Parry Field Lawyers Limited v Disputes Tribunal at Christchurch
[2023] NZHC 1829
•13 July 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-000572
[2023] NZHC 1829
BETWEEN PARRY FIELD LAWYERS LIMITED
Applicant
AND
DISPUTES TRIBUNAL AT CHRISTCHURCH
First Respondent
AND
DISTRICT COURT AT CHRISTCHURCH
Second Respondent
AND
GLORIA DIANNE NIELSEN
Third Respondent
AND
NEW ZEALAND LAW SOCIETY
Intervener
Hearing: 4 July 2023 Appearances:
A J Summerlee and G M Watson for the Applicant J M McGuigan as Amicus Curiae
C R Johnstone for the Intervener (excused at the outset)
Judgment:
13 July 2023
JUDGMENT OF GENDALL J
Introduction
[1] The applicant, Parry Field Lawyers Ltd (PFL) has applied to judicially review a decision of the Second Respondent, the District Court, regarding the jurisdiction of the First Respondent, the Disputes Tribunal (the DT) to hear claims in relation to fees rendered by PFL that have been the subject of determination by a Standards Committee administered by the New Zealand Law Society (NZLS).
PARRY FIELD LAWYERS LIMITED v DISPUTES TRIBUNAL AT CHRISTCHURCH [2023] NZHC 1829 [13 July 2023]
[2] The first respondent, the DT at Christchurch, held it had jurisdiction to hear a claim in relation to fees rendered by PFL. The District Court at Christchurch dismissed an appeal from the DT’s decision that it had jurisdiction. The first and second respondents, the DT and the District Court, have in the usual way formally advised they abide the decision of the Court, although they reserve their rights pursuant to rr 5.50 and 5.51 of the High Court Rules 2016. Those parties were excused from further attendance in relation to the matter.
[3] The third respondent, Ms Gloria Nielsen, who is 79 years old, is self- represented, as she was before the District Court on the hearing of the appeal from the DT’s decision. She has filed written submissions in opposition to PFL’s application for review but did not seek to be further heard and did not appear before me. I understand this was the course adopted by Ms Nielsen in the District Court and that an amicus curiae was appointed to act as a contradictor to PFL’s argument. A similar course was adopted for the purposes of the proceeding before this Court, and the amicus Ms Guigan provided submissions and appeared before me.
[4] The New Zealand Law Society (NZLS) has been joined to this proceeding as an intervener and as an interested party. Mr Johnstone, counsel for the NZLS, has filed written submissions but at his request he was excused at the outset of the hearing before me.
[5] This judicial review application largely concerns the issue of whether the NZLS Standards Committee (Standards Committee) is “another/any other court or tribunal” for the purposes of s 17 of the Disputes Tribunal Act 1998 (the Act).
[6] PFL maintains here that a Standards Committee is quasi-judicial in nature and is properly classified as a tribunal. If that is correct, then s 17 of the Act precludes the DT from hearing and determining any costs issues between a lawyer and her client which have already been the subject of a complaint to the NZLS Lawyers Complaints Service (complaints service) and a decision of the Standards Committee.
[7] The position advanced before me, in submissions from Ms Nielsen and the amicus Ms McGuigan, is that the District Court was correct to hold that a Standards
Committee is not “another/any other court or tribunal” for the purposes of s 17 of the Act and the DT correctly decided that it had jurisdiction to hear and determine Mrs Nielsen’s claim to be refunded a portion of the legal fees originally charged to her by PFL.
[8] PFL disputes this and suggests first, the DT acted ultra vires in its jurisdiction when it purported to exercise a statutory power to hear Ms Nielsen’s complaints, secondly, the District Court took into account irrelevant considerations and thirdly, the District Court also failed to take into account relevant considerations when it condoned/endorsed the DT’s decision.
Background Facts
[9] In June 2018 Mrs Nielsen instructed PFL to act in regard to litigation against the insurer of one of her properties. Later in July 2018 Mrs Nielsen and her son, Christian Nielsen, instructed PFL to act in regard to litigation against the insurers of three more properties. Pleadings were issued.
[10] PFL provided the Nielsens with advice on their claims, particularly regarding their entitlement to foundation replacement, with which it appears the Nielsens disagreed, and the relationship deteriorated thereafter. On 12 December 2018 the Nielsens terminated their retainers with PFL.
