Deliu v Attorney-General

[2021] NZHC 2246

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002472

[2021] NZHC 2246

UNDER

the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908

IN THE MATTER OF

proceedings moving for an application for judicial review, writs, civil and Bill of Rights Act claims and a petition for declaratory

relief

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff/Applicant

AND

ATTORNEY-GENERAL

Defendant/Respondent

AND

DEPUTY SOLICITOR-GENERAL (CRIMINAL)

Second Respondent

CIV-2021-404-000348

UNDER

the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908

IN THE MATTER OF

proceedings moving for an application for judicial review, writs, Bill of Rights Act claims and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff

AND

SOLICITOR-GENERAL

Defendant

CIV-2021-404-000390
UNDER	the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908

FRANCISC CATALIN DELIU v THE ATTORNEY-GENERAL [2021] NZHC 2246 [30 August 2021]

IN THE MATTER OF

proceedings moving for an application for judicial review, writs, Bill of Rights Act claims and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff

AND

DISTRICT COURT OF NEW ZEALAND SITTING AT AUCKLAND

Defendant

AND

ATTORNEY-GENERAL

Second Defendant

Hearing:	23 June 2021
Appearances:	Plaintiff /Applicant– self represented D J Perkins for the Defendants
Judgment:	30 August 2021
Reissued:	29 September 2021
Effective date of Judgment:	30 August 2021

JUDGMENT OF NATION J

The 2472 and 348 proceedings

[1]    In these proceedings, Mr Francisc Deliu says that in February 2017 he was charged by the Police with two counts of assault with a weapon. In April 2018, he was charged with two counts of attempting to pervert the course of justice. Mr Deliu says that in October 2020 he requested the Attorney-General to stay the proceedings pursuant to s 176(1) of the Criminal Procedure Act 2011. The Attorney-General transferred his request to the Crown Law office.

[2]    Through judicial review, Mr Deliu sought, amongst other orders, an order compelling the Attorney-General to consider his request. Mr Deliu alleged an error that the delegation was to the Crown Law Office was an error of law, that the Attorney-

General had failed to take into account that Mr Deliu had made a complaint against the Crown Law Office with the Office of the Ombudsman and that the Attorney- General’s decision was made in breach of natural justice. Crown Law filed a statement of defence on behalf of the Attorney-General and the Solicitor-General as a proposed second defendant.

[3]    In the 348 proceedings, Mr Deliu had originally, in his statement of claim, named the Crown Law Office as first defendant and the Office of the Ombudsman as second defendant. Mr Deliu discontinued his claim against the Office of the Ombudsman. In her minute of 4 June 2021, Walker J substituted the Solicitor-General as the defendant in place of the Crown Law Office.1

[4]    Mr Deliu objects to counsel employed in the Crown Law Office acting for the Solicitor-General and the Attorney-General as a defendant in the 2472 proceedings and as the proposed second defendant in the 348 proceedings.

[5]    In a memorandum of 27 May 2021, all parties agreed the issue as to debarment of counsel from Crown Law could be brought before the Court by way of memoranda and should be considered in conjunction with determination of the same issue in other proceedings.

The 390 proceedings

[6]    In these proceedings, Mr Deliu referred to his filing charging documents with the District Court at Auckland in September 2020 documents alleging crimes of accessing a computer for a dishonest purpose and attempting by deception and without claim of right to cause a loss. The proposed charges were against a retired Judge of the High Court and then Court of Appeal, Hon Mr Rhys Harrison QC. The proposed charges arose out of a costs judgment the then Judge had made in the High Court against Mr Deliu personally. Judge Spear, in the District Court on 1 March 2021, decided the proposed prosecution was an abuse of process and directed the documents would not be accepted for filing pursuant to s 26(3) of the Criminal Procedure Act.

1      Deliu v Solicitor-General HC Auckland CIV-2021-404-348, 4 June 2021.

[7]    Through judicial review, Mr Deliu seeks various orders, including a ruling quashing the District Court Judge’s decision of 1 March 2021, and an order that Mr Deliu’s intended prosecution be reconsidered by another judicial officer.

[8]    In a memorandum from Crown Law of 7 May 2021, Mr Perkins, counsel of Crown Law, advised the District Court was likely to abide the decision of the High Court. With the retired Judge not wanting to be involved in the proceedings, Crown Law advised the Court it would be filing an application for Mr Deliu’s statement of claim to be struck out as an abuse of process.

