Keene v Legal Complaints Review Officer
[2021] NZCA 43
•5 March 2021 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA541/2020 [2021] NZCA 43 |
| BETWEEN | GREGORY ALEXANDER KEENE |
| AND | LEGAL COMPLAINTS REVIEW OFFICER |
| Court: | Clifford J |
Counsel: | Appellant self-represented |
Judgment: | 5 March 2021 at 11 am |
JUDGMENT OF CLIFFORD J
Review of Deputy Registrar’s Decisions
A The 2018 substantive case on appeal (CA494/2018) is to be made available in this appeal.
BThe application for review of the Deputy Registrar’s decision to extend time for the filing of the case on appeal is dismissed.
CThe application for review of the Deputy Registrar’s security for costs decision is to be finally determined as provided at [12] to [14].
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REASONS
Introduction
Mr Keene is appealing a decision of Downs J in the High Court at Auckland declining an application by him for a costs order against the second respondents.[1] The first and third respondents abide.
[1]Keene v Legal Complaints Review Officer [2020] NZHC 2261.
In this judgment I deal with a number of applications by the second respondents to review decisions of the Deputy Registrar, and related issues.
Background
It is an understatement of some proportion to say this matter has a convoluted background. Very much in summary, and to remind myself of the relevant context, I record the following:
(a)The origin of matters is the second respondents’ dissatisfaction with legal services provided by Mr Keene, a barrister, to them on the instructions of a solicitor. Reflecting that dissatisfaction, the second respondents withdrew Mr Keene’s instructions and subsequently refused to pay a final notice of costs.
(b)Mr Keene acted in subsequent debt recovery proceedings. His action in doing so resulted in the second respondents making complaints to the Law Society of professional misconduct, namely: breaches of rr 13.5 (a lawyer must retain their independence); and 13.5.3 (a lawyer must not act if their conduct is at issue).[2]
(c)The Law Society’s Standards Committee found Mr Keene had breached both rules. The Legal Complaints Review Officer agreed as regards r 13.5, but quashed the Standards Committee’s decision as regards r 13.5.3. In the High Court, in judicial review proceedings, Mr Keene challenged the decision as regards r 13.5 and Mr Lau, one of the second respondents, did so as regards r 13.5.3.
(d)Both applications succeeded.[3] The result below was reversed: Mr Keene was now found to have breached r 13.5.3. The Judge’s preliminary view was that costs should lie where they fall, but invited submissions from the parties.[4] No such submissions were received.
(e)Mr Keene successfully appealed the r 13.5.3 finding in this Court.[5] The second respondents took no part in that appeal. This Court declined to make any order as to costs.[6]
(f)Mr Keene returned to the High Court on the costs issue following his successful appeal. In the decision under appeal now Downs J declined that application for costs.[7] Cooper J recorded in a minute of 16 November 2020 that Mr Keene could appeal the costs decision as of right, following this Court’s decision on the substantive appeal.
Appeal to be heard on papers — outstanding
[2]Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
[3]Keene v Legal Complaints Review Officer [2018] NZHC 1869, [2018] NZAR 1361.
[4]At [54]–[55].
[5]Keene v Legal Complaints Review Officer [2019] NZCA 559.
[6]At [95].
[7]Keene v Legal Complaints Review Officer, above n 1.
As now relevant, the parties have agreed that the appeal may be heard on the papers. I understand the second respondents will, again, represent themselves. Given that agreement and that understanding, I now set out my current view as to the sensible resolution of outstanding matters.
Difficulties with agreeing case on appeal
Mr Keene has unilaterally filed a case on appeal. The case starts with Downs J’s 2018 costs decision. The second respondents complained.
I can well understand if the second respondents considered at least some of the documents from the 2018 case on appeal in this Court on the substantive appeal of relevance. But I see no reason why that concern cannot be addressed by the simple expedient of the 2018 case on appeal being made available in this appeal. I so order.
Extension of time for filing case on appeal
On 21 December 2020 the Deputy Registrar granted Mr Keene’s application for a five working day extension to the filing of the case on appeal. The second respondents seek a review of that decision.
The Deputy Registrar’s decision was a pragmatic one, reasonable and within her powers. Whilst I can appreciate the second respondents’ frustration with the position they now find themselves in, there is no basis to review that decision. Moreover, given the agreement to hear the appeal on the papers, events would appear to have overtaken this issue.
Security for costs
Largely on the basis that the first and third respondents were abiding, and that the second respondents were self-representing, Mr Keene applied to the Deputy Registrar for a dispensation from security for costs. In an email of 16 November, in response to a request by the Deputy Registrar for their reply on that application, the respondents advised: “We are lay people. We will respect the Court’s position in relation to the issue of security for costs.”
The Deputy Registrar granted Mr Keene’s application, and the second respondents then applied for review. Their argument, in essence, appears to be that although they may have been unrepresented in this appeal up till now — and I infer will continue to self‑represent — as a matter of principle the waiver should not have been granted as it runs counter to their right to be legally represented.
The Deputy Registrar made her decision dispensing with security on the basis that the second respondents were self-representing. If she misunderstood that position, there may be a basis for review of her decision. If she did not, and the issue is only one of alleged principle, then the Deputy Registrar responded to the facts before her. On that basis there would be no reason to review her decision.
Overall position
My sense, therefore, is that taken overall, and on the basis of my order as to the making available to this Court of the 2018 case on appeal and my understanding the second respondents will represent themselves, this appeal is now ready to be heard, on the papers as consented to by the parties.
If either Mr Keene or the second respondents disagree — including because I have misunderstood the position as to the second respondents self-representing, they may file memoranda to be received by this Court by no later than 5 pm Friday, 12 March. Any such memoranda should be referred to me, and I will then determine next steps.
If no such memoranda are filed, I will formally dismiss the second respondents’ challenge to the Deputy Registrar’s security for costs decision and direct her to liaise with the parties to finalise a timetable for written submissions and for hearing.
Result
The 2018 substantive case on appeal (CIV-2018-404-000117) is to be made available in this appeal.
The application for review of the Deputy Registrar’s decision to extend time for the filing of the case on appeal is dismissed.
The application for review of the Deputy Registrar’s security for costs decision is to be finally determined as provided at [12] to [14].
Solicitors:
Crown Law Office, Wellington for First Respondent
Meredith Connell, Auckland for Third Respondent
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