Deliu v National Standards Committee 1 of The New Zealand Law Society

JurisdictionNew Zealand
CourtHigh Court
JudgeBrewer J
Judgment Date25 May 2021
Neutral Citation[2021] NZHC 1177
Docket NumberCIV-2020-404-1438
Date25 May 2021

[2021] NZHC 1177

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Brewer J

CIV-2020-404-1438

Between
Francisc Catalin Deliu
Applicant
and
National Standards Committee 1 of The New Zealand Law Society
Respondent
Appearances:

Applicant in person (via VMR)

M J Hodge and A-R C Davies for Respondent

Judicial Review, Law Practitioners — application for judicial review of the respondent's decision to continue an investigation pleading that the investigation breached his right to natural justice — the investigation had been ongoing for over three years — excessive delay — Wednesbury (no practical purpose) — failure to take into account relevant considerations — Lawyers and Conveyancers Act 2006 — New Zealand Bill of Rights Act 1990

The issue was whether the investigation breached D's right to natural justice.

The Court held that excessive delay by a regulatory body in carrying out an investigation could result in a court staying the investigation or otherwise bringing it to an end. Under s140 LCA (inquiry by Standards Committee) a Standards Committee must inquire into it as soon as practicable. Serious and complex allegations would justify a longer investigation than minor and simple allegations. The areas of concern being investigated, while serious in terms of the professional obligations of a barrister sole, were not at the highest end of seriousness. D left NZ in January 2018 and his practising certificate expired during the term of his suspension, maintaining public conference in the provision of legal services and protecting consumers were not directly in issue.

The delay in the investigation had been exceptional. D was entitled to have the Standards Committee carry out its inquiry expeditiously. The delay had reached the point where a stay must be granted but the stay was not unconditional. If D returned to NZ, and/or sought to regain a practising certificate, then the need to complete the investigation to maintain public confidence and protect consumers would be more acute. The position was not so extreme that it could be said that no Standard's Committee in the respondent's position could reasonably have decided to continue the investigation or served no practical purpose. The proceeding was ongoing, failure to take into account relevant considerations might come into play if the investigators had delivered their final report.

The LCA applied to lawyers. The definition of lawyer was a person who held a current practising certificate as a barrister or as a barrister and solicitor. The fact that a lawyer was suspended from practice did not change the currency of their practising certificate.

Apart from delay, the process adopted by the Standards Committee and its investigators could not be criticised. The Standards Committee was within its right to bring the investigation and to continue it. D's rights under s27 New Zealand of Rights Act 1990 (“NZBORA”) (right to justice) and s142 LCA were not breached.

The delay had breached D's right in natural justice. The investigation was stayed. All other causes were dismissed.

JUDGMENT OF Brewer J

This judgment was delivered by me on 25 May 2021 at 4 pm

pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Introduction
1

Mr Deliu is a former lawyer who practised in New Zealand as a barrister and solicitor of this Court. Mr Deliu is no longer resident in New Zealand.

2

The Lawyers and Conveyancers Act 2006 (“the Act”) provides a regulatory regime for lawyers. The respondent is a Lawyers Standards Committee established by the New Zealand Law Society as part of its complaint service as required by the Act. 1

3

One of the respondent's functions under the Act is: 2

… to investigate of its own motion any act, omission, allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner or any other person who belongs to any of the classes of persons described in section 121:

4

On 9 November 2017, the respondent resolved to commence an own motion investigation of Mr Deliu. The investigation continues. Procedurally, it is still in its earliest phase.

5

Mr Deliu contends that the investigation has been going on for too long. He applies for judicial review of the respondent's decision to continue the investigation, pleading that the investigation breaches his right to natural justice (in five respects), 3 that there is no jurisdiction for the investigation in one of the areas investigated, that there has been a failure to take into account relevant considerations (privilege), and that no practical purpose can be achieved by the investigation.