[9]    On 1 June 2021, by memorandum, Crown Law requested that the Attorney- General be added as a proposed second defendant. This is opposed by Mr Deliu. Again, by a joint memorandum, the parties agreed that the issue as to whether the Attorney-General should be added as a defendant would be put before the Court by way of memorandum.

[10]   Crown Law has advised the Court that, if the Attorney-General is added as a second defendant in these proceedings, he will be pursuing the application to strike out the proceedings.

The minute of Walker J

[11]   After a conference with Mr Deliu appearing for himself and Mr Perkins appearing as counsel for the Attorney-General and Solicitor-General, Walker J issued a minute of 4 June 2021 recording there would be a short hearing to deal with various issues.2 The applications for determination were to be:

(a)  whether the Attorney-General should be joined as a defendant in CIV- 2021-404-390;

(b)  if such joinder is allowed, whether, on Mr Deliu’s application, counsel to assist should be appointed; and

2      Deliu v Auckland District Court HC Auckland CIV-2021-404-390, 4 June 2021.

(c)  whether Crown counsel could represent the Solicitor-General, the proposed second defendant in proceedings CIV-2021-404-348.

[12]   On 23 June 2021, there was a hearing in the High Court at Auckland. Mr Perkins from Crown Law appeared for the Attorney-General as a proposed party to proceedings and for the Solicitor-General.

Joinder of the Attorney-General to CIV-2021-404-390

[13]   The Attorney-General seeks to be joined to ensure there is a contradictor in the judicial review proceedings, the District Court abiding the High Court’s decision in judicial review. The Attorney-General says its joinder as a defendant is appropriate given his constitutional responsibility to represent the public interest in litigation, the need for the Attorney-General to uphold the constitutional principle of judicial independence and his responsibility to defend the judiciary from improper and unfair criticism.

[14]   In his submissions, Mr Deliu first focused on his complaints regarding the decision which he said was made by the District Court Judge to refuse to accept the filing of the charging documents.

[15]   Mr Deliu also says the only statutory authority by which the Attorney-General may be joined as a defendant is s 14(4), subs 4 of the Crown Proceedings Act 1950:

14   Method of making Crown a party to proceedings

…

(4)   The Crown may be joined as a defendant or third party to any civil proceedings to which it could be a defendant under this Act by joining as a defendant or third party—

(a)any government department against which, or officer of the Crown against whom, the proceedings could be instituted under subsection (2); or

(b)the Attorney-General if there is no such department or officer or if the person seeking to join the Crown as a defendant or third party has any reasonable doubt whether any and, if so, which department or officer should be so joined; or

(c)any 2 or more of them jointly.

[16]   Mr Deliu says the High Court Rules 2016 cannot be relied on to permit joinder if the effect of the Rules would be to override statute.

[17]   Mr Deliu submitted the Attorney-General is not seeking to “actively defend” the proceedings. Instead, the Attorney-General is proposing to file an application to strike out the proceedings.

[18]   He also submitted that Crown Law has been wrong in asserting that the Judge had immunity from criminal prosecution.

[19]   Mr Deliu submitted it should be for Mr Harrison QC to be served with the documents and to defend the charges in whatever way he considered appropriate. Mr Deliu asserted it would be “egregious for the Crown to effectively act as peremptory defence counsel for Mr Harrison QC”, that the joinder would violate separation of powers and would be to allow a law enforcement official to prevent others having to answer for alleged criminality.

[20]Mr Deliu considered joinder would be an abuse of process.

[21]The submissions for the Attorney-General are reflected in my analysis below.

Analysis

[22]   I do not accept that s 14 of the Crown Proceedings Act prevents the Attorney- General being joined as a defendant in the circumstances of this case. It sets out circumstances in which the Crown may be joined as a defendant or third party in civil proceedings but does not say that the Crown or the Attorney-General may be joined as defendant or third party only in those circumstances.

[23]   Section 14(2)(b) of the Judicial Review Procedure Act 2016 provides this Court with a discretion to name a person as a respondent.3

3      Judicial Review Procedure Act 2016, s 14(2)(b)(i).

[24]   As submitted for Crown Law, those provisions are supplemented by High Court Rules rr 4.27(e) and (f), 4.56(1)(b) and 7.43A(2)(a) of the High Court Rules, sch 5(2) to the Rules and this Court’s inherent jurisdiction.4

[25]   Mr Harrison has indicated he does not wish to be involved in the proceedings. Given the proceedings relate back to a decision he made as a Judge of the High Court and that it is at least seriously arguable that Mr Deliu’s intended prosecution of him was an abuse of a court process, it is constitutionally appropriate that the Attorney- General be actively involved in these proceedings to ensure there is a contradictor to the judicial review claim and to represent the public interest.

