Deliu v Ponniah [2014] NZHC 1906 (13 August 2014)

Last Updated: 22 August 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-00249 [2014] NZHC 1906

BETWEEN	FRANCISC CATALIN DELIU Plaintiff
AND	LAWRENCE PONNIAH First Defendant
AND	NEW ZEALAND LAW SOCIETY Second Defendant

On the papers
Counsel:	Plaintiff in person M J Hodge for Second Defendant
Judgment:	13 August 2014

_{JUDGMENT OF KEANE J}

This judgment was delivered by me on 13 August 2014 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

DELIU v PONNIAH [2014] NZHC 1906 [13 August 2014]

[1] On 4 December 2012 Kuang Da Liu, who was then engaged in case before the Weathertight Homes Tribunal, authorised Francisc Deliu, a barrister, to act on her behalf. She was then represented before the Tribunal by Laurence Ponniah, a barrister and solicitor.

[2] On 6 December a member of Mr Deliu’s chambers telephoned Mr Ponniah’s firm, Corban Revell, seeking Ms Liu’s file. On 7 December 2012 Mr Deliu complained to the NZLS Lawyers Complaints Service that Mr Ponniah had not transferred the file in a timely manner. On 10 December 2012 Mr Ponniah complained that Mr Deliu had made that complaint unprofessionally on the day on which Corban Revell received the file request.

[3] On 3 May 2013 a National Standards Committee resolved to take no further

action on Mr Deliu’s complaint. It inquired into Mr Ponniah’s complaint. On 10

December 2013 it held that Mr Deliu’s conduct was unsatisfactory; his conduct would be regarded by lawyers of good standing as unacceptable, either because it was unbecoming or unprofessional. The Committee censured him and ordered him to pay $750 costs. It held that there was no need in the public interest to publicise that decision.

[4] On 29 January 2014 Mr Deliu applied to the Legal Complaints Review Officer for a merit review of the Committee’s decision. On 11 February 2014 he also applied to this Court for judicial review. He sought also a declaration and direction that the NZLS need take no further action on the complaint. His judicial review application is set down for hearing on 25 September 2014.

[5] The NZLS applies for a stay of the judicial review proceeding until the LCRO merit review is complete on the grounds that (i) this review will resolve Mr Deliu’s challenge to the Committee’s decision on its merit; and (ii) it is more effective and efficient for the review to precede the judicial review.

Application for stay

[6] In advancing those two grounds for an interim stay the NZLS relies on these allied reasons:

(a) The review Mr Deliu seeks is one of substance. He will receive that on a statutory merit review. He will not receive it on judicial review which is concerned with the validity of the Committee’s process.

(b) If Mr Deliu succeeds on his merit review, that will be a complete answer. If he does not succeed, he may still accept that any procedural defect in the Committee’s process or decision has been cured. Even if he does not, this Court will be better placed to complete the judicial review.

(c) If, by contrast, the judicial review proceeds first, that can only result in the present decision being set aside. A Standards Committee could decide the complaint on its merits afresh. That in turn could attract a further judicial review application.

[7] If the LCRO review retains priority, the NZLS contends, Mr Deliu will be unprejudiced. It will not enforce the costs award until the judicial review application is resolved, and the Committee’s decision has not and will not receive any publicity.

[8] Mr Deliu contends, in response, that his application for judicial review deserves priority. It is to be heard very shortly, it involves a confined issue, and will be able to be resolved promptly. By contrast, he contends, in his extensive experience of the statutory disciplinary process, the LCRO review is unlikely to be complete this year.

[9] Mr Deliu’s ultimate concern is that, while he has been, and is, subject to other disciplinary proceedings, and has a significant number of applications presently before the LCRO, the National Standards Committee decision, with which this proceeding is concerned, is ‘the one black mark’ against him. It could be treated as aggravating in those other disciplinary proceedings. He wishes to have it resolved

immediately.

[10] Mr Deliu opposes the NZLS taking an active stance in this proceeding. It is, he contends, the entity whose act or omission is the subject of this proceeding and, though s 9(4) requires that it be cited as a respondent, the convention is that it abide the decision of the Court.¹ Mr Ponniah, who has filed a statement of defence, is the proper contradictor.

