New Zealand Law Society v Deliu

JurisdictionNew Zealand
CourtHigh Court
JudgeAsher J
Judgment Date08 October 2014
Neutral Citation[2014] NZHC 2467
Docket NumberCIV-2014-404-000427
Date08 October 2014

[2014] NZHC 2467



UNDER Sections 266-268 of the Lawyers and Conveyancers Act 2006

IN THE MATTER of interlocutory applications in proceedings for an application for an order that the name of a barrister and solicitor of the High Court of New Zealand be struck off the roll

New Zealand Law Society
Francisc Catalin Deliu

C Gordon QC and Z Johnston for Plaintiff

Defendant in person

Applications by defendant under r5.49 High Court Rules (HCR) (appearance and objection to jurisdiction) and for summary judgment or strike out — application by plaintiff to set aside the protest to jurisdiction-plaintiff had filed proceedings for an order that the defendant's name be struck off the roll of barristers — plaintiff alleged defendant regularly alleged fraud, bad faith of judicial officers, regularly made unnecessary or misconceived applications or arguments in the conduct of litigation and regularly engaged in unprofessional communications with other professionals — plaintiff had sought the order removing the defendant's name from the roll pursuant to s266 Lawyers and Conveyancers Act 2006 (LCA) (lawyer's name may be struck off on application to HC), s267 LCA (HC may dismiss application, or reserve case for CA) and s268 LCA (inherent jurisdiction of HC) — whether the HC retained its inherent jurisdiction to strike barristers and solicitors off the roll — whether protests to jurisdiction under r5.49 HCR extended to protests beyond territorial matters — whether the inherent jurisdiction should be exercised when there was also a different jurisdiction available to determine the same issue.

The issues were: whether the HC retained its inherent jurisdiction to strike barristers and solicitors off the roll; whether protests to jurisdiction under r5.49 HCR extended to protests beyond territorial matters; and whether the inherent jurisdiction should be exercised when there was also a different jurisdiction available to determine the same issue.

Held: The inherent jurisdiction of the Court to regulate the conduct of those people who appeared before the Court was recognised in previous legislation and retained in s120(6) LCA (purposes-to preserve the inherent jurisdiction of the HC to strike off the roll and discipline lawyers in their capacity as officers of the HC).

Under s267, if the HC was of the opinion that the application to strike off ought to be granted or was doubtful whether the application should be dismissed or granted, it was required to reserve the case for consideration to the CA. The CA then considered the matter and determined whether the barrister and solicitor be struck off.

Section 268 stated that the inherent jurisdiction of the High Court over barristers and solicitors was retained, as was the power of the High Court to suspend any barrister and solicitor upon reasonable cause.

The situation was, therefore, that two bodies had the power to strike off barristers and solicitors, being the Disciplinary Tribunal and the CA. The HC has the power to reserve or dismiss applications to strike off under s 267, and, if it reserved such an application for the CA, to suspend in the interim. The HC also continued its inherent jurisdiction to supervise the roll of barristers and solicitors which, as s268(2) made clear, included the ability to suspend for a period.

The procedure set out in s267, providing for a two stage process in the HC and CA, could be seen as a relic from the time prior to 1935 when there was no alternative to Court supervision.

The statement in Redcliffe as to the breadth of the objection to jurisdiction procedure did not cover a case such as this where the jurisdiction existed, and there was no barrier (such as a decision of a higher Court) to it being exercised, but there was a parallel jurisdiction which was better suited to determining the issues. The question here was whether the Disciplinary Tribunal procedure was in the circumstances the correct procedure to pursue.

As was pointed out by the CA in Redcliffe, the vast majority of cases determined under r5.49 and its predecessor involved territorial protests. Rule 6.29 HCR (HC's discretion to assume jurisdiction) was a specific rule relating to issues of territoriality. The fact that r 6.29 enabled the Courts on a territorial issue to decide between parallel jurisdictions did not create a wider ability to protest under r5.49 beyond the territorial.

The HC was competent to hear the proceeding. There was no barrier such as a decision of a higher court, or an exclusive jurisdiction requirement, or a provision not complied with, to the HC's jurisdiction being used. The power to strike off was not a complimentary “safety net” jurisdiction like the parens patriae jurisdiction. It was one of two parallel jurisdictions co-existing with the Disciplinary Tribunal jurisdiction. The real issue was whether the jurisdiction that does exist should be exercised when there is also a different jurisdiction available to determine the same issue. Rule 6.29 recognises a specific practice in the specific area of territoriality only. It would do violence to the language of r5.49 to say there was no jurisdiction, as there was jurisdiction for the High Court to hear the case. Thus, r 5.49 did not apply.

