Deliu v The Lawyers Complaints Service of the New Zealand Law Society

[2012] NZHC 3582

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-4484 [2012] NZHC 2582

BETWEEN  FRANCISC CATALIN DELIU Plaintiff

ANDTHE LAWYERS COMPLAINTS SERVICE OF THE NEW ZEALAND LAW SOCIETY

First Defendant

ANDMARY ELIZABETH OLLIVIER Second Defendant

Hearing:         6 November 2012

Appearances: F C Deliu (in person) and Z Z Chen for plaintiff

P Collins for defendants

Judgment:      20 December 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.30 pm on Thursday 20 December 2012

Solicitors/counsel :

F C Deliu Auckland  [email protected]

P Collins, Auckland  [email protected]

FRANCISC CATALIN DELIU V THE LAWYERS COMPLAINTS SERVICE OF THE NEW ZEALAND LAW SOCIETY HC AK CIV 2012-404-4484 [20 December 2012]

Introduction

[1]      Mr Deliu, a practising lawyer, has lodged with the first defendant a number of complaints about the conduct of some of his professional colleagues.  In each case the impugned conduct is connected with the discharge of various disciplinary and regulatory functions by the lawyer concerned, on behalf of the New Zealand Law Society (the Society).   Each of the plaintiff’s complaints has been rejected by the first defendant on behalf of the Society.  The plaintiff claims that the first defendant had  no  power  to  dismiss  his  various  complaints  without  referring  them  to  a Standards Committee appointed by the Society.  Accordingly, he seeks by way of application for judicial review, a variety of administrative law remedies.  However, during  the  course  of  argument  it  was  agreed  that  if  the  plaintiff’s  case  was established, then declaratory relief would suffice.

[2]      It was agreed that certain allegations made separately against  the second defendant would not be touched upon at the hearing before me, but would be left for later argument if necessary, in the light of this judgment..

[3] In order to understand the thrust of the plaintiff’s case, it is necessary to engage in a brief review of the legislation that governs complaints made against lawyers under the provisions of the Lawyers and Conveyancers Act 2006 (the Act).

The statutory scheme

[4]      To  a  greater  extent  than  its  predecessor,  the  Act  focuses  on  consumer protection and the need for public confidence in the provision of legal services.1   It sets out three express purposes:2

(a)       To maintain public confidence in the provision of legal services and conveyancing services;

1 Law Practitioners Act 1982.

2 The Lawyers and Conveyancers Act 2006 s 3(1).

(b)      To protect the consumers of legal and conveyancing services;

(c)       To recognise the status of the legal profession and to establish the new profession of conveyancing practitioner.

[5]      To  that  end,  the Act  endeavours  to  provide  a  regulatory  regime  that  is responsive to consumer concerns.3

[6]      Section 4 provides:

4        Fundamental obligations of lawyers

Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:

(a)      the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:

(b)       the obligation to be independent in providing regulated services to his or her clients:

(c)       the  obligation  to  act in accordance  with all  fiduciary duties and duties of care owed by lawyers to their clients:

(d)       the obligation to protect, subject to his or her overriding duties as an officer  of  the  High  Court  and  to  his  or  her  duties  under  any enactment, the interests of his or her clients.

[7]      Procedures for complaints and discipline are to be found in Part 7 of the Act. It is designed to enable complaints to be addressed, and so that disciplinary charges may be heard and determined expeditiously.4    In order to achieve that purpose, the Society is  authorised to  make such rules  as  are necessary to  give effect to the statutory framework.5

[8]      The Society is also required to establish one or more lawyers’ standards

committees.6   Each standards committee must consist of at least three persons, one of whom must be a lay member.7

3Lawyers and Conveyancers Act 2006, s 3(2)(b).

4 The Act, s 120(3).
5 The Act, s 120(4).
6 The Act, s 126.

7 The Act, s 129(1) and (2).

[9]      The  functions  of  standards  committees  are  prescribed  by  s  130  which provides:

130      Functions of Standards Committees

The functions of each Standards Committee are (subject to any limitations imposed on the committee by or under this Act or the rules that govern the operation of the committee)—

(a)       to inquire into and investigate complaints made under section 132:

(b)       to promote, in appropriate cases, the resolution of complaints by negotiation, conciliation, or mediation:

(c)       to  investigate  of  its  own  motion  any  act,  omission,  allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner or any other person who belongs to any of the classes of persons described in section 121:

(d)       to  intervene,  in  the  circumstances  prescribed  by this Act, in  the affairs of practitioners or former practitioners or incorporated firms:

(e)       to make final determinations in relation to complaints:

(f)       to lay, and prosecute, charges before the Disciplinary Tribunal.