Ability to stay

[11] This Court has, under r 15.1, the ability to strike out or stay a proceeding which is untenable, or is likely to cause prejudice or delay, or is frivolous or vexatious, or is otherwise an abuse of process. This rule does not affect the Court’s inherent jurisdiction to control its own process.

[12] The NZLS does not seek a stay on the ground that Mr Deliu’s judicial review application may be untenable, vexatious or frivolous. It accepts that the decision of the National Standards Committee is susceptible of judicial review. Nor is there any present issue as to the sufficiency of the pleaded grounds of review, though the NZLS contests their merit. This application rests rather on the ground that, until Mr Deliu’s application for merit review is resolved, it would be a misuse of this Court’s process to determine Mr Deliu’s application for judicial review.

[13] That grounds engages the general principle stated by the Supreme Court in Orlov v New Zealand Law Society & Ors.² In that case Standards Committees had decided not to resolve complaints against the practitioner, but rather to refer those complaints to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. The practitioner challenged those decisions by application for judicial review. This Court declined that application and the Court of Appeal declined his appeal. The Supreme Court declined to grant him leave to appeal further.

_{[14] The Supreme Court held that the Standards Committees’ procedural decisions}

¹ New Zealand Engineering Industrial Union of Workers v Court of Arbitration [1976] 2 NZLR

_{283 (CA) at 284.}

² Orlov v New Zealand Law Society & Ors [2013] NZSC 94.

could have been considered by the Disciplinary Tribunal, from which there was an appeal to the High Court by way of rehearing, and a right of further appeal to the Court of Appeal in point of law. The Court said:³

In such a case the High Court would generally consolidate any concurrent judicial review proceedings in respect to the Tribunal’s decision with an appeal brought against it. The Court would not normally permit judicial review proceedings to be heard ahead of the statutory proceedings, other than in exceptional cases. The Court of Appeal has also observed that, since the applicant’s proceedings were issued, it has become settled that there is a right of review to the Legal Complaints Review Officer of Standards Committees’ decisions made under s 152(2)(a).

[footnotes omitted]

[15] That case, I accept, does differ from this in one respect. There the disciplinary hearing had still to take place. Here there has been that hearing and a decision given. However, as the Supreme Court said, the disciplinary process itself provides for a merit review. Mr Deliu has applied for that review to be made, and

the LCRO is under a duty to complete it.⁴ It has still to be completed. In that sense,

that case and this do not radically differ.

[16] In that case, moreover, the Supreme Court invoked a line of authority holding that where there is a statutory challenge or review process, that is normally to be accorded priority over judicial review. An application for judicial review is normally be heard until after the prescribed statutory process was complete. The issue on this application for stay is, therefore, whether this case lies within the exceptional category where judicial review deserves priority.

[17] The answer to that question, I consider, is first to be found in the extent to which a merit review would answer Mr Deliu’s judicial review challenge. I begin there.

Judicial review challenge

[18] In his application for judicial review Mr Deliu contends that the decision of the National Standards Committee is invalid on grounds that traverse effectively

³ _{At [6].}

⁴ Lawyers and Conveyancers Act 2006, s 199.

everything that it did. To take the most prominent aspects of Mr Deliu’s challenge as

examples only, he contends that:

(a) Mr Ponniah’s complaint was invalid, and the Committee had no jurisdiction to consider it.

(b) The Committee should have considered whether, and decided that, Mr Ponniah’s complaint was trivial or frivolous or vexatious or not made in good faith.

(c) The Committee should have recused itself when he applied to it to do so, but declined without reasons.

(d) The Committee should have accorded him a hearing in person, but declined without reasons.

[19] In contending that the Committee’s procedural decisions were invalid, as was its ultimate decision, Mr Deliu invokes a wide range of grounds for invalidity. He contends that the Committee erred in fact and law. It denied him natural justice. It acted in breach of its statutory duty. It failed to take into account relevant considerations. It predetermined his application. It was irrational.

[20] To resolve this wide ranging series of challenges, this Court would be obliged to consider in detail the Committee’s entire process, as well as its final decision. Furthermore, in the declaration and order he seeks that the Society take further action, he invites a merit review.

