Lawson v Disputes Tribunal - [2023] NZHC 1984

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-581

[2023] NZHC 1984

BETWEEN
SONJA MARIE LAWSON

Applicant

AND

DISPUTES TRIBUNAL

First Respondent

DISTRICT COURT AT HAWERA

Second Respondent

On the papers:

Counsel:

S J Zindel for Applicant

M McMenamin and R Gavey for Respondents

Judgment:

27 July 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1] This decision addresses the short but important point of whether an amended statement of claim filed by a solicitor whose client has authorised him to prepare and file the amended statement of claim but, subsequent to its preparation, has not confirmed its contents, amounts to compliance with a direction by the Court that an amended statement of claim must be filed or else the proceedings will be struck out.

[2] The background to this issue is that, on 9 September 2022, the applicant filed proceedings seeking judicial review. The applicant, who is not a lawyer, had drafted the proceedings herself. There were problems with the proceedings that were immediately identified by the respondents and the Court.

LAWSON v DISPUTES TRIBUNAL [2023] NZHC 1984 [27 July 2023]

[3] By minute of 26 October 2022, Isac J addressed some of the problems and adjourned the proceedings for a month to enable the applicant to get legal advice.1

[4] The matter came before me as Duty Judge on 28 November 2022 and I made directions striking out the Ministry of Justice as a respondent and replacing it with The Disputes Tribunal and District Court. I also directed two other parties be added as respondents. I further directed that an amended statement of claim incorporating these directions be filed and served no later than 15 working days from the date of that minute and that further particulars be provided.

[5] Ellis J dealt with the matter by way of teleconference on 7 February 2023. Her minute recorded that no progress had been made in the filing of an amended statement of claim.2

[6] Ellis J considered whether she should make an “unless” order, that is to stipulate that unless an amended statement of claim was filed by a particular date, the proceedings would be struck out, but stepped back from doing that on the basis that there was a prospect of the applicant being granted legal aid.

[7] Ellis J directed that Mr Steven Zindel, a solicitor who had represented the applicant in other matters, file a brief memorandum setting out details in relation to a possible grant of legal aid to the applicant and the likelihood of him being assigned.

[8] Mr Zindel filed such a memorandum on 19 June 2023. The issue of legal aid remained unresolved.

[9] The matter then came before Robinson J on 22 June 2023. He noted that Mr Zindel had been unable to obtain instructions from the applicant despite his best efforts.

[10] Robinson J made the following direction, non-compliance with which would result in the claim being struck out:

1 Minute of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 1984
Decision Date: 27 July 2023

CaseChat Overview and Summary

In Lawson v Disputes Tribunal, the High Court of New Zealand considered whether an amended statement of claim filed by a solicitor, who had received instructions from his client to file the document, complied with a court direction. The applicant, Sonja Marie Lawson, had initiated judicial review proceedings on 9 September 2022, which contained several issues. Various directions were made by the Court, including a requirement that an amended statement of claim be filed by a certain date, or the proceedings would be struck out. The applicant's solicitor, Mr Steven Zindel, filed the amended statement of claim on 12 July 2023 but had not been able to confirm its contents with the applicant.

The court examined whether the filing of the amended statement of claim by Mr Zindel complied with the High Court Rules 2016 and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. The court found that the solicitor had been authorised to file the document, as he had received instructions from the client to continue with the claim and file the amended statement of claim. Furthermore, the court held that the solicitor had made reasonable efforts to confirm the contents of the amended statement of claim.

In conclusion, the court decided not to strike out the claim and instead made directions for the applicant to confirm the contents of her amended statement of claim, name additional respondents, and file and serve a revised amended statement of claim. If the applicant fails to comply with these directions within 10 working days, the statement of claim will be struck out. The time period for any statement of defence by the respondents will not begin until the applicant confirms the contents of her amended statement of claim.

Orders