DELIU v NATIONAL STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY [2021] NZHC 1177

DELIU v NATIONAL STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY [2021]NZHC 1177 [25 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-1438[2021] NZHC 1177BETWEEN FRANCISC CATALIN DELIUApplicantAND NATIONAL STANDARDS COMMITTEE 1OF THE NEW ZEALAND LAW SOCIETYRespondentHearing: 10 March 2021Appearances: Applicant in person (via VMR)M J Hodge and A-R C Davies for RespondentJudgment: 25 May 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 25 May 2021 at 4 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Meredith Connell (Auckland) for RespondentIntroduction[1] Mr Deliu is a former lawyer who practised in New Zealand as a barrister andsolicitor of this Court. Mr Deliu is no longer resident in New Zealand.[2] The Lawyers and Conveyancers Act 2006 ("the Act") provides a regulatoryregime for lawyers. The respondent is a Lawyers Standards Committee establishedby the New Zealand Law Society as part of its complaint service as required by theAct.1[3] One of the respondent's functions under the Act is:2 to investigate of its own motion any act, omission, allegation, practice, orother matter that appears to indicate that there may have been misconduct orunsatisfactory conduct on the part of a practitioner or any other person whobelongs to any of the classes of persons described in section 121:[4] On 9 November 2017, the respondent resolved to commence an own motioninvestigation of Mr Deliu. The investigation continues. Procedurally, it is still in itsearliest phase.[5] Mr Deliu contends that the investigation has been going on for too long. Heapplies for judicial review of the respondent's decision to continue the investigation,pleading that the investigation breaches his right to natural justice (in five respects),3that there is no jurisdiction for the investigation in one of the areas investigated, thatthere has been a failure to take into account relevant considerations (privilege), andthat no practical purpose can be achieved by the investigation.[6] The remedies sought by Mr Deliu (who represents himself) are:i. A judgment for the plaintiff;ii. An order in the form of certiorari quashing the defendant'sinvestigation;1 The Lawyers and Conveyancers Act 2006, s 126(1).2 Section 130(c).3 Section 142(1) of the Act requires a Standards Committee to exercise its duties, powers andfunctions in a way that is consistent with the rules of natural justice.iii. A declaration (in accordance with the opinion of this HonourableCourt) that the defendant breached the plaintiff's human right to dueprocess;iv. A direction that the defendant enter a § 138 no further actiondetermination in the file in question;v. A permanent injunction enjoining the defendant from further actionagainst the plaintiff over any matters;vi. Costs; and/orvii. Such other relief as deemed fit.[7] The respondent abides the Court's decision. The New Zealand Law Societyhas been appointed to act as contradictor.[8] At the hearing before me it was accepted by Mr Deliu and by Mr Hodge forthe contradictor that the two key grounds for judicial review are breach of naturaljustice through delay and lack of jurisdiction. I will consider them first.Delay (the first cause of action)[9] Excessive delay by a regulatory body in carrying out an investigation can resultin a court staying the investigation or otherwise bringing it to an end. The focus of theinquiry is usually the degree of prejudice the delay has caused to the person beinginvestigated. At some point, prejudice can be presumed from the length of the delay.[10] The regime of the Act is relevant. First, the contradictor accepts the respondenthas an obligation to carry out own motion investigations expeditiously. There is nostatutory requirement to do so, but s 140 of the Act, which applies to complaints byothers, provides:140 Inquiry by Standards CommitteeIf a Standards Committee decides to inquire into a complaint, it must inquireinto it as soon as practicable.[11] Mr Hodge accepts that no lesser standard can apply to own motioninvestigations.[12] I agree. I think it relevant also that the first two purposes of the Act will bebest served by expeditious investigations:3 Purposes(1) The purposes of this Act are—(a) to maintain public confidence in the provision of legalservices and conveyancing services:(b) to protect the consumers of legal services and conveyancingservices:[13] I note that in Chow v The Canterbury District Law Society,4 the Court ofAppeal reached a similar view when considering s 101 of the Law Practitioners Act1982. That section required a complaint against a lawyer to be inquired into "as soonas practicable". Mr Chow's case was that after an inquiry into a complaint against himthere was excessive delay in bringing a charge against him. There was no statutoryrequirement for a charge to be brought in a timely way. Nevertheless, the Court wassatisfied that there was a statutory obligation to proceed promptly, "perhaps bettercaptured in the notion 'as soon as practicable'."5The history of the investigation[14] The respondent decided to commence its own motion investigation on9 November 2017 having received and considered two documents emanating from aMs S. The first document was a statement Ms S provided to the New Zealand Policedated 17 October 2017. The second was her affidavit of 1 November 2017 filed in adisciplinary proceeding brought against Ms S by the respondent.[15] At the same time, the respondent commenced an own motion investigation intoMr Richard Zhao and Richard Zhao Lawyers Ltd (which traded as Amicus Law).[16] The allegations by Ms S against Mr Deliu overlapped her allegations againstMr Zhao and the company.4 Chow v The Canterbury District Law Society and The New Zealand Law PractitionersDisciplinary Tribunal [2006] NZAR 160 (CA).5 At [28].[17] On 15 November 2017 the respondent appointed Ms McMahon as investigator.