Deliu v Flanagan

[2023] NZHC 1632

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 Deliu’s claims. I then set out what I consider the appropriate relief to be.

[6]Finally I make findings on the admissibility of evidence filed after the hearing.

1      These proceedings involved two charges of assault with a weapon to which Mr Deliu had entered a not guilty plea before leaving New Zealand and two charges of perverting the course of justice, which were laid against Mr Deliu after he had left New Zealand. He had not entered pleas to the two latter charges.

Background

[7]    The background is extensive as is the interrelated litigation before this Court.2 Suffice to say as of 2018 Mr Deliu was facing two sets of criminal charges. The first were in respect of an alleged assault and the second unrelated set of charges were in respect of an alleged attempt to pervert the course of justice. Mr Flanagan was assigned Crown prosecutor for these charges. Mr Deliu was primarily self-represented on his defence of those charges although he engaged legal counsel for some portion of time.

[8]    The perverting the course of justice charges were filed on 27 April 2018. A day earlier, Mr Flanagan sent Mr Deliu the following email:3

Dear Mr Deliu

We have now considered the assertion of privilege in the document in question. Putting to one side the factual basis for your assertions, we consider that s 67 of the Evidence Act may be engaged. We consider that the email may have been sent to improperly dissuade Mr Wu and Ms [Redacted] (and other recipients) from speaking to the Police about the incident in question in circumstances where they were free to do so.

The Police will shortly charge you (likely today) with two counts of attempting to pervert the course of justice pursuant to s 117(e) of the Crimes Act 1961, one charge for your course of conduct against Mr Wu (including this email) and one for your course of conduct against Ms [Redacted] (also including this email). The Police will make an application under s101 of the Criminal Procedure Act (CPA) for directions as to the admissibility of the document in the context of that proceeding, given your claim for privilege. In the meantime, the email will be held separately on our file and that of the Police marked as subject to a claim of privilege, and we will advise Mr Wu’s counsel to do the same. We are not aware of other parties that might hold the email.

For completeness, once the charges have been filed we will seek a warrant to arrest in lieu of service under s 34 of the CPA, which will lie at the border. That is done given your absence from New Zealand and stated intention not to return.

Yours faithfully Nick Flanagan

2      For further background see Deliu v Flanagan [2022] NZHC 2621 at [6]–[8] and [15]–[28]; and

Deliu v Auckland District Court [2023] NZHC 164 at [7]–[29].

3      One of the persons referred to in the email is subject to an extant name suppression order.

[9]    As foreshadowed by Mr Flanagan, at first call on 2 May 2018 Judge Treston issued a warrant under s 34 of the Criminal Procedure Act 2011 on the basis summons could not be served.

[10]   On 14 May 2018 Mr Deliu and Mr Flanagan exchanged a series of emails discussing the application of privilege under s 57 of the Evidence Act 2006 to their upcoming phone call.

The emails

Dear Frank

Further to our brief telephone call on Friday afternoon, I email regarding your request for a without prejudice discussion. You will recall that you asked if I was prepared to have such a discussion and I said I would not speak to you without a witness present but would reflect on the position. I have now done so.

I am willing to have a without prejudice discussion with you, with a witness present and an audio recording made. If you wish to have such a discussion, please reply to this email with some suggested times.

Yours faithfully Nick Flanagan

[11]Also on 14 May 2018, Mr Deliu replied:

Hi Nick,

Nice to hear from you. I am glad that you are willing to proceed.

I certainly have no problem with an objective audio-recording made by you nor a witness present, although for the avoidance of doubt, the discussion would be protected by [s] 57 of the Evidence Act 2006 to allow us both to discuss freely and candidly, and neither of us would be able to use what is talked about in any way, shape or form in any venue. I trust you would agree with this.

My intention is to see if we can amiably resolve our personal matters, i.e., my complaint and lawsuit against you, and, if possible, other disputes I am involved in with your clients the New Zealand Police (including staff) and Crown.

Can I suggest my Wednesday evening/your Thursday morning? I am flexible with the time, so whatever suits you best.

Look forward to our chat,

Frank

[12]   Later on 14 May 2018 Mr Deliu sent Mr Flanagan another email in which he said:

Re: Without Prejudice discussion [MC-DMS.FID567206]

FYI, ahead of our chat I provide the ATTACHED in strict confidence.

[13]Mr Flanagan responded:

Frank

I have not opened the attachment to your email because we have not agreed the terms of any discussion nor the terms of my receiving it.

We are aware of the provisions of s57 of the Evidence Act. Obviously whether that section is triggered in any given case depends on what is discussed, in the usual way. In particular that proceeding (sic) expressly refers to civil proceedings and you are also party to criminal proceedings.

If this is accepted, please confirm. Otherwise I will delete your latest email and attachment unread.

Yours faithfully Nick Flanagan

[14]Mr Deliu replied:

Hi Nick, 57(2A)?

Anyway, the privilege covers ancillary communications such as our e-mails and attachments as long as they are “any communication” (“or document”) for settlement negotiations or plea discussions.

So, I take the view that the privilege already attaches, but if you want further clarification of the terms let me know and I will prepare a draft agenda for your consideration.

Thanks,

Frank

[15]Mr Flanagan replied in turn:

Frank

Thanks for the clarification you intend to discuss the criminal proceedings in terms of s57(2A). For my part I need your express confirmation you accept the second sentence of my second paragraph below before I can open the document you have sent or have a without prejudice discussion.

Yours faithfully Nick Flanagan

[16]Mr Deliu responded:

Hi Nick,

I confirm that whether [s] 57 is triggered in any given case depends on what is discussed, in the usual way.

Let me know what time your Thursday suits you so that I may diarise.

Frank

[17]   There was a further email exchange regarding the time and date for the phone call in response to Mr Flanagan’s email above with Mr Deliu saying:

Fine by me, but I have no landline and the cell service here tends to be choppy so I intend to call you on a Skype subscription so can you please let me know what landline number you prefer?

…

Finally, in the interests of full candour, I may also have a witness present and/or record the call; subject of course to my prior undertaking not to use it in any other forum (even if somehow [s] 57 does not apply).

Look forward to our talk, Frank

The telephone call

[18]   On 17 May 2018 Mr Deliu and Mr Flanagan discussed Mr Deliu’s charges over the phone (“the phone call”). The phone call was recorded both by Mr Deliu and by Detective Gillian Holland of the Police who was present. Mr Deliu was not represented by counsel at the time of the phone call. This phone call is the triggering event that led to Mr Deliu complaining to the NZLS about Mr Flanagan. The phone call had earlier led to Mr Deliu complaining to the Crown Law Office (on 4 July 2019)

about Mr Flanagan, which is relevant to the decision of the NZLS Standards Committee not to proceed with the second complaint.

[19]The relevant portion of the phone call transcript provides:4

Flanagan:On the criminal case, the reason I was anxious to be clear    about the basis for which you said that this conversation would be privileged was of course the section applies to a plea deal, I think you’ve [sic] fairly proposing one in relation to the assault and that is something we can reflect on, but you’re not of course proposing anything in relation to the other charges and they’re much more serious charges so I don’t think you can have a realistic expectation that the Crown will accept no proposal in relation to those charges. Is that clear enough?

Deliu:Yes, well I guess the only thing that I would, is that the only thing you have to say?

Flanagan: Well it seems to me that the one constructive conversation we could have is the civil proceeding [Redacted].5

Deliu:            Okay, well …

Flanagan:So that’s, that’s the proposal I think we should discuss on the civil case, you haven’t made a proposal on the criminal one, but if you’d like to make one I’m happy to discuss it.

Deliu:All right well I guess two points in relation to your three points. You definitely won’t ever get a dollar in costs I, I, assure you of that. You don’t understand how Romania works, you don’t understand how Europe works and clearly you don’t understand how my brain works, you, you will never get a dollar, but go ahead and try, that’s perfectly fine, it’ll, it’ll be a good lesson. And as to the proposal to the other charges I find it quite striking that you’d want me to make a proposal to charges that I haven’t even been served with, it’s yet another indication, I think, that this is all a bit farcical so I don’t really think we need to explore it further because I can’t possibly make a proposal to charges that I don’t even know what they are, and so on that basis …

Flanagan:It’s not true Frank, we’ve told you what you’ve been charged with.

Deliu:Okay, you want me to make a proposal on your e-mail. Yes Flanagan I will plead guilty to your e-mail. Okay, there’s my proposal.

4      I have listened to the original recording and the transcript is an accurate reflection. Filler words such as “um” and “ah” have been removed. Ellipses indicate crosstalk.

5      The discussion is redacted because it covers without prejudice discussions on the potential resolution of the then extant civil proceedings involving Mr Deliu and the New Zealand Police.

Flanagan: Okay. So, you will plead guilty to three charges …

Deliu:Okay, so I will write you back and I will tell you that I am pleading guilty to your e-mail and you take that further, you take that to the District Court as my plea. Okay, so I am happy to proceed that way.

Flanagan: The proposal is that you will plead guilty to two counts of attempting to pervert the course of justice because that’s a discussion we can have.

Deliu:No, no I’ll plead guilty to your e-mail because that’s all I know, so, sure, I’ll absolutely plead guilty to your e-mail.

Flanagan: No, my question was are you proposing to plead guilty to two counts of attempting to pervert the course of justice because that’s what you’re charged with.

Deliu:Nick, I don’t know a single fact, I can’t believe, and I’m trying to be courteous here so I’ll restrain myself, but I can’t believe that you seriously think that I would offer to plead guilty to charges where I don’t even know what the facts are, I mean, with respect, even in Stalinist Russia they at least told the person what they were charged with in detail. So if you seriously …

Flanagan: We have told you what you’re charged with in detail. Deliu:      Okay, no, okay, then I …

Flanagan:I am very happy to on a without prejudice basis discuss the   basis of the charges with you Frank so you can assess whether or not you want to make a plea, that would fall within the terms of the Evidence Act.

Deliu:            And, and you don’t think that I should be entitled to a … Flanagan: But it has to be expressly on the basis you’re considering a

plea.

Deliu:Well I can’t consider a plea until I know the evidence can I? I would have thought this was basic law school stuff if I’m not mistaken.

Flanagan: No, you can consider a plea based on what the charges are and what you already know of them and if you are considering that then I am happy to have a further discussion with you about the basis for it.

Deliu:No, no, that’s, that’s, that’s absolutely not going to happen. So, okay Nick I guess we’ll just [inaudible] with each other for the next decade, so thanks for that.

Flanagan:        No problem, cheers.

Deliu:            Take it easy.

The first complaint and decision

[20]   On 13 August 2020 Mr Deliu made a complaint against Mr Flanagan to the NZLS (“first complaint”). Mr Deliu stated in the body of the complaint that the context for the complaint was that on 20 July 2020 he made an application in the District Court to stay or dismiss the criminal charges against him. He referred to the application, the supporting brief of evidence and a further memorandum, which he had attached to the complaint. He stated that:

For present purposes, one of my relevant grounds is of prosecutorial misconduct, specifically of Mr Nick Flanagan, see i.e., transcription of 17 May 2018 conversation at [para] 2 of brief of evidence and see also [paras] 4b & 5c (including 26 April 2018 e-mail) wherein I have sought to call him as a witness in support of my motion.

