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Last Updated: 5 December 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-6295 [2013] NZHC 3053
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
Hearing: 24 April, 23 July 2013
Appearances: Plaintiff in person
W C Pyke for Second Defendant
Judgment: 19 November 2013
JUDGMENT OF KEANE J
This judgment was delivered by on 19 November 2013 at 2pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
Solicitors:
Crown Law Office, Wellington
DELIU v THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2013] NZHC 3053 [19 November 2013]
[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
1 Lawyers and Conveyancers Act 2006, s 7(1)(b)(ii).
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 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.
[7] 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.
[8] 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.
[9] 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.
3 High Court Rules, r 5.49.
[10] 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.
[11] 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.
Two validity challenges
[12] 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.
[13] 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.
[14] 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.
Conference directions validity challenge
[15] 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.
[16] 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.
Power to give directions
[17] 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.
[18] Within 10 working days of the service of the charges, the
practitioner charged must file a notice of response stating which
facts alleged
in each charge are admitted
4 Lawyers and Conveyancers Act 2006, s 227(b).
or denied, and which charges are admitted or denied, and whether he or she
wishes to be heard in person or by counsel.5 It was this procedural
duty that Mr Deliu set to one side, when he filed his notice of protest to
jurisdiction.
[19] Once charges are laid, furthermore, the Chairperson ‘must, as soon as is reasonable in the circumstances, convene an issues conference with the parties’.6
And at this conference the Chairperson may give any directions permitted by
reg 32, to which I will return shortly, and either set
the matter down for
hearing or allocate a setting down conference.7
[20] If directions are given at the issues conference but the matter is
not then set down for hearing, or allocated a setting
down conference, the
Standards Committee must inform the case officer once all directions have been
complied with; and that is when
the Chairperson must convene a setting down
conference.8 In that way momentum is maintained.
[21] At the setting down conference, the Chairperson must fix a date for
the hearing of the charges, which is to be not less than
10 working days after
the date of that conference,9 unless the parties otherwise agree,
but plainly must allocate a prompt hearing; and ‘may give any further
directions that
he or she considers necessary for the efficient and just conduct
of the hearing’.10
[22] Regulation 32(1), to which I referred a moment ago,
reserves to the Chairperson the ability to convene a conference, at any time
before
or during the hearing of the charges, ‘for the purposes of the
just, efficient and expeditious conduct of proceedings’.11
And at this conference the Chairperson may issue the following
directions:12
(a) direct a party to –
5 Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008, reg 7(2).
6 Regulation 10(1).
7 Regulation 10(3).
8 Regulation 11(1).
9 Regulation 11(3).
10 Regulation 11(2)(b).
11 Regulation 32(1).
12 Regulation 32(3).
(i) file, within a time that the Chairperson thinks fit, any
affidavits, documents, or lists of documents relating
to any of the matters at
issue; and
(ii) promptly serve on every other party a copy of each
document filed:
(b) direct or permit a party to file and serve any affidavits,
documents, or lists of documents in reply, within a time that
the Chairperson
thinks fit:
(c) direct the order in which the parties must present their cases at
the hearing, having regard to the onus of proof on any
particular issue:
(d) direct a party charged to file and serve, within a time that the
Chairperson thinks fit, a schedule of admissions or denials
of the charges made
against that party:
(e) subject to s 239 of the Act and notwithstanding reg 25, direct
that the evidence at the hearing be given by affidavit or
orally, or partly by
affidavit and partly orally:
(f) direct any party to file and serve on every other party written
submissions within a time that the Chairperson thinks fit:
(g) give any other directions that the Chairperson thinks fit
for the purposes described in subclause (1).
[23] These are the powers of direction that the Chairperson is able to
exercise even at the first conference, as the Deputy Chairperson
did here. They
supply ample authority for the directions he issued. Conversely,
neither the Act nor the Regulations
contemplate an appearance under protest
to jurisdiction. The Deputy Chairperson then had to respond to that
challenge in
exercising the Tribunal’s general right to regulate its
own procedure.13
[24] The Deputy Chairperson was not obliged to allow Mr Deliu the literal benefit of r 5.49 of the Rules of this Court. The issue remains whether, in the directions he gave, he sufficiently recognised the immediacy of Mr Deliu’s challenge. As the Supreme Court confirmed in Commissioner of Inland Revenue v Redcliffe Forest
Venture Ltd,14 which did concern r 5.49,
jurisdiction is fundamental.
