVeigh contended.  It would be antithetical to the statutory intention of promoting flexibility to deprive the LCRO of the jurisdiction to direct reconsideration as the outcome of her or his review when, on  Mr McVeigh’s  argument,  that  power  does  exist  during  the  LCRO’s  review process.  Accordingly, I am satisfied that the LCRO had the power to deal with the review brought by the practitioner by referring the matter back to the Standards Committee.

[35]     Mr McVeigh  also criticised the LCRO’s reliance on s 209 in making the orders that she did.   Mr McVeigh argued that s 209 did not give any power to the LCRO to “vacate” a decision of the Standards Committee.  Further, that the range of powers under s 211 when a review had been determined did not include powers to vacate and refer back to a Standards Committee, so that these orders were made without jurisdiction.

[36]     Mr McVeigh argued that a review by the LCRO has to be determined by a decision under either s 205 or s 211 of the Act.  He referred to the terms of s 213 of the Act that require the LCRO to report on the outcome of every review to the Standards Committee that had dealt with the matter, the applicant for review and

others who were entitled to apply for the review, as well as the Law Society.  Section

213(2) provides:

The report of the outcome of a review must state the reasons for any decision made, as a result of that review, under section 205 or section 211.

[37]     Mr McVeigh argued that that reflects Parliament’s intention that all reviews must be determined under one section or the other.  His interpretation contends for a wording of the provision such as “The report of the outcome of each review must state reasons under s 205 or s 211 for any decision made as a result of that review”.

[38]     I do not read s 213(2) as requiring every decision on a review to be made under either s 205 or s 211.  Given the punctuation in the subsection, it could equally have been expressed as an obligation to state the reasons for any decision made under s 205 or s 211, as a result of the particular review in issue.   The particular phrasing that was used does not suggest that the sole provisions on which a review can be determined are those two sections, but that where decisions are made under those sections, then the reasons must be stated as required.   For instance, s 212 empowers  the  LCRO  to  frame  an  appropriate  charge  and  lay  it  before  the Disciplinary Tribunal if she or he decides that any complaint or matter should be considered by that Tribunal.  That is a power that is not limited in any way by the

terms of s 211,14 and could conceivably represent the outcome of a review reached in

reliance on sections of the Act other than ss 205 or 211.  It follows that s 213 would require a report of that particular outcome, but not reasons for the decision under s 205 or s 211.

[39]     As   to   the   absence   of   a   power   to   vacate   a   Standards   Committee’s determination, Mr McVeigh’s argument depends on the proposition that the LCRO cannot exercise powers under more than one section at a time, and cannot order any variant  on  the  specific  outcomes  authorised  in  the Act.    That  is  unrealistic,  as “vacating” a decision of the Standards Committee is reasonably within the range of powers given to the LCRO under s 211(1)(a).  A finding that the LCRO does not

have the power to vacate a previous Standards Committee determination due to the

14 As provided in Lawyers and Conveyancers Act 2006, s 211(3).

absence of an explicit statutory reference would frustrate the sensible workings of the LCRO, resulting in unnecessary technicality and formality.

[40]     The scope of the LCRO’s powers in s 211(1)(a) is to be assessed in light of the  general  powers  in  s 202  for  the  LCRO  to  exercise  all  such  powers  as  are reasonably necessary or  expedient  to  enable the  LCRO to  carry out  his  or her functions under the Act.   It would frustrate the reasonable operation of s 202 and s 211(1)(a) if the power to “… confirm, modify or reverse …” decisions of Standards Committees was interpreted literally so as to preclude reasonable variations on those outcomes,  as  required  in  the  circumstances  of  any  case.     Given  that  s 209 contemplates the LCRO having power to send matters back to the Standards Committee, I am satisfied that the range of powers in s 211(1)(a) should not be read down so as to deny the LCRO a jurisdiction to refer a matter back to a Standards Committee on the basis that their determination up to that point is vacated.

[41]     As Mr Collins suggested, the essence of what is required here is a fresh consideration by the Standards Committee.   For the avoidance of doubt, it was appropriate to “clear the slate” in a way that did not preclude the Standards Committee from reaching the same ultimate outcome, once it had regard to the additional component as directed by the LCRO.