[21] Mr Deliu had sought a witness summons of Mr Flanagan on 30 July 2020 in support of the stay application, which he referred to in the last sentence of the quoted portion above. He complained that Mr Flanagan was in breach of the rules of independence in litigation and cited rr 13.5, 13.5.1 and 13.5.2 stating “de minimis, two rules of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 are engaged”. Mr Deliu concluded his complaint by stating “I thus complain that [Mr Flanagan] has breached his professional obligation to remain independent in litigation”.

[22]   This complaint was dealt with by the NZLS Central Standards Committee (No 3), the convenor of which was Sarah Morrison (Committee No 3).

[23]   On 20 October 2020 Mr Flanagan responded by email to the notification of the complaint from the Law Society: “The complaint is self-evidently vexatious and I do not propose to reply further.” Mr Deliu replied that Mr Flanagan had a duty to engage with the complaints process and the original issue(s) needed to be inquired into.

[24]   After considering the complaint at its meeting on 3 November 2020, on 3 May 2021 Committee No 3 determined the first complaint (“decision on the first complaint”). The Committee took no further action on the basis that a “mere assertion

that opposing counsel might be called to give witness (sic) is insufficient to compromise the lawyer’s independence”. It then further explained:

9. If Mr Flanagan was to be issued witness summons and called as a witness in the proceedings, it is up to the Court to decide whether there is any conflict with Mr Flanagan continuing to act. On the evidence provided, the Court has made no judgment in relation to Mr Deliu’s issue of Mr Flanagan breaching his professional obligations by continuing to act in the proceedings. It is neither up to the Committee, nor Mr Deliu to determine if there is a conflict.

[25]Committee No 3 then found:

10.   Mr Deliu is acting in bad faith by seeking to use the New Zealand Law Society’s complaints process to satisfy his desire for retribution in relation to the criminal proceedings in circumstances where Mr Deliu has chosen not to exercise his rights afforded to him under New Zealand’s criminal justice system.

11.    The Committee considers the lodgement of the complaint to be of a vexatious nature in that its apparent aim is to cause harm and annoyance to Mr Flanagan who represents the New Zealand Police in the criminal proceedings against Mr Deliu.

The second complaint and decision

[26]   On 10 February 2021, Mr Deliu made another complaint against Mr Flanagan to the NZLS (“second complaint”). This complaint was dealt with by the National Standards Committee (No 1), the convenor of which was Chris Browne (Committee No 1). In the second complaint Mr Deliu set out parts of the transcript of the phone call discussing a guilty plea. He attached a full recording and transcript of the call; the email chain set out  above  from  [10];  and  a  copy  of  a  memorandum  dated 12 February 2018 that was filed by the Crown in the District Court criminal proceeding on the assault charge.

[27]   The relevance of the 12 February memorandum, which was signed by junior counsel for the Crown, is that in the context of a pre-trial telephone conference that was considering if Mr Deliu could be tried in absentia on the assault charge Crown Counsel had indicated it did not in principle oppose that course of action, but had concerns about whether it was appropriate to proceed to a trial until issues regarding

Mr Deliu’s “fitness to plead” were addressed.6 Mr Deliu drew this memorandum to the Committee’s attention because in his view it revealed contradictory conduct by the Crown: namely, in February 2018 it expressed concerns about his “fitness to plead” and stand trial in absentia yet by May 2018 Mr Flanagan was (in Mr Deliu’s view) pressuring him to plead guilty to the perverting the course of justice charges.

[28]   Mr Deliu stated in the second complaint that Mr Flanagan conspired with Detective Holland to defeat and or pervert the course of justice, citing the Crimes Act 1961, by:

trying to have me plead guilty to criminal charges I had not been served with based on no supporting evidence provided to me, without counsel, not in the course of a New Zealand court proceeding, on the basis of an e-mail and/or on oral advice over international telephonic lines.

[29] He then recorded that notwithstanding any issues of criminality in his view Mr Flanagan’s behaviour was misconduct in violation of rr 2.2, 2.3, 2.4, 13.2, 13.2.1 and 13.12(d) of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Mr Deliu then noted he expected the complaint to progress in a timely manner. A representative of the Law Society confirmed the complaint had been received on 11 February 2021. Mr Flanagan was notified of the complaint.

[30]On 22 February 2021 Mr Flanagan replied to the Law Society:

Hi Wayne

This is another vexatious complaint. The Police Officer who also participated in the call made an evidential recording of the entirety of it, and if you want the whole thing please let me know. But I expect that you are able to dismiss this without it.

Please take this as my response. Regards

Nick

6      At the time the memorandum was filed Mr Deliu had already entered a not guilty plea to the assault charge. He  did this while in New  Zealand.  I assume Crown  Counsel was querying whether  Mr Deliu was mentally fit to stand trial.

[31]   This response was provided to Mr Deliu and he was invited to make a reply. On 23 February 2021 Mr Deliu did so, noting that Mr Flanagan had not addressed the allegations on the merit and stating that there was urgency involved.

[32]   Further correspondence occurred, including Mr Flanagan providing to the Law Society a written report dated 10 March 2021, of the outcome of a review by Crown Law of a complaint by Mr Deliu against Mr Flanagan, which found that the complaint was unfounded.7

[33]   On 9 April 2021 Committee No 1 delivered its decision on the second complaint (“decision on the second complaint”). It referred to the Crown Law report and Mr Deliu’s related complaint to the Ombudsman and recorded:

13. In the circumstances, it is obvious to the Standards Committee there are alternative remedies or rights of appeal, available to Mr Deliu to raise the substance of his complaint against Mr Flanagan and that he is exercising them.

[34]Committee No 1 stated:

… The recording received, the transcript of the conversation and the associated correspondence leave the Standards Committee in no doubt that the complaint lacks substance. The conversation was instigated by Mr Deliu on the express basis that it would be privileged. Privilege required that the conversation include the possibility of Mr Deliu entering a guilty plea. The Standards Committee can see no basis for a finding of a breach of the Rules referred to by Mr Deliu nor more generally of Mr Flanagan’s professional obligations. It reached the same view as Crown Law.

[35]Committee No 1 then went on to find:

15.        Against that background, the Standards Committee considers the complaint to be vexatious, in that its apparent aim was to cause harm and annoyance to counsel involved in the criminal prosecution of Mr Deliu.

16.        As to the aspect of the complaint that relates to the memorandum of counsel of 12 February 2018, the memorandum was filed 3 months prior to the conversation and simply recorded a matter which had been raised by counsel for Mr Deliu. As the matter had the potential to affect the trial arrangements, the Standards Committee considers that  it  was  proper  for Mr Flanagan to file the memorandum. The matter does not appear to have been taken further. It has no bearing on the propriety of the May 2018 telephone conversation.

7      This decision is presently the subject of judicial review proceedings in CIV-2021-404-348. Judgment is yet to be issued.

[36]   Committee No 1 determined that no further action on the complaint was necessary or appropriate.

Complaint to Crown Law Office

[37]   The complaint to the Crown Law Office was made on 4 July 2019. It was rejected; however, it seems that on first enquiry the Crown Counsel responsible for investigating the complaint was unable to hear all the transcript. It seems she could hear Mr Flanagan but not Mr Deliu. There was a complaint to the Ombudsman which resulted in the matter returning to the Crown Law Office. The complaint was reconsidered, and a fresh decision was made which was conveyed to Mr Deliu in a letter dated 10 March 2021. By then Crown Counsel had found a way to hear the entire audio recording of the phone call.

[38]   The Crown Law Office decision found no impropriety by Mr Flanagan was apparent from the transcript. Crown Counsel outlined her understanding of Mr Deliu’s complaint, which was that Mr Flanagan was “pressuring” Mr Deliu to plead guilty to the criminal charges he faced. Crown Counsel’s impression of Mr Flanagan’s conduct was that he was endeavouring to set out the basis on which their conversation was to proceed. Mr Deliu wanted it to be on a without prejudice basis. Mr Flanagan’s response was that plea discussions could only be on a without prejudice basis if there was a possibility of guilty pleas to some or all the charges, or some version of them. Crown Counsel reinforced her view that there was nothing improper in Mr Flanagan taking this line, by stating that it was important for Mr Flanagan to be clear about the parameters of their conversation and what would be privileged and what would not be. By doing this she considered Mr Flanagan had acted prudently.

[39]   Crown Counsel then referred to what she understood to be a subsidiary complaint: the fact the phone call was between Mr Flanagan and a legally unrepresented defendant who had not had the benefit of full disclosure or access to counsel. Regarding legal representation Crown Counsel referred to the fact Mr Deliu was representing himself was in other proceedings, both criminal and civil, in which the Crown was also engaged. Thus, it was unavoidable that Mr Flanagan or another prosecuting counsel would have direct contact with Mr Deliu. Secondly, the phone

call had begun by addressing the civil litigation Mr Deliu was involved in against the Crown and Crown related defendants, and then when the discussion moved to the criminal proceedings it became necessary for Mr Flanagan to establish the basis on which the conversation would be privileged.

[40]   Regarding the lack of full disclosure in addition to lack of legal representation, Crown Counsel considered there was no reason why a defendant could not choose to engage in plea discussions in those circumstances. Her view was that Mr Flanagan was not suggesting to Mr Deliu that he should plead guilty, rather he was outlining the basis on which any discussion about pleas would be privileged:

… Mr Flanagan was explaining that your conversation would only be privileged if you were expressing an intention to plead guilty to the charges against you, and he asked you if that were the case. It then became clear that you did not have any intention of pleading guilty so that brought the conversation to an end at that point.

[41]   Specifically, regarding the lack of full disclosure (at the relevant time Mr Deliu did not have either the charge notice or the police summary of facts) Crown Counsel stated:

… I note that you said, in the course of that conversation, that you did not consider you had enough information about the charges to permit you to consider a plea and Mr Flanagan disagreed. Again, I take him to be saying that he disagreed with your statement that you didn’t know what the charges were about, because he considered he had provided you with that information, not that he thought you should be pleading guilty.

[42]   Crown Counsel offered no view on whether the subject circumstances were the type of circumstances where a defendant could reasonably be expected to enter a guilty plea without sighting the charge notice or police summary of facts.

[43]   Accordingly, her decision was not to take any further action in respect of the complaint.

Timing of Committees’ decisions

[44]   Committee No 1 delivered its decision on the second complaint before Committee No 3 determined the first complaint. At the time Committee No 1 delivered its decision on the second complaint it had a copy of the Crown Law Office

decision dated 10 March 2021.   Further, Committee No 1 had been  informed by   Mr Deliu that he intended to judicially review the Crown Law decision; he did so on 24 February 2021.8

The claims

[45]   Mr Deliu brings two separate proceedings. Proceeding 1721 was commenced on 24 August 2021; it seeks judicial review of Committee No 1’s decision on the second complaint  (dated  9  April  2021).  Proceeding  0082  was  commenced  on 26 January 2022; it seeks judicial review of Committee No 3’s decision on the first complaint (dated 3 May 2021).

