Deliu v National Standards Committee

[2017] NZHC 2318

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000184

CIV-2016-404-002579 [2017] NZHC 2318

UNDER	the Lawyers and Conveyancers Act 2006
BETWEEN	FRANCISC CATALIN DELIU Appellant
AND	THE NATIONAL STANDARDS COMMITTEE AND THE AUCKLAND STANDARDS COMMITTEE NO. 1 OF THE NEW ZEALAND LAW SOCIETY Respondents

CIV-2017-404-000260

UNDER  the Judicature Amendment Act 1972

BETWEEN  FRANCISC CATALIN DELIU Plaintiff

ANDTHE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

First Defendant

THE NATIONAL STANDARDS COMMITTEE AND THE AUCKLAND STANDARDS COMMITTEE NO. 1 OF THE NEW ZEALAND LAW SOCIETY Second Defendants

Hearing:

27-29 March; 6 and 7 April 2017

27 April 2017 and 5 May 2017 (Further submissions)

Appearances:

The Appellant/Plaintiff in Person
P J Morgan QC and P Jepson for the Respondents/Defendants

Judgment:

25 September 2017

FRANCISC CATALIN DELIU v THE NATIONAL STANDARDS COMMITTEE AND THE AUCKLAND STANDARDS COMMITTEE NO. 1 OF THE NZ LAW SOCIETY [2017] NZHC 2318 [25 September 2017]

JUDGMENT OF HINTON J

This judgment was delivered by me on 25 September 2017 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

Philip Morgan, Queens Counsel, Hamilton
Glaister Ennor, Auckland

Party:

The Appellant/Plaintiff

CONTENTS

Paragraph

Number

INTRODUCTION  [1]

TRIBUNAL DECISIONS  [7] The Judges’ Charges decision – LCDT8/12  [8] The Meeting Charge decision – LCDT10/10  [17] The Incompetence Charges decision – LCDT14/15  [20] The Penalty decision  [22]

NATURE OF APPEAL  [25]

LIABILITY APPEAL

Issue 1:  Freedom of Speech – Judges’ Charges  [30]

Issue 2:  Provision of Regulated Services

The Judges’ Charges  [52]

The Meeting Charge  [65] Issue 3:  No proof of falsity - Judges’ Charges  [71] Issue 4:  Contravention of purposes of the 2006 Act – Judges’ Charges         [80] Issue 5: Absolute and qualified privilege attaching to statements made about

the Judges - Judges' Charges  [89]

Issue 6:  Disparate treatment – abuse of process  [101] Judges’ Charges  [102] Meeting Charge  [107]

Issue 7:  Proof and evidence – Incompetence Charges

Incorrect standard of proof  [113] Wrongful admission of (or reliance on) “critical” judgments           [118] Insufficient evidence to prove the Charges  [130]

Issue 8: Wrongful Refusal of Stay

Incompetence Charges  [142]

All Charges  [148]

Judicial Review  [150]

Conclusion on Liability Appeal/Judicial Review application  [154]

/ …

PENALTY APPEAL AND CROSS-APPEAL

Tribunal penalty decision   [155] Principles relevant to penalty  [161] Was the Tribunal wrong to decline to strike-off?  [167] Nature and gravity of the charges  [168]

Other factors relevant to the offending  [174] Personal mitigating factors  [187] Conclusion against striking off  [189]

Was 15 months’ suspension a proportionate sentence?  [193]

COSTS

The Tribunal's ruling  [207]

Basis for costs order  [211]

Set-off for successes  [217]

CONCLUSION  [225]

INTRODUCTION

[1]      Mr Deliu is a lawyer who has been suspended from practice for misconduct by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.   The suspension is for 15 months with effect from 1 February 2017.   Mr Deliu was originally admitted to practise in New Zealand in November 2006 and practised as an employee of Mr Evgeny Orlov until mid-2009, when he opened his own office.

[2]      He appeals (and applies to have judicially reviewed) four decisions of the

Tribunal,  three  dated  15  September  2016  in  relation  to  liability,  and  one  dated

22 December 2016 in relation to penalty.

[3] Mr Deliu raises a large number of points on appeal. The key liability issues are whether he was entitled to the protection of “freedom of speech”; whether he was providing “regulated services” in terms of s 7(1)(a) of the Lawyers and Conveyancers Act 2006 (the 2006 Act); and whether there has been an abuse of process because of alleged lack of proportionality to other cases.

[4]      In terms of the judicial review proceeding, Mr Deliu said I could ignore his submissions  as  they duplicated  his  appeal  submissions,  except  for  one  point  in relation to costs.

