Deliu v Executive Board of the New Zealand Law Society

[2013] NZHC 2504

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-004030 CIV-2012-404-004409 [2013] NZHC 2504

BETWEEN

FRANCIS CATALIN DELIU

Plaintiff

AND

THE EXECUTIVE BOARD OF THE NEW ZEALAND LAW SOCIETY

Defendant

Hearing:

10, 11 and 12 June 2013

Appearances:

FC Deliu in person

PJ Morgan QC for Defendant

Judgment:

25 September 2013

JUDGMENT OF TOOGOOD J

Thisjudgment was delivered by me on Wednesday, 25 September 2013 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

C Grice, New Zealand Law Society, Wellington. PJ Morgan QC, Hamilton.

FC Deliu, Auckland.

DELIU v THE EXECUTIVE BOARD OF THE NEW ZEALAND LAW SOCIETY [2013] NZHC 2504 [25

September 2013]

[1] These proceedings are two related applications for judicial review by Mr Francisc Deliu, a barrister against whom the Board of the New Zealand Law Society (“the NZLS” or “the Society”) is contemplating beginning disciplinary proceedings by applying to the Court for an order under s 268 of the Lawyers and Conveyancers Act 2006 (“the LCA”) suspending him from practice. First, Mr Deliu seeks review of a resolution of the NZLS Board dated 12 April 2012 that counsel be instructed to commence proceedings against him as outlined in advice from counsel for the NZLS dated 30 March 2012. Second, he asks the Court to review a decision by the Board to apply to the Court under Part 3(2) of the High Court Rules to inspect court files related to six court proceedings in which Mr Deliu was involved either as counsel or in some other professional capacity.

[2] This judgment should be read in conjunction with the contemporaneous judgment1 delivered in a proceeding between the National Standards Committee (No. 1) of the NZLS (“the NSC”) and the NZLS Board as applicants,  and  the plaintiff as respondent, in which the applicants have applied for access to the Court documents. In this judgment I refer to that proceeding as “the access application” and to the judgment as “the access judgment”.

The issues and result

[3]      The issues identified by the parties for determination in this judgment are:

(a)Whether the NZLS Board and/or the Society have made decisions which are reviewable under the Judicature Amendment Act 1972 (“the JAA”) in:

(i)resolving to instruct counsel to issue proceedings; and

(ii)resolving to seek access to the Court’s files.

(b)Whether any decision which is held to be reviewable ought to be set aside because:

1       National Standards Committee (No 1) v Deliu [2013] NZHC 2503.

(i)the Board has erred in law by determining that it was appropriate to make an application under s 268 of the LCA to suspend the plaintiff;

(ii)the Board acted disproportionately because such an application would have no prospect of success, and unreasonably because it was made without any admissible evidence to support it;

(iii)the Board took into account irrelevant considerations;

(iv)the Board failed to take into account relevant considerations;

(v)the Board abused its processes in reaching its decision;

(vi)the Board’s decision was ultra vires or made under an invalid delegation;

(vii)the Board breached the principles of natural justice in making the decision;

(viii)the Board was biased or its decision was predetermined; or

(ix)      the Board acted in bad faith or with an improper purpose. [4]  For the reasons given below, I have decided that:

(a)In making the resolution of 12 April 2012 to instruct counsel, and in deciding to apply to the Court for access to the specified files, the Board was not exercising statutory powers of decision which are reviewable under the JAA.

(b)Even if these steps were reviewable, relief would not have been granted due to the general reluctance of the Courts to interfere with the exercise of a discretion to prosecute, to which this present situation  is  analogous,  and  to  the  nature  of  the  decisions  as

preliminary steps taken towards possible proceedings in this Court where Mr Deliu’s fair trial interests would be protected.

(c)There is no evidence that the Board acted in bad faith in making the resolution or deciding to seek access to the Court’s files.

(d)The applications shall be dismissed.

Background facts

[5] Mr Deliu is a lawyer in practice as a barrister sole. He appears frequently before the courts and tribunals in New Zealand.

