Deliu v Hong

• Jurisdiction: New Zealand
• Judge: Judge Osborne
• Judgment Date: 12 April 2013
• Neutral Citation: [2013] NZHC 735
• Docket Number: CIV-2010-404-006349
• Court: High Court
• Date: 12 April 2013

Between

Francisc Catalin Deliu

Plaintiff

and

Boon Gunn Hong

Defendant

[2013] NZHC 735

CIV-2010-404-006349

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application for an order striking out statement of claim — plaintiff practised as a barrister — defendant practiced as a conveyancing solicitor — plaintiff sued defendant in tort pleading four causes of action, namely: (1) tort of abuse of process, alleging misuse of the processes of the New Zealand Law Society Lawyers Complaints Service; (2) tort of malicious prosecution, alleging defendant maliciously instituted and pursued complaints against the plaintiff with the Complaints Service; (3) under rule in Wilkinson v Downton, intentional infliction of emotional harm on plaintiff; and (4) either tort of injurious/malicious falsehood or defamation — unfavourable observations had been made in previous judgments as to the conduct of the parties — whether any of the claims were clearly untenable in the sense that the Court could be certain it could not succeed.

Appearances:

F C Deliu (Plaintiff/Respondent) in person

A D Banbrook for Defendant/Applicant

Counsel:

A D Banbrook, PO Box 105870, Auckland 1140

JUDGMENT OF ASSOCIATE Judge Osborne [as to defendant's application to strike out claim]

Introduction

1 This is a defendant's application for an order striking out the plaintiff's statement of claim.

2 Mr Deliu practises as a barrister. Mr Hong practises as a conveyancing solicitor.

3 Mr Deliu sues Mr Hong in tort for things said and done in mid-2010. Since then a substantial body of litigation has grown out of the issues between them. The background is captured at the start of the judgment of Winkelmann J in a judicial review proceeding, Deliu v Hong 1 which records:

[1] In May 2010 two junior barristers in Mr Deliu's chambers, were retained as counsel in proceedings issued against a conveyancing solicitor, Mr Hong. Mr Hong responded to service of those proceedings upon him by sending a letter to the two barristers asserting that the proceedings were without merit, and threatening he would take various steps if they did not withdraw the action against him. Mr Deliu regards himself as the senior member of the chambers, and so took it upon himself to respond to Mr Hong, and to lay a complaint with the New Zealand Law Society (the Law Society) about the contents of Mr Hong's letter. Sometime later, Mr Hong laid a complaint with the Law Society about Mr Deliu.

[2] There ensued a period of months during which Mr Deliu and Mr Hong exchanged insults and threats in correspondence with each other, often copying the Law Society into their correspondence and seeking to enlarge the scope of their respective complaints. The Law Society continued to receive the correspondence and, on occasion, forward it to the other party to other party for comment.

4 The Schedule to this judgment contains references to some of the items of Mr Hong's correspondence and particular content which Mr Deliu says were defamatory. The Schedule (including with typographical errors) is as attached to the first judgment issued in this proceeding – by Venning J on an injunction application in October 2010. 2

5 Three other proceedings are relevant to this proceeding:

• 1. The clients' District Court proceeding – the 2010 proceeding referred to by Winkelmann J, in which clients of Amicus Lawyers Limited (“Amicus”) sued Mr Hong and others for negligence on a property purchased. 3

• 2. Disciplinary proceeding – pursuant to a written complaint made to the New Zealand Law Society Lawyers Complaints Service, by Mr Deliu against Mr Hong, dated 6 May 2010 in which Mr Deliu made complaint that Mr Hong had treated fellow practitioners in a disrespectful manner and had threatened and improperly sought to coerce Mr Deliu's colleagues into abandoning legal processes; a complaint responded to by Mr Hong on 23 May 2010 with responses and a “cross complaint”; a decision of the Standards Committee dated 24 November 2010, resolving to take no further action on Mr Deliu's complaint; a determination dated 3 June 2011 by the Legal Complaints Review Officer confirming the determination of the Standards Committee; a hiatus while Mr Deliu pursued judicial review proceedings, in which the review officer's decision was quashed – see below at [6](c); a further review by the Legal Complaints Review Officer dated 25 June 2012 reversing the determination of the Standards Committee and referring Mr Hong's conduct to the Lawyers and Conveyancers Disciplinary Tribunal for consideration; disciplinary charge laid by the Legal Complaints Review Officer in the New Zealand Lawyers and Conveyancers Disciplinary Tribunal on 10 September 2012; and, since the hearing of the present application, a decision of the Tribunal dated 22 March 2013. 4