[5]      On the question of penalty, there is an appeal and cross-appeal.   Mr Deliu says he should have been fined, or at most suspended for seven months, relying largely again on lack  of proportionality.   The second respondent (the Standards Committee) says that Mr Deliu should have been struck off the roll.

[6]      Mr Orlov, referred to above, faced some of the same charges as Mr Deliu, so previous decisions relating to Mr Orlov are of particular relevance.

TRIBUNAL DECISIONS

[7]      In three decisions dated 15 September 2016, the Tribunal found nine charges proved against Mr Deliu.   These were six charges of misconduct, one charge of

unprofessional conduct, one charge of unsatisfactory conduct and one charge of conduct unbecoming a lawyer.

The Judges’ Charges decision – LCDT8/12

[8]      Between 2008 and May 2010, Mr Deliu made a series of allegations about the Honourable Justice Harrison and the then Chief High Court Judge, the Honourable Justice Randerson.

[9]      By 2008, three cases where Mr Deliu was the solicitor on the record had come before Harrison J.   The Judge was critical of Mr Deliu in all three cases. Mr Deliu instructed others to appear in each instance, but it appears that he had filed the submissions and other relevant documents.  Harrison J ordered costs against both Mr Deliu and Mr Orlov on one of the three cases, an order which was subsequently overturned as against Mr Deliu.

[10]     The allegations made by Mr Deliu about Harrison J were made in letters dated  23  July  2008,  24  July  2008  and  18  April  2009  from  Mr  Deliu  to  the Judicial Conduct Commissioner and a letter dated 5 August 2008 to Randerson J; an application  to  the  High  Court  dated  5 September  2008  for  Harrison J  to  be permanently  recused  from  cases  filed  by  Mr Deliu  and  Mr  Orlov;  and  in  an application to the Supreme Court dated 14 October 2008 against a costs judgment of Harrison J.

[11]     Mr Deliu’s allegations against Harrison J included that Harrison J was racist; out of control; a danger to the public; brought the administration of justice into disrepute; was prepared to violate international conventions; breached human rights legislation; routinely acted outside the law in blatant and repeated abuses of power; attacked   Mr Deliu   personally;   acted   in   bad   faith;   abused   his   powers;   was incompetent; filed untenable and insufficiently particularised complaints with the Law  Society  which  were  frivolous,  malicious,  vexatious,  vindictive,  oppressive and/or punitive and acted without jurisdiction, ultra vires, mala fides, maliciously, vexatiously, vindictively, spitefully and oppressively.

[12]     Randerson  J  referred  Mr  Deliu’s  conduct  to  the  Law  Society.    This  led Mr Deliu  to  complain  about  Randerson  J  by  letter  dated  27  May  2010  to  the Judicial Conduct Commissioner.

[13]     The  allegations  made  by  Mr  Deliu  against  Randerson  J  included  that Randerson  J  had  attempted  to  obstruct  the  course  of  justice;  had  conducted  a secretive and unlawful investigation; had used his judicial office in a gross abuse of taxpayer money for an improper motive to protect a fellow Judge from legitimate complaint; had put aside his judicial oath and embarked upon a personal crusade to destroy Mr Deliu’s and Mr Orlov’s careers; had done so for the purpose of stifling lawful complaints; appeared to be protecting his fellow Judge, (which was more important   to   Randerson J   than   upholding   the   democratic   rule   of   law   of New Zealand); and had committed acts of judicial corruption.

[14]     Twelve charges were laid of professional misconduct, the particulars being that Mr Deliu had  made allegations which  were false or without any sufficient foundation.   Two charges were under s 112(1) of the Law Practitioners Act 1982 (the 1982 Act), one being of misconduct in the practitioner’s professional capacity under s 112(1)(a), and the other in the alternative, of conduct unbecoming a barrister and solicitor, under s 112(1)(b).  Five charges were also laid under s 7(1)(a)(i) of the

2006 Act, with alternative charges for each under s 7(1)(b)(ii).

[15]     The particulars of the charges also alleged breaches of the practitioner’s duty as an officer of the Court, and that he undermined the dignity of the judiciary and the processes of the Court.

[16]     The six primary charges were found to be proved.

The Meeting Charge decision – LCDT10/10

[17]     On 14 October 2008,  Mr Deliu and  Mr Orlov entered a meeting of the Auckland District Law Society Complaints Committee without invitation or leave; refused to leave when requested; interrupted, shouted at and made demands of the members to such an extent that they caused the Chair to adjourn the meeting, and frightened at least one of the Committee members present.

[18]     Mr Deliu alone was charged, as the meeting was apparently concerning an investigation of Mr Orlov, and Mr Deliu and Mr Orlov had written to the Committee immediately before and after the meeting, describing Mr Orlov as Mr Deliu’s client.

