SANDY ZHUJUN DAI AND PROFESSIONAL CONDUCT COMMITTEE OF THE NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS XIAOYAN SONG NZ NATURALS LIMITED
[2024] NZCA 573
•8 November 2024 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA83/2023 |
| BETWEEN | SANDY ZHUJUN DAI |
| AND | PROFESSIONAL CONDUCT COMMITTEE OF THE NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS |
| Court: | Courtney and Hinton JJ |
Counsel: | Applicant in person |
Judgment: | 8 November 2024 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal is struck out.
BThe application for review is declined.
CMs Dai must pay the first respondent costs for a standard appeal on a band A basis together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
On 13 February 2023 Ms Dai filed an appeal against a decision of Churchman J striking out judicial review proceedings Ms Dai had brought against the Professional Conduct Committee of the New Zealand Institute of Chartered Accountants (PCC).[1] Despite numerous applications by Ms Dai to both this Court and the Supreme Court, no real progress has been made towards resolution of the appeal. On 21 May 2024 Mallon J directed that consideration be given to the Court striking the appeal out under r 44A of the Court of Appeal (Civil) Rules 2005 (the Rules).[2]
[1]Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2023] NZHC 4 [judicial review decision].
[2]Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants CA83/2023, 21 May 2024 (Minute of Mallon J).
Rule 44A relevantly provides:
44A Court’s power to strike out or stay appeal
(1)In addition to any express power in these rules to strike out an appeal, the Court may, on an interlocutory application or on its own initiative, make an order striking out or staying an appeal in whole or in part if—
(a)the appellant is in continuing default in complying with any of these rules or with any procedural direction or order made by a Judge; or
(b)the appellant has failed to prosecute the appeal with due diligence and dispatch; or
(c)the appeal is frivolous, vexatious, or otherwise an abuse of the process of the Court.
…
(3)The Court may make an order under this rule on the papers or after an oral hearing, as the Court thinks fit.
…
The present case engages r 44A(1)(a) and (c).
The meaning of “frivolous, vexatious, or otherwise an abuse of the process of the Court” was explained by this Court in Commissioner of Inland Revenue v Chesterfields Preschools Ltd:[3]
… a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains an element of impropriety … [one that is ] “otherwise an abuse of the process of the court” … extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a [proceeding] that has been brought with an improper motive or [is] an attempt to obtain a collateral benefit.
[3]Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89] (footnotes omitted). That case was decided under r 15.1 of the High Court Rules 2016 but the explanation applies equally to r 44A of the Court of Appeal (Civil) Rules 2005.
On 29 July 2024 Ms Dai also applied to review the decision of Mallon J to decline her request to change the name of the first respondent.[4] Ms Dai had requested that the PCC be replaced with the New Zealand Institute of Chartered Accountants. As will become clear, that application is now moot and must be declined.[5]
Background
[4]Senior Courts Act 2016, s 49(4).
[5]Ms Dai made a similar application in the Supreme Court. That Court declined the application because it was moot: see Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2024] NZSC 109 [Supreme Court recall and review decision] at [4].
The circumstances of Ms Dai’s appeal are described at some length in Mallon J’s minute.
The proceedings have their origins in complaints made to the PCC in May 2022 regarding Ms Dai’s professional conduct as an accountant. The PCC made a decision to refer the complaints to the Disciplinary Tribunal of the New Zealand Institute of Chartered Accountants. On 18 July 2022, while the Disciplinary Tribunal was considering the complaints, Ms Dai applied to the High Court for judicial review of the PCC’s decision to refer the matters to the Disciplinary Tribunal. The PCC applied to strike out the statement of claim.
The Disciplinary Tribunal’s decision was issued on 21 November 2022. The decision upheld three of the complaints. The hearing of the judicial review proceeding took place a few days after the Tribunal’s decision was released. The Judge considered that the proceedings had been filed for an improper purpose, namely an attempt by Ms Dai to frustrate the disciplinary proceedings against her by seeking to relitigate, in the context of the judicial review proceedings, matters already determined in the disciplinary process.[6]
[6]Judicial review decision, above n 1, at [31]–[32].
Ms Dai filed a notice of appeal on 13 February 2023 and, subsequently, an amended notice of appeal on 27 March 2023.[7] The amended notice of appeal sought to have the PCC decision to refer the complaints to the Disciplinary Tribunal set aside and for interim relief and a damages award. The grounds of appeal were that (1) the PCC had breached s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA) by denying that the judicial review proceedings operated as a stay of the disciplinary process (2) the Judge erred in failing to consider that the primary purpose of the proceeding was to effect a human rights consistent interpretation and (3) that the Judge failed to properly consider the causes of action raised in the proceeding.
[7]The amended notice was rejected for filing on the basis that the Court lacked jurisdiction. That decision was subsequently upheld on review: Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2023] NZCA 363 [Miller J decision].