• 3. The Judicial Review proceeding – in which Winkelmann J quashed the decision of the Legal Complaints Review Officer. The review application was remitted back to a Review Officer for reconsideration. 5

6 In this proceeding three judgments have been delivered to date, namely:

• (a) A judgment of Venning J on 27 October 2010 dismissing Mr Deliu's application for injunctive relief in relation to publication of certain information by Mr Hong. 6

• (b) A judgment of Associate Judge Bell on 17 June 2011 striking out the claims of both Mr Deliu and a second plaintiff (his legal practice company, Amicus and Mr Hong's counterclaim. 7

• (c) A judgment of Courtney J on 5 April 2012 granting Mr Deliu's application for review and reinstating his claim (but declining a parallel application by Amicus) and dismissing Mr Hong's cross application. 8

The parties and the pleadings

7 Mr Deliu remains in the proceeding (reinstated) as sole plaintiff. Mr Hong is the defendant.

8 The current pleading is a second amended statement of claim dated 29 October 2010 filed at a time when both Mr Deliu and Amicus were plaintiffs. I will refer to it for convenience as “the statement of claim”.

9 By the statement of claim, Mr Deliu alleges that Mr Hong in writing published to third parties a number of scandalous allegations concerning Mr Deliu.

10 Mr Deliu pleads four causes of action against Mr Hong, namely:

• 1. the tort of abuse of process, alleging Mr Hong's misuse of the processes of the New Zealand Law Society Lawyers Complaints Service;

• 2. the tort of malicious prosecution, alleging that Mr Hong maliciously instituted with the New Zealand Society Lawyers Complaints Service and pursued complaints against Mr Deliu;

• 3. under the rule in Wilkinson v Downton, 9 alleging that Mr Hong intentionally inflicted emotional harm on Mr Deliu;

• 4. a final cause of action explained as either as the tort of injurious (also known as malicious) falsehood or as defamation.

Mr Hong's defence

11 Mr Hong filed an amended defence in response to Mr Deliu's second amended statement of claim. I will refer to this document for convenience as “the statement of defence”.

12 The statement of defence takes issue with a number of facts and allegations in the statement of claim.

13 Mr Hong's statement of defence, in addition to pleading to factual allegations contains statements relating to legal principles associated with the various torts. He also asserts affirmative defences.

14 The statement of defence by way of affirmative defences says:

STATEMENT OF DEFENCE TO THE SECOND CAUSE OF ACTION BY THE PLAINTIFFS — MALICIOUS PROSECUTION

• 21. In response to the Plaintiff's second cause of action, at Paragraph 21 the Defendant repeats the pleading above at paragraphs 2, 5, 6, 9, 11, 13, 15, 19 and 20 above and further states the pleaded action of malicious prosecution is:

  • (a) not available in civil proceedings; and

  • (b) not available in disciplinary proceedings.

  — and it follows that the second cause of action in malicious prosecution is untenable.

  STATEMENT OF DEFENCE TO THE THIRD CAUSE OF ACTION BY PLAINTIFF-INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

• 22. In response to the Plaintiff's third cause of action, at Paragraph 22 the Defendant repeats the pleading above at paragraphs 1–21 hereof inclusive and states:

  • (a) the Defendant denies that the correspondence which was in any event privileged, either under s 14 of the Defamation Act or litigation privilege, was intended to cause or did cause the Plaintiff emotional distress;

  • (b) that, on the contrary, the conduct of the Plaintiff has at all material times been belligerent, forceful and threatening to the Defendant:

  • (c) that in any event the cause of action in intentional infliction of emotional distress is untenable on the facts alleged in the pleading of the Plaintiff.

  STATEMENT OF DEFENCE TO THE FOURTH CAUSE OF ACTION BY PLAINTIFF — DEFAMATION/MALICIOUS FALSEHOOD

• 23. In response to the Plaintiff's fourth cause of action, at Paragraph 23 the Defendant repeats the pleading at paragraphs 1–22 hereof inclusive and states that:

  • (a) the correspondence complained of by the Plaintiff insofar as it relates to the complaints procedure of the NZLS is privileged under s 14 of the Defamation Act and cannot support the fourth cause of action in that event.

  • (b) That insofar as the correspondence complained of consists of communications in the context of the MAs' and Wang's actions is privileged in the context of the litigation and cannot support the cause of action pleaded in defamation/malicious falsehood by the Plaintiff.

• 24. By way of alternative defences, the Defendant relies upon:

  • (i) the defence of truth — s 8 of the Defamation Act — that the matters set out in the correspondence from the Defendant to other parties, including the Plaintiff, are truthful;

  • (ii) the defence of honest and genuine opinion — ss 9 and 10 of...