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New Zealand Law Society v Deliu [2014] NZHC 2467; [2015] 2 NZLR 224 (8 October 2014)

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000427 [2014] NZHC 2467

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on Wednesday, 8 October 2014 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland.

NEW ZEALAND LAW SOCIETY v DELIU [2014] NZHC 2467 [8 October 2014]

Table of Contents

_{Para No}

Introduction [1] Protest to jurisdiction [7] The development of the High Court jurisdiction [8] The Lawyers and Conveyancers Act [16] Objection to the jurisdiction – Rule 5.49 [30] The summary judgment jurisdiction [48] Authorities where striking off/suspension has been considered [54] Approach to this application [63]

Exercise of the discretion in this case

Do these issues call for extensive inquiry? [69]

Advantages/disadvantages of a specialised process [77] Duplicity of charges [84] Urgency [87] The range of penalties [91] Do the High Court and Court of Appeal have a particular suitability? [97] Is the profession’s disciplinary procedure inappropriate or unsuitable? [104] Overview [105]

Conclusion in relation to summary judgment [107] Strike out [112] Preliminary question [116] Conclusion [117] Result [123] Costs [125]

Introduction

[1] The New Zealand Law Society (NZLS) has filed proceedings in this Court seeking an order that Francisc Catalin Deliu’s name be struck off the roll of barristers and solicitors or suspended, and other related orders. Mr Deliu opposes the application. He has not filed a statement of defence but rather filed an appearance under protest to jurisdiction and applied for a grant of summary judgment in his favour as defendant against the NZLS, or for an order striking out the proceedings, or for disposal of a preliminary question whether the conduct could be grounds for striking off and suspension, as well as seeking other related orders. His applications are opposed by the NZLS, and it has also filed an application to set aside Mr Deliu’s protest to jurisdiction. It is necessary to determine these applications.

[2] To support its claim for orders against Mr Deliu, the NZLS advanced four broad grounds against him alleging that he:

(a) regularly alleged fraud, bad faith, corruption, misconduct, bias, sought recusal of judicial officers or otherwise made scandalous accusations against Judges and other professionals in proceedings without good cause;

(b) regularly made unnecessary or misconceived applications or arguments in the conduct of litigation;

(c) regularly engaged in intemperate and/or unprofessional communications with other professionals; and

(d) conducted himself in an intemperate and unprofessional manner in communicating, dealing with and litigating against the NZLS and persons connected with the NZLS.

[3] The statement of claim contains detailed particulars of these allegations. There are references to a number of specific cases in which Mr Deliu was involved where he allegedly made scandalous accusations against others including Judges or courts, and taken steps that it is said were unnecessary or misconceived. The statement of claim also particularises instances where he has been involved in allegedly abusive interchanges with persons involved in the disciplinary processes against him, and other unrelated situations where he has allegedly abused other professional persons.

[4] Many pages of submissions have been filed by the parties in relation to these applications. Various issues including issues of the admissibility of evidence have been raised by Mr Deliu. However, in essence Mr Deliu claims that this Court does not have the jurisdiction to hear the NZLS’s application to strike him off or suspend him. Alternatively, if this Court has jurisdiction to hear the application, he submits that it is unarguable that it should not be exercised in a case such as his. Instead, he submits, the NZLS should have utilised the detailed disciplinary procedures set out in the Lawyers and Conveyancers Act 2006 (the LCA).

[5] There are three applications that have been argued in detail before me: the application to set aside the protest to jurisdiction, the application for summary judgment and the application to strike out. The NZLS has not suggested that Mr Deliu has taken any step that amounts to a submission to jurisdiction.

[6] It is necessary to determine the protest to jurisdiction issue first as it raises squarely the extent of the High Court and Court of Appeal’s jurisdiction to strike barristers and solicitors off the roll.

Protest to jurisdiction

[7] Under this head I will consider the development of the Court’s jurisdiction and the parallel jurisdiction of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Disciplinary Tribunal) under the LCA, and whether the protest to the Court’s jurisdiction to determine the NZLS’s application should be set aside. The NZLS relies on ss 266–268 of the LCA.

The development of the High Court jurisdiction

[8] In 1292, The Parliament of Edward I made an Act appointing the Lord Chief Justice of the Court of Common Pleas and other Justices of that Court and provided that the Justices could appoint “certain Attorneys and lawyers” or remove them as they saw fit.¹ This order placed the profession of an attorney under the control of the judges,² although the power may have already existed at common law. While

Parliament subsequently enacted legislation setting out when people could be excluded from the profession this did not remove the jurisdiction of the Court to admit or remove practitioners.³ With the rise of the Inns of Court, the Courts

_{delegated the function of admitting and disbarring lawyers to the Inns of Court.}⁴

¹ Rolls of Parliament 1292 (Imp) 20 Edw I. Prior to this the Courts had obtained some limited supervision of pleaders by The Statute of Westminster I 1275 (Imp) 3 Edw I c 29, which allowed pleaders to be “silenced”. Both of these provisions are discussed in R v Visitors to the Inns of Court [1994] QB 1 (QB and CA) at 11.

² _{Frederick Pollock and Frederic Maitland The History of English Law Before the Time of}

_{Edward I (2}^nd _{ed, Cambridge University Press, Cambridge, 1898) vol 1 at 224–230.}

³ For example Attorneys Act 1402 (Imp) 4 Hen IV, c 18 provided that Judges could examine all attorneys and put their name in the roll or exclude them.

⁴ In re the Justices of the Court of Common Pleas at Antigua (1830) 1 Knapp 267 at 268, 12 ER

321 at 321 (PC); R v Visitors to the Inns of Court, above n 1, at 13–14.

However, this delegation of this power did not extinguish the jurisdiction of the

Court to admit or sanction lawyers in the event that the Inns of Court failed to do so.⁵

[9] In New Zealand, which did not have the Inns of Court, the discipline of the legal profession was entirely in the hands of the Supreme Court (now the High Court) under its jurisdiction to admit or disbar lawyers. Supreme Court Ordinances of 1841 and 1844 recognised this and provided that the Court could remove the names of practitioners from the roll “upon reasonable cause”.⁶ Section XXXV of the Law Practitioners Act 1861 recorded the Supreme Court’s inherent jurisdiction including the power of the Court to strike a practitioner off.

[10] Then in 1863, with the formation of the Court of Appeal, the exercise of this power to strike off a practitioner was reserved for the Court of Appeal. Section XXXV of the Court of Appeal Act 1862 enacted a provision similar to the existing s 267 of the LCA, the section relied on by the NZLS in this case. Section XXXV provided:

Whenever a rule nisi has been granted by the Supreme Court calling upon a Barrister or Solicitor on the rolls thereof to shew cause why he should not be struck off the rolls if upon cause being shewn the said Supreme Court shall be of opinion that the rule ought to be made absolute or that it is doubtful whether the rule ought to be discharged or made absolute such Court shall reserve the case for the consideration of the Court of Appeal....

If the High Court reserved the case for the consideration of the Court of Appeal, the Court of Appeal then could make the rule nisi absolute striking off the lawyer from the rolls absolute or discharge the rule nisi.⁷

[11] This provision requiring the High Court to dismiss the application, or reserve striking off for the Court of Appeal to decide, was subsequently provided for in the

⁵ R v Gray’s Inn (1780) 1 Doug 353[1780] EngR 40; , 99 ER 227 (KB); R v Benchers of Lincoln’s Inn [1825] EngR 814; 4 B & C 855,

_{[1825] EngR 814; 107 ER 1277 (KB); R v Visitors to the Inns of Court, above n 1, at 11–14.}

⁶ For further discussion about the development of the regulation of the New Zealand legal

profession see WR Flaus “Discipline within the New Zealand Legal Profession” (1971-1973)

6 VUWLR 337; Robin Cooke (ed) Portrait of a Profession (AH & AW Reed, Wellington, 1969)

_{at 143–144.}

⁷ Section XVIII of the Court of Appeal Act 1862 provided that in relation to a rule nisi the Court of Appeal had the “same power and authority upon such Rule as the Supreme Court would have had but for such removal.” Section XV provided that any order, judgments and decrease of the Court of Appeal would be enforced by the Supreme Court as if the Supreme Court had made the order, judgment or decree.

Law Practitioners Act 1882⁸ and reiterated in s 54 of the Law Practitioners Act

1908, s 49 of the Law Practitioners Act 1931, s 29 of the Law Practitioners Act 1955, and s 93 of the Law Practitioners Act 1982, culminating in the present s 267 of the LCA.

[12] By 1935 the Court-based disciplinary process was seen to be a “very involved and expensive procedure”.⁹ To remedy this, the Law Practitioners Amendment Act 1935 created a specialised disciplinary procedure controlled by the New Zealand Law Society and the District Law Societies. The medical and accountancy professions already had their own statutory disciplinary powers and Prime Minister Forbes observed in the Parliamentary debate on the committal of the

Bill that the legal profession was seeking those same rights, modelled on the prevailing British law for the legal profession in that regard.¹⁰ The NZLS had sought self-government on disciplinary matters, and Parliament was prepared to provide it.

[13] Nevertheless, the inherent jurisdiction of the Court to regulate the conduct of those people who appear before the Court was continued, and continues to this day as is recognised in s 120(6) of the LCA. Section 120(6) provides:

120 Purposes

...

(6) The fourth purpose of this Part is to preserve the inherent jurisdiction of the High Court to strike off the roll and discipline lawyers in their capacity as officers of the High Court.