[46]   A number of the allegations made in each judicial review overlap to some degree. Those allegations are as follows:

(a)Both Committees failed to take into account relevant considerations, namely:

(i)that Mr Flanagan never denied the allegations;

(ii)the substance of the complaints; and/or

(iii)a legal practitioner’s duty to address the merits of the complaints.

(b)Both Committees erred in fact and/or law by holding the complaints were vexatious or designed to cause harm and annoyance to Mr Flanagan.

(c)Both Committees acted unreasonably by not sanctioning Mr Flanagan nor considering the merit of Mr Deliu’s complaints.

[47]   Exclusively in relation to Committee No 3’s decision on the first complaint (proceeding 0082) Mr Deliu claims:

8      The judicial review of the Crown Law decision was commenced on 24 February 2021 in Deliu v Solicitor-General CIV 2021-404-0348.

(a)Committee No 3 failed to take into account relevant considerations, namely the issue of whether Mr Flanagan’s impugned conduct in Mr Deliu’s stay application was such that Mr Flanagan could not continue to act in the criminal proceedings (regardless of whether he was to be a witness).

(b)Committee No 3 erred in fact and/or law by:

(i)holding that “it is up to the Court to decide whether there is any conflict with Mr Flanagan continuing to act”; and

(ii)finding that Mr Deliu was acting in bad faith.

[48]   Exclusively in relation to Committee No 1’s decision on the second complaint (proceeding 1721), Mr Deliu claims:

(a)Committee No 1 failed to give reasons why the complaint allegedly lacked substance in breach of s 27 of the New Zealand Bill of Rights Act 1990.

(b)Committee No 1 erred in law that there were alternative remedies or rights of appeal available.

(c)Committee No 1 erred in fact that Mr Deliu agreed to enter into the phone call with Mr Flanagan on the basis of a possible guilty plea to the perverting the course of justice charges, and to the extent the Committee “adopted the State’s reasoning contained in its 10 March 2021 correspondence” that was an illegal delegation of function and/or an error of fact.

Issue estoppel/abuse of process – previous judicial consideration of the phone call

[49]   There have been other judicial review proceedings in which the complaints about Mr Flanagan and Detective Holland9 for their conduct on the phone call have been raised. Accordingly, the first step for me is to consider whether the judgments delivered in the other proceedings create res judicata/issue estoppel or abuse of process

9      Detective Holland was present with Mr Flanagan at the time of the call.

obstacles that would stand in the way of my determining the issues Mr Deliu raises in the proceedings before me.

[50]   In White v Attorney-General Collins J writing for the Court of Appeal observed:10

[27] A decision will create an issue estoppel if it determined an issue in a cause of action as an essential step in its reasoning. Issue estoppel applies to fundamental issues determined in an earlier proceeding which formed the basis of the judgment.

[51]Collins J then referred to the statement of Lord Diplock in Thoday v Thoday:11

… neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.

[52]   In van Heeren v Kidd the Court of Appeal, citing Talyancich v Index Developments Ltd, stated the preeminent New Zealand position:12

[1]   An issue estoppel arises where a judgment has determined an issue as an essential and fundamental step in the logic of the judgment and without which it could not stand. The issue so determined may not be contested in subsequent litigation between the same parties.

[53]   In New Zealand Social Credit Political League v O’Brien13 the Court of Appeal referred to the inherent jurisdiction of this Court to strike out a statement of claim as an abuse of process which “…the Court may come under a duty to exercise. It is more than a matter of discretion.”14 This was said in the context where at the High Court hearing it was agreed that the defendants had not given the plaintiff proper notice abuse of process would be relied on. The Court of Appeal considered various earlier proceedings brought by Mr O’Brien and concluded that the present proceedings before it (an unusual claim for the alleged malicious bringing of civil proceedings) were no more than an attempt to revisit issues considered in the earlier proceedings. The fact

10     White v The Attorney-General of New Zealand [2021] NZCA 479.

11     At [28], citing Thoday v Thoday [1964] P 181 (CA) at 385.

12     van Heeren v Kidd [2016] NZCA 401, [2017] 3 NZLR 141, citing Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA) at 37 (footnote omitted).

13     O’Brien v New Zealand Social Credit Political League Inc [1984] 1 NZLR 84 (CA).

14     At 89.

the defendants had not pleaded abuse of process save in a limited way was seen by the Court of Appeal as no bar to the High Court exercising its inherent jurisdiction to strike out the proceeding as an abuse of process.

[54]The judgment of Somers J helpfully summarises the relevant principles:15

Estoppel per rem judicatam, issue estoppel, and abuse of process in at least one of its manifestations, may be seen as exemplifying similar concepts - that a matter once determined may not be again litigated, that a matter which could and should have been raised in proceedings which have been determined should not be allowed to be raised subsequently, and that a collateral attack upon a final decision in other proceedings will not be permitted. The dual objects are finality of litigation and fair use of curial procedures. The present case exhibits these features. Mr. O’Brien is stopped by the verdict of the jury in his first defamation action from alleging and proving that the League caused its 1972 statement of claim to be published to the newspaper. And  he  cannot  now  be  allowed  to  prove  that  against  Mr. Riddoch either, for whether or not the latter made such a communication with the authority of the League was canvassed at that hearing too. Nor is it possible without proof of some publication for which the League is responsible other than the very filing in the Court of the 1972 proceedings to establish the damage which it is claimed flowed from the commencement of that action. …

It is not in my view material that the League and Mr. Riddoch have not pleaded abuse of process save in a limited way. The Court in this field is concerned with proceedings which are ex facie lawful, that is to say are within the rules about procedure. But to prevent those rules being used oppressively the Court will intervene proprio motu if necessary. It recognises that the literal application of the law itself can be a tyranny.

The other proceedings that involve the phone call

[55]   Deliu v Flanagan (proceeding 1714),16 was commenced on 25 August 2021, which is one day after proceeding 1721 was commenced. Proceeding 1714 was heard by Davison J on 25 May 2022 (before proceedings 1721 and 0082 were heard on 6 July 2022) and judgment was delivered on 12 October 2022. This proceeding involved judicial review of a decision by the New Zealand Police (the police) not to progress complaints Mr Deliu had made about certain police officers and their conduct, which were unrelated to the issues before me. However, proceeding 1714 also included judicial review of a police decision not to progress a complaint Mr Deliu had made

15     At 95 (emphasis added; citations omitted). Part of the above passage was applied by the Court of Appeal in Dotcom v District Court at North Shore [2018] NZCA 442 at [31].

16     Deliu v Flanagan, above n 2.

against Mr Flanagan and Detective Holland for their conduct on the phone call.17    Mr Deliu’s complaint to the police was substantially the same as the second complaint he made to the NZLS (now the subject of proceeding 1721), albeit the remedy sought was different. The complaint to the police against Detective Holland and Mr Flanagan sought a criminal-based response against both persons. Whereas, the complaint to the NZLS sought a disciplinary approach against Mr Flanagan.

[56]Davison J found:

[112]          An examination of the transcript of the telephone conversation of 17 May 2018, and the preceding emails exchanged between the applicant and Mr Flanagan, clearly shows that there was  nothing  improper  about  how Mr Flanagan conducted himself during the conversation. There is no suggestion or evidence to show that Mr Flanagan endeavoured to have the applicant plead guilty to the attempting to pervert the course of justice charges which had been filed by the Police but which had not been served on him.

[113]       It is clear from the emails exchanged prior to the 17 May telephone conversation that both parties expressly agreed that they were proceeding on the basis that s 57(2A) of the Evidence Act 2006 applied, and that as parties to the criminal proceedings brought against the applicant, their plea discussions were privileged.

[114]          I reject the applicant’s submission that Mr Flanagan should not have spoken to him about the prospect of entering pleas because the applicant was unrepresented by counsel during the telephone conversation. The applicant had previously intimated that he might arrange to have counsel for the telephone conference, but he had obviously decided against it, and he was quite happy to proceed with the telephone conference on his own. It is also clear that the applicant is a lawyer with extensive experience in criminal law and proceedings, and during the telephone conference he showed that he was well able to protect his own interests.

[115]          Mr Flanagan did not say anything during the telephone conference which could reasonably be interpreted as attempting to apply any pressure on the applicant to adopt any particular course, including entering pleas of guilty to the unserved charges. In my view it is quite clear that all that Mr Flanagan was doing was to see whether there was any basis upon which the applicant wanted to resolve all of the charges he was facing. In the event that agreement on those matters was reached, implementing any arrangement would still have to occur at a later date, so that there was no possibility of the applicant’s legal position on any of the charges being formally determined or his interests compromised in the course of the conversation.

[116]          … There is quite simply nothing in the contents of the telephone conversation or in the relevant emails which preceded or followed the conversation that provides any support for the applicant’s allegation that    Mr Flanagan and Detective Holland had conspired to pervert the course of

17 At [2].

justice by having the applicant plead guilty to the yet to be served criminal charges of attempting to pervert the course of justice.

[57]   Mr Flanagan was first respondent in proceeding 1714 and in the proceedings before me. Davison J’s judgment records no appearance from Mr Flanagan. This Court’s register of documents filed in proceeding 1714 records Mr Flanagan filed a notice of appearance for ancillary purposes, which indicates he did not propose to actively oppose the proceeding.

[58]   On 9 August 2021 Deliu v Attorney-General (proceeding 1803) was commenced.18 The respondents were the Attorney-General and the New Zealand Police. Mr Flanagan  was  not  a  party  to  this  proceeding.  The  hearing  was  on 28 November 2022 before Brewer J. Judgment was delivered on 15 March 2023. This proceeding sought judicial review of the Crown’s decision to proceed against Mr Deliu with the charges of attempting to pervert the course of justice. In the context of this proceeding Mr Deliu alleged that Mr Flanagan and therefore the Crown and Police respondents acted mala fides in seeking to obtain guilty pleas from Mr Deliu to one of the assault charges and both perverting the course of justice charges. Brewer J found that the allegations in substance were raised in proceeding 1714 before Davison J.19 Brewer J then referred to the findings made by Davison J and concluded he was satisfied that the present allegations before him were a collateral attack on Davison J’s decision.20 The Judge then stated that he had read Davison J’s analysis, considered the issues raised by Mr Deliu in the current proceeding and agreed with Davison J’s analysis and reached the same conclusion.21

[59]   Deliu v R (the 0108 proceeding) was commenced on 9 February 2022.22 It was called for hearing before Wylie J on 5 December 2022. This was a judicial review challenging the actions of the Crown Solicitor at Auckland (Mr Flanagan), his firm (Meredith Connell) and his prosecutors in acting for the Crown following the Crown’s assumption of responsibility for the charges after prosecutors in the firm had already acted for the New Zealand Police in relation to those charges, both before they were

18     Deliu v Attorney-General [2023] NZHC 512.

19 At [24].

20 At [26].

21 At [26].

22     Deliu v R [2022] NZHC 3268. The sole defendant was the Crown.

laid and at their first call in Court. Wylie J ordered the proceeding before him be stayed on the ground it raised much the same issues as those raised in the judicial review heard by Brewer J.23 At the time Wylie J made the order staying the proceedings before him a decision by Brewer J was yet to be released. Before Wylie J ordered the stay of the proceedings before him he gave Mr Deliu and the other parties the opportunity to make submissions on whether he proceeding was an abuse of process, raising issues which were substantially the same as issues raised in earlier proceedings.