NZLS powers and functions

[6] The NZLS is a statutory body having among its functions under s 65 of the LCA the responsibility to control and regulate the practice of barristers.2 It is also bound to uphold the fundamental obligation of the legal profession to the administration of justice and related duties which lawyers owe as officers of the High Court.3 For all relevant purposes in this proceeding, steps taken by or on behalf of the Society may be regarded as steps taken by or on behalf of the Board.

[7] Under s 67(1) of the LCA, the Society has all such powers, rights and authorities as are necessary or expedient for or conducive to the performance of its regulatory functions, including the institution of prosecutions against lawyers relating to the provision of legal services.4

[8] Established under practice rules made pursuant to the LCA are several lawyers’ standards committees, including the NSC. The NSC has statutory duties, independently of the Council and Board of the Society, to take disciplinary proceedings against lawyers. The Society has its own responsibilities for monitoring the performance of the Complaints Service and of the Lawyers’ Standards Committees.

2 Lawyers and Conveyancers Act 2006, s 65(a).

3       Ibid, ss 4(a) and 65(b).

4       Ibid, s 67(2)(e).

[9] Pursuant to its statutory functions, the Society is empowered to exercise an inherent jurisdiction to strike off the Roll or otherwise discipline lawyers in their capacity as officers of the High Court. Further, s 268 of the LCA provides:

268 Inherent jurisdiction of High Court

(1)   Nothing in this Act (other than sections 266 and 267) affects the inherent jurisdiction and powers of the High Court over a person enrolled under or by virtue of this Act as a barrister and solicitor of the High Court (whether or not the person is practising as a barrister and solicitor, or as a barrister but not also as a solicitor).

(2)   Despite section 245, the High Court has, in the exercise of its summary jurisdiction, full power, on reasonable cause being shown, to suspend any from practice a person enrolled under or by virtue of this Act as a barrister and solicitor of the High Court (whether or not the person is practising as a barrister and solicitor, or as a barrister but not also as a solicitor).

[10] Section 270 of the LCA says that except as provided in Part 7, nothing in that part of the Act limits the jurisdiction of the High Court.

[11] It is unnecessary for the purposes of this judgment to provide an analysis of the disciplinary scheme under the LCA which was comprehensively reviewed by Heath J in Orlov v New Zealand Law Society5  whose account, in that respect, was

upheld by the Court of Appeal.6    The decisions under scrutiny do not concern the

statutory disciplinary procedures, except indirectly in the sense that Mr Deliu submits that the Court, in effect, should hold that the Society should be required to let the statutory processes follow their course and not act outside them by pursuing an application to the Court under s 268.

[12] The Board does not dispute that it resolved to instruct counsel in relation to a proposal to apply to this Court to suspend Mr Deliu and that it decided, or counsel decided on its behalf, to apply to the Court for access to the Court files. But a threshold issue to be determined in this case is whether, in taking either of those steps, the Board exercised a judicial function or a reviewable power.

5       Orlov v New Zealand Law Society [2012] NZHC 2154, [2013] 1 NZLR 390.

6       Orlov v New Zealand Law Society [2013] NZCA 230.

NZLS Board resolutions

[13] In an affidavit filed in support of the access application, Ms Mary Ollivier, the General Manager, Regulatory of the Society, says that the Society had noted the number and nature of complaints, inquiries and charges relating to Mr Deliu’s professional conduct. She also says that the Society observed that Judges of the High Court, other courts and tribunals have been critical of the professional conduct and performance of Mr Deliu. According to Ms Ollivier, the Society considers also that particular disciplinary proceedings which had already been instituted against Mr Deliu, or which the  NSC  resolved to take against  him, did not represent a complete picture of Mr Deliu’s professional conduct and performance. Saying that it looked at “a wider picture”  of  Mr Deliu’s  conduct  than  was  before  the  NSC, Ms Ollivier deposes that the Board of the Society concluded that there were good grounds for applying to the High Court for suspension of Mr Deliu from practice.

