Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal

JurisdictionNew Zealand
CourtHigh Court
JudgeKeane J
Judgment Date19 November 2013
Neutral Citation[2013] NZHC 3053
Docket NumberCIV-2012-404-6295
Date19 November 2013

[2013] NZHC 3053

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2012-404-6295

Between
Francisc Catalin Deliu
Plaintiff
and
The New Zealand Lawyers and Conveyancers Disciplinary Tribunal
First Defendant

and

The National Standards Committee of the New Zealand Law Society
Second Defendant
Appearances:

Plaintiff in person

W C Pyke for Second Defendant

Application for judicial review of the jurisdiction of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”) to hear charges laid against a practitioner in respect of comments made about judges — Standards Committee declined jurisdiction and laid charges before Tribunal — notice of determination referred to practitioner potentially being accountable for misconduct in his personal capacity — Committee then laid charges in the alternative in respect of misconduct in provision of regulated legal services — plaintiff filed a protest to jurisdiction of Tribunal to hear charges — Tribunal declined to deal with this in advance of hearing and made directions to progress matter — whether Tribunal lacked jurisdiction as plaintiff's protest to Tribunal's jurisdiction had to be decided first — whether laying charges in the alternative had expanded the original compass of the misconduct alleged — whether Standards Committee decision to lay the charges was invalid as decided without a quorum.

Held: The question of jurisdiction aside, the directions the Deputy Chairperson gave were orthodox, and required. The Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008 (“Disciplinary Tribunal Regulations”), governing the Tribunal's process, required charges, once filed, to be heard without delay. Within 10 working days of the service of the charges, the practitioner charged had to file a notice of response. D set this procedural duty to one side when he filed his notice of protest to jurisdiction.

There was ample authority for the directions the Chairperson issued under reg 32 Disciplinary Tribunal Regulations (Chairperson may convene conference and give directions).

Neither the Lawyers and Conveyancers Act 2006 nor the Disciplinary Tribunal Regulations contemplated an appearance under protest to jurisdiction. The Deputy Chairperson had to respond to that challenge in exercising the Tribunal's general right to regulate its own procedure. The Deputy Chairperson was not obliged to allow D the literal benefit of r5.49 of the High Court Rules (Appearance and objection to jurisdiction).

D's essential contention was that the Tribunal's jurisdiction over a practitioner only arose when it had before it charges relating to that practitioner that were validly laid, and that ‘essential preliminary’ was lacking in his case.

Whether, or how far, the Tribunal was competent in law to determine that form of challenge was an issue in itself. In one sense, this went only to remedy. Where jurisdiction was declined wrongly, the remedy would lie in an order in the nature of mandamus on judicial review. Where jurisdiction was wrongly assumed, as D contended was the case here, the remedy would lie in an order in nature of prohibition or certiorari.

But in that latter case the initial question might be whether any error was as to jurisdiction, or was an error within jurisdiction; and the distinction between the two could be fine. Furthermore, any right of appeal conferred might be co-extensive with the right of review, or any review and any appeal might be consolidated by the High Court.

In another sense, however, this want of power did immediately matter. A court of limited jurisdiction, or a tribunal, even where it decided that jurisdiction was truly in issue, might be best advised, except in the plainest case, to assume jurisdiction and leave that issue for appeal or review.

Immediately that D elected not to file a notice of response and put jurisdiction in issue instead, the Disciplinary Tribunal should have convened a reg 32 Disciplinary Tribunal Regulations conference and required him to state his grounds. It should have decided what response, if any, his challenge warranted. The issues conference held in October 2012 was too late for this purpose as the Tribunal's statutory duty to resolve without delay the charges laid on 11 May 2012 had become pressing.

However D was not to be equated with a person who could not be subject to the Tribunal's jurisdiction, unless he submitted to it explicitly or implicitly. Like any practitioner he was subject to the jurisdiction of the Tribunal immediately a charge was laid against him and he was served with it and required to appear. Had the Tribunal gone into D's challenge it would still have been entitled, indeed obliged, to set the charges down for hearing.

