Siemer v Legal Complaints Review Officer

[2022] NZHC 1565

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-99

[2022] NZHC 1565

UNDER

the Judicial Review Procedure Act 2016,

s 27 of the New Zealand Bill of Rights Act 1990 and the Lawyers and Conveyancers Act 2015

IN THE MATTER

of a judicial review

BETWEEN

VINCENT ROSS SIEMER

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respopndent

CLAYTON LUKE
Second Respopndent

JANE SIEMER

Thirs Respondent

Hearing:	12 May 2022
Appearances:	Applicant in person
Judgment:	1 July 2022

JUDGMENT OF HARVEY J

This judgment was delivered by me on 1 July 2022 at 5pm,

pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Solicitors:

Copy to:

The Applicant

The First Respondent

SIEMER v LEGAL COMPLAINTS REVIEW OFFICER [2022] NZHC 1565 [1 July 2022]

Introduction

[1]    In December 2019, the Legal Complaints Review Officer (LCRO) struck out Vincent and Jane Siemer’s application for review of determinations made by a Standards Committee of the New Zealand Law Society (Standards Committee) regarding Clayton Luke. The LCRO decided that the application for review was frivolous or vexatious or otherwise an abuse of process.1 Mr Siemer now seeks to judicially review that decision on the basis that the LCRO relied on irrelevant considerations and failed to take account of relevant considerations when making his decision, and acted in bad faith and with bias.

[2]    Mr Siemer seeks three remedies. First, a judgment granting judicial review on one or more of the grounds pleaded. Secondly, declaratory relief. Thirdly, a referral of the review application back to LCRO for a proper determination on the merits. I also consider the amenability of judicial review to the formal proof process.

[3]The LCRO, the first respondent, is abiding the decision of the Court.

Background

[4]    * The history of this proceeding spans over two years and is summarised in Harland J’s 11 March 2022 decision to dismiss Mr Luke’s application for leave to file a statement of defence.2 Her Honour noted that it was important that a formal proof hearing was allocated as soon practicable.3 Accordingly, this hearing proceeded as a formal proof, with the Court having the benefit of submissions from Mr Siemer alone. Nonetheless, Mr Siemer is required to satisfy the Court as to the substance of the pleaded grounds.

[5]    While this judgment is limited to a judicial review of the LCRO’s 18 December 2019 strike out decision, this application cannot be understood without reference to its history.

1 Pursuant to s 205(1)(c) and (d) of the Lawyers and Conveyancers Act 2006.

2      Siemer v Legal Complaints Review Officer [2022] NZHC 440 at [2]–[34]. Judgment reissued with corrections on 28 April 2022.

3 At [64].

Procedural history

[6]    It appears that Mr Siemer first encountered Mr Luke in 2017, in his capacity as Disputes Tribunal Referee, when he heard and dismissed a claim of Mr and Mrs Siemer against a builder. Since then, the Siemers have made many complaints about Mr Luke to the New Zealand Law Society (Law Society). Several proceedings have also been pursued against Mr Luke in relation to their complaints and other matters involving Mr Luke, including Siemer v New Zealand Law Society and Siemer v Attorney General.4

[7]In Siemer v New Zealand Law Society, Palmer J set out the background:5

[30]      In summary, Mr Siemer appears to be pursuing, vexatiously, proceedings deriving from claims he and Mrs Siemer made to the Disputes Tribunal in April 2017 against a builder, Mr Jude Hickson. Mr Clayton Luke, the Disputes Tribunal referee, dismissed the claims in October 2017. Mrs Siemer’s appeal was dismissed by the District Court. Since then:

(a)The Siemers have made eight complaints to the New Zealand Law Society about Mr Luke.

(b)In October 2017 Mr Siemer distributed flyers at the North Shore District Court and Mr Luke’s residential address disparaging him.

(c)In November 2017 Mr Siemer contacted the Minister of Justice regarding a complaint about Mr Luke and the Principle Disputes Referee.

(d)In 2018, Mr Siemer sought leave to judicially review a decision by the Ministry of Justice in relation to a complaint by Mr Siemer about Mr Luke. Peters J dismissed the application in April 2018.

(e)Mrs Siemer’s application to judicially review a decision of the Standards Committee to take no action, was dismissed by Courtney J in September 2018, because Mrs Siemer failed to attend the substantive hearing.

(f)Mrs Siemer also applied for judicial review of the Ministry of Justice’s process for dealing with the complaints by her and Mr Siemer against Mr Luke, which was struck out by Hinton J in December 2018.

4      Siemer v New Zealand Law Society [2019] NZHC 3075; and Siemer v Attorney General [2018] NZHC 3406.

5      Siemer v New Zealand Law Society [2019] NZHC 3075.

(g)Hinton J also made an extended order under s 166 of the 2016 Act that Mrs Siemer was prohibited from commencing or continuing, without leave, any proceeding in any Court or Tribunal concerning or relating to the two proceedings in the Dispute Tribunal for three years.