[14] The challenged decision of the Board to instruct counsel to commence proceedings is recorded in a resolution of the Board on 12 April 2012 which appears in the Board’s Minutes in the following terms:

The Board carefully considered advice  from Law Society counsel dated 30.3.12.

RESOLVED that counsel be instructed to commence separate proceedings against [Mr Deliu] as outlined in advice from Law Society counsel dated 30.3.12.

[15] There is no evidence of any Board resolution or other formal decision to make an application for access to the Court’s files, but Ms Ollivier says that the access application asks for permission to produce the documents inspected and copied from the court files in support of any application to this Court under s 268 of the LCA, should it be made in future.

[16] For the purposes of these proceedings, a decision by or on behalf of the Society to apply to the Court for access to the Court’s files has been assumed, by necessary inference. Mr Morgan QC did not argue to the contrary.

The cases giving rise to the Society’s decisions

[17] The access application lists six separate proceedings in this  Court  filed between 2007 and 2009. In the course of his submissions in support of the applications in these review proceedings, Mr Deliu took me through the relevant judgments issued in those six cases and the background to them. Because of the views I have reached on the merits of the judicial review applications, however, it is unnecessary to do more than list the judgments and summarise in general terms the nature of the criticisms, which are said to be either expressly or implicitly contained in the judgments, about Mr Deliu’s professional conduct.

[18]    The judgments are:

(a)L v Chief Executive of the Ministry of Social Development7 (application for judicial review following decision to make a declaration that children were in need of care and protection, Chief Executive, Minister of Justice, Attorney General and lawyer for the children cited as defendants).

(b)Berg v Franix Construction Limited8 (appeal from judgment of District Court granting summary judgment for $7,366.50 plus interest and costs in claim under Construction Contracts Act 2002).

(c)G v Chief Executive of the Ministry of Social Development9 (applications against Chief Executive, a Charity, the Attorney General and others alleging breaches of statutory duty, misfeasance in public office and breaches of fiduciary duty and negligence; strike out application by defendant).

7       L v Chief Executive of the Ministry of Social Development HC Auckland CIV-2007-404-7031, 24 July 2008.

8       Berg v Franix Construction Ltd HC Auckland CIV-2008-404-3421, 24 September 2008.

9       G v Chief Executive of the Ministry of Social Development HC Auckland CIV-2008-404-3461, 27 July 2009.

(d)Chopra v Chief Executive of the Department of Labour10 (application for judicial review).

(e)Chea v Chan11 (application by defendant for indemnity costs against plaintiff and her legal advisers).

(f)ANZA Distributing New Zealand Ltd (in liq) v USG Interiors Pacific Limited12 (liquidation proceedings, application for review of Associate Judge’s decision and other interlocutory applications); followed by ANZA Distributing New Zealand Limited (In Liquidation) v USG Interiors Pacific Limited (No. 2).13

[19] The criticisms of the conduct and performance of Mr Deliu by the courts or tribunals which are referred to by Ms Ollivier,14 so far as they can be ascertained from the judgments, include comments about misconceived proceedings or applications to the Court, unfocused pleadings, inappropriate joinder of parties, failure to comply with directions of the Court, and unduly lengthy and irrelevant submissions.

[20]  In his comprehensive review of the judgments and the criticisms which might be said to be contained in them, Mr Deliu argues that on a proper analysis of the judgments, and in some cases of the views subsequently expressed either by the Judges concerned or by the Court of Appeal, the adverse comments can be seen to be misconceived or, at least, as having far less serious implications than could conceivably justify a conclusion  that  there  may  be  good  grounds  to  suspend Mr Deliu from practice.

10      Chopra v Chief Executive of the Department of Labour  HC Auckland  CIV-2009-404-911, 30 June 2009.

11      Chea v Chan HC Auckland CIV-2008-404-2469, 3 April 2009.

12      ANZA Distributing New Zealand Ltd (in liq) v USG Interiors Pacific Ltd HC Auckland CIV- 2007-404-3474, 3 November 2008.

13      ANZA Distributing  New Zealand  Ltd (in liq) v USG Interiors Pacific Limited  (No 2)  HC Auckland CIV-2007-404-3474, 18 September 2009.