[60]   Deliu  v   Solicitor-General   (CIV-2021-404-348)   was   commenced   on   24 February 2021. As discussed above, it relates to Crown Counsel rejecting a complaint made to Crown Law about Mr Flanagan’s conduct during the subject phone call with Mr Deliu. A judgment is yet to be delivered. This proceeding was heard on 21–22 June 2022 together with Deliu v District Court at Auckland (CIV-2021-404- 390)24 and Deliu v Attorney-General (CIV 2020-404-2472).25 The latter proceeding was commenced on 17 December 2020; it relates to refusals of the Attorney-General and Deputy Solicitor-General  to  stay  of  criminal  proceedings  brought  against  Mr Deliu. One of the bases for requesting the stay was the conduct of Mr Flanagan in the phone call with Mr Deliu. Mr Flanagan is not a party to either proceeding. A decision was delivered by Harvey J on 15 May 2023. The Judge did not make explicit findings on the phone call because he found that a prosecutorial decision not to stay was a decision where judicial restraint should be applied in review.26

Discussion

[61]   At the time these proceedings were heard judgments had not been delivered in any of the other proceedings. When Davison J delivered judgment in proceeding 1714 no-one involved in these proceedings referred this judgment to me. Similarly, with the judgments delivered by Brewer, Wylie and Harvey JJ. However, those judgments

23     At [23] and following.

24     This proceeding concerned issues unrelated to the present case. See Deliu v District Court at Auckland [2023] NZHC 658.

25     Deliu v Attorney-General [2023] NZHC 1159.

26     At [72] and [80].

did not involve the same respondents as these proceedings, whereas, Mr Flanagan was a named respondent in proceeding 1714.

[62]   The present proceedings were commenced one day before proceeding 1714. This is not a case where the present proceedings have been filed after an adverse decision from Davison J and are seeking to collaterally attack the Davison J judgment. The same applies with the other proceedings. Rather it appears that Mr Deliu has taken a scatter gun approach by sequentially filing multiple proceedings that touch on the same subject matter and the timing of their final outcomes is simply a consequence of how each proceeding was dealt with in this Court’s registry and the various judicial processes to which each has been subject. (These circumstances are why Courts will often order consolidation or for proceedings to be heard together.)

[63]   Accordingly, the present proceedings do not meet the generally understood principles for when a subsequent proceeding will be regarded as re-litigating an already determined matter, or where a subsequent proceeding raises a matter that could have been raised in an earlier and already determined proceeding; or where a subsequent proceeding is essentially a collateral attack on an already determined proceeding.

[64]   No-one in these proceedings has sought to raise any issue regarding the application of res judicata, issue estoppel or abuse of process following delivery of the judgment of Davison J in proceeding 1714 or the later judgments of Brewer, Wylie and Harvey JJ.27 Mr Flanagan through being a party in proceeding 1714 will have known of Davison J’s decision since it was delivered. Mr Flanagan has not thought to direct the judgment to my attention. Last year the parties and the NZLS filed several memoranda regarding additional evidence. Had they wanted to raise legal arguments that Davison J’s decision might pose an obstacle to Mr Deliu’s pursuit of his claims in these proceedings they could have done so. The opportunity was available then. I consider it is too late now to give them the opportunity to do so by inviting submissions on the topic. It would mean re-opening the hearing. Further, because the present

27 With those judgments Mr Flanagan was not a named respondent although complaint about the phone call features in  the  issues  raised  in  the  proceedings  before  those  Judges.  The  fact Mr Flanagan was not named as a respondent further reduces the grounds for finding those judgments can create res judicata/issue estoppel or abuse of process issues for this proceeding.

circumstances do not fit with the usual circumstances when res judicata/issue estoppel or abuse of process will arise, I do not consider it appropriate for me to “intervene proprio motu” in the way recognised by Somers J in O’Brien.

[65]   In light of the above, I consider it appropriate not to embark further on considering whether res judicata, issue estoppel or abuse of process might apply here. Instead, I propose to consider the matters Mr Deliu raises in these proceedings on their merits. This does not mean I shall be closing my eyes to the Davison J judgment, but I do not consider myself bound by it in the way that I might have been had I found the Judge’s findings meant that issues of res judicata, issue estoppel or abuse of process are now engaged.

Section 57(2A) of the Evidence Act 2006

[66]   Section 57(2A) of the Evidence Act 2006 and its effect on the phone call discussions between Mr Flanagan and Mr Deliu is relevant here. For Mr Flanagan it provides the reason why he raised with Mr Deliu whether guilty pleas would be entered to the recently laid perverting the course of justice charges. Mr Deliu sees  Mr Flanagan’s actions as pressuring Mr Deliu to plead guilty at a time when he had not seen either the charge notices or the police summary of facts outlining the offending conduct.

[67]   I think it is helpful to consider the legal effect of s 57(2A) before considering Committee No 1’s response to Mr Deliu’s complaints and the grounds of judicial review. To a large degree Mr Flanagan’s interpretation of s 57(2A) colours the interaction between him and Mr Deliu.

[68]   In the introductory paragraph of the phone call transcript Mr Flanagan says “On the criminal case I was anxious to be clear about the basis for which you said that this conversation would be privileged was of course the section applies to a plea deal.”28 This statement indicates that Mr Flanagan was only prepared to treat the phone call as privileged if a plea deal, that is, negotiation towards a guilty plea, was to be discussed.

28     This is taken word for word from the transcript. The sentence appears to be missing some words.

[69]   Clearly Mr Flanagan thinks s 57(2A) is limited to plea deal discussions. The Crown Law Office letter of 10 March 2021 expresses a similar view, as does the Committee’s decision on the second complaint dated 9 April 2021. If that is right it is understandable why Mr Flanagan acted as he did, the Crown Law Office saw nothing of concern in Mr Flanagan’s conduct during the phone call and why Committee No 1 saw no need to enquire further into Mr Deliu’s complaint.

[70]Section 57(2A) provides as follows:

(2A) A person who is a party to a criminal proceeding has a privilege in respect of any communication or document made or prepared in connection with plea discussions in the proceeding.

[71]   I acknowledge that the section is likely used most often in circumstances where a defendant indicates he or she is prepared to plead guilty either to lesser charges or to a modified police summary of facts. But on its face, it appears to cover any circumstance where prosecution and defence might discuss pleas.

[72]In relation to s 57(2A) the Court of Appeal has stated:29

[27]    At the time the Evidence Act was passed, New Zealand criminal procedure did not specifically recognise plea negotiations. The practice of plea negotiations received recognition in the Criminal Procedure Act 2011. In its 2013 review of the Evidence Act the Law Commission recommended s 57 of that Act be amended so as to explicitly extend the privilege covered by that section to plea negotiations in criminal cases. Parliament accepted the Law Commission’s recommendations when, in 2017, it amended s 57 of the Evidence Act.

[28]   The purpose of the privilege over communications associated with plea negotiations is to encourage frank discussions between prosecuting authorities and defendants in criminal prosecutions with the aim of enhancing the prospect of agreement being reached concerning pleas to charges. Such discussions need to occur in an environment in which defendants and prosecutors are confident that admissions or acknowledgements they make during such discussions will not be used against them in the event there is not agreement. Without that confidence, it is unlikely that parties to criminal proceedings will be encouraged to enter into plea negotiations.

[73]The explanatory note to the Evidence Amendment Bill provides:30

Privilege for plea discussions

29     T (CA23/2020) v R [2020] NZCA 15 (emphasis added).

30     Emphasis added.

The Bill extends the privilege that currently applies to settlement negotiations and mediation in civil proceedings to include plea discussions in criminal proceedings. The court will be authorised to order disclosure of a communication or document relating to a plea discussion that would otherwise be protected by privilege under certain circumstances. The extended privilege will enable full and frank plea discussions and encourage early disposal of cases, where appropriate.

[74]   As can be seen from the underlying principles, the purpose is to facilitate an environment where agreements and concessions can be made, in the course of discussing a plea, so that ideally the case can be disposed of more efficiently than if those discussions did not occur. The section provides assurance to the defence that anything said in discussions about pleas might not later be relied on by the prosecution as constituting an implicit admission of overall culpability or admission to an element of the charge.31 Of course these concessions and agreements can happen or be pursued when discussing a possible guilty plea but there is no reason it could not occur in the context of not guilty pleas.

[75]   Defence counsel may wish to outline in detail why a not guilty plea is entered to point out weakness in a prosecution case with a view to encouraging police to make enquiries elsewhere. The defence may be reluctant to show their hand in that way if they think what they say may come back and be used against the defendant at trial. Similarly, the prosecution might be reluctant to consider any modifications to its case if there was a risk willingness to contemplate this step could later be used against it at trial. There may on occasion be other real benefits if defence counsel can discuss with prosecuting counsel why not guilty pleas are being maintained. However, defence counsel may be reluctant to do that if the discussions are not privileged. I see no reason on those occasions why privilege should not attach. The language of s 57(2A) is broad enough to apply here. Section 57(2B) provides adequate protection for when privilege for plea discussions can be lost.

31 It was inserted in January 2017; until then the Evidence Act made no provision for without prejudice discussions in criminal proceedings. The subsection’s other purposes include facilitating cooperative discussions between prosecution and defence, so that criminal matters capable of resolution without the need for a trial are resolved. This removes unnecessary pressure from both the bench and bar involved in criminal processes. Without such resolution criminal processes would be lengthier and more costly.

[76]   Adams on Criminal Law makes the following comments on the definition of “plea discussions” in s 57(2A):32

There is no definition of plea discussions. Obviously included would be communications between a defendant and the prosecution (and their “authorised representatives”: s 51(4)) which concern the possibility of a guilty plea to a particular criminal charge against the defendant — often a lesser charge than that which was originally filed. Probably also included would be similar discussions of possible “plea bargains” which take place solely among some or all of multiple defendants in a criminal proceeding. However, it is submitted that to come within the protection of the privilege the communication (or document) must have some connection to a possible plea (whether guilty or not guilty) in the criminal proceeding. Thus a discussion between the defence and the prosecution may not be protected under s 57(2A) if it does not raise the issue of a potential plea but is only directed at an attempt to convince the prosecution to file a less serious charge than the charge which was originally filed against the defendant.

[77]   I can see no reason why the reference to “plea discussions” in s 57(2A) should be read down to mean “guilty plea discussions only”. Had that been Parliament’s intent the section could easily have been drafted to make that expressly clear.