[19]     Mr  Deliu  was  found  guilty  of  one  charge  of  conduct  unbecoming  a practitioner, by virtue of his interrupting and disrupting a Complaints Committee meeting, such that it had to be adjourned.

The Incompetence Charges decision – LCDT14/15

[20]     Mr Deliu was the subject of a series of adverse comments in judgments of various Courts between 2008 and 2009.   A complaint was made by a lawyer in respect of eleven such cases.  In respect of six of those cases, four charges were laid; two charges were brought under the 1982 Act, and two under the 2006 Act.   The primary charges, one under the 1982 Act and one under the 2006 Act, alleged a pattern of behaviour which constituted negligence or incompetence in Mr Deliu’s professional capacity of such a degree and/or so frequent as to reflect upon his fitness to practise and/or as to bring the legal profession into disrepute.   The two remaining charges under each Act were in the alternative.   The charge under the

1982 Act  alleged  that  Mr  Deliu’s  behaviour  constituted  conduct  unbecoming  a barrister or a solicitor.   The alternative charge under the 2006 Act alleged that Mr Deliu’s behaviour constituted unsatisfactory conduct, being conduct which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

[21]     The Tribunal found that the primary charge under the 1982 Act and  the alternative charge under the 2006 Act were proved.

The Penalty decision

[22]     The Tribunal delivered its decision with regard to penalty on all charges on

22 December 2016.1

1      National Standards Committee No 1 v Deliu [2016] NZLCDT 41 [Penalty decision].

[23]     The Tribunal ordered that Mr Deliu be suspended from practice as a barrister or as a solicitor or as both, for a period of 15 months with effect from 1 February

2017, that date giving him some time to make arrangements with respect to his practice.

[24]     The Tribunal also ordered Mr Deliu to pay costs to the Standards Committee in the amount of $153,500 and to re-pay to the New Zealand Law Society the sum of

$108,500, being a proportion of the Tribunal costs which had to be met by the

New Zealand Law Society.

NATURE OF APPEAL

[25]     The appeal and cross-appeal are brought under s 253 of the 2006 Act.

[26]     An appeal under s 253 is a general appeal which means, as Elias CJ said in Austin, Nichols & Co Inc v Stichting Lodestar, that the appeal court has the responsibility of arriving at its own assessment of the merits of the case.2     The

weight the Court gives to the decision of the Tribunal is a matter of judgment.3   If I

am of a different view from the Tribunal and  therefore of the opinion that the

Tribunal’s decision is wrong, I must act on my own view.

[27]     If the Tribunal has a particular advantage such as technical expertise, or the opportunity  to  assess  the  credibility  of  witnesses  where  such  assessment  is important, then particular deference to the Tribunal’s findings may be required.4

[28]     Mr Deliu submits that in this case the Tribunal did not have any particular advantage and therefore no particular deference is required.   The respondents are cross-appealing, and so Mr Morgan QC has made no contrary submission.

[29]     I  consider  that  due  regard  should  be  given  to  the  specialist  Tribunal’s

assessment on penalty.  For an order for striking off, the Disciplinary Tribunal has to consist of a panel of at least five members, including two lay members.  The lawyers

2      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].

3 At [5].

4 At [5].

appointed to such a Tribunal would obviously be senior, respected members of the profession.    The  fact  there  are  two  lay  members  is  significant  when  it  is  the protection of the public that is the guiding factor in terms of penalty, not punishment of  the  practitioner.    The  Tribunal  will  have  clear  experience  and  expertise  in assessing an appropriate penalty.  I also consider the requirement for a five-member Tribunal to be unanimous in order to strike-off, to be quite an important form of protection for the practitioner.

LIABILITY APPEAL

Issue 1:  Freedom of Speech – Judges’ Charges

[30]     Mr  Deliu  says  that  freedom  of  speech  is  his  “paramount”  defence.    It occupies close to 40 pages of his 140-page submission in relation to liability issues. His position can be summarised on the basis that even if everything he said about Harrison  and  Randerson JJ  was  completely false,  he was  entitled  to  speak  and therefore is not guilty of the charges.

[31]     In my view, the answer to this matter has already been provided by the Court of Appeal in Orlov5 but I endeavour to consider the issue more fully.  Mr Deliu says that the Tribunal “intentionally” and “perversely” failed to consider Hansen v R6 and some 40-50 other authorities that he provided to them on this point.

[32]     I accept Mr Deliu’s submission that freedom of speech is one of the most important of all human rights.   Representative democracy, as we know it today, depends on the maintenance and protection of freedom of speech.

[33]     The right to freedom of speech is recognised in s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA).