14      Summarised at [13] of this judgment.

[21] He noted,  for example, that in the High Court’s judgment in L v Chief Executive of the Ministry of Social Development15 he had been subject to strong criticism for initiating proceedings which were struck out, but that the proceeding was reinstated by the Court of Appeal.16 Mr Deliu argues that this meant inevitably that all potential criticism of his conduct by the High Court had fallen away so there could not be any possible basis upon which the Society should seek access to the file, much less take disciplinary proceedings against him.

[22] Other responses made by Mr Deliu to the alleged criticisms included identifying instances where criticism was made generally but where, on a proper analysis, it was clear that it was not he who was responsible for the criticised actions but other counsel. Mr Deliu also discussed Berg v Franix Construction Limited17 in which the Judge had been critical of 76 pages of written submissions filed the day before a hearing which were said by the Judge to be, in very large part, irrelevant and containing material of little, if any, assistance to the Court.  Mr Deliu stressed that

the submissions had been filed by him under conditions of extreme urgency due to a late change in counsel and submitted that, in any event, the criticism should be balanced against his client having succeeded on a point which occurred to Mr Deliu during oral argument.

[23] In respect of another case,18 Mr Deliu said that the criticism of him failed to take into account the unusual background to the proceeding and the fact that there was a substantial argument in favour of his client which the Court addressed before dismissing the claim. Importantly from Mr Deliu’s point of view, the argument which failed in that case was later upheld by another Judge in a different case.19 Mr Deliu referred me to an email he sent to Ms Ollivier pointing out the favourable outcome in the second case on a point of immigration law not without some complexity.

15      L v Chief Executive of the Ministry of Social Development, above n 7.

16      L v Chief Executive of the Ministry of Social Development [2009] NZCA 596.

17      Berg v Franix Construction Limited, above n 8.

18      Chopra v Chief Executive of the Department of Labour, above n 10.

19      Mistry v Minster of Immigration HC Wellington, CIV-2009-485-1610, 17 November 2009.

[24] Looking at the cases said to involve criticism of his conduct more broadly, Mr Deliu acknowledges that, upon a proper analysis of both the judgments and the entire files in the cases cited, the Board of the Society might accept his responses to the criticisms so that suspension proceedings might never be issued. But  his principal complaint is that the Board had resolved to issue disciplinary proceedings before looking at the files. That is a point which requires further consideration and I return to it at [39] – [41].

Threshold argument – are the decisions amenable to review?

Judicature Amendment Act 1972

[25] So far as is relevant, s 4 of the Judicature Amendment Act 1972 provides as follows:

4     Application for review

(1)   On an application which may be called an application for review, the High Court may ... by order grant, in relation to the exercise ... or proposed or purported exercise by any person of a statutory power, any relief that the applicant would be entitled to, in any one or more of the proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari or for a declaration or injunction, against that person in any such proceedings.

(2)   Where on an application for review the applicant is entitled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorised or otherwise invalid, the court may, instead of making such a declaration, set aside the decision.

[26] The relevant definitions of “statutory power” and “statutory power of decision” are set out in s 3 of the Judicature Amendment Act as follows:

Statutory power means a power or right conferred by or under any Act or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate—

(a)   To make any regulation, rule, bylaw, or order, or to give any notice or direction having force as subordinate legislation; or

(b)   To exercise a statutory power of decision; or

(c)   To require any person to do or refrain from doing any act or thing that, but for such requirement, he would not be required by law to do or refrain from doing; or

(d)   To do any act or thing that would, but for such power or right, be a breach of the legal rights of any person; or

(e)   To make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person:

Statutory power of decision means a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision deciding or prescribing or affecting—

(a)   The rights, powers, privileges, immunities, duties, or liabilities of any person; or

(b)   The eligibility of any person to receive, or to continue to receive, a benefit or licence, whether he is legally entitled to it or not.