[14] A solicitor is an officer of the Court, and it is incumbent on the Courts to see that the conduct of its officers is beyond reproach and to punish those whose conduct is unbecoming their office.¹¹ Although barristers are traditionally not officers of the Court, in New Zealand the power extends to barristers.¹² While the power to strike off a lawyer has been reserved for the Court of Appeal under s 267 of the LCA,

_{ss 268 and 270 of LCA state that subject to s 267 the High Court continues to have}

⁸ _{Law Practitioners Act 1882, s 53.}

⁹ (22 October 1935) 243 NZPD 479 the Hon Mr Barnard stated that “... the Bill will simplify the

_{very involved and expensive procedure now required. ...”}

¹⁰ _{Flaus “Discipline Within the New Zealand Legal Profession”, above n 6, at 344.}

¹¹ See Frederic T Horne Cordery’s Law relating to Solicitors (8^th ed, Butterworths, London, 1988)

_{at 311.}

¹² Lawyers and Conveyancers Act 2006, ss 266 and 267; Black v Taylor [1993] 3 NZLR 403 (CA).

the inherent jurisdiction to regulate the lawyers that appear before it, including by striking off or suspending the lawyers.¹³ It is for this reason that orders made by the Disciplinary Tribunal striking off or suspending a lawyer are to be treated “as if it were an order of the High Court to the like effect made within the jurisdiction of the High Court.”¹⁴

[15] The High Court therefore retains its jurisdiction to suspend, which it can exercise without reference to the Court of Appeal. It also may strike off, but its power to exercise that jurisdiction is limited by the procedure set out in s 267 which provides for the High Court to reserve the case to the Court of Appeal.

The Lawyers and Conveyancers Act 2006

[16] As a matter of practice applications for striking off the roll, if they are made in the High Court, are brought under s 266 of the LCA. Upon bringing an application, s 267 provides that the High Court must determine whether to reserve the case for the consideration of the Court of Appeal or dismiss it. The NZLS has brought an application under s 266.

[17] It is stated that the LCA “reforms the law relating to lawyers in New Zealand”.¹⁵ It provides for a more responsive regulatory regime in relation to lawyers and conveyancers,¹⁶ and its purpose is to state the fundamental obligations with which, in the public interest, all lawyers must comply in providing regulated services.¹⁷ It sets out the regulatory functions and powers of the NZLS.¹⁸ The NZLS is required to have rules,¹⁹ and a code of professional conduct and client care.²⁰ One of the purposes of Part 7 of the LCA, the complaints and discipline part,

_{is to provide a “framework” in relation to complaints and discipline. Its provisions}

¹³ Section 57(4) of the Judicature Act 1908 provides that a Judge of the Court of Appeal continues to be a Judge of the High Court and may exercise any of the powers of a Judge of the High Court.

¹⁴ _{Lawyers and Conveyancers Act 2006, s 255(2).}

¹⁵ _{Section 3(2)(a).}

¹⁶ _{Section 3(2)(b).}

¹⁷ _{Section 3(2)(d).}

¹⁸ _{Sections 65 and 67.}

¹⁹ Section 94.

are relevant to this appeal.²¹ The new procedure can be seen as a development of detailed procedures beginning when a disciplinary committee was constituted in

_1935.²²

[18] The framework of Part 7 is one in which disciplinary charges may be heard and determined “expeditiously”.²³ Having set out three purposes,  s 120(6)  provides that the fourth purpose of Part 7 is to “preserve the inherent jurisdiction of the High Court to strike off the roll and discipline lawyers in their capacity as officers of the High Court.” Therefore, despite the provision of a detailed procedure and specialist bodies for disciplinary matters, the High Court’s supervisory jurisdiction is explicitly continued.

[19] This raises the question of how both jurisdictions are intended to operate. To understand this it is necessary to briefly set out the operation of both the Disciplinary Tribunal jurisdiction and the High Court and Court of Appeal’s jurisdiction.

[20] Under the LCA an obligation is placed on the NZLS to establish a complaints service, make and maintain practice rules, and administer a complaints service.²⁴

The functions and procedures are set out in detail. Standards Committees are to be comprised of at least three persons, at least one of which must be a lay member.²⁵

The functions of a Standards Committee are to inquire and investigate complaints, to promote mediation in appropriate cases, to make final determinations in relation to complaints, and to lay and prosecute charges before the Disciplinary Tribunal.²⁶

Complaints are made to a Standards Committee, which must send particulars of the complaint to the person complained about, and require an explanation.²⁷ The Standards Committee must act in accordance with the rules of natural justice.²⁸ It

_{may direct negotiation, conciliation or mediation processes, and it is placed in a}

²¹  _{Section 120.} 

²² See Cooke (ed) Portrait of a Profession, above n 6, at 143. The first disciplinary body established in New Zealand appears to be The Medical Board. It was established in 1867 by the Medical Practitioners’ Act 1867. That Act gave the Board the power to direct the registrar to erase the name of a practitioner from the register of medical practitioners with the Consent of the Governor.

²³ _{Lawyers and Conveyancers Act 2006,  s 120(3).} 

²⁴ _{Sections 121, 122 and 123.}

²⁵ _{Sections 126 and 129.}

²⁶ _{Sections 130(b), 130(e) and 130(f).}

²⁷ Sections 137 and 141.

privileged position in this regard.²⁹ It may appoint investigators, who are to present a report to the Standards Committee.³⁰ It may receive in evidence any statement that would assist, whether or not it would be admissible in a court of law.³¹ It has powers to decide that a complaint or matter be determined by the Disciplinary Tribunal.³²

Standards Committees have limited regulatory powers including the power to censure or reprimand, and order a fine not exceeding $15,000,³³ and certain powers to intervene in practice.³⁴

[21] The LCA also provides for the appointment of a Legal Complaints Review Officer who is not a lawyer, to exercise powers of review in relation to decisions of Standards Committees, to promote resolution, and to provide advice to the NZLS and the Minister of Justice on any issue that officer identifies in the course of

carrying out reviews.³⁵ The Legal Complaints Review Officer may conduct a review

of the actions of a Standards Committee.³⁶ The Legal Complaints Review Officer may confirm, modify or reverse any decision of a Standards Committee and exercise any of a Standards Committee’s powers.³⁷ That officer may lay charges with the Disciplinary Tribunal.³⁸

[22] The Disciplinary Tribunal is created by the LCA.³⁹ Its function is to hear and determine applications by Standards Committees and the Legal Complaints Review Officer. The Disciplinary Tribunal consists of not less than seven and not more than

_{15 lay members, and not less than seven and not more than 15 lawyers.}⁴⁰ _The

Chairperson of the Disciplinary Tribunal and the Deputy Chairperson must each be a person who, whether or not he or she holds or has held judicial office, is not a practitioner but has not less than seven years practice as a lawyer.⁴¹ That person may

_{well therefore be a former Judge.}

²⁹ _{Sections 143(1) and 143(5).}

³⁰ _{Sections 144 and 148.}

³¹ _{Section 151(1).}

³² _{Section 154.}

³³ _{Section 156(1)(b) and (i).}

³⁴ _{Sections 162–182.}

³⁵ _{Section 192(a)–(c).}

³⁶ _{Sections 202–205.}

³⁷ _{Section 211.}

³⁸ _{Section 212.}

³⁹ _{Section 226.}

⁴⁰ _{Section 228(c) and (d).}

⁴¹ Section 230(1).

[23] When the Disciplinary Tribunal sits, whether as the tribunal or as a division, half of the members, not including the chairperson, must be lay members.⁴² The quorum of any Disciplinary Tribunal or division must be five members and a quorum is not present if no lay member is present.⁴³ The Disciplinary Tribunal must observe the rules of natural justice,⁴⁴ and its hearings are to be public.⁴⁵ Like the complaints committee it can receive any evidence that may assist it to deal effectively with the matters before it, whether or not the evidence would be admissible in a court of

_law.⁴⁶ _{The powers of the Disciplinary Tribunal include the power to strike off,}

suspend and fine.⁴⁷ The Disciplinary Tribunal may also restore the name of a lawyer to the roll.⁴⁸

[24] I will refer to the procedure I have outlined here as “the Disciplinary Tribunal procedure”. Any person may appeal a decision of the Disciplinary Tribunal to the High Court. The appeal is by way of a re-hearing.⁴⁹ There is also a right to appeal to the Court of Appeal on a question of law.⁵⁰

[25] The jurisdiction of the High Court and Court of Appeal to strike off or suspend lawyers is set out at ss 266 to 270 of the LCA. These sections have been the subject of close attention during the course of submissions and I set the relevant provisions out in full:

266 Lawyer's name may be struck off on application to High Court

On application to the High Court in that behalf, the name of a person enrolled as a barrister and solicitor of the High Court under or by virtue of this Act may be struck off the roll for reasonable cause, whenever and wherever it arises, in accordance with section 267.

⁴² _{Section 234(3).}

⁴³ _{Section 235(2)(a).}

⁴⁴ _{Section 236.}

⁴⁵ _{Section 238.}

⁴⁶ _{Section 239(1).}

⁴⁷ _{Section 242(1)(c), (e) and (i).}

⁴⁸ _{Section 246.}

⁴⁹ _{Section 253(3).}

⁵⁰ Section 254.

267 High Court may dismiss application, or reserve case for Court of

Appeal

(1) When an application is made to the High Court for an order that the name of a person enrolled as a barrister and solicitor of the High Court under or by virtue of this Act be struck off the roll,—

(a) the High Court may, if it thinks fit, dismiss the application; or

(b) if the High Court is of the opinion that the application ought to be granted, or that it is doubtful whether the application ought to be dismissed or granted, the High Court must reserve the case for the consideration of the Court of Appeal.