[34]     In Hansen, the Supreme Court held that, where there is a prima facie conflict between an enactment and a right (in this case between s 7(1) of the 2006 Act and

the right to freedom of speech), the decision-maker has to apply s 5 of the NZBORA

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

CA decision].

6      Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.

to determine whether that limitation is demonstrably justified. Any limiting measure must first serve a sufficiently important objective, and the means to limit the right must be reasonable.7 The means must be rationally connected to the purpose of the limitation, impair the right no more than necessary, and only limit the right proportionately to the objective.8 The more important the right in question, the more hesitant the Court in holding a limitation justified. If the decision-making body cannot recognise the limitation as justified, then s 6 NZBORA will be used to try to allow a consistent interpretation of the limitation that reconciles the inconsistency with the right. Otherwise, s 4 NZBORA is to be applied.9

[35]     In  Brooker  v  Police,10   the  Supreme  Court  overturned  a  conviction  of disorderly behaviour.   It said that the question of whether behaviour is disorderly cannot be made without an assessment against the overriding requirement of s 5 of the NZBORA that the exercise of any guaranteed right may be subjected only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  Blanchard J said:11

The value protected by the Bill of Rights must be specifically considered and weighed against the value of public order.  The court must ask itself whether treating the particular behaviour in the particular circumstances as disorderly constitutes a justified limitation on the defendant's exercise of the right in question.  As a result, public order will less readily be seen to have been disturbed by conduct which is intended to convey information or express an opinion than by other forms of behaviour.

[36]     Also in Brooker, Thomas J said:12

Freedom of expression is a hallowed right and needs no enlargement.   Its critical importance in a free society has been recognised on countless occasions in numerous judgments.  Indeed, the courts have been zealous in assuming a responsibility to protect the right to freedom of expression from perceived encroachment. … The judiciary tends to see itself as the anointed guardian of this fundamental right.

…

7      Hansen v R, above n 6, at [42] per Elias CJ.

8      At [42] per Elias CJ.

9      At [60] per Blanchard J, [91]-[92] per Tipping J, and [191]-[192] per McGrath J.

10     Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91.

11 At [59].

12     At [234] and [240].

Rather, because the right to freedom of expression will never fall to be considered in isolation, but always in conjunction with other rights, interests or values, the courts must recognise that the application of the right must be approached with a fair sense of proportion.   Freedom of expression is of immense importance in a democracy, but its importance in a particular case will always turn on the circumstances.

[37]     Similar statements were made by the Supreme Court in Morse v Police,13 where the Court was balancing a charge of disruption to public order against the right of freedom of expression. The Chief Justice said in that context that if the limitation of freedom of expression is disproportionate to the statutory purpose of securing public order, the Courts (which in their decisions must conform to the NZBORA) are not justified in finding criminal liability under s 4(1)(a) of the Summary Offences Act 1981.

[38]     Tipping J said in Morse that a free and democratic society is justified in limiting freedom of expression at the point when public order is sufficiently disturbed.14

[39]     Regarding the position of lawyers specifically, Mr Deliu points out that the United Nations Basic Principles on the Role of Lawyers protects the right of freedom of speech under international law, and he cites from those principles the following:15

23.      Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly.  In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization.   In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

[Emphasis added]

[40]     It is clear from the authorities that the right to freedom of expression can excuse speech that would otherwise be offensive.   It is also clear that there are

exceptions to that proposition.  Mr Morgan took me to each of the passages on which

13     Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.

14 At [72].

15     Office of the United Nations High Commissioner for Human Rights Basic Principles on the Role of Lawyers (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August-7 September 1990).

Mr Deliu relies and noted the excepting language in each instance.  A particularly relevant example is in the final sentence of the passage quoted above.  Another is in the final sentence of the quote from Thomas J in Brooker, cited above.16

[41]     In  accordance with  the authorities  to  which  I have referred,  a balancing exercise always has to be conducted.

[42]     The Tribunal did not itself go through that balancing exercise in this case. It relied on decisions of the Full Court of the High Court and the Court of Appeal in Orlov.17

[43]     Mr Deliu and Mr Orlov acted more or less in concert in their allegations against Harrison J, so the earlier decisions in Orlov are on the same point and on an approximate subset of the same charges as here.18

[44]     The Court of Appeal in Orlov, dealing with an interlocutory issue, said the following about freedom of expression:19

[120] Mr Orlov submitted that lawyers have the same rights as members of the public to make complaints about judges and that it would be a serious infringement of basic human rights and international law for the making of a complaint to be the subject of disciplinary proceedings.

[121] This submission overlooks the point that it is not the making of the complaint which is the concern but the allegedly intemperate and persistent manner in which the complaints have been made.