[26]   In Canterbury Regional Council v Attorney-General, Miller J surveyed a number of authorities touching on the Attorney’s role in litigation where he was not originally named as a party:5

[32] In New Zealand, the Attorney-General has occasionally intervened or been joined to represent the public interest by presenting opposing arguments where by convention the real respondent abides the Court’s judgment. Thompson v Commission of Inquiry into Administration of District Court at Wellington stemmed from criminal proceedings against Deputy Registrars accused of interfering in Court procedures for parking infringements. The Commission of Enquiry was constituted, and the Deputy Registrars moved for judicial review, trying to delay the inquiry until the criminal proceedings concluded. Orders were made by consent joining the Attorney as a respondent to represent the public interest and to present argument contrary to that of the applicants.6 The Attorney appeared as sixth respondent for the same reason in Re Erebus Royal Commission: Air New Zealand Ltd v Mahon (No 2).7

[27]In Re Rihari, Churchman J said:8

[84] The High Court of New Zealand has an extensive history of exercising its inherent jurisdiction to permit the Attorney-General to intervene in private actions where there are questions of public interest or public policy. …

4      See Enza Ltd v Apple and Pear Export Permits Committee [2001] 15 PRNZ 303 (HC); Re Rihari (Ngāti Torehina Ki Mataka Hapū/Iwi of Niu Tireni) [2019] NZHC 2658 at [70](b).

5      Canterbury Regional Council v Attorney-General [2009] NZAR 611 (HC).

6      Thompson v Commission of Inquiry into Administration of District Court at Wellington [1983] NZLR 98 (HC) at 101.

7      Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981] 1 NZLR 618 (CA) at 657.

8      Re Rihari, above n 4 (footnote omitted). See also Adams v Adams (Attorney-General Intervening) [1970] 3 All ER 572 at 577; Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235 (HC) at [240].

[28]   I accept the submission made by Mr Perkins that the proposed prosecution to which the proceedings relate engages the constitutional principle of judicial independence.

[29]   Mr Harrison, as a High Court Judge, made a decision over costs. His decision was overturned on appeal but it would be extremely rare that, simply through having a decision overturned on appeal, a Judge could have committed a criminal offence. It is seriously arguable that for a court to allow a Judge to be prosecuted for a criminal offence would undermine judicial independence.

[30]   The judicial oath which Mr Harrison took on his appointment as a Judge of the High Court was to swear that he would “well and truly serve Her Majesty, … Her heirs and successors, according to law in the office of a Justice of the High Court” and that he would “do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will”.9

[31]As has been said in the United States:10

Today it is generally recognised that the most important purpose of judicial immunity is to protect judicial independence. As the Supreme Court has said, judicial immunity is needed because judges, who often are called upon to decide controversial, difficult, and emotion-laden cases, should not have to fear that disgruntled litigants will hound them with litigation charging improper judicial behaviour. To impose this burden on Judges would constitute a real threat to judicial independence.

[32]In Fingleton v R, Gleeson CJ in the High Court of Australia said:11

However the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.

9      Oaths and Declarations Act 1957, s 18.

10 Jeffrey M Shamen “Judicial Immunity from Civil and Criminal Liability” (1990) 27 San Diego L Rev 1 at 4, referring to Charles W Wolfram Modern Legal Ethics (1st ed, West Publishing Company, St Paul (Minn), 1986) at 970; Pierson v Ray 386 US 547 (1967) at 554; Forrester v White 484 US 219 (1988) at 226-288.

11 Fingleton v R [2005] HCA 34, (2005) 227 CLR 166 at [39].

[33]   Gleeson CJ also cited, with approval, a statement from the New South Wales Court of Appeal:12

The basis of the immunity of Judges from civil proceedings in respect of their judicial acts, which has been part of the law for centuries, is based on high policy which has been put in a number of ways but in essence is that the immunity is essential to the independence of Judges. It is a policy designed to protect the citizen and not merely to give protection to judges. As it seems to me this policy is as equally applicable to criminal proceedings for the acts of judges, in the exercise of their judicial functions, as it is in respect of civil proceedings. … If the law were that any disgruntled litigant could charge a judge with contempt for being wrong and mala fide in his conclusion, or in arriving at the conclusion without any or any insufficient evidentiary basis, the independence required of judges would be greatly eroded.

