Deliu v Johnstone
[2021] NZHC 2274
•31 August 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1098
[2021] NZHC 2274
BETWEEN FRANK DELIU
Plaintiff
AND
DAVID JOHNSTONE, MARK HARBOROW AND NICK FLANAGAN
First to Third Defendants
THOM CLARK
Fourth DefendantNEW ZEALAND POLICE
Fifth DefendantMIKE BUSH, STEPHEN PEAT, GILLIAN HOLLAND, TONI JORDAN AND TONY MCKENZIE
Sixth to Tenth Defendants
Hearing: 6 May 2021 Appearances:
Plaintiff in person
D Jones for Fifth to Tenth Defendants
Judgment:
31 August 2021
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 31 August 2021 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Crown Law Office, Wellington Copy for: Plaintiff
DELIU v JOHNSTONE [2021] NZHC 2274 [31 August 2021]
Introduction
[1]This judgment determines applications by the plaintiff, Mr Deliu, for orders:
(a)debarring the fifth defendant, the New Zealand Police (“Police”), from continuing to defend this proceeding for (alleged) non-compliance with an “unless order” for discovery that Walker J made by consent in March 2021; and
(b)requiring the fifth to tenth defendants (together “the defendants”) to admit facts and answer interrogatories. I have no jurisdiction to order a party to admit a fact or facts and accordingly say no more about that application.
[2] The first to third defendants are partners in the law firm Meredith Connell, and the fourth defendant is a solicitor formerly employed by Meredith Connell. The sixth to tenth defendants are Police officers.
Background
[3] In October 2020, Mr Deliu made an application for discovery and served a notice to answer interrogatories.
[4] There was some back and forth between the parties regarding the applications, but ultimately, at a case management conference on 11 March 2021, and by consent, Walker J made an “unless” order requiring the defendants to give discovery. The Judge also ordered that the defendants particularise their objections to the interrogatories, both by 20 March 2021.1
[5] The defendants contend they have complied with their discovery obligations and are required to answer very few of the interrogatories. Mr Deliu maintains that the defendants have not given discovery as required and also that all the interrogatories must be answered. To determine the applications, it is necessary first to address the allegations Mr Deliu makes in his amended statement of claim of October 2019.
1 Deliu v Johnstone HC Auckland CIV-2019-404-1098, 11 March 2021 at [2].
False allegation of fraud
[6] Mr Deliu alleges the defendants falsely accused him of misleading the Court and/or participating in an ongoing criminal conspiracy or unlawful activity. The background to this allegation is as follows.
[7] Mr Deliu represented Mrs Llanys Burgess in Commissioner of Police v Burgess (“CIV-2893”).2 Mr and Mrs Burgess’s assets were restrained under the Criminal Proceeds (Recovery) Act 2009. Mrs Burgess was receiving a weekly living allowance pursuant to s 28(1) of the Act.
[8] The Commissioner of Police, represented by Mr Johnstone, the first defendant in the present proceeding, applied for orders cancelling payment of the allowance, and requiring Mrs Burgess and/or her “legal services provider”, who was unnamed in the application but Mr Deliu I take it, to repay whatever sum she had applied to pay legal expenses. As I understand it from the pleadings in the present proceeding, the Commissioner’s application against the lawyer was withdrawn prior to being heard.
[9] Duffy J heard the application against Mrs Burgess in mid-2015 and issued her judgment on 26 August 2015. Aside from anything else, the Judge was not persuaded that Mrs Burgess would have acted improperly had she applied the allowance as alleged. Also no order against the legal services provider would have been possible, first because he or she was unidentified and, secondly, he or she was not a party to the proceedings.
Breach of privacy
[10] Mr Deliu alleges that, in or about June 2015 and without notice to him, the defendants, through the Financial Intelligence Unit (“FIU”), obtained his private information, including personal and/or business bank records, in the course of CIV-2893.
2 Commissioner of Police v Burgess [2015] NZHC 2026.
Ultra vires investigation
[11] Mr Deliu alleges that the Police investigated whether he breached an order which suspended him from practising law between 1 February 2017 and 30 April 2018, and that its doing so was ultra vires its jurisdiction, and solely within that of the New Zealand Law Society (“NZLS”).3
Abuse of process
[12] On 19 July 2017, Mr Deliu is alleged to have shoved, and thereby assaulted, a staff member at a school holiday programme. The Police were notified of the incident, but it appears their investigation of the same went into abeyance shortly thereafter. The file was later “reactivated” and, Mr Deliu having left New Zealand, some form of alert placed at the border in the event of Mr Deliu’s return.
