Deliu v National Standards Committee

[2018] NZHC 2873

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002579

CIV-2017-404-000184 [2018] NZHC 2873

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

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

Respondents

On the papers
Judgment:	6 November 2018

JUDGMENT OF HINTON J [LEAVE TO APPEAL]

This judgment was delivered by me on 6 November 2018 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Glaister Ennor, Auckland

Philip Morgan, Queens Counsel, Hamilton

Party:

F Deliu

FRANCISC CATALIN DELIU v NATIONAL STANDARDS COMMITTEE AND AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY [2018] NZHC 2873 [6 November 2018]

[1]      On 25 September 2017, I dismissed an appeal and an application for judicial review of a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.1

[2] Mr Deliu seeks leave pursuant to s 254(1) of the Lawyers and Conveyancers Act 2006 (the Act) to appeal to the Court of Appeal on a question of law. (He also filed an appeal against my dismissal of his application for judicial review, but that appeal has been deemed abandoned.)

[3]      The leave application is essentially a re-run of the appeal, which related to three liability decisions and one penalty decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. The three liability decisions related to three sets of charges against Mr Deliu, which I termed Judges’ Charges, Incompetence Charges and Interrupting a Meeting Charge.  Mr Deliu’s leave application also raised an issue as to my treatment of the costs awarded against him by the Standards Committee and the Tribunal.

[4]      As a result of communication difficulties between Mr Deliu and the Court

through 2018, and then delays on Mr Deliu’s part, the submissions were ultimately not filed until 1 October 2018 and 17 October 2018. The parties are agreed the application can be dealt with on the basis of those submissions.

[5]      On the verge of release of this judgment, a further memorandum has been handed to me filed by Mr Deliu. This is an 11-page document labelled “Submissions in Answer”.  I did not direct filing of further submissions, and I am not prepared to take that document into account.

Test for leave

[6]      Section 254 of the Act provides as follows:

254     Appeal to Court of Appeal on question of law

(1)Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the

1      Deliu v The National Standards Committee [2017] NZHC 2318.

High Court refuses leave, with the leave of the Court of Appeal, appeal  to  the  Court  of  Appeal  against  the  determination;  and section 56 of the Senior Courts Act 2016 applies to any such appeal.

(2)In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.

(3)The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks fit, whether as to costs or otherwise.

(4)The decision of the Court of Appeal on any appeal under this section is final.

[7]      The test for leave under s 254 of the Act was considered by Churchman J in Morahan v Wellington Standards Committee 2.2    He noted that s 254 sets out the standard to be applied by the Court of Appeal when considering whether to grant leave under s 254(2), but is silent as to the standard to be applied by the High Court under s 254(1).

[8]      For the Court of Appeal to grant leave in terms of s 254(2), it must have regard to whether the question of law involved in the appeal is one that, by reason of its general public importance, or for any other reason, ought to be submitted to the Court of Appeal for its decision.

[9]      Churchman J reached the conclusion that, in order for an application to the High Court for leave to appeal to the Court of Appeal under s 254 of the Act to be successful, there must “at least” be a question of law capable of serious argument and of sufficient importance to justify the pursuit of litigation already twice considered.3

Churchman J does not refer to the words “for any other reason”, but he also seems to be saying that the test should be the same for a leave application in the High Court as for a leave application made to the Court of Appeal.

[10]     I also note, that in the case of the Immigration Act 2009, which also provides for second appeals from a tribunal decision, s 246 of that Act provides that the same

2      Morahan v Wellington Standards Committee 2 [2018] NZHC 1583.

3 At [13].

test is to be applied by the High Court and the Court of Appeal in determining whether leave should be granted for an appeal from a determination of the High Court.  That leave provision is the same as s 254(2) of the present Act, and allows both Courts to grant leave “for any other reason”.

[11]     I proceed on the basis that the test this Court is to apply is the same as set out in s 254(2) of the Act.

Analysis

[12]     The respondents contend that no genuine question of law is posed by the submissions of Mr Deliu. They say that, to the extent legal as opposed to factual issues are raised, none warrants the granting of leave.  They seek that the application be dismissed.

Judges’ Charges

[13]     Mr Deliu submits that my findings on the Judges’ Charges contain errors of law, as follows:

(a)Finding that Mr Deliu’s conduct was not protected by freedom of speech and that his complaints undermined the authority of the judiciary and the rule of law.

(b)Failing to find that Mr Deliu’s conduct was much less serious than that of others, who were less heavily penalised, or not penalised at all, this then leading to disparate treatment.

[14]     Mr Deliu also submits that the decision of the Full Court of the High Court in Orlov  v  New Zealand  Lawyers  and  Conveyancers  Disciplinary  Tribunal4   was incorrectly decided and should go to the Court of Appeal for the law to be settled in the general or public interest.   Mr Deliu says that “even” I had my reservations regarding that decision.

4      Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606.

[15]     I agree with Mr Morgan QC for the respondents, that my finding about freedom of speech does not raise any question of law which needs to go back to the Court of Appeal.  The relevant law has been considered at length by the Court of Appeal in Orlov v New Zealand Law Society, which related to judicial review of the decision of the New Zealand Law Society to submit the complaints to the Tribunal.5   My finding is also consistent with the Canadian Supreme Court decision in Doré v Barreau du Québec.6    In light of those authorities, particularly the judgment of the Court of Appeal in Orlov, no question of law warranting a further appeal arises.7

[16]     Mr Deliu’s argument about disparate treatment focuses on an assessment of the factual differences between conduct in other cases and Mr Deliu’s conduct, not any question of law.  The Full Court in Orlov made a comparative analysis and reached conclusions following a very similar argument.8  The same analysis was made in even more detail by the Tribunal in this case.  I agreed with the Tribunal’s assessment.