[34]   I also accept that the underlying prosecution appears to be an attempt to challenge and criticise a Judge’s performance not through the process of appeal or by way of complaint to the Office of the Judicial Conduct Commissioner but through the use of criminal proceedings. The Attorney-General has a constitutional role in protecting judicial officers from such an attack when, in all the circumstances, he considers this appropriate.

[35]   I do not accept Mr Deliu’s submission that the Attorney-General does not wish to be joined as a defendant to defend the proceedings. Crown Law has said the Attorney-General intends to be actively involved in the proceedings. He will be defending the proceedings initially through pursuing a strikeout application. If the Attorney-General succeeds with that application, he will seek costs. If he fails, he is prepared to be liable for costs. Pursing the application to strikeout the proceedings is one way of defending the claim.

[36]   I also reject Mr Deliu’s submission that, in seeking to be joined as a defendant, the Attorney-General will be seeking to subvert the law in some way rather than to uphold it. The Attorney-General seeks to be joined to avoid what he claims will be an abuse of the court process and an unjustified attack on judicial independence. If a court ultimately agrees with his assertions in that regard, the Attorney-General will be upholding the rule of law rather than undermining it.

12     Fingleton v R, above n 11, at [40], citing Yeldham v Rajski [1989] 18 NSWLR 48, 45 A Crim R 1 (NSWCA) at 69.

[37]   I accordingly make an order that the Attorney-General is to be joined as second defendant in proceedings CIV-2021-404-390.

Whether the Court should appoint counsel to assist

[38]   Mr Deliu seeks the appointment of counsel to assist if the Attorney-General is joined as a defendant. Mr Deliu acknowledges he has “extensive law qualifications, legal training and litigation experience”. He says, nevertheless, at issue in these proceedings will be the important issue as to the extent to which Judges enjoy immunity from criminal prosecution. He suggests counsel to assist should be appointed to ensure there is an adequate argument from a contradictor on that issue. He asked that a Queen’s Counsel be appointed as counsel to assist.

[39]   Mr Perkins said the Attorney-General would abide the Court’s decision on the appointment of counsel to assist.

[40]   I do not consider this is a case where it would be appropriate for the Court to appoint counsel to assist essentially to enable Mr Deliu to better argue the case he wishes to put to the Court. He has legal training as well as the ability to access legal writings and case law which might be relevant and of assistance to him.

[41]   With Crown Law representing the Attorney-General, the Court will be able to expect that any authority by way of judgments or otherwise that support a proposition contrary to that being advanced for the Attorney-General will be brought to the attention of the Court. On a strikeout application, the Court will essentially be concerned with whether Mr Deliu’s proceedings are an abuse of process. The principles as to what might constitute an abuse of process are well established. At issue in these proceedings will be the underlying prosecution which Mr Deliu wished to bring against a retired Judge for a decision he made in his capacity as a Judge.

[42]   There are ethical constraints on lawyers in proceedings alleging dishonest or otherwise criminal conduct on the part of defendants without an evidential basis for doing so. The Court’s determination of the anticipated strikeout application is unlikely to require refined judicial consideration of academic arguments as to the extent of judicial immunity and the application of such a principle to the facts of this case.

Rather, it will be for Mr Deliu to show he has some evidential basis which would justify his being able to pursue what would normally be considered the extraordinary course of bringing a criminal prosecution against a Judge for a costs decision that the parties had put before him for determination.

[43]   Whether a criminal prosecution of a Judge on the basis of a decision he made is an abuse of process is likely, in the circumstances of this case, to depend on the allegations Mr Deliu wishes to pursue as to how the Judge came to make the decision he did and whether those matters were such as to properly permit him to be criminally prosecuted for the decision he came to. It will be for Mr Deliu to identify what those matters are. As to that, the advancement of his case, such as it may be, will not require the assistance of counsel who might have some expertise in matters of constitutional importance.