[10]     The end purpose of the complaints regime is to establish whether or not the conduct complained of is professionally culpable.   In that context, the concepts of “misconduct” and “unsatisfactory conduct” are central to the analysis.

[11]     Misconduct is defined in s 7 as follows:

7Misconduct defined in relation to lawyer and incorporated law firm

(1)       In this Act, misconduct, in relation to a lawyer or an incorporated law firm,—

(a)       means conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct—

(i)       that  would  reasonably  be  regarded  by  lawyers  of good standing as disgraceful or dishonourable; or

(ii)      that consists of a wilful or reckless contravention of any provision of this Act or of any regulations or practice rules made under this Act that apply to the lawyer or incorporated law firm or of any other Act relating to the provision of regulated services; or

(iii)      that consists of a wilful or reckless failure on the part of the lawyer, or, in the case of an incorporated law firm, on the part of a lawyer who is actively involved in the provision by the incorporated law firm of regulated  services, to  comply  with  a condition  or restriction to which a practising certificate held by the lawyer, or the lawyer so actively involved, is subject; or

(iv)      that  consists  of  the  charging  of  grossly  excessive costs for legal work carried out by the lawyer or incorporated law firm; and

(b)      includes—

(i)       conduct of the lawyer or incorporated law firm that is misconduct under subsection (2) or subsection (3); and

(ii)      conduct  of  the  lawyer  or  incorporated  law  firm which is unconnected with the provision of regulated services by the lawyer or incorporated law firm but which would justify a finding that the lawyer or incorporated law firm is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer or an incorporated law firm.

(2)       A lawyer or an incorporated law firm is guilty of misconduct if, at a time when he or she or it is providing regulated services, and without the consent of the High Court or of the Disciplinary Tribunal, the lawyer or incorporated law firm knowingly employs, or permits to act as a clerk or otherwise, in relation to the provision of regulated services, any person who, to the knowledge of the lawyer or incorporated law firm,—

(a)       is  under  suspension  from  practice  as  a  barrister  or  as  a solicitor or as a conveyancing practitioner; or

(b)       has had his or her name struck off the roll of barristers and solicitors of the High Court; or

(c)       has had his or her registration as a conveyancing practitioner cancelled by an order made under this Act; or

(d)       is disqualified, by an order made under section 242(1)(h), from employment in connection with a practitioner's or incorporated firm's practice.

(3)       A person is guilty of misconduct if that person, being a lawyer or an incorporated law firm, shares, with any person other than another lawyer or incorporated law firm, the income from any business involving the provision of regulated services to the public.

(4)       Despite subsection (3), a lawyer or an incorporated law firm is not guilty of misconduct under that subsection by reason only of sharing

with a patent attorney (in the circumstances, and in accordance with any conditions, prescribed by the practice rules) the income from any business involving the provision of regulated services to the public.

(5)       Despite subsection (3), neither an incorporated law firm nor a lawyer who is actively involved in the provision by an incorporated law firm of regulated services is guilty of misconduct under that subsection by reason only of the incorporated law firm making a distribution to shareholders of that firm

[12]     Unsatisfactory conduct is defined in s 12 which reads:

12Unsatisfactory conduct defined in relation to lawyers and incorporated law firms

In  this  Act,  unsatisfactory  conduct,  in  relation  to  a  lawyer  or  an incorporated law firm, means—

(a)       conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer; or

(b)       conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that would be regarded by lawyers of good standing as being unacceptable, including—

(i)        conduct unbecoming a lawyer or an incorporated law firm;

or

(ii)      unprofessional conduct; or

(c)       conduct  consisting  of  a  contravention  of  this  Act,  or  of  any regulations or practice rules made under this Act that apply to the lawyer or incorporated law firm, or of any other Act relating to the provision of regulated services (not being a contravention that amounts to misconduct under section 7); or

(d)       conduct consisting of a failure on the part of the lawyer, or, in the case of an incorporated law firm, on the part of a lawyer who is actively involved in the provision by the incorporated law firm of regulated services, to comply with a condition or restriction to which a practising certificate held by the lawyer, or the lawyer so actively involved, is subject (not being a failure that amounts to misconduct under section 7).