[11] On 4 November 2019 the Nielsens complained to the NZLS. They alleged amongst other things that PFL had overcharged by billing for unknown actions and billing when two lawyers were working at the same time. The NZLS convened its Standards Committee to determine the various complaints from the Nielsens including the four fee complaints by Mrs Nielsen.
[12] On 20 December 2019 PFL responded to the Nielsens’ allegations in a letter to the Standards Committee.
[13] On 10 July 2020 the Standards Committee released its decision it seems, concluding that the fees rendered were fair and reasonable for the services provided. The Committee determined that further action on the complaint was unnecessary.
Initially, it appears, the decision apparently may not have been sent to the Nielsens. But they did receive it at some point.
[14] The Nielsens, obviously disappointed with their result from the Standards Committee, had the option to have that decision reviewed by the Legal Complaints Review Officer (LCRO). This review application was to be filed within 30 working days after eventually being served with the decision, but it seems the Nielsens chose not to.1
[15] Instead, on 5 August 2021 Ms Nielsen lodged a claim in the DT regarding the fees charged under one of the retainers which were the subject of the Standards Committee decision.
[16] On 1 September 2021 PFL filed its position statement in the DT protesting that the DT lacked jurisdiction to hear the matter as it was determined by another tribunal, the Standards Committee.
[17] On 18 October 2021, it appears the referee in the DT in question verbally advised that she would assume jurisdiction to hear the claim, so the hearing proceeded. No written decision on jurisdiction at that point was issued, however.
[18]On 16 November 2021 the DT issued its final written decision in which it held:
(a)It had jurisdiction to hear the dispute (because, it held, the Standards Committee was not “another Court or Tribunal” within the meaning of s 17 of the Act); and
(b)Ms Nielsen’s claim failed on the merits, that is, the DT agreed with the Standards Committee decision.
1 Section 198 Lawyers and Conveyancers Act 2006. Time starts running from the date of service
of the decision. The Nielsens previously sought to explain their decision not to review the decision before the LCRO on the grounds that they were provided with the decision more than 30 days after the date of the decision. But that does not seem relevant here. No review application to the LCRO was ever advanced.
[19] On 29 October 201 the Nielsens then commenced another proceeding in the DT disputing PFL’s fees arising under the other three retainers, which had also been determined by the Standards Committee. That proceeding, as I understand it, is stayed pending the outcome of this present review application.
[20] On 13 December 2021 Ms Nielsen filed in the District Court an appeal against the DT’s 16 November 2021 decision.
[21] On 21 December 2021, PFL filed a cross-appeal against the decision of the DT to assume jurisdiction. Ms Nielsen then abandoned her appeal. This left PFL’s cross-appeal on jurisdiction as the sole issue to be determined.
[22] On 20 September 2022, the District Court dismissed the cross-appeal. It found that the Standards Committee was not a tribunal, and therefore the DT was correct to allow Ms Nielsen to re-litigate the fee complaint determined by the Standards Committee.
[23] The present application for judicial review before me challenges those jurisdictional questions. It is useful at this point to repeat what I noted at [5] and [6] above that this application concerns an important issue of whether the Standards Committee of the NZLS is “another/any other court or tribunal” in terms of s 17 of the Act, such that this provision precludes the DT from hearing costs issues disputes between lawyer and client which have already been the subject of an NZLS complaint service matter and Standards Committee decision.
[24] According to Mr Summerlee for PFL, a question of public importance also raised here, namely: when a specialist body is established by Parliament to resolve profession-specific fee disputes, did Parliament intend to oust the jurisdiction of the Disputes Tribunal to re-litigate the same dispute?
PFL’s first ground of review: the DT acted ultra vires in its jurisdiction
[25]Judicial review is available when a decisionmaker acts beyond its powers.
[26] PFL’s first and main ground of review is that the DT acted ultra vires when it purported to exercise a statutory power to hear the Nielsens’ complaints and fee dispute.
[27] Clearly, the DT only has the power to hear cases of a kind falling within the jurisdiction given to it by its empowering statute.
[28] Section 17 of the Act is designed both to stop claims determined in the DT from being re-litigated elsewhere and of relevance here to stop claims already determined elsewhere being re-litigated before the DT. The present judicial review application concerns the limiting provision in section 17(1)(b) of the Act which is further explained in section 17(2).