13 Lawyers and Conveyancers Act 2006, s 252.
14 Commissioner of Inland Revenue v Redcliffe Forest Venture Ltd [2013] 1 NZLR 804.
Jurisdiction
[25] Jurisdiction, the Supreme Court said in that case,15
is as Diplock LJ
classically expressed it in Garthwaite v
Garthwaite:16
In its narrow and strict sense, the ‘jurisdiction’ of a validly
constituted Court connotes the limits which are imposed
upon its power to hear
and determine issues between persons seeking to avail themselves of its
process by reference (1)
to the subject matter of the issue or (2) to the
persons between whom the issue is joined or (3) to the kind of relief sought,
or
to any combination of these factors.
[26] Where a Court of limited jurisdiction, or a tribunal, as is so here, is created by statute, the Supreme Court affirmed also, adopting Lord Scott’s analysis in Tehrani v Secretary of State for the Home Office,17 the statute will both confer and limit
jurisdiction:18
Courts created by statute are competent to deal with matters that the statute
creating them empowered them to deal with. The
jurisdiction of these
Courts may be expressly or impliedly limited by the statute creating them or by
rules of Court made under
statutory authority.
[27] Faced with a challenge to jurisdiction, such a court or tribunal must turn to its statute. The Laws of New Zealand suggest indeed that the ‘first function’ of such a court or tribunal is ‘to determine whether the case falls within the defined ambit of the statute’.19 As Richmond J said in the early New Zealand case, Winiata Te Wharo v Airini Tonore, in a decision affirmed on appeal, every case before a Court of limited jurisdiction, and thus also before a statutory tribunal, always involves two fundamental questions:20
It has first to be asked, does the proceeding by which the Court is called
upon to act allege a case which, being fully stated, is
within the jurisdiction?
Next, if such a case be alleged, is it proved? The former is a general question
of law, involving the
construction of the statute or statutes creating
the jurisdiction; the latter a particular question arising out of the particular
facts. The former is preliminary, going to jurisdiction; the latter, which may
embrace incidental questions of law as well as of
fact, constitutes what is
called "the merits."
15 At [25].
16 Garthwaite v Garthwaite [1964] P 356 (CA) at 387.
17 Commissioner of Inland Revenue v Redcliffe Forest Venture Ltd, above n 14, at [26].
18 Tehrani v Secretary of State for the Home Department [2006] UKHL 47, [2007] 1 AC 521 at
[66].
19 Laws of New Zealand Courts (online ed) at [9].
20 Winiata Te Wharo v Airini Tonore (1895) 14 NZLR 209 at 222.
[28] The analysis the first of those questions calls for, as the Judicial
Committee of the Privy Council said in Colonial Bank of Australasia v
Willen,21 can turn on ‘the character and constitution of
the tribunal, or upon the nature of the subject matter of the inquiry or
upon certain proceedings which have been made essential
preliminaries to the inquiry’. It is the last of
these that is
especially relevant here; and speaking of an illustrative case, Reg v
Arkwright,22 the Judicial Committee said
this:23
... the objection was that certain notices which, on the true construction of
the statute, ought to have preceded the inquiry, were
not given until after the
adjudication; and, consequently, that the order had been made in the absence of
that which the legislature
has made an essential preliminary to the
exercise of jurisdiction.
[29] That essentially is what Mr Deliu contends for. He contends
that the Tribunal’s jurisdiction over a practitioner
only arises when it
has before it charges relating to that practitioner that are validly laid. That
‘essential preliminary’,
he contends, is lacking in his
case.
[30] Whether, or how far, the Tribunal is competent in law to determine that form of challenge is an issue in itself. In contrast to this Court, which is a Court of unlimited general jurisdiction, Salmond J said in New Zealand Waterside Workers Federation Industrial Association of Workers v Fraser, making a distinction twice
endorsed recently, courts or tribunals of limited statutory
jurisdiction:24
in the absence of express statutory provision to the contrary ... must
observe the limits of that jurisdiction, but have no power
to determine
judicially and with authority what those limits are.