[78]   One case that supports my analysis that s 57(2A) applies more generally than to guilty plea discussions is Re Harder (No 2).33 The case concerns an application for access to court documents on a judicial review file relating to the Pike River coal mine tragedy. Following the tragedy, Worksafe New Zealand filed prosecutions, including against Pike River Coal Ltd’s Chief Executive Officer Mr Whittall. Following discussions between counsel, the accused made a voluntary reparation payment to the families of the deceased and the survivors. Worksafe decided not to offer evidence on the charges against Mr Whittall, and the District Court dismissed the charges.

[79]   In the substantive judicial review the applicants challenged Worksafe’s decision to offer no evidence on the charges against Mr Whittall, and the District

32 Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at  [EA57.01A] (emphasis added).

33 Re Harder (No 2) [2023] NZHC 620; and see Re Harder [2022] NZHC 3615 and for background the substantive judicial review in Osborne v Worksafe New Zealand [2015] NZHC 2991, [2016] 2 NZLR 485, approved [2017] NZCA 11, [2017] 2 NZLR 513 but overturned [2017] NZSC 175, [2018] 1 NZLR 447.

Court’s subsequent decision to dismiss the charges.34 The counsel-to-counsel negotiation documents in relation to the voluntary reparation payment were provided to the High Court for the judicial review application on a limited waiver basis.

[80]   Mr Harder sought to access the correspondence between Mr Whittall and Worksafe.

[81]   Worksafe saw the privilege as attaching to its discussions with Mr Whitall notwithstanding Mr Whitall was not considering a guilty plea:35

… release of these documents would be contrary to the orderly and fair administration of justice. This is because of the risk that parties to proceedings may be discouraged from making similar disclosures in court proceedings in the future. It is also because it undermines the privilege in plea bargaining discussions by undermining or having a chilling effect on full and frank exploration of options in resolving criminal proceedings.

[82]   Justice Mallon found that s 57(2A) applied to the documents, stating: “On a broad view, the communications over which privilege is claimed are ‘plea discussions’ in that they concerned a possible resolution of the charges.”36

[83]Cross on Evidence comments on the approach taken in Re Harder:37

The Court found that the material that would be provided to the applicant for review, if he were to be granted the access that he sought, was “plea discussion” material within the meaning of section 57(2A) as it concerned a possible resolution of criminal charges. This is consistent with the “broad and sensible” approach, noted above at [EVA57.4], as the approach taken by the New Zealand Courts in characterising what should be protected by the recognised privileges.

[84]   In light of all of the above, I can see no reason why s 57(2A) should be interpreted as applicable only to those occasions where a guilty plea/s as part of a plea deal to laid charges are being discussed. It follows that I find s 57(2A) covers more

34 For completeness I record that the Supreme Court found that the arrangement made was an  unlawful bargain not to prosecute for receipt of money or valuable consideration: Osborne v Worksafe New Zealand (SC), above n 33. Re Harder (No 2) was decided after that finding and the principle still stands.

35 At [11].

36 At [15].

37 Matthew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [EVA57.12].

than just discussions in any given case about plea deals involving the possibility guilty pleas will be entered to some or all laid charges.

[85]   Specifically, I find that s 57(2A) can apply to circumstances where a defendant is overseas outside the jurisdiction of New Zealand courts, charges are laid in New Zealand and the defendant (usually via counsel, but here self-represented) is in communication with prosecuting counsel and they engage in plea discussions generally. I would have thought it to be helpful for everyone if there was a considered discussion about whether in such circumstances it was worthwhile for any pleas to be entered.

[86]   At the time of the phone call the perverting the course of justice charges had been filed in the District Court and a warrant to arrest issued. The charges had not been formally served on Mr Deliu nor could they be while be remained outside New Zealand.38 As matters then stood Mr Deliu did not need to enter any pleas to the charges. He could have let matters rest with the warrant remaining at the border until it could be executed, which required his return. On the other hand, if he wanted to enter pleas to the charges through counsel that may have been possible. However, if the entry of pleas was contemplated it is hard to see how this could be managed long term. A court that accepted a guilty plea while Mr Deliu was out of the country would then be faced with the problem of whether it could or should sentence a defendant who was beyond the country’s jurisdiction.39 If Mr Deliu entered not guilty pleas while overseas a court would then be faced with how or whether to proceed to trial in his absence.40

[87]   As at the date of the phone call (17 May 2018) the District Court had on     16 April 2018 refused to proceed with the Judge-alone trial in his absence. 41 The perverting the course of justice charges were more serious than the assault charge, which typically would tell against their disposition in absentia.

38     Criminal Procedure Rules 2012, r 2.6.

39     See Criminal Procedure Act 2011, s 123.

40     See Criminal Procedure Act 2011, s 122 and Kumar v R [2013] NZCA 77.

41     R v Deliu DC Auckland CRI-2017-004-1142, 16 April 2018 (Minute No 2 of Judge Sinclair).

[88]   Accordingly, the prospect of Mr Deliu entering any type of plea while abroad did not lend itself to a speedy or realistic resolution of the perverting the course of justice charges. Nonetheless, he and Mr Flanagan must have seen some merit in having their phone call discussion.

[89]   It is not for this Court to attempt answers to how the perverting the course of justice charges might be dealt with while Mr Deliu remains outside New Zealand. As matters stand the proceedings in relation to those charges are now adjourned until  Mr Deliu returns to New Zealand.42  I raise the question of their disposition while   Mr Deliu remains abroad simply to illustrate that at the time of the phone call the circumstances of the perverting the course of justice charges were complicated. The possibility of pleas being entered while Mr Deliu was outside New Zealand was obviously of concern to him. He judicially reviewed the refusal to allow the assault charge to go to trial in absentia so he was obviously keen for that charge to be dealt with despite his absence from New Zealand.43 By the time of the phone call he would have known of the District Court’s refusal to hear the assault charge in absentia, as would Mr Flanagan. Yet Mr Deliu still wanted to discuss the perverting the course of justice charges with Mr Flanagan. A fruitful discussion about the realities of pleas being entered in absentia may have led to a common view, which could then have been communicated to the District Court. I see no reason why the privilege in s 57(2A) could not have applied to a conversation of that nature.

Judicial review grounds

[90]   As mentioned earlier some of the judicial review grounds for both complaints overlap; where possible I shall consider them together. I shall then deal with the remaining grounds in relation to the second complaint because this was the focus of attention at the hearing. Finally, I shall deal with the remaining grounds relating to the first complaint.

42 The charges were adjourned by Judge Paul on 20 April 2021: R v Deliu DC Auckland CRI-2018- 004-3571, 20 April 2021. And in a subsequent judicial review Judge Paul’s rulings were upheld: See Deliu v Auckland District Court, above n 2, at [113] and [119].

43 This judicial review was heard as part of Deliu v Auckland District Court, above n 2, and was dismissed. See at [89]–[100] and [145]–[156].

[91]   For proceeding 1721 the NZLS filed a record of proceeding before the hearing which provides the Court with the documentary record of Committee No 1’s processing and determination of the second complaint. After the hearing the NZLS sought to file affidavit evidence, which I deal with later in this decision. It did not file a record of proceeding in proceeding 0082. For that proceeding the only evidence available to me is that filed by Mr Deliu pursuant to a notice issued under s 130 of the Evidence Act 2006. No objection was filed to that notice. I am proceeding on the basis the NZLS saw no reason to file a record of proceeding in relation to Committee No 3’s processing and determination of the first complaint.

Overlapping grounds of review

Failure to consider relevant considerations

[92]   Mr Deliu submits that each Committee failed to consider: (a) Mr Flanagan never denied the allegations in either complaint; (b) his failure to address the substance of the complaints was contrary to his duty to candidly engage in the complaints process; and (c) the substance of the complaints. Considerations (a) and (b) overlap, so I shall deal with them together.44

[93]   The Committees’ complaint process was designed to give Mr Flanagan an opportunity to comment on Mr Deliu’s complaints, in accordance with natural justice requirements.45 How Mr Flanagan exercised this opportunity was up to him. I acknowledge Mr Flanagan never expressly denied the allegations in Mr Deliu’s complaints.   However, Mr Flanagan’s responses implicitly rejected the merits of   Mr Deliu’s complaints, which is how they were understood by each committee. No reasons were provided to explain why Mr Flanagan thought the complaints were vexatious, but that was his choice. He was seemingly content to let the material before each Committee speak for itself.

[94]   The case law  cited  by  Mr  Deliu  does  not  support  his  contention  that  Mr Flanagan had a duty to engage with the substance of the complaint in his reply. In

44     The alleged failure to address these relevant considerations is pleaded in paragraph 9 of the statement of claim (SOC) in proceeding 1721 and paragraph 16(I) and (II) in proceeding 0082.

45 See Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008, cl 9(1)(d) and Lawyers and Conveyancers Act 2006, s 142(1).

Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee No

2) a notice had been served on Mr Parlane under s 147(2) of the Lawyers and Conveyancers Act 2006 requiring Mr Parlane to provide to the Standards Committee his full file, mortgage and loan documentation and trust account records relating to the complaint against him.46 As he did not comply a further notice was served. He did not comply with that either. Mr Parlane had also responded to correspondence from the Law Society in an abusive and belligerent manner and generally obstructed any investigation. That conduct was maintained over the period of a year.

[95]In that context, Cooper J stated that:47

… legal practitioners owe a duty to their fellow practitioners and to the persons involved in administering the Act’s disciplinary provisions (whether as members of a Standards Committee or employees of the New Zealand Law Society) to comply with any lawful requirements made under the Act. There must also be a duty to act in a professional, candid and straightforward way in dealing with the Society and its representatives.

[96]   The Judge then added “It is completely unacceptable for a practitioner to engage in what appears to have been an abusive campaign such as Mr Parlane conducted here.”48 Further Cooper J stated:49

It is therefore axiomatic that practitioners must co-operate with those tasked with dealing with complaints made, even if practitioners consider that the complaints are without justification. Not only did Mr Parlane fail to co-operate with the various inquiries which were required to take place under the legislation, but he chose to vilify those who were carrying out their statutory duties. The result was obviously to put obstacles in the way of the performance of those duties.

[97]   Legal Complaints Review Officer v B is aligned with Parlane.50 Goddard J referred to the duty of every legal practitioner “to not wilfully obstruct the administration of justice by non-compliance”.51

46     Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee No 2) HC Hamilton CIV-2010-419-001209, 20 December 2010.

47 At [108].

48 At [108].

49 At [109].

50     Legal Complaints Review Officer v B [2012] NZHC 1349.

51 At [44].

[98]   The duty to comply with the complaints process relates to complying with the Committee’s (or other body as the case may be) “lawful requests”. The opportunity to reply is just that, an opportunity. It is optional. No request had been made by either Committee for Mr Flanagan to provide information. The case law is geared towards those whose ongoing failure to comply obstructs the complaints process and prevents the Committee from carrying out its functions. That was evidently not the case here. Accordingly, the allegations that each Committee failed to consider Mr Flanagan never denied the allegations in the complaints and that he failed to discharge his duty to candidly engage in the complaints process are not established.52

[99]   Each Committee is also alleged to have failed to consider the substance of the respective complaints. 53 However, for reasons given below, in my view Committee No 1’s decision shows that it engaged with the substance of the second complaint. As for Committee No 3 it engaged with one part of the first complaint but overlooked the other part.