[29]Those sections provide that:
(a)(1)(b) – [Where] “proceedings before [an]other court or tribunal were commenced before the claim was lodged with…the Tribunal”; then
(b)(2) – “the issues in dispute in the claim to which those proceedings relate…shall not be the subject of proceedings between the same parties in the Tribunal unless the proceedings are transferred to the Tribunal under s 37 or the claim before the other court or tribunal is withdrawn, abandoned, or struck out.”
[30] Usefully, the explanatory note to the Bill relating to the Act, and creation of Disputes Tribunals generally states that the purpose of s 17 is: “[t]o prevent the same claim from being the subject of adjudication in more than one judicial forum.”2
[31] By using the wording “judicial forum”, I am satisfied that Parliament turned its mind to the hazard of duplicated litigation and expressly enacted s 17 to both avoid such duplication and to free up the DT to speedily deal with first instance disputes within the lower end value jurisdiction for which it was targeted.
2 Explanatory note, Disputes Tribunal Bill, no. 169-1.
[32] I must therefore determine whether the NZLS Standards Committee determining the present fee dispute is a “court or tribunal” for the purposes of s 17(2). If so, then the DT is barred from hearing that same dispute.
[33] Before me, in its submissions, PFL maintained that the following qualities demonstrate that a Standards Committee is exercising a judicial function when determining a fee dispute and is thus a “court or tribunal” within the meaning of s 17(2):
(a)The authority of a Standards Committee emanates from an Act of Parliament;3
(b)Its members are not employees of the NZLS; rather, they are independent. Nor are Standards Committees or their members under the control of the NZLS in the conduct of their functions.
(c)Its members are excluded from civil or criminal liability in respect of any decisions or acts, unless made in bad faith;4
(d)The Evidence Act 2006 applies to a Standards Committee in the same manner as if it was a court, including the right to take evidence under oath, and administering oaths, compelling witnesses and receiving evidence;5
(e)Every witness before it has the same privileges and responsibilities as witnesses have in a court of law;6 and
3 Section 126, Lawyers and Conveyancers Act 2006; and Regulation 12, Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008,
4 Section 185 of the Act.
5 Section 151, Evidence Act 2006; and McGuire v NZLS [2020] NZHC 3053.
6 Section 187, Evidence Act; and see Trapp v Mackie [1979] 1 All ER 489 at 491, in which the House of Lords stated that “[t]he kind of tribunal in which the evidence of witnesses is entitled to absolute privilege [has been described] as a tribunal “which has similar attributes to a court of justice or acts in a manner similar to that in which such courts act.”
(f)It is subject to a form of review (like an appeal) process, namely to the LCRO, established under s 190 of the Act.7
[34] In turn, the opposing position advanced before me by Ms McGuigan as contradictor amicus was essentially:
(a)Consistent with s 10 of the Legislation Act 2019 the meaning of the phrase “another court or tribunal” in s 17 of the Act must be ascertained from the text in light of its purpose and context.
(b)The purpose of s 17 is to prevent a party bringing the same claim in more than one court or tribunal. The section is consistent with the principle of finality in litigation and avoids issue estoppel. Disputes Tribunals provide prompt, efficient and comparatively cheap determination of low-value contract and tort disputes. Referees are often not lawyers, lawyers are prohibited from attending hearings, (although they can assist parties in lead-up advice and often do), and determinations need not be strictly consistent with legal principles. The Tribunal’s decision is binding on the parties and there are limited appeal/review rights.
(c)The use of the words “another”, “any other”, “claim” and “proceeding” in s 17, Ms McGuigan maintains, all suggest that the section is concerned with excluding jurisdiction where a tribunal of similar nature is seized of the same issue.
(d)And she contends that Standards Committees are not akin to the DT. They play an important role in fulfilling the purposes of the Lawyers and Conveyancers Act 2006 (LACA), which is itself consumer-driven legislation. In addition to promoting resolution of consumer complaints, Standards Committees investigate, intervene in the affairs of, and lay charges against, lawyers. The process is voluntary and the Committee has a limited damages jurisdiction. The NZLS has
7 McGuire v NZLS [2020] NZHC 3053 at [49].
previously accepted that a Standards Committee does not possess “the jurisdiction of a civil court to make binding rulings on parties about negligence, breach of contract or the like.”8
(e)Ms McGuigan notes too that ss 193 and 198 of the LACA provide a right of review of decisions of the Standards Committee to the LCRO, rather than a right of appeal.
