Lawson v Disputes Tribunal
[2023] NZHC 1984
•27 July 2023
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 Isac J CIV-2022-485-581 Lawson v Ministry of Justice, 26 October 2022.
2 Minute of Ellis J CIV-2022-485-581 Lawson v The Disputes Tribunal and the District Court at Hawera, 7 February 2023.
(a)Miss Lawson is to file and serve an amended statement of claim by no later than 5:00 pm on Thursday, 13 July 2023 that provides particulars of the decision and/or decisions Miss Lawson challenges, the grounds for relief and the relief sought; …
[11] On 12 July 2023, Mr Zindel informed the registry that Miss Lawson had indicated to him that she wanted to continue the claim and for the amended claim to be filed. He filed an amended statement of claim but also indicated that he could not get hold of Miss Lawson to confirm the contents. Neither has there been any confirmation by Miss Lawson of the contents of the amended statement of claim subsequently.
[12] The question for determination is whether Mr Zindel filing the amended statement of claim in this way complies with the direction of Robinson J.
[13] There is also a separate issue that the amended statement of claim does not comply with the direction at [13] of my minute dated 28 November 2022 that Mrs Lizette Stone and Ms Sienna Stone be added by the applicant as respondents to this application.
Law and analysis
High Court Rules 2016
[14] Subpart 7 of Part 5 of the High Court Rules 2016 governs the authority of solicitors to act.
[15]Rule 5.36 provides (as relevant):
5.36Authority to file documents
(1)No solicitor may file a document on behalf of a party unless the solicitor is—
(a)authorised by, or on behalf of, the party to file the document; and
(b)the holder of a current practising certificate as a barrister or as a barrister and solicitor issued under section 39 of the Lawyers and Conveyancers Act 2006.
…
[16]The commentary in McGechan on Procedure to r 5.36 provides:3
Where an instructing solicitor and counsel are retained, opposing parties and the Court are entitled to expect that the content of all documents to which they have to respond have been vetted and approved (if not prepared) by counsel retained: Houghton v Saunders [2020] NZHC 2030 at [74].
[17]The commentary goes on to provide:4
Non-compliance with r 5.36 does not render the proceeding a nullity: Lynx Trustees Ltd v Body Corporate 68792 [2019] NZHC 945. Rather, the Court will apply r 1.5(2), which involves considering the nature and seriousness of the breach of the rules and the justice of the case. The Court will likely give directions to ensure non-compliance is remedied and to allow the proceeding then to be dealt with on its merits. The Court retains the power to reject documents not vetted and approved by counsel retained and to require the documents filed in their names to be in terms approved by them before filing, and for which they assume responsibility: Houghton v Saunders [2020] NZHC 2030 at [75].
[18]Turning to r 5.37, as the Court stated in Houghton v Saunders:5
… Rule 5.37 provides that a solicitor by whom, or on whose behalf, a document is filed is to be treated as warranting to the Court and to all parties to the proceeding that he or she is authorised to file the document by the party on whose behalf the document purports to be filed.
[19]Rule 5.37 provides:
5.37Solicitor’s warranty as to authorisation to file documents
A solicitor by whom, or on whose behalf, a document is filed in the court is to be treated as warranting to the court and to all parties to the proceeding that he or she is authorised, by the party on whose behalf the document purports to be filed, to file the document.
[20] It should be noted Houghton v Saunders dealt with a case where the documents that were filed had not been authorised by counsel as opposed to by the client.
[21] The wording of r 5.36 is explicit, that “[n]o solicitor may file a document on behalf of a party unless the[y are] authorised by, or on behalf of, the party to file the
3 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR5.36.01].
4 At [HR5.36.04].
5 Houghton v Saunders [2020] NZHC 2030 at [73].
document”. By r 5.37, the solicitor is treated as warranting by filing a document that they are so authorised.
[22] These two rules, rr 5.36 and 5.37, ensure that when a document is filed by a solicitor, that solicitor is authorised to file that document. However, they do not strictly require that the solicitor confirm the contents of that document.
[23] Mr Zindel received instructions from Miss Lawson that she wished to continue the claim and for the amended claim to be filed. I conclude that, in the circumstances, where he has been instructed to file the amended claim and has made efforts to confirm its contents prior to the deadline, he has been authorised to file the document, notwithstanding he has been unable to confirm its contents with Miss Lawson. I conclude that, in the circumstances, he has acted in compliance with rr 5.36 and 5.37.
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008
[24] The overriding duty of a lawyer acting in litigation is to the court concerned.6 A lawyer has an absolute duty of honesty to the court and must not mislead or deceive the court.7
[25] Mr Zindel has entirely appropriately informed the Court that he was not able to confirm with his client the content of the amended statement of claim, but that he had received instructions to file the amended statement of claim.
[26] Rule 13.3 of the Rules of conduct and client care for lawyers (ROCCC) provides:
Informed instructions
13.3 Subject to the lawyer’s overriding duty to the court, a lawyer must obtain and follow a client’s instructions on significant decisions in respect of the conduct of litigation. Those instructions should be taken after the client is informed by the lawyer of the nature of the decisions to be made and the consequences of them.8
6 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, Rules of conduct and client care for lawyers [ROCCC], r 13.
7 Rule 13.1.
8 For example, a lawyer should never seek or agree to a consent order without the client’s authority, nor should a lawyer for the defence in a criminal trial disclose, without the client’s authority, the fact that the client has previous convictions or other charges pending.
[27] In this case, Mr Zindel appears to have obtained and followed Miss Lawson’s instructions, namely continuing with the claim and filing the amended proceedings before the deadline.
[28]Chapter 7 of the ROCCC provides in part:
7A lawyer must promptly disclose to a client all information that the lawyer has or acquires that is relevant to the matter in respect of which the lawyer is engaged by the client.
