Deliu v Connell - [2016] NZHC 361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-00812 [2016] NZHC 361

UNDER
the Judicature Amendment Act 1972 and

Part 30 of the High Court Rules

IN THE MATTER

of an application for judicial review

BETWEEN

FRANCIS CATALIN DELIU Plaintiff

AND

RICHARD JOHN CONNELL First Defendant

LEGAL COMPLAINTS REVIEW OFFICER

Second Defendant

NEW ZEALAND LAW SOCIETY Third Defendant

Hearing: 3 and 4 February 2016

Counsel:

Plaintiff in person

P M Fee and L M Fraser for first defendant Appearance excused for second defendant M J Hodge for third defendant

Judgment:

4 March 2016

JUDGMENT OF PALMER J

This judgment was delivered by me on 4 March 2016 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Fee Langstone, Auckland
Meredith Connell, Auckland

To: F C Deliu, Auckland

Deliu v Connell [2016] NZHC 361 [4 March 2016]

Summary

[1] The National Standards Committee determined not to take further action on a complaint made by the plaintiff, Mr F C Deliu, about a fellow law practitioner, Mr Connell, the first defendant. The Legal Complaints Review Officer (LCRO) then declined an application for review by Mr Deliu of the Committee’s determination. The LCRO also ordered costs against Mr Deliu. Mr Deliu challenges these two LCRO decisions by way of judicial review.

[2] The orthodox principles of lawful decision-making that are upheld by the law of judicial review are not to be either read down or elevated in the context of professional discipline. A review by the LCRO is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

[3] Here, I decline the challenges to the LCRO’s review decision. However, I find that the costs decision was unreasonable and did not take into account relevant submissions on costs and a recusal application by Mr Deliu that were received late but before the decision was issued. I quash the costs decision.

The Law of Judicial Review and Review by an LCRO

Judicial Review and Intensity

[4] Mr Deliu challenges the two LCRO decisions by way of judicial review. He challenges the review decision on four grounds and the decision to award costs against him on seven grounds. The law relating to the particular grounds of challenge do not need to be rehearsed in abstract. However, there is one aspect of relevant legal principle that is worth considering at the outset.

[5] Mrs Fee, counsel for Mr Connell the first defendant, submitted that it is important in applying the law of judicial review to be conscious of the statutory

context. She says it would be wrong to examine the LCRO’s decisions under a microscope or with too…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 361
Decision Date: 4 March 2016

CaseChat Overview and Summary

Francis Catalin Deliu filed an application for judicial review of two decisions made by the Legal Complaints Review Officer (LCRO), the first defendant. The LCRO had declined Mr Deliu’s application for review of a decision by the National Standards Committee (NSC) that it would take no further action on a complaint made by Mr Deliu about a fellow lawyer, Richard John Connell. The LCRO also ordered Mr Deliu to pay costs to Connell and the New Zealand Law Society (NZLS). The LCRO is appointed by the Minister to review decisions of the NSC under the Lawyers and Conveyancers Act 2006. The LCRO’s review of the NSC’s decision was informal, inquisitorial and robust. It involved the LCRO coming to her own view of the fairness of the substance and process of the NSC’s determination. The orthodox principles of lawful decision-making that are upheld by the law of judicial review are not to be either read down or elevated in the context of professional discipline. Mr Deliu’s challenge to the LCRO’s review decision failed. The LCRO had clearly taken into account the grounds for review and other material provided by Mr Deliu. The LCRO was not required to respond to each ground of review. The LCRO did not err in law. Nor was the LCRO’s conclusion that Mr Deliu’s complaint was vexatious so unreasonable that Mr Deliu’s challenge should be upheld. Mr Deliu’s challenge to the LCRO’s costs decision was upheld. The LCRO had received Mr Deliu’s submissions on costs and his application for recusal on 5 March 2015, eight days before the deadline for reply submissions from Connell and eleven days before the LCRO issued its final costs decision. The LCRO should have considered them. In doing so she failed to have regard to relevant considerations in its costs decision and she acted unreasonably. The Court quashes the costs order. The costs of these proceedings lie where they fall.

Orders