[17]     I agree with the respondent that the comparisons have been exhausted and no question of law arises.

[18]     I also did not, as Mr Deliu contends, find that the judgment of the Full Court in Orlov was incorrect on the subject of the provision of regulated services.  Rather, I reached the same outcome by different reasoning.  No important question of law is involved. As is plain from my judgment, on whatever view of the law, on the facts of this case Mr Deliu was providing regulated services.9

Incompetence Charges

[19]     Mr Deliu submits there are two questions of law arising in connection with the Incompetence Charges.   The first of them is that I erred in law in upholding the Disciplinary Tribunal’s reliance on judgments in cases where Mr Deliu was counsel,

5      Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562. This decision precedes the decision referred to above, which followed the substantive decision of the Tribunal.

6      Doré v Barreau du Québec [2012] 1 SCR 395.

7      Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562.

8      Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606.

as evidence of incompetence.  The second question relates to the delay in the disciplinary process, which he says led to a miscarriage of justice.

[20] In terms of the former, no serious question of law arises. The law is settled by s 239 of the Lawyers and Conveyancers Act 2006, and the previous judgments of both the Court of Appeal in Deliu v National Standards Committee of New Zealand Law Society10 and the Full Court decision in Orlov, which I applied.11

[21]     As to the second point, Mr Deliu submits that my judgment in regard to the Incompetence Charges was “completely one-sided” in favour of the respondents and therefore a miscarriage of justice. It is true that my judgment is one-sided in the sense that I concluded firmly in favour of the respondents, which seems to be the nub of his objection.

[22]     Mr Deliu relies on the words “for any other reason” in s 254(2) of the Act (which I have held applies also on a leave application to this Court), to say that I should grant leave.  The Court of Appeal has held that those words allow for leave to be granted in an exceptional case involving individual justice to such an extent that the Court could not countenance the decision continuing to stand.12   The point advanced by Mr Deliu falls well short of that test.

[23]     I considered the issue of delay as part of Mr Deliu’s case that the Tribunal wrongly refused him a stay.13  The Tribunal refused a stay on the basis that Mr Deliu’s actions were largely the cause of the delay, and he suffered no prejudice. I upheld that finding on the same basis.  No question of law arises.

Interrupting a Meeting Charge

[24]     I am not clear as to Mr Deliu’s point here.

10     Deliu v National Standards Committee of New Zealand Law Society  [2015] NZCA 399 at

[33]-[36].

11     Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606 at [78]–[80].

12     Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162 at [8]. Duffy J held

in Zhang v Immigration and Protection Tribunal [2013] NZHC 1573 that these words would also allow leave in certain cases of procedural duplication, not applicable here.

[25]     He cites a judgment of the Supreme Court14  refusing leave to Mr Orlov to appeal from the Court of Appeal decision in Orlov v New Zealand Law Society.15   In Orlov,  the High  Court  had  held  that  there  were  charges  which  did  not  meet  a “seriousness” threshold required before the Standards Committee can refer charges to the Tribunal under s 152(2)(a) of the Act and ordered that those charges be referred back to the Standards Committee.   The Court of Appeal determined there was no threshold and quashed those orders.  The Supreme Court, although refusing leave as not being in the interests of justice, said that the question of whether a “seriousness” threshold was required might constitute a legal question for purposes of a leave application.16

[26]     Mr Deliu presumably contends that the question of whether it was appropriate for the Standards Committee to refer the “meeting” charge to the Disciplinary Tribunal should be the subject of a ruling by the Court of Appeal.  However, that was not an issue before me and cannot be the subject of an appeal.

[27]     Furthermore, I did consider that the Interrupting a Meeting Charge was serious. As I said:17

What Mr Deliu and Mr Orlov did was aggressive, uncontrolled and unprecedented. It was intimidating to the committee members, and designed to be so.

[28]     I agree with the respondents that no question of law arises that warrants yet another appeal.

Costs

[29]     Mr  Deliu  submits  that  the  costs  aspect  of  my  decision  addressed  the

Standards Committee’s costs, but “ignored the Tribunal’s costs”.

[30]     Again, I cannot follow the point made.

14     Orlov v New Zealand Law Society [2013] NZSC 94.

15     Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562. This was the judicial review appeal that preceded the substantive Tribunal hearing in Orlov, which I referred to above

at [11].

16 At [4].

17 At [111].

[31]     I did address the question of the Tribunal’s costs.18

[32]     This part of Mr Deliu’s submissions does not identify or raise a question of law, nor is it a matter where leave should be granted for any other reason.

Conclusion

[33]   Mr Deliu’s submissions do not identify questions of law which require determination by the Court of Appeal.  His points are a re-run of the argument before me.  I see little merit in his application.  All of his points were dealt with, in part on the facts, by the Tribunal and upheld by me on appeal. On the more significant points the law is settled by decisions of the Court of Appeal already.

[34]     I agree with the respondents that Mr Deliu’s points do not warrant the cost to the respondents, or the public, in allowing him yet another appeal.

[35]     The application for leave to appeal is dismissed.

[36]     The respondents are entitled to costs on a 2B basis.

----------------------------------------- Hinton  J

18     At [221]-[222]. Although it is clear from the context, for clarification, my comment in [222] that “I sought full details from the Standards Committee as to both costs amounts”, is a reference to the costs of the Standards Committee and of the Tribunal.