[13]     Section 132 provides for the making of complaints about the conduct of a lawyer.  Section 132(1) provides:

132     Complaints about practitioners, incorporated firms, and their employees

(1)       Any  person  may  complain  to  the  appropriate  complaints  service about—

(a)      the conduct—

(i)       of a practitioner or former practitioner; or

(ii)      of an incorporated firm or former incorporated firm;

or

(iii)      of a person who is not a practitioner but who is an employee or former employee of a practitioner or an incorporated firm; or

(b)       the  standard  of  the  service  provided,  in  relation  to  the delivery of regulated services,—

(i)       By a practitioner or former practitioner;  or

(ii)      by an incorporated firm or former incorporated firm; or

(iii)      by a person who is not a practitioner but who is an employee or former employee of a practitioner or an incorporated firm; or

(c)       the alleged failure of a practitioner or former practitioner or an incorporated firm or former incorporated firm, or an employee or former employee of a practitioner or an incorporated firm, to comply, within a specified time or a reasonable time, with any order or final determination made under this Act by a Standards Committee or the Legal Complaints Review Officer.

[14]     Any such complaint must be in writing, and must be made to the Complaints Service,8  established under s 121(1) by the Society.9     The first defendant is that Complaints Service.

[15]     Section 135(1) provides:

135     Appropriate complaints service

(1)       If  the  complaint  relates  to  a  lawyer  or  former  lawyer  or  an incorporated law firm or former incorporated law firm, or an employee or former employee of a lawyer or incorporated law firm, the appropriate complaints service, for the purposes of sections 132 and 134, is the complaints service established under section 121(1)

8 The Act, s 134.

9 The Act, s 135(1).

by the New Zealand Law Society and the complaint must be referred by that service to a Lawyers Standards Committee.

[16]     For  the  purposes  of  this  proceeding,  it  is  relevant  to  note that  s  135(1) provides that the Complaints Service must refer the complaint to a Standards Committee.  Among the functions of a Standards Committee is that of inquiring into and investigating complaints made under s 132.10

[17]     On receiving a complaint, a Standards Committee may: (a)     inquire into the complaint;  or

(b)give a direction under s 143 (relating to negotiation, conciliation and mediation);  or

(c)       decide in accordance with s 138 to take no action on the complaint.11

[18]     Section 138 provides:

138     Decision to take no action on complaint

(1)       A Standards Committee may, in its discretion, decide to take no action  or,  as  the  case  may  require,  no  further  action,  on  any complaint if, in the opinion of the Standards Committee,—

(a)       the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made is such that an investigation of the complaint is no longer practicable or desirable; or

(b)      the subject matter of the complaint is trivial; or

(c)       the complaint is frivolous or vexatious or is not made in good faith; or

(d)       the person alleged to be aggrieved does not desire that action be taken or, as the case may be, continued; or

(e)       the complainant does not have sufficient personal interest in the subject matter of the complaint; or

(f)       there is in all the circumstances an adequate remedy or right of  appeal,  other  than  the  right  to  petition  the  House  of

10 The Act, s 130(a).

11 The Act, s 137(1).

Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person aggrieved to exercise.

(2)       Despite anything in subsection (1), a Standards Committee may, in its discretion, decide not to take any further action on a complaint if, in the course of the investigation of the complaint, it appears to the Standards Committee that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.

[19]    When a Standards Committee receives a complaint, it must, as soon as practicable, advise the complainant and the person to whom the complaint relates of the procedure which the Standards Committee proposes to adopt.12   That is, whether it proposes to inquire into the complaint, give a s 143 direction, or decide in accordance with s 138 to take no action on the complaint.

[20]     Finally, reference should be made to the Complaints Service itself.   The Society is required both to establish a Complaints Service in respect of the legal profession,13 and to make and maintain practice rules governing the operation of the Service.14   The Complaints Service is required to deal in a fair, efficient and effective

manner with all complaints received by it.15

[21]     The functions of the Society in relation to the Complaints Service are set out in s 124, which provides:

124Functions of New Zealand Law Society in relation to complaints service

The  functions  of  the  New  Zealand  Law  Society,  in  administering  the complaints service established by it under section 121(1), are as follows:

(a)       to ensure that places are provided at which complaints about lawyers and other persons who belong to the classes of persons described in section 121(1)(a)to(c) may be lodged:

(b)       to give appropriate publicity both to the places at which complaints about  lawyers  and  other  persons  who  belong  to  the  classes  of persons described in section 121(1)(a)to(c) may be lodged and to the procedure to be used in lodging such complaints:

12 The Act, s 137(c).

13 The Act, s 121.
14 The Act, s 122.

15 The Act, s 123.

(c)       to  publish  information  with  a  view  to  making  it  known  that complaints  about  lawyers  and  other  persons  who  belong  to  the classes of persons described in section 121(1)(a)to(c) must be in writing and be supported by appropriate documentation:

(d)       to enter into contracts, on behalf of the New Zealand Law Society, with persons who provide services to, or are employed to assist, Lawyers Standards Committees:

(e)       to  ensure throughout  New Zealand both  the consistency and the quality of the complaints service:

(f)       to provide assistance to Lawyers Standards Committees and to the office of each such committee:

(g)       to provide to the Legal Complaints Review Officer copies of any complaints that the New Zealand Law Society receives about the operation of the complaints service:

(h)       to ensure that decisions of Lawyers Standards Committees, the Legal Complaints Review Officer, and the Disciplinary Tribunal are enforced.