[122] As noted by Heath J, while complaints may be made against judicial officers it is clear that disrespectful or scandalous allegations against a judge exercising judicial authority is an affront to the court and poses a risk to public confidence in the judicial system.  Such excessive conduct does not qualify for protection under the right to freedom of expression.   To hold otherwise would be to inhibit both the court's own disciplinary jurisdiction over lawyers appearing before it and its contempt jurisdiction.  We agree.

16     Refer [36] above.

17     National Standards Committee No  1  v  Deliu  [2016] NZLCDT 26  at  34  [Judges’ Charges

Tribunal decision].

18     See Orlov 2013 CA decision, above n 5; and Orlov v New Zealand Lawyers and Conveyancers

Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606 [Orlov Full Court decision].

19     Orlov 2013 CA decision, above n 5.  See also Judges’ Charges Tribunal decision, above n 17, at [34].

[45]     On Mr Orlov’s later appeal against the Tribunal decision, the Full Court said it was bound by the Court of Appeal decision and went on:20

[92]      Before leaving this aspect of the discussion, we observe that before us Mr Orlov's submissions on freedom of expression came by way of an appendix which consisted of submissions Mr Deliu had apparently prepared for his own defence in relation to similar charges.   The submissions cite copiously from primarily North American authorities, but also decisions of the European Court of Human Rights.   We consider it can be taken from these cases that there is no absolute right of freedom of expression, that it is legitimate for states to draw a balance between freedom of expression and the need to protect the authority of the judiciary and the processes of the Court, that a significant degree of robustness is required, and that any punishment should be proportionate bearing in mind the competing interests and the importance of freedom of expression.  If this is the intended import of the submissions we agree.   If more is claimed, we consider it is not consistent with domestic authority by which we are bound.

[46]     The Tribunal in this case was bound by both of these decisions in Orlov.

[47]     Mr Deliu submits that the Court of Appeal and Full Court in Orlov failed to apply the balancing test.   He says further that the passage cited from the Court of Appeal judgment is not binding authority because these were only observations made in the course of a pre-emptive strike by Mr Orlov by way of judicial review, before the Tribunal in Orlov had made its substantive ruling.   Further, Mr Deliu submits, in terms of Morse, that there is no “sufficient disturbance” whatsoever here.

[48]     The  Court  of  Appeal’s  statements  in  Orlov  are  clearly  binding  on  the Tribunal, and on this Court.  Even if they were not, I consider the quoted passage to be an accurate reflection of the law, and of the application of the law to the facts.

[49]     The approach taken by the Court of Appeal reflects that adopted overseas, for example in Doré v Barreau du Québec.21   A barrister unhappy with his treatment in Court wrote to the Judge and was disciplined for disrespect going beyond mere rudeness or discourtesy.  The Supreme Court of Canada said that proper respect for expressive rights may involve disciplinary bodies tolerating a degree of discordant

criticism, but that does not by any means argue for an unlimited right on the part of

20     Orlov Full Court decision, above n 18.

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

lawyers  to  breach  the  legitimate  public  expectation  that  they  will  behave  with civility.

[50]     It is quite clear from the decisions of the Court of Appeal and Full Court in Orlov, that they were very conscious of the need to apply a balancing test.   The Court of Appeal clearly did apply that test and firmly considered that application of the disciplinary rules prevailed over freedom of speech on a subset of these very facts.   I agree.   In fact, I consider the average member of the public would agree. Mr Deliu has an unfortunate fixation on this point.  It is without merit.  He clearly stepped over the line that is protected by freedom of speech and did so on a number of occasions, over a two-year period.

[51]     The Tribunal has correctly applied the law so far as freedom of expression is concerned and has correctly ruled it out as an excuse.  If lawyers could write false or unfounded letters of complaint (and Mr Deliu’s conduct was not limited to letters of complaint) about Judges being racist, engaging in judicial corruption and similar, with impunity, it goes without saying that the standards of the profession, the authority of the judiciary and the rule of law would all be seriously undermined.  In

the words of Tipping J in Morse,22 there would be a clear disturbance of public order.

Issue 2:  Provision of Regulated Services

The Judges’ Charges

[52]     The next issue is whether, in respect of the Judges’ Charges, the Tribunal correctly found, relying on Orlov (Full Court), that Mr Deliu was providing “regulated services” and therefore the charges under s 7(1)(a) of the 2006 Act were proved.  If he was not, then his conduct falls into a lacuna in s 7 of the 2006 Act.

[53]     The Judges’ Charges were laid under s 7(1)(a) and/or (b) of the 2006 Act.

[54]     Section 7 provides as follows:

22     Morse v Police, above n 13.

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.

