IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE	
CIV-2020-454-44
[2021] NZHC 488	

BETWEEN	JEREMY JAMES McGUIRE
Appellant	
AND	ROBERT BUTLER
Respondent	

Hearing:	8 March 2021	
Appearances:	Appellant in Person
Second Respondent in Person	
Judgment:	12 March 2021	

JUDGMENT OF COOKE J

[1]	Mr McGuire appeals against two decisions of the District Court, the first dated 30 June 2020 dismissing his without notice application for a stay of enforcement of a warrant to seize property and review,1 and the second dated 27 July 2020 in which the District Court declined Mr McGuire’s application to recall the 30 June judgment.2

Background

[2]	Mr Butler was Mr McGuire’s client. In 2016 Mr Butler instructed Mr McGuire, and as a consequence of those instructions Mr McGuire lodged a caveat

1	McGuire v Palmerston North District Court [2020] NZDC 12126.
2	McGuire v Palmerston North District Court [2020] NZDC 14942.

JEREMY JAMES McGUIRE v ROBERT BUTLER [2021] NZHC 488 [12 March 2021]

against a property in which Mr Butler’s deceased father held an interest. That caveat was later found to be without foundation and with the assistance of new solicitors it was withdrawn. Mr Butler also agreed to pay costs to other family members arising from its lodgement.

[3]	In October 2017 Mr Butler lodged a complaint with the Law Society about Mr McGuire’s conduct. He complained that Mr McGuire had given inadequate advice and that this had resulted in the wasted expenditure associated with the invalid caveat. The complaint was referred to the Standards Committee which determined that the advice Mr McGuire had provided Mr Butler amounted to unsatisfactory conduct. Mr McGuire was censured and ordered to pay a fine and costs to the New Zealand Law Society in a total amount of $7,000. He was also directed to pay Mr Butler $1,909.50, being an amount that the Committee found amounted to the costs incurred by Mr Butler in relation to the ill-conceived caveat.

[4]	Mr McGuire filed an application to the Legal Complaints Review Officer (the “LCRO”) seeking a review of the determination. Mr Butler in turn filed an application to review the penalty and remedy determinations seeking an increased award of compensation beyond that ordered by the Standards Committee. By a decision dated 25 March 2020 the LCRO dismissed both review applications and confirmed the determinations of the Standards Committee.3

[5]	By letter dated 3 June 2020 Mr McGuire applied to the LCRO for recall of the decision on the basis that it was wrong in fact and law. By Minute dated 3 June the LCRO declined that application.

[6]	It is apparent that Mr McGuire remained unhappy with the decision of the LCRO, however. He did not pay the amount the LCRO had confirmed as payable to Mr Butler. Mr Butler then applied to the District Court for a warrant to seize property belonging to Mr McGuire in satisfaction of the $1,909.50 awarded to him, plus $200 costs being the filing fee. The Registrar issued the warrant in accordance with Mr Butler’s application.

3	McGuire v Butler [2020] NZLCRO 43.

[7]	On 25 June 2020 Mr Butler then filed a without notice application to the District Court to stay enforcement of the warrant and seeking a review of the Registrar’s decision. Mr McGuire acted for himself on this application and he swore an affidavit in support dated 24 June 2020.

[8]	It was that application that was addressed by Judge Rowe in the judgment dated 30 June 2020.4 He dismissed both the application to stay enforcement of the warrant and the application to review the Registrar’s decision.

[9]	Mr McGuire then filed a memorandum in the District Court dated 1 July 2020. He expressed his disappointment with the observations in the District Court judgment that he had failed to comply with his duty of candour associated with making an ex parte application to the Court. The following day he also filed an application for recall. This said that the Judge had erred and that the only decision that was enforceable was the costs award made in favour of the Law Society.

[10]	The hearing was then convened by the Judge involving Mr McGuire and Mr Butler leading to the oral decision dismissing the application.5

[11]	Mr McGuire then made a request for a transcript of the hearing. Following a direction that he provide a memorandum to outline the reasons for the request, he did so, indicating that he was surprised by the way the hearing had been conducted and saying that he thought the hearing was unfair.