(f)She says that the approach suggested by PFL here to decisions of Standards Committees would cut across the purpose of the LACA, which is to ensure that lawyers are held to account. Prohibiting access to the court, or an independent tribunal like the DT, is inconsistent with that purpose. Here, Ms McGuigan maintains, Mrs Nielsen had not had her claim reviewed by a court or tribunal, prior to the DT decision.
(g)Similarly, any “floodgates” argument that might be raised, Ms McGuigan contends, is inapt. In almost all cases (and as happened here), a DT referee, she suggests, is likely to place significant weight on the Standards Committee’s (expert) complaints decision.
(h)Court decisions too, according to Ms McGuigan, are consistent with, and do not detract from, this approach. Finally, she notes that, while the High Court is likely not to revisit quantum following a Standards Committee decision on costs (as opposed to liability), that Court retains its residual discretion to supervise lawyers’ conduct (including in relation to fees) and would, no doubt, exercise that discretion if it took the view that the Standards Committee had plainly got it wrong.
[35] Turning now to the judgment of Judge Neave in the District Court the subject of this review application, the upshot of his decision is that the DT is not estopped from hearing and determining complaints against lawyers, particularly relating to fees even where those complaints have already been considered by a Standards Committee.
8 Simpson Grierson v Gilmour (2009) 19 PRNZ 865 at [45].
[36] In making this finding, Judge Neave in the District Court held that a Standards Committee is not a “Court or tribunal” for the purposes of s 17 of the DTA. According to Judge Neave:
(a)As a matter of statutory interpretation, “tribunal” must be of the same nature and character as “court”; and
(b)Unlike the NZLS Disciplinary Tribunal or the LCRO, Standards Committees are not independent and fulfil other functions not typically characteristic of tribunals, including administrative and investigative functions. As a result, Standards Committees are akin to operational or administrative bodies, rather than tribunals.
Analysis
[37] I start first with the statutory functions of an NZLS Standards Committee9 set out in s 130 of the LACA which are prescribed as:
(a)To inquire into and investigate complaints made under s 132;
(b)To promote in appropriate cases the resolution of complaints by negotiation, conciliation, or mediation;
(c)To investigate of its own motion any act, omission, allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct;
(d)To intervene, in the circumstances prescribed by this Act, in the affairs of lawyers or firms;
(e)To make final determinations in relation to complaints;
9 Section 126 of the LACA requires the NZLS to establish individual Standards Committees as part of its complaints service operating under s 121.
(f)To lay, and prosecute, charges before the NZ Lawyers and Conveyancers Disciplinary Tribunal.
[38] Section 132 of the LACA describes the persons who may complain about the conduct of or the standard of service provided by lawyers. In s 132(2) there is a specific provision in relation to complaints about legal fees:
Any person who is chargeable with a bill of costs, whether it has been paid or not, may complain to the appropriate complaints service about the amount of any bill of costs rendered by a practitioner or former practitioner or an incorporated firm or former incorporated firm (being a bill of costs that meets the criteria specified in the rules governing the operation of the Standards
Committee that has the function of dealing with the complaint).
(my emphasis)
[39] Standards Committees must exercise and perform their duties, powers and functions in a way that is consistent with the rules of natural justice: s 142(1).
[40] S 152 provides that a Standards Committee may, after inquiring and conducting its hearing, make one or more of the determinations set out in subsection (2):
(2) The determinations that the Standards Committee may make are as follows:
(a) A determination that the complaint or matter, or any issue involved in the complaint or matter be considered by the Disciplinary Tribunal;
(b) A determination that there has been unsatisfactory conduct on the part of –
(i) a practitioner or former practitioner; or
(ii) an incorporated firm or former incorporated firm; or
(iii) an employee or former employee of a practitioner or incorporated firm:
(c) A determination that the Standards committee take no further action with regard to the complaint or matter or any issue involved in the complaint or matter.
[41] Subject to the right to apply for a review to the LCRO [s 193], and excluding the right to seek recovery of damages independent of the Legal Complaints Service [s 156(4)], every determination made under s 152(1) and certain other orders made are final: s 152(4).