Mr Deliu’s principal submissions

[27] In addressing the Court’s powers under these provisions and, to the extent that it may be relevant, at common law, Mr Deliu argues that the Court has an important duty and function to uphold the rule of law.20 He also observes that the judicial review powers of the High Court are of such constitutional importance as to have been enshrined in s 27(2) of the New Zealand Bill of Rights Act 1990.

[28]  Emphasising the importance of the Court’s powers specifically in relation to his position as a legal practitioner, Mr Deliu argues that his ability to practise, his career and his business are at stake. This consideration weighs heavily, in his submission, in favour of the Court taking an expansive rather than limited view of its review powers.

[29] Mr Deliu anticipated the Society’s argument that the decisions challenged in these proceedings were not susceptible to review because they should be characterised as the exercise of a prosecutorial discretion. He argues, first, that the characterisation was not apt and that, in any event, the Court’s approach to the exercise of a prosecutorial discretion, particularly in cases involving decisions by professional bodies to take disciplinary action against their members, are not immune  from  judicial  review.    He  submits  that  in  Polynesian  Spa  Limited  v

20 Auckland District Court v Attorney-General [1993] 2 NZLR 129 at 133 (CA); R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42 (HL); R v Somerset County Council, ex parte ARC Southern Limited [1998] Env LR 111 at 121 (HC).

Osborne21 Randerson J concluded that a decision to prosecute may be susceptible to judicial review if the decision-maker acted in bad faith or brought the prosecution for a collateral purpose.22

[30] Mr Deliu maintains that the Society was acting in bad faith in this case. In support of that proposition he referred to letters of commendation from clients; the many cases in which he has been involved successfully and without criticism from the court or tribunal; and to steps taken by the Society in respect of other practitioners, whose conduct was arguably of much greater concern that his, which had not resulted in suspension. He claims this positive evidence of his ability as a lawyer has been ignored by the Society.

[31]  As further evidence of bad faith, Mr Deliu refers to the possibility, signalled by Ms Ollivier in her affidavit, that the Society may seek to rely on Mr Deliu’s conduct in cases where he has represented himself. In his submission, he is immune from any professional scrutiny when acting for himself in court proceedings and the Society is over-reaching in suggesting it may investigate such cases.

[32] Mr Deliu argues that the effect of the Board’s decision has been to usurp the statutory functions of the NSC and the Law Practitioners Disciplinary Tribunal under the LCA which are better suited to addressing issues of practitioner misconduct than the High Court’s suspension jurisdiction.

[33] Mr Deliu also argues that in disciplinary proceedings there is not the same constitutional divide between the executive, which decides whether to prosecute criminal proceedings, and the courts, which must ensure a fair trial, and that the safeguard provided by the checks and balances of the criminal trial system are not necessarily directly applicable to professional disciplinary proceedings. Mr Deliu drew on an observation in M v Wellington Standards Committee (No. 2)23 in which Pankhurst J observed that even a conventional exercise of a prosecutorial discretion is subject to the Court’s supervisory jurisdiction albeit with reservation.24

21      Polynesian Spa Limited v Osborne [2005] NZAR 408 (HC).

22 Ibid at [64].

23      M v Wellington Standards Committee (No. 2) [2013] NZHC 1037.

24 At [10].

Zhao v New Zealand Law Society

[34] In arguing that it was not premature for the Court to intervene in a case where processes leading to a final decision are not completed, Mr Deliu relies also on Zhao v New Zealand Law Society25 where Kós J heard an application for judicial review in respect of an application by the plaintiff, a barrister, to practise as a solicitor on his own account.  The Society arranged for the practitioner to attend before interviewers

appointed to question him on trust accounting and related matters. Following the normal practice, the interviewers referred the application to the Society’s Fitness for Practice Committee, recommending against approval of the application on the grounds that the plaintiff had answered the questions poorly and that there had been a number of complaints against the plaintiff although they had been resolved by standards committees on the basis that no further action was required.