(2) The High Court, if it reserves the case under subsection (1)(b),—

(a) must cause the application and all affidavits made in support of the application, and all other proceedings, to be sent forthwith to the Registrar of the Court of Appeal; and

(b) may order that the person enrolled be suspended from practice as a barrister or as a solicitor or as both until the decision of the Court of Appeal on the application is given.

(3) If a case is reserved for the consideration of the Court of Appeal, that

Court—

(a) must, as soon as practicable, consider the application and grant or dismiss it; and

(b) may make such other order in respect of the application as it thinks fit.

268 Inherent jurisdiction of High Court

(1) Nothing in this Act (other than sections 266 and 267) affects the inherent jurisdiction and powers of the High Court over a person enrolled under or by virtue of this Act as a barrister and solicitor of the High Court (whether or not the person is practising as a barrister and solicitor, or as a barrister but not also as a solicitor).

(2) Despite section 245, the High Court has, in the exercise of its summary jurisdiction, full power, on reasonable cause being shown, to suspend from practice a person enrolled under or by virtue of this Act as a barrister and solicitor of the High Court (whether or not the person is practising as a barrister and solicitor, or as a barrister but not also as a solicitor).

270 Jurisdiction of High Court not limited

Except as provided in this Part, nothing in this Part limits the jurisdiction of the High Court.

[26] Section 267 is the important section which sets out the powers of the High Court and Court of Appeal in relation to an application to strike off a lawyer. The High Court power under s 266 must be exercised “in accordance with section 267”. Under s 267, if the High Court is of the opinion that the application to strike off ought to be granted or is doubtful whether the application should be dismissed or granted, it must reserve the case for consideration to the Court of Appeal. The Court of Appeal then considers the matter and determines whether the barrister and solicitor be struck off. I will refer to this as the s 267 procedure. The same procedure was in the predecessor to the LCA, the Law Practitioners Act 1982, where District Councils carried out the functions of Standards Committees, and there were

disciplinary tribunals⁵¹ and the New Zealand Law Practitioners Disciplinary

Tribunal.⁵²

[27] Section 268 also states, presumably for the avoidance of doubt, that the inherent jurisdiction of the High Court over barristers and solicitors is retained,⁵³ as is the power of the High Court to suspend any barrister and solicitor upon reasonable cause.⁵⁴

[28] The situation is, therefore, that two bodies have the power to strike off barristers and solicitors, being the Disciplinary Tribunal and the Court of Appeal. The High Court has the power to reserve or dismiss applications to strike off under s

267, and, if it reserves such an application for the Court of Appeal, to suspend in the interim. The High Court also continues its inherent jurisdiction to supervise the roll of barristers and solicitors which, as s 268(2) makes clear, includes the ability to suspend for a period.

[29] Most disciplinary matters are dealt with by the Disciplinary Tribunal procedure. This is unsurprising. The procedure set out in s 267, providing for a two stage process in the High Court and Court of Appeal, can be seen as a relic from the time prior to 1935 when there was no alternative to Court supervision. The

_{procedure that has developed since 1935 is a detailed process with various checks}

⁵¹ _{Law Practitioners Act 1982, ss 103–107 (repealed).}

⁵² _{Sections 108–119.}

⁵³ _{Section 268(1).}

⁵⁴ Section 268(2).

and balances refined by various gestations over the years since its creation. In Australia,⁵⁵ the United Kingdom⁵⁶ and Canada⁵⁷ by and large all complaints against barristers and solicitors are dealt with by the specialist bodies. The equivalents to our High Court in those jurisdictions as a matter of practice do not strike off barristers and solicitors. This is the task of the specialist bodies created by statute.

Objection to jurisdiction – Rule 5.49

[30] Mr Deliu has filed an appearance protesting to jurisdiction under r 5.49 of the

High Court Rules. Rule 5.49 provides, as relevant:

5.49 Appearance and objection to jurisdiction

(1) A defendant who objects to the jurisdiction of the court to hear and determine the proceeding may, within the time allowed for filing a statement of defence and instead of so doing, file and serve an appearance stating the defendant’s objection and the grounds for it.

(2) The filing and serving of an appearance does not operate as a submission to the jurisdiction of the court.

...

[31] In his appearance, Mr Deliu states that the High Court does not have jurisdiction because the Disciplinary Tribunal, rather than the High Court and Court of Appeal, is the more appropriate forum for determining the allegations made against him. Mr Deliu advances several grounds in support, including claims that the charges are not rare and exceptional, that these proceedings duplicate existing charges in the Disciplinary Tribunal, and deny rights of appeal under the ss 267 and

_{268 procedures.}

⁵⁵ In Australia the various States and Territories have different bodies for making complaints, some Law Societies and others independent bodies, but all decisions to strike off or suspend a lawyer are made by a disciplinary tribunal or administrative tribunal. See GE Dal Pont Lawyers’ Professional Responsibility (5^th ed, Thomson Reuters, Pyrmont, 2013), ch 24. While the courts maintain the inherent jurisdiction to discipline lawyers, this is a reserve power: Dal Pont Lawyers’ Professional Responsibility, at [23.10].

⁵⁶ In England the Solicitors Disciplinary Tribunal and the Bar Standards Board are responsible for disciplining solicitors and barristers respectively and may strike off their respective members.

⁵⁷ In Ontario, the Law Society investigates and also has a Tribunal that hears complaints and an appeal division. The Hearing and Appeals Tribunal has at least one member who is not a lawyer. Appeals from this can be made to the Divisional Court: See the Law Society Act 1990 (Ont). In Quebec, complaints are made to the Syndic’s Office of the Barreau de Québec which investigates and may prosecute before the Disciplinary Board.

[32] The NZLS has applied to set aside Mr Deliu’s appearance under r 5.49(5). This application to set aside is determined according to r 5.49(6). Rule 5.49(6) provides:

5.49 Appearance and objection to jurisdiction

...

(6) The court hearing that application must,—

(a) if it is satisfied that it has jurisdiction to hear and determine the proceeding, set aside the appearance; but

(b) if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss both the application and the proceeding.

[33] As set out in the preceding section, the High Court’s jurisdiction to supervise its officers and punish those whose conduct does not become their office is ancient and continues to exist, and is explicitly confirmed in LCA. There is no doubt that under s 267 of the LCA the High Court has jurisdiction to hear complaints of this type against Mr Deliu, and if appropriate reserve them to the Court of Appeal. Similarly, the High Court has the jurisdiction under s 268 to suspend Mr Deliu if reasonable cause is shown.

[34] Ms Gordon, on behalf of the NZLS, submitted that was the end of the matter. Under r 5.49(6) the Court could not be satisfied that it has no jurisdiction to hear and determine the proceeding. Mr Deliu, however, relied on the Supreme Court decision of Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd (Redcliffe) for the proposition that while the High Court and Court of Appeal might be competent to deal with the claim, there are rules of practice that place limits on the types of cases

that it would be proper for the High Court to deal with.⁵⁸ He submitted that those

limits apply to this case, and if the Court determines that the case is more properly heard before the Disciplinary Tribunal, it should decline jurisdiction and uphold his protest.

[35] In Redcliffe the Supreme Court considered the trial Court was functus officio as the issues in the proceeding had been the subject of decisions of appellate Courts,

⁵⁸ Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013]

1 NZLR 804.

and the effect of the High Court proceedings would be to re-open those appellate decisions breaching the principle of the finality of litigation.⁵⁹ The High Court had no power to recall or set aside judgments on questions of law that had been the subject of appellate decisions.⁶⁰ The Supreme Court held that r 5.49 of the High Court Rules was to be given its ordinary meaning, expressing an unqualified right to challenge the jurisdiction of a Court to hear and determine a proceeding and it was not restricted to specific situations. The objection to jurisdiction had been properly made as the High Court was functus officio. The Supreme Court rejected a more narrow interpretation of r 5.49 that had been adopted by the Court of Appeal.⁶¹

[36] In arriving at this interpretation of r 5.49, the Supreme Court quoted Diplock LJ’s classic expression of the meaning of jurisdiction set out in Garthwaite v Garthwaite:⁶²

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.

[37] It also quoted Lord Scott in Tehrani v Secretary of State for the Home

Department:⁶³

When issues are raised as to whether or not a court of law has jurisdiction to deal with a particular matter brought before it, it is necessary to be clear about what is meant by “jurisdiction”. In its strict sense the “jurisdiction” of a court refers to the matters that the court is competent to deal with. 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. Courts whose jurisdiction is not statutory but inherent, too, may have jurisdictional limits imposed on them by rules of court. But whether or not a court has jurisdictional limits (in the strict sense) there are often rules of practice, some produced by long- standing judicial authority, which place limits on the sort of cases that it

⁵⁹ _{At [7].}

60. At [41]–[44]. However, the Supreme Court considered that the appellate decisions were not an absolute bar to Redcliffe Forestry Ventures Ltd bringing a fresh proceeding. If the judgment had

_{been obtained by fraud that would be an exception to the finality principle.}

⁶¹ _{At [11] and [25]–[27].}

⁶² _{Garthwaite v Garthwaite [1964] P 356 (CA) at 387.}

⁶³ Tehrani v Secretary of State for the Home Department [2006] UKHL 47, [2007] 1 AC 521 at

[66].

would be proper for the court to deal with or on the relief that it would be proper for the court to grant.

(emphasis added)

[38] It then went on to say:⁶⁴

The principal instance of a reason established by judicial authority for why a court should not exercise jurisdiction which, strictly it possesses, is the doctrine of forum non conveniens.