[18] Events thereafter are summarised from the respondent's point of view byMr Hodge in his submissions:2.8 Progress during the initial stage of the investigation was slowed bydifficulties arising from the fact there were extant criminal anddisciplinary proceedings against [Ms S].6 The Committee reasonablyconsidered that it needed to obtain a statement from [Ms S] that wasprovided for the express purpose of the Committee's own motioninquiries rather than relying solely on (or disclosing at that stage)evidence provided by [Ms S] in criminal proceedings and separatedisciplinary proceedings.2.9 [Ms S's] focus, perhaps understandably, was on her criminal anddisciplinary proceedings rather than on the Committee's own motioninquiry in relation to the applicant. Following the disposal of [Ms S's]criminal and disciplinary proceedings, Ms McMahon was finally ableto obtain a statement from [Ms S] provided for the purpose of theCommittee's own motion inquiries. This was on 10 August 2018.2.10 The applicant had made objections to Ms McMahon's appointment asinvestigator. These objections were rejected by the Committee.However, on 24 August 2018 Ms McMahon's appointment wasrevoked. The Committee considered it was necessary to do so becauseMs McMahon had been appointed as a member of the Lawyers andConveyancers Disciplinary Tribunal.2.11 The need to revoke Ms McMahon's appointment, and its timing, wasunfortunate. Ms McMahon's investigation was underway. She hadpreviously provided an interim report and had just been able to obtaina statement from [Ms S] for the purpose of the Committee's ownmotion inquiries. It was at this point, when the investigation couldmove forward with a statement obtained from [Ms S], that theCommittee lost the benefit of Ms McMahon's services and herknowledge of the matter and had to appoint a new investigator.2.12 A Law Society employee, Philip Strang, was appointed as the newinvestigator on 24 August 2018.2.13 Mr Strang commenced his investigation and provided an interimreport to the Committee on 25 March 2019. This report addressed anumber of matters as required in the Committee's instrument ofappointment, including:(a) Allegations in relation to:(i) unauthorised billing;6 [Ms S] was convicted and discharged on 26 January 2018. The District Court made a namesuppression order in [Ms S's] favour. The Lawyers and Conveyancers Tribunal released its penaltydecision in respect of [Ms S] on 8 May 2018.(ii) taking fees by deduction;(iii) failing to account to clients.(b) The applicant's association with Amicus Law.(c) Administration and management of Amicus Law.(d) Inquiries made of the Registrar-General of Land.2.14 Mr Strang's interim report also noted areas he was having difficultywith or had otherwise not been able to substantially progress.2.15 On 6 March 2019 the applicant raised what he termed "ultra vires"issues with the "whole enquiry". Correspondence between theapplicant and the Complaints Service on behalf of the Committeefollowed on that and other issues raised by the applicant in April andJune 2019.2.16 In August and September 2019 the Committee decided that it wasnecessary to appoint another investigator to work together withMr Strang to address outstanding matters in the investigation and thatthe scope of the investigation could be narrowed down to three areasin light of the matters already reported on by Mr Strang to that point.2.17 The first area for further investigation was the applicant's associationwith Amicus Law between March 2012 and June 2017 and inparticular whether they had breached rules prohibiting the applicant,as a barrister sole, from:(a) practising in partnership or in an incorporated firm;(b) inducing other persons to suppose there was a connectionbetween the applicant and any other legal practice;(c) having an arrangement that restricts the freedom of a solicitorto select such counsel as the solicitor or their client selects.2.18 The second area for further investigation focused on the applicant'srepresentation of employees/staff members between August 2016 andJune 2017 ([Ms S] and Orison Wu in particular). The third area relatedto whether the applicant had practised while suspended between1 February 2017 and 30 June 2017.2.19 Jack Cheng was appointed by the Committee to work with Mr Strangto complete the investigation on the three areas referred to inparagraphs 2.17 and 2.18 above. Instruments of appointment wereissued to Mr Cheng and Mr Strang reflecting this narrower scope ofinquiry.2.20 The Committee advised the applicant of Mr Cheng's appointment asinvestigator on 9 April 2020.2.21 On 20 June 2020, the applicant raised an objection to the appointmentof Mr Cheng.2.22 The Committee sought a response from Mr Cheng, which wasreceived by the Committee on 6 August 2020. The Committee soughtthe applicant's response to Mr Cheng's response on 14 September2020.2.23 On 19 November 2020, taking into account all the informationprovided by Mr Cheng and the applicant, the Committee decided torevoke the appointment of Mr Cheng.2.24 Ms Robertson QC agreed to be appointed as investigator in place ofMr Cheng and has been appointed accordingly. The scope of theinvestigation for Ms Robertson and Mr Strang remains the three areasreferred to in paragraphs 2.17 and 2.18 above. The Court will note thatthe letter sent on behalf of the Committee to Ms Robertson dated19 November 2020 states as follows:This file has been open for some time and so your timelyattention to this matter would be greatly appreciated. TheStandards Committee has signalled to the parties that it expectsto receive the investigators' final report within a matter ofmonths.2.25 It is to be expected that Ms Robertson understands this imperative andwill proceed accordingly.