[100]I address the second complaint first.

The decision on the second complaint

[101]   Committee No 1’s decision on the second complaint addressed Mr Deliu’s core concerns about the propriety of Mr Flanagan’s conduct.

[102]   Committee No 1 was under the same misunderstanding as Mr Flanagan when it came to the scope of the applicable privilege. From the Committee’s perspective it, like Mr Flanagan, regarded privilege in a criminal proceeding as requiring that the conversation include the possibility of Mr Deliu entering a guilty plea. This meant the Committee would have had no reason to be concerned about Mr Flanagan engaging in guilty plea discussions at such an early stage when Mr Deliu did not have the charges or the police summary of facts, because from the Committee’s perspective

52 For completeness I record that consideration of Auckland Standards Committee 1 v Hart [2012] NZLCDT 26 (as specifically pleaded in the statement of claim in proceeding 1721) in which Parlane and Legal Complaints Review Officer v B are cited and considered, along with further commentary, does not change this conclusion.

53 The relevant grounds of review are paragraph 9 of the SOC in proceeding 1721 and paragraph 16(II) in proceeding 0082.

Mr Deliu had sought the privileged discussions despite this information not being available to him.  Anyone who took such a view would have been flummoxed by   Mr Deliu’s conduct during the phone call when he pushed back hard against the possibility of entering a guilty plea in the absence of proper disclosure, and subsequently complained to the NZLS.54 Once privilege under s 57(2A) is viewed as restricted to plea deals Mr Flanagan’s conduct becomes more explicable, and the Committee’s decision that the complaint lacked substance then appears to be reasonable. As the Committee considered a privileged conversation required the possibility of entering a guilty plea it is understandable that it did not view the subsequent statements by Mr Flanagan as amounting to attempts to pressure Mr Deliu to plead guilty.

[103]   Moreover, whether the scope of privilege in criminal proceedings is regarded as requiring the consideration of possible guilty pleas or not, there is no appearance of pressure being exerted by Mr Flanagan on Mr Deliu to plead guilty. The conversation was not a helpful conversation. In many ways it was a pointless conversation that became increasingly antagonistic because neither participant thought to check with the other as to his understanding of the privilege being discussed and its source. In the phone call Mr Flanagan spoke as if it were a given that privilege requires the possibility of guilty pleas being discussed. Mr Deliu, who was acting for himself and had mostly practised previously as a barrister in the civil jurisdiction, launched into an attack on Mr Flanagan’s expectation that Mr Deliu would make a proposal that contemplated the possibility of guilty pleas to charges that he was yet to see. He did not stop to query where Mr Flanagan’s understanding of the requirements for a privileged discussion came from. If both participants had given some attention to clarifying the other’s respective understanding of the applicable privilege it may have become clear to them that each was working from a different perspective.

[104]   Mr Flanagan clearly viewed criminal privilege as requiring discussion about the possibility of guilty pleas. There is no evidence to suggest what view Mr Deliu held about its scope. The earlier exchange before the phone call shows that it was

54 There has been no allegation that Committee No 1 simply adopted Mr Flanagan’s view of when privilege in a criminal proceeding would apply. In such circumstances I can make no enquiry on that topic. I must proceed on the basis in the Committee’s view privilege required the conversation to include the possibility of a guilty plea being entered.

Mr Deliu who drew s 57(2A) to Mr Flanagan’s attention.55 However, nowhere in the earlier email exchanges does either of them specifically refer to his understanding of the requirements for s 57(2A) to apply.

[105]   Mr Deliu expressly sought the discussion be on a without prejudice basis, yet he took umbrage at the idea the discussion must include the possibility of guilty pleas. This suggests to me he did not think privileged discussions covered by s 57(2A) were required to include the possibility of guilty pleas being entered to the charges. Again, had each participant realised they were working  from a different understanding of    s 57(2A)’s application the conversation may have been abandoned then and there.

[106]   Mr Deliu understandably was surprised that Mr Flanagan thought there was a possibility of guilty pleas being entered to charges for which neither the charge notice nor the police summary of facts had been given to Mr Deliu. I digress here to note that in the criminal jurisdiction the entry of a guilty plea is deemed to be acceptance of the content of a police summary of facts unless the defendant gives notice there are facts therein that are disputed.56 Where that occurs a specific process is provided which can result in a disputed facts hearing.57 In general when entry of guilty pleas is discussed the prosecution and the defence will at the same time discuss the content of the police summary that will go to support the charges to which the guilty pleas are entered. Cases where guilty pleas are entered on the basis the police summary of facts will be subsequently agreed or modified can lead to trouble.58 Typically a reasonable and competent defence counsel would not advise a client to enter guilty pleas without first having ensured his or her client accepted the police summary of facts as correct or ensured modifications sought were either agreed or to be challenged at a disputed facts hearing.

55 See [13] and [14] herein. This email exchange suggests that until he was reminded about s 57(2A) by Mr Deliu Mr Flanagan thought s 57 applied to civil proceedings only and had overlooked the fact the section had been recently amended in 2017 to include privilege for criminal proceedings.

56 McMillan v R [2022] NZCA 128 at [116]. The result was overturned in Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 but the Court of Appeal’s comments here were not affected.

57 Sentencing Act 2022, s 24.

58      See Kondratyeva v Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA)

[2021] NZHC 449.

[107]   Here Mr Flanagan acted defensively by suggesting Mr Deliu knew enough from the earlier communications he had from Mr Flanagan to be in a position to enter guilty pleas. This may have come about from a degree of frustration at finding himself in a position where from his perspective Mr Deliu had sought to engage in privileged discussions regarding the two new criminal charges, but was then acting contrary to what Mr Flanagan saw as a fundamental basis for such privileged discussions to continue.

[108]   By the middle of the conversation each participant was showing a dogged adherence to their respective position without stopping to think that nothing could come of the conversation as long as it proceeded in that fashion. It is not an ideal example of an exchange between prosecutor and defendant/defence counsel. On the other hand it is not an example of Mr Flanagan pressuring Mr Deliu to enter a guilty plea. It is not the substance of conduct that amounts to perverting the course of justice.

Nor do I consider it breaches the ethical rules that applied to Mr Flanagan.59

[109]   Accordingly, I find that Mr Flanagan’s conduct in relation to the second complaint does not constitute an attempt to extort Mr Deliu into pleading guilty to the two attempting to pervert the course of justice charges. This conduct also does not amount to prosecutorial misconduct which was an abuse of process, with Mr Flanagan having perverted the course of justice, acting in bad faith, maliciously or with an improper purpose. It is not therefore surprising that Committee No 1 found this complaint lacked evidence.

[110]   In proceeding 1721, in the alternative to the allegation Committee No 1 failed to address the substance of the complaint, Mr Deliu alleges the Committee failed to give reasons why the complaint allegedly lacked substance.60 He contends this constitutes a breach of natural justice and/or was contrary to s 27 of the New Zealand Bill of Rights Act 1990.

[111]   This allegation is not made out on the facts. Committee No 1 gave enough reasons to explain why it considered the second complaint lacked substance. The

59 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

60     Paragraph 9 of the SOC.

references I have already made to the Committee’s decision shows it addressed this complaint on the merits and found it was not made out. The explanation for why the complaint lacked substance is apparent from the part of its decision set out at [34] herein. The allegation is not established.

The decision on the first complaint

[112]   Here Committee No 3 was faced with  a  complaint  that  informed  it  that  Mr Deliu had made a yet to be determined application in the District Court to stay or dismiss the criminal charges against him because of prosecutorial misconduct, specifically by Mr Flanagan.61 The complaint stated that Mr Flanagan was continuing to act in the criminal proceedings in “breach of his professional obligation to remain independent in the litigation.” The  complaint  also  informed  the  committee that  Mr Deliu “had sought to call [Mr Flanagan] as a witness in support of my motion [the stay application].” The complaint identified r 13.5 of the Client Care Conduct Rules, which provides that:

[168]   Further, a party who calls a witness can face problems if he subsequently tries to impeach that witness’s credibility.81 Mr Flanagan’s explanation for his conduct in the phone call is apparent from the transcript. For Mr Deliu to call Mr Flanagan as a witness and then to question him along the lines that he knew s 57(2A) did not require the discussion include the possibility of guilty pleas and was only presenting matters this way to elicit guilty pleas from Mr Deliu was hardly likely to result in an admission. Matters would have been further complicated by the fact Mr Deliu would be attempting to lead evidence-in-chief from Mr Flanagan, so leading questions would not be permissible.82 If Mr Flanagan had insisted in evidence that his honest view was that any discussion under s 57(2A) required the possibility of guilty pleas being addressed, Mr Deliu would have had a difficult time inviting the District Court not to believe Mr Flanagan’s testimony. Mr Deliu is an experienced litigation lawyer, so he can be expected to know of this aspect of the law of evidence and the difficulties it posed for him if he proceeded with summonsing Mr Flanagan as a witness.

81     See ss 37(4) of the Evidence Act 2006 and the discussion in Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612.

82 See ss 89 and 94 Evidence Act 2006. Before Mr Deliu could ask cross-examination type questions, he would have needed for Mr Flanagan to be declared hostile. However, that typically requires proof the witness has changed his testimony. Here the only known statements from Mr Flanagan are those made in the transcript. If Mr Flanagan’s testimony adhered to what he said in the transcript it is hard to see how that could have resulted in him being declared hostile.

[169]   Against the above background it is difficult to see a good faith explanation for why Mr Deliu would attempt to summons Mr Flanagan to give evidence and while this was still being disputed in the District Court to bring the first complaint against Mr Flanagan. Accordingly, I am satisfied that based on its understanding of the first complaint it was reasonably open to the Committee to make the impugned findings relating to vexatiousness.

[170]   However, in relation to the part of the complaint that the Committee overlooked I consider that in principle there was merit to this part, which would not support findings of vexatiousness. I have already referred to the general approach which usually sees alternative counsel argue against an application for orders debarring a lawyer from acting in a case.

[171]   Further, in Accent Management v Commissioner of Inland Revenue the Court of Appeal considered a challenge by appellant taxpayers to whether the Crown Law Office (Crown Law) was sufficiently independent of the Commissioner that it was able to fulfil its professional obligations given that, inter alia: Crown Counsel may have been required to give evidence in the “extant challenges” proceedings; advice given by Crown Law was the subject matter of those proceedings; and Crown Law could not comply with the NZLS Client Care rules.83 Rule 13.5 was one of the rules considered. There were also allegations that Crown Law had colluded with the Commissioner in making tax assessments that were fraudulent or knowingly contrary to law and had then wrongly maintained this position. It is not clear from the decision if the Crown Counsel who appeared to oppose the removal application were also counsel in the “extant challenges” proceedings.

