Deliu v National Standards Committee
[2014] NZHC 2739
•4 November 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-1308 [2014] NZHC 2739
UNDER THE Lawyers and Conveyancers Act 2006 IN THE MATTER OF
s 253 Appeal
BETWEEN
FRANCISC CATALIN DELIU Appellant
AND
THE NATIONAL STANDARDS COMMITTEE
Respondent
Hearing: 4 September 2012 Appearances:
Mr Deliu in person
W C Pyke for the respondentJudgment:
4 November 2014
JUDGMENT OF THOMAS J
This judgment was delivered by me on 4 November 2014 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
FR Deliu, Auckland. W C Pyke, Auckland.
DELIU v THE NATIONAL STANDARDS COMMITTEE [2014] NZHC 2739 [4 November 2014]
Introduction
[1] The National Standards Committee of the New Zealand Law Society (the Committee) has laid 12 misconduct charges against Mr Deliu, a lawyer based in Auckland. The charges allege that Mr Deliu committed misconduct by deliberately or recklessly making false, intemperate and scandalous allegations against named Justices of the High Court. The Committee sought leave from the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) to amend the charges. Mr Deliu opposed the application but the Tribunal granted it. Mr Deliu has appealed that decision.
[2] The 12 charges include six alternative charges. The first two alternative charges relate to conduct in July 2008 and are laid under s 112(1)(a) and (b) of the Law Practitioners Act 1982 respectively:
(1) Subject to this Part of this Act, if after inquiring into any charge against a practitioner the New Zealand Disciplinary Tribunal—
(a) Is of the opinion that the practitioner has been guilty of misconduct in his professional capacity; or
(b) Is of the opinion that the practitioner has been guilty of conduct unbecoming a barrister or a solicitor…
[3] The remaining charges relate to conduct after 1 August 2008 and are laid under s 7(1)(b)(ii) of the Lawyers and Conveyancers Act 2006 (the Act) which repealed the Law Practitioners Act 1982. Each charge is alternatively laid under s
7(1)(a)(i) and 7(1)(b)(ii):
7Misconduct defined in relation to lawyer and incorporated law firm
(1) In this Act, misconduct, in relation to a lawyer or an incorporated law firm,—
(a) means conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct—
(i) that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable; or
…
(b) includes—
…
(ii) conduct of the lawyer or incorporated law firm which is unconnected with the provision of regulated services by the lawyer or incorporated law firm but which would justify a finding that the lawyer or incorporated law firm is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer or an incorporated law firm.
Proposed amendments
[4] The Committee had signalled its intention to amend the charges by memorandum on 3 December 2012. However it had to wait until Mr Deliu’s challenges were heard and delivered.1 The Committee filed its application to amend the charges on 24 January 2014. The Tribunal hearing date was 1 May 2014.
[5] The Committee sought to amend the charges from:
(1) misconduct… by virtue of deliberately or recklessly making false,
intemperate and scandalous allegations…
to
(2) misconduct… by virtue of making allegations… that either were false or were made without sufficient foundation…
[6] The amendments were sought on the grounds that the amendments to the charges were:
By way of a clarifying amendment and to conform to presently available proof, and fairly puts the lawyer charged on notice of the allegations he has to answer.
[7] The Committee submitted that the Tribunal could allow the amendments as part of its control over processes under s 252 of the Act:
252 Power of Disciplinary Tribunal to determine procedure
1 Mr Deliu’s application to the High Court challenging the validity of the Committee’s 2 February
2012 decision and the validity of directions given by the Deputy Chairperson of the Tribunal on
23 October 2012.
Except as provided by this Act or by rules made under this Act, the
Disciplinary Tribunal may determine its own procedure.
[8] The Committee also sought to delete some of the particulars on the ground that the statements were evidential only and were no longer relied on as particulars of the charge.
Proposed additional evidence
[9] The Committee sought leave:
(a) to adduce two affidavits sworn by Mr Deliu on 9 September 2008 and
19 August 2013; and
(b)to file and serve copies of cases referred to in Mr Deliu’s letters to the Judicial Conduct Commissioner (JCC) and the Chief High Court Judge, decisions in which Harrison J mentions nationality and judgments in proceedings the subject of Mr Deliu’s complaints.
Tribunal’s decision
[10] The Tribunal held that the evidence in respect of the proposed amended changes was substantially the same as already submitted and that Mr Deliu had long had notice of that.2 There was no prejudice to Mr Deliu in allowing the amendments and the essence and particulars had remained from the outset.3
[11] With regard to the additional evidence, the Tribunal was satisfied that the affidavits of Mr Deliu were relevant and admissible and should be admitted into evidence. Likewise, “the judgments and sentencing decisions reach the test of admissibility as public records and relevance to the proceedings and are to be admitted into evidence”.4
[12] Mr Deliu appealed the decision on the following five grounds:
2 National Standards Committee v Deliu [2014] NZLCDT 24, at [17].
3 At [18].
4 At [23].
(a) The Tribunal failed to apply any law or alternatively failed to correctly apply two of its own recent decisions.
(b)The Tribunal erred in fact in deciding that the proposed amended charges and initial charges were materially the same.