[39] The Supreme Court decision in Redcliffe can be interpreted as accepting that the r 5.49 procedure is not restricted to protests to jurisdiction in the strict sense of there being no jurisdiction, but can extend to a challenge where the statutory jurisdiction exists, but it cannot not be exercised in that situation. The Commissioner’s objection to the High Court jurisdiction fell within one of the categories to which r 5.49 applied, as this was a case which could only be determined by a different Court to the High Court as the High Court was functus officio and so even if the High Court heard the matter it was barred from granting the

remedy being sought.⁶⁵

[40] The facts of Redcliffe were very different from the present, involving the principle of the finality of litigation, and the inability of a Court (the High Court) to determine issues already determined by Courts that are superior to it in the hierarchy of Courts (the Court of Appeal and Supreme Court). The issue in this case is not whether there is a barrier to the exercise of jurisdiction (for instance a determination by a higher court, or a failure to obtain leave, or a provision for exclusive jurisdiction in another forum), but rather whether the presence of another alternative jurisdiction that could be more appropriate has the result that this proceeding should be dismissed and heard in that jurisdiction. I do not read the statement in Redcliffe as to the breadth of the objection to jurisdiction procedure as covering a case such as this where the jurisdiction exists, and there is no barrier (such as a decision of a higher Court) to it being exercised, but there is a parallel jurisdiction which is better suited to determining the issues. The question here is whether the Disciplinary Tribunal

_{procedure is in the circumstances the correct procedure to pursue.}

⁶⁴ Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd, above n 58, at [27] citing

_{Tehrani v Secretary of State for the Home Department, above n 63, at [67].}

⁶⁵ Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd, above n 58, at [23].

[41] The case can be distinguished also from the Court of Appeal’s decision in Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue⁶⁶ where Redcliffe was followed and a protest to jurisdiction was upheld because the relief sought by the plaintiff, relating as it did to a case which had been determined by both the Court of Appeal and the Supreme Court, was “indisputably beyond the jurisdiction of this Court”.⁶⁷ It can be distinguished also from the recent decision of this Court in Carrington v Carrington (which was not a r 5.49 case) where the parens patriae jurisdiction of the High Court was held to have been wrongly invoked in the face of the existing Family Court jurisdiction which was created by the Protection of Property and Personal Rights Act 1988, setting out a detailed procedure for control over the persons and estates of mentally disordered persons.⁶⁸ In that case there was no explicit statutory recognition of a parallel jurisdiction as there is in ss 266–268 of the LCA, and the High Court jurisdiction was seen as a complementary jurisdiction, rather than a parallel jurisdiction, to fill in gaps in the statutory scheme.⁶⁹

[42] It is necessary to refer to the Court’s discretion to assume jurisdiction under r 6.29 of the High Court Rules. This rule refers to a specific power of the Court to either assume or decline jurisdiction when there is a protest under r 5.49. The discretionary nature of this power was affirmed in Kuwait Asia Bank EC v National

Mutual Life.⁷⁰ It relates to the specific provisions of rr 6.27 and 6.28 which relate to

service outside of New Zealand. It is concerned with the issue of whether New Zealand is the appropriate forum for trial of the action as distinct from a forum in another country. In the sense that it is a discretionary power, it could be seen by analogy as indicating that the High Court has a discretion in this case whether to accept jurisdiction under r 5.49.

[43] The forum non conveniens procedure was developed in the courts of

_{Scotland, and has been adopted in the major common law jurisdictions, including the}

⁶⁶ Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 350, (2014)

_{[2014] NZCA 350; 26 NZTC 21-086.}

⁶⁷ Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2013] NZHC 2361, (2013)

_{[2013] NZHC 2361; 26 NZTC 21-032 at [51].}

⁶⁸ _{Carrington v Carrington [2014] NZHC 869, [2014] NZFLR 571.}

⁶⁹ _{At [55] and [103].}

⁷⁰ Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 3 NZLR 513 (PC) at 525.

United States.⁷¹ That power to stay actions does not derive from there being no jurisdiction, and involves the Court making a choice as to the convenient territory. In Spiliada Maritime Corp v Cansulex Ltd, the leading English decision, the test was stated to be where the case might be most suitably tried in the interests of all the parties, and the ends of justice.⁷² That exercise is not dissimilar from the decision that must be made between parallel jurisdictions in this case.

[44] As was pointed out by the Court of Appeal in Redcliffe, the vast majority of cases determined under r 5.49 and its predecessor have involved territorial protests.⁷³

Rule 6.29 is a specific rule relating to issues of territoriality. The fact that r 6.29 enables the Courts on a territorial issue to decide between parallel jurisdictions does not create a wider ability to protest under r 5.49 beyond the territorial. Heron J in New Zealand Historic Places Trust v State Insurance General Manager refused to allow an objection to jurisdiction where the Court clearly did have jurisdiction to resolve the dispute, holding that the better procedure was to consider the issue as a

strike out application.⁷⁴ In Doug Hood Ltd v Gold & Resource Developments (NZ)

Ltd the issue was whether the Court lacked jurisdiction because the contract between the parties provided that the arbitration award should be final and binding.⁷⁵ The High Court and Court of Appeal did not accept that the objection to jurisdiction procedure was appropriate because the High Court’s jurisdiction was implicitly excluded by the contract. It was held that the High Court had jurisdiction and the issue was whether a remedy should be granted.⁷⁶ As was pointed out in Redcliffe, the issue raised in Doug Hood Ltd and which is raised by the r 5.49 procedure, is the “competence” of the Court to decide the dispute.⁷⁷

[45] This Court is competent to hear this proceeding. There is no barrier such as a decision of a higher court, or an exclusive jurisdiction requirement, or a provision

_{not complied with, to the High Court’s jurisdiction being used. The power to strike}

⁷¹ Ronald Brand & Scott Jablonski Forum Non Conveniens (Oxford University Press, Oxford,

_{2007) at 1–8.}

⁷² _{Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL) at 476.}

⁷³ Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2011] NZCA 638, [2012]

_{2 NZLR 823 at [46].}

74. New Zealand Historic Places Trust v State Insurance General Manager (1990) 3 PRNZ 323 (HC).

⁷⁵ _{Doug Hood Ltd v Gold & Resource Developments (NZ) Ltd [1999] NZCA 159; (1999) 13 PRNZ 362 (CA).}

⁷⁶ _{At [15].}

⁷⁷ Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd, above n 58, at [23].

off is not a complimentary “safety net” jurisdiction, like the parens patriae jurisdiction. It is one of two parallel jurisdictions co-existing with the Disciplinary Tribunal jurisdiction. The real issue is 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 r 5.49 to say there was no jurisdiction, as there is jurisdiction for the High Court to hear the case. Thus, r 5.49 does not apply.

[46] Therefore, I allow the NZLS application and I set aside the appearance and objection to jurisdiction.

[47] I turn now to consider the summary judgment application.

The summary judgment jurisdiction

[48] Rule 12.2 of the High Court Rules provides:

12.2 Judgment when there is no defence or when no cause of action can succeed

...

(2) The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff's statement of claim can succeed.

[49] To obtain summary judgment a defendant must show that the plaintiff’s claim cannot succeed, or to put it another way, that there is a clear answer to the claim which cannot be contradicted.⁷⁸ Where the issue raised on a summary judgment application is clear cut and can be decided as well on the application as at trial, a Court may well be prepared to deal with the whole matter on the application.⁷⁹ The procedure is not appropriate where pleadings are necessary to enable the essential elements of claim and defence to be defined.⁸⁰ The procedure is not suited when

_{there are genuine conflicts of evidence or credibility issues.}

⁷⁸ Westpac Banking Corporation v MM Kembla New Zealand Ltd [2000] NZCA 319; [2001] 2 NZLR 298 (CA);

_{Jones v Attorney-General [2003] UKPC 48, [2004] 1 NZLR 433.}

⁷⁹ _{Pemberton v Chappel [1986] NZCA 112; [1987] 1 NZLR 1 (CA) at [4].}

⁸⁰ Moore Homes Pty Ltd v Durham (1974) 3 ALR xxvi (HCA)

[50] The summary judgment issue in this case is not whether at the end of all processes Mr Deliu might be struck off the roll (although at times Mr Deliu did argue that it was certain he could never be struck off on the present charges). Rather, the issue is whether if the matter proceeded to the hearing a Judge under ss 267(1)(a) and 268 would dismiss the applications on the jurisdictional ground raised by Mr Deliu. I have not been referred to any case where, when there are two parallel jurisdictions in existence, the issue of which jurisdiction should be utilised has been dealt with at summary judgment.

[51] Ms Gordon, while not contesting the Court’s ability to consider the continuation of the proceeding in a summary judgment application, emphasised that summary judgment would only be entered when the claim plainly could not succeed. I accept that as correct. Before I can enter summary judgment for Mr Deliu, I must be satisfied that when the matter came before the Court at a substantive hearing, a High Court Judge would determine that these proceedings should not have been commenced in this court, but rather should have been commenced in the Disciplinary Tribunal.

[52] The threshold that Mr Deliu must cross is a high one, and the onus is on him. At summary judgment on a matter such as this where it is not a question of whether there is jurisdiction, but a choice between parallel jurisdictions, a court should be very cautious before preventing a plaintiff from continuing.

[53] Critical to the determination of Mr Deliu’s application is the issue of whether this Court has the power, when proceedings of this type have been filed, to decline to exercise the jurisdiction on the basis that the matter should be heard in the Disciplinary Tribunal. If it does have this power, the Court must then determine what the circumstances are in which it will decline to exercise jurisdiction and whether it is proper to decline to exercise the jurisdiction in this case. As a starting point to analysing these issues it is of assistance to examine the more recent High Court and Court of Appeal cases that have dealt with applications to strike off and suspend.

