Deliu v Connell

[2015] NZHC 2242

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000812 [2015] NZHC 2242

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff

AND

RICHARD JOHN CONNELL First Defendant

LEGAL COMPLAINTS REVIEW OFFICER

Second Defendant

Hearing:	On the papers
Judgment:	17 September 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 17 September 2015 at 12.00 noon

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

DELIU v CONNELL OR [2015] NZHC 2242 [17 September 2015]

Introduction

[1]      In this application for judicial review Mr Deliu is challenging decisions by the Legal Complaints Review Officer (LCRO) dated 27 August 2014 and 16 March

2015.    The  New  Zealand  Law  Society  (NZLS)  has  applied  to  be  joined  as  a defendant on the ground that it has a direct interest in the proceedings, namely a costs order in its favour which is under challenge, along with other aspects of the decisions.  Although it has suggested that the Court may be assisted by having the NZLS before it as a party in relation to the various allegations made against the LCRO, it has sought to be joined only in order to respond to the issues arising from the costs decision.

[2]      Mr Deliu opposes the application on the ground that joinder is unnecessary and likely to increase the complexity and cost of the proceeding.  Mr Deliu would, however, be prepared to see the NZLS granted limited intervener status.   The first defendant, Mr Connell, has not taken a position on the application.   The second defendant (the LCRO), abides the decision of the Court, as is usual.

The nature of the proceedings

[3]      The proceedings arose from a civil claim under a construction contract.  The plaintiffs commenced proceedings in which they made allegations of deceit and fraud.   Mr Connell acted for the defendants.   He wrote to the plaintiffs’ solicitor expressing concern about aspects of the claim.   He did not receive any formal responses either from the solicitor or from the barristers whose names appeared on the notice of claim, Mr Zhao and Ms Chen.   He did, however, receive informal responses from Mr Deliu writing as “head of chambers” of the chambers of which Mr Zhao and Ms Chen were members.

[4]      Mr Connell complained to the NZLS about the deceit and fraud allegations and about Mr Deliu’s correspondence.   Mr Deliu complained about the fact that Mr Connell had complained about him.  The National Standards Committee decided to take no further action on Mr Deliu’s complaint.  Mr Deliu applied for a review of

that decision.1   The LCRO confirmed the National Standards Committee’s decision.2

She  susbquently  made  costs  orders  against  Mr  Deliu  in  favour  of  Mr  Connell ($2,700)  and  the  NZLS($3,200).3    Mr  Deliu  asserts  that  both  decisions  were unlawful.  He alleges, among other things, breach of natural justice and bias.

The NZLS application

[5]      Section 10(2) Judicature Amendment Act 1972 confers the power on a judge in judicial review proceedings to direct, among other things, who shall be cited as respondents to the application and direct that the name of any party be added or struck  out.4    There  are  also  provisions  in  the  High  Court  rules  for  joinder; r 4.56(1)(b) permits joinder of any person where the person ought to have been joined or that person’s presence before the Court may be necessary to adjudicate on and settle all questions involved in the proceeding.

[6]      In Wilson v Attorney-General a Full Court of the High Court summarised the basis for joinder in the judicial review context as follows:5

Emerging from the cases is that joinder is appropriate where the party’s interests are, or may be, directly or indirectly affected by the judicial review application.  In such situations it would be unjust to decide the issues in the absence of the party so affected or potentially affected.   As Hammond J pointed out in  Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries (2002) 16 PRNZ 501 at [14], “joinder is not an all or nothing thing”.  Fairness to the plaintiff, who is having another party interposed in this proceeding, demands that the Court consider whether the joinder should be for all or only limited purposes.  The level of participation should be only what is necessary to protect the interests of the party then added.

[7]      The joinder of a person as an intervener (Mr Deliu’s suggestion) may be ordered in the exercise of the Court’s inherent jurisdiction.6    The rights of an intervener are more limited than those of a party.  In particular, an intervener does not have the right of appeal and does not have the right to make interlocutory

applications.

1 Lawyers and Conveyancers Act 2006, s 138(1)(c) and (2).

2      LCRO 36/2013, 27 August 2014.

3      LCRO 36/2013, 16 March 2015.

4      Section 10(2)(b).

5      Wilson v Attorney-General HC Wellington CIV-2010-485-001147, 27 July 2010 at [20].

6      Sanofi-Adventis Deutschland GNBH v AFT Pharmaceuticals Ltd HC Auckland CIV-2009-404-

1795, 9 August 2011 at [8].

[8]      In his decision in Independent Fisheries Ltd v The Minister for Canterbury Earthquake Recovery, Miller J summarised the principles relating to the joinder of both parties and interveners.7     The Judge identified nine principles which I summarise:

(a)      The  proper  respondent  on  an  application  for  judicial  review  is ordinarily the person whose decision or conduct is under challenge;

(b)Others may be added as respondents if their presence is necessary to allow the Court to decide the application or where the application sufficiently affects their interest to risk injustice if they are not a party;

(c)      By its nature judicial review sometimes affects the rights of non- parties but that does not necessarily mean that it would be unjust to decide the matter in their absence.   It depends on whether their presence as a party may make a difference and whether there is a risk that their intervention will draw the case away from its central issue;

(d)The pleadings should be the starting point for assessing the appropriateness of joinder;

(e)      The interests of the applicant are not to be overlooked, especially if time is a significant issue;

(f)      It may not be unjust to deny party status to an affected person since joinder is not a prerequisite to being heard as an intervener in judicial review;

(g)      Joinder as a respondent may be limited to what is necessary to protect

the added party’s interests;

(h)A respondent  will  always  be  heard,  whilst  those  who  are  merely interested may not.  So joinder may complicate or delay the hearing;

(i)       Joinder confers a right of appeal but intervener status does not.

7      Independent Fisheries Ltd v The Minister for Canterbury Earthquake Recovery [2012] NZHC

1177.

[9]      The central issue on the pleadings is the lawfulness of the decisions under challenge.   The costs decisions are not relevant to the first decision, which is concerned  with  the  substantive  issues  arising  from  Mr  Connell’s  complaint. However, the relief sought includes the quashing of the costs orders.  To that extent the NZLS has a direct interest in the judicial review proceedings.

[10]     The interests of the NZLS and those of Mr Connell coincide in relation to the costs orders.  However, Mr Connell is in a very different position because it was his complaint that led to the decisions and he has an interest in ensuring that his complaint is properly determined.  Mr Connell is represented and it can be expected that all of the issues relating to the lawfulness of the substantive decision and of the costs order insofar as they relate to him will be fully addressed.

[11]     There is,  however, no  basis on which to  think that Mr Connell will  (or should) address the issue that concerns the NZLS, namely the costs order in its favour.  Further, although the costs order in the NZLS’ favour is not significant, the lawfulness of the costs order may very well have ramifications in terms of costs being granted in other similar cases.

[12]     For this reason, I grant the application for joinder on the basis that the NZLS’ status as party and its right to be heard will be limited to the issues arising from and relating to the costs order.   I consider this course to be preferable to Mr Deliu’s suggestion of the NZLS have intervener status only because of the possibility of the issues arising that could lead to NZLS wishing to appeal.

Result

[13]     The application is granted.   I make an order that the NZLS be joined as a defendant on the basis that its right to be heard will be limited to the issues arising

from and relating to the costs order.

P Courtney J