(c) The Tribunal misguided itself by focusing on whether the evidence was substantially the same.
(d)The Tribunal failed properly to take into account Mr Deliu’s submissions or otherwise failed to give reasons why his submissions (in particular those relating to the reverse onus) were not preferred.
(e) The Tribunal erred in law in ruling that the judgments/decisions and affidavits were relevant.
Approach on appeal
[13] On a general appeal, the appellate court has the responsibility of considering the merits of the case afresh.5 In Austin, Nichols & Co Inc v Stichting Lodestar, Elias CJ stated that the appellate court must reach its own opinion “even where that opinion is an assessment of fact and degree and entails a value judgment”.6 She continued:7
If the appellate Court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[14] This does not mean that the appellate Judge should be “uninfluenced” by the
lower court. 8 What influence the lower court’s reasoning should have is for the High
Court’s assessment. As Elias CJ stated in Austin, Nichols:9
5 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
7 At [16].
8 Kacem v Bashir, above n 5, at [31].
9 Austin, Nichols & Co Inc v Stichting Lodestar, above n 6, at [17].
The High Court Judge was obliged to reconsider the issue. He was entitled to use the reasons of the Assistant Commissioner to assist him in reaching his own conclusion, but the weight he placed on them was a matter for him.
[15] Mr Pyke, appearing for the Committee, pointed out that the Act does not envisage wide-ranging interlocutory hearings prior to the substantive hearing, as the focus is on getting disciplinary proceedings to a hearing quickly and efficiently.10
He noted that there is some doubt as to whether these matters should be dealt with by way of an interlocutory appeal but the Committee was not pursuing the point at this stage and therefore I take it no further.
Did the Tribunal fail to apply its own recent decisions?
[16] Mr Deliu submitted that the Tribunal applied no legal test when considering the amendment of the charges. The cases of Wellington Standards Committee v Hall and Auckland Standards Committee v Hylan should have been applied.11
[17] The Hall decision involved an amendment opposed by the practitioner on the ground that, inter alia, the amendment lowered the relevant negligence threshold. The Tribunal considered that the amendment made no such difference. It considered the amendment was of a de minimis nature being a minor technical correction and the charge largely remained as it was following amendment, referring to the same rules of professional conduct said to have been breached. The Tribunal decided that there was no change to the nature of the conduct charged, including its test for seriousness, and no change to the particulars relied on in respect of the conduct alleged. It allowed the amendment.
[18] The focus of the Hylan decision, which involved a number of amendments, was whether the scope of the charges was enlarged; whether there was any element to the amendments requiring a different approach in the defence; and whether there was anything prejudicial or unfair in the amendments. The Tribunal allowed an amendment to the particulars relating to a misconduct charge, considering there was
nothing prejudicial or unfair in the amendment and the changes were largely
10 Orlov v National Standards Committee 1 [2013] NZHC 1955 at [31].
11 Wellington Standards Committee v Hall [2014] NZLCDT 1 and Auckland Standards Committee v Hylan [2014] NZLCDT 3.
inconsequential. Although the particulars were added to, the Tribunal considered that the scope of the charge was not enlarged and the material was available to the Tribunal in any event. Furthermore, the Tribunal formed the view that adding a particular was not creating a new element to the allegations which would require a different approach by Mr Hylan in his defence.
[19] One of the amendments involved the removal of the second of a two-part allegation regarding breach of duty, thus requiring the Tribunal to be satisfied on one aspect only. That, therefore, could be considered analogous to Mr Deliu’s situation. The Tribunal concluded that there was no prejudice to Mr Hylan because the nature of the alleged conduct was unchanged.
[20] Both cases involved amendments which arguably made proof of the charges easier. Neither case considered that a bar to amendment. All that can be taken from the Hall and Hylan decisions is that each case must be considered in the context of its particular facts.
Did the Tribunal err in fact in deciding that the proposed amended charges and initial charges were materially the same?
Submissions
[21] Mr Deliu referred to the observation made at [18] of the decision that “the essence and the particulars of the charges have remained from the outset”.
[22] That statement, in Mr Deliu’s submission, is simply wrong. He said the charges “must be different or else there is a logical fallacy in the Committee seeking to amend” them. In Mr Deliu’s submission the charges as framed required proof of five factors: intent or recklessness, and that the allegations were false and intemperate and scandalous (which in his analysis incorporates two arms, that is, that it is disgraceful or defamatory, and irrelevant to the action or defence). There is a substantial difference, he said, in the amendments which simply require that the allegations were made without sufficient foundation.
[23] Mr Deliu said he has defences to each element the Committee had to prove. The proposed amendments would, Mr Deliu said, substantially affect the way in which he would defend the charges. This reinforced his submission that the reason for the proposed amendments was to make a finding of misconduct much more likely.
[24] Mr Deliu emphasised that there has been no change to the behaviour which gave rise to the complaint. He said that the amended charges effectively reverse the onus of proof. The Committee was in his submission seeking to better its position, which is not how a model litigant should act. Mr Deliu called the amendment of the charges an abuse of process.