The plaintiff ’s complaints

[22]     Mr Deliu  made  six  separate  complaints  against  members  of  the  legal profession, including a complaint against Ms Ollivier, which it is agreed need not concern the Court for the purposes of this judgment.

[23]     It is necessary to deal with the remaining five complaints separately.

Mr Jonathan Temm

[24]     In July 2012, the plaintiff sent an e-mail to Ms Ollivier who is a lawyer having oversight and management of the Society’s regulatory functions, including under Part 7 of the Act. The e-mail is lengthy.  It commences:

I wish to lodge complaints against Mr Jonathan Temm, Mr Chris Moore, Mr John Unsworth, Ms Nerissa Barber and Mr Allister Davis for breaches of Rules 2/2, 2, 2.3 and/or 10.1 in without cause stating that there were good grounds for an application to be made to the High Court to suspend me from practice.

[25]     It will be observed that the complaint is against not only Mr Temm, but other lawyers who are members of the Society’s Board, which had formed the view that it

was appropriate to instruct counsel to prepare an application to the Court to suspend Mr Deliu  from  practice.    Although  the  emphasis  has  been  upon  Mr  Temm  as President of the Society, the plaintiff’s intention is to pursue his complaint against each of the lawyers named in his e-mail.   The e-mail set out in some detail the grounds upon which Mr Deliu contended that the Board’s resolution of 12 April

2012, upon which his complaint was based, was passed without any proper basis.  In his complaint, he also alleged that members of the Board had acted in bad faith.

[26]     Ms Ollivier responded to the plaintiff’s complaint, by letter of 1 August 2010

(sic 2012), which read:

Thank you for your e-mail of 13 July 2012.

It is not proposed to accept this e-mail as a formal complaint against the members of the New Zealand Law Society.   It is our view that this is a misuse of the Lawyers Complaints Service process for the reasons set out below.

Your complaint is against individual Board members.  However in substance your complaint is not against an individual lawyer but about the Board decision.   Consequently your complaint does not fall within the statutory framework of Part 7 of the Lawyers and Conveyancers Act 2006 (LCA). Your reliance on the Board members’ status as lawyers (who in their professional lives are subject to part 7 of the LCA) to review the Board decision is a misuse of Lawyers Complaints Service procedures.

In addition, s338 of the LCA provides immunity for Board members from civil and criminal proceedings, in respect of any act done or omitted to be done in the course of the performance or exercise of their functions duties or powers (unless the person has acted in bad faith).  While there is no mention of “disciplinary proceedings” or similar this is because it could not have been the intention of the LCA that Board members in the course of carrying out their regulatory functions be subjected to the complaints procedure in Part 7 of the LCA,

Your  complaint  also  does  not  fall  within  s  124(g)  LCA,  as  the  Board members are not members of the Lawyers Complaints Service.

Mr Nigel Hampton QC/Mr Warren Pyke

[27]     By further e-mail of 13 July 2012, the plaintiff lodged a formal complaint against Mr Nigel Hampton QC and Mr Warren Pyke.  Mr Hampton is chair of the Society’s National Standards Committee.  Mr Pyke is a Hamilton barrister briefed by the Society.   The gist of Mr Deliu’s complaint is that Mr Hampton laid charges

against the plaintiff which “he knew were outside of the law in breach of his prosecutorial duties”.   Against Mr Pyke, the plaintiff alleges that he wrongfully pursued those charges, even though the plaintiff had put him on notice of the alleged unlawfulness of doing so.   Messrs Hampton and Pyke were undertaking their respective roles in the course of certain disciplinary proceedings in train against the plaintiff.

[28]     Again,  this  complaint  was  rejected  by  Ms Ollivier,  by  separate  letter  of

1 August 2012 (again mis-dated 2010).  Ms Ollivier’s letter read:

Thank you for your e-mail of 13 July 2012.

