Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 89/2023
[2024] NZSC 109

BETWEEN	SANDY ZHUJUN DAI Applicant
AND	PROFESSIONAL CONDUCT COMMITTEE OF THE NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	Applicant in person
Judgment:	6 September 2024

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment of 22 April 2024 (Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2024] NZSC 38) is dismissed.
BThe application for review of the Registrar’s decision not to accept for filing a second application for leave is dismissed.

C There is no order as to costs.

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REASONS

On 22 April 2024, this Court dismissed Ms Dai’s application for leave to appeal from a judgment of the Court of Appeal.[1] Ms Dai then sought to file a second application for leave to appeal from that judgment. The Registrar refused this application for filing. Ms Dai has now filed substantively the same application in the form of an application for recall of this Court’s decision not to grant leave. She also seeks review of the Registrar’s decision to refuse her second leave application for filing and a substitution of the respondent’s name from the Professional Conduct Committee of the New Zealand Institute of Chartered Accountants, to the New Zealand Institute of Chartered Accountants.
[1]Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2024] NZSC 38 [SC leave judgment]; and Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2023] NZCA 132 (Brown and Collins JJ) [CA judgment].
It is convenient to address first the correct procedure for Ms Dai’s substantive complaint. The Registrar was correct to refuse Ms Dai’s second leave application for filing because the judgment Ms Dai wished to appeal in that application is the same judgment she sought leave to appeal in her first leave application.[2] This Court already declined to grant leave to appeal that judgment in April.[3] The correct procedure is to apply for a recall.[4] Accordingly, Ms Dai’s application for review of the Registrar’s decision to refuse her second leave application for filing is dismissed.
[2]CA judgment, above n 1.
[3]SC leave judgment, above n 1.
[4]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [20].
We turn now to the substance of Ms Dai’s application for recall. Ms Dai largely reprises the same arguments she made in her first leave application. To that extent, we consider Ms Dai’s recall application is an attempt to relitigate the reasons provided and the conclusion reached in this Court’s judgment of 22 April 2024.[5] Ms Dai also submits that this Court was wrong to treat the Court of Appeal proceeding as abandoned, rendering her intended appeal to this Court moot.[6] However, this Court was factually correct: while the Court of Appeal has not yet struck out Ms Dai’s proceeding in that Court, her appeal was, indeed, deemed abandoned under r 43 of the Court of Appeal (Civil) Rules 2005 on 25 July 2023.[7] In any case, the issue of abandonment was not the primary reason for this Court’s decision to decline Ms Dai’s initial leave application.[8] Ms Dai has still not resolved the procedural defects in her claim.[9] Nothing further has been advanced that warrants a recall. Therefore, her application for recall is dismissed.
[5]Nuku v District Court at Auckland [2018] NZSC 39 at [2].
[6]SC leave judgment, above n 1, at [4] and [6].
[7]See Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants CA83/2023, 21 May 2024 (Minute of Mallon J) at [8] and [11].
[8]SC leave judgment, above n 1, at [5]–[6].
[9]At [5]–[6].
It follows that Ms Dai’s request to have the respondent’s name substituted is moot and must be declined.

Disposition

Ms Dai’s applications for review and recall are dismissed, as is her request to have the respondent’s name substituted.
We make no order as to costs.

CaseChat Overview and Summary

In Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants, the Supreme Court of New Zealand considered an application for recall and a request for review brought by Ms. Sandy Zhujun Dai. Ms. Dai had previously sought leave to appeal a judgment of the Court of Appeal, which had dismissed her appeal against a decision of the Professional Conduct Committee of the New Zealand Institute of Chartered Accountants. The Supreme Court had earlier declined to grant leave to appeal. Ms. Dai subsequently attempted to file a second application for leave to appeal, which the Registrar refused to accept. In response, Ms. Dai made an application for recall of the Supreme Court's decision not to grant leave to appeal and sought a review of the Registrar's refusal to accept her second leave application for filing. Additionally, she requested that the respondent's name be substituted from the Professional Conduct Committee to the New Zealand Institute of Chartered Accountants.

The court examined the procedural correctness of Ms. Dai's applications. It found that the Registrar was correct in refusing to file her second leave application since the judgment in question was the same one that the Supreme Court had already declined to grant leave to appeal. The proper procedure for Ms. Dai's substantive complaint was to apply for a recall. Consequently, the court dismissed Ms. Dai's application for review of the Registrar's decision. Regarding the recall application, the court noted that Ms. Dai essentially sought to relitigate the reasons and conclusions reached in the Supreme Court's earlier judgment. The court also addressed Ms. Dai's argument that the appeal was not moot because the Court of Appeal had not formally struck out her proceeding. However, the Court of Appeal had deemed the appeal abandoned under the relevant rules, a fact the Supreme Court correctly relied upon in declining the leave application. The court found no merit in Ms. Dai's application for recall as she had not resolved the procedural defects in her claim, and no new arguments warranted reconsideration.

The Supreme Court dismissed Ms. Dai's applications for review and recall, and her request to substitute the respondent's name. The court made no order as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established