[25] In Mr Deliu’s submission the Committee, as a disciplinary body, had an obligation to present its case impartially. He referred to the decision of the Supreme Court of Canada in Boucher v R where, in the context of a criminal prosecution, the Supreme Court said “the role of a prosecutor excludes any notion of winning or losing”. 12 He also drew an analogy with s 345D Crimes Act 1961.
[26] In Deliu’s submission the Tribunal had approached the matter by considering the precedent of the National Standards Committee v Orlov decision which showed the Tribunal how a charge could be proved in similar circumstance. 13
Analysis
[27] It is helpful to consider the recent decision of the Full Court of the High Court in Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal (a different Orlov decision to that referred to by the Tribunal).14 The background facts are very similar and both parties referred to the decision.
[28] The Committee had laid five charges of professional misconduct against Mr
Orlov. All charges stemmed from statements he made about Harrison J. The
Tribunal found him guilty of misconduct. Mr Orlov appealed.
12 Boucher v R [1955] SCR 16, at [26].
13 National Standards Committee v Orlov [2013] NZLCDT 45.
14 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987.
[29] One of the grounds of appeal focussed on the Committee’s amendment of charges before the hearing, on the basis of the process followed and the prejudice he said resulted from the changes. The Tribunal had issued a decision on the papers allowing the amendments on the basis they would not prejudice Mr Orlov. The Full Court held that the process by which the amendments were made was indeed flawed and acknowledged that the changes were “significant”.15 The original charges accused Mr Orlov of:
… deliberately or recklessly making false and scandalous allegations against
Harrison J.
[30] The new charges accused Mr Orlov of:
… making statements against Harrison J that were false or made without sufficient foundation.
[31] The Court noted two obvious differences:16
(a) the Committee no longer had the task of proving falsity; now proof of an insufficient basis for making the claims sufficed; and
(b)it was no longer alleged that Mr Orlov knew the statements were false or was reckless as to that fact.
[32] In this case, there is no doubt that the proposed amended charges and the initial charges are not materially the same. As in Orlov, the amendments are significant. The obvious differences are those identified by the Court in Orlov.
[33] Mr Deliu submitted that in amending the charges, the Committee was seeking to “better its position”. He complained that they should be acting impartially and cited the following excerpt from the Supreme Court of Canada’s decision in Boucher v R:17
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel
15 At [27].
16 At [29].
17 Boucher v R, above n 12, at [26].
have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[34] However that extract is of no relevance here. It was made in the context of a criminal trial, not disciplinary proceedings. Furthermore, it was in reference to a complaint that the Crown had used inflammatory language when addressing the jury; it did not relate to the amendment of charges.
[35] I have considered Mr Deliu’s analogy with the Crown seeking to amend an indictment in a criminal case. He referred to s 345D of the Crimes Act 1961. Section 345D has been replaced by s 133 Criminal Procedure Act 2011 which simply provides that a charge may be amended by the Court at any stage in a proceeding before the delivery of the verdict or decision of the Court. It is likely, however, that the exercise of the discretion will involve the same considerations as under the previous provision.
[36] Under s 345D(1) of the Crimes Act, a trial judge could grant the prosecutor leave to file an amended indictment before the trial if doing so “would be conducive to the ends of justice”. This required the court to take into account the interests of all parties and balance the public interest as well as the rights of the defendant to a fair
and speedy trial.18 The Court of Appeal in R v P stated:19
Where the Court is satisfied that an amended charge is available on the evidence and the ends of justice so require, the Court should generally grant the prosecution's application to amend the indictment in the manner and to the extent sought by the prosecution. Where the charge selected by the prosecutor is available on the evidence, it will be a rare case where the Court would take a different view as to what it is to be included in the indictment.
[37] Where the amendment to a charge, whether in a criminal or disciplinary context, involves a reduction in seriousness, and where the amendment is made prior to trial, it is difficult to accept that an amendment would not be conducive to the
ends of justice. And where, as in this case, the issue involves disciplinary
18 R v Martin CA214/00, 23 November 2000.
19 R v P CA383/05, 28 February 2006 at [15].
proceedings any assessment must take account of the purpose of the relevant legislation.
[38] In any event, it cannot be suggested that in amending the charges the Committee has acted impartially, unfairly or for the purpose of “winning”. The Committee’s duty under s 154 of the Act is to lay an “appropriate” charge.
[39] It is relevant at this point to address the supplementary submissions filed by Mr Deliu addressing Woolford J’s judgment of 15 October,20 in which he debarred Mr Pyke from acting as counsel in the proceedings.21
[40] Mr Deliu submits that Mr Pyke’s debarring is a further reason why this appeal should be allowed. He says that, if the amendment is allowed, he will face charges that were drafted by a prosecutor who ought never to have acted in the first place. In his submission, that will “plainly look bad”. Mr Deliu says that he will have been denied prosecutorial independence. He submits that this “dovetails precisely” into his point that the amendment was made for the purpose of making it easier to find him guilty.
[41] It is necessary briefly to explain Woolford J’s reasoning. He noted that Mr Deliu has specifically pleaded in his amended response to the charges by way of opposition and/or affirmative defences that the proceedings are an abuse of process. He says they are an abuse of process because Mr Pyke sought improperly to coerce him into withdrawing his civil claim against the Law Society and was guilty of blackmail in threatening to proceed with the incompetence charges notwithstanding his view that they lacked merit.