[13] Mr Deliu contends that Police response was disproportionate having regard to the circumstances of the matter, which in turn evidences a collateral purpose, and therefore an abuse of process.
19 March 2021
[14]By letter to Mr Deliu of 19 March 2021, Crown Law:
(a)Provided three documents relevant to the claim arising from the alleged assault.
(b)Advised that the Police did not undertake an investigation into the matter referred to in [11] above; that it did investigate whether Mr Deliu had perverted the course of justice; and that, in the course of that investigation, the Police became concerned that Mr Deliu’s conduct raised issues about his professional conduct which should be drawn to the attention of the NZLS. A letter to that effect was written to the NZLS on 30 April 2018, a copy of which Mr Deliu already had.4
3 Lawyers and Conveyancers Act 2006, s 28.
4 The letter of 30 April 2018 was written by Detective Holland, the eighth defendant.
(c)Advised that the Police had undertaken a search of the relevant records and that “on or about June 2015 the defendants, through their Financial Intelligence Unit, did not obtain your private financial information in the course of a proceeds of crime case”.
[15] Also on 19 March 2021, Crown Law filed and served a memorandum particularising the objections to many of the interrogatories.
Response
[16] In a memorandum filed and served in early April 2021, Mr Deliu signalled he was not satisfied that there had been compliance with Walker J’s order regarding discovery or that the objections to the interrogatories were sound.
Mr Boyd-Clark
[17] This memorandum was followed by an affidavit of 5 May 2021, sworn by Mr Glenn Boyd-Clark, a solicitor employed by the Police, confirming much of Crown Law’s letter of 19 March 2021.
[18] Mr Boyd-Clark stated that, having made enquiries, he was satisfied that the FIU did not undertake an investigation of Mr Deliu’s financial affairs on or around June 2015 and that there is no material meeting the test for discovery in relation to the matter; and that the Police did not investigate whether Mr Deliu practised law whilst suspended.
[19] As to the alleged assault, Mr Boyd-Clark stated that in 2019 the Police provided Mr Deliu with its internal records in respect of the investigation and, in addition, had provided the three documents referred to in the letter of 19 March 2021. Mr Boyd-Clark also stated that the only information Customs would have is the “monitor alert” requiring Customs to notify the Police if someone with Mr Deliu’s name and date of birth entered New Zealand, and which alert expired on 21 May 2018. Mr Boyd-Clark has since provided a copy of the alert.
[20] Mr Boyd-Clark also said that he understood and had complied with the defendants’ discovery obligations; that the defendants had given discovery of all relevant documents; and that the additional documents Mr Deliu sought did not exist or that Mr Deliu already had them.
Mr Deliu’s submissions on discovery
[21] Mr Deliu contends the defendants must have more documents than they have provided.
[22] Mr Deliu submits that it is impossible there is no “paper trail” in relation to the proceeds of crime matter. Mr Deliu submits that there must have been some investigation before he was “accused”. For myself, I am not satisfied that is correct. The little material there is before me on this subject suggests the information may have been derived from Mrs Burgess’s bank statements.
[23] Mr Deliu is also adamant that he has seen a Police document indicating that the FIU had investigated him sometime in mid-2015.
[24] Given Mr Boyd-Clark’s denial, Mr Deliu says that he wishes to know whether the FIU investigated him, in any manner whatsoever, and whether by obtaining bank records or anything else. Mr Deliu indicated that he could amend his pleading to enlarge the period if required.
[25] Turning to the NZLS issue, Mr Deliu does not accept the Police denial of any investigation of him for practising whilst suspended.
[26] It is necessary to say more about this matter. In mid-2016, the Police investigated a partner and employee (“S” and “W”) of a law firm with which Mr Deliu was previously associated. The two were investigated and charged in connection with some form of fraud, arising from W purporting to witness a document which had not been executed in front of W. Both were discharged without conviction in 2018.