(h)In March 2019, Downs J declined to grant leave under that order to an application by Mrs Siemer to continue an application for judicial review of the Disputes Tribunal and District Court decisions. Downs J was satisfied the claim was brought to harass and was almost certainly Mr Siemer’s.

(i)Mr Siemer now seeks to judicially review another Standards Committee decision to take no further action on another complaint by Mrs Siemer against Mr Luke, which it considered vexatious and/or not made in good faith.

(footnotes omitted)

[8]The Judge described this as a “pattern of harassment of Mr Luke”.6

[9]In Siemer v Attorney General, concerning judicial review filed by Mrs Siemer,

Hinton J noted of both Mrs and Mr Siemer’s conduct and the background of the case:7

[19]      In 2017, Mrs Siemer and Mr Siemer jointly issued a proceeding in the Disputes Tribunal seeking $12,000 in damages for breach of contract against Jude Hickson, a builder the couple had engaged to undertake recladding work at their home in Whangaparaoa. This proceeding was in contravention of the vexatious litigant order against Mr Siemer. Mrs Siemer, around the same time, also initiated her own separate proceeding against Mr Hickson for an alleged accidental double payment of an invoice issued by Mr Hickson, and sought the return of $6,141. The two proceedings were consolidated and heard together (the Hickson proceedings).

[20]      Mr Luke was the Disputes Tribunal Referee who adjudicated on their claims.  On  3  October  2017,   he   dismissed   the Siemers’   claims   in   the Hickson proceedings. He found $6,281 was still owed to Mr Hickson, which exceeded the accidental double payment, and that was to be offset.

[21]      Mrs Siemer appealed to the District Court, which dismissed her appeal.

[22]      Since that time, Mrs Siemer has taken all of the following actions following on from the Hickson Disputes Tribunal proceedings:

(a)She commenced a judicial review proceeding against the Disputes Tribunal and the District Court in respect of their decisions. That proceeding was to be heard before Downs J, on

6 At [32].

7      Siemer v Attorney General [2018] NZHC 3406.

1 November 2018. However, Mrs Siemer did not appear and Downs J, by Minute, adjourned the matter until 1 March 2019.

(b)She has made numerous complaints about the conduct of Mr Luke to the Ministry of Justice and the New Zealand Law Society (the Law Society).

(c)She initiated a judicial review proceeding against both Mr Luke and the Law Society in respect of the Standards Committee’s response to one of her complaints. In a memorandum to the Court in that same proceeding, on 1 May 2018, she stated that “… [Mr Luke] abuses his wife, allegedly.”

(d)By email sent by Mr Siemer on 19 February 2018, the couple jointly sought a payment from Mr Luke in the order of $8,000, in settlement of “all matters” between them and Mr Luke.

(e)On 27 February 2018, Mrs Siemer made an ostensible request for legal advice from Mr Luke, through his (genuine) website. She sought “advice” as to whether she could sue Mr Luke in the Disputes Tribunal for revealing the settlement proposal to the Law Society, and for wrongfully accusing her of extortion.

(f)On 28 February 2018, she commenced proceedings in the Disputes Tribunal against Mr Luke following his response to the settlement offer referred to above, and her request for “advice” from him. She claims that Mr Luke breached the Evidence Act 2011 by revealing the settlement proposal to the Law Society, and that he had wrongfully accused her of extortion. On 31 May 2018, she filed a memorandum in that proceeding stating: “This case is not about the respondent’s unhappy childhood, not about why he legally changed his name to Clayton Luke …”

[23]      Also relevant to the present applications, because it is claimed that the Siemers acted in concert, is Mr Siemer’s conduct. Mr Siemer has engaged in similar behaviour towards Mr Luke:

(a)He complained about Mr Luke to the Law Society on 10 October 2017.

(b)He contacted the Minister of Justice on 2 November 2017, regarding a complaint about Mr Luke and Anne Darroch, the Principal Disputes Referee (the Principal Referee).

(c)On 24 November 2017, he made an ostensible request for legal advice from Mr Luke, through Mr Luke’s genuine website. He sought “advice” on how to appeal against an “incompetent or corrupt decision maker”, and how to make complaints about that decision maker.

(d)He published an article on his own website, kiwisfirst.co.nz, where Mr Luke is referred to as a “bottom-feader [sic]”, and suggested that the Law Society is likely to minimise any negative conduct of Mr Luke’s in a manner similar to the

Catholic Church’s response to protecting “pedophile [sic] priests”.

(e)On 10 October 2017, he distributed flyers at the North Shore District Court, by sliding one under the hearing room door of the Disputes Tribunal. A flyer was also left in the letterbox of Mr Luke’s residential address. These flyers directed recipients to a false website about Mr Luke that was clearly intended to disparage Mr Luke both professionally and personally. The website claimed to provide: “Insight into Clayton Luke’s novel and limited knowledge of the law …”

(f)In early July 2018, a sandwich board, depicting the images of Mr Luke and Anne Darroch, the Principal Referee, was erected on Council land next to the North Shore District Court, offering “FREE Tribunal Referree [sic] Advice Save Dollars!”. This was submitted to have clearly been the work of Mr Siemer on the basis that it also depicts Ms Darroch, who has also been the subject of complaints by the Siemers. This is clearly a reasonable inference.