[42] Woolford J then noted that Mr Deliu is entitled to give or call evidence before the Tribunal as to the alleged abuse of process. The Judge had “no doubt” that Mr Deliu will personally give evidence of the meetings he had with Mr Pyke, will seek
to have Mr Pyke summonsed and may wish to cross-examine him on matters which
20 Deliu v The Auckland Standards Committee 1 [2014] NZHC 2530.
21 Practice Note [2968] NZLR 608 requires leave to be granted if a party wishes to file further submissions. I consider that the release of Woolford J’s judgment constitutes “exceptional circumstances” which justifies this Court granting leave to accept Mr Deliu’s further submissions.
arose at the meeting or in other communications. 22 In any case, Mr Pyke would have to address the Tribunal on the merits of Mr Deliu’s application and would effectively be submitting that he did nothing wrong and was acting ethically as counsel in trying to reach a settlement. Therefore, Woolford J considered Mr Pyke would be acting as “advocate in his own cause”.23 This would also be the case if Mr Pyke tried to rely on privilege under s 57 of the Evidence Act 2006.
[43] Ultimately, Woolford J decided that a fair-minded reasonably informed member of the public would think that Mr Deliu should have the ability to have his application determined by an impartial Tribunal and an impartial process, and that that impartiality should extend to counsel for the Law Society. He therefore disqualified Mr Pyke from acting as counsel. Importantly, he then emphasised:24
I repeat that in so doing I make no comment on the merits or otherwise of Mr Deliu’s application to stay or dismiss the charges as an abuse of process. I also stress that my decision should not be seen as a reflection of Mr Pyke’s conduct. My decision to allow the appeal and disqualify Mr Pyke does not depend on any finding of culpable conduct on his part. Disqualification is not imposed as a punishment for misconduct. Rather, it is a protection for the parties and for the wider interests of justice which must be seen to be done.
[44] It was quite proper for Mr Deliu to draw attention to this decision. However, the first key point is that it is the Committee laying and amending the charges, not Mr Pyke personally.
[45] The second point is that Woolford J’s judgment was clearly based on the potential perceived impartiality which would arise from Mr Pyke being called to give evidence and arguing on the propriety of his own conduct. It is not suggested that Mr Pyke has in fact acted impartially. The Judge explicitly stated that he was not passing judgment on Mr Pyke’s conduct.
[46] I therefore do not see the disqualification of Mr Pyke as being of any relevance to Mr Deliu’s appeal from the Tribunal’s decision to allow the amendment of charges. The only relevant issue is the appropriateness of the proposed
amendments.
22 Deliu v The Auckland Standards Committee 1, above n 20, at [26].
23 At [31].
24 At [41].
Will the evidence be substantially the same and, if so, is that relevant?
[47] Mr Deliu appeared to say that the evidence could not have been the same because the Tribunal allowed further evidence to be adduced and, in any case, the similarity of evidence was not relevant to the issue of whether the charges should be amended. He said that it was completely illogical to rule that the charges need to be amended because the evidence is different, when the charges do not rely on the different evidence.
[48] The proposed amendment does not involve the making of fresh factual allegations. To the extent that the Tribunal allowed further evidence to be adduced, the evidence has changed. That in itself is not a reason to decline the application. It is however, part of the consideration as to whether Mr Deliu would be prejudiced by the amendments.
Was the Tribunal wrong to allow the amendment of the charges?
Submissions
[49] I turn now to consider whether the charges should have been amended and, in doing so, consider Mr Deliu’s submissions to the extent that they have not already been addressed, including those he considered were not properly taken into account by the Tribunal.
[50] Mr Deliu emphasised that the events the subject of the charges occurred in
2008, a complaint was made in December 2009, and in 2010 the Committee conducted its investigation leading to a determination to prosecute in November
2010. It was not until May 2012 that the charges were laid. In Mr Deliu’s submission the Tribunal failed to consider both the context in which the amendments were sought (that is, the amount of time which had elapsed since the behaviour complained of) and the Committee’s failure adequately to explain why it was only in
2014 that it proposed to amend the charges.
[51] Mr Deliu said that, following Randerson J’s initial complaint, the allegations changed on three occasions: those in the Committee’s determination, the charges
themselves, and finally the amendments currently sought. Furthermore, he pointed out that on 15 February 2012 the legal standards officer had written to him in respect of his request to be heard before charges were laid in the Tribunal, declining the request for reasons including that the Committee was functus officio. That suggested, he said, that the Committee decided it was functus officio when it suited the Committee’s purposes.
[52] Furthermore, in Mr Deliu’s submission, while the Tribunal provided reasons for its decision it did not conduct any analysis of the issues he had raised. He said that the reasons given by the Tribunal should have contained an analysis of his objections to show how it reached the conclusion it did. Mr Deliu drew a comparison with the criticism levelled at the Minster of Immigration in Zhang v Minster of Immigration where the High Court criticised the decision on the basis that
the outcome was based on superficial and conclusory reasoning.25 (I note, however,
that the Court of Appeal overturned that case, explicitly disagreeing with the High
Court’s analysis on this point).26
[53] Mr Deliu submitted that unless the Committee had some proper justification for seeking the amendments then they should not be allowed. It could not rely on the Orlov decision because that was not delivered until after the Tribunal’s decision on the amendments to Mr Deliu’s charges.