Prescribed merit review

[21] No less significantly, the inquiry Mr Deliu seeks is within the scope of the merit review of the Committee’s decision that the LCRO is obliged to make as a result of his application.

[22] The LCRO may review the Committee’s procedural decisions and ultimate

decision comprehensively.⁵ The Committee is obliged to answer any question which the LCRO may have about its process and those decisions.⁶ The LCRO may obtain every related record and make any wider inquiry called for.⁷ It may receive any evidence or information relevant, whether or not admissible.⁸ It has any other powers reasonably necessary or expedient.⁹

[23] The LCRO is obliged to conduct the review with as little formality and technicality and as much expedition as is permitted by the Act, a proper consideration of the review and the rules of natural justice.¹⁰ It must do so in private and may do so on the papers if that is consented to, but always consistent with the rules of natural justice.¹¹ The LCRO may not, for instance, comment adversely without first giving Mr Deliu an opportunity to be heard.¹²

[24] The LCRO may confirm, modify or reverse the Committee’s decision and exercise any of the Committee’s powers. The LCRO is also able to direct the Committee to reconsider its decisions in whole or part.¹³ The LCRO must report the

outcome to all concerned, with reasons.¹⁴

[25] On that survey, as will be apparent, the LCRO is completely equipped to resolve fully on its merit any issue of process and substance to which Mr Deliu’s judicial review challenge gives rise. However, he contends, the LCRO does not decide applications expeditiously. The contrary is the case.

Merit review delay

[26] Mr Deliu first relies on the LCRO’s annual report for the year ended 30 June

2013. During that year 12 per cent of reviews were completed within six months, 32 per cent were completed within six – 12 months and 56 per cent were not completed

⁵ _{Section 203.}

⁶ _{Section 204(a).}

⁷ _{Section 204.}

⁸ _{Section 208.}

⁹ _{Section 202.}

¹⁰ _{Section 200.}

¹¹ _{Section 206.}

¹² _{Section 214.}

¹³ _{Section 209.}

¹⁴ Section 213.

within 12 months.

[27] Mr Deliu says in his affidavit evidence that he has, or has had, in excess of

100 cases before the LCRO. Many remain extant. He has been unable in a number to obtain a timely hearing or decision. On 16 May 2014 the LCRO advised him that his present application was ‘unlikely to be investigated before October this year’, leaving aside any hearing. He has at least five review applications in excess of a year old. Another 30 lie ahead of his application in this case.

Conclusions

[28] Mr Deliu’s application for judicial review, I accept at once, is likely to receive a more prompt hearing and decision in this Court than his merit review application to the LCRO is likely to receive under the statutory regime. However, that cannot be conclusive.

[29] The statutory regime is a comprehensive integrated series of processes designed to enable complaints against lawyers to be resolved on their merits as inexpensively and informally and promptly as due process and volumes and resources allow. Resort to this Court by way of judicial review ought, as the cases say, to be exceptional. If it were otherwise the statutory regime would be eroded, even subverted.

[30] This is not an exceptional case. It involves a relatively minor disciplinary question. Yet to resolve it by way of judicial review this Court would be drawn in to a merit review, to which Mr Deliu is already entitled under the statutory regime. If, furthermore, that merit review is in his favour, that will be an end of the matter. Even if it is not he will retain his right to judicial review.

[31] Mr Deliu contends that he presently carries the taint of the decision of the Standards Committee. But it found only that he acted unsatisfactorily. It only imposed costs, which will not be enforced until after his judicial review application is complete. The Committee’s decision will remain unpublicised. He is not under any immediate, or pressing, prejudice.

[32] I need not consider Mr Deliu’s further point that the NZLS is not entitled to defend these proceedings, and that Mr Ponniah is the proper contradictor. That issue will only arise if his application for judicial review does need to go to hearing.

[33] In the result, I grant the NZLS application for stay of this judicial review until Mr Deliu’s application for merit review before the LCRO is resolved. The NZLS is entitled to costs on this application at scale 2B, as fixed by the Registrar, and any

_{related disbursements.}

P.J. Keane J