[10]   I note both decisions in some detail as the LCRO referred to them in his reasons of 18 December 2019 as providing “details of the complaints and proceedings”.

Complaints to the Standards Committee and application for review to the LCRO

[11]   As foreshadowed, the decision under review came about after Mr (and Mrs) Siemer lodged complaints with the Standards Committee about Mr Luke’s ethical conduct, following which the Committee determined in all cases not to take further action against Mr Luke. By application dated 6 November 2018, Mr Siemer sought a review of the Committee’s decision by the LCRO on four grounds.

[12]   First, the Committee decision was not consistent with previous decisions. Secondly, the Committee was materially misled by Mr Luke that he must wait seven days to receive money paid in advance of his services (by which time he has provided the services). Thirdly, the Committee improperly failed to consider the relevant risk to consumers paying Mr Luke in advance where the money is not going into the required trust account. Fourthly, the Committee erred in dismissing the rule breaking by Mr Luke selling “legal coupons” through a discount web reseller on the irrelevant basis “GrabOne itself offers a guarantee that money will be refunded if a product isn’t as advertised or if the business doesn’t deliver.”

[13]   On 2 February 2019, Mr Luke applied for a strike out of the application per   s 205 of the Act. On 3 April 2019, the LCRO emailed Mr and Mrs Siemer:

Your complaints and your applications for review raise important issues relating to the ways in which lawyers may conduct their practice, both within the existing rules and legislation, and for the future.

It is my view that the issues you raise should be referred to the New Zealand Law Society to consider within this context, rather than in the context of the specific complaint about Mr Luke.

Please confirm you are agreeable to withdrawing your applications for review, on the understanding that the issues will be referred to the Law Society by this Office. In doing so all of the information you and Mr Luke have provided in relation to this matter would be provided to the Society.

[14]On a follow up email on 9 April 2019, the LCRO further stated that:

The issues raised in this review require to be addressed on an administrative basis, as they raise important issues as to the manner in which lawyers may conduct their businesses.

[15]A 15 April email confirmed:

Mr Vaughan advices that the issues that would be put before NZLS to consider are:

(a)the process to be adopted and information to be provided by a lawyer advertising services online;

(b)Whether payment by credit card constitutes payment in advance in terms of r 14.10; and

(c)Generally, to consider whether it is possible, and/or appropriate, for lawyers to offer online advice through the medium of a website such as that operated by Mr Luke.

[16]   Mr Siemer declined to do so, although he submitted that by letter dated 21 May 2019, he “expressly endorsed the LCRO’s recommendation to refer these important issues he had identified to the NZLS”. Mr Siemer contended that he refused to do so on the grounds that there was nothing to suggest any correlation between the general issues proposed and the way the Committee dealt with Mr Luke’s “offending”.

[17]   Prior to the decision under review, the LCRO issued a minute on 14 October 2019 where he determined that the High Court orders ruling Mr and Mrs Siemer to be vexatious litigants did not prevent to LCRO from completing reviews of their

Standards Committee determinations. Then on 18 December 2019, the LCRO struck out Mr Siemer’s application pursuant to s 205 of the Lawyers and Conveyancers Act 2006 (the Act). This is the decision subject to judicial review.

The LCRO’s strike out decision

[18]   The decision begins by noting that Mr and Mrs Siemer first came into contact with Mr Luke in 2017, when he made a decision which did not favour them in his capacity as a disputes tribunal referee. The LCRO then recorded that Mr and Mrs Siemer had made numerous complaints about Mr Luke to the NZLS and issued various proceedings regarding their complaints and to other matters involving Mr Luke, and cited two decisions of Palmer and Hinton JJ which provide details of the complaints and proceedings.8 The LCRO noted that:9

In each of the determinations, the Standards Committees have carefully considered, and commented on, the procedures used by Mr Luke in the conduct of his practice.

[19]   The LCRO then noted that Mr Luke had filed a strike-out application dated   2 February 2019 which would be determined on the papers. He stated that both parties had been, in effect, invited to make submissions in respect of the strike out application but did not do so.

[20]   The LCRO then confirmed that the strike out application was made pursuant to s 205 of the Act. He took note of a number of comments made by Hinton J in Siemer v Attorney General, in which her Honour referenced the judicial and non-judicial methods of “harassment” of Mr Luke, that there was no question that “Mr and Mrs Siemer have been acting in concert” to do so, that Mrs Siemer was fronting litigation to circumvent the vexatious litigant order made against her husband, and that there was “a joint campaign of harassment waged by Mr and Mrs Siemer against Mr Luke and others, both inside and outside the courts”.10 He stated:

8      Siemer v Attorney General [2018] NZHC 3406; Siemer v New Zealand Law Society [2019] NZHC 3075.

9 At [6].

10     The LCRO cited Siemer v Attorney General [2018] NZHC 3406 at [76], [79]–[80], [97]–[98] and [103].

[15] These paragraphs are noted to provide the “flavour” of the ongoing conduct by Mr and Mrs Siemer against Mr Luke. It would not be exaggerating to refer to this conduct as “harassment” and/or a “vendetta”.

