IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001721
[2023] NZHC 1632
UNDER
the Judicial Review Procedure Act 2016, Part 30 of the High Court Rules 2016, New Zealand Bill of Rights Act 1990 and
Declaratory Judgments Act 1908
IN THE MATTER
of proceedings moving for an application for judicial review, writs, bill of rights claims and a petition for declaratory relief
BETWEEN
FRANCIS CATALIN DELIU
Plaintiff/Applicant
AND
NICHOLAS FRASER FLANAGAN
First Defendant/Respondent
The NATIONAL STANDARDS COMMITTEE 1 of the NEW ZEALAND LAW SOCIETY
Second Defendant/Respondent
Continued …
Hearing:
6 July 2022
Further submissions 23 August 2022
Appearances:
Plaintiff/Applicant in Person via Video Link No appearance for First Defendant
Second Respondents abide K Davenport QC and A M Cameron for Contradictor
Judgment:
28 June 2023
JUDGMENT OF DUFFY J
This judgment was delivered by me on 28 June 2023 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
FRANCIS CATALIN DELIU v NICHOLAS FRASER FLANAGAN [2023] NZHC 1632 [28 June 2023]
Continued …
CIV-2022-404-0082
UNDER
the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules
IN THE MATTER
of an application for judicial review and for writs to issue
BETWEEN
FRANCISC CATALIN DELIU
Applicant
AND
NICHOLAS FRASER FLANAGAN
First Respondent
The CENTRAL STANDARDS COMMITTEE NUMBER 3 of the NEW ZEALAND LAW SOCIETY
Second Respondent
[1] These are two judicial review proceedings, which are being heard together. They concern Mr Deliu’s two complaints to the New Zealand Law Society (NZLS) about Mr Flanagan, a Crown prosecutor in criminal proceedings brought against Mr Deliu.1 Both complaints stem from a phone call between Mr Deliu and Mr Flanagan on 17 May 2018. The decision on the first complaint is challenged in CIV-2022-404-0082 (proceeding 0082) and the decision on the second complaint is challenged in CIV-2021-404-1721 (proceeding 1721). The relevant standards committees of the NZLS that made the subject decisions are abiding the decision of this Court as is Mr Flanagan. The NZLS, which is opposing the judicial reviews, has been granted leave to appear as contradictor.
Structure of this judgment
[2] I first set out the background to the two claims including the disputed phone call, the Committees’ decisions on Mr Deliu’s complaints, and a related Crown Law decision on a related complaint from Mr Deliu.
[3] Second, I address whether any issues regarding abuse of process or issue estoppel arise in light of several other decisions of this Court which deal with the same or similar subject matter.
[4] Third, I discuss my interpretation of s 57(2A) of the Evidence Act 2006 which relates to privilege between parties to criminal proceedings over “plea discussions”. The reason this discussion is necessary is because the respective actors’ interpretation of this provision shapes their behaviour and reasoning in the subject events and decisions. It is therefore important to set out the correct legal effect of s 57(2A).
[5] Fourth, I consider each ground of Mr…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Deliu v Flanagan [2023] NZHC 1632
Case
[2023] NZHC 1632
Decision Date
CaseChat Overview and Summary
Francis Catalin Deliu has brought two separate judicial review proceedings against the New Zealand Law Society (NZLS), and specifically against two of its Standards Committees, in relation to their handling of complaints he made against Nicholas Flanagan, a Crown prosecutor. The complaints related to a phone call between Mr Deliu and Mr Flanagan on 17 May 2018. The complaints were dismissed by the respective Committees, and Mr Deliu has challenged those decisions. Duffy J considered that neither Committee No 1 nor Committee No 3 had acted unlawfully in their respective decisions. The first complaint was dismissed because there was no basis for the complaint, and it was found to be vexatious. The second complaint was dismissed because it lacked substance. Duffy J did find that Committee No 3 had acted unlawfully in relation to the first complaint by failing to consider the entire substance of the complaint, failing to consider part of the complaint, and making findings of vexatiousness that were not supported by the evidence. He made declarations to that effect and declined to grant any other relief. Duffy J declined to make any declarations in relation to the second complaint because, apart from the erroneous finding of vexatiousness, the rest of the grounds of review were not established. Duffy J also declined to grant any other relief. He ordered that publication of all matters relevant in this decision, including the identities of Mr Deliu and Mr Flanagan should not be restricted in any way.