[172]   The Court of Appeal upheld the findings of Woodhouse J in this Court that there were no reasons for debarring Crown Law from acting. The Court of Appeal also upheld Woodhouse J’s finding that the allegations of Crown misconduct were not relevant to the determination of the “extant challenges” proceedings; there was nothing to suggest that Crown Law would have any compromising influences or loyalties, and the taxpayer’s counsel had advised the Court of Appeal he did not  rely

83     Accent Management v Commissioner of Inland Revenue [2013] NZCA 155, [2013] 3 NZLR 374. The references to Crown Law include the Crown Law office and Crown Counsel within that office.

on the ground Crown Counsel may need to give evidence in those proceedings. Thus, the Court of Appeal assessed the merits of the removal application and found them wanting.

[173]   Accent Management v Commissioner of Inland Revenue is helpful insofar as the decision recognises that the Client Care Rules may be relevant to a Court’s decision whether to debar counsel from acting.84 There are also relevant comments regarding the need for Courts to guard against counsel removal applications being used as a tactical weapon to disadvantage the opposing party. However, the case is different from the present because there the Crown’s alleged misconduct was found not to be in issue in the subject legal proceedings, whereas here the stay application was based on Mr Flanagan’s alleged misconduct as prosecutor disqualifying him from continuing to act in the criminal proceedings. This meant any opposing counsel in the stay application would be opposing the very suggestion Mr Flanagan had misconducted himself in his relations as prosecutor with Mr Deliu. It is   difficult to see how        Mr Flanagan could have acted as opposing counsel in such circumstances and not contravened r 13.5.3.

[174]   I digress to say the evidence Mr Flanagan intended to act as counsel in the stay application comes from Mr Deliu and this issue was never directly addressed by    Mr Flanagan. His implicit denial of the first complaint by labelling it vexatious is not helpful when it comes to details such as was the scenario Mr Deliu alleged going to happen. The first complaint could have ended very quickly had Mr Flanagan said he was not intending to appear as counsel on the stay application. But he did not do so. The implicit denial that Mr Flanagan made by his initial response to the first complaint may be taken to indicate he rejected it, but it cannot be assumed he was also rejecting Mr Deliu’s assertion that Mr Flanagan was to be opposing counsel on the stay application. Accordingly, there is nothing to contradict that assertion. As it transpired Mr Flanagan was recorded as counsel on Judge Paul’s minute (on the papers) adjourning Mr Deliu’s stay application. Clearly at that point the District Court still considered Mr Flanagan to be acting as counsel.

84 At [33].

[175]   I return to consider whether there was merit in the unaddressed part of the first complaint. As I have discussed at [159]–[162], there was no basis for the Committee to refuse to take action on the basis it would interfere in Court processes or that it was a decision for the District Court Judge. Therefore I cannot see why Mr Deliu can be said to be acting vexatiously  if  he  complained  to  the  NZLS  when  faced  with  Mr Flanagan insisting he could appear as counsel in the stay application, given that would have flown in the face of r 13.5.3. Until the merits of the stay application were found to be wanting it had to be treated by the Committee as something that warranted consideration, and it could not simply be trivialised as lacking merit.

[176]   It is regrettable for Mr Deliu that the stronger part of his first complaint was not made clear and it became overshadowed by the witness summons part of the complaint, which had nothing going for it. It is not for me to speculate on whether the Committee would have made the vexatiousness findings if it had considered the other stronger part of the complaint. That cannot be known unless that part of the complaint were to be sent back to the Committee for reconsideration and, for other reasons that I have already identified, that would be futile.

[177]   However, the question now is whether the vexatiousness findings can stand in relation to the part of the complaint the Committee dealt with when it overlooked what in principle would be the strongest part of this complaint. The vexatiousness findings are made by the Committee because in its view, correctly as I have found, there was no basis for the complaint. The fact there was a part of the complaint that it overlooked and this part in principle has merit means the entire complaint cannot be said to suffer from those characteristics. In such circumstances I consider the vexatiousness findings cannot stand. It cannot be assumed the Committee would have made them had it realised the other part of the first complaint. Accordingly, I consider particulars two, three and four of paragraph 17 of the statement of claim are established insofar as the Committee wrongly concluded the entire complaint was vexatious, in bad faith and/or designed to harass and annoy. The available evidence does not support a finding that the entire complaint could be characterised in that way; or put another way there was no evidence before the Committee to support that conclusion.

Unreasonably failing to punish for misconduct

[178]   Paragraph 18 of the statement of claim in proceeding 0082 pleads that Committee No 3 acted unreasonably by allowing Mr Flanagan to go “unpunished” for the alleged breaches of his ethical obligations in relation to his representing the Crown, which he neither addressed, nor denied and wilfully refused to answer the substance of the complaint in “violation of his ethical duty.”

[179]   I have found there was no misconduct by Mr Flanagan as pleaded in relation to proceeding 0082. It follows that Committee No 3 cannot be said to have acted unreasonably when it made no findings against him and imposed no penalties on him. Accordingly, this ground of review is not established against either decision.

Findings of vexatiousness by Committee No 1 and Committee No 3

[180]   In oral submissions in reply at the end of the hearing Mr Deliu submitted that paragraph 15 of Committee No 1’s decision on the second complaint and paragraph 11 of Committee No 3’s decision on the first complaint use the same words to describe his respective complaints as vexatious. Further, he submitted the decisions of both Committees were influenced by the fact he was making the complaint. This is essentially to allege the Committees were biased against him or they had predetermined their decisions based on the fact he was making the complaint. However, in neither proceeding 1721 nor proceeding 0082 do the statements of claim make these allegations as grounds of review. This means neither the relevant Committees nor the NZLS as contradictor have had a proper opportunity to address such allegations.

[181]   Accordingly, I am not prepared to consider this submission given the circumstances in which it was made. Further, I have addressed individually the pleaded complaints Mr Deliu has made about the findings of vexatiousness. In doing so I have outlined separate bases for each Committee making this finding. There is nothing about those findings to suggest one Committee followed the other in making those findings.

Summary of findings on grounds of review in both proceedings

[182]   The grounds of review pleaded in paragraph 16 (II) and (III) of the statement of claim in proceeding 0082 are established. Paragraph 17 of that statement of claim is also established. All other grounds of review are not established.

[183]   The ground of review in paragraph 13 of the statement of claim in proceeding 1721 is established. All other grounds of review are not established.

Relief

[184]   In both proceedings Mr Deliu sought a variety of remedies. I have found that it would be futile to send the first complaint back to Committee No 3 for reconsideration.85

[185]   Apart from the determination that Committee No 1 erred in finding the complaint was vexatious, the rest of the grounds of review in this proceeding 1721 were not established, which means the other findings the Committee made on the second complaint, including that it lacked substance, still stand. Accordingly, there is still a proper foundation for the Committee’s decision to dismiss the second complaint. This means there is no utility in referring the erroneous finding back to the Committee for its reconsideration.86 My decision in this regard is reinforced by the fact the conduct about which Mr Deliu is complaining occurred in May 2018. There is little point now in having a complaint that was properly dismissed for lack of substance reconsidered simply for the purpose of determining whether it was brought vexatiously or not.

[186]   Therefore I consider relief based on the complaints being reconsidered is not available. However, in both proceedings Mr Deliu also sought “rulings” on the various grounds of unlawfulness he had pleaded. I take these to be the same as declarations. Where I have found certain grounds of review have been established, I am prepared to make declarations to that effect.

85     See [152]–[153] herein.

86     Te Whakakitenga o Waikato Inc v Martin, above n 78.

[187]   Accordingly, in relation to proceeding 0082 I am prepared to declare that Committee No 3 acted unlawfully insofar as it:

(a)failed to consider the entire substance of the first complaint;

(b)failed to consider a part of the first complaint;

(c)erred in law that it was not for the Committee to determine whether there was a conflict with Mr Flanagan continuing to act in relation to  r 13.5.3;

(d)found the first complaint was brought vexatiously and in bad faith and with intent to harm or annoy Mr Flanagan when the evidence does not support a finding that the entire complaint can be characterised in this way and/or there was no evidence to support such a finding.

[188]   Other than those declarations the balance of the relief in proceeding 0082 is denied on the grounds it would be futile to grant such relief.

[189]   In relation to proceeding 1721 I am prepared to declare that Committee No 1’s determination that the second complaint was brought vexatiously and/or with the apparent aim to cause harm and annoyance to Mr Flanagan is wrong in law for being in breach of natural justice (there being no reasons or evidence to support the finding). Other than this declaration the balance of the relief in proceeding 1721 is denied.

Post-hearing evidence

[190]   The hearing was on 6 July 2022. On the day of the hearing and afterwards both Mr Deliu and the New Zealand Law Society filed further evidence. It is necessary to deal with the admission of this late filed evidence. Put shortly, I consider for various reasons that none of it is admissible.

[191]   Mr Deliu filed an affidavit on 6 July 2022 (the July 2022 affidavit) in which he outlined the disposition of criminal charges police had laid against other persons for offending that was related to the perverting the course of justice charges that he faces.

Whilst this evidence helps to put the criminal charges that he faces in context, that topic is not relevant to this proceeding. What is of relevance here is whether the Committee  properly  and  lawfully   dealt   with   Mr   Deliu’s   complaint   about  Mr Flanagan’s conduct during the phone call. Accordingly, this aspect of the July 2022 affidavit is not admissible.

[192]   The July 2022 affidavit  also  confirmed that  at  the time of the phone call  Mr Deliu did not have the police charge notice, police summary of facts or any other prosecution material relevant to the perverting the course of justice charges. This aspect of the affidavit is relevant, but it simply confirms what is already apparent from the transcript of the phone call. No-one has suggested otherwise. It repeats evidence that is already available, in circumstances where it is filed late. Accordingly, I consider this part of the affidavit falls into the category of evidence in s 8(1)(b) of the Evidence Act. It adds nothing to what is already known, so to this extent it is unhelpful and lacking in probative value. Further, it breaches the procedural requirements for evidence to be filed before the hearing. Parties in a judicial review proceeding should not be filing evidence after the hearing. They should ensure their respective cases are properly prepared with evidence filed in advance of the hearing. Whilst an indulgence in this respect may be given to late filed evidence that is in the interests of justice for the Court to receive, that does not apply here. I consider this part of the affidavit is inadmissible. As there is nothing else in the affidavit it follows that it is in all respects inadmissible.

[193]   Mr  Deliu’s  July  2022  affidavit   prompted   a   response   affidavit   from Mr Flanagan, which was filed on 9 August 2022 (the Flanagan affidavit). It was also prompted by my refusal to accept evidence from the bar from counsel for the NZLS Ms Davenport QC (as she then was). During her submissions Ms Davenport sought to refer me to other occasions when the NZLS had found Mr Deliu had made vexatious complaints, against Mr Flanagan. I refused to accept such evidence from the bar. Because Ms Davenport seemed to be surprised by my approach I allowed her the opportunity to consider whether she would file affidavit evidence addressing the matters she had sought to advise me of from the bar. I also indicated some scepticism as to its relevance.