[35] The practitioner asked to see the interviewers’ reasons for recommending against him and sought to address the Fitness for Practice Committee. The Committee prepared to convene without the interviewers’ reasons having been provided to the practitioner and without inviting him to attend before them. The plaintiff’s review application was founded on an argument that the adverse recommendation of the interviewers and the convening of the Committee without providing him with prior reasons or an invitation to appear were unlawful administrative acts being in breach of natural justice. The plaintiff also claimed that he had a legitimate expectation that he would be permitted to see the interviewers’ reasons and to address the Committee because a Law Society representative had apparently agreed to those requests but nothing was done.

[36] In opposing the review application as being premature, the Society argued that no final decision had been made and that, in any case, the statute provided a parallel process by which the plaintiff could, if dissatisfied with the Society’s approach, apply directly to the Court for approval to practise on his own account.

[37]  Kós J held that the application for review was not premature.  The exercise by the interviewers of the power devolved to them by the Society to recommend the

right to practise as a solicitor or withhold such a recommendation formed part of the whole statutory power vested in the Society. The Court found that the interviewers’ recommendation would be given considerable weight by the Society and would be influential in any determination by the Fitness for Practice Committee. Following Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries,26 Kós J held that, even at a preliminary stage, a power to investigate and recommend may “go off the rails” such that it was necessary that a Court quash the decision. Further, the Court held that the “parallel process” for judicial approval of applications to practise

on one’s own account was a secondary rather than primary procedure. Issues for consideration by the Court under the parallel process were effectively identical to consideration by the Society, but the processes for determination were not the same and the processes in the Court were less satisfactory in determining the substantive issues than those of the Society.

[38] Mr Deliu argues that the Law Society’s decision to pursue suspension proceedings under s 268 of the LCA, rather than letting the statutory disciplinary process take its course, should be reviewed in these proceedings for the same reason.

Discussion

The Board’s resolution of 12 April 2012

[39] Despite the wording of the Board’s resolution “that counsel be instructed to commence separate proceedings” against Mr Deliu, I am satisfied that the Board did not make a decision on 12 April 2012 requiring its counsel to make an application to the Court on behalf of the Society for an order suspending Mr Deliu under s 268 of the LCA. The nature of the resolution should be determined in light of the surrounding circumstances and the explanation provided by Ms Ollivier. It is evident from the Board’s Minutes that the Board had received and considered counsel’s advice. Being privileged, the advice was not tendered in evidence but it is clear that the resolution was not a step taken by or on behalf of the Society which would inevitably result in an application being filed in the High Court. I infer from the access application, and from Ms Ollivier’s affidavit, that counsel for the Society

will be required to investigate matters of apparent concern and determine what factual and legal basis would be advanced as justification for Mr Deliu’s suspension. That is conventionally the role of counsel who would be expected to provide advice, once the investigation was completed, as to the prospects of success before any application was filed. Counsel would also be under a duty to the Court not to pursue an application devoid of merit.

[40] Although Ms Ollivier deposed that the Board had “concluded that there are good grounds for applying to [the] Court for suspension” of Mr Deliu from practice, she explained that the access application sought permission to use documents inspected and copied from the Court files in support of “any such application” for suspension “should it be made in the future.” Furthermore, Ms Ollivier’s affidavit concludes with an indication that a further application to inspect other files might be made by the Society “in the context of anticipated or actual suspension proceedings before [the] Court, in relation to other cases in which the respondent has self- represented or acted as counsel.”

[41] Looked at in the light of Ms Ollivier’s explanations, the Board did not so much make a decision as express an opinion. The Board’s actions are consistent with the Board of a professional body having come to a preliminary view that grounds appeared to exist for making an application to the High Court for suspension, while recognising that further investigation was required before it would be in a position to decide whether any proceeding would be issued. Those findings are sufficient to dispose of the claim that the Board had predetermined the decision to apply to the Court for suspension before inspecting the Court files.

[42] Even if the resolution can properly be characterised as a decision, the Board has not made any decision or taken any step affecting Mr Deliu’s ability to practise, nor has it committed the Society to a course of action which would inevitably have that effect. Mr Deliu conceded that neither the resolution nor any firm decision to issue proceedings would, in themselves, decide or prescribe his rights or his eligibility to practise.