[19] At the hearing before me, Mr Hodge was not able to say whether Ms Robertsonhas made any progress with the investigation, nor what her intentions are. There is noaffidavit from Ms Robertson.The nature of the allegations[20] It is necessary to consider the nature of the allegations against Mr Deliu. Atthe risk of over-simplifying the law, serious and complex allegations will justify alonger investigation than minor and simple allegations. For example, Kós J (as hethen was), in Bates v Valuers Registration Board,7 stayed a charge because of unduedelay partly on his assessment that the complaint "was not a difficult complaint toevaluate"8 and it "concerned a relatively minor conduct matter".9[21] Ms S was employed by Amicus Law in 2014 at a time when, she says,Mr Richard Zhao and Mr Deliu were partners in the firm. Her statement of 17 October7 Bates v Valuers Registration Board [2015] NZHC 1312, [2015] NZAR 1080.8 At [84].9 At [86].2017 and affidavit of 1 November 2017 made allegations which caused the respondentto require Ms McMahon to inquire into and report upon the following issues:Client care5. In respect of the professional duties owed to clients by Mr Zhao,Amicus Law and Mr Deliu, whether there is any evidence of anyconduct and/or client care issues concerning whether they may have:a. Any practice (past or present) of acting for clients in conflictof interest situations10, including but not necessarily limitedto in respect of criminal, civil, property conveyancing,employment, family and immigration matters.b. Any practice (past or present) of charging clients more than afair and reasonable fee for the services provided11.c. Inappropriately invoiced clients in relation to monies held ontrust.d. Failed to account properly for money or other valuableproperty to the person on whose behalf the money or othervaluable property is held12.e. Threatened or exerted undue pressure on clients:i. to pay unpaid fees which are disputed by such clients;ii. not to terminate a retainer or to reengage them aftertermination of the retainer13; and/oriii. not to complain to the New Zealand Law Society inrelation to conduct and/or client care issues raised bysuch clients.f. Failed to respond appropriately to any written request (by aformer client) to uplift documents without undue delaysubject only to any lien that they may claim14.g. Entered into, or attempted to enter into, any inappropriatesettlement agreements with clients in relation to conductand/or client care issues raised by such clients.10 Rules 5, 5.4 and 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care)Rules 2008 ("the Rules").11 Rules 9 and 9.1 of the Rules.12 Section 111 of the Act.13 Rule 4.4 of the Rules.14 Rule 4.4.1 of the Rules.Administration and management of Amicus Law6. In respect of the administration and management of Amicus Law,whether there is any evidence of any conduct and/or client care issuesconcerning whether Mr Zhao, Amicus Law and/or, if applicable,Mr Deliu may have:a. Failed to ensure that the conduct of the Amicus Law practiceand the conduct of employees is at all times competentlysupervised and managed15.b. Threatened or exerted undue pressure on employees and/orfellow business partners/directors, including whether;i. Mr Zhao and/or Mr Deliu may have threatened anysuch persons in relation to their intended cooperationwith the New Zealand Police, the New Zealand LawSociety and/or other such investigative/regulatoryauthorities.ii. Mr Zhao and/or Mr Deliu may have interfered withthe administration of justice by, for example,interfering with witnesses to matters beinginvestigated by the New Zealand Police, theNew Zealand Law Society and/or other suchinvestigative/regulatory bodies.c. Required staff or business partners to sign and send externalcorrespondence which has not been authored by the signatory.d. Acted unprofessionally or inappropriately in relation to thenature and manner in which they have employed staff(employees from overseas in particular) to work at AmicusLaw.e. Failed to comply with the Lawyers and Conveyancers Act(Trust Account) Regulations 2008 and associated statutoryprovisions in relation to the administration of the Amicus Lawtrust account, including in relation to the firm's invoicingpractices.Mr Deliu's association with Amicus Law7. The NSC also requires you to inquire into and report upon any conductand/or client care issues concerning whether there is any evidence ofMr Deliu having effectively acted as a director or principal of AmicusLaw despite his professional status as a barrister sole16.a. Is there any evidence of Mr Deliu having exercised controlover the Amicus Law practice, including in relation to theconduct of client work, firm business decisions, and staffmovements, control and supervision?15 Rule 11.3 of the Rules.16 Rules 14.2, 14.13 and 14.14 of the Rules. See too rr 11 and 11.1 of the Rules.b. The NSC requires you to inquire into Mr Deliu'sfinancial/business connection with Amicus Law. In particular,does Amicus Law pay to Mr Deliu barrister's fees in the usualmanner that can be expected between a barrister sole and afirm of instructing solicitors or, rather, is there afinancial/business connection between Amicus Law andMr Deliu which is inconsistent with Mr Deliu's professionalstatus and obligations as a barrister sole?c. Your inquiry into the issue outlined at paragraph 7.b. abovemay require you to access and review the Amicus Law trustaccount as well as Mr Deliu's private account(s).17Representation of [Ms S] and Xiaozhao Wu8. With regard to the representation of [Ms S]18 and Xiaozhao (Orison)Wu19 in relation to:a. the respective criminal charges faced by them20;b. associated civil proceedings involving [Ms S]21; andc. related professional conduct inquiries by the NSC22,did Mr Zhao and/or Mr Deliu obtain and follow [Ms S's] and/orMr Wu's instructions (as clients) on significant decisions in respect ofthe conduct of litigation and were any such instructions taken afterMs S and/or Mr Wu were informed by them of the nature of thedecisions to be made and the consequences of them23?9. Is there any evidence of acting in circumstances where there may havebeen a conflict of interest as a result of Mr Zhao, Amicus Law andMr Deliu having acting for24:a. [Ms S] and Mr Wu in the criminal proceedings New ZealandPolice v [S] & Wu25; and/orb. any of the three plaintiffs (including Mr Deliu) in the relatedcivil proceedings A Solicitor, a Company and a Barrister vNew Zealand Police26 (which appears to arise from theexecution by the New Zealand Police in August 2016 of thesearch warrant at the premises of Amicus Law and Mr Deliu'schambers).17 Section 147(2)(vi) of the Act.18 [Ms S] is a former director of Amicus Law.19 Mr Wu is a Legal Executive at Amicus Law.20 CRl-2016-004-8810: New Zealand Police v [Ms S] & Xiaozhao Wu.21 CIV-2016-404-2150: A Solicitor, a Company, and a Barrister v New Zealand Police.22 Presently comprising complaint file 15031 (So v [S]); own motion investigation file 15009 ([S]);and own motion investigation file 16737 (Wu).23 Rule 13.3 of the Rules.24 Letter from Meredith Connell to Mr Deliu dated 20 October 2016.25 CRI-2016-004-8810.26 CIV-2016-404-2150.Conduct during terms of suspension from practice10. Is there any evidence of Mr Zhao and/or Mr Deliu practising aslawyers during the terms of their respective suspensions frompractice?