[42]     Mr McVeigh also challenged the LCRO’s implicit approval of the manner in which the Standards Committee had allegedly misapprehended the effect of certain transitional provisions.  The Act came into force on 1 August 2008 and provided in s 351(1) for complaints in relation to conduct before the commencement of the Act in the following terms:

351     Complaints about conduct before commencement of section

(1)       If   a   lawyer   …   is   alleged   to   have   been   guilty,   before   the commencement of this section, of conduct in respect of which proceedings of a disciplinary nature could have been commenced under  the  Law  Practitioners  Act  1982,  a  complaint  about  that conduct may be made, after the commencement of this section, to the complaints service established under section 121(1) by the New Zealand Law Society.

[43]     Mr McVeigh argued that s 351(1) did no more than act as a filter in respect of the character of complaints that could be raised under the Act, in respect of conduct by a practitioner prior to its coming into force.  Before a Standards Committee could assume jurisdiction, to the extent that a complaint related to conduct before the Act came into force, then it would have to be satisfied that, had the matter been dealt with under the 1982 Act, then the complaint related to conduct in respect of which proceedings of a disciplinary nature could have been commenced under the 1982

Act.  Once that threshold was established, then the complaint was thereafter to be considered and determined under the Act, and it was not appropriate to consider whether a disciplinary charge under the old regime would have been made out.

[44]     Consistently with this analysis, Mr McVeigh cited the limited options open to a Standards Committee in making determinations, as provided in s 152(2) of the Act. Those options include a determination that the complaint, or any issue involved in a complaint, be considered by the Disciplinary Tribunal or a determination that there had been unsatisfactory conduct on the part of a practitioner or others subject to the complaints procedure under the Act.

[45]     The concept of unsatisfactory conduct covers four types, each defined in s 12 of the Act.  In the present case, the Standards Committee did not analyse which form of unsatisfactory conduct was made out.  Instead, the Standards Committee analysed which of the disciplinary offences under s 106(3) of the 1982 Act would have been made out, if that Act still applied.  It is apparent that this analysis reflects the way issues were joined when the matter was before the Standards Committee, including

on behalf of the practitioner.15

[46]     The Standards Committee’s reasoning was that the two most serious types of disciplinary offence in s 106(3) of the 1982 Act could not have been made out, but that the conduct in issue would have constituted negligence on the practitioner’s part of such a degree as to bring the profession into disrepute.16   Therefore, proceedings

of a disciplinary nature could have been brought under the 1982 Act.

15     Mr McVeigh’s argument on behalf of the practitioner against a finding of breach of s 106(3)(c)

of the 1982 Act are considered in the Standards Committee’s decision at [157] and [158].

16     Determination  of  the  Canterbury-Westland  Standards  Committee  of  Complaints  1006/09,

1007/09, 1010/09 and 1011/09, 16 September 2010 at [169]-[171].

[47]     From that point, the Standards Committee reasoned that because the higher threshold  applicable  under  the  1982 Act  had  been  made  out,  had  the  conduct occurred after 1 August 2008 a finding of unsatisfactory conduct would have been made.  On that basis, the Committee determined that there had been unsatisfactory conduct on the part of the practitioner under s 152(2)(b) of the Act.

[48]     The next component of this argument for the practitioner was that the LCRO ought to have appreciated this error in approach by the Standards Committee and undertaken the review assessing the complaint by the current standard of the various defined forms of unsatisfactory conduct.   It was not entirely clear whether this criticism of the Standards Committee’s approach was indeed put to the LCRO on behalf of the practitioner, inconsistently with the basis on which the matter was apparently argued on the practitioner’s behalf before the Standards Committee.

[49]     The LCRO decision does refer to criticisms on behalf of the practitioner of the  reasoning  process  relied  on  by  the  Standards  Committee  in  arriving  at  its decision that unsatisfactory conduct had been made out.17     Certainly, the LCRO confirmed that it could find no error in the approach the Standards Committee had adopted.   I did not receive any submissions on behalf of either the LCRO or the Standards Committee responding to this aspect of Mr McVeigh’s criticism that the jurisdiction was assumed.