[21]   The LCRO then cited the email he wrote to Mr and Mrs Siemer on 3 April 2019, sharing his view that the issues they raised should be referred to the Law Society to consider in a wider context, rather than in the context of the specific complaint about Mr Luke. He then invited them to withdraw their applications for review on the understanding that the issues would be referred to the Law Society. The LCRO then confirmed that Mr and Mrs Siemer did not take up that invitation.

[22]   He also noted Mr Siemer’s response on 4 April 2019, and recorded his subsequent email on 9 April 2019 in which he advised that the “issues raised in this review require to be addressed on an administrative basis, as they raise important issues as to the manner in which lawyers may conduct their businesses.” The LCRO invited Mr and Mrs Siemer to reconsider his earlier proposal on that basis and recorded that Mr and Mrs Siemer did not agree. He then concluded:

[21]      Many of the matters raised by Mr and Mrs Siemer are beyond the scope of this review as they do not relate to the specific complaints raised by them against Mr Luke. It is well established that no new matters will be addressed on review and this Office has jurisdiction only to consider the original complaints and the Committee’s determination in respect thereof.

[22]      Taking Mr Siemer’s response to my proposal and the context and history of the ongoing complaints against Mr Luke, I am drawn to the indisputable conclusion that these applications for review are part of the ongoing harassment and vendetta by Mr and Mrs Siemer against Mr Luke.

[23]The resources of this Office cannot be used to pursue that objective.

[24] This conduct constitute ground to strike out the applications pursuant to ss 205(1)(c) and (d) of the Lawyers and Conveyancers Act 2006.

[25]The applications are accordingly struck out.

[23]Regarding costs, the LCRO concluded:

[26]      Mr and Mrs Siemer were provided with the opportunity to have the matters which were the subject of their complaints considered in the broader context of a referral to the Society by this Office. They declined that option and hence it became clear that they were not considered about the possible gaps and misalignments in the legislation governing the conduct of lawyers which were referred to by the Committees in their determinations.

[27]      Instead, it is clear that they have used the right of review to pursue what I have referred to above as harassment and vendetta against Mr Luke.

[28]      Section 210(1) [of] the Lawyers and Conveyancer’s Act 2006 provides:

The Legal Complaints Review Officer may, after conducting a review under this Act, make such order as to the payment of costs and expenses as the Legal Complaints Review Officer thinks fit.

[29]In the circumstances, the applicants are ordered to pay the sum of

$500 in respect of each application for review. This results in Mr Siemer being ordered to pay $500 in respect of LCRO 221/2018, Mr and Mrs Siemer the sum of $500 in respect of LCRO 220/2018 and Mrs Siemer the sum of $500 is in respect of LCRO 47/2019.

[30]Such payments are to be made by 31 January 2020.

[31]      This order may be enforced in the civil jurisdiction of the District Court, pursuant to s 215 of the Act.

[24]      The LCRO then ordered that no part of the decision may be published or made known by either party to any other person, as the subject matter of this decision is not in the public interest.

Legislative framework and legal principles

[25]      The LCRO is appointed by the Minister (being the Minister of the Crown responsible for the administration of the Act) under s 190 of the Act, with criteria for appointment noted under s 191. The LCRO is to be a person “who is not a lawyer or a conveyancing practitioner”.11 The functions of the Legal Complaints Review Officer are, among others, to “exercise the powers of review conferred on the Legal Complaints Review Officer by this Act”.12

[26]      As noted by Katz J, the disciplinary process under the Act is sui generis.13 Put another way, Winkelmann J (as she was then) observed in Deliu v Hong that the LCRO’s review is not the equivalent of a general appeal as the Act “creates a very particular statutory process”.14

11 Lawyers and Conveyancers Act 2006, s 190(1).

12     Section 192.

13     A v Legal Complaints Review Officer [2013] NZHC 1100, (2013) 21 PRNZ 542 at [41].

14     Deliu v Hong [2012] NZHC 158 at [39]; cited by the Court of Appeal in Zhao v Legal Complaints Review Officer [2021] NZCA 694 at [51].

[27]Section 3 of the Act sets out that:

(1)The purposes of this Act are –

(a)To maintain public confidence in the provision of legal services and conveyancing services:

(b)To protect the consumers of legal services and conveyancing services; and

(c)To recognise the status of the legal profession and to establish the new profession of conveyancing practitioner.