It is not proposed to accept this e-mail as a formal complaint against either Mr Hampton QC or Mr Pyke.   It is our view that this is a misuse of the Lawyers Complaints Service process for the reasons set out below.

Your complaint is against Mr Hampton does not fall within the statutory framework of Part 7 of the Lawyers and Conveyancers Act 2006 (LCA).

It is a complaint about the alleged wrongfulness of a determination of a Standards Committee under s 152(2)(a) of the LCA and does not have the status of a complaint as defined in s132 of the Lawyers and Conveyancers Act 2006 (LCA).   Determinations of Standards Committees and charges arising from such determinations are not appropriate material for conduct complaints.  Your remedy lies in defending the disciplinary charges before the Disciplinary Tribunal.

For similar reasons as mentioned above the complaint against Mr Warren Pyke, counsel instructed by the NSC to prosecute charges before the Disciplinary Tribunal, also cannot be treated as a conduct complaint.

It is not considered that your complaint  are complaints against the Lawyers

Complaints Service to which s 124(g) LCA might apply.

Ms Grice

[29]     Ms Grice, who is the Society’s Executive Director, acted as solicitor on the record in originating proceedings brought by the Society in this Court, aimed at securing an  order permitting the Society to  inspect  a number of files in  which Mr Deliu had appeared as counsel.  The proposed inspection was intended to assist in identifying evidence that might support disciplinary proceedings in train against the plaintiff.

[30]     On 15 August 2012, Mr Deliu sent an e-mail to Ms Ollivier complaining about both Ms Grice and Ms Ollivier.  With respect to Ms Grice, his complaint was that the application had specified as a ground, that the plaintiff was “ …serially incompetent and otherwise needed to be summarily suspended from practice by the High Court.…”.

[31]     This complaint was also rejected.   By letter of 12 September 2012, The Society’s  acting  complaints  manager,  Mr  Malcolm  Ellis,  wrote  to  Mr Deliu  as follows:

I  am  responding  to  your  e-mail  in  my  capacity  as  Acting  Complaints

Manager.

I understand that you intend that your e-mail be treated as a complaint against both the abovenamed and that it be submitted to a Standards Committee for investigation and determination under Part VII of the Act.

Your complaint is not accepted as relating to a lawyer’s conduct or service in circumstances  contemplated  by  s  132.     It  is  a  complaint  about  the performance of the Society’s regulatory functions under s 65 and for that reason it will not be submitted to a Standards Committee.

Mr Laubscher

[32]     On 30 July 2010, Mr Deliu lodged a complaint against Mr Laubscher, who at the time was head solicitor of the Auckland Law Society’s Professional Standards Department.   Certain disciplinary and regulatory functions were undertaken by District Law Societies under the 1982 Act, and the present Act contained transitional provisions  under which  current  complaints  could  be administered  by local  Law Societies in conjunction with the Society.   Mr Laubscher was acting under those powers.

[33]     Mr Deliu’s complaint about him was couched in extremely critical language that went far beyond a simple complaint about the delays and omissions to act which formed the basis of the plaintiff’s dissatisfaction.

[34]     Mr  Laubscher  was  responsible  for  processing  an  earlier  complaint  by

Mr Deliu against another practitioner, arising out of litigation in which he and that

other practitioner were engaged for different parties.  So, Mr Deliu’s complaint was

about the way in which his complaint was being processed.

[35]     Ms Ollivier responded by letter dated 5 August 2010 as follows:

In  an  e-mail  of  30  July  2010  you  sought  to  make  a  complaint  against

Mr Lapa Laubscher.

This complaint is of the same type as those discussed in the Society’s letter of 3 February 2010 (attached).   Namely it is a complaint against a person while engaged in the activities of the Complaint Services.  The Society is of the view, as outlined more fully in the 3 February 2010 letter, that such complaints are not contemplated by s 132 of the Lawyers and Conveyancers Act 2006 (LCA) and therefore it is not proposed that any further action be taken.

However  consistent  with  our  previous  letter  the  correspondence  will, pursuant to s 124(g) of the LCA, be referred to the Legal Complaints Review Office.

Some further context

[36]     Ms Ollivier swore an  affidavit  which  sets  out  some important  contextual material.  In the years ended 30 June 2010, 2011 and 2012, the Society’s Complaints Service received 1461, 1509 and 1625 complains respectively.  Most were submitted to   a   Standards   Committee   and   subjected   to   procedures   usually   involving investigation, deliberation (often including a hearing), and determination.   As she notes, a determination can range from a decision to take no further action, through to an adverse finding of misconduct or unsatisfactory conduct and the imposition of penalties, or referral to the Disciplinary Tribunal in the most serious cases.