[31] In one sense, this goes only to remedy. Where jurisdiction is declined wrongly, the remedy will lie in an order in the nature of mandamus on judicial review.25 Where jurisdiction is wrongly assumed, as Mr Deliu contends is so here,
the remedy will lie in an order in nature of prohibition or certiorari.
But in that latter
21 Colonial Bank of Australasia v Willen (1874) LR 5 PC 417 at 442- 443.
22 Reg v Arkwright 12 QB 960.
23 Colonial Bank of Australasia v Willen, above n 21, at 444.
685; Commissioner of Inland Revenue v Redcliffe Forest Venture Ltd, above n 14, at [20].
25 Laws of New Zealand, above n 19, at [22].
case the initial question may be whether any error is as to jurisdiction, or
is an error within jurisdiction; and the distinction
between the two can be
fine.26 Furthermore, any right of appeal the statute confers may be
co-extensive with the right of review,27 or any review and any appeal
may be consolidated by this Court.28
[32] In another sense, however, this want of power does immediately
matter. A court of limited jurisdiction, or a tribunal, even
where it decides
that jurisdiction is truly in issue, may be best advised, except in the plainest
case, to assume jurisdiction and
leave that issue for appeal or
review.
Conclusions
[33] Immediately Mr Deliu elected on 19 June 2012 not to file
a notice of response and put jurisdiction in issue
instead, the Disciplinary
Tribunal, I consider, should have convened a reg 32 conference and required him
to state his grounds.
It should have decided what response, if any, his
challenge warranted. It should only then have considered what directions to
make
to set the charges on a course for hearing.
[34] The first conference the rules require, the issues conference
convened on 23
October 2012, was too late for this purpose. By then, as the Deputy Chairperson said, Mr Deliu’s challenge had remained undefined for four months and by then the Disciplinary Tribunal’s statutory duty to resolve without delay the charges laid on 11
May 2012 had become pressing. That led him to issue directions, assuming that
the
Tribunal did have jurisdiction, before the Tribunal had considered that
issue.
[35] Mr Deliu is then able to say then that the directions to which he became subject were premature. But that is as much as he can say and it does not assist him. Mr Deliu is not to be equated with a person who cannot be subject to the Disciplinary Tribunal’s jurisdiction, unless he submits to it explicitly or implicitly. Like any practitioner he is subject to the jurisdiction of the Tribunal immediately
once a charge is laid against him and he is served with it and required
to appear; and
26 At [20].
27 Lawyers and Conveyancers Act 2006, ss 253, 254.
28 Orlov v New Zealand Law Society [2013] NZSC 94 at [6] - [7].
while he did then challenge the charges he faced, had the Tribunal gone into
his challenge it would still have been entitled, indeed
obliged, to set the
charges down for hearing.
[36] Mr Deliu’s protest to jurisdiction, as he then
outlined it and has since enlarged it, challenges the validity
of the
charges by reference to the Standards Committee’s antecedent process. A
review of that process is plainly beyond the
Tribunal’s statutory
ability. It only has power to review the substance of the Standards
Committee’s
initial appraisal of the practitioner’s conduct,
and only insofar as that arises under a charge laid. To sustain his
challenge
to the charges laid Mr Deliu had to apply to this Court for a judicial review,
as he did immediately the directions were
issued.
[37] Before turning to that challenge to the Standards Committee’s antecedent process I should add this. Mr Deliu may well have been fortunate that his applications for judicial review have been heard by this Court before the Disciplinary Tribunal heard the charges against him. His applications might equally
well have been adjourned until after the Tribunal had determined the
charges.29
Charges validity challenge
[38] The charges the Standards Committee laid, as I have said, derive
from two complaints made by Randerson J, the then Chief
High Court Judge, to
which the Committee was required to respond: one, dated 18 December 2009
concerning Mr Deliu’s allegations
against Harrison J; the other, dated 20
July 2010, concerning Mr Deliu’s allegations against Randerson J
himself.