[44]   Mr Deliu is currently residing overseas but is intending to pursue proceedings in New Zealand that would normally require him to travel to New Zealand for the required hearings. In bringing the proceedings, he has assumed the burden of the costs involved in pursuing the proceedings as well as the risk of liability for costs either on the strikeout application or if he is ultimately otherwise unsuccessful. It does not appear Mr Deliu has sought legal aid for these proceedings.

[45]   In Erwood v Holmes, Moore J discussed the circumstances in which counsel to assist was usually appointed but concluded with the statement that:13

[40] While this catalogue is, by no means, exhaustive, it does reveal that a principled approach must be adopted when exercising what is, quintessentially, a judicial discretion. [The appointment of counsel to assist] should not be made where the primary purpose is to assist a party in the presentation of their case in circumstances where legal aid may have been refused or for some other reason the party is unable or unwilling to access a lawyer for the purpose of representation.

[46]That statement is apposite here.

13     Erwood v Holmes [2017] NZHC 1278, [2017] NZAR 971.

[47]   In these circumstances, it is not in the interests of justice or necessary that the Court appoint counsel to assist with the expectation that such counsel would argue Mr Deliu’s case for him.

[48]Mr Deliu’s request for the appointment of counsel to assist is declined.

Whether counsel from Crown Law can represent the Solicitor-General and/or the Attorney-General

Background

[49]   In February 2017, Mr Deliu was charged with two counts of assault with a weapon (two counts). In January 2018, Mr Deliu left New Zealand. He has not returned since.

[50]   In April 2018, Mr Deliu was charged with two counts of attempting to pervert the course of justice (two counts). On 17 May 2018, Mr Deliu had a telephone conversation with the Crown prosecutor, Mr Flanagan. On 4 July 2019, Mr Deliu complained of misconduct by Mr Flanagan.

[51]   On 29 July 2019, Crown Law’s Public Prosecutions Unit advised Mr Deliu it would not investigate his 4 July 2019 complaint.

[52]On 7 November 2019, Mr Deliu complained to the Ombudsman.

[53]   On 23 February 2021, a statement of claim was filed in 348 proceedings naming the Crown Law Office as respondent.

[54]   On 23 February 2021, Ms Brook (a Crown Law official) offered to reconsider the 4 July 2019 complaint. On 10 March 2021, Ms Brook advised Mr Deliu she could not identify any impropriety and no further action would be taken on the 4 July 2019 complaint.

[55]   On 4 June 2021, the Solicitor-General was substituted for the Crown Law Office as the respondent in the proceedings.

Submissions

[56]   Mr Deliu argues that the Rules of conduct and client care rules for lawyers contained in a schedule to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Conduct and Client Care Rules) do not permit lawyers to represent themselves or others where there is a conflict of interest between the lawyer and the person they are representing. He says counsel from Crown Law will be conflicted in representing the Solicitor-General. He argues counsel from Crown Law have an obligation to act as a model litigant but counsel will be in conflict because they will also be wanting to uphold decisions made by the Solicitor-General or her officials.

[57]   In submissions, Mr Deliu says he wrote to Crown Law to have a prosecutor removed from conduct of acting as counsel on the criminal prosecutions against him for assault and attempting to pervert the course of justice due to misconduct Mr Deliu alleges the prosecutor committed. Ms Brook refused his request.

[58]Mr Deliu referred to r 13.5 of the Conduct and Client Care Rules:

Independence in litigation

13.5A lawyer engaged in litigation for a client must maintain his or her independence at all times.

…

13.5.2If, after a lawyer has commenced acting in a proceeding, it becomes apparent that the lawyer or a member of the lawyer’s practice is to give evidence of a contentious nature, the lawyer must immediately inform the court and, unless the court directs otherwise, cease acting.

13.5.3A lawyer must not act in a proceeding if the conduct or advice of the lawyer or of another member of the lawyer’s practice is in issue in the matter before the court. This rule does not apply where the lawyer is acting for himself or herself, or for the member of the practice whose actions are in issue.

[59]   Mr Deliu noted the statement of McKay J for the Court of Appeal in Black v Taylor:14

14     Black v Taylor [1993] 3 NZLR 403 (CA) at 418.

It is essential to the functioning of the court as a court of justice that it must be able to prevent a barrister acting as counsel in a matter in which he has a conflict of interest, or in which he appears to have a conflict of interest such that justice will not be seen to be done.

