Braun & Bond v Legal Complaints Review Officer & Simone Harris [2022] NZHC 1501

In this matter, Greg Walsh acted on a pro bono basis for Simone Harris, the Second Respondent.

An application was made by the Applicants for judicial review of a decision of Legal Complaints Review Officer (‘LCRO’) asserting that there was a slip in a decision of the Law Society Standards Committee which should have been corrected by the LCRO.

The Second Respondent’s late father, Mr Harris, assisted his daughter in respect of a costs dispute with the Applicants. That dispute was the subject of a referral to a Costs Assessor in respect of twenty bills which totalled $52,958.50. The Assessor in his report included GST (the GST error). He recommended that the total fee was fair and reasonable for the work performed.

On 25 May 2021, the LCRO sent the Assessor’s report to the Applicants with a notice of hearing, setting the matter down on 7 July 2021. Submissions were provided. The Applicants did not notice the GST error in the Assessor’s report. The Applicants contended that this was an oversight on their behalf.

On 30 May 2021, the Second Respondent made submissions by way of a one page letter from her father, the late Mr Harris, accepting the findings of the Assessor and as a gesture of good faith, paying a sum of NZ$30,000 leaving a balance of NZ$22,000 in the event that the findings of the Assessor were adopted.

On 17 August 2021, the Committee sent the Applicants it notice of determination which again referred to the figure of $52,958.50 including disbursements and GST. It resolved to accept the recommendation of the Assessor and decided to take no further action on the complaint.

In the letter of 30 May 2021, Mr Harris had made submissions in respect of various issues including abuse of process and issue of estoppel.

On 15 September 2021, the Professional Standards officer informed the Applicants that the Committee had sought clarification on the Assessor who agreed that he had made an error. The Second Respondent’s concern was not forthcoming to the correction of that error.

On 24 September 2021, the Applicants applied to the LCRO for a review of the Committee’s decision. On 14 January 2022, the LCRO issued a decision striking out the application as an “abuse of process”. A number of errors were contended on behalf of the Applicants and in respect of each they were successful in the judgment of Gordon J. Mr Walsh prepared submissions on behalf of the Second Respondent and these were filed and served though time constraints did not permit Mr Walsh to personally appear in the matter as there was not sufficient time for an application under the relevant legislation to be dealt with by the New Zealand Law Society to be admitted in New Zealand for the purposes of representing the Second Respondent in these proceedings.

The Court made orders that the Committee could not rectify the error and re-issued its decision and the s.161 certificate had the Second Respondent considered to the correction of the error. The tests applied by the LCRO were found to be in error and the application for judicial review was granted and the Committee’s decision of 17 August 2021 and s.161 certificate were admitted so the alleged tax invoices total $52,958.50 excluding GST and disbursements. It is apparent that in New Zealand, law practices charge a flat 15% interest for outstanding costs and disbursements. There is no requirement for disclosure as to an estimate of total costs as provided in the legislation throughout Australia, such as the Legal Profession Uniform Law (NSW) (‘LPUL’).

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