Deliu v Auckland Standards Committee 1
[2015] NZHC 2199
•11 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-1557 [2015] NZHC 2199
BETWEEN FRANCISC CATALIN DELIU
Appellant
AND
THE AUCKLAND STANDARDS COMMITTEE 1
First Respondent
THE NATIONAL STANDARDS COMMITTEE
Second Respondent
CIV-2015-404-1672
BETWEEN FRANCISC CATALIN DELIU Appellant
ANDTHE AUCKLAND STANDARDS COMMITTEE 1
First Respondent
THE NATIONAL STANDARDS COMMITTEE
Second Respondent
Hearing: 10 September 2015 Appearances:
Appellant in person
P J Morgan QC for the RespondentJudgment:
11 September 2015
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 11 September 2015 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
DELIU v THE AUCKLAND STANDARDS COMMITTEE 1 [2015] NZHC 2199 [11 September 2015]
[1] Mr Deliu has appealed against two decisions of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.1 Both decisions arise out of matters addressed at a hearing before the Tribunal on 20 May 2015, but with reserved decisions delivered on different dates.
[2] The first decision concerned two issues raised on applications made by Mr Deliu. The first was whether the division of the Tribunal appointed for the hearing on 20 May 2015 had been validly appointed. The second was whether all of the members, for different reasons, should have recused themselves. I will refer to this as “the disqualification appeal”.
[3] The second appeal, arising from the decision made on 23 June 2015, was an appeal against dismissal of a number of interlocutory applications made by Mr Deliu. I will call this “the interlocutories appeal”.
The disqualification appeal
[4] At the commencement of the hearing Mr Deliu submitted that the disqualification appeal should be adjourned. He noted that the substantive hearing into the disciplinary charges is to commence on 30 September 2015; that is to say, in less than three weeks. Mr Deliu said that he was concerned to ensure that nothing occurred which might jeopardise the matter proceeding on that date and he apprehended that the respondents would agree with that sentiment. Mr Morgan QC did agree. Mr Deliu submitted that there was practical utility in adjourning the disqualification appeal by considering what was likely to occur depending on my decision on the disqualification appeal, if it were to proceed now, and what was likely to occur depending on the outcome of the substantive disciplinary hearing. Mr Deliu submitted that if I dismissed the disqualification appeal that could jeopardise the 30 September fixture. On the other hand, if the disqualification appeal was adjourned, and the disciplinary charges were dismissed, that would be an end to the matter so far as the disqualification appeal is concerned. Mr Deliu acknowledged that if the disciplinary charges, or some of them, were established it was likely, or at
least possible, that the disqualification appeal would be revived.
1 The Auckland Standards Committee 1 v Deliu [2015] NZLCDT 20 (9 June 2015) and The
Auckland Standards Committee 1 v Deliu [2015] NZLCDT 21 (23 June 2015).
[5] Mr Morgan opposed the application, but it is unnecessary to summarise his points.
[6] I advised the parties that I had reached a clear view that the disqualification appeal should proceed and that I would record my reasons in the judgment to follow, to the extent that reasons were needed. Following that advice Mr Deliu said that he would withdraw the disqualification appeal, but asked that this be on the basis that there was no determination on the merits. I made clear that the appeal would be treated as abandoned and that it would not be, in effect, discontinued without prejudice to revival of the appeal. Mr Deliu sought time to reflect on the matter. Time was provided. Following the break Mr Deliu said that he had reviewed the legal position if the appeal was abandoned and he confirmed that he did not wish to proceed with the disqualification appeal.
[7] Accordingly, the disqualification appeal is dismissed. This includes dismissal of a related point arising on the interlocutories appeal, recorded in paragraph 2(d) of Mr Deliu’s notice of appeal dated 21 July 2015 (in CIV-2015-404-1672). This is the contention that the Tribunal “acted with bias in not only refusing to disclose how it obtained extra-judicial/ex parte information about the appellant but indeed refusing to even address the issue”. For the avoidance of doubt I note that this particular ground was directed to the interlocutory applications recorded by the Tribunal as application 18 and application 19 and discussed in the interlocutories decision at [69]-[85].