[37]     Lawyers  may,  of  course,  make  complaints  about  other  lawyers.    In  this context, Mr Deliu has been “a very active complainant” as Ms Ollivier put it.  The Society’s records disclose that he has made 86 complaints about lawyers or former lawyers since January 2009 (including objections by him to practising certificate applications by persons enrolled as barristers and solicitors).  There were two further complaints by him under the 1982 Act.   The total of 86 complaints incorporates some which were not accepted, and therefore are not entered on the Society’ Registry database.

[38]     As the Society embarked upon the exercise of its functions under the 2006

Act, it was required to deal with conduct complaints by lawyers about other lawyers employed by the Society in the Complaints Service.   They were relatively few in number, but were troubling to the Society and distressing to the Complaints Service lawyers concerned.

[39]     The Society’s Board took advice, and decided to adopt a policy to ensure the responsible resolution of complaints about Complaints Service employed lawyers. That policy, adopted by the Board on 24 July 2009, relevantly reads as follows:

a.Complaints  made  against  Complaints  Service  lawyers  will,  if received   in   writing,   be   referred   immediately   to   the   NZLS Complaints Manager, being the person with executive responsibility for the Lawyers Complaints Service.

b.The Complaints Manager will consider the complaint and decide whether it should properly be treated as a conduct complaint submitted under s 132 of the Lawyers and Conveyancers Act, and therefore to be passed to a Standards Committee like any other conduct complaint or whether it is in substance concerned with the Complaints Service itself.  In the latter case it should not proceed as a complaint against the lawyer under s 132 but should instead be referred to the Legal Complaints Review Officer under s 124(g). The  complainant  should  be  notified  in  writing  concerning  the manner in which the complaint is being handled, in either case;

c.In deciding about the nature of the complaint and whether it should be submitted to a Standards Committee or to the Legal Complaints Review Officer, the Complaints Manager should take the following matters into account:

(i)      Whether the allegations made by the complainant may reasonably be regarded as alleging misconduct or unsatisfactory conduct as those terms are defined in the Act;

(ii)     Whether the complaint appears to be prompted by disappointment with or dissatisfaction about the progress of a  complaint  or  a  decision  made  in  relation  to  it  by  a Standards   Committee,   and   that   it   is   the   Standards Committee, not the Complaints Service lawyer, that is the real subject of the complaint;

(iii)      Whether the subject-matter of the complaint is trivial or is vexatious or frivolous;

(iv)     Whether the complaint appears to be intended to harass the

Complaints Service lawyer; or

(v)       Where the complaint is otherwise lacking in substance and is not a complaint of a type intended to be subject to the complaints and disciplinary processes in Part 7 of the Act;

d.In the event that a complaint is made about the Complaints Manager, then the consideration of the complaint discussed in points (b) and (c) above should be undertaken by the Director of Regulatory Affairs or  the  equivalent  person  at  senior  executive  level  at  NZLS responsible for regulatory matters.

[40]     The reference to a referral to the Legal Complaints Review Officer reflects the Society’s obligations under s 124(g) to provide to that Officer, copies of any complaints that the Society received about the operation of a Complaints Service.

[41]     Ms Ollivier explained that in the light of the policy adopted by the Board, the plaintiff’s various complaints were rejected by the Complaints Service, because in the Society’s view they did not constitute valid conduct or service complaints against a lawyer.

Discussion

[42]     The starting point must of course be the language of the Act.  Section 135(1)

provides that:

If the complaint relates to a lawyer … the complaint must be referred by [the

Complaints Service] to a Lawyers Standards Committee.

[43]     Each of Mr Deliu’s relevant communications to the Complaints Service is couched in clear terms.  It is not in dispute that each amounts to a “complaint” for the purposes of s 135.

[44]     Mr Collins, for the defendants, argues that none of Mr Deliu’s complaints ought to be investigated because each relates to the discharge by the lawyers concerned of certain regulatory and disciplinary functions as prescribed by the Act. Lawyers carrying out such roles were never intended, he argues, to be covered by the complaints regime,  and  so Mr Deliu’s  complaints were properly rejected by the Complaints Service at the outset.

[45]     I am not in this judgment concerned with whether Mr Collins’ argument is right, insofar as he claims that lawyers engaged in regulatory and disciplinary activities are outside the Act’s disciplinary provisions.  I am concerned solely with process arguments.