[54] Mr Deliu opposed the reliance on the High Court decision in Orlov noting that at best this Court should take account of it but that it is not binding. He emphasised that the arguments in that case on amending the charges focused on the delay, whereas his opposition was on a different basis; namely to question the need to amend the charges and the prejudice caused to him, that is, the greater likelihood his being found guilty.
[55] In Mr Pyke’s submission, per reg 24, surprise and prejudice are the
touchstones and neither arise here.
25 Zhang v Minster of Immigration [2013] NZHC 790 at [23].
26 Minister of Immigration v Zhang [2014] NZCA 487, [2014] NZAR 88 at [30].
[56] Mr Pyke said that the Tribunal is bound by the Full Court decision in Orlov noting that the Court said that the amendments to the charges against Mr Orlov were appropriate. He said that the decision in Orlov disposed of the issues in this appeal. Delivery of that judgment, he said, should have seen this appeal abandoned.
[57] Mr Pyke suggested Mr Deliu would have grounds to complain had his charges not been reframed in the same way as Mr Orlov’s were. In addition, the proposed amendments would have a positive effect on penalty.
Analysis
[58] I start by considering the purposes and other relevant provisions of the Act. The purposes of the Act are stated in s 3:
3 Purposes
(1) The purposes of this Act are—
(a) to maintain public confidence in the provision of legal services and conveyancing services:
(b) to protect the consumers of legal services and conveyancing services:
(c) to recognise the status of the legal profession and to establish the new profession of conveyancing practitioner.
(2) To achieve those purposes, this Act, among other things,—
(a) reforms the law relating to lawyers:
(b) provides for a more responsive regulatory regime in relation to lawyers and conveyancers:
(c) enables conveyancing to be carried out both—
(i) by lawyers; and
(ii) by conveyancing practitioners:
(d) states the fundamental obligations with which, in the public interest, all lawyers and all conveyancing practitioners must comply in providing regulated services:
(e) repeals the Law Practitioners Act 1982.
[59] The functions of standards committees are set out in s 130 of the Act:
130 Functions of Standards Committees
The functions of each Standards Committee are (subject to any limitations imposed on the committee by or under this Act or the rules that govern the operation of the committee)—
(a) to inquire into and investigate complaints made under section 132:
(b) to promote, in appropriate cases, the resolution of complaints by negotiation, conciliation, or mediation:
(c) to investigate of its own motion any act, omission, allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner or any other person who belongs to any of the classes of persons described in section 121:
(d) to intervene, in the circumstances prescribed by this Act, in the affairs of practitioners or former practitioners or incorporated firms:
(e) to make final determinations in relation to complaints:
(f) to lay, and prosecute, charges before the Disciplinary Tribunal.
[60] Section 142 provides that the Committee must exercise its powers and functions in accordance with natural justice:
142 Procedure of Standards Committee
(1) A Standards Committee must exercise and perform its duties, powers, and functions in a way that is consistent with the rules of natural justice.
…
(3) Subject to this Act and to any rules made under this Act, a Standards
Committee may regulate its procedure in such manner as it thinks fit.
[61] Under s 152(2), having inquired into a complaint, the Committee may make:
(a) a determination that the complaint or matter, or any issue involved in the complaint or matter, be considered by the Disciplinary Tribunal:
(b) a determination that there has been unsatisfactory conduct on the part of—
(i) a practitioner or former practitioner; or
(ii) an incorporated firm or former incorporated firm; or
(iii) an employee or former employee of a practitioner or incorporated firm:
(c) a determination that the Standards Committee take no further action with regard to the complaint or matter or any issue involved in the complaint or matter.
[62] Once it has proceeded under s 152(2)(a), the Committee lays a charge before the Tribunal:
154 Reference of complaint or matter to Disciplinary Tribunal
(1) If a Standards Committee makes a determination that the complaint or matter be determined by the Disciplinary Tribunal, the Standards Committee must—
(a) frame an appropriate charge and lay it before the Disciplinary Tribunal by submitting it in writing to the chairperson of the Disciplinary Tribunal; and
(b) give written notice of that determination and a copy of the charge to the person to whom the charge relates; and
(c) if the determination relates to a complaint, give both written notice of that determination and a copy of the charge to the complainant.
(2) If the person who is the subject of the complaint or matter is a provider under the Legal Services Act 2011, the Standards Committee must provide a written notice of the determination to the Secretary for Justice.
[63] The High Court has held that in laying charges under s 154(1), the Committee is performing a prosecutorial role:27
[61] In my view, at the time the Standards Committees determined to refer complaints to the Tribunal they were acting judicially, not as prosecutors, because:
(a) A determination made under s 152(2)(a) of the 2006 Act, is one reached after considering relevant evidence, written submissions and hearing from the parties. That is, quintessentially, a judicial function.
