Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants
[2023] NZHC 279
•23 February 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-392
[2023] NZHC 279
UNDER the Judicature Procedure Act 2016 IN THE MATTER OF
decisions made under the New Zealand Institute of Chartered Accountants Act 1996
BETWEEN
SANDY ZHUJUN DAI
Applicant
AND
THE PROFESSIONAL CONDUCT COMMITTEE OF THE NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS
First Respondent
XIAOYAN SONG
Second RespondentNZ NATURALS LIMITED
Third Respondent
On the papers: Appearances:
Applicant in person
R B Moon for First Respondent
Judgment:
23 February 2023
JUDGMENT OF CHURCHMAN J
[APPLICATION TO RESCIND JUDGMENT]
DAI v THE PROFESSIONAL CONDUCT COMMITTEE OF THE NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS (APPLICATION TO RESCIND JUDGMENT) [2023] NZHC 279
[23 February 2023]
Introduction
[1] On 10 January 2023, I struck out Ms Dai’s statement of claim in these proceedings as an abuse of process.1 In doing so, I considered that Ms Dai’s ongoing pattern of behaviour was inappropriate and improper, and that the allegations she made were baseless.2
[2] Ms Dai now applies to rescind my judgment of 10 January 2023, pursuant to r 7.49 of the High Court Rules 2016, or in the alternative, to transfer her application to the Court of Appeal pursuant to r 7.49(6)(b). Ms Dai’s application is opposed by the Professional Conduct Committee (the PCC) of the New Zealand Institute of Chartered Accountants (the NZICA), which says that the application is in substance an appeal, and that the application is misconceived.
[3] For the reasons below, I am of the view that Ms Dai’s application is misconceived and should be dismissed.
The legal position
[4]Rule 7.49 provides:
7.49 Order may be varied or rescinded if shown to be wrong
(1)A party affected by an interlocutory order (whether made on a Judge’s own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.
(2)A party may not apply under subclause (1) if the order or decision was made or given—
(a)with the consent of the parties; or
(b)on an interlocutory application for summary judgment under rule 12.4.
1 Dai v Professional Conduct Committee of the New Zealand Institute of Charted Accountants
[2023] NZHC 4.
2 At [31].
(3)Notice of an application under subclause (1) must be filed and served,—
(a)if it is made by a party who was present or represented when the order was made or the decision given, within 5 working days after the order was made or the decision was given:
(b)if it is made by a party who was not present and not represented, within 5 working days after receipt by the party of notice of the making of the order or the giving of the decision, and of its terms.
(4)The application does not operate as a stay unless a Judge so orders.
(5)Unless a Judge otherwise directs, the application must be heard by the Judge who made the order or gave the decision.
(6)The Judge may,—
(a)if satisfied that the order or decision is wrong, vary or rescind the order or decision; or
(b)on the Judge’s own initiative or on the application of a party, transfer the application to the Court of Appeal.
[5] Rule 7.49 essentially provides an alternative to a direct appeal from an interlocutory order, which looks at the circumstances in which an interlocutory order was made, rather than necessarily the merits of the decision. It allows such matters to be dealt with expeditiously. Transfer to the Court of Appeal is only appropriate where an issue of public importance is raised.3
[6]Generally, r 7.49 will only be engaged in the following circumstances:4
(a)when there was not full argument at the initial hearing;
(b)if some relevant point of evidence was overlooked;
(c)there has been a material change in circumstances; or
(d)some other special circumstance has arisen.
3 Henry v Minister of Justice [2019] NZHC 1039 at [13].
4 Carter v Coroner’s Court at Wellington [2015] NZHC 2998 at [11]; and J v Attorney-General
[2018] NZHC 1331 at [15].