[194]   Later, after the hearing, the affidavit of Mr Flanagan sworn on 8 August 2022 was filed by Ms Davenport on behalf of the NZLS.87 The NZLS also filed an affidavit of Alan Dodds dated 9 August 2022, which annexed documents to other complaints Mr Deliu had made about Mr Flanagan. I shall deal with this affidavit later.

[195]   Mr Flanagan’s affidavit begins by stating that the “Court had requested the affidavit” and it was in response to an affidavit filed by Mr Deliu affirmed on 5 July 2022.88 The first part of the aforegoing statement is incorrect. I did not request the affidavit from Mr Flanagan. At the hearing I indicated the NZLS, as the party taking an active role in the proceeding, could have the opportunity to file evidence on the matters it had sought to address me on from the bar. Whether that evidence would be admitted was another matter. After the hearing there was memoranda from the parties regarding further evidence. By then I was concerned both parties were going to unduly prolong the proceeding by raising matters which may not have lent themselves to being dealt with on the papers, and which they should have addressed when preparing for the hearing, had they wanted to raise them. However, I did not want to reconvene the hearing. My position on the question of receiving evidence filed after the hearing is set out in my minute dated 8 August 2022.

[196]   Following receipt of Mr Flanagan’s affidavit Mr Deliu objected to it being admitted. My view having read Mr Flanagan’s affidavit is that it adds nothing to the proceedings. It contradicts parts of Mr Deliu’s July 2022 affidavit (not the parts where Mr Deliu says he had no charge notice, police summary of facts or other police disclosure of the charges he faced). I have already found the July 2022 affidavit to be irrelevant. Evidence from Mr Flanagan contradicting part of an irrelevant affidavit is itself irrelevant.

[197]   Mr Flanagan’s affidavit also refers to and annexes emails between Mr Flanagan and Mr Deliu leading up to the phone call. Any such emails that were before Committee No 1 are contained in the record of proceeding, which it filed in a timely

87 Mr Flanagan has formally filed a notice he would abide the decision of the Court in these proceedings and therefore he has taken no active part in them as a party.

88   This is the affidavit Mr Deliu filed on 6 August 2022.  The fifth of July 2022 was the day before the hearing. However, Mr Deliu swore the affidavit in Texas, United States of America and the date may reflect the time difference between Texas and New Zealand.

fashion before the hearing. This is the information that was available for Committee No 1 to consider. I am concerned with whether Committee No 1 reached proper lawful decisions on the complaint, therefore, my focus is on the information that was before the Committee. I am satisfied the information in the record of proceedings supports the Committee’s findings, except for the vexatious finding on the second complaint.

[198]   Mr Flanagan is a named party in this proceeding. The NZLS intervened successfully as contradictor. They both have had ample opportunity to prepare their cases for the hearing. Mr Flanagan has chosen to abide the Court’s decision. Now, a short while after the hearing NZLS has sworn an affidavit from Mr Flanagan that provides evidence which from Mr Deliu’s perspective is adverse to his case, and disputed by him. It is too late for the NZLS to file evidence that is contentious. Natural justice would require Mr Deliu to be given the opportunity to respond to it. This would extend the proceeding unduly.

[199]   Finally, Mr Flanagan’s affidavit provides evidence of occasions other than the subject complaints where Mr  Deliu  is  said  to  have  acted  vexatiously  towards  Mr Flanagan. Mr Deliu has filed a memorandum complaining about the admissibility of this evidence and wanting the opportunity to file evidence in response. I did not give Mr Deliu this opportunity. This is because I consider evidence of vexatious conduct by Mr Deliu towards Mr Flanagan on other occasions is not relevant or helpful to proof of the issues I must decide.

[200]   First, this evidence was not before either Committee. The Committees do not say in their decisions that they were taking account of other occasions where Mr Deliu had acted vexatiously towards Mr Flanagan. With the first complaint I have already found the information in the record of proceeding self-evidently supports a finding the complaint was made vexatiously. With the second complaint, as I have already mentioned, I consider that finding is also self-evident, but it rests on a mistaken interpretation of when a discussion can be privileged under s 57(2A) of the Evidence Act. Once that error is removed there is nothing that self-evidently supports the vexatious finding on the second complaint. Hence my decision to make a declaration that complaint was not made vexatiously.

[201]   The inclusion in Mr Flanagan’s affidavit of narrative on other “vexatious” conduct by Mr Deliu is seemingly the NZLS’s response to my refusal to accept the narrative from the bar. Irrespective of the strength of the material purporting to show Mr Deliu has acted vexatiously towards Mr Flanagan on other occasions, it is not relevant to the decisions I have to make in this proceeding because it was not before either Committee when it made its decisions.

[202]   I am seized with judicial review proceedings of the subject two decisions. Accordingly, I must take into account the material that was before each Committee when it made its decision. Any decision the Committees made on one or other of the subject complaints being vexatious or designed to harass Mr Flanagan had to be supported by material that was before the Committee at the relevant time it made its decision, and such evidence must logically tend to support findings of Mr Deliu behaving in that way. Evidence of Mr Deliu acting vexatiously towards Mr Flanagan that was not before the Committees is irrelevant to the decisions I have to make, and for that reason it is not admissible.

[203]   Second, the fact Mr Deliu has acted vexatiously towards Mr Flanagan on other occasions which were not before either Committee at the relevant time might, if it had been available to the Committee, have constituted propensity evidence of vexatiousness. When a decision-maker is invited to use propensity evidence the decision maker must be fully apprised of the purported propensity evidence so that he or she can determine whether it does establish the propensity relied on. Nothing like that has happened here. Indeed, the evidence I have received has been filed in circumstances where Ms Davenport did not provide me with submissions that set out the relevance of Mr Flanagan’s affidavit, and how I might use it to reach my decision on the proceedings. Accordingly, I am satisfied there are sound reasons for not admitting Mr Flanagan’s affidavit.

[204]   The NZLS also filed an affidavit dated 9 August 2022 from Alan Dodds, which sets out multiple complaints Mr Deliu made to the Lawyers’ Complaints Service of the NZLS about Mr Flanagan. This no doubt was also in response to my refusal to accept this narrative from the bar. Mr Deliu then queried by memorandum whether Mr Dodds has the necessary authority to file the affidavit. Ms Davenport looked into

this matter and concluded that Mr Dodds lacked the necessary authority.89 A fresh affidavit sworn on 10 August 2022 by Neil Klein, a senior professional standards officer with the necessary authority to swear the affidavit, was then filed.

[205]   For the same reasons that I found Mr Flanagan’s affidavit was inadmissible I also find Mr Klein’s affidavit is inadmissible.

[206]   I observe that the NZLS has been heard as contradictor in these proceedings. I expect an entity like the NZLS to appear before the Court in circumstances where it has properly prepared its case in a timely fashion that meets the requirements of the High Court Rules. It should not be seeking this Court’s indulgence by allowing evidence to be filed after the hearing.

Publication

[207]   The decisions on the first and second complaints were the subject of confidentiality orders by the respective committees which made those decisions. In this proceeding at no time did any of the parties or the contradictor seek suppression orders from this Court to continue the effect of the confidentiality orders made by Committee No 1 and Committee No 3. The parties’ names appear on the intituling and they would have been publicly listed whenever they were before the Court for hearing. Further, the subject matter of this proceeding, in particular the phone call between Mr Deliu and Mr Flanagan on 17 May 2018 has been the subject of multiple proceedings in this Court. They are referred to in this judgment when I was considering the question of whether any of the other judgments delivered in those proceedings might create res judicata/issue estoppel/abuse of process issues for the findings I have made in this decision.90 Several of those judgments quote the transcript of the phone call.91 None of those judgments have anonymised either Mr Deliu or

89 Ms Davenport included a request in her memorandum that Mr Dodds’ affidavit be removed from the Court file. I refuse to make that direction. Mr Dodds’ affidavit is now part of this Court’s record.

90 See [55]–[60] herein.

91 Davison J’s judgment Deliu v Flanagan, above n 2, quotes the transcript at [26], which is reproduced in Deliu v R, above n 22, at [3] and Deliu v Attorney-General, above n 18, at [4]. Further reference to the 17 May 2018 phone call in the public domain includes Deliu v Attorney- General, above n 25, at [2], [14], [20] and [80]; Deliu v Attorney-General [2021] NZHC 2246 at [50]; and Deliu v Auckland District Court, above n 2, at [25].

Mr Flanagan’s identity. It follows that the subject matter of this decision including the identity of Mr Deliu and Mr Flanagan are already in the public domain. Anybody wanting to identify the identity of the prosecutor involved in this proceeding could do so from reading other judgments which refer to Mr Deliu, Mr Flanagan and the phone call.

[208]   Accordingly, I am satisfied that there is no utility in attempting to continue the effect of the confidentiality orders made by Committee No 1 and Committee No 3. I consider the utility of those rulings now to be spent. In such circumstances I propose to use the inherent jurisdiction of this Court to control its own processes by determining 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. This Court has long upheld the principle of open justice.92 There is no purpose in this Court seeking to impose confidentiality orders that are now futile and have no longer any proper purpose.93

Result

[209]In proceeding 0082 I declare Committee No 3 acted unlawfully insofar as it:

(a)failed to consider the entire substance of the first complaint;

(b)failed to consider a part of the first complaint;

(c)erred in law that it was not for the Committee to determine whether there was a conflict with Mr Flanagan continuing to act in relation to  r 13.5.3;

(d)found the first complaint was brought vexatiously and in bad faith and with intent to harm or annoy Mr Flanagan when the evidence does not support a finding that the entire complaint can be characterised in this way and/or there was no evidence to support such a finding.

92 See Scott v Scott [1913] AC 417; Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 (CA) at 122–123 and Dorchester Finance v Ngahuia Ltd HC Auckland CIV 2009-404-2529, 21 June 2010 at [6]–[15].

93 See New Zealand Post Ltd v Prebble [2001] NZAR 360.

[210]   I decline to grant any other relief sought in this proceeding for the reasons given herein.

[211]   In proceeding 1721 I declare Committee No 1’s determination that the second complaint was brought vexatiously and/or with the apparent aim to cause harm and annoyance to Mr Flanagan is wrong in law for being in breach of natural justice (there being no reasons or evidence to support the finding).

[212]   I decline to grant any other relief sought in this proceeding for the reasons given herein.

[213]   The parties have 10 working days from the date of delivery of this judgment to file memoranda on costs. I am no longer sitting as a Judge given my retirement on  20 April 2023. However, pursuant to s 177 of the Senior Courts Act 2016 my warrant to complete matters I was seized of before the retirement date extends for three months; this includes the completion of this judgment and the costs awarded thereon. Accordingly, I shall determine the question of costs in this proceeding. The registry is to direct the parties’ memoranda on costs to my attention.

Duffy J

Solicitors/Counsel:

Crown Law, Wellington

Kate Davenport QC, Barrister, Auckland