Authorities where striking off/suspension has been considered

[54] In Borick v Otago District Law Society Mr Borick, a practitioner, applied on his own behalf to be struck off the roll for reasonable cause.⁸¹ The Otago District Law Society consented to that course. The application was considered under the Law Practitioners Act 1982. Section 93 of that Act was worded in much the same way as the present s 267, providing for a two stage process where the High Court, if it thought the application ought to be granted or was doubtful whether it ought to be

dismissed or granted, should reserve the case for the Court of Appeal. In the High Court the judge had been doubtful whether the application ought to be dismissed or granted, and reserved the case for consideration by the Court of Appeal. Cooke P stated:⁸²

We have no doubt that, as a general rule, serious charges against a practitioner should be inquired into and dealt with by the New Zealand Disciplinary Tribunal, subject to rights of appeal to the High Court under s 118. But the s 92 procedure is available also and may properly be invoked in exceptional cases. As the proceedings of the Courts take place in public, there can be no possibility of avoiding publicity by the use of s 92. Especially where there are disputed matters of fact or issues calling for extensive inquiry, it will usually be more appropriate for the Disciplinary Tribunal process to be followed, although experience has shown that this is not invariably so. There is nothing to prevent a practitioner himself from making an application under s 92, but if there were any Law Society objection the Court might well decide to leave the matter to the more normal procedure.

A special feature of this case is that the Otago District Law Society consents to the application being dealt with by this Court. The Society itself could have made the application. For practical purposes the position is much the same as if it had done so. Some cost and time will be saved if this Court disposes of the case. We are therefore prepared to do so.

(emphasis added)

[55] In B v Canterbury District Law Society where the practitioner was alleged to have trust account shortfalls, the Canterbury District Law Society applied to the High Court for the suspension of B from practice under s 94 of the Law Practitioners Act 1982, the equivalent to s 268 of the LCA, without following the usual

_{disciplinary procedure.}⁸³ _{An order of suspension was made in the High Court. It}

⁸¹ _{Borick v Otago District Law Society [1991] 2 NZLR 169 (CA).}

⁸² _{At 170–171.}

⁸³ B v Canterbury District Law Society (1997) 11 PRNZ 196 (CA).

was argued on appeal that the High Court of New Zealand had no jurisdiction to summarily suspend a practitioner on an interim basis, pending a full hearing of the charges against that practitioner.

[56] The Court of Appeal held that the summary jurisdiction of the Court was preserved by s 94.⁸⁴ In relation to the exercise of the jurisdiction to strike off under s

_{93 and suspend under s 94 the Court observed:}⁸⁵

It is clear from the scheme of the Act that the circumstances in which the Court will be prepared to exercise the jurisdiction conferred by that section will be rare. The primary procedure provided under the Act for discipline within the profession is that set out in ss 101 to 119 of Part VII of the Act, which we henceforth will call the profession’s disciplinary procedure.

...

The jurisdiction of the Courts and the profession’s disciplinary procedure cohabit Part VII of the Act without any explicit indication as to when resort should be had to one rather than the other. But the scheme of the Act is clear enough. Responsibility for investigating complaints and prosecuting practitioners is imposed on District Councils (or District complaints committees) and responsibility to determine any resulting charges is vested in the District Disciplinary Tribunals and the New Zealand Law Practitioners Disciplinary Tribunal. Parliament plainly contemplated that this procedure would be the primary procedure for dealing with professional misconduct or negligence or incompetence within the profession. Moreover, the District Disciplinary Tribunals and New Zealand Law Practitioners Disciplinary Tribunal are specialist Tribunals. Apart from the lay members appointed by the Governor General on the recommendation of the Minister of Justice, they are mainly comprised of members of the profession. In the course of carrying out their function the Tribunals necessarily acquire considerable experience and expertise in dealing with disciplinary matters within the profession. They are able to apply appropriate standards, establish suitable criteria, and obtain consistency in their decisions.

(emphasis added)

[57] The Court went on to hold that given the remedy of the Court is striking off or suspension, the procedure is more suitable for cases of considerable gravity and is

_{also available for the “rare or unusual cases when, for one reason or another, the}

⁸⁴ See initial interim decision of the Court of Appeal in B v Canterbury District Law Society

_{CA79/97, 1 May 1997 at 5–6.}

⁸⁵ B v Canterbury District Law Society, above n 83, at 199–200.

profession’s disciplinary procedure is inappropriate or unsuitable”. ⁸⁶ It concluded its general discussion by stating:⁸⁷

Consequently, when the Act is read and considered as a whole, it is clear that it contemplates that disciplinary proceedings will ordinarily be taken pursuant to the profession’s disciplinary procedure. It will be necessary to resort to ss 92 and 93, or to s 94, only in rare or exceptional circumstances.

(emphasis added)

Given that s 267 is the successor section to s 93, and s 268 is the successor section to s 94, these observations are relevant to this application.

[58] The Court then examined the facts of the case and concluded that they were neither rare nor exceptional. It considered that the usual disciplinary procedure would have been adequate and that there was no urgency or other sound reason why the Council could not have proceeded under the profession’s disciplinary procedure. The Court concluded that the High Court Judge “should have declined to exercise

the Court’s summary jurisdiction”.⁸⁸ The appeal was allowed and the High Court

order quashed.

[59] A full court of the High Court of three Judges considered s 94 of the Law Practitioners Act in Auckland District Law Society v Neutze.⁸⁹ This was an application by the Auckland District Law Society to the High Court to suspend Mr Neutze from practice because of incompetence and bad behaviour in various court cases over the preceding year. His conduct had led to a multi-accused drug trial being aborted.⁹⁰ The Court noted that the jurisdiction was to only be exercised in rare and exceptional circumstances.⁹¹ Because the proceedings had been triggered by complaints to the judiciary and involved the conduct of litigation by a practitioner

it was considered that the case was clearly distinguishable from B v Canterbury

_{District Law Society. Mr Neutze’s conduct was impacting on the integrity of the}

⁸⁶ _{At 201}

⁸⁷ _{At 201.}

⁸⁸ _{At 201.}

⁸⁹ _{Auckland District Law Society v Neutze [2006] NZHC 1671; [2006] 2 NZLR 551 (HC).}

⁹⁰ _{At [11].}

⁹¹ At [35].

legal system and court processes, and also upon jurors, accuseds, witnesses, counsel and Judges, as well as the public at large.⁹² The issue was clearly urgent.

[60] There have been a number of other High Court and Court of Appeal cases where the jurisdiction of the Court has not been at issue, and where suspension or striking off orders have been made. In Auckland District Law Society v Leary, the only case involving significant hearing time, the Court of Appeal struck off a practitioner having determined that a serious drug dealing charge, and attempts to deceive the Inland Revenue Department and a Royal Commissioner, were

established.⁹³ The case was first heard in the High Court and was reserved for

consideration in the Court of Appeal where the orders were made. There appears to have been no contest concerning the Court’s jurisdiction and whether it was the correct forum. In Waikato Bay of Plenty District Law Society v Osmond on an urgent application Hammond J made an order of interim suspension, following a

defalcation.⁹⁴

[61] More recently under the LCA in New Zealand Law Society v Mitchell there was a hearing in the High Court and the Court reserved the question as to whether there was reasonable cause to strike a lawyer off the roll for the consideration of the Court of Appeal.⁹⁵ The misconduct involved Mr Mitchell failing to disclose his history of serious criminal offending when seeking a practising certificate. The Court of Appeal made an order striking off Mr Mitchell.⁹⁶ The s 267 process was invoked with the consent of both sides because of complications in the LCA’s transitional provisions.⁹⁷

[62] It is to be noted that Parliament re-enacted ss 267 and 268 in 2006 without substantive change. It can be assumed that this was done with knowledge of the case

⁹² _{At [121].}

⁹³ _{Auckland District Law Society v Leary CA200/86, 15 April 1987.}

⁹⁴ Waikato Bay of Plenty District Law Society v Osmond HC Hamilton CP55/94, 26 September

_1994.

⁹⁵ _{New Zealand Law Society v M HC Wellington CIV-2009-485-1944, 4 May 2010.}

⁹⁶ _{New Zealand Law Society v Mitchell [2010] NZCA 498, [2011] NZAR 81.}

⁹⁷ New Zealand Law Society v Mitchell, above n 96, at [12].

law in which these sections have been interpreted by the Courts,⁹⁸ and that it was not seen as necessary to change the law.

Approach to this application

[63] I must first consider the nature of this Court’s power (if any) to refuse to determine an application under ss 267 and 268 of this type to strike off or suspend a practitioner. The LCA in ss 267 and 268 makes no provision for the determination of the parallel jurisdiction issue before considering the merits, of whether it is appropriate for the complaints to be determined in the High Court or through the disciplinary process. Section 267(1)(a) provides that the High Court may if it thinks fit dismiss the application, but no basis for the exercise of the power to dismiss is stated. This is unsurprising given that s 267 was drafted long before there was a parallel Disciplinary Tribunal jurisdiction. Section 268 simply provides that the High Court may, in the exercise of its summary jurisdiction, suspend on reasonable cause being shown.

[64] Borick v Otago District Law Society was a case brought under the equivalent of s 267 of the LCA. The Court of Appeal stated that the Court could “...leave the matter for the normal procedure”.⁹⁹ It was envisaged, therefore, that the High Court could determine not to hear an application to strike a practitioner off the roll.

[65] B v Canterbury District Law Society was an interim suspension case brought under the Court’s inherent jurisdiction referred to in s 268.¹⁰⁰ The Court of Appeal referred to the equivalent of ss 267 and 268 and considered this jurisdiction was only intended to be exercised for “rare or exceptional circumstances”.¹⁰¹ The Court stated that the High Court judge should have “declined to exercise” the summary jurisdiction to suspend, but the tenor of the Court’s remarks was to the effect that a Court could also decline to exercise the jurisdiction if a case was brought under the equivalent of s 267 that was not one of those rare and exceptional cases justifying the

_{exercise of this jurisdiction.}

⁹⁸ See Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 (HL) at 411 and

_{McAuley Catholic High School v CC [2003] EWHC 3045 (Admin), [2004] 2 All ER 436 at [45].}

⁹⁹ _{Borick v Otago District Law Society, above n 81, at 171.}

¹⁰⁰ B v Canterbury District Law Society, above n 83.