[8] Given Mr Deliu’s abandonment of the disqualification appeal and the part of the interlocutories appeal just noted, it is unnecessary to provide any detailed reasons for my ruling that the disqualification appeal should proceed. I was satisfied that Mr Deliu’s proposal was not a fair and efficient way of dealing with the matter. Efficiency – or utility or practicality – was the foundation for Mr Deliu’s application. In addition, the date of the substantive hearing has been known for some time. It was certainly known when both of these appeals were set down for hearing and given urgency because of the fixture. The possibility of an adjournment was raised by Mr Deliu only at the commencement of this hearing. Given the steps that had
been taken by both parties, and the Court, in respect of this appeal, it was appropriate to proceed.
The interlocutories appeal
[9] It is not in issue that the appeal is to be approached on a conventional Austin, Nichols basis; I am bound to come to my own conclusion, unless on a particular matter the Tribunal was exercising a discretion.2
[10] I do not intend to summarise all of the submissions of Mr Deliu and Mr
Morgan but have of course taken them into account.
[11] Mr Deliu’s remaining interlocutory appeals may be dealt with under three headings. These reflect the subject matter of grounds (a), (b) and (c) in paragraph 2 of the notice of appeal.
Application to strike out alternative charges
[12] These applications were discussed in the interlocutories decision at [20]-[28]. Mr Deliu submitted that charges 3 to 12 involve six sets of alternative charges and to advance these charges in the alternative is contrary to law. Mr Deliu referred to charges 3 and 4 to explain his submissions. Charge 3, excluding detailed particulars, is as follows:
The National Lawyers Standards Committee charges Francisc Catalin Deliu, lawyer of Auckland, with misconduct when providing regulated services that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable, in terms of s.7(1)(a)(i) of the Lawyers and Conveyancers Act
2006, by virtue of making allegations about the Honourable Justice Rhys Harrison that either were false, or were made without sufficient foundation, in his letter dated 5 August 2008 sent to the Chief High Court Judge, the Honourable Justice A P Randerson, that sought to have Justice Randerson direct that Justice Harrison not be allocated any case in which he appeared as counsel.
[13] Charge 4 is expressly recorded as an alternative to charge 3. Mr Deliu is
charged with “misconduct unconnected with the provision of regulated services that
would justify a finding that he is not a fit and proper person or is otherwise unsuited
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
to engaged in practice as a lawyer in terms of s 7(1)(b)(ii)” of the Act. The conduct allegedly of that nature is the same as that particularised for charge 3 – the content of the letter of 5 August 2008.
[14] Mr Deliu admits that he wrote the letter and he admits that he is the author of other documents which are the subject of other charges. The 5 August 2008 letter includes the following statement by Mr Deliu:
I note that I have not written this on my firm letterhead because it is coming from me directly, i.e. not just as a lawyer, but also as an individual whose human rights have been repeatedly and grossly breached and who seeks your assistance both as fellow officers of the Court, but also in your capacity as an official of the state who I am afforded protections from.
[15] The alternatives reflect provisions in s 7 of the Lawyers and Conveyancers Act (the Act) which define misconduct by reference to particular types of conduct that occur when a lawyer is “providing regulated services” and conduct of a person who is a lawyer but which is “unconnected with the provision of regulated services”. The former may be referred to as “professional misconduct” and the latter as “personal misconduct”.
[16] Mr Deliu submitted that alternative charges, at least in respect of these provisions of the Act, are contrary to law, logically not sustainable and expose the practitioner to double jeopardy. He submitted that a prosecutor must have sufficient evidential foundation to bring a charge and is therefore bound to proceed on the basis of that evidence which, in this context, must be that Mr Deliu either was acting when providing regulated services or he was not.
[17] Mr Deliu submitted that the respondents were, in effect, bound to elect which of the alternatives on each set of charges it would proceed with, and in all cases either professional misconduct charges or personal misconduct charges. Whilst Mr Deliu denies all charges, he submitted that, having regard to the allegations advanced, the proper course would be to withdraw the personal misconduct charges and that, given the respondents’ refusal to withdraw them, those charges should be struck out. I am satisfied that the Tribunal was correct in its decision to dismiss the strike out application. My reasons are as follows.
[18] At the forefront of Mr Deliu’s submissions on the appeal was a decision of a full court of the High Court in Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal.3 Mr Deliu relied, in particular, on the discussion at [96] to [115].
[19] The Court in Orlov did not hold, as a matter of law, that charges under the Act cannot be laid in the alternative. It would have been surprising if there had been a finding of that nature, applicable to all cases under s 7 of the Act, which is essentially what Mr Deliu contends. I agree with Mr Morgan that alternative charges “are orthodox and routine”.