(b) Only after that determination is made does the Standards Committee metamorphose into a prosecutor. Under s 154(1)(a), it is then required to “frame an appropriate charge and lay it before” the Tribunal.
[64] Amendments may be granted even during hearings pursuant to reg 24 of the
Regulations which states:
27 Orlov v New Zealand Law Society (No 8) [2012] NZHC 2154; aff’d in part by Orlov v New
Zealand Law Society (No 8) [2012] NZCA 2154.
24 Amendment of or addition to charge
(1) At the hearing of a charge, the Disciplinary Tribunal may of its own motion or on the application of any party, amend or add to the charge if the Tribunal considers it appropriate to do so.
(2) The Disciplinary Tribunal must adjourn the hearing if it considers that the amendment or addition would—
(a) take the person charged by surprise; or
(b) prejudice the conduct of the case.
[65] There is no statutory provision circumscribing the Tribunal’s power to permit an amendment of the charges before a hearing. The main issue is a question of natural justice.
[66] The Supreme Court commented in Z v Dental Complaints Assessment
Committee:28
The courts have traditionally accorded great weight to the opinions of professional disciplinary bodies in the area of their expertise. Where the lawfulness of the exercise of a statutory power turns on expert judgment, and there is no question of breach of natural justice, bad faith, material error in the application of the law, or exercise of the power in a way which cannot rationally be regarded as coming within the statutory purpose, the courts are unlikely to intervene.
[67] In Orlov the Court was satisfied that the amendments were correct and appropriate. I agree with and adopt that analysis:29
[30] … The new wording reflects the decision of the Full Court in Gazley v Wellington District Law Society. There, having reviewed overseas authority, the Court observed that the privilege and immunity a lawyer enjoys:
“…bring with them a professional responsibility not to make allegations ‘without a sufficient basis’ or ‘without reasonable grounds’. This responsibility applies irrespective of the persons against whom allegations are made.”
[31] That passage built on the well-known statement by Lord Reid:
“[…] as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his
28 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [139].
29 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal, above n 14.
profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information.”
[32] There was much sense in the change being made by the Committee.
Notwithstanding the extreme nature of Mr Orlov's allegations, falsity is difficult to objectively prove when the Judge, properly, is not
available as a witness. The allegations are generally about matters
that are not readily susceptible to proof, especially absent a denial from the person impugned. It is not enough to resort to reasoning such as a Judge would not have such motives, or on its face the judgment does not disclose that it was motivated by underlying prejudice. By contrast, a charge which puts in issue the basis that the practitioner had for making the statements, appropriately places the focus on the practitioner's conduct.
[68] Although the Court was considering “whether Mr Orlov was prejudiced by the timing of the change and the denial of an adjournment”, 30 it squarely addressed whether the amendments to the charges were appropriate:
[34] Mr Orlov's main claim to prejudice is that the change meant he now had to prove his primary facts. He wanted an adjournment so he could gather together such evidence as might be available to show what happened on the hearing days in issue. This submission squarely puts in issue Mr Orlov's analysis of the case. We consider his focus on the primary facts was incorrect and failed to recognise that the real issue was the legitimacy of the claims he was making based on those primary facts. Put simply, even assuming that things happened as Mr Orlov claims, what is the basis for saying that they stem from prejudice, racism and a malicious desire to harm Mr Orlov rather than from the fact that the Judge considered Mr Orlov was not displaying the basic knowledge and skills a client is entitled to expect from their lawyer?
[35] We are satisfied Mr Orlov was not prejudiced by the change. The particulars which identify the objectionable statements had not changed. Mr Orlov's decision to ignore providing a justification for the pleaded statements and to focus on the primary facts was his choice. Further, in reality he has said all that can be said in support of the reasonableness of making these allegations. In each of the documents, and to the extent he chose to do so in his affidavit filed in the Disciplinary Tribunal, Mr Orlov has set out the basis for his claims. Whether that material provided a sufficient basis was a matter for analysis and submission. It did not require further evidence. Accordingly, despite a process breach in the handling of the amendment application, we do not consider prejudice has resulted.
30 At [33].
[69] The Court rejected Mr Orlov's submission (based on reg 24) that the Tribunal had no power to allow any amendment prior to the hearing. The Tribunal was entitled to set its own procedure and the Court was sure that the provision was designed solely to emphasise that the Tribunal can amend as late as at the hearing if circumstances require. Again, I agree with the Full Court.
[70] Mr Deliu claimed that he had defences to the charges as originally framed. However, the Committee signalled its intention to amend the charges as long ago as December 2012. The delay was occasioned by the need for Mr Deliu’s earlier applications to the High Court to be dealt with. Furthermore, Mr Deliu had not filed a response to the charges at the time of the application to amend them. Given these circumstances I am not satisfied there would be prejudice to Mr Deliu by reason of the delay in the charges being amended.
[71] The application stated that Mr Deliu had a duty to ensure he had sufficient foundation for making the allegations he did and that was the basis on which the Committee sought to amend the charge. The question before the Tribunal will still be whether the words spoken by Mr Deliu when making his allegations against the Judges amount to misconduct. There are no fresh factual allegations.