[42] Certain other specific provisions in the LACA (some of which are referred to in [33] above from PFL’s submissions to me) are also important to note here:
(a)Members of Standards Committees and an investigator(s) appointed have personal immunity from civil or criminal liability in respect of any act done or omitted to be done in the course of their role unless bad faith applies: s 185.
(b)Every person who gives information to a Standards Committee or answers questions put by a Committee has the same protection and privileges of a witness before a court: s 186.
(c)Counsel appearing before a Standards Committee have the same privileges and immunities as counsel before a court: s 187.
(d)A Standards Committee may receive in evidence any statement, document, information or matter that may in its opinion assist, whether or not that information would be admissible in a court, and may take evidence on oath or permit a witness to give evidence by tendering a written statement with or without verification by oath: s 151. Subject to those three specific instances, the Evidence Act 2006 applies to a Standards Committee in the same manner as if it were a court: s 151(4).
(e)No member of a Standards Committee, investigator or Legal Standards Officer or other person involved with the Standards Committee process, may communicate information that came to their knowledge in that role and capacity to any other person except for specific express purposes: s 188(2).
[43] It is also instructive here to consider s 161 of the LACA which specifically addresses complaints like the present about a solicitor’s bill of costs. Section 161(1) provides that if notice is given to a practitioner or incorporated firm of a complaint under s 132(2) about the amount of a bill of costs, then no proceedings for recovery of
those costs may be commenced or prosecuted until the complaint has finally been disposed of.
[44]Section 161 goes on to provide specifically:
(2) Where a Standards Committee makes a final determination on a complaint made under section 132(2), it must certify the amount that is found by it to be due to or from the practitioner or former practitioner or incorporated firm or former incorporated firm in respect of the bill and under the determination.
(3) The certificate of the Standards Committee or, as the case may be, the decision of the Legal Complaints Review Officer on a review of the determination is final and conclusive as to the amount due.
(4) For the purposes of this section, a complaint is finally disposed of—
(a) if—
(i) the Standards Committee has made a final determination on the complaint or has, under section 138, decided to take no action, or, as the case may require, no further action on the complaint; and
(ii) the complainant has not, within the time allowed, applied to the Legal Complaints Review Officer for a review of the determination or decision; or
(b) if the Legal Complaints Review Officer has conducted a review of the determination or decision made by the Standards Committee on the complaint and has reported the outcome of the review to—
(i) the complainant; and
(ii) the practitioner or former practitioner or incorporated firm or former incorporated firm; and
(iii) the Standards Committee.
[45] If dissatisfied with a Standards Committee’s decision, or any aspect of it, the complainant, the lawyer or the NZLS may apply for a review to the LCRO – ss 193, 194(1) and 197.
[46] Usefully in my view, Mr Johnstone, counsel for the NZLS as intervener, in his submissions before me at [31] to [34] states:
31. As Counsel, I can record from experience as a former convenor of a Standards Committee (2009-2018), and more recent anecdotal information, that it is not uncommon for courts (usually the District Court) to refer litigation
parties to the NZLS cost revision process, to resolve disputed legal fees. Those instances are dealt with confidentially, so I cannot give an indication of types or numbers of cases.
32. As noted earlier, a determination of a complaint or a decision to take no action will finally dispose of a complaint in relation to a bill of costs under s 132(2), unless an application for review is made in which case it will be the LCRO’s decision: s161(3) and (4). The Committee’s certificate, or LCRO’s decision, as the case may be, is final and conclusive as to the amount due.
33. I note that His Honour Judge Neave took the view that a final determination was not made by the subject Standards Committee on Ms Nielsen’s complaint; see in particular [93] and [102] of the judgment. This was a key factor in His Honour’s reasoning, refer [94]. With respect, it appears His Honour did not fully consider the whole of s161, in particular sub-section (4), by which a decision under s138(1) to take no action or s138(2) to take no further action will finally dispose of the complaint if the complainant does not apply for review the decision to the office of the LCRO.
34. Subsection (4)(a) also addresses the apparent gap identified by the amicus in her submissions at [47], in the circumstance of a person not applying for review with the Office of the LCRO. If no review is sought, then the Committee’s decision finally disposes of the complaint, even in the absence of a s161(2) certificate.
