McGuire v Manawatu Standards Committee - [2015] NZHC 2100

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-454-13 [2015] NZHC 2100

UNDER the Judicature Amendment Act 1972

AND

Part 30 of the High Court Rules

BETWEEN

JEREMY JAMES MCGUIRE Plaintiff

AND

MANAWATU STANDARDS COMMITTEE

Defendant

Hearing: 1 September 2015

Counsel:

Plaintiff in person
P N Collins and M F Fogarty for Defendant

Judgment:

1 September 2015

ORAL JUDGMENT OF THE HON JUSTICE KÓS

[1] A professional Standards Committee is convened to consider a complaint against a solicitor by a former client. The complaint is upheld, a substantial proportion of the solicitor’s costs are cancelled, and he is censured.

[2] Unfortunately, the Standards Committee erred. It acknowledges the decision it made must be set aside for breach of natural justice. First, because the President of the Manawatu Branch of the Law Society (the Society) had participated in the decision, while having himself made a current complaint about the solicitor. Secondly, because the Committee failed to convene a proper meeting to determine
the complaint (instead doing so by an exchange of emails between members).

MCGUIRE v MANAWATU STANDARDS COMMITTEE [2015] NZHC 2100 [1 September 2015]

[3] So the decision of the Standards Committee must be set aside. Should any other remedy should be granted?1

Background

[4] The plaintiff, Mr McGuire, is a general practitioner practising in Palmerston North. In August 2013 he was engaged by a Mr Menear-Gist to act for him on an employment dispute. Mr Menear-Gist had been dismissed from a managerial position by his employer for alleged misappropriation of company property.

[5] Mr McGuire acted for Mr Menear-Gist at two disciplinary meetings, in a subsequent personal grievance claim before the Employment Relations Authority (which was successful) and in an appeal to the Employment Court (which was however terminated by Mr Menear-Gist at an early stage before hearing).

[6] The successful hearing before the Authority resulted in an order that his employer pay $15,575 in gross lost wages (albeit subject to income tax), $7,000 in general compensation, and costs of $5,325. A total of $27,900. However Mr McGuire’s fees for this totalled $32,510. Something of a pyrrhic victory here.

[7] On 27 February 2014 Mr Menear-Gist filed a complaint with the Society. Ostensibly the complaint was that the fees did not comply with a conditional fee arrangement. But the substance of the complaint was broader. I agree with Mr Collins’ submission that the essence of the complaint was that Mr McGuire gave incompetent advice about the likely outcome of the personal grievance, wrongly advised that all Mr Menear-Gist’s costs would be recovered from the employer, wrongly advised about Mr Menear-Gist’s prospects of reinstatement to employment, delayed in providing medical advice to the Authority, failed adequately to advise Mr Menear-Gist of his prospects of a successful appeal to the Employment Court, and overcharged Mr Menear-Gist in respect of the personal grievance proceeding and the appeal.

[8] That was the essence of the complaint.

1 This issue arises in part because Mr McGuire has at the last minute sought leave…

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: [2015] NZHC 2100
Decision Date: 1 September 2015

CaseChat Overview and Summary

The plaintiff, Jeremy James McGuire, a general practitioner, sought judicial review of a decision by the Manawatu Standards Committee, a professional standards committee convened by the Law Society, that had found McGuire to have acted in an unsatisfactory manner in representing a former client, Mr Menear-Gist, in a personal grievance claim. The Standards Committee found McGuire had given incompetent advice about the likely outcome of the personal grievance, wrongly advised that all Menear-Gist’s costs would be recovered from the employer, wrongly advised about Menear-Gist’s prospects of reinstatement to employment, delayed in providing medical advice to the Authority, failed adequately to advise Menear-Gist of his prospects of a successful appeal to the Employment Court, and overcharged Menear-Gist in respect of the personal grievance proceeding and the appeal. The Standards Committee censured McGuire and ordered him to reduce his costs by $13,642 and cancel his costs for the appeal entirely. The plaintiff contended the decision was flawed for two reasons: first, because the President of the Manawatu Branch of the Law Society, who had himself made a current complaint about McGuire, participated in the decision; and second, because the Standards Committee failed to convene a proper meeting to determine the complaint, instead doing so by an exchange of emails between members. The Law Society conceded that the decision must be set aside for breach of natural justice. The court was required to decide whether any other remedy should be granted. The court found that the appropriate remedy was quashing of the determination and remittance of the complaint for reconsideration by a newly constituted standards committee from a branch other than the Manawatu. The court refused the plaintiff’s application for leave to amend the statement of claim to include a claim for damages on the basis that it was not the most convenient and expeditious way of determining the entire dispute. The court ordered the determination of the Standards Committee dated 11 July 2014 be quashed and the complaint by Mr Menear-Gist remitted for reconsideration by a new standards committee from a branch other than the Manawatu. The plaintiff was entitled to costs on a category 2 band B basis.

Orders