[50]     I accept Mr McVeigh’s analysis as to how the transitional provisions applied. The categories of potential disciplinary charge under the 1982 Act do not have relevance when any complaint is considered under the Act, irrespective of when the conduct complained of occurred.   Before the Standards Committee can consider a complaint in respect of conduct that occurred before 1 August 2008, the threshold issue needs to be addressed that, had it been governed by the 1982 Act, it was conduct of a type that could have been the subject of proceedings of a disciplinary nature.   Once that point is reached, then the conduct  is treated as subject to a complaint under the Act, and is to be considered by a Standards Committee under current  standards  and  in  light  of  the  range  of  determinations  that  a  Standards

Committee could make in relation to the complaint under s 152(2) of the Act.

17     C v Machirus at [67]-[77].

[51]     However, I am not satisfied that the practitioner has been prejudiced by the circumstances in which the LCRO failed to conduct her review on the different basis Mr McVeigh now argues for.  Certainly, issues were joined for the practitioner before the Standards Committee on the legal approach it adopted, and it is unclear whether the point now taken in the judicial review was indeed put in the same terms to the LCRO.

[52]     In  any  event,  in  terms  of  the  relative  seriousness  of  criticisms  of  a practitioner’s  conduct,  it  was  appropriate  for  the  Standards  Committee  to  treat conduct  that  it  found  would  have  brought  the  profession  into  disrepute as  also constituting unsatisfactory conduct. Accordingly, I am not satisfied that this error, on its own, would warrant an order requiring the LCRO’s decision to be reconsidered.

[53]     In addition to these various arguments that the LCRO had misconstrued the scope of powers available to her, Mr McVeigh also argued that she conducted the review  on  too  limited  a  basis.     He  argued  that  she  assessed  the  Standards Committee’s determination by looking for identifiable error which deflected her from considering the issues afresh and forming her own view.  Mr McVeigh cited the decision in Deliu v Hong to support his argument that the LCRO should not have approached the review exercise on terms that she was committed to accepting the

findings of the Standards Committee unless it had committed an error.18   The point

was addressed in Deliu in the following terms:19

In my view 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.

[54]     Mr McVeigh  cited  numerous  paragraphs  in  the  LCRO’s  decision  that

reflected the limited analysis of searching for error, rather than conducting an independent evaluation of the evidence.  He contended that those paragraphs were

18     Deliu v Hong [2012] NZHC 158.

19     At [41] (citations omitted).

the essence of the justification for the outcome the LCRO reached, and that the broader task required of the LCRO was not reflected in the comment:20

My review of the evidence has led me to independently reach the same conclusions as were reached by the Committee.

[55]     I am not satisfied that the LCRO misdirected herself as to the appropriate scope of the review.  Having regard to the whole of the decision, I am satisfied that there are sufficient examples of an analysis and conclusion of various issues that are independent of the views of the Standards Committee so as to constitute the independent review that is necessary to discharge the statutory function.

[56]     For instance, on the nature of the practitioner’s error in not disclosing the prospect of a discount on Mr L’s sentencing, the analysis in [52] of the LCRO decision reflects an independent analysis leading to the concluding sentence:

In these circumstances it is my view that any argument for a limited scope for the letter is not supportable, and I accept the Committee’s view was supported by the evidence.

While the conclusion is aligned with that of the Standards Committee, that comment is preceded by the independent analysis that could reasonably be expected.

[57]     Similarly, the analysis on the extent of the obligation on prosecuting counsel to disclose matters relevant to an interlocutory argument.  This matter had been put in  issue  on  behalf  of  the  practitioner  and  was  independently  analysed  by  the LCRO.21

[58]     Reflecting on the extent of independent analysis in the decision, I am unable to accept Mr McVeigh’s somewhat cynical criticism of the explicit reference to an independent review in [66] of the LCRO decision.  I am satisfied that the decision reflects the result of an independent analysis and accordingly the criticism that it was approached  from  the  incorrect  standpoint  of  seeking  error  in  the  Standards

Committee’s determination cannot be made out.

20     C v Machirus at [66].

21 At [54].

[59]     Having considered and dismissed the challenges to the manner in which the LCRO treated her jurisdiction within the statutory context, it is appropriate to next consider the criticisms that she conducted the proceeding before her in breach of the practitioner’s rights to natural justice, and in breach of the practitioner’s legitimate expectations as to process.

