DFT v PK

[2023] NZHC 2607

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2023-443-041

[2023] NZHC 2607

BETWEEN

DFT

Appellant

AND

PK

First Respondent

RM
Second Respondent

NEW ZEALAND LAW SOCIETY

Third Respondent

Hearing:	On the papers
Judgment:	19 September 2023

JUDGMENT OF CHURCHMAN J

[1]                 The Registrar has referred to me under r 5.35A of the High Court Rules 2016 (HCR) a document that has been filed by the appellant described as “notice of appeal”.

[2]                 A reference under HCR 5.35A occurs where a Registrar believes that, on the face of a proceeding tendered for filing the proceeding is plainly an abuse of the process of court.

[3]                 HCR 5.35B sets out the Judge’s powers on a referral under HCR 5.35A. Where the Judge is satisfied that the proceeding is plainly an abuse of the process of the court it may be struck out.

[4]                 There are fundamental problems with this proceeding. It purports to be an appeal of a decision by the Legal Complaints Review Officer (LCRO) dated 31 July

DFT v PK [2023] NZHC 2607 [19 September 2023]

2023. The documentation filed claims that the appeal is being brought under the Magna Carta 1297, NZBORA 1990, HRA 1993, High Court Rules 2016, Lawyers and Conveyancers Act 2008 and Declarations Act 1908.

[5]                 Nothing in the documentation filed explains which of those statutes provides jurisdiction for an appeal from a decision of the LCRO.

[6]                 The Office of the LCRO is created by the Lawyers and Conveyancers Act. Appeals to the High Court under pt 7 of the Act, which relates to complaints and discipline, are governed by s 253 of the Act:

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.

[7]                 That is the only provision in the Act that authorises an appeal to the High Court. It is plainly inapplicable in the present case.

[8]                 Even if there were a right of appeal, the parties named as the first and third respondents could not be named as respondents to the appeal. The decision that DFT is attempting to appeal is the decision of the LCRO, not of either the first respondent or the third respondent. Even if there was a right of appeal the proper court for the filing of that would be the Auckland Court, being the court closest to where the LCRO resides.

[9]                 These proceedings are completely misconceived and are plainly an abuse of the process of the court. Accordingly they are struck out.

[10]             As required by HCR 5.35B(3) I advise that the appellant has a right to appeal this decision.

Churchman J