[46]     Assuming for present purposes that Mr Collins is right, it does not in my view  follow  that  the  Complaints  Service  has  jurisdiction  to  reject  a  complaint. Section 135(1) imposes a mandatory obligation on the Complaints Service to refer any complaint relating to a lawyer to a Lawyer’s Standards Committee.  A Standards Committee in turn has jurisdiction to take no further action on the complaint if it is of the opinion that it is “frivolous or vexatious or is not made in good faith”.

[47]     In  my  view,  that  power  is  amply  wide  enough  to  enable  a  Standards Committee to take no action on a complaint, if it concludes that it does not fall within the ambit of the Act’s complaint procedures.  In those circumstances, it would be a vexatious complaint.  Moreover, the discretion contained in s 138(2) to take no further action in any case where, following investigation it would be “unnecessary or inappropriate”  to  do  so,  provides  a  further  basis  upon  which  the  Standards Committee could conclude that it ought to do nothing further about a complaint that falls outside the statutory scheme.

[48]     That conclusion appears to me to be required by the language employed by the Legislature.

[49]     I turn to consider Mr Collins’ other arguments.   His principal argument is succinctly set out in his synopsis of submissions as follows:

10.      It has become necessary to assert the limits and boundaries of the

Society’s duties in this area for the following reasons:

(a)       It is characteristic of the complaints regime under Part 7 of the Act, by comparison to the former regime under the Law Practitioners Act

1982,  that  all  complaints  (validly  established  as  such)  must  be

submitted to a Standards Committee and made the subject of a final decision or determination, with a right of review to the Legal complaints Review Officer.  There is no discretion to refuse a valid complaint;

(b)       The purpose of part 7 is more directly focused on the protection of clients and confidence of the public in the legal profession than was the equivalent part of the 1982 Act.  To achieve those purposes, the Complaints Service and Standards Committees must provide a regulatory regime that is responsive to consumer concerns:16

(c)       The resources of the Complaints Service and Standards Committee must be devoted to the investigation and determination of complaints with the objectives of consumer protection and the maintenance of confidence in the legal profession;

(d)       Complaints of the type with which this case is concerned have the opposite effect.  They are a distraction from the statutory purposes and tend to erode rather than promote public confidence in the legal profession.   They are appropriately characterised as unseemly in- fighting in the professional regulatory context and they inevitably have a constraining and distracting effect on the very people required to operate the Complaints Service for the public good.  If allowed to proceed, they will be a significant drain on limited resources both within the Complaints Service and in the Standards Committees themselves;

(e)       Complains  about  persons  engaged  in  the  performance  of  the regulatory functions of the Law Society itself, the Lawyers Complaints Service, and Standards Committee, have nothing to commend them in consumer protection terms and are not complaints of the type for which the regime in Part 7 was intended;

(f)      The complaints are retaliatory, in all cases being a response to disgruntlement or objection being taken to regulatory or disciplinary decision-making by the plaintiff; and

(g)       They  are  a  duplication  of  other  more  obvious  and  compelling processes available for the redress of the plaintiff’s grievances, if he is entitled to redress at all.

11.       There is also  a  significant  element  of  unfairness,  for  the  person complained  against,  in  the  Complaints  Service  being  obliged  to accept complaints which on a proper interpretation are not legitimate complaints under s 132.  That is because of the significant burdens involved in responding and because any complaint, whether it has merit  or  not,  might  be  relevant  in  the  context  of  a  lawyer’s application to hold office or to acquire a particular status in the legal profession or elsewhere.   It is accepted that the burden or inconvenience to persons complained against is of course not sufficient,  on  its  own,  to  say  that  a  complaint  is  improper  or ineligible.   However, the oppressive quality of these complaints is relevant to the wider issue concerning the misuse of the Complaints Service, as will be discussed later in these submissions.

[50]     While Mr Collins’ argument attracts a measure of sympathy, and rests upon

the authority of the Board’s policy resolution  of 24 July 2009, it cannot in my

16 Orlov v New Zealand Law Society & Ors (No.8) [2012] NZHC 2154 at [40].

opinion  justify  the  approach  adopted  by  the  Complaints  Service  to  Mr Deliu’s

complaints.

[51]     The difficulty for the Society is that the Legislature has chosen to prescribe, in fine detail, the procedure to be adopted when complaints are processed.  It is plain beyond any doubt, in my opinion, that Parliament intended that every complaint, however weak or misconceived, must be referred to a Standards Committee for consideration and determination.   The role of the Complaints Service is plainly administrative in my view.

[52]     Moreover, two important consequences would flow from a departure from the strict statutory scheme.  First, some complainants would be deprived of the right to have their complaints determined by a Standards Committee, which must in every case include at least one lay person.  If Mr Collins is right, then complaints are liable to  be  rejected  administratively  without  the  involvement  of  any member  of  any Standards Committee.