[72] As mentioned above, the Committee’s duty under s 154 is to lay an “appropriate” charge. In doing that, it must bear in mind the purposes of the Act, one of which is to “maintain public confidence in the provision of legal services and conveyancing services.”31 This Court has previously held that in laying charges, the Committee is in no way constrained by any preliminary view it has expressed in its s
152 determinations as to what charges are appropriate.32 I agree that the fact the
amendments may make the charges easier to prove is not relevantly prejudicial.33 In this case, I see no reason why it should be constrained by the charges it initially laid
if it subsequently considers that different charges are appropriate.
31 Lawyers and Conveyancers Act 2006, s 3(1)(a).
32 Deliu v New Zealand Lawyers and Conveyancers Discplinary Tribunal [2013] NZHC 3053 at
[65].
33 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal, above n 14.
[73] I am not satisfied there was any breach of natural justice, bad faith, material error in the application of the law, or exercise of the power in a way which cannot rationally be regarded as coming within the statutory purpose. I am satisfied that the application to amend the charges should have been granted.
Did the Tribunal err in law in ruling that the judgments/decisions and affidavits were relevant?
[74] Having decided that the Tribunal was correct to grant the application I now turn to consider whether the Tribunal erred in its ruling as to the relevance of certain judgments and affidavits.
[75] The judgments at issue were grouped by the Tribunal as follows:
(a) cases referred to in Mr Deliu’s letter to the JCC dated 23 July 2008;
(b)cases referred to in Mr Deliu’s letter to the JCC dated 13 August 2008 and his letter to the Chief High Court Judge date 5 August 2008;
(c) a sentencing decision referred to in Mr Deliu’s letter to the JCC dated
18 September 2009;
(d) other decisions of Harrison J mentioning nationality; and
(e) judgments in proceedings the subject of Mr Deliu’s complaints.
[76] The Committee had also sought leave to introduce into evidence two affidavits sworn by Mr Deliu on 9 September 2008 and 19 August 2013 on the ground that Mr Deliu made affirmations in each of the affidavits about the same subject matter as in the charges. The Tribunal decided that they were therefore relevant and material to the proceedings.
[77] Mr Deliu submitted that judgments are not evidence and are not admissible in lawyers’ disciplinary proceedings, citing the cases of Auckland District Law Society v Leary, Simunovich Fisheries Ltd v Television New Zealand Ltd and APN New
Zealand Ltd v Simunovich Fisheries Ltd.34 Mr Deliu submitted that judgments do no more than prove a judge’s opinion and cannot prove factual issues in subsequent proceedings. He cited Dorbu v Lawyers and Conveyancers Disciplinary Tribunal to support that proposition.35
[78] Mr Deliu accepted that items (a)-(c) could be considered relevant to the charges. However, he opposed item (d), even factoring in Mr Pyke’s concession on behalf of the Committee that any decisions post the conduct complained of in 2008 could not be considered relevant. Mr Deliu’s position is that judgments would not prove whether the Judge was racist, and they are irrelevant. They will unduly prolong proceedings and prejudicially affect his conduct of the case by having to devote time to analyse all relevant judgments. The prejudice would outweigh the probative value, he said.
[79] Mr Deliu suggested that the Committee’s approach would result in the case being decided on the basis of which side could produce the greater number of decisions to support its position as to the Judge’s conduct.
[80] Mr Deliu referred to the Tribunal’s finding at [23] of the decision that:
The Tribunal is satisfied that…the judgments and sentencing decisions reach the test of admissibility as public records and relevance to the proceedings and are to be admitted into evidence.
[81] He said there was no proper analysis of whether the judgments were in fact relevant. There was some reference to an intention to produce a print out from Brookers. Mr Deliu strenuously objected to that on the basis that the Tribunal was not even proposing to consider the cases. That, in his submission, showed how little care and attention the Tribunal paid to the argument.
[82] So far as his affidavits are concerned, Mr Deliu noted that he faced no charges in connection with his affidavits of 2008 and 2013. He asked how what he
34 Auckland District Law Society v Leary HC Auckland M1471/84, 12 November 1985; Simunovich Fisheries Ltd v Television New Zealand Ltd [2008] NZCA 350; and APN New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC 93.
35 Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-7381,
11 May 2011.
deposed in 2013 could prove about an offence allegedly committed by him in 2008. Mr Deliu submitted that the affidavits are not relevant and that their probative value is outweighed by their prejudicial effect (Evidence Act 2006, s 8).
[83] Mr Pyke said that the authorities relied on by Mr Deliu do not apply. The documents are all relevant. The judgments are just full copies of what Mr Deliu himself relied on when making his complaints. Furthermore, he said, the affidavits relate to the same subject matter as is under consideration. In them, Mr Deliu makes allegations against Harrison J in the context of proceedings in which Mr Orlov was involved.
[84] Mr Pyke accepted that the issue before the Tribunal will concern the circumstances pertaining in 2008. Therefore he accepted it would be difficult to argue relevance of any decisions of the Judge which post-dated the behaviour complained of, although he reserved the right to raise any such decisions in rebuttal if Mr Deliu raised them himself.