[39] On 8 November 2010 the Standards Committee held a hearing to consider the two complaints, which Mr Deliu and a support person attended as of right; and on 12
November 2010 issued the two notices of determination, signed by the Convenor, which Mr Deliu contends must prescribe and therefore limit the forms of offence
with which the Committee could then charge
him.
29 At [6] – [7].
[40] Before coming to the substance of those notices, I should first say
that, when determining these complaints, as the Committee
confirmed in the
Harrison J complaint notice, it assessed Mr Deliu’s conduct before 1
August 2008 under the Law Practitioners
Act 1982 and after that date under the
Lawyers and Conveyancers Act 2006. As to that I do not understand there to be
any issue.
[41] In its notice of determination concerning the Harrison J
allegations the
Committee summarised the complaint it had received in this way:
Randerson J expressed concern that Mr Deliu has alleged that Harrison J was
biased against him, such allegations having been made
in a number of fora such
as: the High Court, the Court of Appeal, the Supreme Court, the Human Rights
Tribunal, and the Office of
the Judicial Conduct Commissioner.
Randerson J was concerned that such conduct appeared to illustrate that Mr Deliu had engaged in a pattern of persistent, wide ranging and disgraceful allegations against Harrison J, without foundation. Randerson J also said:
‘Amongst other things, Mr Deliu has accused Harrison J of
racism.’
[42] The Committee then determined that complaint in these
words:
... the intemperate and persistent manner in which Mr Deliu had made
complaints of Harrison J was capable of meeting (if proven) the
standard of
professional misconduct under the Law Practitioners Act 1982 and (if
proven) sufficient to meet a threshold
test of misconduct as defined by s
7(1)(b)(ii) of the LCA and pursuant to s 152(2)(a) of the LCA determined that
the matter
be considered by the New Zealand Lawyers and
Conveyancers Disciplinary Tribunal.
[43] In the second notice, concerning the Randerson J allegations, the
Committee said, it had focused on four: that Randerson
J had
‘conducted a secretive and unlawful investigation; that he had
‘used his judicial office in a gross abuse
of taxpayer money’; that
he had acted with ‘an improper motive, i.e., to protect a fellow Judge
from legitimate complaints’;
and had ‘attempted to obstruct the
course of justice by interfering with sub judice matters’.
[44] The Committee determined that complaint in this way:
The Committee determined that the intemperate manner in which the allegations were made against Randerson J and the making of the allegations seemingly without a substantial basis by Mr Deliu was capable of meeting and (if proven) sufficient to meet, a threshold test of misconduct, as defined by s 7(1)(b)(ii) of the LCA, and pursuant to s 152(2)(a) of the LCA
determined that the matter be considered by the New Zealand Lawyers and
Conveyancers Disciplinary Tribunal.
[45] In each of those determinations, the Committee said,
‘appropriate charges will be framed and served as soon as
practicable’.
It also notified Mr Deliu of his right to a review by the
Legal Complaints Review Officer; a right he immediately exercised. On
21
October 2011, the Review Officer declined to intervene and, when Mr Deliu
applied to him to reconsider his decision, he declined
on 11 January 2012 to do
so.
[46] In an email to the Standards Committee, dated 27 January 2012, Mr Deliu evidently asked to be heard before any charges were laid against him. It is not apparent from the record whether he received any reply to that email before the meeting of the Standards Committee on 2 February 2012, at which charges prepared by counsel to the Committee were approved. As to that the minutes say simply this,
‘The NSC expressed satisfaction with the draft charges and requested
that they be laid as soon as practicable’.
[47] That the Committee had considered the email, and decided not to hear
Mr
Deliu before approving the charges, is recorded rather in a letter to him,
dated 15
February 2012. It says that on 2 February the Committee had declined his
emailed request for three reasons: (i) the Committee was
functus officio, and
lacked power to recall or rehear; (ii) the form and content of the charges was
for the Committee; (iii) Mr Deliu’s
right of challenge lay with the
Tribunal.
Quorum
[48] Mr Deliu first contends that the Standards Committee lacked a quorum
on 2
February 2012, when it approved in draft the charges laid with the Disciplinary Tribunal. He contends as well that, when the Committee’s Convenor, Mr Hampton QC, signed the charges on 30 March 2012, self evidently there was no quorum. He arrogated to himself the Committee’s power. I am unable to sustain either challenge.