[28]      A complainant may apply for a review of the Committee’s determination to the LCRO. On the receipt of an application made in accordance with the Act, pursuant to s 199 the LCRO must conduct a review, subject to ss 200, 201 and 205. Titled “Avoidance of unnecessary formality”, s 200 provides:

200     Avoidance of unnecessary formality

The Legal Complaints Review Officer must conduct any review with as little formality and technicality, and as much expedition, as is permitted by—

(a)the requirements of this Act; and

(b)a proper consideration of the review; and

(c)the rules of natural justice.

[29]      At the centre of this judicial review is s 205, which provides a mechanism by which the LCRO may strike out applications for review. Section 205 of the Act states:

205Legal Complaints Review Officer may strike out, determine, or adjourn application for review

(1)The Legal Complaints Review Officer may strike out, in whole or in part, an application for review if satisfied that it—

(a)discloses no reasonable cause of action; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of process.

(2)If a party is neither present nor represented at the hearing of an application for review, the Legal Complaints Review Officer may,—

(a)if the party is required to be present, strike out the application; or

(b)determine the application in the absence of the party; or

(c)adjourn the hearing.

[30]Section 206 of the Act further provides that:

206Proceedings of Legal Complaints Review Officer

(1)Every review conducted by the Legal Complaints Review Officer under this Act must be conducted in private.

(2)Despite anything in this Act to the contrary, if it appears to the Legal Complaints Review Officer that a review can be adequately determined on the papers, he or she may, without the consent of the parties, do so on the basis of the information available, including any information obtained under section 204(b).

(2A) Before doing so, he or she must give the parties a reasonable opportunity to comment on whether the review should be dealt with in that manner.

(2B) The hearing of a matter or any part of it may be conducted by telephone, audiovisual link, or other remote access facility if the Legal Complaints Review Officer considers it appropriate and the necessary facilities are available.

(3)Subject to subsection (2) and to sections 205, 207, and 208, the Legal Complaints Review Officer must perform his or her functions and duties and exercise his or her powers in a way that is consistent with the rules of natural justice.

(3A) The Legal Complaints Review Officer’s powers to determine a review are not affected by the failure of any party to—

(a)make a submission or comment within the time allowed; or

(b)give specified information within the time allowed; or

(c)attend, or participate in, a hearing called by the Legal Complaints Review Officer; or

(d)do any other thing the Legal Complaints Review Officer asks for or directs.

(3B) If any failure of the kind referred to in subsection (3A) occurs in  review proceedings, the Legal Complaints Review Officer may—

(a)draw from the failure any reasonable inferences he or she thinks fit; and

(b)determine the review concerned on the basis of the information available to him or her or strike out the application for review under section 205; and

(c)give any weight he or she thinks fit to information—

(i)that he or she asked for, or directed to be provided; but

(ii)that was provided later than requested or directed.

(4)The Legal Complaints Review Officer may, subject to subsection (3) and section 206A, direct such publication of his or her decisions as he or she considers necessary or desirable in the public interest.

(5)Subject to this Act, any rules made under this Act, and any practice notes issued under section 215A, the Legal Complaints Review Officer may regulate his or her procedure in such manner as he or she thinks fit.

Discussion

Formal proof and judicial review

[31]      It is trite law that judicial review is the exercise of the Court’s supervisory jurisdiction over public decision makers and where relief is discretionary.15 Invariably it involves an assessment of what is required in such circumstances to maintain the rule of law. In any event, there are currently divergent judgments of this Court on the amenability of judicial review to formal proof. For example, in Lagolago v Judicial Conduct Commissioner, Edwards J held:16

As a matter of general principle, I see no reason why judicial review applications should not be decided by way of formal proof. Rule 15.9 of the High Court Rules sets out a procedure for obtaining judgment by default where the claim is not for payment of a liquidated demand. Judicial review applications fall within that category of claim and there is no obvious reason to exclude them.

[32]In contrast, Cooke J held, in Preston v Special Claims Tribunal:17

[T]here is no concept of formal proof in a judicial review proceeding – a judicial review proceeding involves the Court’s supervisory jurisdiction, and any challenge to a decision subject to review needs to be argued and addressed irrespective of the extent of opposition.

15     Ririnui v Landcorp Farming Ltd [2016] 1 NZLR 1056.

16     Lagolago v Judicial Conduct Commissioner [2020] NZHC 3413, (2020) 25 PRNZ 610 at [32].

17     Preston v Special Claims Tribunal [2021] NZHC 3043, (2020) 26 PRNZ 40 at [12].

[33]      Arguably at least, judgment by default is inapposite. However, on reflection, I tend to the view expressed by Edwards J in this context, pending an authoritative appellate court determination.

Judicial review of a strike out under s 205

[34]      Section 205 is a 2018 addition to the Act, introduced under the Tribunal Powers and Procedures Legislation Act 2019.18 Previously, the LCRO had a limited ability to strike out meritless claims.19 The tenor of the 2018 amendment was to expand the LCRO’s ability to deal with what the LCRO perceived to be meritless complaints. This must be the lens through which the exercise of discretion under s 205 is viewed.