(Emphasis added)

[55]     Section 7 provides for misconduct at the time of providing regulated services, and misconduct unconnected with the provision of regulated services.   Speaking very broadly, s 7(1)(a) is intended to relate to work misconduct and s 7(1)(b) to non-work misconduct.

[56]     The Full Court in Orlov, and the Tribunal in relation to the similar charges in the  present  case,  both  found  that  the  conduct  engaged  in  when  making  the allegations, was work that was at least connected to provision of regulated services. That could not be questioned.  The charges therefore would not fall within s 7(1)(b), which covers only work “unconnected” with provision of regulated services.

[57]     The Full Court said that Mr Orlov was not providing regulated services, but he was doing work connected to regulated services and s 7(1)(a) could be read as if it says “providing regulated services  or work connected to the provision of regulated

services”.23      The  underlined  words  are  added  in  effect  to  the  provision.    The Full Court  found  that  Mr Orlov’s  conduct  therefore  fell  within  s 7(1)(a).    The Tribunal adopted that reasoning in this case. 24

[58]     I have some difficulty in reading the section in that way.   Mr Morgan QC candidly said he agreed, when pressed.   If the work was not “regulated services”, then it would seem to me s 7 (1)(a) would not apply.  I agree with the Full Court, and disagree with Mr Deliu, that this would leave a nonsensical lacuna in the section. Mr Deliu  said  s  7(1)(b)  would  simply  pick  up  any  misconduct  left  over  after applying (a), and that (b) would include these charges.  That is clearly not correct. As recorded above, s 7(1)(b) does not apply.   The Full Court in Orlov (and the Tribunal here) has already said so, and I agree.  It is disingenuous on Mr Deliu’s part to submit on appeal that s 7(1)(b) would apply.

[59]     In my view, the correct answer here, applying in part the same reasoning by which the Full Court reached its conclusion, is that the conduct at issue was in fact “at a time of provision of regulated services”.  “Regulated services” means “… legal services”.   “Legal services” are “services a person provides by carrying out legal work for any other person”.  “Legal work” “includes reserved areas of work and  any work that is incidental to any of that work”.   “Reserved areas” means “the work carried out by a person in giving legal advice to any other person in relation to the directions or management of proceedings the person is considering bringing or has decided to bring or appearing as an advocate for any other person”.

[60]     The definition of “legal work”, as noted above, is not limited to “reserved areas”.  It “includes” reserved areas and any incidental work.  When Mr Deliu wrote his  letters  of  complaint  and  took  the  other  actions  regarding  Harrison  and Randerson JJ, that was “legal work” in the generally understood sense of those words, i.e. work carried out as a lawyer for the benefit of clients. The Tribunal found that Mr Deliu (along with Mr Orlov) was trying to secure an advantage for himself. He was also clearly trying to secure an advantage for his clients.  Alternatively, the

letters and court proceedings were “legal work” in the sense of work incidental to

23     Orlov Full Court decision, above n 18, at [96]-[115].

24     Judges’ Charges Tribunal decision, above n 17, at [22]-[23], [123]-[124].

reserved areas of work, i.e. incidental to giving legal advice to his clients generally, regarding appearing as an advocate for them.  Either way, the relevant conduct was “regulated services”.

[61]     The only problem that seems to arise with fitting under the head of “regulated services” in this context, is whether the reference to legal services involving legal work for any other person means there must be an identifiable person.  It seems to me that is not necessary, and if a lawyer is carrying out legal work for their clients generally (i.e. for other people), which Mr Deliu was clearly doing in writing his letters of complaint, then that is “legal services” and therefore “regulated services”.

[62]     The words “at a time” which appear in s 7(1)(a) also support a wider reading of what is covered by the subsection.  The subsection does not just say, as it could have done, “that occurs  when providing regulated services” but rather “that occurs  at a time when providing regulated services”.

[63]     If I am wrong in my view, then I would adopt the interpretation of s 7 reached by the Full Court in Orlov, and followed by the Tribunal in this case.

[64]     On either basis, the Tribunal was correct in concluding that Mr Deliu was providing regulated services in terms of s 7(1)(a) in relation to the Judges’ Charges.

The Meeting Charge

[65]     The Meeting Charge was a charge of unsatisfactory conduct while “providing regulated services”.

[66]     Mr Deliu argued in this respect that he was not providing “regulated services” as defined.  He said “there was simply no evidence” to support that conclusion.  He said, “… though it was said my client was supposedly Mr Orlov”, he was not carrying out any of the work described in the various definitions referred to above. He submitted that he was not engaged in “the reserved areas of work”; he was not “providing advice in relation to legal rights”; “preparing a document”; and so on.

