Deliu v Auckland Standards Committee 1

[2015] NZHC 1023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000223 [2015] NZHC 1023

UNDER

the Lawyers and Conveyancers Act 2006

IN THE MATTER OF

an appeal under s 253(1)

BETWEEN

FRANCISC CATALIN DELIU Appellant

AND

THE AUCKLAND STANDARDS COMMITTEE 1

First Respondent

THE NATIONAL STANDARDS COMMITTEE

Second Respondent

Hearing:	14 May 2015
Appearances:	Appellant in person P Morgan QC and D Morgan for Respondents
Judgment:	14 May 2015

ORAL JUDGMENT OF WOOLFORD J

Solicitors:

Mr P J Morgan QC, Glaister Ennor, Auckland

Copy to:

Dr F C Deliu, Auckland

DELIU v THE AUCKLAND STANDARDS COMMITTEE 1 & ANOR [2015] NZHC 1023 [14 May 2015]

Introduction

[1]      Francis Catalin Deliu is a lawyer.   He faces charges in the New Zealand

Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal).  By a minute dated

18 December 2014, the Chair of the Tribunal, Judge D F Clarkson, appointed a division of the Tribunal to be chaired by Ms Mary Scholtens QC, to hear the charges against  Mr Deliu.    By a further  minute dated  20 March  2015,  Judge  Clarkson appointed Susan Hughes QC, Graeme McKenzie, Chris Rowe and William Smith as the other members of the division.

[2]      Mr Deliu now appeals against both orders under s 253(1) of the Lawyers and

Conveyancers Act 2006 (the Act). It provides:

253     Appeal against order or decision of Disciplinary Tribunal

(1)       Any of the persons specified in subsection (2) may appeal to the High Court against any order or decision made under this Part by the Disciplinary Tribunal.

(2)       The person who may appeal under subsection (1) are—

(a)        the practitioner or person to whom the order or decision relates:

…

…

Grounds of appeal

[3]      The grounds of appeal as listed by Mr Deliu are:

(a)      Judge Clarkson had earlier recused herself from the proceedings such that is was an error of law on her part for her to have any further involvement in the proceedings, whether characterised as an administrative decision, pursuant to a statutory duty or otherwise.

(b)The appointments were ultra vires or ought de novo to be reversed by the High Court.

(c)      The Tribunal erred in law in denying Mr Deliu a random allocation of decision maker, especially as it was concurrently supposedly discouraging Judge shopping.

(d)The Tribunal acted with bias in that Judge Clarkson had previously acted improperly towards Mr Deliu necessitating a 2010 recusal application  that  she then refused to  deal  with  and  finally omitted reference to giving the (false) impression she, of her own motion, recused herself when in fact she had only done so after the Judicial Conduct Commissioner upheld a complaint against her for her inappropriate behaviour towards Mr Deliu.

(e)      The Tribunal breached natural justice in making the appointment of the new Chair without affording Mr Deliu an opportunity to be heard and considering, and indeed, adopting only the prosecuting Committee’s submissions.

Discussion

[4]      Having carefully considered the competing submissions, I am of the view that there is no jurisdiction to appeal the directions made by Judge Clarkson.  The right of appeal under s 253(1) relates only to any order or decision made by the Tribunal.  The directions at issue were made by the chairperson of the Tribunal in accordance with her statutory responsibilities.   Section 229 of the Act specifically provides that the Tribunal may sit in divisions.   Subsection (5) provides that the chairperson of  the Tribunal  is  to  determine in  each  case  which  division  of the Tribunal is to conduct particular proceedings.   The decision is for the chairperson and not the Tribunal itself.

[5]      Furthermore, s 231 of the Act sets out the responsibilities of the chairperson. Subsection 1(d) provides that she is responsible for designating, where necessary, the member who is to be chairperson of any division of the Tribunal.  Section 234 of the Act then refers to the constitution of the Tribunal or division.  It provides that either the Tribunal or a division of the Tribunal consists of a chairperson and such other members of the Tribunal as are selected in accordance with s 234 by the chairperson of the Tribunal.

[6]      It was the decision of the chairperson and the chairperson alone to appoint a division to be chaired by Ms Scholtens QC to hear the charges against Mr Deliu and

to  appoint  the other  members  of  the Tribunal.   At  the  time  that  she  made  the directions,  there  was  no  division  established  nor  chairperson  designated  nor members selected.

[7]      Section 235 of the Act provides that the quorum at any sitting of the Tribunal or a division of the Tribunal is, in general, five members or three members for specified purposes.  Accordingly, in my view, the reference in s 253 which sets out the right of appeal must refer to any orders or decisions made by the Tribunal itself when sitting with a quorum, with either five members or three members, and not to orders or decisions made by the chairperson alone.   This is consistent with the general   principle   that   appeals   against   procedural   decisions   are   generally inappropriate.

[8]      The finding that  there is no right of appeal  against the decisions of the chairperson is sufficient to dispose of this appeal.  It is therefore unnecessary for me to consider the substantive merits of the appeal.

[9]      Mr Deliu has urged me to treat this appeal as an application for judicial review.  I am, however, of the view that an application for judicial review needs to be properly pleaded with affidavit evidence filed.  I therefore decline to treat this appeal as an application for judicial review.

[10]     I should say that Mr Deliu will nonetheless be able to appeal to the High Court against an order or decision of the Tribunal in due course should the Tribunal later make an order or decision adverse to his interests.  It is then that he can raise issues of any procedural impropriety, bias or lack of natural justice in the setting up of the division of the Tribunal that is to hear his case.  Mr Deliu will not be denied his day in Court. This appeal is however premature.

[11]     The appeal is accordingly dismissed.  The respondents are entitled to costs on a 2B basis.

………………………………….

Woolford J