[43] In R v Sloan,27 Hardie Boys J  held that not every decision made under statutory authority is subject to review. To be amenable to review a decision must go beyond what is merely administrative or procedural,28 or the exercise of  a function rather than a power.29 More relevantly, Anderson J observed in Police v Nahi30 that there is a clear distinction between the exercise of statutory powers of decision and the making of decisions to invoke a statutory entitlement to apply to a

Court. A decision to apply does not decide or prescribe or affect rights, powers, privileges, immunities, duties or liabilities of any person.  Nor is a decision to apply a power derived from statute. Examples of statutory entitlement to apply to a Court are legion and, as Anderson J said:31

It cannot sensibly be the case, nor is it, that whenever a person invokes a statutory entitlement to make an application to the Court that person's decision so to do is amenable to judicial review as a decision constrained by public law principles.

[44] This approach was recognised more recently by Miller J in Hayes v Logan.32 To accept a right of review in cases such as the present would open up the investigative processes of the New Zealand Law Society or other statutory disciplinary bodies to constant judicial review, and that cannot have been intended by Parliament.

[45] Mr Deliu argued that the resolution affected him in the sense that  his reputation would suffer by the Society’s investigations and that, once proceedings were issued, he would be forced to apply resources of time and money to resisting them. But that prospect does not fit comfortably within the words of the definition of “statutory power of decision”33 as one “affecting ... [Mr Deliu’s] rights, powers, privileges, immunities, duties, or liabilities”. The word “affecting” in the definition means altering the rights or obligations of a person or depriving them of some

27      R v Sloan [1990] 1 NZLR 474 (HC).

28      Philips & Pike Ltd v Commerce Commission HC Wellington A444/79, 14 December 1979;

Marfart v Gilbert [1986] 1 NZLR 434 (HC).

29      Ruddlesden v Kapiti Borough Council (1986) 6 NZAR 20 (HC).

30      Police v Nahi (1997) 15 CRNZ 300 (HC).

31      Ibid, at 302-303.

32      Hayes v Logan [2005] NZAR 150 (HC) at [51] – [59].

33 Judicature Amendment Act 1972, s 3 set out above at [26].

benefit or advantage.34

[46] The formation of an opinion by the Board of the Society that critical judicial comments about Mr Deliu’s conduct as a practitioner might properly form the basis of an application to the Court to suspend him from practise does not fall into the category of an error of law, and Mr Deliu did not point to any evidence suggesting that either of the decisions in question in this proceeding had had, or had the

potential to have, “a devastating effect” on his personal or professional reputation.35

[47] Moreover, the future prospect that Mr Deliu may be required to incur the cost and inconvenience of opposing an unmeritorious application to the High Court could be dealt with adequately within the Court’s strike-out and costs jurisdictions.

[48] Although Mr Deliu referred to Wilson v Attorney-General36  as authority for the proposition that a step in an inquiry or disciplinary process may be reviewable, the principles arising from the full Court judgment in that case do not apply here. In Wilson, the steps which were reviewed were mandated by statute and decisions made in that context were accepted as being susceptible to judicial review.

[49] Nor did the Board’s resolution have the same attributes as the decision of the Committee in Zhao to proceed to make a decision determinative of Mr Zhao’s right to practise as a solicitor without providing him with reasons and an opportunity to be heard. On the view of the evidence in Zhao, Kós J was satisfied that an unfavourable decision was likely. In the present case, the Board had no power to make any decision determinative of Mr Deliu’s ability to practise. Its function was merely to instruct counsel to assemble evidence and submissions which might, if so justified by the results of further investigation, result in an application being made to the Court. It would be for the Court, not the Society, to make any decision affecting Mr Deliu’s ability to practice.

34      Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 949 (HL).

35      Compare Peters v Davison [1999] 2 NZLR 164, applying Re Erebus Royal Commission: Air New Zealand Limited v Mahon (No 2) [1981] 1 NZLR 618 at 653.