[27] In or about April 2018 the Police charged Mr Deliu and his former colleague or associate, Mr Zhao, with perverting the course of justice (“criminal charges” or
“criminal proceeding”). From the summary of facts in respect of those charges it appears the Police contend that Mr Deliu and Mr Zhao sought to prevail on S and W not to discuss matters with the Police.
[28] Detective Holland, the eighth defendant, wrote to the NZLS on 30 April 2018, enclosing copies of witness statements from S and W. The Detective informed the NZLS of the charges against Mr Deliu and Mr Zhao, and, in summary, also said that the two may have breached orders suspending them from practice.
[29] The gist of Mr Deliu’s submission to me was that the Police solicited information from S and W for the purpose of providing it to the NZLS, and that the vast majority of the witness statements have nothing to do with the allegation that he and Mr Zhao perverted the course of justice. Mr Deliu wishes to see all relevant documents leading up to the obtaining of the statements.
[30] On the claim arising from the alleged assault, Mr Deliu submitted, correctly, that one document which must exist even on the Police evidence was the request to Customs to place the border alert. However, and as I have said, this document has now been provided. Mr Deliu also referred me to a Police “Record” of various notes, which was not provided to him on discovery. Again, nothing turns on this as Mr Deliu already has this document, and indeed has done so since June 2019.
Discussion
[31] Drawing all of these matters together, I have an affidavit from a solicitor, Mr Boyd-Clark, saying that he has made enquiries; that the Police did not investigate Mr Deliu’s financial records on or around June 2015, or investigate him for practising whilst suspended; that the defendants have provided all the documents required pursuant to Walker J’s order; and there are no further documents.
[32] I am not persuaded that any further documents relating to S and W could have any relevance to Mr Deliu’s claim. My reading of the witness statements is that they are principally concerned with S and W’s offending, and allegations that Mr Deliu and Mr Zhao discouraged them from assisting the Police with their enquiries. I am
certainly not persuaded on what I have seen that there are grounds to doubt Mr Boyd-Clark’s sworn denial of Mr Deliu’s allegation of an investigation.
[33] In short, I am not satisfied there has been non-compliance with Walker J’s order as to discovery, and decline the order sought. Having said that, to date no affidavit of documents which complies with High Court Rules 2016, r 8.15 has been filed and served. I require the defendants to attend to this as soon as possible — say within two weeks — after there has been a sufficient change to the current “lockdown” level (presently at Level 4), to make that feasible.
Interrogatories
[34] Mr Deliu seeks answers to 130 interrogatories, albeit some are consequential on answers to preceding questions. Of these, the defendants agree to answer:
(a)44, and indeed have already done so. As the answer to question 44 is “no”, questions 45 to 48 fall away.
(b)49 to 57 (although 51 and 52 duplicate 49 and 50), 83 to 90, and 103 and 104.
[35] The defendants decline to answer the balance on the basis they are oppressive and/or irrelevant and/or the information sought is privileged.
[36]My orders regarding the same are as follows.
Questions 1 to 43 — Mr Deliu’s bank records
[37] Questions one, two and four ask whether the fifth to seventh defendants have ever searched, viewed, perused, acquired or obtained a copy of any bank records for an account of which Mr Deliu was the or one of the account holder(s), or a director or shareholder of the account holder(s). Question 18 is similar but concerns the records of any account held by the trustees of any trust of which Mr Deliu is a beneficiary.
[38] Question 31 asks whether “other financial records” “relating to the plaintiff” were ever “directly or indirectly obtained”.
[39] The other questions in this section are predicated on the defendants answering yes to the above questions.
[40] The defendants object to these interrogatories on the grounds they are irrelevant to the issues in the proceeding, and oppressive in scope.
Discussion
[41] The relevant allegation in the amended statement of claim is that the FIU obtained Mr Deliu’s personal information on or around June 2015. This cannot support enquiries as to whether the FIU has ever done so, let alone in respect of a broad range of entities with which Mr Deliu may have or have had some association and/or of which the defendants have no existing knowledge. I accept the defendants’ submission the interrogatories are both irrelevant and oppressive, and they are not required to answer them. Mr Deliu’s interrogatories on this subject have all the hallmarks of a fishing expedition, seeking to obtain evidence to support a different allegation to that made in his pleading.
Questions 44 to 48 — ultra vires investigation
[42] Question 44 asks whether the NZLS has ever delegated to the Police any power to file a charging document against Mr Deliu in relation to an offence under ss 21 to 24 of the Lawyers and Conveyancers Act 2006. The Police have answered question 44 “no”.