[49] The National Standards Committee (No 1) is established by
regulation.30 It may be an operational standards committee, if the
board of the New Zealand Law Society declares it to be so.31 The
Committee plainly functions operationally, and assuming that to be its status,
it must 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.32 It could thus
range in size between three – nine members.
[50] In respect of complaints, a quorum is ‘a majority of members,
at least one of whom must be a lay member’;33 and reg 26(3)
says ‘A decision supported by a majority of the votes cast at a meeting of
a standards committee is the decision
of the committee’.
[51] According to the minutes of the 2 February 2012 meeting the
Standards Committee must have nine members. Eight attended,
two of whom were
convenors, and one of whom was a lay member. One member entered an
apology.
[52] As to each agenda item, according to the minutes, seven, not eight,
members would have been present. One member is recorded
as attending for the
first three items and another for items four – 16. The Committee
concedes, furthermore, that one of the
two convenors and one member who attended
by teleconference were also absent when item 15 was considered; that concerning
the charges
against Mr Deliu.
[53] Assuming that to be so, the Committee would have reduced to five members, but as that is 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. Mr Deliu puts in issue whether one further member of the Committee was still present, notwithstanding the minutes. That is not something I am able to resolve in the
absence of evidence or a concession.
31 Regulation 12(2).
32 Regulation 13(1).
33 Regulation 26(2).
[54] When Mr Hampton QC signed the charges on 30 March 2012, I conclude
also, 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. They
say that a charge laid by a Standards
Committee, under s 154, to which I shall come shortly, must be in a form its
rules prescribe;
and that form requires that a charge be signed. It does not
specify by whom. It requires only that whoever signs the charge state
what his
or her position is and name the Committee laying the charge.
[55] It was proper for Mr Hampton QC to sign the charges approved in
draft by the Standards Committee on 2 February 2012. He
was the Convenor when
they were approved. The only issue that there can be is whether those charges
had to conform with the notices
of determination from which they
derived.
Ability to lay charges
[56] Mr Deliu rightly says that he put in issue, before the Standards
Committee meeting on 8 November 2010, its ability
to review his
conduct, when making allegations against the two Judges. His point was that
he was not then engaged in regulated
services; and thus could not be guilty of
misconduct under s 7(1)(a)(i):
conduct of the lawyer ... that occurs at a time when he or she ... is
providing regulated services and is conduct – that would
reasonably be
regarded by lawyers of good standing as disgraceful or
dishonourable.
[57] In its agenda for that day the Committee noted that, if it were to
share that view, then:
the threshold of s 7(1)(b)(ii) of the LCA 2006 must be met namely the
conduct; ‘... would justify ... the lawyer ... is not
a fit and proper
person and unsuited to engage in practice as a lawyer’. (High
Threshold).
[58] Mr Deliu is also correct when he points out that the s 152 notices of determination did not hold him potentially accountable for misconduct, while providing regulated services. They held him potentially accountable for misconduct in his personal capacity under s 7(1)(b)(ii). Yet, in the charges that it laid, the Committee has charged him alternatively with conduct in his personal capacity or while providing regulated services.
[59] The Standards Committee contends that the s 152 notices of
determination did not constrain its ability under s 154 to lay
any
‘appropriate charge’; and the charges that it did lay alleging
misconduct while providing regulated services, as
opposed to personal
misconduct, rest on an alternative legal interpretation of the same subject
matter. They do not allege any instances
of misconduct beyond those alleged in
the notices of determination, or beyond the complaints to which those
determinations respond.
[60] In issue, then, is the status of s 152 determinations and as to that it is material that s 152 contemplates, fundamentally, not one form of determination but two. A standards committee can assume jurisdiction and find the practitioner culpable of
‘unsatisfactory conduct’, or decide to take no further
action.34 Or, as is the case here,
it can decide under s 152(2)(a) not to assume jurisdiction and determine
‘that the complaint or matter, or any issue involved
in the complaint or
matter, be considered by the Disciplinary Tribunal’.
