Deliu v Connell

• Jurisdiction: New Zealand
• Judge: Palmer J
• Judgment Date: 04 March 2016
• Neutral Citation: [2016] NZHC 361
• Docket Number: CIV 2015-404-00812
• Court: High Court
• Date: 04 March 2016

Under the Judicature Amendment Act 1972 and Part 30 of the High Court Rules

In the Matter of an application for judicial review

Between

Francis Catalin Deliu

Plaintiff

and

Richard John Connell

First Defendant

Legal Complaints Review Officer

Second Defendant

New Zealand Law Society

Third Defendant

[2016] NZHC 361

CIV 2015-404-00812

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application for judicial review of a National Standards Committee decision not to take further action on a complaint made by the plaintiff and of a decision by the Legal Complaints Review Officer (LCRO) declining the plaintiff's application for review and ordering costs against the plaintiff — following a complaint by the plaintiff, the Standards committee said that a letter written by the defendant, which had enquired into whether there was a basis for a pleading of the tort of deceit for a fraudulent misrepresentation by one of the lawyers in the plaintiff's firm, was not intended to intimidate that lawyer — the Committee also considered that the plaintiff's complaint was vexatious or not made in good faith — the LCRO upheld the Committee's findings and awarded costs against the plaintiff on the basis that his behaviour in laying the complaint was improper — what was the scope of review of the LCRO's powers — whether the LCROs decision that the plaintiff's complaint was vexatious and not being made in good faith was unreasonable — whether the LCRO erred by failing to consider recusal — whether costs should have been awarded on the basis of the complaint lacking good faith — whether it was legitimate for the LCRO to take into account a previous warning issued by the LCRO to the plaintiff.

Counsel:

Plaintiff in person

P M Fee and L M Fraser for first defendant

Appearance excused for second defendant

M J Hodge for third defendant

JUDGMENT OF Palmer J

Summary

1 The National Standards Committee determined not to take further action on a complaint made by the plaintiff, Mr F C Deliu, about a fellow law practitioner, Mr Connell, the first defendant. The Legal Complaints Review Officer (LCRO) then declined an application for review by Mr Deliu of the Committee's determination. The LCRO also ordered costs against Mr Deliu. Mr Deliu challenges these two LCRO decisions by way of judicial review.

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.

3 Here, I decline the challenges to the LCRO's review decision. However, I find that the costs decision was unreasonable and did not take into account relevant submissions on costs and a recusal application by Mr Deliu that were received late but before the decision was issued. I quash the costs decision.

The Law of Judicial Review and Review by an LCRO

Judicial Review and Intensity

4 Mr Deliu challenges the two LCRO decisions by way of judicial review. He challenges the review decision on four grounds and the decision to award costs against him on seven grounds. The law relating to the particular grounds of challenge do not need to be rehearsed in abstract. However, there is one aspect of relevant legal principle that is worth considering at the outset.

5 Mrs Fee, counsel for Mr Connell the first defendant, submitted that it is important in applying the law of judicial review to be conscious of the statutory context. She says it would be wrong to examine the LCRO's decisions under a microscope or with too demanding an eye. She points to the purpose of the relevant statutory framework, considered below, being the speedy, simple and comprehensible resolution of complaints by laypeople against lawyers in a context of regulating standards of professional behaviour. She encourages me to stand back to consider the matter overall. Mrs Fee acknowledged that this was a submission about the appropriate intensity of judicial review which should be applied by the Court.

6 The intensity of the standard of judicial review that should be applied has vexed the New Zealand courts in recent years. There is now a considerable body of academic commentary confirming that common law courts do and should apply variable, variegated or sliding standards of review depending on the context, such as the interests at stake. 1 As Dean Knight has demonstrated, New Zealand courts clearly do so, though they do not always acknowledge it explicitly. 2 A number of High Court decisions and the occasional Court of Appeal decision have invoked American “hard look” or British “anxious scrutiny” language in relation to judicial review, particularly of decisions that affect human rights. 3 Yet the ultimate judicial authority in New Zealand, the Supreme Court, has determinedly refused to adopt any such approach. Indeed, the Chief Justice suggested in one case that statutory interpretation was not “helpfully advanced by consideration of the scope and intensity of the High Court's supervisory jurisdiction to ensure reasonableness in substantive result in the exercise of statutory powers”. 4

7 There are undoubtedly good reasons of legal policy for avoiding the straight jacket that often mechanistically follows adoption of a label. But while Lord Steyn was undoubtedly correct that in this area, as in others, “context is everything”, 5 that

is hardly a useful guide to future judicial decisions. The late Professor Taggart was rightly concerned that some order be brought to the field, otherwise “the law will continue to be rather chaotic, unprincipled, and result-orientated”. 6 The consequences could include more litigation than necessary, lack of certainty, and diminution of the rule of law

8 This judgment is not the place to propose a new approach to the intensity of judicial review. But I do agree that “it would be desirable for New Zealand courts to engage more openly with the matters that influence the allocation of interpretative authority between courts and administrators”. 7 That bears directly on the courts' approach to judicial review of LCRO decisions.

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.

The Legislative Framework for LCRO decisions

10 Section 3(1) sets out three purposes of the Act:

• (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:

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

11 To achieve those purposes the Act, relevantly, “provides for a more responsive regulatory regime in relation to lawyers and conveyancers” and “states

the fundamental obligations with which, in the public interest, all lawyers and conveyancing practitioners must comply in providing regulated services” (s 3(2)(b) and (d))

12 Part 7 of the Act establishes a complaints and disciplinary regime to deal with alleged misconduct or unsatisfactory conduct by lawyers. Section 120(3) makes clear that an important purpose of the framework for complaints and discipline is to hear and determine disciplinary charges expeditiously. The complaints service “must deal, in a fair, efficient, and effective manner, with all complaints received” (s 123).

13 The NZLS is required to establish Standards Committees, composed predominantly of law practitioners, to inquire into and investigate complaints, to promote their resolution, to make final determinations about them and to lay charges before the Disciplinary Tribunal (ss 126, 130). Relevantly, a Committee may decide to take no action on a complaint if:

• (a) in its opinion “the complaint is frivolous, vexatious or is not made in good faith” (s 138(1)(c)); or

• (b) “in the course of investigation of the complaint, it appears to the Standards Committee that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate” (s 138(2)).

14 A complainant has a right to apply “for a review” of a Committee's determination by the LCRO (s 193, 194). The LCRO is appointed by the Minister and is required not to be a practising lawyer (s 190). Section 200, which is headed “Avoidance of unnecessary formality,” requires the LCRO to conduct a 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.

15 The LCRO has the power to review all or any of the aspects of an inquiry by a Committee (s 203). To do so, the LCRO has wide powers to obtain information (s 204) and to regulate his or her procedure as he or she thinks fit but must do so “in a way that is consistent with the rules of natural...