[12]	On 14 August Mr McGuire filed this appeal against both the 30 June and 27 July 2020 judgments. He has also filed a further application for leave to appeal out of time in relation to the 30 June judgment. I note that the amount in question has now been paid to Mr Butler.

[13]	I have now heard the appeal in Palmerston North. In addition to the written submissions of Mr McGuire and Mr Butler, I have had the advantage of oral submissions.

4	McGuire v Palmerston North District Court, above n 1.
5	McGuire v Butler, above n 3.

[14]	Following the hearing Mr McGuire filed a further memorandum dated 9 March 2021 which seems to me to simply reiterate an argument he made at the hearing. Mr Butler also filed a memorandum dated 10 March responding to something Mr McGuire had said in reply.

No enforceable order

[15]	Mr McGuire’s first argument is that there was no enforceable order made that could properly lead to the enforcement action being taken, and that the District Court erred in finding that there was. Mr McGuire argues that decisions of the Standards Committee cannot be enforced as a judgment, and that whilst decisions of the LCRO can be, he had not appealed to the LCRO against the determination that he pay the
$1,909.50 to Mr Butler, and this had been expressly recorded by the LCRO at a number of places in its decision. It follows, Mr McGuire argued, that there is no such enforceable order made by the LCRO.

[16]	I do not accept these arguments. I conclude that the LCRO did make an order requiring Mr McGuire to pay the $1,909.50. Sections 211 and 215 of the Lawyers and Conveyancers Act 2006 provide:

211	Powers exercisable on review

(1)	The Legal Complaints Review Officer may, on a review under section 193, do any 1 or more of the following things:

(a)	confirm, modify, or reverse any decision of a Standards Committee, including any determination, requirement, or order made, or direction given, by the Standards Committee (or by any person on its behalf or with its authority):

(b)	exercise any of the powers that could have been exercised by the Standards Committee in the proceedings in which the decision was made or the powers were exercised or could have been exercised.

(2)	Section 189 applies, with all necessary modifications, to any order made or power exercised under this section by the Legal Complaints Review Officer as if that order had been made or that power had been exercised by a Standards Committee.

(3)	Nothing in this section limits section 209, section 210, section 212, or section 215.

215	Enforcement of orders for payment of money

(1)	For the purpose of enforcing any order of the Legal Complaints Review Officer for the payment of money (whether compensation, the refund of a fee, a fine, or costs or expenses), a duplicate of the order may be filed by the person to whom the money (whether compensation, the refund of a fee, a fine, or costs or expenses) are payable in the office of the court named in the order and thereupon becomes enforceable in all respects as a final judgment of that court in its civil jurisdiction.

(2)	In every case where an order for money (whether compensation, the refund of a fee, a fine, or costs or expenses) is made by the Legal Complaints Review Officer, the order must name the court in which the order may, if necessary, be enforced.

(3)	The court so named must be—

(a)	the District Court, if the amount recoverable does not exceed
$350,000 or any higher amount from time to time specified in section 74 of the District Court Act 2016 as the upper limit of the general civil jurisdiction of the District Court; or

(b)	in every other case, the High Court.

[17]	The decision of the LCRO dated 25 March 2020 stated:

Decision

[148] Pursuant to s 211(1)(a) of the Lawyers and Conveyancers Act 2006 both the conduct determination and the penalty and remedy determination of the Standards Committee are confirmed.

[18]	It is true that as a consequence of s 211(2), s 189 applies to the confirmation of a Standards Committee decision, and that awards made in favour of the Law Society become a debt to the Society. But the amount in issue here was an award to the former client, not to the Society. Under s 211(3) it is expressly provided that nothing in s 211 limits s 215. Section 215 is plain that any order of the LCRO “whether compensation, refund or a fee, a fine, or costs or expenses” has the effect of a Court order. A decision of the LCRO confirming a remedy determination by the Standards Committee becomes an order of the LCRO under s 215. As the District Court Judge noted, s 215 was expressly intended to allow LCRO decisions to be enforceable in this way.6

6	McGuire v Butler, above n 3 at [16].

[19]	It is apparent that the LCRO did in fact make an order confirming what Mr McGuire should pay and accordingly that s 215 applied to that order.