[61] When the Standards Committee does assume jurisdiction, and make one
of the two forms of decision then open, it is under a
duty to give
reasons.35 But when the Committee declines to assume
jurisdiction, and refers to the Disciplinary Tribunal the complaint or
matter
or any related issue, it is not under that duty. Instead, s 154(1)(a)
says that it must:
frame an appropriate charge and lay it before the Disciplinary Tribunal by
submitting it in writing to the chairperson of the Disciplinary
Tribunal;
[62] In Orlov v New Zealand Law Society & Ors the Court of
Appeal held that the power of a standards committee to determine a complaint or
matter under s 152(2)(a) does not involve
any threshold test or restriction
because: 36
... a decision under s 152(2)(a) does not determine the outcome of the
complaint. It only determines which body should be seized
of it. The
decision is procedural in nature and occurs at a very preliminary stage of what
is a comprehensive statutory process
involving several checks and balances in
what the legislature saw as a more responsive regulatory
regime.
34 Section 152(2)(b), (c).
35 Section 158.
36 Orlov v New Zealand Law Society & Ors [2013] 3 NZLR 562 at [50].
[63] Consistent with that conclusion, the Court said, is that a standards committee is able not merely to refer a complaint or matter to the Disciplinary Tribunal, but also
‘any issue involved in the complaint or matter’.37
Consistent as well is the absence
of any duty to give reasons for the referral, which the Court
said:38
... reflects the underlying policy that complaints are to be dealt with
expeditiously and that decisions made under s 152(2)(a), unlike
ones made under
s 152(2)(b) and (c), are not adjudications on the merits of complaints. They are
a step in an ongoing process, the
next phrase of which involves the framing of
an appropriate charge and is governed by s 154.
Further, the Court said, if the Committee were to comment on the merits it
could be
seen as prejudicing the Tribunal’s task and usurping its
function.39
[64] Analogous statements are to be found in two decisions of this Court
under the Law Practitioners Act 1982, concerning the
process by which district
committees, which had investigated complaints then referred them to disciplinary
committees.40
[65] In this instance, it therefore follows, the Standards
Committee, when declining jurisdiction under s 152(2)(a),
and referring the
complaint to the Disciplinary Tribunal, made a procedural decision only. It did
not, itself, make any decision
about the substance of the complaints. Its only
duty under s 154(1) was to lay before the Disciplinary Tribunal any charge that
was ‘appropriate’. In that, it was not constrained by any
preliminary view it expressed in its s 152 determinations
as to what charges
were appropriate.
[66] The Standards Committee decided, in its determination under s 152(2)(a), that the allegations Mr Deliu had made against the two Judges on specific occasions were capable, if proved, of constituting personal misconduct under s 7(1)(b)(ii). It only laid the alternative charges under s 7(1)(a) because, in law, misconduct alleged might have occurred while providing regulated services. Those alternative charges entirely proper. They do not extend the compass of the misconduct alleged. They
will turn on how the law applies.
37 At [54](e).
38 At [99].
39 At [100].
40 Auckland District Law Society v O HC Auckland HC237/94, M84/95, 27 April 1995; B v
Canterbury District Law Society [2002] 3 NZLR 113.
[67] I conclude, therefore, that this second ground on which Mr Deliu
challenges the validity of the decision of the Standards
Committee is also
without foundation.
Conclusions
[68] The National Standards Committee of the New Zealand Law
Society, I conclude, laid valid charges against Mr Deliu
before the New Zealand
Lawyers and Conveyancers Disciplinary Tribunal.
[69] The Deputy Chairperson of the Tribunal, I conclude also, ought to
have set down for hearing Mr Deliu’s challenge to
jurisdiction, before
making timetabling directions. But Mr Deliu’s challenge was beyond the
Tribunal’s power to resolve
and, that challenge apart, the directions were
within the Tribunal’s power and consistent with its duty. If the
directions
were in any sense invalid, that is without consequence.
[70] I dismiss Mr Deliu’s application for judicial review. As a result the Standards Committee is entitled to claim costs. If it wishes to do so it is to file a memorandum within 10 working days of the issue of this decision and Mr Deliu is to reply within
the succeeding 10 working days.
P.J. Keane J
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