[47] Of use also in my view here are Mr Johnstone’s later comments in his written submissions before the Court on whether a Standards Committee is “a tribunal” within the meaning of “another court or tribunal” appearing in s 17(2) of the Act where he says:
43. From my analysis of the statutory scheme of Part 7 of the Act, fairly, the Standards Committee has both an investigative function and a quasi-judicial decision-making role. It is the first stage of the Lawyers Complaints Scheme, a specialist jurisdiction to deal with and resolve complaints against lawyers about professional conduct and fees. The Standards Committee has express powers to make final determinations of complaints, specifically of cost dispute and review matters, and utilises hearing and evidence-taking procedures akin to a civil court of law.
44. Some guidance can be taken from the 2008 High Court decision on a case stated by the Human Rights Review Tribunal in The Director of Human Rights Proceedings, v The Catholic Church for New Zealand10, addressing whether the word “tribunal” in s2(1) of the Privacy Act 1993 is capable of applying to a non-statutory tribunal, specifically the Catholic Tribunal of the Catholic Church for New Zealand.
45. Justice Cooper ultimately held at [57] – [60] that the meaning of agency was not capable of applying to a non-statutory tribunal and that tribunal (as used in a number of provisions in the Privacy Act including the Information
10 The Director of Human Rights Proceedings v The Catholic Church for New Zealand High Court, Auckland CIV-2006-404-6162, 19 February 2008.
Privacy Principles in s11) referred to bodies with a judicial function which are recognised by law and likely to be created either directly by statute or pursuant to a statute. Perhaps relevantly, His Honour, in rejecting policy arguments advanced by counsel for the Church, also at [63] expressed the view that it is likely that Parliament intended disciplinary committees or tribunals of professional bodies to be subject to the Privacy Act and thereby should be treated as a tribunal within the meaning of the definition of agency under s2(1).
[48] The Standards Committee clearly in my view cannot be regarded as a “court” in terms of s 17 of the Act. On the critical question here however as to whether a body like the Standards Committee ought to be classified as a “tribunal” in New Zealand, Ms McGuigan properly noted before me that, according to the Law Commission, this is often a “difficult question” and “much will depend on the context in which the question is asked.”11
[49] In its 2004 review of the structure and operation of courts and tribunals, the Law Commission defined tribunals in its glossary as “a variety of state-supported agencies that deal in a less formal way with particular sorts of disputes”. In its later report into a unified tribunals framework in New Zealand, the Law Commission considered that, in order to be classified as tribunals, decision-making bodies had to exercise an adjudicative function and be independent.12
[50] I turn next to dictionary definitions of the word “tribunal” which are of some assistance here. “Tribunal” is relevantly defined in part:
(a)in the New Shorter Oxford English Dictionary, Fourth Edition, as “a court of justice, a place of judgment or decision, a judicial authority, a board appointed to adjudicate in some matter”;
(b)in the Collins English Dictionary, 30th Anniversary Edition, as “a court of justice or any place where justice is administered”; and
11 Law Commission, Tribunals in New Zealand (NZLC, IP6, 2008) at 2.3., p.32.
12 Above n11 at 2.26, p.40.
(c)in the Chambers Dictionary, 11th Edition, as “a court of justice or arbitration, a body appointed to adjudicate in some matter or to enquire into some disputed question.”
[51] The Standard Committee when functioning to determine a legal fees complaint as here, in my view is a tribunal in terms of s 17 of the Act. Although not a court, as a specialist tribunal it is clearly acting in a quasi-judicial manner in that determination. It has statutory standing, is clearly appointed to adjudicate in matters and enquire into disputed questions, and to give decisions and it is to administer justice with requirements in many ways similar to a court. From well-settled authority,13 by s 161 of the Act it is the quantum of a disputed fee payable that is finally determined by a Standards Committee decision, although neither a s 161 certificate nor a LCRO decision preclude subsequent court proceedings challenging a client’s liability for a lawyer’s bill of costs. Nevertheless, as I see the position, in that s 161 of the LACA, which addresses a stay of proceedings for recovery from a client of a lawyer’s costs, subs (4) could not be more clear when it provides the circumstances (as I outline at
[44] above) in which a costs quantum complaint is to be regarded as “finally disposed of”. As I see it, those are the particular circumstances that do prevail in this case.