[35]      The Court of Appeal has considered the scope of s 205(1)(a) in Zhao v Legal Complaints Review Officer, and made clear the ways in which a strike out for lack of a reasonable cause of action under s 205 is a distinct process from strike out in the courts under r 15.1 of the High Court Rules 2016 for want of a reasonably arguable cause of action (noting the distinct language).20

[36]      The same reasoning might also apply to a strike out under s 205(1)(c) and (d) where the LCRO determines an application for review is frivolous or vexatious or otherwise an abuse of process. The LCRO’s procedure is unique, conducted in accordance with the Act’s language and purpose. The discretion to reach a decision on that point is also uniquely wide. Arguably, this point is illustrated by s 206(3):

(3)Subject to subsection (2) and to sections 205,  207, and 208, the   Legal Complaints Review Officer must perform his or her functions and duties and exercise his or her powers in a way that is consistent with the rules of natural justice.

(emphasis added)

18 This was following an omnibus bill focussed on the goal of a modern, efficient and effective courts and tribunals system. See Tribunals Powers and Procedures Legislation Bill 2017 (286-3).

19 See (15 August 2017) 724 NZPD 20166. When the bill was introduced in Parliament in its first reading, the then Minister of Justice stated that “the Legal Complaints Review Officer will be given the powers needed to reduce the backlog of cases that has developed. More cases will be able to be dealt with on the papers instead of a hearing having to be held. Meritless complaints will also be able to be struck out at an early stage. This will enable other cases to be resolved sooner.”

20 Zhao v Legal Complaints Review Officer [2021] NZCA 694 at [46].

[37]      Parliament intends for s 205 to be a standalone provision under which the LCRO has a wide discretion and looser procedural requirements than might otherwise be the case once an application for review is accepted. With respect to the approach to judicial review under pt 7 of this Act, Palmer J confirmed:21

[2]   The orthodox principles of lawful decision-making that are upheld by the law of judicial review are not to be either read down or elevated in the context of professional discipline. A review by the LCRO is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

(emphasis added)

[38]Regarding the intensity of review that might be applied, Palmer J further stated:

[9] In professional discipline cases I simply note that the interests at stake, namely professional reputations, can reasonably be expected to be keenly felt by the participants. The purpose of the Act here is undoubtedly focused on the expeditious resolution of complaints. However, the process and substance of that resolution is explicitly required to be consistent with the principles of natural justice. It must also accord with the other orthodox principles of lawful decision-making that are upheld by the law of judicial review. Those principles are not to be either read down or elevated in the context of professional discipline.

(emphasis added)

[39]      However, the present decision was made under s 205 and is not a typical review of the LCRO. In any case, there is scope for the Court to judicially review the LCRO’s decision to strike out an application for review under s 205. In accordance with administrative law principles, judicial intervention is possible if the LCRO has erred in law by misconstruing the statutory powers, acted unreasonably or with bad faith, committed a procedural error, or unreasonably encroached on fundamental rights or values. Given the nature of s 205, this is a more limited scope of review than might otherwise be available in relation to a review of the LCRO. With this background, I turn to consider the LCRO’s 18 December 2019 decision.

21     Deliu v Connell [2016] NZHC 361.

Mr Siemer’s grounds of review

[40]      As foreshadowed, Mr Siemer argued on three principal bases. First, that the LCRO relied on irrelevant considerations when making his decision. Mr Siemer submitted that his response to the LCRO’s proposal, that his complaint against Mr Luke be withdrawn and the matter be referred to the Law Society so that the issues could be reviewed on an administrative basis, was an irrelevant consideration. Moreover, he contended that the LCRO’s reference to Hinton J’s comments in a case in which he was not a party was an irrelevant consideration for the LCRO.

[41]      On the second ground, Mr Siemer argued that the LCRO erred in failing to consider any merits of the review application, which is inexplicable when the LCRO had already acknowledged that the complaints raised important issues which he wished the Law Society to consider.

[42]      On the third ground, Mr Siemer submitted that the LCRO’s demand that the review application be withdrawn as a “precondition of his proposal”, and his subsequent strike out of the application on the basis that Mr Siemer did not comply with his proposal, is indicative of bad faith. Mr Siemer contended that the costs order against him was issued because he refused to withdraw his review application and that this is further evidence of bad faith. Mr Siemer submitted that the LCRO’s ex parte communications with Mr Luke and his demand that the complaints with “accepted merit” be withdrawn, again constituted bad faith. It is not difficult to understand that Mr Siemer may have taken from the correspondence of the LCRO that he was being offered what effectively amounted to a quid pro quo. While the LCRO may not have intended that, it was not unreasonable for Mr Siemer to interpret the LCRO’s actions in that way.

Did the LCRO take only relevant considerations into account?