[20] The Court in Orlov did say:
[113] Our conclusions differ both from how the charges were laid and from how the Disciplinary Tribunal assessed them.
When that statement is read in the full context of the judgment, including the way in which the National Standards Committee had framed the charges in the Orlov case, with personal misconduct at the forefront of the allegations, it is apparent that the Court’s reference to the way in which the charges “were laid” was a reference to this emphasis. The Court was not, as such, required to give any consideration to the legal propriety of alternative charges.
[21] In my judgment, alternative charges in this case are not objectionable. The respondents have made clear, in a memorandum from counsel dated 9 October 2014, that professional misconduct will be pursued as the primary charge. In terms of the prosecutor’s approach this is materially different from the approach of the prosecution in the Orlov case. But the respondents also point, quite properly, to residual factual uncertainty, or at least the possibility of evidence being adduced indicating that the alleged misconduct occurred in a personal capacity. This is made sufficiently apparent by Mr Deliu’s response to the charges which expressly deny, in respect of the charges in issue, that he acted in a professional capacity. There is also
Mr Deliu’s statement in the 5 August letter, earlier quoted.
3 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606.
[22] The legal elements of charges of misconduct in a professional capacity and misconduct in a personal capacity are different, but that does not give rise to any material prejudice to Mr Deliu. I asked him if the alternatives gave rise to any prejudice. He submitted that prejudice was not a principal consideration in this context, and did not point to any prejudice which I consider comes close to requiring the respondents to elect as to which charge is to be pursued (which would be the appropriate course if there was a problem, rather than the Court striking out one charge or the other). It is also to be noted that, if there was one charge only, without the alternative, and the Tribunal concluded from all of the evidence that the alternative had in fact been established, rather than the factual elements of the charge advanced, the Tribunal has power to amend. And that is what occurred in the Orlov case, on the appeal to the High Court.
[23] I am not persuaded by Mr Deliu’s other contentions. The laying of the alternative charges, involving different contentions of fact, does not give rise to any conflict which is either factually or legally untenable. The respondents are not contending that both existed at the same time. The allegation is that it was one or the other. Which it was will, in the end, turn on all the evidence. Mr Deliu submitted that the respondents are bound to make an election because they must have sufficient evidence to bring the charge. It is correct that they must have sufficient evidence to bring a charge. But that threshold requirement does not justify a proposition that there must be an election. The laying of alternative charges does not give rise to double jeopardy. That concept has no application.
[24] I also agree with the Tribunal’s observation that it is preferable, and in keeping with natural justice, that Mr Deliu is fully informed of the jeopardy he does face. This is achieved through alternative charges, coupled with the respondents’ advice that the primary charges are those of professional misconduct.
Discovery applications
[25] There were five applications for discovery. I will deal with these under relevant sub-headings referring to the party from whom discovery was sought.
Judicial Conduct Commissioner
[26] Some of the charges relate to allegations contained in complaints by Mr Deliu to the Judicial Conduct Commissioner. The misconduct is alleged to arise from the content of the letters or emails recording the complaint or complaints. Mr Deliu sought an order from the Tribunal that the Commissioner make discovery of all documents held by him other than those already in evidence in the disciplinary proceeding before the Tribunal. The Tribunal declined to make the order on the primary ground that it has no power to make orders for discovery against a non- party. Mr Morgan, in his submissions to the Tribunal, had referred to an earlier Tribunal decision and a decision of this Court in Dorbu v Lawyers and Conveyancers
Disciplinary Tribunal.4
[27] In the Dorbu decision Randerson J concluded that, because the Tribunal is a body created by statute, the only powers it could exercise are powers given to it by the statute, and there did “not appear to be” any power to issue an order for discovery. Mr Deliu submitted that those observations are obiter. It is unnecessary to explore that issue. The Tribunal’s decision in this case was also based on earlier decisions of the Tribunal. There was no argument advanced on the appeal that the Tribunal does have power to order third party discovery.
[28] I am satisfied that there was no error by the Tribunal. Mr Deliu, in an essentially passing submission, submitted that on this appeal the inherent jurisdiction of this Court could be invoked. The basis for that was not developed and I am not persuaded that the High Court’s inherent jurisdiction can be invoked to make the order for third party discovery Mr Deliu seeks. This is an appeal from the Tribunal’s decision and this Court, in an appeal, should not effectively provide for the Tribunal what the legislature has not provided. Mr Deliu submitted that High Court r 20.19(1)(a) provides that, after hearing an appeal, the Court may “make any decision it thinks should have been made”. That is a power to make any decision that the Court on appeal thinks should have been made by the Tribunal. This cannot
extend to an order on appeal that the Tribunal was not empowered to make.