[66] It is to be expected that the High Court would have the ability to dismiss proceedings which should be heard in a Disciplinary Tribunal. It seems unlikely that the legislature would have intended it to be left it to the applicant to dictate which jurisdiction would be invoked. It could be expected that in an instance like this of two parallel jurisdictions involving very different procedures, the High Court could choose which was appropriate. The Court of Appeal in both Borick v Otago District Law Society and B v Canterbury District Law Society assumed the High Court exercised a gatekeeping function where the Court can decline to exercise the jurisdiction under ss 267 and 268 and instead dismiss the application, leaving it to the Disciplinary Tribunal to determine the complaints.

[67] I conclude that the High Court when considering an application under ss 266 (involving the s 267 process) and 268 should when objection is made decide whether the ss 267 or 268 jurisdiction is appropriate or whether the complaints are better dealt with in the Disciplinary Tribunal. However, I must bear in mind that this is a summary judgment application. I must be certain that at a full hearing the Judge would dismiss the application on the parallel jurisdiction ground, and without hearing the merits. I must bear in mind that I have no detailed evidence before me.

[68] There are guidelines referred to in the extracts quoted above in Borick v Otago District Law Society and B v Canterbury District Law Society as to the approach to be adopted in determining this issue. It must be decided whether this is one of those exceptional cases where the specialist procedure designed to deal with complaints against barristers and solicitors is not to be adopted, and the High Court/Court of Appeal procedure adopted. The following factors arise from these two authorities:

(a) Parliament 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 have the necessary experience and expertise.¹⁰²

(b) It is not appropriate to use the High Court/Court of Appeal jurisdiction under s 267 to strike off and the High Court’s jurisdiction under s 268 to suspend where there are disputed matters of fact or issues calling for extensive inquiry (although this is not invariably so).¹⁰³

(c) The High Court/Court of Appeal’s jurisdiction under s 267 and the High Court’s jurisdiction under s 268 are available for rare and exceptional cases where for one reason or another the profession’s disciplinary procedure is inappropriate or unsuitable.¹⁰⁴

Exercise of the discretion in this case

Do these issues call for extensive inquiry?

[69] If there are disputed matters of fact or issues calling for extensive inquiry the Disciplinary Tribunal is the process that should be followed, although not invariably _so.105

[70] The allegations in the statement of claim are not factually complex. They refer to Mr Deliu’s actions in various cases and in various dealings he has had with other practitioners, and with persons involved in the complaints procedures.

[71] Mr Deliu has made it clear that he will strongly contest any attempt on the part of the NZLS to prove his actions through the production of judgments which refer to his actions. He argues that the NZLS will have to prove the case against him by calling direct evidence of what he has said or done. He points to the conclusion reached by Hardie Boys J in Auckland District Law Society v Leary that judgments relied on by the NZLS were no more than expressions of opinion and were

inadmissible for the purpose of proving facts in the proceeding.¹⁰⁶ He contests the

allegations that he regularly alleges fraud, bad faith, corruption, misconduct, bias and seeks recusal of judicial officers, or otherwise makes scandalous accusations against

_{Judges and other professionals. He denies that he regularly makes unnecessary or}

¹⁰³ _{Borick v Otago District Law Society, above n 81, at 171.}

¹⁰⁴ _{B v Canterbury District Law Society, above n 83, at 201.}

¹⁰⁵ _{Borick v Otago District Law Society, above n 81, at 171.}

¹⁰⁶ Auckland District Law Society v Leary HC Auckland M1471/84, 12 November 1985.

misconceived applications. He denies that he regularly engages in intemperate or unprofessional communications with other professionals.

[72] It is clear that he will strongly contest some of the criticisms that Judges have made of him. He will say that those criticisms were not fair and the determination of those issues will involve an examination of the context in which they occurred. He denies making some of the criticisms he is alleged to have made of Judges, members of the profession and the NZLS.

[73] Ms Gordon estimates that a hearing in the High Court would take at least a week. Mr Deliu estimates it would take at least a month. He states that in relation to a number of issues he will wish to call clients. I note that in the Auckland District Law Society v Leary case the hearing took three days in the High Court and three days in the Court of Appeal where the Court of Appeal considered the evidence de novo. Cooke P stated:¹⁰⁷

The parties and the public are entitled under the procedure laid down in the Act to a fresh examination of the whole case by the Court of Appeal. The findings of the Judge are helpful as representing the result of an initial review of the evidence by a judicial officer of the seniority of a High Court Judge. Under this particular procedure they are in no way binding, nor do they even give rise to any presumption.

[74] The hearing in the High Court will involve the High Court Judge considering the evidence (which may be by affidavit), if necessary cross-examination, and then considering submissions. If the case is referred to the Court of Appeal under s 267 there will be another hearing where the evidence adduced in the High Court and issues will be considered afresh. It is difficult to predict whether before the Court of Appeal it will be necessary to have any evidence tested further. This did not occur in Auckland District Law Society v Leary or other cases where the decisions were made without further evidence.

[75] What will be admissible or inadmissible evidence in the High Court in relation to either the ss 267 or 268 determinations cannot be ruled on at this stage. It would be hoped that court records insofar as they disclose what happened in court

_{will be admitted without the need to call primary evidence when facts are}

¹⁰⁷ Auckland District Law Society v Leary, above n 93, at 7.

uncontested. However, it can be seen that the evaluation of the seriousness of criticism of a judicial officer, practitioner, or person involved in the complaints office, may in some cases involve proving what was said, if it is in issue, and establishing a clear understanding of the context in which that criticism arose.

[76] While the shape of the proceedings is unable to be predicted with certainty, I have reached the view that this is a case which will involve extensive inquiry of some facts and issues. There is a wide range of allegations. It will take a number of weeks to hear in the High Court and at least a week in the Court of Appeal. There has been no case to which I have been referred, save for Auckland District Law Society v Leary (which proceeded before the Courts by consent and related to a serious crime and a limited number of clear and defined issues), where allegations of factual complexity have been traversed by the High Court or Court of Appeal under s 267 or its predecessor.

Advantages/disadvantages of a specialised process

[77] It was a key submission of Ms Gordon’s that the Disciplinary Tribunal procedure is “unsuitable”. She submits that Mr Deliu has been highly combative in all aspects of the earlier complaints as they have been going through the Disciplinary Tribunal procedure. Some of these earlier complaints relate to the same judicial officers and the same cases as the present proceeding.

[78] It is clear that Mr Deliu has strongly resisted the inquiry process at all stages. There have been multiple challenges brought by Mr Deliu in relation to charges laid using the Disciplinary Tribunal procedure. Following the laying of charges by the Standards Committee there have been judicial review proceedings challenging the decision to refer charges, reviews to the Legal Complaints Review Officer in respect of the determinations, judicial review of the Legal Complaints Review Officer’s decisions, proceedings in the Human Rights Tribunal and proceedings seeking damages. Numerous interlocutory proceedings have been commenced. Once the referred charges were before the Disciplinary Tribunal, Mr Deliu commenced judicial review proceedings against the tribunal including challenges to timetable

orders. Those complaints that are going through the Disciplinary Tribunal procedure have not yet been heard, and there was no indication that they are about to be heard.

[79] There is no doubt that Mr Deliu has shown resistance to most aspects of the disciplinary process. That is quite out of the ordinary. The flavour of his opposition is captured by a statement in his submissions where he is referring to himself:

As no lawyer in the history of this country has ever dared challenge those in power as he has, much less succeeded to the extent he has, that makes him the biggest clear and present danger to the status quo this legal system has ever known.

[80] There is undoubtedly a great level of frustration in the NZLS and a perception that very firm and unusual steps are required to get the complaints to a hearing. However, it should also be noted that Mr Deliu’s position is not entirely confrontational. He acknowledges in his submissions that he has deposed that he regrets some of the things that he has said in the pleadings, but asks that they be viewed in context. Unfortunately these regrets have not to my knowledge been detailed. He refers to the possibility of an apology, although none has been offered at this point.

[81] New Zealand tribunals and courts now frequently face highly combative self- represented litigants that take every point, and are 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 Mr Deliu. Challenges to Standards Committees, Legal Complaints Review Officers or Disciplinary Tribunal decisions by way of judicial review do not operate as a stay. It is open to a tribunal to fix timetables and proceed to a hearing without awaiting the resolution of challenges, unless a stay of proceedings is ordered. The fact that Mr Deliu has made strong and personal criticisms of persons involved in the disciplinary process should not be a deterrent to the proceedings continuing, if the allegations are not accepted.

[82] Ms Gordon also referred to the fact that some of the complaints are from Judges and involve conduct in Court, and remarks about Judges or the Court process. This is a factor that supports the use of the ss 267 and 278 processes. But in relation

to these complaints it is of limited force. The complaints relate to things said to or about Judges and courts, not to pressing concerns about the daily conduct of hearings as in Auckland District Law Society v Neutze.¹⁰⁸ The remarks about Judges are only an aspect of the complaints, which also cover a great deal of out of court conduct not directly concerning the Court processes.