[22] The respondent instructed Ms McMahon to interview Ms S and other relevantcurrent or former staff members at Amicus Law.[23] On 22 February 2018, Ms McMahon filed an interim investigation report withthe respondent. It recorded a meeting she had with Ms S on 18 December 2017 whichlasted about two hours. Ms McMahon expressed the "Interim Concerns" arising outof this meeting as follows:Overcharging[Ms S] refers to overcharging in paragraphs 3.10 to 3.16 of her statement.[Ms S] specifically refers to a process of providing high fees on simple titleenquiries and Companies Office searches. [Ms S] attached to her statement aWeChat screen shot of a dialogue with a client about this (attachment "A").Recommended ActionA copy of the client's file, terms of engagement, a copy of fee rendered andtrust account printout for the client's trust be sought from Amicus Law.Stale balances in the trust account & payment arrangements for initialconsultations[Ms S] refers in paragraphs 3.15 and 3.16 to stale balances in the trust account.She says that she was under pressure to bill them which she refused to do.[Ms S] also says that initial consultations were charged on a flat fee basiswithout terms of engagement and invoices were not rendered with paymentsbeing made into a separate bank account using a separate eft-pos systemRecommended ActionThe Inspectorate is advised of the allegations along with a request to conductan audit.Practising while Suspended[Ms S] refers in paragraph 3.24 to Richard and Frank continuing to practiceduring periods of suspension. [Ms S] says that Frank would go into the officeeach day and discuss the cases with the junior litigators.Recommended ActionThat I am provided by the Law Society of the names of the junior litigators atthat time and I arrange to contact them to discuss this allegation. I propose todiscuss this with Orison Wu as according to [Ms S], he has access to the diariesof Frank and Richard.LINZ[Ms S] refers to LINZ and edealings in clause 7.8 of her statement.[Ms S] says that the firm does not retain original copies of A&I forms or aregister of such forms.Recommended ActionLINZ be advised of the alleged failure to keep original A&I forms and berequested to conduct an audit on the way in which LINZ is being managed bythe firm and in particular to investigate whether original A&I forms are keptby the firm in a separate register as required.Threats[Ms S] refers to an incident involving Ms Eva Ho in clause 11.3. [Ms S]provided further information relating to an alleged agreement reached withMs Ho.Recommended ActionI contact Ms Eva Ho to find out further details of the settlement agreement.[24] On 24 August 2018, the respondent terminated Ms McMahon's appointmentas investigator because of her appointment to the Disciplinary Tribunal. On the sameday it appointed Mr Philip Strang as investigator.[25] Mr Strang's terms of appointment were conveyed to him by the respondent ina letter dated 19 September 2018. He was required to inquire into and report upon thesame issues as was Ms McMahon. His requirements are in the same words asMs McMahon's.[26] Mr Strang's instructions differed from Ms McMahon's in that he was to:a. Report to the NSC on:i. the '2 EFTPOS systems' allegations, outlined at paragraph2.16 of [Ms S's] written statement to the NSC dated 10 August2018;ii. the overcharging of client allegations, and related non-complaint agreements with clients allegations, outlined atparagraphs 2.5 to 2.11 of [Ms S's] written statement;iii. the billing dormant balances held in the Amicus Law trustaccount allegations, outlined at paragraphs 2.5 to 2.11 of[Ms S's] written statement;iv. the conflict of interest allegations, outlined at paragraphs 2.12to 2.15 of [Ms S's] written statement;v. the 'Mr Deliu was the boss and ran Amicus Law' (even thoughMr Deliu was a barrister sole) allegations, outlined in [Ms S's]written statement; andvi. the practising while suspended allegations, outlined atparagraphs 2.16 to 2.19 of [Ms S's] written statement.b. Make contact with and seek to interview current or former staffmembers at Amicus law, such as Orison Wu, Ein Lai (Jeremy) Khooand Yiqi (Peter) Liu, in relation to the matters outlined at paragraphs2. to 11. above.c. Facilitate signed written statements (ideally in the form of swornaffidavits) from all interviewees.d. Report to the NSC in writing once the above has been carried out andawait further instructions from the NSC.[27] Mr Strang filed his interim investigation report on 25 March 2019. In it he setout the work he had performed:I have visited the premises of Amicus Law twice. Amicus Law has cooperatedand provided indirect access to its trust account records. Mr Zhao has declinedto meet with me and Mr Deliu is not resident in New Zealand so they have nothad any opportunity to answer the issues I traverse.I have also been assisted by another Inspector, Jessie Lowe. Ms Lowecompleted a number of file reviews from a sample selected by me. I haveextracted the relevant bank accounts operated by these persons and relatedentities and completed analysis of those. I have met with and interviewed anumber of persons whilst in Auckland.[28] The interim investigation report identified concerns about Mr Deliu's role as abarrister and his relationship with Amicus Law:It appears that there was no effective separation between the roles of Justitia[Mr Deliu's Chambers] and Amicus Law in a large number of files.[29] There is no allegation by Mr Strang of direct contravention by Mr Deliu of hisprofessional obligations.