[67]     First, there was nothing “supposed” about Mr Orlov being Mr Deliu’s client. They both said so in contemporaneous documents created by them and the Tribunal was unquestionably right in reaching that conclusion.   It is frankly appalling that Mr Deliu continued to argue otherwise.   He submitted to me that at the particular point of attending the meeting, he was “more there as a support person” and also there on his own behalf.  I consider such a submission made by a lawyer defending themselves in disciplinary proceedings to be bordering on dishonest, and certainly unacceptable.  It so clearly flies in the face of the contemporaneous correspondence.

[68]     Also, the definition of “legal work” is not exclusive.  A lawyer’s attending a meeting with a client would clearly qualify as “legal work” and therefore “provision of regulated services”.

[69]     After pointing these matters out to Mr Deliu during his submissions, he reflected on them and in the course of his reply submissions said he accepted that the Meeting Charge and conviction were correct.  He said he accepts that he had been running technical arguments, which he now accepts were wrong.

[70]     Consequent upon Mr Deliu’s concession, there is no need for me to consider further his argument that he was not providing “regulated services” at the time relevant to the Meeting Charge.

Issue 3:  No proof of falsity - Judges’ Charges

[71]     Mr Deliu raises a number of arguments of a similar nature, which I have grouped under this heading. These are:

(a)       what  he  said  about  the  Judges  was  not  false  (this  included  an

argument about “primary facts cf secondary facts”);

(b)there was no proof that his allegations about the Judges were false (or without foundation);

(c)       the burden of proof had been wrongly placed on him, and

(d)he was denied the ability to call the Judges as witnesses in order to provide any proof.

[72]     During or after the penalty hearing, and following a suggestion by a member of the Tribunal that Mr Deliu should proffer apologies to the Judges, Mr Deliu wrote to each of Harrison and Randerson JJ, as follows:

I write to apologise for my allegations against you that have been found by the New Zealand Lawyers and Conveyancers Tribunal to have been false or without sufficient foundation.

I deeply regret having done these things and to show you that I meant no disrespect in doing so.

I acknowledge that what I said about you was wrong, and am sorry and ask for your forgiveness.

[73]     Mr Deliu said that the language in these letters was very carefully chosen. I pointed out to Mr Deliu that nonetheless he had acknowledged that what he said was “wrong”.  I questioned whether this was not in effect an acknowledgement that his allegations were false.  Ultimately, Mr Deliu conceded that false allegations did incorporate wrong allegations.   (He was at pains to point out that when he said “wrong” he meant unintentionally so.)

[74]     Therefore,  on  the  basis  of  the  letters  of  apology,  Mr  Deliu’s  various arguments on appeal under this head (no proof of falsity and similar) must fall away. He has in effect accepted in writing that the allegations he made were false.  There is nothing for the Standards Committee to prove, nor was there any point in Mr Deliu’s calling the Judges as witnesses.

[75]     I should add that Mr Deliu’s arguments under this head (which are variations on a theme) were rejected by the Tribunal in its liability decision, without reliance on the apology letters, as these had not then been “offered”.  For example, the Tribunal

said:25

[16] The practitioner was not able to require Justice Harrison and Justice Randerson to appear before the Tribunal to answer his questions.  Therefore, he submitted, it could not know whether his allegations were false.  There was no evidence that they were.  In effect, the Committee could not prove

25     Judges’ Charges Tribunal decision, above n 17.

that what he said is without foundation without calling the Judges to say what he has said about them was untrue.  He asserted he was being subjected to an “unlawful reverse onus”, whereby the Committee could assert that anything was without sufficient foundation and the practitioner has to rebut that.  He submitted it defeated his right to a presumption of innocence.

[17] It is not for the Committee to call a Judge to say that he or she has complied with their judicial oath.   An informed observer will not lightly accept that a Judge has put aside his or her professional oath and training.  If a practitioner asserts that a Judge has not done so (as here) that practitioner needs to be able to show the basis for the allegation — he or she must have a sufficient foundation or a good cause, such that he or she can honestly say that what is being said is true.

[18] In this case, there is no dispute that the practitioner's belief was, in the case of Justice Harrison, essentially based on three judgments.  In the case of Justice Randerson, it was based on the fact that Justice Randerson had referred his conduct to the New Zealand Law Society.  There is no difficulty exploring and answering the question of “sufficient foundation” in this context.

…

[214] In this case the practitioner has not shown a foundation for any of his allegations.  His statements about Justice Harrison were based solely on his experience in the L, G and C v C cases.  He had not even appeared before Justice Harrison.  He says he was also prepared to take as truth the reported experience of his colleague Mr Orlov, which he said made him approach the Judge  with suspicion,  anticipating unfair treatment.   None  of this  could provide a foundation for the very serious allegations made against the Judge.