[7] Particularly, where a decision at first instance followed a full hearing and an opportunity for full preparation and an applicant wishes to adduce further evidence, that evidence must be weighed in the context of the same tests as are applied to fresh evidence on appeals.5
Ms Dai’s application
[8] Ms Dai seeks the recission of my judgment of 10 January 2023, on the grounds that:
2.1An application under r 7.49 is appropriate as an alternative to appeal. The Applicant wans the Interim Relief applications resolved by this mechanism or by appeal, before any further Decisions beyond this point;
2.2First, the primary purpose of the proceedings is to effect a human rights consistent interpretation, while appropriate applications and reliefs [sic] have been sought under the Declaratory [Judgments] Act 1908 and the New Zealand Bill of Rights Act 1990;
2.3Second, [the] Applicant has refereed the proceeding to the Human rights Commissioner and sought legal representation from the Office of the Human Rights Proceedings as an intervention under the Human Rights Act 1993. It is appropriate that the Decision be reconsidered with fuller argument and with additional evidence and material change in the circumstances.
2.4Third, [the] Applicant sought Declarations about the Interpretation of the NZICA Member’s Rules [ r 13.99 & 13.100] that are relevant and raise issues of public importance. It is clearer that the Applicant does not have a material private personal interest in the outcome of the proceedings but is acting in the interest of the public and to vindicate the human rights of those subject to current NZICA Member’s Rules.
2.5Furthermore, it is clearer that [the] Applicant is seeking clarifications on the appropriateness of exercising the NZICA disciplinary power over its members.
2.6Most importantly, the Judge omitted a large amount of Cause-of- Actions and the issues with the PCC submissions, as addressed by the Applicant in her Court submissions. The NZICA Disciplinary Tribunal Decision is not part of the Judicial Review proceedings. The monetary relief application has also been clearly outlined because of the PCC’s breach of the New Zealand Bill of Rights Act 1990.
(Footnotes omitted, emphasis in original)
5 Ballantyne Trustees Ltd v Papprill Hadfield & Aldous Solicitors Nominee Company Ltd [2016] NZHC 2414 at [63].
[9] Further, Ms Dai alleges that the decision of 10 January 2023 was wrong. She says:
(a)Ms H (a lawyer working for the NZICA) and the PCC mislead the Court in their evidence, saying that one of the complainants was a ‘fellow practitioner’;
(b)the New Zealand Law Society’s investigation into Ms H’s work for the PCC means that there are no valid proceedings in front of the NZICA’s Disciplinary Tribunal;
(c)her purpose is not to obtain a collateral advantage but to properly interrogate the PCC’s decision to refer the complaints to the Disciplinary Tribunal, and that therefore her claim is not vexatious;
(d)the Disciplinary Tribunal hearing was intended to ‘cover up Ms H’s misconduct’;
(e)the members of the Disciplinary Tribunal are biased and subject to conflicts of interest;
(f)the PCC’s referral of the complaints to the Disciplinary Tribunal was unlawful as one of the complainants did not use their legitimate signature;
(g)the inclusion of the Disciplinary Tribunal’s decision had the effect of misleading the Court; and
(h)the PCC’s conduct “itself is an abuse of the NZICA Disciplinary Process”.
[10]Ms Dai seeks that:
…the PCC’s strike-out application should be dismissed because the threshold to strike out is high, and the Applicant’s wide range of arguments/allegations outweighs the PCC’s position. It is illogical to allege the Applicant as being
unprofessional and then remove her as retaliation, simply because she raised serious questions of law on behalf of the public interest. Therefore, PCC’s breach of the Bill of Rights Act has established that the Applicant is entitled to be granted the Interim Prohibition/Injunction and Cost Protection Orders.
[11] Ms Dai also filed an affidavit in support of her application. She did not address whether her evidence was relevant, fresh, or cogent in her application. There is little to distinguish the allegations made in her application from the material included in her affidavit. It is clear from this material that Ms Dai believes that the PCC is engaged in a personal vendetta against her, and that any action it takes is unlawful at first instance, as it breaches her rights, and because it is improper for the PCC to regulate the activities of chartered accountants.
[12] Nor are any of the materials attached to Ms Dai’s affidavit relevant to her application to rescind the decision, but instead appear to relate to the Disciplinary Tribunal proceedings, her alleged loss as a result of the Disciplinary Tribunal proceedings, and her allegations against one of the complainants. None of this material is fresh, material, or relevant, and I decline to admit it for the purpose of Ms Dai’s application under r 7.49.