[60]   Mr Deliu also referred to statements from Clear Communications Ltd v Telecom Corporation of New Zealand Ltd:15

(i)    removal of a lawyer is not a retrospective sanction for past misconduct but a prospective measure to safeguard the future conduct of the particular proceedings;

(ii)   a litigant should not be deprived of his or her choice of counsel without good reason;

(iii)    the Court should guard against allowing removal applications to be used as a tactical weapon to disadvantage the opposing party;

(iv)    a balance must be struck between the injustice of depriving a party of his or lawyer of choice and the injustice of allowing that lawyer to continue in prejudicial circumstances; and

(v)   although the threshold for the exercise for the jurisdiction must not be set so high as never to be attained, there must be something exceptional before removal of a lawyer can be contemplated.

[61]   Mr Deliu says counsel from Crown Law appearing in the 348 proceedings on behalf of the CEO of Crown Law, Ms Jagose QC, will, in the course of such representation, be required to argue that their colleague, Ms Brook, has not erred. He argues Crown Law counsel will be in a conflict of interest because:

(a)  they “will not be able to discharge their duty of neutrality to the Court because their client is their boss”;

(b)  they will further or in the alternative be unable to discharge a duty of objectivity to the Court because the decisionmaker in question is their colleague; and

(c)  they will not have the requisite independence required by law; the appearance alone will bring the administration of justice into disrepute.16

15     Clear Communications Ltd v Telecom Corporation of New Zealand Ltd (1999) 14 PRNZ 477 (HC) at 478-479 and 482.

16     Citing Deliu v Auckland Standards Committee 1 [2014] NZHC 2530, [2014] NZAR 1473.

[62]   The submissions of Mr Perkins for the Solicitor-General are reflected in the analysis below.

Analysis

[63]   This Court does not have original jurisdiction to determine whether counsel acting in the proceeding contravenes the Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008.17 The Court may however consider those rules in deciding whether to exercise its inherent power to disqualify counsel, where allowing them to act would impair the integrity of the judicial process.18

[64]   I accept that the rules in ch 13 of the Conduct and Client Care Rules are to ensure the client does not have divided loyalties. Subject to the lawyer’s overriding duty to the Court, the lawyer’s duty is to act in the best interests of the client without regard for their personal interests.19 Consistent with that, a lawyer must not act in a proceeding where the conduct or advice of the lawyer or another members of the lawyer’s practice is in issue.20 But the reference in that rule is to a situation where the advice or conduct of that lawyer and the appropriateness of it may affect the interests of the client who the lawyer is representing in the proceedings before the Court. In such a situation, there is the potential for conflict and the risk of a lawyer not being able to make decisions and act in the proceedings solely in the best interests of the client. That potential does not however exist where the lawyer is acting either for himself or for the practice in which the conduct occurred or the advice was given. Hence, the proviso in r 13.5.3.

[65]   I accept that Crown Law, as a government department, is not a “practice” as that term is used in the Conduct and Client Care Rules. However, by analogy, the situation here comes within that proviso.

17     Cutting v Liu [2014] NZHC 1063, [2014] 3 NZLR 224 at [43]; and Keene v Legal Complaints Review Officer [2018] NZHC 1869, [2018] NZAR 1361 at [46].

18     Black v Taylor, above n 14, at 412; and Li v Liu [2018] NZCA 528, [2019] NZAR 259 at [23], [36].

19     Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.

20     Rule 13.5.3.

[66]   Ms Brook made a decision as the Manager of the Criminal Team within Crown Law’s Criminal Group. It is deemed to be a decision of the Solicitor-General who is the head of Crown Law. It was only the Solicitor-General who was empowered to remove a prosecutor from a case. However, Ms Brook is to be viewed as the alter ego of the Solicitor-General in making that decision for her.21

[67]   Mr Perkins, as counsel from Crown Law appearing for the Solicitor-General, will be defending the decision made by the Solicitor-General. There is thus no conflict between his position as counsel in the proceedings and the interests of the Solicitor- General.

[68]   Mr Perkins for Crown Law accepts a Court may disqualify counsel from appearing where that is necessary in order for justice to be done or to be seen to be done.22

[69]   Mr Deliu argues that the judicial process will be impaired because counsel appearing for the Solicitor-General will be inhibited as an employee of Crown Law and as a subordinate to the Solicitor-General and/or the Manager of the Criminal Team from fulfilling such duties as he might have to the Court in appearing for the Crown. With reference to Attorney-General’s Values for Crown Civil Litigation 31 July 2013, Mr Perkins accepts that government lawyers may hold themselves to higher standards.23 Judges often rely on this.