[83] I am mindful that the allegations will involve the examination of actions by senior Judges. I recognise that a Disciplinary Tribunal might find this an added burden. I refer later to the makeup of the Disciplinary Tribunal and the fact that there are lay members involved in all aspects of the NZLS disciplinary process. The lawyers involved are senior and experienced. The chairperson is often a Judge. The lay persons can bring their particular perspective. It is not uncommon for complaints to involve conduct in Court, and the actions of Judges. Indeed this occurred in New

Zealand Law Society v Orlov.¹⁰⁹ Other Commonwealth jurisdictions, where the

superior Courts do not have any practical involvement in the disciplinary process, are not deterred by the fact that tribunals consider all complaints, including those involving Judges. In the end I do not regard the fact that the complaints will involve some consideration of the actions of Judges as making the case more suitable for hearing in the High Court/Court of Appeal.

Duplicity of charges

[84] It is common ground that Mr Deliu has faced for some years complaints that arise out of the same cases or events that give rise to the complaints in these proceedings. Ms Gordon has assured the Court that there is no exact replication in the sense that the same statements or actions are the subject of proceedings both in this Court and before the Disciplinary Tribunal. It seems clear, however, that in a number of cases the allegations in the High Court involve different aspects of cases and events that are the subject of scrutiny in the Disciplinary Tribunal, and it is clear that the same type of allegations, for instance intemperate statements about Judges,

_{arise in both existing Disciplinary Tribunal proceedings and these proceedings.}

¹⁰⁸ _{Auckland District Law Society v Neutze, above n 89.}

¹⁰⁹ New Zealand Law Society v Orlov [2013] NZCA 230, [2013] 3 NZLR 562 at [75]–[79] and

[111]–[125].

Mr Deliu argues that this is duplicity, and is a reason why the ss 267 and 268 processes should not be adopted.

[85] While it has not been shown that there is in any strict sense duplicity, I consider it less than desirable that aspects of Mr Deliu’s actions in a single case or context be evaluated by two different bodies that will have to determine those issues. There will be wastage of time, in that the background will have to be traversed in two different forums. There is the risk of inconsistent factual findings. Further, should the complaints be established, it is undesirable for different forums to have the task of deciding on appropriate penalties relating to overlapping actions that are best considered as a whole.

[86] Thus, this degree of overlap between the charges laid in the Disciplinary Tribunal and the complaints that are the subject of the proceeding in this Court, is a reason why all matters should be heard in the Disciplinary Tribunal.

Urgency

[87] Part 7 of the LCA provides that the framework was intended to ensure that complaints be “processed and resolved expeditiously”,¹¹⁰ and that disciplinary charges be “heard and determined expeditiously”.¹¹¹ There is undoubtedly a strong public interest in professional disciplinary matters being dealt with quickly.¹¹² This is a factor that may work in favour of the matter being heard in this Court and the

Court of Appeal, if that hearing process may be quicker. Here there is nothing to show that the determination of the allegations is a matter of particular urgency.

[88] The more complex and staged Disciplinary Tribunal procedures may provide more of an opportunity for a combative practitioner to make challenges with the possibility of delays. However, the management of difficult cases with self- represented litigants is now a feature of the work of tribunals, and the staged process

_{with its various safeguards has been purposefully created.}

¹¹⁰ _{Lawyers and Conveyancers Act,  s 120(2)(b).} 

¹¹¹  _{Section 120(3).} 

¹¹² New Zealand Law Society v Orlov, above n 109.

[89] The procedure that the NZLS is seeking to pursue involves two stages of a substantive hearing, both in the High Court and the Court of Appeal. Given the length of hearing involved, the process may well take just as long as the hearing of matters before the Disciplinary Tribunal, if not longer.

[90] Therefore, I do not regard these proceedings as having any unusual urgency, or that the need for expedition warrants a departure from the Disciplinary Tribunal procedure.

The range of penalties

[91] The High Court/Court of Appeal procedures under ss 267 and 268 provide for only two penalties, suspension or striking off. In contrast, the Disciplinary Tribunal procedure provides for a range of penalties including censure and financial penalties of up to $30,000 in respect of any charge.¹¹³ It is desirable that the full range of penalties be available to the determining body. Therefore, the limit on the powers of the High Court and Court of Appeal to impose penalties is a reason why the

Disciplinary Tribunal procedure should be adopted, save in rare and unusual cases.

[92] This may be less of a factor where proof of guilt will result automatically in striking off the roll, for instance, in a case involving serious criminal dishonesty in relation to clients. In Mr Deliu’s case, should any of the allegations be proven, the penalty may not be so severe. There are no allegations of dishonesty or negligence against Mr Deliu. No client has complained. The allegations are undoubtedly serious, but striking off may not be the only remedy available where a practitioner has been found guilty of abusing judicial officers or other practitioners. In a decision released since the hearing of this case, Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal, involving some similar and on occasions

overlapping allegations against Mr Deliu’s former partner, it was held:¹¹⁴

In relation to penalty, we have concluded that striking off is a disproportionate response in the circumstances of the case. We place weight on the fact that the practitioner’s offending conduct consists only of speech,

¹¹³ _{See Lawyers and Conveyancers Act 2006, ss 242(1)(a) and 156.}

114. Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987 at [209].

and is directed against a member of the judiciary. It does not involve mistreatment of clients or their money. We also place weight on this being a first “offence” for conduct of this type. Mr Orlov can now be under no illusions as to the standards rightly expected of all members of the profession, and that he will need to modify how he goes about airing his grievances.

[93] This decision was released after the hearing of these applications, and I have no submissions on the question of whether the charges against Mr Orlov are more or less serious than those against Mr Deliu. Mr Orlov was Mr Deliu’s legal partner for a period. On the face of it there is a greater range of charges against Mr Deliu. However, the possibility of only some of the charges being proven against Mr Deliu, and of the Court being of the view that striking off or suspension is not warranted, cannot be discounted.

[94] Mr Deliu has referred to a decision of the Standards Committee where there was a finding that a practitioner has been guilty of unsatisfactory conduct by bringing the administration of justice into disrepute by making unreasoned and intemperate criticisms of the judiciary, including an allegation of a “fraudulent justice system”. The practitioner was censured and ordered to pay $1,000 costs and

expenses.¹¹⁵ He has referred to another where a solicitor had accused Judges of not

being willing to criticise each other and not having “guts” and being unfair, mistaken, unnecessary, unreasonable, gratuitous and discriminatory, where the decision of the National Standards Committee was to take no further action.¹¹⁶ In another case the barrister and solicitor had accused a Judge of possibly making false statutory declarations.¹¹⁷ The National Standards Committee decided to take no further action on that complaint.

[95] It is clear therefore that the making of unacceptably strong criticisms of Judges does not necessarily give rise to striking off or even suspension. On their face, the allegations against Mr Deliu are considerably more serious than the cases mentioned. Nevertheless on the reasoning of Orlov v The New Zealand Lawyers and

_{Conveyancers Disciplinary Tribunal a penalty of less than striking off is possible.}

¹¹⁵ _{Notice of Determination by the National Standards Committee, No 6446.}

¹¹⁶ _{Notice of Decision by the National Standards Committee, No 6804.}

¹¹⁷ Notice of Decision by the National Standards Committee, No 6744.

Indeed a penalty of less than suspension is possible, if only some of the charges are proven.

[96] It is therefore a serious disadvantage of the High Court and Court of Appeal process that suspension and striking off are the only penalties available. The result could be that while it might be in the public interest that some penalty be imposed on Mr Deliu, in fact no penalty is imposed because the penalties available of suspension or striking off the roll are too draconian. This inflexibility of penalty is a significant reason why these charges should not proceed in this Court, but rather through the Disciplinary Tribunal procedure where the full range of penalties is available.

Do the High Court and Court of Appeal have a particular suitability?

[97] The primary procedure provided for under the LCA for discipline is a comprehensive staged process involving specialist tribunals, lay members and members of the profession. As was observed in B v Canterbury District Law Society, in the course of carrying out their functions members of the Disciplinary Tribunal necessarily acquire considerable experience and expertise in dealing with disciplinary matters within the profession. They are able to apply “appropriate

standards, establish suitable criteria and obtain consistency in their decisions”.¹¹⁸

[98] In serious contested cases such as this there are two discrete stages that can arise prior to the substantive hearing, namely an inquiry by a Standards Committee as to the initial complaints, and a review by the Legal Complaints Review Officer. Neither of those two preliminary stages are available if the ss 267 and 268 procedures are adopted.

[99] It is a purpose of the LCA to maintain public confidence in the provision of legal services,¹¹⁹ and to provide for a more responsive regulatory regime in relation to lawyers.¹²⁰ It must be assumed the detailed processes set out in the LCA are designed to achieve these two objects. The procedures are there both for the benefit

_{of the public, in ensuring that complaints are properly investigated, and also to}

¹¹⁸ _{B v Canterbury District Law Society, above n 83, at 200.}

¹¹⁹ _{Lawyers and Conveyancers Act, s 3(1)(a).}

¹²⁰ Section 3(2)(b).

provide a fair procedure for the lawyer who is the subject of the investigation. Such considered procedures are not to be lightly departed from.

[100] The presence of lay members on Standards Committees, the fact that the Legal Complaints Review Officer is a lay person, and the significant involvement of lay persons in the Disciplinary Tribunal indicate that the legislature considers that the purposes of the LCA are better met by having lay persons involved in the processes. There is also the advantage of the particular expertise in disciplinary matters that will be acquired by the persons involved in these processes.

[101] It is also significant that there are much better rights of appeal available to the parties under the Disciplinary Tribunal procedure. Under the Disciplinary Tribunal procedure there is a right of appeal by way of re-hearing to the High Court from a Disciplinary Tribunal decision.¹²¹ There is then a right of appeal to the Court of Appeal on a question of law.¹²² There are therefore potentially two rights of appeal, one of which is a full right of appeal.

