Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal
| Jurisdiction | New Zealand |
| Judge | Keane J |
| Judgment Date | 19 November 2013 |
| Neutral Citation | [2013] NZHC 3053 |
| Docket Number | CIV-2012-404-6295 |
| Court | High Court |
| Date | 19 November 2013 |
and
[2013] NZHC 3053
CIV-2012-404-6295
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
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.
Plaintiff in person
W C Pyke for Second Defendant
JUDGMENT OF Keane J
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.
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.
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.
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
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
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 described Mr Deliu's protest as a ‘misconceived challenge to the Tribunal's jurisdiction’, relying on ‘opaque’ grounds to which it could not respond, without any foundation in the Tribunal's rules.
During the issues conference Mr Deliu contended that the charges laid by the Standards Committee were invalid and that the Disciplinary Tribunal was devoid of jurisdiction. The Committee, he then intimated, had not complied with the Lawyers and Conveyancers Act 2006, the statute governing both the Committee and the Tribunal. It had only determined that he had misconducted himself in his personal capacity. It could not charge him alternatively as it had. Further, when the Committee approved the charges laid it lacked a quorum.
The Disciplinary Tribunal, Mr Deliu contended, moreover, could not hear the charges while his protest stood; and it was for the Standards Committee to apply to have it set aside. The Committee contended that Mr Deliu's protest was devoid of effect and that he had to apply to the Tribunal for an order dismissing the charges for want of jurisdiction.
In a minute issued that day the Disciplinary Tribunal's Deputy Chairperson, who conducted the conference, said that the Tribunal was under ‘an obligation to ensure that the professional disciplinary regime operates fairly, and expeditiously, and having regard to the over-arching public interest’; that the charges Mr Deliu faced were serious; and the public interest required that they be decided as soon as possible.
To that point, the Deputy Chairperson said, Mr Deliu had not identified formally his grounds for protest and he would have to apply to the Tribunal for an order striking out the charges. The Deputy Chairperson declined to allocate a preliminary hearing for that purpose. Such an application, he said, could be heard first at the hearing allocated to the charges themselves. He made the timetabling orders usual under the Tribunal's rules.
That day Mr Deliu made this present application for judicial review in which he seeks, quite generally, a judgment quashing the exercising of statutory power, or the statutory decisions, which he challenges. He seeks to have the charges stayed or dismissed, and orders in the nature of mandamus, certiorari, and prohibition setting aside the directions given and obliging the Disciplinary Tribunal to resolve his jurisdiction protest before hearing any charge against him.
Mr Deliu has also brought other potentially intersecting applications for judicial review challenging the validity of the Standards Committee's antecedent process, but on the first day of hearing he confined his validity challenges on this present application to two only, which I then identified by minute as the basis for the submissions to be made on the second day of hearing, which then proved necessary.
First, in point of time, Mr Deliu challenges the validity of the decision of the Standards Committee on 2 February 2012 to approve charges to be laid before the Tribunal and the signing of those charges by the Convenor alone on 30 March 2012. The principal question is whether the Committee could approve charges beyond the offence category it had identified in notices of determination, dated 12 November 2010. Those notices speak only of misconduct in his personal capacity, not when providing regulated services. A further question is whether there was a quorum when the charges were approved and then later signed.
Secondly, Mr Deliu challenges the validity of the directions given by the Disciplinary Tribunal's Deputy Chairperson on 23 October 2012 in the face of his protest to jurisdiction. Those directions, Mr Deliu contends, nullified his protest. They assumed that the Tribunal did have jurisdiction over him. They obliged him to surrender to the Tribunal's jurisdiction by conduct. As it was this challenge that led Mr Deliu to bring this application for judicial review, and is fundamental, I begin there.
In his minute, dated 23 October 2012, setting out the timetabling orders, the Deputy Chairperson explained why he considered them to be essential:
The Tribunal notes that the charges were laid more than six months ago, there has been no progress by Dr Deliu in framing his response as required (apart from a claim that the Tribunal does not have jurisdiction to hear the charges), and that undue delay should be avoided in disciplinary matters. The matter should be progressed, and there is no reason that Mr Deliu should be exempted from normal compliance requirements on the basis he alleges there is a jurisdiction issue, something the Committee suggests has no proper basis, and about which little detail has been filed.
The Deputy Chairperson also put Mr Deliu to the point on his jurisdiction challenge by requiring him to apply for an order dismissing the charges on that ground:
Dr Deliu's position on the validity of the charges, and the consequent jurisdiction of the Tribunal to hear and determine the charges, can be argued on the basis of any application he may make showing the basis and grounds of his position, with supporting affidavit evidence. The Committee can also then respond accordingly. There is no reason that the normal disciplinary process towards a substantive hearing should cease pending resolution of Dr Deliu's allegations against the Standards Committee.
The question of jurisdiction aside, the directions the Deputy Chairperson gave were orthodox, indeed required. It is the function of the Disciplinary Tribunal ‘to hear and determine any charge against a practitioner …, that is made to it by a Standards Committee’. 4 The regulations governing the Tribunal's process require charges, once filed, to be heard without delay.
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Deliu v The National Standards Committee
...Conveyancers Disciplinary Tribunal, above n 14. 30 At [33]. 31 Lawyers and Conveyancers Act 2006, s 3(1)(a). 32 Deliu v New Zealand Lawyers and Conveyancers Discplinary Tribunal [2013] NZHC 3053 at 33 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal, above n 14. 34 Auckla......