[70]   In Accent Management Ltd v Commissioner of Inland Revenue, the Court of Appeal said disqualification:24

… will usually be ordered where counsel will not be able to comply with his or her duties to the Court: where there is a conflict of interest, or where there

21  In accordance with the principle enunciated in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA) at 563; and confirmed in Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [56] and [58].

22 Accent Management Ltd v Commissioner of Inland Revenue [2013] NZCA 155, [2013] 3 NZLR 374 at [32], citing Black v Taylor, above n 14.

23 Crown Law “Attorney-General’s Values for Crown Civil Litigation” (31 July 2013) https// 2013.pdf. This was a matter which was relevant but not decisive in my decision not to appoint counsel to assist on the issue dealt with earlier.

24 Accent Management Ltd v Commissioner of Inland Revenue, above n 22, at [32] and [52].

is a real risk that a client will not be represented with objectivity.25 The threshold for removal is a high one, requiring something extraordinary.26

…

The Court’s concern when determining whether to debar counsel from acting focuses squarely on whether there is a real risk that counsel will not be able to discharge his or her professional obligations to the Court. …

[71]   For the reasons I have already discussed, I do not consider there is any risk that Mr Perkins’ personal interests will potentially be in conflict with those of Ms Brook or the Solicitor-General in the proceedings. As far as Mr Perkins’ responsibility to the Court is concerned, I also consider the risk of a conflict arising that would undermine the integrity of the judicial process to be negligible.

[72]   Ms Brook and, through her, the Solicitor-General, have made their decisions in their official capacity. Although they are no doubt concerned with any challenge that would be made to their integrity or the integrity of the process by which the relevant decisions were made, they otherwise have no personal or commercial stake in the proceedings.

[73]   Consistent with the Carltona principle referred to earlier, the courts do recognise that, within a government department, administrative necessity requires that within a department the tasks and duties of particular officer holders, such as the Solicitor-General, will be exercised on behalf of the power-holder by responsible subordinate officials. Those authorised to exercise those powers will exercise them independently, bringing to bear their own experience and judgment on the matters they are dealing with.27 Courts expect this all the time from those appearing as Crown solicitors for the Crown, and as in-house counsel for government departments such as the Police, the Inland Revenue, Oranga Tamariki - Ministry for Children, the Ministry of Business, Innovation and Employment, and the Serious Fraud Office.

25 Clear Communications Ltd v Telecom Corporation of New Zealand Ltd, above n 15; Beggs v Attorney-General [2006] 2 NZLR 129 (HC); and Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 (HC).

26 Clear Communications Ltd, above n 15, at 483.

27 The position is different where the “power-holder” delegates power pursuant to statute, in which case the act of the delegate is legally the delegate’s act, not the act of the delegator: Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 21, at [59], [62].

[74]   In-house counsel appearing for government departments or for Crown Law will be free from the commercial pressures which exist for solicitors in private law firms who regularly act for a commercial clients in major litigation, or a barrister who is regularly briefed to appear as counsel for such a litigant.

[75]   Accordingly, the Court can be confident that counsel from Crown Law, appearing for the Solicitor-General in these proceedings, will not be inhibited from acting with objectivity and independence by reason of his representing the Solicitor- General or Attorney-General in the proceedings.

[76]   I accept the submission for the Solicitor-General that the integrity of the judicial process will not be impaired by Crown counsel representing the Solicitor- General. The disqualification of a Crown Law counsel appearing for the Solicitor- General is not necessary for justice to be done or seen to be done.

[77]   I accordingly decline Mr Deliu’s request to have Crown counsel disqualified from representing either the Solicitor-General or the Attorney-General in the proceedings currently before the Court.

Costs

[78]   The Attorney-General and/or the Solicitor-General have succeeded on each of the three issues I have been required to determine. As the successful party, they are entitled to costs on a category 2B basis. If there is no agreement over such costs, Crown Law is to file a memorandum as to the costs it seeks by 9 September 2021. Mr Deliu is to file his reply by 30 September 2021. Crown Law may file a reply to Mr Deliu’s submission by 12 October 2021. The memoranda are to be no longer than five pages. I will determine costs on the papers.

Solicitors:

D J Perkins, Crown Law, Wellington.

Copy to:
F C Deliu, Plaintiff/Applicant.