The PCC’s position
[13] Mr Moon on behalf of the PCC opposes Ms Dai’s application. He says the primary purpose of r 7.49 is to enable an opportunity for fuller argument where the interlocutory application in question was not or could not be fully argued, or where new information has come to light that would justify reconsideration. Mr Moon submits that in this case the matter was fully argued in open court, there has been no new information provided that would justify a reconsideration, and that Ms Dai is simply seeking to relitigate matters that have been determined.
[14] Mr Moon notes that Ms Dai has a right of appeal pursuant to s 56 of the Senior Courts Act 2016, and submits that her application to rescind the judgment of 10 January 2023 should be dismissed.
Discussion
[15] In short, I am satisfied that no factors that would justify the decision being rescinded are present in the current circumstances. Instead, the Court has been presented with further evidence as to the pattern of behaviour observed and noted in that decision. Particularly:
(a)there was full argument at the strike-out hearing, in open court;
(b)Ms Dai has not raised a relevant point of evidence that has been overlooked;
(c)there has been no material change of circumstances;
(d)there has not been any other special circumstances that have arisen;
(e)I am not of the view that the decision itself can be considered wrong on any basis proposed by Ms Dai in her application or affidavit; and
(f)Ms Dai has provided no basis upon which it would be appropriate to transfer her application to the Court of Appeal.
[16]Further, and for clarity:
(a)the fact that Ms Dai has referred the proceedings to the Human Rights Commissioner is irrelevant, as is the fact that she has sought legal representation. Although it is not clear, Ms Dai appears to be alleging that her lack of representation before the Court and the Disciplinary Tribunal has breached her human rights. Representation would have been available for both sets of proceedings to Ms Dai if she is eligible, through Legal Services. I note also that Ms Dai has appeared willing and able to represent herself in these proceedings, notwithstanding suggestion from Isac J that she obtain representation;
(b)Ms Dai’s claims in this proceeding are not on behalf of the public interest and do not raise issues of public importance. As noted, her behaviour is directed towards frustrating the disciplinary processes against her, through the harassment of NZICA staff, and the complainants. That is inappropriate. While Ms Dai alleges that her claim is in the public interest, she also admits that she seeks to examine the PCC’s decisions to mitigate her own financial and reputational loss;
(c)there is no basis upon which to conclude that Ms H or the PCC have misled the Court. As noted in the decision, Ms Dai’s complaints about Ms H were dismissed by the Law Society’s Standards Committee. That does not have the effect of invalidating proceedings before the NZICA’s Disciplinary Tribunal. Likewise, there is no basis for concluding that any Tribunal members are biased or conflicted in respect of Ms Dai;
(d)Ms Dai’s allegation regarding the signature of one of the complainants has been determined within the Disciplinary Tribunal proceedings and has no relevance to her application to rescind the judgment of 10 January 2023. Nor did that matter have any effect on the legality of the PCC’s decision to refer the complainants to the Disciplinary Tribunal. Nor was the Court prohibited from taking into account the Disciplinary Tribunal’s findings.
Result
[17] I accept Mr Moon’s submission that Ms Dai’s application is misconceived, and should be dismissed. I agree that she seeks to relitigate matters that have already been determined by this Court and the Disciplinary Tribunal. At this stage, they are arguments more appropriately raised on appeal.
[18] Finally, I note that Ms Dai has claimed that during the course of the strike out hearing, Mr Moon consented to permanent name suppression for her. Mr Moon disputes this, saying that the PCC has never agreed to permanent name suppression, and that it would not do so given that issue is also currently before the Disciplinary Tribunal. I addressed the issue of name suppression in my judgment at [39]–[41]. I
am satisfied that Mr Moon did not consent to permanent name suppression during the course of the strike-out hearing, and note that my view remains that name suppression should remain on an interim basis until the Disciplinary Tribunal has dealt with that issue itself.
Costs
[19] I invite the parties to agree costs in respect of this application between themselves. If no agreement is able to be reached within 14 days of the date of this decision, Mr Moon is to file a costs memorandum of no greater than three pages in length and Ms Dai shall file a reply of no greater than three pages in length within five days of receipt of Mr Moon’s memorandum. I will then deal with the matter on the papers.
Churchman J
Solicitors:
Richard Moon, Wellington for First Respondent cc: S Z Dai
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