4 National Standards Committee v Orlov [2013] NZLCDT 27; Dorbu v Lawyers and
Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-7381, 13 November 2009.
[29] There are further jurisdictional difficulties. The High Court’s power to make an order for non-party discovery after a civil proceeding has commenced is contained in rule 8.21 of the High Court Rules. The power cannot be exercised unless notice has been given to the non-party from whom discovery is sought. No notice was given to the Judicial Conduct Commissioner. This is not a simple technicality; it is a requirement of substance. In addition, the power in r 8.21 is discretionary. The applicant must provide a clear evidential foundation justifying the order sought against a person or organisation who is not a party to the proceeding.
[30] The lack of jurisdiciton is sufficient to dismiss the appeal in respect of this interlocutory application. But I am also satisfied that Mr Morgan was correct in his submission that the documents sought are not relevant, or at least there is no sufficient foundation to establish relevance to require a broad order for discovery as sought. The charges relevant to this application arise from the content of the letters or emails allegedly sent by Mr Deliu to the Judicial Conduct Commissioner. The alleged misconduct arises from the content of those letters, and whether or not the charge is established will depend on facts preceding the sending of the complaints to the Commissioner and the content of the complaints themselves. Other communications to or from the Commissioner after he received the complaints, or other documents obtained by the Commissioner for the purpose of assessing the complaints, are not relevant to the question whether there was misconduct in sending the complaint in the first place.
Discovery by Mr Orlov
[31] This was a further non-party discovery application and was dismissed because of the lack of power to make such an order.
[32] There are also questions of relevance. Mr Deliu submitted that because two of the sets of charges (alternatives) have a factual connection with court proceedings and files are held by Mr Orlov, it is important that Mr Deliu has an opportunity to inspect the files in their entirety. Otherwise, he submitted, the respondents can simply pick out of the files those aspects which suit the respondents in advancing the charges. In addition, he argued, the relevance of the files, or other documents on the
files which he might adduce in evidence, could only be established at the substantive hearing into the charges. This falls well short of establishing grounds for discovery if there had been power to make an order.
[33] In relation to this particular application there was also the following in the
Tribunal’s decision, in outlining submissions to it for the respondents:
[45] In terms of the order sought against Mr Orlov in particular, Mr Morgan submits that the nature of the discovery sought is unclear and that, at any rate, Mr Deliu could simply obtain the files he seeks by asking for copies from Mr Orlov directly. The Standards Committees do not object to that course of action, with two qualifications; that any affidavits which Mr Deliu seeks to rely on are affirmed by those deponents, and that those deponents are available for cross-examination.
This prompted me to ask Mr Deliu if he had made any enquiry of Mr Orlov. He said, in as many words, that he could not say with any certainty that he had asked. In my judgment it was incumbent on Mr Deliu, before making an application of this sort, to have made enquiries and, if difficulties were encountered, to have provided evidence. That could not have advanced the matter before the Tribunal because of the lack of power. But it was certainly incumbent on Mr Deliu to do that before asking this Court to make such an order which, had there been jurisdiction to do so, would have to have been considered having regard to the provisions of r 8.21. As noted above, the power to make the order is discretionary. A failure on the part of an applicant to make any effort to obtain the documents by direct enquiry could provide a reasonable basis for declining the order. In addition, there is no evidence of formal notice having been given to Mr Orlov.
Order against the second respondent
[34] Mr Deliu sought an order that the second respondent “provide the entire Court files the subject of charges 5-8”. This is a reference to a High Court file in the Auckland Registry and a file relating to an application for leave to appeal to the Supreme Court. It may be that there are other files, but they will be files held by court registries. The Tribunal said in respect of this application and these files:
[53] … These are held by the Ministry of Justice at the relevant court. The procedures for searching and copying court records are different from discovery. Mr Deliu should make an application under the relevant rules to the registrar at the relevant court or courts. That application is dismissed.
[35] I agree with the Tribunal.
Orders against the New Zealand Law Society
[36] There were two applications. In respect of both of them Mr Morgan proposed that the matter be dealt with on an informal basis, with the first step being for Mr Deliu to write directly to Mr Morgan setting out a detailed request for specific documents. The Tribunal in its conclusion said:
[52] Mr Morgan has submitted there is no demonstrated basis for a formal order.