The National Standards Committee (No 1) had to have not less than two and not more than seven lawyer members, not less than one and not more than two lay members and a convenor or deputy convenor appointed by the board from the lawyer members. In respect of complaints, a quorum was ‘a majority of members, at least one of whom had be a lay member’. Reg 26(3) Lawyers and Conveyancers Act (Lawyers Complaints Service and Standards Committees) Regulations 2008 provided that ‘A decision supported by a majority of the votes cast at a meeting of a standards committee is the decision of the committee’.

According to the Standards Committee minutes of the 2 February when the item concerning the charges against D was considered, the Committee was reduced to five members, but as that was a ‘majority’ of the Committee, and one of those present was a lay member, it would still have had a quorum when it approved the charges. D put in issue whether one further member of the Committee was still present, notwithstanding the minutes. That was not something which could be resolved in the absence of evidence or a concession.

When the Standards Committee's convenor signed the charges on 30 March 2012, he did not arrogate to himself the Committee's power to approve the charges. They were already approved. He did no more than comply with the Tribunal's own rules.

The notices of determination held D potentially accountable for misconduct in his personal capacity under s7(1)(b)(ii) LCA. The Standards Committee decided under s152(2)(a) LCA not to assume jurisdiction and determined that the complaint should be considered by the Tribunal’. If a Standards Committee assumed jurisdiction, it was under a duty to give reasons. But when a Standards Committee declined to assume jurisdiction, and referred the complaint/matter to the Tribunal, it was not under that duty. This was a procedural decision only. The Standards Committee's only duty was to frame an appropriate charge and lay it before the Tribunal.

The Standards Committee decided that the allegations D had made against the two Judges on specific occasions were capable, if proved, of constituting personal misconduct under s7(1)(b)(ii) LCA. It only laid the alternative charges under s 7(1)(a) LCA (provision of regulated services) because, in law, the misconduct alleged might have occurred while providing regulated services. Those alternative charges were entirely proper. They did not extend the compass of the misconduct alleged.

Application for review dismissed.

JUDGMENT OF Keane J

1

Francisc Deliu, an Auckland lawyer, presently stands charged before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal with 12 charges of misconduct, laid on 11 May 2012 by the National Standards Committee of the New Zealand Law Society.

2

In the first ten of those charges, which are laid in the alternative, the Standards Committee alleges that on five occasions between 23 July 2008 – 18 April 2009 Mr Deliu deliberately and recklessly made false, intemperate and scandalous allegations against Harrison J: in two complaints to the Judicial Conduct Commissioner; when requesting the then Chief High Court Judge, Randerson J, to direct that Harrison J not hear any case in which he was counsel; when applying to this Court for an equivalent order; and, finally, when applying to the Supreme Court for special leave to appeal a costs decision.

3

In the last two charges, which are also laid alternatively, the Standards Committee alleges that on 27 May 2010 and 26 July 2010 Mr Deliu made complaints about Randerson J to the Judicial Conduct Commissioner, once again deliberately or recklessly, and once again falsely, intemperately and scandalously.

4

The Standards Committee has laid these 12 charges in the alternative to cater for two possibilities. One is that Mr Deliu made these allegations in his personal capacity. In that event, the Committee alleges, his conduct justifies a finding that he is not a fit and proper person, or is otherwise unsuited to engage in practice as a lawyer. 1 The other is that he made them while providing regulated services. In that event, the Committee alleges, his conduct would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable. 2

5

The charges were served on Mr Deliu on 5 June 2012. Under the Disciplinary Tribunal's rules he then became obliged within 10 working days to file a notice of response, outlining what he put in issue and what he did not and whether he wished to appear and be heard. Instead, on 19 June 2012, he lodged with the

Tribunal a ‘notice of protest to jurisdiction’, contending, without explaining why, that the Tribunal lacked personal or subject matter jurisdiction over him.
6

On 17 October 2012, before the first conference that the Disciplinary Tribunal's rules require, that being an issues conference on 23 October 2012, Mr Deliu invoked, by analogy, the right to appear under protest to jurisdiction given by the rules of this Court. 3 On 19 October 2012 the Standards Committee...

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