Natural justice/legitimate expectation

[60]     The  Act  recognises  the  obligation  for  the  LCRO  to  conduct  matters consistently with the rules of natural justice,22  and the LCRO’s ability to conduct reviews with as little formality and technicality as possible is subject to any constraints that may be imposed by the rules of natural justice.23

[61]     It  is  not  useful  to  propound  any  minimum  standards  that  might  apply uniformly in complaints proceedings, and the content of obligations on a decision maker will depend on the facts and circumstances, and the context in which they arise.24    The guidelines describing the procedure for the LCRO provide indications as to the standards of natural justice that are to apply.   Those indications are also relevant  to  the  extent  that  parties  in  a  review  before  the  LCRO  might  have  a legitimate expectation of certain procedural standards.  In this regard, clause 26 of the guidelines states that all affected parties have the right to be personally heard by

the LCRO.

[62] A further indication of the standards expected is the obligation imposed by s 214 of the Act that precludes the LCRO from making any comment adverse to any person in a decision or report issued under the Act, unless that person has been given a reasonable opportunity to be heard. The terms of that section do not explicitly require a person to be aware of the nature of any adverse comment that is in prospect when afforded an opportunity to be heard. However, in general terms at least that is

a reasonable implication of what is expected.

22 Lawyers and Conveyancers Act 2006, s 206(3).

23 Lawyers and Conveyancers Act 2006, s 200(c).

24     For example, Birss v Secretary for Justice [1984] 1 NZLR 513 (CA) at 516.

[63]     Mr McVeigh submitted that a right to be heard includes a requirement of notice of the potential outcomes of the decision-making process.  An opportunity to be  heard  is  not  a  full  opportunity  if  submissions  cannot  be  made  in  the  full knowledge of the possible consequences of a Tribunal’s decision.25   The issue here is whether the outcome decided on by the LCRO was one that ought reasonably to have been anticipated by the practitioner or whether it was out of the ordinary in a

respect that required the practitioner to be given notice so as to enable consideration of a response to the proposed course of action.

[64]     Mr Collins argued that full consideration of the guidelines should have put the practitioner on notice of a range of outcomes including a direction that the matter be  reconsidered  by  the  Standards  Committee  and  that  its  previous  decision  be vacated. A rider to the Standards Committee’s determination included routine advice of the entitlement of parties to the proceedings before the Standards Committee to apply to the LCRO for a review.  That advice included the statement that on review, the LCRO may direct the Standards Committee to reconsider the whole or any part of the complaint.   In addition, para 50 of the guidelines on the procedures of the LCRO raised the same point in the following terms:

The LCRO may refer a matter back to a Standards Committee for further consideration either generally or in respect of any specific matter.  Such an order is most likely to be made where there has been some procedural flaw or  omission  in  the  process  of  the  Standards  Committee  which  can  be rectified by a reconsideration of the matter.

[65]     Mr Collins submitted that that is precisely what has occurred here in that the LCRO identified a concern that there had been an omission in the Standards Committee’s process (ie in not considering any discrete consequences of the practitioner’s conduct being in breach of her obligations as an officer of the Court), so that the LCRO’s determination was within the predictable options.

[66]     As against that, the LCRO decision acknowledges that the direction for the

Standards Committee to reconsider the matter arose out of a concern not addressed by either the practitioner or Mr Machirus:26

25     Citing Auckland Boxing Association Inc v New Zealand Boxing Association Inc [2001] NZAR

847.

26     C v Machirus at [77].

My review has led me to a view of the Committee’s inquiry that was not

raised by either of the review applicants.

[67]     In addition, the practitioner deposed in an affidavit in support of the judicial review:

At no stage did [the LCRO] raise this as a possibility and ask me to make any submissions in relation to it: either as to whether it was a legally permissible course of conduct, or indeed whether, in that event, it was a course of conduct that should be adopted.

[68]     In the factual circumstances pertaining here, I accept that the form of orders made by the LCRO were not anticipated by or on behalf of the practitioner, and that it was reasonable in the circumstances for the practitioner to be taken by surprise by it.  I have had regard to the practitioner not being forewarned as to the outcome, the importance of the potential adverse consequences that could flow from the orders made, and the possible existence of arguments that may have been available to the practitioner to dissuade the LCRO from the course she adopted.   In those circumstances, I consider that the absence of any warning about the prospect of the outcome that was ordered amounted to a material breach of the obligations of natural justice as they applied in this situation.