[30] On 8 April 2020, the respondent amended and replaced Mr Strang's instrumentof appointment. The accompanying letter from the respondent contained theseparagraphs:3. After NSC1 has received your next report, copies will likely beprovided to Mr Zhao, Amicus Law and Mr Deliu and they will beinvited to comment (see section 149 of the Lawyers andConveyancers Act 2006).4. Your timely attention to this matter would be appreciated. Whilemindful that you may not have capacity to take steps to progress thismatter until May 2020, NSC1 has signalled to the parties that itexpects to receive your final report within a matter of months.[31] Mr Strang was now required to inquire into and report on the following:a. Mr Deliu's27 association with Richard Zhao Lawyers Ltd t/aAmicus Law28 between March 201229 and June 2017 inclusive30and, in particular, whether the business/professional relationshipbetween Mr Deliu/his chambers31 and Amicus Law contravened theprofessional rules prohibiting a lawyer who holds a practisingcertificate as a barrister sole (as Mr Deliu did at the relevant time),from32:i. practising in partnership or in an incorporated law firm(unless the barrister sole is the only voting shareholder of theincorporated law firm)33; orii. alternatively, inducing persons to suppose that there is anyconnection between the barrister sole and any other legalpractice34; and/oriii. having an arrangement that restricts the complete freedom ofa lawyer holding a practising certificate as a barrister andsolicitor (as Mr Zhao did at the relevant time) to instruct anycounsel the lawyer or the client selects35.27 Mr Deliu does not hold a current practising certificate issued by the New Zealand Law Society.His previous status was as a barrister, and 'Head of Chambers', at Justitia Chambers Ltd. Refer tofootnote 11.28 Amicus Law is an incorporated law firm.29 Richard Zhao Lawyers Ltd was incorporated on 2 March 2012.30 See footnote 11.31 Justitia Chambers Ltd.32 If substantiated, NSC1 would then consider what, if any, issues of professional conduct this raisesin relation to solicitor (and principal of Amicus Law) Mr Zhao. Consistent with the rules of naturaljustice, Mr Zhao would have the opportunity to provide submissions.33 Rule 14.2(f) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules2008.34 Rule 14.13.35 Rule 14.14.b. The legal representation of employees/members of staff byMr Deliu, Mr Zhao36 and/or Amicus Law between August 2016and June 2017 inclusive.c. Whether Mr Zhao and/or Mr Deliu practised as lawyers duringthe terms of their respective suspensions from legal practice37.4. Further to paragraphs 2 and 3 above, your inquiries should address thematters outlined at paragraphs 5 to 8 below.Mr Deliu's association with Richard Zhao Lawyers Ltd t/a Amicus Lawbetween March 2012 and June 2017 inclusive5. NSC1 requires you to inquire into and report upon conduct and clientcare issues concerning whether there is any evidence of Mr Deliu havingeffectively acted as a director or principal of Amicus Law between March2012 and June 2017 inclusive despite Mr Deliu's professional status as abarrister sole38.a. Is there any evidence of Mr Deliu having exercised control over theAmicus Law legal practice, including in relation to the conduct ofclient work, firm business decisions, and staff movements, control andsupervision?b. NSCl requires you to inquire into Mr Deliu's financial/businessconnection with Amicus Law. In particular, has Amicus Lawpreviously paid to Mr Deliu barrister's fees in the usual manner thatcan be expected between a barrister sole and a firm of instructingsolicitors or, rather, was there a financial/business connection betweenAmicus Law and Mr Deliu which is inconsistent with Mr Deliu's thenprofessional status and obligations as a barrister sole?c. Your inquiry into the issue outlined at paragraph 5.b. above mayrequire you to access and review the Amicus Law trust account as wellas Mr Deliu's private account(s)39.The legal representation of employees/members of staff by Mr Deliu,Mr Zhao and/or Amicus Law between August 201640 and June 2017inclusive36 Mr Zhao is a solicitor and the sole director of Richard Zhao Lawyers Ltd, which trades as AmicusLaw.37 Mr Zhao was suspended from legal practice for 4 months, from 1 December 2016. Mr Deliu wassuspended from legal practice for 15 months, from 1 February 2017. Mr Deliu did not obtain apractising certificate from the New Zealand Law Society for the 2017/18 practising certificateyear commencing on 1 July 2017 and so your inquiry into Mr Deliu's conduct should excludeMr Deliu's conduct following 1 July 2017 See Auckland Standards Committee No.2 v Burcher[2019] NZLCDT 12 at [4]-[7] (under appeal).38 Rules 14.2, 14.13 and 14.14 of the Lawyers and Conveyancers Act (Lawyers: Conduct and ClientCare) Rules 2008. See too rr 11 and 11.1 of the Rules.39 Section 147(2)(vi) of the Lawyers and Conveyancers Act 2006.40 August or September 2016 being when NSC1 understands [Ms S] was first charged by theNew Zealand Police and 31 August 2016 being the date of commencement of the related civilproceeding A Solicitor, a Company and a Barrister v New Zealand Police CIV-2016-404-2150.6. With regard to the representation of [Ms S]41 and Xiaozhao (Orison)Wu42 in relation to:a. the respective criminal charges faced by them43;b. associated civil proceedings involving [Ms S] as a plaintiff44; andc. related professional conduct inquiries by NSC145,did Mr Deliu and/or Mr Zhao obtain and follow [Ms S's] and/orMr Wu's instructions (as clients) on significant decisions in respect ofthe conduct of litigation; were any such instructions taken after [Ms S]and/or Mr Wu were informed by them of the nature of the decisionsto be made and the consequences of them; and did Mr Deliu and/orMr Zhao comply with their duties of disclosure and communicationof information to clients46?7. Is there any evidence of Mr Deliu, Mr Zhao and/or Amicus Law actingin circumstances where there may have been a lack of independent judgementand advice and/or conflicting interests or duties as a result of Mr Deliu,Mr Zhao and Amicus Law having acting for47:a. [Ms S] and Mr Wu in the criminal proceedings New Zealand Police v[S] & Wu48; and/orb. any of the three plaintiffs (including Mr Deliu) in the related civilproceedings A Solicitor, a Company and a Barrister v New ZealandPolice49 (which appears to arise from the execution by theNew Zealand Police in August 2016 of the search warrant at thepremises of Amicus Law and Mr Deliu's