36      Wilson v Attorney-General [2011] 1 NZLR 399 (HC).

The decision to apply for access to court records

[50] Similarly, in relation to the Board’s decision to make an application to the Court for access to the files related to the cases specified, I do not consider it appropriate to regard the decision to seek access as coming within the category of decisions which Parliament intended should be amenable to judicial review. The decision amounted to no more than a decision to take a step in the course of an investigation which may, or may not, result in the issuing of a High Court proceeding. It is not the fact of the Society having access to the Court files which has any effect on Mr Deliu’s rights, but what a Court might do with the information so obtained and put before the Court in support of a suspension application.

Decision

[51]   For these reasons, I find that in making the resolution of 12 April 2012, and in deciding to apply to the Court for access to the specified files, the Board was not exercising statutory powers of decision which are reviewable under the Judicature Amendment Act.

Alternative findings

[52] Even if I had held that the steps taken by the Board to date were reviewable, I would not have exercised my discretion in favour of granting any relief, for reasons similar to those discussed by Randerson J in Polynesian Spa37 in explaining the marked reluctance of the courts to interfere with exercise of a discretion to prosecute. Although the Court of Appeal suggested in Orlov38 that it was not entirely apt to ascribe the prosecutorial analogy to a decision of a Standards Committee under s 152(2)(a) of the LCA,39 the Board’s role in passing the resolution and making the decision to seek access was of a different character, and similar to that of a prosecutor considering whether to initiate court proceedings. The matters raised by Mr Deliu as to the sufficiency of evidence justifying the Board’s view, and the other arguments going to the merits of his proposition that he is a highly competent practitioner undeserving of any disciplinary action, are matters of substance to be

37      Above n 21 at [61]-[62].

38      Above n 6.

39 Ibid, at [50].

addressed by the Court in the context of any application for suspension which may be made. They are much less amenable to proper determination in judicial review proceedings where the Court’s focus is on procedural error rather than substantive merit.

[53] As Mr Morgan QC submitted, an application under s 268 would contain numerous safeguards to ensure that Mr Deliu’s rights to a fair hearing were protected. The Society would be required to set out its allegations sufficiently to fully and fairly inform Mr Deliu of the case against him; he would be entitled to plead his defences; affidavits sworn in support of the application would identify the issues and witnesses could be cross-examined on disputed facts. Tailored discovery and an application to place the proceeding on the swift track would ensure there was no undue delay. The Court’s powers in a proceeding under s 268 would include jurisdiction to stay or dismiss the proceeding for abuse of process, or to allow time for any defects in disclosure to be remedied. It is likely that a full Court would be convened to hear the proceeding. In these ways, Mr Deliu’s fair trial rights would be protected. Considerations of this kind were regarded by the Court of Appeal in

Orlov40 as requiring the Court to be circumspect about exercising limited scope for

review.

[54] Mr Deliu’s evidence and arguments fell well short  of  establishing  any element of bad faith in the Board’s approach. The reversal by the Court of Appeal of two High Court judgments in which Mr Deliu was criticised did not in themselves render the criticisms unjustified, and a refusal by a court to make an order that Mr Deliu should not be required to pay costs personally can hardly be said to amount to a finding that no criticism of his performance was warranted. It is only upon an examination of the Court file that the validity of any criticism could be put in context and assessed. It is no doubt for that reason that Mr Deliu urged me to examine the files myself.

[55] There is force in Mr Morgan’s submission that the Board’s contemplated approach would be fairer to Mr Deliu than other courses arguably available to the Society.   If the Board had been acting in bad faith it might have followed the

40      Ibid.

alternatives of refusing to issue a practising certificate or applying to the Disciplinary Tribunal, without notice to Mr Deliu, for an order suspending him under s 245(1) of the LCA.

Result and costs

[56]     I dismiss the plaintiff’s applications for judicial review.

[57]   The Society would appear to be entitled to costs in accordance with r 14.2(a) of the High Court Rules. Any application by the defendant for costs shall be made by way of memorandum filed and served not later than 25 October 2013. Any reply memorandum by Mr Deliu shall be filed and served by 29 November 2013. Unless otherwise directed, a decision as to costs shall then be made on the papers.

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Toogood J