[43]Questions 45 to 48 fall away, as they assume question 44 is answered “yes”.
Questions 58 to 73 — S and W
[44] Questions 58 to 63 ask whether S and W’s statements have been filed in the District Court in the criminal proceeding; if so, how it is contended the statements would be relevant to that proceeding; and whether “anybody from the [Police] was involved in the drafting or review of, or filing” the same.
[45] Questions 64 to 67 ask whether any solicitors to the Police were involved in drafting, reviewing, or filing the statements, or in interviewing, questioning or interrogating S or W prior to the making of the statements.
[46] Questions 68 to 73 ask whether it is correct the Police did not oppose S or W’s applications to be discharged without conviction; if so, why; and whether that lack of opposition was conditional on S and/or W giving evidence that Mr Deliu practised law whilst suspended.
[47] The defendants contend these questions are irrelevant to the issue in this proceeding, that is whether the Police investigated Mr Deliu for practising whilst suspended, and so acted ultra vires their jurisdiction. The defendants also submit that the information sought as to the involvement or lack thereof of the Police solicitors is privileged.
[48] Mr Deliu submits the questions/answers are relevant as they will assist him in ascertaining whether the Police investigated him in connection with matters outside their jurisdiction. He also submits legal privilege does not attach to illegal conduct.
Discussion
[49] I am not satisfied that questions 58 to 67, 69 and 72 are relevant to Mr Deliu’s allegation that the Police investigated him for practising whilst suspended. As I have said, my reading of S’s and W’s statements are that they are principally concerned with the matters referred to in [32] above, not whether Mr Deliu was practising whilst suspended.
[50] However, questions 70 and 73 conceivably have some relevance to that allegation, but it will be necessary for answers to be given to 68 and 71 to put the matter in context. Those four questions are to be answered.
Questions 74 to 78 — criminal proceeding
[51] Question 74 asks if the Police put the material annexed to an affidavit that Mr Deliu swore on 20 March 2020 in evidence in the District Court in support of its
case on the criminal charges. If so, questions 75 to 78 ask why, and if they did not, why the documents are part of the Police file on Mr Deliu.
[52] The defendants submit these questions are irrelevant to the present proceeding. Mr Deliu responds that he seeks to show that, in investigating him for perverting the course of justice, the Police had the ulterior motive of investigating him for practising law whilst suspended.
Discussion
[53] I am unable to see how the filing of material on the criminal charges, or the failure to do so, could assist Mr Deliu in proving that the defendants investigated him for practising whilst suspended. What has or has not been filed in the District Court on the criminal charges cannot affect that factual issue.
[54]The defendants are not required to answer these questions.
Questions 79 to 102 — Mr Deliu’s complaints and litigation against Police
[55] Questions 79 to 82 ask whether it is correct that Mr Deliu brought a civil proceeding in this Court against the Police in September 2016.
[56]I need not address questions 83 to 90 as the defendants agree to answer these.
[57] Questions 91 and 92 ask if it is correct that on 31 August 2016 Mr Deliu made a complaint against a DSS Chapman to the Independent Police Conduct Authority (“IPCA”) and another (I assume again to the IPCA) against Detective Holland.
[58] Question 93 and 94 ask if Duffy J found for Mr Deliu in an earlier proceeding against the Police.
[59] Questions 95 and 98 concern the content of the summary of facts on the criminal charges (“summary of facts”).
[60] Questions 96, 97, 99 and 100 ask whether there is any law against lodging a complaint against the Police, or suing or threatening to sue the Police, and, if not, why the summary of facts contains certain statements.
[61] Questions 101 and 102 ask if Mr Deliu has been charged with attempting to pervert the course of justice because he has made complaints, or sued or threatened to sue, the Police or its officers.
[62] The defendants object to answering these questions on the basis the answers are variously matters of court record or the answer is known to Mr Deliu or require answers on matters of law.
Discussion
[63] I accept the defendants’ submission in [62] above. Moreover, I am not able to discern the relevance of the questions to the issues that are raised in this proceeding, whatever their relevance may be to the criminal proceeding. The defendants are not required to answer these questions, that is with the exception of 83 to 90.