[69]     The absence of a warning about the prospect of the matter being sent back to the  Standards Committee also,  in  these  circumstances,  represents  a  breach  of a legitimate expectation that the practitioner would be given sufficient warning of a potentially adverse outcome beyond the more conventional alternatives, in order to provide the practitioner with a meaningful opportunity to be heard on the full range of adverse consequences that might ensue.  Given the overlap between the two, I do not see that the breach of legitimate expectation can add anything to the materiality of a finding that there was a breach of the rules of natural justice.

Remaining grounds of challenge

[70]     The remaining grounds of review allege that the LCRO made errors of fact, failed to take into account relevant considerations, took into account irrelevant considerations, and made a decision that was unreasonable in the administrative law sense.   I consider that it is unnecessary and unhelpful to express a view on these

grounds for review.  Given the nature of the relief that I intend to order, it would be inappropriate for me to express a view on the matters raised in submissions, as the areas criticised could well be at issue before the LCRO when she reconsiders this case.

[71]     Without suggesting any view that additional grounds for review might have been made out, I am satisfied that any findings I may have made under these heads of review would not change the nature of the relief I intend to order.

The position of Mr Machirus

[72]     Mr Machirus did not seek judicial review of the decision of the LCRO and his position as a respondent to the practitioner’s application for judicial review was confined to supporting the LCRO’s decision.

[73]     Although in general terms I took Mr Machirus to be content with the LCRO’s determination that would have seen the matter go back to the Standards Committee for further consideration, Mr Machirus wanted to argue for more than that.   He presented substantial materials in support of arguments that the findings adverse to the practitioner by both the Standards Committee and the LCRO did not go as far as was  justified.    Mr Machirus  seeks  a  finding  to  the  effect  that  the  practitioner deliberately misled the Court.

[74]     However, a challenge of that entirely different type cannot be entertained within the present judicial review that was mounted raising quite different concerns, effectively from the opposing interest.   It is therefore inappropriate to review the basis  for  Mr Machirus’s  assertions.    Mr McVeigh  protested  at  my receiving  the materials presented during the hearing, given that he had only seen some of them since arriving at Court on the day of the hearing, and the present judicial review was obviously entirely inappropriate as a forum for testing the basis for the assertions Mr Machirus made.

[75]     One consequence of sending the matter back to the LCRO is that the scope of issues entertained on the reconsideration that is now required will, to an extent, be up to the LCRO.

Position of the Standards Committee

[76]     Mr Nation  acknowledged  in  the  limited  submissions  he  made  that  the Standards Committee could only legitimately advance argument on a narrow aspect of the judicial  review.    Mr Nation  confined  himself to  answering the  criticisms implicitly extended to the Standards Committee where matters of fact were challenged in Mr McVeigh’s criticisms of the LCRO.

[77]     Mr Nation did not make submissions on the lawfulness of the  Standards Committee’s approach in measuring the practitioner’s conduct by reference to the criteria for disciplinary charges under s 106(3) of the 1982 Act.  I have therefore had to decide that criticism in the absence of any broader context as to the approach that has been adopted more generally by Standards Committees to the application of the transitional provisions.

[78]     Mr Nation advised that the Standards Committee involved in this particular case stood ready to undertake the reconsideration as directed by the LCRO, and remained mindful that its own work remained incomplete because it still had to consider matters of penalty and publication when completion of those steps was disrupted by the practitioner seeking review by the LCRO.

Outcome

[79]     I have found that there was a breach of the requisite requirements of natural justice because the LCRO did not provide the practitioner with any warning of the prospect that she might order a reconsideration by the Standards Committee on the terms she did, having vacated the Standards Committee’s existing determination. Where the practitioner can reasonably claim to have been taken by surprise by the absence of such a warning and an opportunity to be heard, and was prejudiced by

that  outcome,  a direction  that  the  LCRO be  required  to  reconsider the  issue is appropriate and I grant relief to that effect.

[80]     I have been mindful that granting the relief sought by the practitioner will inevitably prolong what has already been an extremely protracted process.   In the end, however, the importance of the elements of the challenge that I have upheld is such that the further delays in reaching a final conclusion have to be tolerated, in order that the matter be decided lawfully.

Costs

[81]     This is not an appropriate case in which to order costs in favour of any of the participants.

Dobson J

Solicitors:

Raymond Donnelly & Co, Christchurch for applicant

Legal Complaints Review Officer, Auckland

Wynn Williams, Christchurch for third respondent

Copy to:

P L Machirus, Christchurch