When Ms Dai filed her notice of appeal she also applied to waive the filing fee, to dispense with security for costs and for a stay of the Judge’s costs decision.[8] Following that:
(a)The request for waiver of the filing fee and dispensation of security for costs were declined and that decision was upheld on review.[9] Ms Dai then applied for leave to appeal.
(b)Ms Dai’s request for a further extension of time to file the case on appeal as required by r 43(1B) of the Rules was declined on 11 July 2023 and that decision was upheld on review.[10]
(c)Ms Dai failed to file her case on appeal and on 25 July 2023 the appeal was deemed abandoned under r 43.
[8]Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2023] NZHC 278.
[9]Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2023] NZCA 132.
[10]Miller J decision, above n 7.
On 18 October 2023 Brown J issued a minute noting that, since the abandonment of the appeal on 25 July, Ms Dai had filed several applications for review. However, none of those applications could be determined because the appeal had been abandoned. The Judge indicated that Ms Dai could reactivate her appeal by applying for an extension of time under r 43(2).[11]
[11]Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants CA83/2023, 18 October 2023 (Minute of Brown J).
On 19 October 2023 Ms Dai filed an application for an extension of time and also sought a waiver of the filing fee for that application. The Deputy Registrar declined to waive the filing fee and that decision was upheld on review.[12]
[12]Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2023] NZCA 548.
Ms Dai did not take any steps to advance the application for an extension of time. Nor did she pay the filing fee. She indicated to the Court she did not intend to continue with the proceeding or to pay the fee until the Supreme Court had determined her leave application.
On 22 April 2024 the Supreme Court declined Ms Dai’s leave application.[13] A Deputy Registrar of this Court advised Ms Dai that, given the determination of her leave application in the Supreme Court, the filing fee for her extension of time application was payable. On 29 April 2024 Ms Dai advised the Court that she intended to bring a second application for leave to appeal to the Supreme Court and would not progress the proceeding in this Court until that second application had been resolved.
[13]Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2024] NZSC 38.
As noted, on 21 May 2024 Mallon J directed the appeal be considered for strike out under r 44A of the Rules. This Court has jurisdiction to consider striking out the appeal despite it being deemed abandoned because of the possibility of an extension of time application under r 43(2).[14]
[14]Ward v Ward [2022] NZCA 428 at [37]–[44].
The Supreme Court subsequently rejected for filing Ms Dai’s second application for leave to appeal and Ms Dai sought a review of that decision. Ms Dai then applied for recall of the decision not to grant leave. On 6 September 2024 the Supreme Court upheld the filing decision and dismissed the recall application.[15]
[15]Supreme Court recall and review decision, above n 5.
On 19 September 2024, following this matter being heard on the papers, Ms Dai requested the matter be stayed pending her second application for recall of the Supreme Court’s decision not to grant leave. On 27 September 2024 this request was declined.[16] On 2 October 2024, the Supreme Court declined Ms Dai’s second recall application.[17]
Should the appeal be struck out?
[16]Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants CA83/2024, 27 September 2024 (Minute of Courtney J).
[17]Re Dai [2024] NZSC 131.
Ms Dai has filed submissions in relation to the question of strike out under r 44A. The submissions largely address Ms Dai’s complaints about the PCC’s referral decision and about the Disciplinary Tribunal’s decision. In the High Court, the Judge explained that most of the complaints raised in the statement of claim were not matters that fell within the proper scope of judicial review proceedings. He identified those outside the limited scope of judicial review as the allegations made against the complainants, the references to defamatory conduct, forgery and other deceptive or criminal conduct.[18] Nor was the relief sought by Ms Dai within the power of the Court to award in judicial review proceedings.[19]
[18]Judicial review decision, above n 1, at [29].
[19]At [30].
We agree that the appeal that Ms Dai has filed suffers from the same deficiencies as the proceeding in the High Court. An appeal from the strike out of judicial review proceedings is not an opportunity to canvas substantive complaints about the conduct of the PCC or the Disciplinary Tribunal.
Moreover, any complaint about the PCC’s decision to refer the matter to the Disciplinary Tribunal has now been overtaken by the Disciplinary Tribunal’s own decision. Ms Dai undoubtedly has — and we assume is aware of — a right to challenge that decision. Whether there was any substance to the complaints about the PCC’s decision to refer the matter to the Disciplinary Tribunal is now moot.
In these circumstances, we consider that the appeal is an abuse of process and the proper course is to strike it out under r 44A(1)(c).
In addition, the filing fee for the extension of time application remains unpaid. Ms Dai is in continuing default in complying with the Rules and the appeal should be struck out under r 44A(1)(a).
Result
The appeal is struck out.
The application for review is declined.
Ms Dai must pay the first respondent costs for a standard appeal on a band A basis together with usual disbursements.
Solicitors:
Richard Moon, Wellington for First Respondent
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