Questions 103 to 119 — investigation of alleged assault an abuse of process
[64]Questions 103 and 104 will be answered by the Police.
[65] To put the other questions in this section in context, on 22 January 2018, the tenth defendant, Detective Sergeant McKenzie, sent the following email to a colleague, and which was copied to the ninth defendant, Detective Jordan, relating to the alleged assault referred to above:
Hi James, any chance you can give me a call when you are free about this file. I see that the file has been inactivated and do not know what enquiries have been done but the offender is no longer in NZ. Fraud squad and one of my team have prosecutions for him for fraud and assault matters. The offender is a lawyer, has been making IPCA complaints and is even taking private prosecutions out against police staff. It would seem to me that this is a case we should make sure is progressed so that he can be arrested on his return to NZ…
[66] Questions 105 to 110 ask whether DS McKenzie knows DSS Chapman, and Detectives Holland and Jordan, and if so from when.
[67] Questions 111 and 112 ask why, in his email, DS McKenzie referred to Mr Deliu’s complaints and litigation, and how he knew of those complaints and litigation.
[68] Question 113 asks why DS McKenzie believed the assault case should be progressed.
[69] Question 114 and 115 ask whether there was, or still is, a border alert. These questions were answered at the hearing; there was a border alert, and it has since lapsed.
[70] Questions 116 to 118 seek to know the meaning of terms referred to in DS McKenzie’s email; “WTI”, “K9 alert”, and “WTI – K4”.
[71] Question 119 asks which is the “fraud” matter to which DS McKenzie refers in his email.
[72] The defendants query the relevance of 105 to 119. Mr Deliu submits they go directly to his allegation that the re-activation of the investigation of the alleged assault and the placing of the border alert was for a collateral purpose, and thus an abuse of process.
[73] I accept Mr Deliu’s submission that these interrogatories, that is 105 to 119 inclusive, are relevant to the issues in this proceeding, and require the defendants to answer them.
Questions 120 onwards — questions relating to the motivation for charging Mr Deliu
[74] Questions 120 to 123 concern an email of 26 April 2016 from the third defendant, a partner at Meredith Connell, to Mr Deliu. The email responds to an assertion of privilege by Mr Deliu, informs him that the Police will soon lay charges against him for attempting to pervert the course of justice, and that, given Mr Deliu’s absence from New Zealand, a warrant to arrest will be sought, to lie at the border pending Mr Deliu’s return.
[75] Question 120 to 123 asks whether the email was sent on the instructions of the Police or any of its Constables, and if so why Mr Deliu was advised the charges would be laid against him, that a warrant for his arrest would be sought, and would lie at the border if issued.
[76] Questions 124 to 126 ask if the Police have ever in the past advised an overseas accused that charges have been laid against them, and that a warrant for their arrest would be sought and lie at the border if granted.
[77] Question 127 asks why the Police filed charges against Mr Deliu in August 2018, when they knew he was out of the country and could not be served with a summons.
[78] Questions 128 to 130 ask whether the criminal charges against Mr Zhao were withdrawn, whether the charges against Mr Deliu were withdrawn, and what justifies this apparent difference in treatment.
[79] The defendants challenge the relevance of interrogatories 120 to 123 and 127 to 130, and challenge 124 to 126 on the ground such a broad line of questioning is oppressive.
[80] Mr Deliu submits that questions 120 to 123 “tend to prove misuse through a pattern”; that he will accept answers to 124 to 126 “to the best of the defendants’ knowledge and belief”; and that 127 to 130 show “ongoing disproportionate treatment to lead to a repleading”.
[81] I accept the defendants’ submission as regards to interrogatories 124 to 126. These interrogatories are oppressive, even confined as Mr Deliu proposes.
[82] More generally, however, I am not persuaded these questions, which are concerned with the criminal charges, are relevant to the case as it is presently pleaded. The defendants are not required to answer these questions.
Result
[83] I dismiss the plaintiff’s application to debar the fifth defendant from continuing to defend this proceeding.
[84] I require the defendants (or some of them as the case may be) to answer interrogatories 44; 49 to 57; 83 to 90; 103 and 104; 68, 70, 71 and 73; 105 to 119, this to be done by 4 pm, 30 September 2021.
[85] The parties may make brief submissions on the matter of costs and disbursements if they wish.
Peters J
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