7.1A lawyer must take reasonable steps to ensure that a client understands the nature of the retainer and must keep the client informed about progress on the retainer. A lawyer must also consult the client (not being another lawyer acting in a professional capacity) about the steps to be taken to implement the client’s instructions.
7.2A lawyer must promptly answer requests for information or other inquiries from the client.
7.3A lawyer is not required to disclose information to the client if—
(a)the client has given informed consent to the non-disclosure of particular information; or
(b)the disclosure would be likely to place at risk the health (including mental health) or safety of the client or any other person; or
(c)disclosure would be in breach of law or in breach of an order of the court; or
(d)the information relates to a proposed retainer that the lawyer has declined.
…
[29] A lawyer must therefore disclose all relevant information to the client and must take “reasonable steps” to keep the client informed. A lawyer must consult the client about the steps to be taken to implement the client’s instructions. In Miss Lawson instructing Mr Zindel to continue with the claim and filing the amended claim, this obligation has been met.
Case law
[30] I am unaware of any case which has dealt with exactly this issue. However, the decision in Y v M, while quite distinct factually, has some helpful observations.9
[31] In that case, a case dealing with the custody of a child, the father’s application for joint custody with the mother of their five-year-old son was refused by the Family Court on the finding that he had sexually abused the child. The child lived with his mother and stepfather. The father's regular access (which included overnight access) to the child was stopped in August 1991 when the mother noticed a change in the child's behaviour. The father applied for access and joint custody orders in the Family Court. On the day before the hearing, the mother and stepfather filed affidavits alleging that the father had sexually abused the child. Numerous affidavits were filed as to the good character of the father. The Family Court Judge, however, did not give any weight to them on the basis that they were not relevant to the sexual abuse issue. After a series of six interviews with the child, the Court-appointed psychologist concluded tentatively that sexual abuse had occurred. The psychologist called by the father, however, came to a different conclusion after reviewing the first psychologist's clinical notes and methodology. Both psychologists expressed the view that a main factor bearing upon the child's behaviour was the conflicted family situation in which he had to live and which involved physical, aggressive behaviour between the stepfather and his own father.
[32] The High Court allowed the father’s appeal. Temm J found the evidence did not support a finding that the child had been sexually abused by his father, nor was there any “possibility” of sexual abuse having occurred.
[33] Relevant for present purposes, the Court commented, obiter, that a lawyer (here in respect of the lawyer acting for the party alleging sexual abuse) has a duty to the Court that the Court not be misled. Allied to that, the Court said, there is a wider public duty by which a lawyer is under an obligation to refuse to make allegations that are not sufficiently based upon evidence.
9 Y v M [1993] NZFLR 609, (1993) 10 FRNZ 591 (HC).
[34] These comments were in the context of a custody decision in which counsel for one of the parties filed, on behalf of their client, a document containing unfounded and baseless allegations of criminal activity, namely sexual abuse, against the other party. It is clearly distinct from the statement of claim in the present case. Nevertheless, it stands for the proposition that a lawyer must not file documents that mislead the Court in such a way, and may be required to refuse to undertake their client’s instructions.
“Unless” orders
[35] The direction made was an “unless” order. The Court of Appeal has identified the following principles that apply where the Court is asked to reconsider unless orders:10
[31]The principles are these:
(a)As an unless order is an order of last resort, it is properly made only where there is a history of failure to comply with earlier orders.
(b)An unless order should be clear as to its terms. That is, it should specify clearly what is to be done, by when and what is the sanction for non-compliance. That sanction should be proportionate to the default.
(c)The sanction will apply without further order if the party in default does not comply with the order by the time specified. However, the party in default may seek relief by application to the Court.
(d)Justice may require that the party in default be relieved of the consequences of the unless order where the Court is satisfied that the breach resulted from something for which that party should not be held responsible. The party should not assume that belated compliance will suffice.
(e)Where the unless order has been deliberately breached — that is, flouted — it is difficult to conceive of any situation where the interests of justice would require granting the flouter relief from the sanction imposed, notwithstanding belated compliance with the order.
(f)In deciding whether or not to excuse breach of an unless order the question for the Judge is: what does justice demand in the circumstances of this case? Considerations in answering that question include:
10 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494.
(i)The public interest in ensuring that justice is administered without unnecessary delays and costs.
(ii)The interests of the injured party, in particular in terms of delay and wasted cost.
(iii)Any injustice to the defaulting party, although that consideration is likely to carry much less weight in the circumstances than considerations (i) and (ii).
Conclusion
[36] In this case the Court’s direction has been complied with, namely in the lawyer having received instructions to continue with the claim and to file the amended statement of claim. The lawyer appears to have been authorised to file the document, and to have made reasonable efforts to confirm the contents of the amended statement of claim. Accordingly, I decline to strike the claim out.
[37] The first and second respondents submitted that, if the claim was not struck out, then I should make the following timetable directions:
(a)Miss Lawson is to confirm the contents of her amended statement of claim with the registry and the respondents;
(b)that confirmation is to be provided with a revised amended statement of claim which accords with the directions I made on 28 November 2022 that Miss Lawson name Mrs Stone and Ms Stone as respondents;
(c)that in accordance with the directions I made on 28 November 2022, Miss Lawson is to file and serve on Mrs Stone and Ms Stone (and the first and second respondents) a copy of that amended statement of claim;
(d)unless Miss Lawson complies with the directions in paragraphs (a), (b) and (c) above within 10 working days of this direction, the statement of claim is to be struck out; and
(e)the time period for any statement of defence by the first and second respondents to the amended statement of claim does not begin until Miss Lawson has confirmed the contents of her amended statement of claim.
[38]I make those directions.
Churchman J
Solicitors:
Crown Law, Wellington for Respondents
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