[52] I agree entirely too with the comments of Mr Johnstone for the NZLS that the Standards Committee has a dual investigative and a quasi-judicial decision-making role. It is an entirely specialist jurisdiction and especially with its important decision-making role, as he notes at [47] above:
The Standards Committee has express powers to make final determinations of complaints, specifically of cost dispute and review matters, and utilises hearing and evidence-taking procedures akin to a civil court of law.
[53] In considering the purpose and context of s 17 of the Act, as Ms McGuigan herself has noted, which I outline above at [34], that provision is entirely consistent with the important principle of finality in litigation and is designed to prevent a party bringing the same claim in more than one court or tribunal. Arguably, that is just what Mrs Nielsen had endeavoured to do here. Duplication of litigation unreasonably does
WynnWilliams v Kain [2011] 2 NZLR 709; Norris Ward McKinnon v Skelton [2020] NZHC 1445;
Simpson Grierson v Gilmour [2009] 19 PRNZ 865; and Pratley v Courteney [2020] NZHC 1636
potentially clog up courts and the overall dispute resolution system. It is to be avoided and is no doubt what Parliament had in mind in its explanatory note to the Disputes Tribunal Bill I note at [30] above.
[54] The s 161 provisions relating to the finality of a Standards Committee determination of a complaint, and particularly its “final and conclusive” certification of a quantum amount on costs due to a practitioner, also in my view lend support to the conclusions I have reached here.
[55] For all the reasons I have outlined above, I accept that the Standards Committee, in functioning to determine Mrs Nielsen’s fee complaint, is a “tribunal” in terms of s 17 of the Act, which applies here. It follows that the DT clearly acted ultra vires in assuming jurisdiction in this case. This is because the complaint against PFL’s fee brought by Mrs Nielsen to the Standards Committee on 4 November 2019 was both:
(a)in terms of s 17(1)(b) of the Act, commenced before another tribunal (the Standards committee) at that earlier time, whereas the DT claim about the fee dispute was not commenced until 1 August 2021; and
(b)in terms of s 17(2) of the Act, that Standards Committee complaint and claim was not withdrawn, abandoned or struck out, prior to Mrs Nielsen bringing the same claim to the DT. In particular, on 10 July 2020 the Standards Committee had given its determination on the claim as follows:
The Standards Committee has resolved to take no further action on the complaint pursuant to s138(2) of the Act, as having regard to all the circumstances of the case, any further action is unnecessary or inappropriate…”
This was over a year prior to when Ms Nielsen brought the claim before the DT.
[56] Section 17(2) of the Act therefore excludes the claim from the DT’s jurisdiction. I find the DT acted ultra vires by assuming jurisdiction to hear Ms Nielsen’s claim.
PFL’s second and third grounds of review – the District Court took into account irrelevant considerations and failed to take into account relevant considerations when it condoned/endorsed the Disputes Tribunal decision.
[57] Given my decision on PFL’s first ground of review on which it has succeeded, I need say nothing on these second and third grounds. Suffice to say, however, that given the outcome here, it necessarily follows in my view that PFL would also have succeeded against the District Court on these second and third review grounds as well.
Result
[58]This judicial review application succeeds.
[59] Declarations are now made under s 16 of the Judicial Review Procedure Act 2016 as follows:
(a)A declaration that the decision of the Disputes Tribunal of 16 November 2021 relating to Ms Nielsen’s claim against PFL is ultra vires.
(b)A declaration that the District Court in its decision dated 20 September 2022 erred by failing to find that the Disputes Tribunal lacked jurisdiction to hear Mrs Nielsen’s lawyers’ fee complaint.
(c)A declaration that, where a lawyers’ fee complaint has been considered by a New Zealand Law Society Standards Committee, s 17 of the Disputes Tribunal Act 1988 excludes the Disputes Tribunal from seizing jurisdiction over that fee complaint.
[60] As to costs in this matter, before me the parties appeared to agree that generally this proceeding involved substantive matters of public interest and that no order for costs should be made. That said, there will be no order made for costs here. Costs are to lie where they fall.
Gendall J
Solicitors:
Parry Field Lawyers for the Applicant
Janna McGuigan Barrister Limited for the Third Respondent Copy to Richard Johnstone Barrister for the Intervener
0