chambers).Whether Mr Zhao and/or Mr Deliu practised as lawyers during the termsof their respective suspensions from legal practice8. Is there any evidence of Mr Zhao and/or Mr Deliu practising aslawyers during the terms of their respective suspensions from legalpractice50?General9. Without limiting paragraphs 2. to 8. above, NSCl requires that you, aspart of your inquiries:41 [Ms S] is a former member of staff, and director, of Amicus Law.42 Mr Wu is a Legal Executive at Amicus Law.43 CRI-2016-004-8810: New Zealand Police v [Ms S] & Xiaozhao Wu.44 CIV-2016-404-2150: A Solicitor, a Company and a Barrister v New Zealand Police.45 Including: complaint file 15031 (So v [S]); own motion investigation file 15009 ([S]).46 Rule 13.3 and Chapter 7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and ClientCare) Rules 2008.47 Refer letter from Meredith Connell to Mr Deliu dated 20 October 2016. See too Chapters 5, 6 and13 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.48 CRI-2016-004-8810.49 CIV-2016-404-2150.50 Refer footnote 11 above.a. make contact with and seek to interview current or former staffmembers of Amicus Law and/or Justitia Chambers such as [Ms S],Xiaozhao (Orison) Wu, Ein Lai (Jeremy) Khoo, Siao-Yen (Yen)Taylor, Patricia Finau and Han (Daniel) Zhang in relation to thematters outlined at paragraphs 2. to 8. above;b. facilitate signed written statements (ideally in the form of swornaffidavits) from all interviewees; andc. report to NSCl in writing once the above has been carried out andawait further instructions from NSCl.[32] Mr Cheng was appointed as investigator to assist Mr Strang on 8 April 2020with an identical instrument of appointment.[33] Mr Cheng's appointment was revoked on 19 November 2020 followingMr Deliu's objection to his appointment.[34] Ms Robertson's instrument of appointment is dated 19 November 2020. It isin the same terms as Mr Strang's amended instrument of appointment dated 8 April2020.[35] The letter to Ms Robertson accompanying the instrument of appointmentcontains the following paragraph:5. This file has been open for some time and so your timely attention tothis matter would be greatly appreciated. The Standards Committeehas signalled to the parties that it expects to receive the investigators'final report within a matter of months.Discussion[36] The respondent's investigation of Mr Deliu now focuses on whether hebreached his professional obligations:(a) By having an association with Amicus Law between March 2012 andJune 2017 incompatible with his status as a barrister sole.51(b) By representing employees/staff members between August 2016 andJune 2017.51 As summarised by Mr Hodge at 2.17 of his submissions, quoted above at [18].(c) By practising while suspended between 1 February 2017 and 30 June2017.[37] Mr Hodge's main submission in opposition to the application for stay on theground of delay is that although he acknowledges there has been lengthy andunfortunate delay in completing the investigation, this is not such an exceptional caseas to justify the granting of a stay. Mr Hodge cites Orlov v New Zealand Law Society52where the Supreme Court observed that the High Court would "not normally permitjudicial review proceedings to be heard ahead of statutory proceedings other than inexceptional cases".53[38] Orlov was an application for leave to appeal a Court of Appeal judgment inrelation to procedural decisions of Standards Committees. The passage cited byMr Hodge was in that context. There was no issue of delay.[39] Mr Hodge also relies on A Lawyer v New Zealand Law Society54 whereThomas J dismissed an application for judicial review, finding as follows:[117] There is a high bar for the availability of judicial review in preliminarydecisions such as these. The Court of Appeal in Singh described such cases as"exceptional". This is not such an exceptional case. Decision-making has not"gone seriously off the rails". In the circumstances of this case, there is aninsufficient basis for this Court to invoke its jurisdiction under the JudicialReview Procedure Act at this stage in the proceedings.(footnotes omitted)[40] A Lawyer concerned two complaints to the New Zealand Law Society about alawyer which remained unresolved after almost four years. The lawyer sought judicialreview of the Standards Committee's decisions to inquire into, and appoint aninvestigator in relation to, the complaints. The lawyer also sought judicial review ofdecisions of the investigator. The issue for Thomas J was whether the decisions wereamenable to judicial review.52 Orlov v New Zealand Law Society [2013] NZSC 94.53 At [6].54 A Lawyer v New Zealand Law Society [2019] NZHC 1961.[41] The passage cited by Mr Hodge was in this context. Breach of natural justiceon account of excessive delay was not a matter raised in A Lawyer.[42] It follows that I consider neither Orlov nor A Lawyer to be of assistance in thiscase.[43] Mr Hodge submits also that this is not a case where inexplicably nothing hashappened in the investigation. He points to the interim investigation reports whichhave been issued and submits that significant progress has been made resulting in thenarrowing of the scope of the investigation.[44] In Mr Hodge's submission, Mr Deliu has not raised any specific prejudicewhich might assist him in his application.[45] Mr Hodge also relies upon one of the purposes of the Act being to maintainpublic confidence in the provision of legal services. Mr Hodge concedes it appearsunlikely Mr Deliu will return to New Zealand, but submits that cannot be said withcertainty. The maintenance of public confidence in the provision of legal services callsfor the inquiry to be completed.[46] First, I note that no inference adverse to Mr Deliu can be drawn from the facthe is being investigated. All that can be said is that he is being investigated.[47] Second, the areas of concern being investigated, while serious in terms of theprofessional obligations of a barrister sole, are not at the highest end of seriousness.It is not suspected, for example, that Mr Deliu defrauded a client, or anyone, of money.