[20]	Mr McGuire’s related argument is that, even if the LCRO had in fact made such a s 215 order, it was an order made without jurisdiction. That is because he had not challenged the compensation award made by the Standards Committee and accordingly this could not be the subject of a LCRO order on review.

[21]	Again I do not accept Mr McGuire’s point. It is true that Mr McGuire did not challenge to the compensation award in his request for review. But he nevertheless challenged the Standards Committee’s decision. If he had succeeded with that challenge the whole of the Committee’s determination could have been set aside including the award in Mr Butler’s favour. For that reason alone it was in order for the Review Officer when rejecting Mr McGuire’s challenge to confirm the decision and accordingly the award made. That is what s 211(1) says. In addition, Mr Butler had himself appealed and sought an increase in the compensation award. That also allowed the Review Officer to confirm the award when determining the reviews.

[22]	I accordingly dismiss this aspect of the appeal.

Unfair hearing

[23]	Mr McGuire’s next argument concerned the manner in which the recall hearing occurred before Judge Rowe. In essence Mr McGuire says that the hearing involved excessive judicial intervention and that the hearing became a contest between him and the Judge. He referred to a line of authority suggesting a Judge should not become involved in the fray, and contended the Judge had done so here relying on State Insurance Ltd v McLaren. 7

[24]	I see no substance in Mr McGuire’s point. First, the authority he referred concerned a trial. It cited the principle from EH Cochrane Ltd v MOT in which it was said:8

7	State Insurance Ltd v McLaren HC Blenheim, 31 May 2002, AP1/01 per John Hansen J.
8	EH Cochrane Ltd v MOT [1987] 1 NZLR 146 at 151 per Cooke P.

It is recognised too, that even under the adversary system the Judge is entitled, provided that he avoids descending into the arena, to engage in what was called by Jeffries J in McLean v Ministry of Transport Auckland, M722/82, 16 September 1983 “a lively and active participation in the trial process”. Of course, the more lively his activity, the more wary the Judge has to be of the pitfall. We would put it that he should avoid any appearance of taking on an adversary role himself or of espousing a cause, but that he can rightly be constructive, particularly in clarifying issues or eliminating irrelevancies.

[25]	Although the same principle would apply to other hearings as well, it needs to be remembered that a Judge may be entitled to begin forming opinions during a more confined hearing, whereas during a trial when witnesses are giving evidence there may still be significant matters for the Judge to hear.

[26]	More significantly the present case had some striking factors. Mr McGuire was seeking to avoid payment of a reasonably modest amount that the relevant bodies established under the Lawyers and Conveyancers Act had required him to pay to a former client because he had engaged in what they found to be unsatisfactory conduct. He was now bringing proceedings against his former client preventing him from enforcing the award. The arguments he was advancing were rightly rejected. It would not be surprising if the views of the District Court Judge had developed a level of robustness.

[27]	To the extent that this argument can have relevance to Mr McGuire’s appeal I dismiss it.

Criticisms of Mr McGuire

[28]	In his notice of appeal and his written submissions Mr McGuire also criticised the finding of the District Court Judge that involved personal criticism of him.

[29]	The District Court Judge did criticise Mr McGuire in the 30 June decision. In particular he said he had failed to put forward all relevant material when making an application without notice to the District Court. The Judge held:9
[15]	Mr McGuire had a duty of candour when filing a without notice interlocutory application under r 7.16 of the District Courts Rules 2014 to:

9	McGuire v Palmerston North District Court above n 1, footnote omitted.

(a)	Ensure that the application and supporting documents contain all
 material relevant to the application, including any defence that might be relied on by any other party and any facts that would support the position of any other party.

(b)	The background to the proceeding, including the material facts that relate to the proceeding.

(c)	All information known to Mr McGuire relevant to the application, including any known grounds of opposition or defence that the other party might rely on and any facts that would support opposition to the application or defence.

