Deliu v National Standards Committee - [2023] NZHC 1184

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2016-404-2579

CIV 2017-404-0184

[2023] NZHC 1184

UNDER The Lawyers and Conveyancers Act 2006

BETWEEN

FRANCISC CATALIN DELIU

Appellant

AND

THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY

Respondents

Continued…

Hearing: 30 March 2023

Appearances:

The appellant in person (by VMR)

M Hodge for the Standards Committee respondents

Judgment:

17 May 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 17 May 2023 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

DELIU v THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY [2023] NZHC 1184 [17 May 2023]

CIV 2017-404-0260

UNDER

The Judicature Amendment Act 1972

IN THE MATTER OF

An application for judicial review

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY

TRIBUNAL

First Respondent

THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY

Second Respondents

Introduction

[1] In three decisions dated 15 September 2016, the Lawyers and Conveyancers Disciplinary Tribunal (LCDT) found charges of misconduct proved against Mr Deliu. On 22 December 2016, the LCDT suspended Mr Deliu from legal practice for the misconduct. His suspension was for 15 months from 1 February 2017.

[2] Mr Deliu brought these three proceedings, two appeals and one judicial review,1 to challenge the LCDT’s decisions on liability and penalty. His appeals and judicial review were heard together by Hinton J in March and April 2017. Her Honour rejected Mr Deliu’s challenges in a judgment dated 25 September 2017.2 In two further judgments delivered in 2018,3 her Honour ordered Mr Deliu to pay costs to the New Zealand Law Society and declined Mr Deliu’s application for leave to appeal to the Court of Appeal.

[3] Mr Deliu applies to recall Hinton J’s three judgments. He says there was a reasonable apprehension her Honour was biased. He also says that the LCDT had acted ultra vires and that, although he did not raise the ultra vires issue at the time, he should be able to now.

[4] The Standards Committees who prosecuted Mr Deliu oppose the application. They say that the issues raised on the application have already been determined against Mr Deliu in other decisions of this Court, such that he is estopped from ventilating them again on this application. They say in any case that neither of Mr Deliu’s grounds has any merit.

[5]In determining whether to recall the judgments,4 three issues arise:

1 The proceedings with CIV numbers ending 2579 and 0184 are Mr Deliu’s respective appeals from the LCDT’s liability and penalty decisions. The proceeding with the CIV number ending 0260 is Mr Deliu’s application for judicial review of the LCDT’s two decisions.
2 Deliu v The National Standards Committee and The Auckland Standards Committee No 1 of The New Zealand Law Society [2017] NZHC 2318.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 1184
Decision Date: 17 May 2023

CaseChat Overview and Summary

Francisc Catalin Deliu brought three proceedings against the Lawyers and Conveyancers Disciplinary Tribunal (LCDT), the National Standards Committee, and the Auckland Standards Committee No 1 of the New Zealand Law Society. The LCDT had found Mr Deliu guilty of misconduct and suspended him from legal practice. Mr Deliu challenged these decisions, and Hinton J rejected his challenges. Mr Deliu then applied to recall Hinton J’s judgments, claiming there was a reasonable apprehension of bias and that the LCDT had acted ultra vires. The Standards Committees opposed the recall, saying Mr Deliu was estopped from raising those issues again.

The court identified three issues for determination: (a) whether Mr Deliu was estopped from arguing there was a reasonable apprehension that Hinton J was biased; (b) if not, whether there was a reasonable apprehension of bias; and (c) whether Mr Deliu was estopped from raising the ultra vires issues. The court found that Mr Deliu was estopped from arguing that there was a reasonable apprehension of bias because the issue had been determined against him by Paul Davison J in his decision on Mr Deliu’s disclosure application. The court also found there was no reasonable apprehension of bias because the fair-minded lay observer would understand that judges regularly sit on appeals against decisions of their former colleagues and that this was the norm in common law jurisdictions. The court further found that Mr Deliu was estopped from raising the ultra vires issues because Peters J had determined in a separate proceeding that he could and ought to have raised those issues in his first judicial review. The court concluded that Mr Deliu’s desire to raise these arguments many years later did not provide a very special reason that justice required recall. The court dismissed the recall application and ordered the Standards Committees were entitled to costs.

The court found that Mr Deliu was estopped from arguing that there was a reasonable apprehension of bias because the issue had been determined against him by Paul Davison J in his decision on Mr Deliu’s disclosure application. The court found that there was no reasonable apprehension of bias because the fair-minded lay observer would understand that judges regularly sit on appeals against decisions of their former colleagues and that this was the norm in common law jurisdictions. The court further found that Mr Deliu was estopped from raising the ultra vires issues because Peters J had determined in a separate proceeding that he could and ought to have raised those issues in his first judicial review. The court concluded that Mr Deliu’s desire to raise these arguments many years later did not provide a very special reason that justice required recall. The court dismissed the recall application and ordered the Standards Committees were entitled to costs.

Orders