[48] Third, Mr Deliu left New Zealand on 14 January 2018 and his practisingcertificate expired during the term of his suspension. He is not a practising lawyerseeking to end an investigation where the Act's purposes of maintaining publicconference in the provision of legal services and protecting the consumers of legalservices are directly in issue.[49] The final preliminary point, again going to the Act's purposes of maintainingpublic conference in the provision of legal services and protecting the consumers oflegal services, is that this is an own motion investigation. There is no member of thepublic awaiting determination of their complaint.[50] In my view, the delay in this investigation has been exceptional. Mr Deliu wasentitled to have the respondent carry out its inquiry expeditiously, "perhaps bettercaptured in the notion 'as soon as practicable'."55 The inquiry is now well into itsfourth year. No end is yet in sight. No lawyer should be subjected to a disciplinaryinquiry with such little outcome over such a period.[51] I accept that Mr Deliu has not claimed relevant specific prejudice. He does nothave hanging over him, as he would if still practising, the Sword of Damoclesthreatening that he might be struck off. But, he wants to get on with his life and thereis stress in having to respond to and contest the investigation.[52] In this regard, Mr Deliu, characteristically, has engaged aggressively with therespondent and repeatedly challenged aspects of the investigation. However, that hasnot added materially to the delay. It was for the respondent to deal with Mr Deliu'schallenges, not the investigators. One area of delay which did arise was Mr Deliu'schallenge to the appointment of Mr Cheng as an investigator. But he was successfulin that.[53] I accept that some progress has been made in the investigation and the issueshave been narrowed. But, they are not complex issues. There is no suggestion theyrequire, for example, the services of forensic accountants. All that was required wasfor competent people to seek out and interview those associated with Amicus Lawwho could report on its functioning, the role Mr Deliu played in representingemployees/staff members, and his involvement with the firm from 1 February 2017 to30 June 2017.[54] As I have said, there is no end in sight. I have no information as to when thecurrent investigators might produce their final report. The respondent, in its coveringletter to Ms Robertson, acknowledged the need for "timely attention to this matter"and gave its expectation of receiving the investigators' final report "within a matter of55 See [13] above.months". That expectation was expressed on 19 November 2020. At the time ofhearing no report had been prepared and Mr Hodge was unable to say when it mightbe expected.[55] In deciding whether delay in investigation is so great as to warrant a stay theremust be an evaluation of all the circumstances. To an extent, the issue is akin to theproverbial question of "how long is a piece of string?" The Court of Appeal in Chowsaid:[37] a judicial assessment of all relevant factors is required. The extentof, and the effects caused by, the non-compliance and the disciplinary contextitself, are all highly relevant considerations, as is the nature and seriousnessof the charges.[56] In my assessment, the delay in this case has reached the point where a staymust be granted.[57] I am not, however, prepared to make the stay unconditional. I am mindful ofthis passage in Chow:[42] Finally, we regard the protective nature of the jurisdiction as highlysignificant, indeed necessarily decisive, in the circumstances of this case. InAuckland District Law Society v Leary HC AK M1471/84 12 November 1985Hardie Boys J, after observing that a disciplinary charge was not a criminalprosecution, continued at 18 of the judgment:(This) is a special jurisdiction having the principal protective purpose Ihave already discussed. That purpose requires that there should be a fullinvestigation of allegations of misconduct, and that the Court should beslow to adopt a course which may inhibit such an investigation. Theinterests of justice extend far beyond the interests of the practitioner.[58] Mr Deliu has been overseas since early 2018. He says he does not wish toreturn to New Zealand and he no longer has a practising certificate. Were he to returnto New Zealand, and/or seek to regain a practising certificate, then the need tocomplete the investigation to maintain public confidence and protect consumers wouldbe more acute. It might also be the case that the respondent might come intopossession of information which materially changes the nature or seriousness of thematters being investigated. I will reserve leave to the respondent to apply to lift orvary the stay if such contingencies arise.Lack of jurisdiction (the sixth cause of action)[59] I will deal briefly with this ground of review.[60] Mr Deliu was suspended from practice by order of the Disciplinary Tribunalfrom 1 February 2017 for 15 months. He deposited his practising certificate with theLaw Society as was required by s 39(5) of the Act. Mr Deliu also says (and this is notcontested) that his name was removed from the Register of Lawyers which the LawSociety is required to maintain by reg 10 of the Lawyers and Conveyancers Act(Lawyers: Practice Rules) Regulations 2008.[61] Mr Deliu's submission is that because of the above, he was not a practisinglawyer in the period 1 February 2017 to 30 June 2017 to which the investigation relatesin part. He is not, therefore, subject to the disciplinary procedures in the Act for hisactions during that period.[62] I disagree. The Act applies, relevantly, to lawyers. The definition of lawyer is"a person who holds a current practising certificate as a barrister or as a barrister andsolicitor". The fact that a lawyer is suspended from practice does not change thecurrency of their practising certificate. Suspension simply means that the lawyercannot use their practising certificate. I respectfully agree with Whata J:56[47] While it is true that a person who is suspended from practice mustdeposit his or her current practising certificate (if any) with the Law Societythat issued the certificate, a suspended practitioner is not removed from theroll of barristers and solicitors. Self-evidently, therefore, suspension does notmean that the barrister no longer holds a practising certificate. It only meansthat he or she cannot practise pursuant to it. This interpretation also aligns withthe clear protective purpose of the Act insofar as concerns the provision oflegal services.