[16]	In short, Mr McGuire knows what debt Mr Butler seeks to enforce, and why. He had a duty to disclose all facts relating to that claim, including that the debt Mr Butler seeks to enforce is a debt established and confirmed through the Law Practitioners Act complaints process. I am permitted to dismiss Mr McGuire’s application on this ground alone …

[30]	The key issue here was that when Mr McGuire filed his without notice application and accompanying affidavit he did not refer to the basis for the LCRO’s decision being enforceable as a judgment. In his affidavit in support of the application he referred to the background concerning the lodgement of a caveat and his view of his interactions with Mr Butler. He then said:

Despite all this, and despite Mr Butler making a first complaint about me because he was unhappy with the delay in registering the caveat in the first place, and now being on to his third complaint about me, the local standards committee and then the LCRO upheld the complaint. Mr Butler thinks I owe him money for legal fees he said he had to pay a different lawyer to negotiate and settle a Family Proceedings Act claim against his step-mother that I knew nothing about.

I have no idea why Mr Butler says I am a judgment debtor for a debt that can be enforced in this Court because I don’t have any details of how it was actually incurred.

I will oppose any legal proceedings issued by Mr Butler.

I cannot find any authority that supports the issuing of this warrant to seize my property in all the circumstances.

[31]	In the without notice application he gave the following certifications:

I certify that-

(a)	The grounds set out in paragraph 4 on which the application relies are made out;

(b)	All reasonable inquiries and all reasonable steps have been made or taken to ensure that the application contains all relevant information, including

any opposition or defence that might be relied on by any other party, or any facts that would support the position of any other party.

[32]	The key point being made by the District Court Judge is that these assertions on oath and in the certifications appeared to be misleading because they made no reference to the LCRO orders confirming the requirement to pay Mr Butler $1,909.50 and to the basis for enforcement under s 215.

[33]	Mr McGuire’s response on this point is to say that there was nothing misleading about this material as the District Court Judge was aware of the LCRO decision which had been filed by Mr Butler when he had had first made his application. Accordingly he says these criticisms are unjustified and unfair.

[34]	I see nothing objectionable with what the District Court Judge has said. It may well be that the LCRO decision was on the file and that Mr McGuire knew this. Mr McGuire’s application also made express reference to the LCRO decision. But the certification provided by Mr McGuire and the statements he has made on oath were at the least very one-sided. It is no answer to the criticism that the materials put forward did not properly describe the position to say that the District Court Judge could (and did) work that out from material on the file. It is not appropriate for any party to approach the Court on an ex parte basis without fairly recognising the position that would be put forward by the opposing party had they been given notice. These obligations are particularly important when a solicitor is personally bringing proceedings. Mr McGuire said he had “no idea” why Mr Butler said he was a judgment creditor. But orders had been made that he pay that amount. Section 215 provides that orders of the LCRO can be enforced as a judgment. I agree with the District Court Judge that the duty was not complied with. The impression given by Mr McGuire was that Mr Butler had no grounds to seek enforcement.

[35]	In short, I agree with the District Court Judge that Mr McGuire did not meet his obligations associated with the ex parte application, and I see no difficulty with the Judge recording that in the judgment when dismissing the application given that it alone provided a potential ground for dismissing it.

Costs

[36]	In his written submissions in support of his appeal, Mr McGuire indicated he wished to address the Court on the question of the costs of this appeal.

[37]	I indicated at the conclusion of the hearing that I wanted to hear from the parties on the issue of costs. Mr McGuire initially indicated that it would depend on what the outcome of the appeal was, but I indicated I still wished to know the parties’ stance.

[38]	Mr McGuire indicated that if he succeeded he wished the costs be awarded to him on a 2B basis. He would be eligible for such an award as a consequence of the arguments that he has successfully advanced all the way to the Supreme Court in McGuire v Secretary for Justice.10 That decision confirmed that litigants in person are not entitled to costs awards under the costs regime other than for disbursements but that there is an exception in relation to solicitors acting for themselves. On the basis of that decision Mr McGuire could be entitled to scale costs against Mr Butler, but Mr Butler could only get disbursements if he were to succeed.

[39]	Because Mr McGuire does not succeed he is not entitled to costs, but Mr Butler is. Mr Butler informed me that he had been required to take a day off work to attend the appeal hearing and that these long running proceedings had taken much of his time more broadly. In his later memorandum he explained that he had also taken additional time off work to attend to the matters in the District Court. He indicated at the hearing, however, that he had no disbursements that he could properly seek under a costs award should he prevail in the appeal.

Result

[40]	For the above reasons the appeal is dismissed. There will be no order as to costs.

Cooke J

10	McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.