[53] We would like to see this matter dealt with on an informal basis. We dismiss the applications and we invite Mr Deliu to write to Mr Morgan articulating as clearly as possible the discrete categories of documents of which he seeks disclosure.
[37] Following the Tribunal’s decision Mr Deliu, as I understood his advice to me, has not taken any steps to advance the matter in the way proposed. However, in discussions with Mr Deliu and Mr Morgan agreement was reached for disposal of the appeal in respect of these two applications.
[38] Mr Deliu and the New Zealand Law Society (through Mr Morgan) have agreed as follows in respect of the two applications:
(a) There is to be no formal order on the appeal.
(b) The first application, as recorded in Mr Deliu’s interlocutory
application dated 24 June 2014, was for an order as follows:
13.Discovery be ordered against the New Zealand Law Society including but not limited to any of its Standards Committees or its regulatory body as to correspondence with them and any Judge of the Courts of New Zealand about the Accused.
On this application it is agreed that copies of any communications between the New Zealand Law Society and any Judge of the higher courts (the High Court, the Court of Appeal or the Supreme Court) concerning Mr Deliu will be provided to Mr Deliu by 25 September
2015.
(c) The second application, as recorded in the interlocutory application of
24 June 2014, was for an order as follows:
14.Discovery be ordered against the New Zealand Law Society including but not limited to any of its Standards Committees or its regulatory body as to any and all investigations it has held into or about the Accused that have not to date been disclosed to him.
On this application parties have agreed that, by 25 October 2015 the New Zealand Law Society will provide to Mr Deliu a copy of any document held on New Zealand Law Society files relating to LCDT
10/10 and LCDT 8/12 and not already disclosed to Mr Deliu, excluding privileged documents or any other document subject to discovery constraints.
[39] Mr Morgan undertook to get the process for disclosure moving as expeditiously as possible. Mr Deliu advised that delivery of copies of documents to him by 25 October would be acceptable. It would nevertheless assist if the New Zealand Law Society could get the process completed before that date.
Inspection of Tribunal decisions
[40] Mr Deliu sought an order for inspection and, if he wished, copying for use in these proceedings all decisions of the Tribunal since 1 August 2008 (the date the Tribunal commenced its functions under the new Act). This referred to decisions of any type – interlocutory, substantive and penalty decisions.
[41] The Tribunal recorded Mr Deliu’s submission as to the purpose of his application as follows:
[66] The purpose of this disclosure is to demonstrate how “native son and daughter Kiwis” are treated disproportionately better than:
(a) European-Americans (such as Mr Deliu); (b) Russian Jews (such as Mr Orlov);
(c) Africans (such as Mr Dorbu); and
(d) Pacific Islanders (such as Mr Comeskey).
[42] On the appeal Mr Deliu submitted, in essence, that it was necessary to inspect the files in order to determine the extent and circumstances of what he submitted was disproportionate treatment in terms of charges brought, as well as penalties, if any.
[43] I was not persuaded that any adequate foundation for relevance was established. In substance what is sought is a form of legal research. In any event, the direct route for inspection of Tribunal decisions, to the extent that they have not been published, is by application to the chairperson of the Tribunal pursuant to regulation 36(3). This requires an application to the chair, not an application to the Tribunal division for an interlocutory order.
[44] I note that the respondents notice of opposition to this application, dated 9
July 2014, in any event did not record a formal opposition to inspection. What was recorded was as follows:
It is assumed that the lawyer charged wishes to inspect Tribunal decisions. Many Tribunal Decisions are available on a publicly accessible database. This request is unduly broad to identify what is sought. Once it is clarified, it may be a matter that the Tribunal can authorise, depending on the privacy of non-parties, and any applicable non-publication or suppression orders.
[45] I did not enquire as to whether Mr Deliu had taken any steps in response to this before the matter went to the formal hearing almost a year later. It would have been decidedly better if it had been pursued in that way, as with a number of the other applications I have already dealt with. However, given the fact that the substantive hearing is now commencing in under three weeks, I urge the Tribunal to seek to deal with this as expeditiously as possible.
Result
[46] Both appeals are dismissed.
[47] The respondents are entitled to costs, as sought, on a 2B basis. If there is any issue as to quantum, that should be referred to the Registrar in the first instance.
Woodhouse J
Parties/Solicitors/Counsel: Dr F C Deliu
Mr P J Morgan QC, Barrister, Hamilton
0
2
1