[53]     Second, where complaints are determined by a Standards Committee, there is a right of review by the Legal Complaints Review Officer of a decision to take no action on a complaint.17    That right is not available where complaints are simply rejected administratively by the Complaints Review Service.

[54]     In my view, the scheme of the Act is too clear to justify the approach for which Mr Collins contends.

[55]     In  an  ancillary  submission,  Mr  Collins  argues  that  the  relatively  wide language and purpose of s 132 should not be interpreted as in effect granting a licence to invoke the apparatus of the Complaints Service and Standards Committees on the mere assertion of a complaint, just because the person complained against holds a practising certificate and is therefore a lawyer.

[56]     Shortly put, Mr Deliu’s argument is that s 7(1)(b)(ii) of the Act, upon which he principally relies, is capable of catching any conduct engaged in by a lawyer, and

17 The Act, ss 192-194.

that it is for the Standards Committee and not the Complaints Service to determine whether or not the complaint is established.

[57]     Mr Collins says this interpretation is contrary to the underlying statutory purpose because it permits both distraction and wastefulness of resources which are calculated to hinder, rather than promote, the consumer protection objectives of the statutory regime.

[58]     In my view, this argument carries the first defendant no further. At a practical level there is a degree of commonsense in what Mr Collins says, but his approach flies in the face of the clear statutory language.  The answer, if any, lies in statutory amendment.

[59]     Mr Collins refers also to the existence of statutory immunities for officers of the Society and members of Standards Committees who are protected by law from criminal or civil liability when they act in good faith.18     Had those immunities extended to complaints under the Act, then there would have been more substance in this argument.  But in any event, it is not central to the issue I have to determine.

[60]     The question for the Court in this proceeding is simple:   Is the fate of any complaint to be determined in the first instance by a Standards Committee, or may it be rejected by a person employed by the Complaints Service? That question is not to be answered by a consideration of the extent to which those against whom Mr Deliu is complaining, have, or might have statutory immunity.

[61]     Finally, Mr Collins raises two matters which it is convenient to consider together.  First, he argues that Mr Deliu’s actions in lodging and issuing complaints for a purpose for which part 7 of the Act was not designed, amount to an abuse of process.19

[62]     Mr Collins’ second argument is that the complaints constitute, for the most part, a duplication of proceedings, and therefore a separate abuse, because in all

18 The Act, ss 185 and 338.

19 See In Re Majory [1955] Ch 600 at 623-624, Air National Corporate Ltd v Aiveo Holdings Ltd

[2012] NZHC 602.

cases but one Mr Deliu has either commenced proceedings in this Court, or the issues are before the Disciplinary Tribunal.

[63]     While these are no doubt relevant matters, in my view they do not assist Mr Collins’ argument.  If these complaints or some of them do amount to an abuse of process, then that is a matter which will undoubtedly be taken into account by the Standards Committee which ought to be seized of the complaints.   A complaint which is an abuse of process is likely to be held to be vexatious and the Standards Committee may deal with it accordingly.

Result

[64]     Although  it  is  impossible  not  to  have  a  measure  of  sympathy  for  the arguments advanced by Mr Collins, the statutory position is, in my view, clear.  Any complaint  against  a  lawyer  must  be  referred  by  the  Complaints  Service  to  a Standards Committee and dealt with by that body.   There is no jurisdiction for a Complaints Service Officer to reject a complaint (provided that it is in fact a complaint) in reliance on the Board’s policy statement of 24 July 2009.   The difficulties, actual and anticipated, to which Ms Ollivier alludes in her affidavit, and which underpin Mr Collins’ argument, would need to be the subject of statutory amendment.   The present statutory language does not accommodate the first defendant’s approach.

[65]     For these reasons I hold that the plaintiff is entitled to relief.   Although counsel were agreed that declaratory relief would be sufficient, they did not address the precise terms in which any such declaration should be couched.

[66] I grant a declaration that any complaint received by the Complaints Service of the Society pursuant to s 132 of the Lawyers and Conveyancers Act 2006 (including those that are the subject of this proceeding), must be referred by that Service to a Lawyers’ Standards Committee pursuant to s 135(1) of that Act, and be determined by that Standards Committee in terms of s 137 of the Act.

[67]     Leave is reserved to counsel to apply by memorandum for a variation of the declaration should it not adequately meet the circumstances of the case.

Costs

[68]     Costs are reserved.  Counsel may file memoranda if they are unable to agree.

C J Allan J