6

The remedies sought by Mr Deliu (who represents himself) are:

  • i. A judgment for the plaintiff;

  • ii. An order in the form of certiorari quashing the defendant's investigation;

  • iii. A declaration (in accordance with the opinion of this Honourable Court) that the defendant breached the plaintiff's human right to due process;

  • iv. A direction that the defendant enter a § 138 no further action determination in the file in question;

  • v. A permanent injunction enjoining the defendant from further action against the plaintiff over any matters;

  • vi. Costs; and/or

  • vii. Such other relief as deemed fit.

7

The respondent abides the Court's decision. The New Zealand Law Society has been appointed to act as contradictor.

8

At the hearing before me it was accepted by Mr Deliu and by Mr Hodge for the contradictor that the two key grounds for judicial review are breach of natural justice through delay and lack of jurisdiction. I will consider them first.

Delay (the first cause of action)
9

Excessive delay by a regulatory body in carrying out an investigation can result in a court staying the investigation or otherwise bringing it to an end. The focus of the inquiry is usually the degree of prejudice the delay has caused to the person being investigated. At some point, prejudice can be presumed from the length of the delay.

10

The regime of the Act is relevant. First, the contradictor accepts the respondent has an obligation to carry out own motion investigations expeditiously. There is no statutory requirement to do so, but s 140 of the Act, which applies to complaints by others, provides:

140 Inquiry by Standards Committee

If a Standards Committee decides to inquire into a complaint, it must inquire into it as soon as practicable.

11

Mr Hodge accepts that no lesser standard can apply to own motion investigations.

12

I agree. I think it relevant also that the first two purposes of the Act will be best served by expeditious investigations:

3 Purposes

(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:

13

I note that in Chow v The Canterbury District Law Society, 4 the Court of Appeal reached a similar view when considering s 101 of the Law Practitioners Act 1982. That section required a complaint against a lawyer to be inquired into “as soon as practicable”. Mr Chow's case was that after an inquiry into a complaint against him there was excessive delay in bringing a charge against him. There was no statutory requirement for a charge to be brought in a timely way. Nevertheless, the Court was satisfied that there was a statutory obligation to proceed promptly, “perhaps better captured in the notion ‘as soon as practicable’.” 5

The history of the investigation
14

The respondent decided to commence its own motion investigation on 9 November 2017 having received and considered two documents emanating from a Ms S. The first document was a statement Ms S provided to the New Zealand Police dated 17 October 2017. The second was her affidavit of 1 November 2017 filed in a disciplinary proceeding brought against Ms S by the respondent.

15

At the same time, the respondent commenced an own motion investigation into Mr Richard Zhao and Richard Zhao Lawyers Ltd (which traded as Amicus Law).

16

The allegations by Ms S against Mr Deliu overlapped her allegations against Mr Zhao and the company.

17

On 15 November 2017 the respondent appointed Ms McMahon as investigator.

18

Events thereafter are summarised from the respondent's point of view by Mr Hodge in his submissions:

2.8 Progress during the initial stage of the investigation was slowed by difficulties arising from the fact there were extant criminal and disciplinary proceedings against [Ms S]. 6 The Committee reasonably considered that it needed to obtain a statement from [Ms S] that was provided for the express purpose of the Committee's own motion inquiries rather than relying solely on (or disclosing at that stage) evidence provided by [Ms S] in criminal proceedings and separate disciplinary proceedings.

2.9 [Ms S's] focus, perhaps understandably, was on her criminal and disciplinary proceedings rather than on the Committee's own motion inquiry in relation to the applicant. Following the disposal of [Ms S's] criminal and disciplinary proceedings, Ms McMahon was finally able to obtain a statement from [Ms S] provided for the purpose of the Committee's own motion inquiries. This was on 10 August 2018.

2.10 The applicant had made objections to Ms McMahon's appointment as investigator. These objections were rejected by the Committee. However, on 24 August 2018 Ms McMahon's appointment was revoked. The Committee considered it was necessary to do so because Ms McMahon had been appointed as a member of the Lawyers and Conveyancers Disciplinary Tribunal.

2.11 The need to revoke Ms McMahon's appointment, and its timing, was unfortunate. Ms McMahon's investigation was underway. She had previously provided an interim report and had just been able to obtain a statement from [Ms S] for the purpose...

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