[43]      It is well settled that the exercise of a discretionary power may be invalid if the decision maker fails to take into account relevant considerations or takes into account

irrelevant considerations.22 Reliance on a legally irrelevant considerations will vitiate the decision-making, as will a failure to take into account a mandatory consideration. This is distinct from permissible considerations. As the learned authors of Joseph on Constitutional and Administrative Law note:23

Decision-makers risk adverse inferences where they act in a perfunctory or pro forma manner. They must show that they have genuinely evaluated mandatory relevant considerations, and that they have discounted legally irrelevant ones.

(footnotes omitted)

[44]      However, it is for the decision maker to determine the weight to be given to any mandatory considerations.24 The question here is whether the LCRO took account of irrelevant considerations when relying upon Mr Siemer’s history of “harassing” and making complaints against Mr Luke, and his refusal to withdraw his application for review and refer his complaints to the Law Society for consideration generally. To be valid, those considerations must be relevant for the purpose of establishing that Mr Siemer’s application was frivolous, vexatious or otherwise an abuse of process.

[45]      Mr Siemer’s history regarding Mr Luke was a relevant consideration. Both Palmer and Hinton JJ found that Mr Siemer pursued vexatious litigation as a vehicle to “harass” Mr Luke. As set out above, there is an extensive history of Mr Siemer engaging with Mr Luke through judicial and non-judicial means. A complainant’s history of making vexatious claims against a particular person is relevant to the assessment of whether that complainant’s subsequent and related claim against that person is frivolous, vexatious or otherwise an abuse of process.

22  See for example Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1 (CA) at 33; and Whitehouse Tavern Trust Board v Department of Internal Affairs [2014] NZHC 662, [2014] NZAR 605 at [66].

23     Philip Joseph Joseph on Constitutional and Administrative Law (5th  ed, Thomson Reuters, 2021) at 1011 citing Liu v Chief Executive of Department of Labour [2012] NZHC 2753, [2012] NZAR 1012 at [55]; O’Brien v Immigration and Protection Tribunal [2012] NZHC 2599, [2012] NZAR 1033 at [28]–[35]; Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [50] and [62]–[63]; and Gravatt v Auckland Coroner’s Court [2013] NZHC 390, [2013] NZAR 345 at

[39] and [82].

24 See Valuer-General v Wellington Rugby Football Union Inc [1982] 1 NZLR 678 (CA); New  Zealand Fishing Industry Assoc Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 568; Behari v Minister of Immigration [1990] 3 NZLR 558 (CA); New Zealand Co- operative Dairy Co Ltd v Commerce Commission [1992] 1 NZLR 601 (HC) at 612; Northern Roller Milling Co Ltd v Commerce Commission [1994] 2 NZLR 747 (HC) at 754–755; Minister of Immigration v Al Hosan [2008] NZCA 462, [2009] NZAR 259 at [66]; and AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [49].

[46]      However, the position differs with respect to Mr Siemer’s refusal to withdraw his application in exchange for his complaints being referred to the Law Society for general inquiry. I consider that this refusal is not indicative of whether his application is vexatious, frivolous or otherwise an abuse of abuse of process. While his complaints may have raised matters of general importance, they were nevertheless directed at Mr Luke’s conduct towards him. It is evident from past events that Mr Siemer is concerned with litigating his issues with Mr Luke, not with raising issues of public concern with the Law Society. His desire to have his specific complaints reviewed by the LCRO, rather than incorporated into a more general inquiry by the Law Society, therefore cannot be an indicator of whether his application is an abuse of process.

[47]      This is particularly because the LCRO’s proposal involved Mr Siemer withdrawing his application. If he agreed to the proposal his specific complaints against Mr Luke would not be reviewed by the LCRO. In effect, the consequence to Mr Siemer would be the same as if his application was struck out. Mr Siemer rightly points out that if his concerns about the way lawyers advertise and accept payment online were of public importance, then the LCRO could have raised them with the Law Society regardless. But if Mr Siemer rejected the LCRO’s proposal, it transpired that the LCRO would strike out his application partly because of that refusal. His choice not to withdraw his application and forego his complaints against Mr Luke being reviewed cannot be used against him to reason that his application was vexatious in the first instance.

[48]      I therefore consider that the LCRO took account of an irrelevant consideration when reasoning that Mr Siemer’s refusal to withdraw his application in exchange for referral of his complaints to the Law Society was an indicator that his claim was vexatious, frivolous or otherwise an abuse of process. Accordingly, on this ground of review, Mr Siemer’s application is granted.

Did the LCRO act in bad faith or with bias in relation to his decision?

[49]      The next issue is whether the LCRO acted in bad faith. Where a decision- maker abuses its power under a statute it acts in bad faith and the courts will intervene. Bad faith requires the presence of malice, fraudulent or dishonest intent or knowledge

that there is no ground for deciding.25 As Joseph on Constitutional and Administrative Law states:26

An applicant alleging bad faith faces a high evidential burden of proving ill- will, dishonesty or fraud, or that the decision-maker knew there were no grounds for the decision, or that it was knowingly entered in error.