(Footnotes omitted)[63] Entry of a lawyer on the Register of Lawyers prescribed by reg 10 is not aprerequisite for practice. The Register is for public information. If Mr Deliu's namewas removed from it because he was suspended from practice then that was an error.Regulation 10(3)(h) provides that the Register must show:56 Burcher v Auckland Standards Committee 5 [2020] NZHC 43. whether the lawyer's practising certificate is currently suspended and, ifso, when the suspension took effect and when (if known) it will be lifted.[64] This ground of review fails.Remaining grounds of review[65] None of the remaining grounds of review have merit:(a) Second cause of action: breach of natural justice28. The plaintiff repeats and repleads paragraphs 1 – 27 supra andfurther says that the defendant breached the plaintiff'snatural justice rights under§ 27(1) of the New Zealand Billof Rights Act 1990 and/or § 142(1) of the Lawyers andConveyancers Act 2006 by having an amorphous fishingexpedition with sands that have shifted more than once a yearand/or the plaintiff's legitimate expectations as to the scopeof enquiry.The respondent was within its rights to commence the investigation. Itwas entitled to change the scope of the investigation as interim reportswere received. Apart from delay, the process adopted by the respondentand its investigators cannot be criticised.(b) Third cause of action: Breach of natural justice29. The plaintiff repeats and repleads paragraphs 1 – 27 supra andfurther says that the defendant breached the plaintiff'snatural justice rights under§ 27(1) of the New Zealand Billof Rights Act 1990 and/or § 142( 1) of the Lawyers andConveyancers Act 2006 by conducting an investigation foralmost three years and/or its statutory duty under§ 141(a) ofthe Lawyers and Conveyancers Act 2006 in not providingparticulars of conduct in question or alternatively in providingparticulars mixed with the conduct of others or in thealternative in constantly changing the particulars.Nothing in the conduct of the investigation sustains these criticisms.The respondent focused the investigation and kept Mr Deliu informedof the instructions to the various investigators. Mr Deliu knew whatwas being investigated and why. The respondent was not required todo anything further.(c) Fourth cause of action: Breach of natural justice30. The plaintiff repeats and repleads paragraphs 1 – 27 supra andfurther says that the defendant breached the plaintiff'snatural justice rights under§ 27(1) of the New Zealand Billof Rights Act 1990 and/or § 142( 1) of the Lawyers andConveyancers Act 2006 by conducting an investigation incircumstances where the plaintiff is not able to defend himselfadequately.The respondent adhered to the statutory processes. No charges havebeen laid. Mr Deliu's formal right to influence the investigation wasnot breached. There was nothing to defend.(d) Fifth cause of action: Breach of natural justice31. The plaintiff repeats and repleads paragraphs 1 – 27 supra andfurther says that the defendant breached the plaintiff'snatural justice rights under§ 27(1) of the New Zealand Billof Rights Act 1990 in being his own personal committee.This pleading essentially amounts to an allegation of bias on the part ofthe respondent. Mr Deliu complains that the respondent has beeninvolved with investigating his professional standards on other mattersfor years.There is no evidence of bias. The respondent was carrying out astatutory function.(e) Seventh cause of action: Failure to take into account relevantconsiderations33. The plaintiff repeats and repleads paragraphs 1 – 27 supra andfurther says that the defendant has failed to take into accountrelevant considerations that there is no r 8.4(g) Lawyers andConveyancers Act (Lawyers: Conduct and Client Care) Rules2008 waiver from either [Ms S] or Xiaoxiao "Orison" Wusuch that he cannot answer any allegations in relation to hisrepresentation of them and/or that practicing while suspendedand/or perverting the course of justice are criminal offencesover which he has the right against self-incrimination.This pleading has no substance given that the respondent was merelycarrying out an investigation. The investigation was still proceeding.The "relevant considerations" might have come into play if theinvestigators had delivered their final report and the respondent hadconducted a hearing pursuant to s 152 of the Act.(f) Eighth cause of action: Wednesbury (no practical purpose)34. The plaintiff repeats and repleads paragraphs 1 – 27 supra andfurther says that the defendant has acted unreasonably inpursuing a pointless investigation.The respondent was within its right to bring the investigation and tocontinue it. It is only the inordinate delay that breaches Mr Deliu's rightto natural justice. The position is not so extreme that it can be said thatno Committee in the respondent's position could reasonably havedecided to continue the investigation.57Decision[66] I find for Mr Deliu on the first cause of action (delay). I find that therespondent's decision to continue the investigation breaches Mr Deliu's right, innatural justice, to have the investigation completed without exceptional delay.58 I staythe investigation.[67] Leave is reserved to the respondent and to the New Zealand Law Society toapply to lift or vary the stay if circumstances going to Mr Deliu's conduct as a lawyer,or his future as a lawyer, change.[68] All other causes of action are dismissed.57 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (EWCA).58 It was not argued that there is any distinction in this area between the common law right to naturaljustice and the rights contained in the New Zealand Bill of Rights Act 1990. I see no need to opineon that matter.Costs[69] Mr Deliu represented himself. I do not know whether there are costs he canproperly claim. I allow the parties 10 working days from the date of this judgment tofile any memoranda going to costs.________________________________Brewer J