[102] In contrast, under the procedure adopted by the NZLS in these proceedings, the substantive determination whether to strike off Mr Deliu under s 267 would be by the Court of Appeal. From that determination the parties would only have one right of appeal to the Supreme Court by leave. There is no general right of appeal by way of re-hearing. Given that these appeal structures have been devised by Parliament as suitable for Disciplinary Tribunal procedures, the more limited appeal right for the High Court and Court of Appeal processes is another reason why it is only in exceptional cases that they should be adopted.

[103] Under the s 267 procedure the High Court will hear all the facts and submissions and make a determination first. The Court of Appeal, which if the NZLS succeeds in the High Court will have to consider the issues of fact afresh and determine them, is not a first instance court. As I have observed, it is now a fulltime specialist appeal Court, which it was not when the predecessor to s 267 was first

_{enacted. The Court of Appeal hearing would involve three Court of Appeal Judges}

¹²¹ _{Section 253.}

¹²² Section 254.

sitting for a significant period of time, possibly weeks, considering a large number of factual issues, albeit with the assistance of preliminary findings by a High Court Judge. This would be a significant departure for the Court of Appeal’s usual appellate role, and would be disruptive of its schedule. In my view the High Court/Court of Appeal process under s 267 is unsuitable for the hearing of such factual issues. Moreover, the duplication involved in hearing the issues in the High Court and then hearing them again in the Court of Appeal, and the delay between hearings, is a matter of concern. There could be a hearing of at least four weeks in the High Court and then, some time later, a lengthy hearing of some weeks in the Court of Appeal.

Is the profession’s disciplinary procedure inappropriate or unsuitable?

[104] In Auckland District Law Society v Neutze a practitioner’s conduct in recent trials, and likely problems in future trials, were very much the issue and the situation was seen as urgent. I do not think that situation can be compared with the situation applying to Mr Deliu. The complaints against him relate to conduct between

2008-2012. It was not suggested to me that there were any ongoing issues arising from his appearances in Court. Mr Deliu has put forward a good deal of information indicating that he is appearing regularly in courts without any difficulties arising. This case is very different from Auckland District Law Society v Neutze where the High Court was concerned with the immediate bad conduct in future trials and the possibility of mistrials. There are no particular features demanding that this matter be heard promptly in this Court.

Overview

[105] The suspension and striking off cases that have been heard in the High Court have one of the following features:

_{(a) They have been heard by the High Court without objection.}¹²³

¹²³ See Borick v Otago District Law Society, above n 81; New Zealand Law Society v Mitchell, above n 96; Auckland District Law Society v Neutze, above n 89; and Waikato Bay of Plenty District Law Society v Osmond, above n 94.

(b) The application was brought by the practitioner who might be struck off;¹²⁴

(c) The application related to trials that were actually proceeding in the Court or had just been completed, and where there was ongoing concern about further pending appearances;¹²⁵

(d) There was a particular urgency;¹²⁶ or

(e) The charges were of the utmost gravity involving a barrister who appeared regularly in Courts to the highest level being involved in a serious crime, and misleading conduct when dealing with public bodies.¹²⁷

[106] None of these factors apply to this case. There is an objection. The matters in question do not involve criminal misconduct or misconduct in ongoing appearances. There is no urgent issue that demands intervention.

Conclusion in relation to summary judgment

[107] I am conscious that to determine this issue now will pre-empt a decision which would otherwise be made at trial, probably with the benefit of affidavits or briefs presenting the actual evidence. Given that the decision involves an assessment of matters of fact, my approach must be cautious. However, if I am sure that the Judge would dismiss the application, I should enter summary judgment.

[108] I consider it would be contrary to the fair administration of justice to allow this case to proceed. I have reached the conclusion that this proceeding is not one of those rare and exceptional cases where the adoption of the s 267 procedure seeking orders to strike a barrister and solicitor off the roll should be invoked or the s 268

_{procedure seeking suspension should be adopted. The primary reason put forward to}

¹²⁴ _{See Borick v Otago District Law Society, above n 81.}

¹²⁵ _{See Auckland District Law Society v Neutze, above n 89.}

¹²⁶ See Auckland District Law Society v Neutze, above n 89; Waikato Bay of Plenty District Law

_{Society v Osmond, above n 934.}

¹²⁷ See Auckland District Law Society v Leary, above n 93

justify the adoption of the procedure, that Mr Deliu’s many applications and actions challenging the Disciplinary Tribunal procedure make the case unsuitable for the Disciplinary Tribunal procedure, does not constitute a rare or exceptional circumstance.

[109] The Disciplinary Tribunal should be able to deal with such a litigant through its usual processes. The High Court/Court of Appeal procedure under s 267 is not necessarily quicker (being a two-stage process) and has the disadvantages I have referred to. That procedure lacks the features of:

(a) Being before a specialised body set up for cases of this type.

(b) Being before a body able to consider and determine all the complaints against Mr Deliu at a single hearing.

(c) Involving a staged prosecution process. (d) Involving the participation of lay people.

(e) A hearing where all the complaints and penalties are heard together with the availability of a full range of penalties.

(f) A substantive appeal right by way of re-hearing and two further possible appeal processes.

[110] The Disciplinary Tribunal procedure has these features. I consider the case against this matter proceeding in the High Court to be overwhelming. In my view it is certain that at a substantive hearing a Judge will conclude that the proceeding is not one of those rare and exceptional cases that should be proceeding in the High Court and Court of Appeal and would dismiss the application. The material filed is sufficient for the making of this decision, and unlikely to be significantly different at a hearing. I am satisfied that the causes of action in the plaintiff’s statement of claim cannot succeed.

[111] I emphasise that I have not considered the claims on their merits, and do not determine substantive issues which should be heard in the Disciplinary Tribunal.

Strike out

[112] Mr Deliu couched his argument also on the basis of a strike out application.

[113] In terms of r 15.1(a) of the High Court Rules the causes of action are reasonably arguable, and there is jurisdiction. However, there are parallel jurisdictions, and I have reached the conclusion that the wrong jurisdiction has been invoked by the NZLS.

[114] The proceeding cannot be described as frivolous or vexatious. There is a genuine attempt to resolve issues in the High Court, and if there is a reference in the Court of Appeal, and there is technically jurisdiction to do so. Nevertheless, it is the wrong procedure in the circumstances, which if allowed to continue is likely to cause delay and give rise to serious practical problems. In this sense it may be an abuse of process.

[115] However, it is not necessary for me to reach a final conclusion on this point given my decision to allow summary judgment, and I do not do so.

Preliminary question

[116] Given my decision to grant summary judgment it is not necessary to determine whether there should be a hearing of a preliminary question of whether the conduct alleged could amount to grounds for striking off or suspension. I observe that the issue whether the conduct could be grounds for striking off or suspension is fact specific, and not suited to such a procedure.

Conclusion

[117] There are two parallel jurisdictions available to determine the complaints against Mr Deliu. These are the disciplinary processes set out in Part 7 of the LCA involving the Disciplinary Tribunal jurisdiction, and proceedings under ss 267 and

268 involving the High Court’s and the Court of Appeal’s jurisdiction. The latter

jurisdiction is invoked by the NZLS in this claim.

[118] Given the existence of the Courts’ jurisdiction and its specific recognition as a parallel jurisdiction in the LCA, the objection to jurisdiction under r 5.49 is set aside.

[119] At a hearing in the High Court, the Court must consider whether to exercise its jurisdiction, or whether the complaints are best heard in the parallel jurisdiction of the New Zealand Law Society. If the Court takes the view that the complaints are best heard using the disciplinary procedure set out in Part 7 of the LCA then the Court will at that point dismiss the application.

[120] A Court may in a summary judgment hearing dismiss a claim if it considers it certain that in the substantive hearing a Judge will dismiss the proceedings on the basis that the parallel jurisdiction of the Disciplinary Tribunal is the appropriate jurisdiction.

[121] I am satisfied that at a substantive hearing a Judge would dismiss this claim on the basis that the complaints should proceed before the Disciplinary Tribunal. My reasons are:

(a) Only rare and exceptional cases should be heard using the High Court procedures.

(b) This is not a case that is unsuited to being heard using the New Zealand Law Society processes. In fact it is a case that is well suited to being heard in that forum.

(c) The hearing of the proceeding will involve an extensive inquiry into the issues, and in relation to the application to strike off Mr Deliu, if it is to proceed will involve the Court of Appeal making the substantive decision. It will involve a lengthy hearing in that Court. That procedure is not well suited to this case.

(d) The proceedings are unlikely to be heard more quickly in the High

Court or Court of Appeal and are in any event not particularly urgent.

(e) The proceedings involve complaints that overlap or have similarities to complaints already before the New Zealand Law Society. It is undesirable that parallel proceedings involving such similar and overlapping allegations take place and it is better to have them all heard in one forum.

(f) Striking off and suspension are the only penalties available in the ss 267 and 268 processes, and there is a greater range of penalties in the Disciplinary Tribunal procedure.

[122] For these reasons there can be no doubt that the NZLS disciplinary procedure is better suited to the hearing of this case than that of the High Court and Court of Appeal. This is not one of those rare or exceptional cases that should be heard in the High Court, and the claim in this Court is dismissed. These complaints should proceed using the New Zealand Law Society disciplinary processes.

Result

[123] The protest to jurisdiction is set aside.

[124] Summary judgment is entered for Mr Deliu against the NZLS. The NZLS

claim is dismissed.

Costs

[125] Costs are reserved. Mr Deliu should file submissions within 14 days, and the NZLS within a further 14 days. The submissions should not exceed five pages in length and not contain extensive quotes.

...................................

Asher J