(footnotes omitted)

[50]      Then in Attorney-General v Ririnui the Court of Appeal confirmed that an allegation of bad faith requires a high evidential burden and that even where irrational and untruthful conduct are present, this does not necessarily satisfy the stringent test for the presence of bad faith:27

[78] In order to succeed the Trust must satisfy a high evidential burden of proving that Ms Houpapa was motivated by ill-will, dishonesty or fraud towards the Trust, and that she knew what she was doing was unlawful.

…

[93] In the absence of an explanation on oath from Ms Houpapa, we agree with Mr Isac that an adverse inference can be drawn about her conduct. But such an inference is limited to a conclusion that Ms Houpapa acted irrationally and untruthfully when speaking to the Trust representative on 4 March. Those factors do not, however, prove bad faith: people can act irrationally and untruthfully without intending to damage the interests of others. Mr Isac did not identify any evidence to suggest that Ms Houpapa was motivated by ill-will towards Ngāti Whakahemo; to the contrary, she was apparently sympathetic to the Trust’s cause. And he did not refer to any evidence to support his submission that Ms Houpapa’s purpose was to deceive the Trust into not applying for injunctive relief. While she may have known of its threat, Mr Isac was unable to point us to the factual foundation necessary to link her knowledge to that objective. When Ms Houpapa’s conduct is examined objectively, and in context, it cannot justify the importance which the Trust now ascribes to it.

(emphasis added)

[51]      Applying the above principles, I am not satisfied that the LCRO acted in bad faith. There is nothing to suggest that the LCRO knew there were no grounds for the

25 See for example Westpac Banking Corp v Commissioner of Inland Revenue (2008) 23 NZTC  21,694 (HC) at [88]; and Deliu v New Zealand Law Society [2015] NZCA 12, [2016] NZAR 1062 at [25].

26     Philip Joseph Joseph on Constitutional and Administrative Law (5th  ed, Thomson Reuters, 2021) at 1001–1002 citing Martin v Ryan [1990] 2 NZLR 209 (HC) at 231–233; Attorney-General v Ririnui [2015] NZCA 160 at [78]; and Mary Moodie Family Trust Board (Inc) v Attorney-General [2015] NZHC 365, [2015] NZAR 379 at [101]–[104], [111], [112], and [116].

27 Attorney-General v Ririnui [2015] NZCA 160.

decision striking out Mr Siemer’s application, or that the decision was knowingly entered in error. While the LCRO relied on one irrelevant consideration, he also relied on the history of the matter. This was a relevant consideration supporting his assessment that Mr Siemer’s application was vexatious like his prior complaints and consistent with his previous “harassment” of Mr Luke. For that reason, the decision was not “groundless”, and nor could it be knowingly entered in error.

[52]      The final question is whether the LCRO was biased. The rule against bias is fundamental and requires that the decision maker be impartial. Bias may be actual or apparent and both forms will disqualify a decision maker. Apparent bias arises where the decision-maker has some personal or professional relationship with a party or a prejudice against or preference towards any party or result or predisposition leading to a particular outcome.28 The question for apparent bias is whether the fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question the decision maker was required to decide.29 Moreover, bias is a variable standard. It is at its most demanding in relation to the judiciary and is less demanding by comparison when applied to low-level administrative bodies.30 As Joseph notes:31

The factual basis of a bias allegation must be carefully made out. The courts guard   against   unmeritorious   allegations   where   complainants “throw the ‘bias’ ball in the air”. The inquiry must be “rigorous”.

(footnotes omitted)

[53]      I am not satisfied that there is sufficient evidence that the LCRO was biased against Mr Siemer. His argument is that the LCRO must have been biased because a non-biased decision-maker could not have come to the same conclusions as the LCRO. Mr Siemer has not articulated any personal or professional relationship with a party or a prejudice against or preference towards a party or result or predisposition of the LCRO which led to the particular outcome. This factual basis must be carefully made

28 See for example P v Q [2018] NZHC 2647 at [24]; and R v Gan [2016] NZHC 2031 at [8].

29  Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].

30 Greenpeace of New Zealand v Charities Registration Board [2020] NZHC 1999 at [160].

31     Philip Joseph Joseph on Constitutional and Administrative Law (5th  ed, Thomson Reuters, 2021) at 1145 citing Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [62].

out and I do not accept that it has been here. It follows that there is no basis for a fair minded lay observer to reasonably apprehend that the LCRO might not have brought an impartial mind when striking out Mr Siemer’s application for review. While, after some reflection, it might be said that the LCRO’s approach might have been different, the evidence does not support the contention that the LCRO was biased against Mr Siemer and acted in bad faith.

Decision

[54]Mr Siemer’s application for judicial review is granted.

[55]      Mr Luke’s application for the striking out of Mr Siemer’s application for review of the Standards Committee’s decision is remitted to the LCRO for reconsideration.

[56]The costs order made by the LCRO is quashed.

Harvey J