[85] In Mr Pyke’s submission Mr Deliu has relied on other judgments of the Judge and the Committee should be able to do the same.
[86] So far as Mr Deliu’s affidavits are concerned, in Mr Pyke’s submission they are highly relevant because they were made by Mr Deliu in the context of the charges faced by Mr Orlov and the subject matter overlapped considerably. The affidavits are clearly relevant in his submission and any difference in fact can be addressed to the Tribunal.
Analysis
[87] Section 239 of the Act relevantly provides:
239 Evidence
(1) Subject to section 236, the Disciplinary Tribunal may receive as evidence any statement, document, information, or matter that may, in its opinion, assist it to deal effectively with the matters before it, whether or not that statement, document, information, or matter would be admissible in a court of law.
…
(4) Subject to subsections (1) to (3), the Evidence Act 2006 applies to the Disciplinary Tribunal in the same manner as if the Disciplinary Tribunal were a court within the meaning of that Act.
(5) A hearing before the Disciplinary Tribunal is a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).
[88] A similar challenge was made in Orlov, where the Court, noting that s 239 was overlooked in Dorbu, held:36
[80] We consider subs (1) [of s 239] governs s 50 of the Evidence Act
2006. The judgments may be accepted by the Disciplinary Tribunal as evidence. It then simply becomes a question of weight to be given to the
conclusions contained therein. This assessment will inevitably be case
specific and turn very much on the particular proposition for which the judgment is being relied on. We therefore reject this challenge to the extent it
is an admissibility challenge. Whether the Disciplinary Tribunal has
accorded the wrong weight to any conclusions contained in any judgments is a matter able to be addressed when the appeal is considered, although we do not find it necessary to do so in this case.
[89] I agree that pursuant to s 239(1) of the Act the issue is not a question admissibility of the documents rather the weight which should be attributed to them. That is a matter for the Tribunal.
[90] Mr Deliu’s affidavit of 9 September 2008 was in support of an application that Harrison J should recuse himself from proceedings in which Mr Deliu was appearing. The affidavit set out details of Mr Deliu’s dealings with Harrison J in particular in three cases in July 2008 where he and Mr Orlov were solicitors on the record. In the affidavit Mr Deliu deposed that he was convinced Harrison J had a vendetta against him personally, whether because of his association with Mr Orlov, his foreign nationality or his litigation style. Mr Orlov expanded upon his view of the three cases and what had happened subsequently, including Mr Deliu having complained to the JCC and the Human Rights Commission regarding Harrison J’s conduct towards him.
[91] The affidavit of 19 August 2013 was filed in respect of Mr Orlov’s charges
before the Tribunal stemming from statements he made about Harrison J. At that
36 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal, above n 14..
stage Mr Orlov faced charges that he deliberately or recklessly made false and scandalous comments against the Judge. Mr Deliu’s affidavit addressed some of those charges, setting out the reasons why he did not believe Mr Orlov had acted in that way. Mr Deliu deposed as to what Mr Orlov had told him about his dealings with the Judge and the opinions he formed as a result. Mr Deliu then discussed the same three cases referred to in his 2008 affidavit. The affidavit addressed a decision of the Judge where costs were ordered against Mr Orlov and Mr Deliu as well as the reason for Mr Deliu’s belief that the Judge had secret communications with others about Mr Deliu. Mr Deliu discussed the application for the Judge to recuse himself and the reasons for that. That included his opinion, having analysed a number of criminal cases involving the Judge, that the Judge singled out the foreign nationality of the accused. He deposed as to his belief that the Judge had engaged in a pattern for many years of attacking Mr Orlov and latterly Mr Deliu as Mr Orlov’s colleague.
[92] While the affidavits post-date the offences, they are relevant to the charges. It is hard to see how they can be of prejudice to Mr Deliu. They are his affidavits and record his recollection of events and opinion.
[93] I am satisfied that the affidavits are relevant and admissible. Mr Deliu has conceded that judgments (a)-(c) (at [75] above) are relevant. Other decisions of Harrison J mentioning nationality ((d)) up to the date of the conduct complained of in 2008 must be relevant as they go to the issue the Tribunal must determine and Mr Deliu relied on them in making his complaints. Judgments in proceedings the subject of Mr Deliu’s complaints are also obviously relevant. The evidence is admissible pursuant to s 239 of the Act whereby the judgments may be accepted by the Tribunal as evidence. The question then is the weight to be attached to the conclusions. By limiting item (d), the prejudice about which Mr Deliu is concerned, that is the need to undertake exhaustive research, is overcome.
Alternative charges
[94] The Committee’s submissions touched upon the issue of the alternative charges. The question of whether the charges must now be amended to charge conduct while providing regulated services (as would appear to be the effect of the
judgment of the Full Court in Orlov) is not the subject of this appeal. It will be a question for the Tribunal to decide after any application to further amend the charges.
Result
[95] For the reasons given the appeal is dismissed save that the judgments referred to at paragraph 75(d) are restricted to those pre-dating the conduct the subject of the complaint.
[96] Any memorandum as to costs by the respondent is to be filed and served within 21 days of the date of this decision with any response from Mr Deliu filed and
served 14 days thereafter.
Thomas J
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