NZLS application allowed and appearance and objection to jurisdiction set aside.

The summary judgment issue in this case was whether if the matter proceeded to the hearing a Judge under s267(1)(a) and s268 would dismiss the applications on the jurisdictional ground raised by D. Before entering summary judgment for D, the Court had to be satisfied that when the matter came before the Court at a substantive hearing, a HC Judge would determine that these proceedings should not have been commenced in this court, but rather should have been commenced in the Disciplinary Tribunal.

The HC, when considering an application under s266 LCA (involving the s267 LCA process) and s268 LCA should decide whether its jurisdiction was appropriate or whether the complaints were better dealt with in the Disciplinary Tribunal when objection had been made. It had to be decided whether this was one of those exceptional cases where the specialist procedure designed to deal with complaints against barristers and solicitors was not to be adopted, and the HC/CA procedure should be adopted. It was relevant that:

Parliament had contemplated that the Disciplinary Tribunal procedure would be the primary procedure given the existence of a specialist tribunal comprised of lay members and appointees who had the necessary experience and expertise.

It was not appropriate to use the HC/CA jurisdiction where there were disputed matters of fact or issues calling for extensive inquiry.

The HC/CA's jurisdiction under s267 LCA and the HC's jurisdiction under s268 LCA were available for rare and exceptional cases where for one reason or another the profession's disciplinary procedure was inappropriate or unsuitable

If there were disputed matters of fact or issues calling for extensive inquiry the Disciplinary Tribunal was the process that should be followed, although not invariably so. The allegations in the statement of claim were not factually complex but D had indicated that he would strongly contest any attempt on the part of the NZLS to prove a case against him. There was a wide range of allegations. It would take a number of weeks to hear in the HC and at least a week in the CA.

It was clear that D had strongly resisted the inquiry process at all stages with multiple applications being made. There was undoubtedly a great level of frustration in the NZLS and a perception that very firm and unusual steps were required to get the complaints to a hearing.. New Zealand tribunals and courts now frequently faced highly combative self-represented litigants that took every point, and were seen to be most difficult to manage to a hearing. The NZLS disciplinary processes should be able to deal with such litigants within its processes, even a litigant as vigorous and determined as D.

The fact that the complaints involved some consideration of the actions of Judges did not make the case more suitable for hearing in the High Court/Court of Appeal.

While it had not been shown that there was in any strict sense duplicity, it was less than desirable that aspects of D's actions in a single case or context be evaluated by two different bodies that would have to determine those issues. There would be wastage of time, in that the background would have to be traversed in two different forums. There was the risk of inconsistent factual findings. Further, should the complaints be established, it was undesirable for different forums to have the task of deciding on appropriate penalties relating to overlapping actions that are best considered as a whole. The degree of overlap between the charges laid in the Disciplinary Tribunal and the complaints that are the subject of the proceeding in the HC, was a reason why all matters should be heard in the Disciplinary Tribunal.

The proceedings did not have any unusual urgency, or a need for expedition warranting a departure from the Disciplinary Tribunal procedure.

The HC/CA procedures under s267 LCA and s268 LCA provided for only two penalties, suspension or striking off. In contrast, the Disciplinary Tribunal procedure provided for a range of penalties including censure and financial penalties of up to $30,000 in respect of any charge. It was desirable that the full range of penalties be available to the determining body. Therefore, the limit on the powers of the HC and CA to impose penalties was a reason why the Disciplinary Tribunal procedure should be adopted, save in rare and unusual...

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2 cases
  • New Zealand Law Society v Deliu
    • New Zealand
    • High Court
    • 2 Abril 2015
    ...Doubts were expressed about the proposition by the Australian High Court in Cachia v Hanes.4 1 2 3 4 New Zealand Law Society v Deliu [2014] NZHC 2467, [2015] 2 NZLR See Guss v Veenhuizen (Taxation of Costs) [1976] HCA 57, (1976) 136 CLR 47. Buckland v Watts [1970] 1 QB 27 (CA). Cachia v Han......
  • Zhang v Deng
    • New Zealand
    • High Court
    • 7 Octubre 2019
    ...of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [23]. See New Zealand Law Society v Deliu [2014] NZHC 2467, [2015] 2 NZLR 224 is otherwise an abuse of the process of the court. Rule 15.1(1)(b), the prejudice or delay ground, requires an element of imp......

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