[215] His statements in relation to Justice Randerson were baseless.   They appeared to be a most disgraceful response to Justice Randerson's complaint to the Law Society.

[216] We  reiterate  that any practitioner is entitled to  make  a  complaint against   a   member   of   judiciary.      However   in   accordance   with   the practitioner's obligations it is expected the language will be moderate and the allegations founded in fact.  The real concern for this Tribunal is that, after all that has happened since 2008, the practitioner still appeared to be unable to accept that his performance as an officer of the court in the initial three cases was not appropriate, and that the same fate would likely befall any lawyer who behaved in the same way.

[76]     I consider that the Tribunal’s reasoning is correct, so that, either on the basis of his letters of apology or on the basis of the Tribunal’s reasoning, Mr Deliu’s arguments regarding proof of falsity (and similar) do not succeed.

[77]     The  same  applies  to  Mr  Deliu’s  argument  regarding  “primary  facts  cf secondary facts”.  It is a convoluted argument to follow, but essentially he contended there were two tiers of facts, the first being the actions of the Judges which he said

could be verified, such as Justice Harrison ordering costs against him.  The second tier, or “secondary facts”, he said cannot be “objectively proven false”, and these are the allegations he made.

[78]     Mr Deliu’s argument distorts the point. As the Tribunal said:26

… the Judges did A, B or C, the practitioner felt that meant D, E or F, and in response the practitioner did or said G, H or I.  It was those latter acts that constituted the misconduct. They were facts in that they were actions that he took.  They were based on his understanding of and response to the primary facts  but the Tribunal found  they did  not have  any reasonable (or  any) foundation in those primary facts.

[79]     Again, I agree with the Tribunal.  Mr Deliu was charged because of his own conduct, and his argument in this regard is nonsensical.  I do not consider that this point merits further consideration.  As I say, it is also answered by Mr Deliu’s later acknowledgement that his actions were wrong and therefore also false.

Issue 4: Contravention of purposes of the 2006 Act – Judges’ Charges

[80]     Mr Deliu argues that the Tribunal was wrong to find that the Judges’ Charges

came within the scope of the 2006 Act.

[81]     Mr Deliu submits, as he did before the Tribunal, that a practitioner owes no greater duty of respect to the judiciary than to anybody else and that, in any event, such duty as might be owed is not breached by complaints made through the proper channels, as opposed to complaints made in public.

[82]     I agree with the Tribunal’s findings in this regard.27    Practitioners all owe particular respect to the judiciary, arising out of the fundamental obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand.28   The need for counsel to play their role in upholding the dignity of the judiciary is central to the administration of justice and maintenance of the rule of law.  As the Tribunal

said,29 that is in part why the duty to the Court overrides the duty to a client.

26     Penalty decision, above n 1, at [53].

27     Judges’ Charges Tribunal decision, above n 17, at [24]-[32].

28 Lawyers and Conveyancers Act 2006, s 4(a).

29     Judges’ Charges Tribunal decision, above n 17, at [27].

[83] The Judges’ Charges are consistent with the fundamental obligations set out in the 2006 Act.30 They are also consistent with the stated purposes of the 2006 Act, which include maintaining public confidence in the provision of legal services.31

[84]     Although not directed at this point, the statements of the Court of Appeal in Orlov at [122] support the Tribunal’s finding.32    While directed at why Mr Orlov’s complaints were not protected under the right to freedom of expression, the Court’s comment that scandalous allegations against a judge exercising judicial authority are an affront to the court and pose a risk to public confidence in the judicial system, supports the proposition that the Judges’ Charges are consistent with the purposes of the 2006 Act.

[85]     Mr Deliu also argues that the way in which he made his allegations (via the Judicial Conduct Commissioner, the Chief High Court Judge, the High Court and the Supreme Court), was not in breach of any duty that exists, as no member of the public was aware of the allegations, and the dignity of the judiciary was not undermined.  These points are all ultimately variations on a theme, being answered repeatedly.

[86]     First of all, it is an inherent breach of a lawyer’s duty to make unfounded and disgraceful allegations regarding members of the judiciary, even if this were limited to formal channels.  Secondly, these were not all private channels.  The proceedings in the High Court and the Supreme Court were public proceedings.  Furthermore, it is naïve to contend that complaints made, for example, to the  Judicial Conduct Commissioner  and  the  Chief  High  Court  Judge,  become  known  only  by  those people.  At an absolute minimum, there will have been others within the office of Mr Deliu  himself,  and  the  offices  of  the  recipients,  who  became  aware  of  the complaints.  Realistically, particularly with scandalous matters of this nature, others still would have become aware of them.

[87]     It is also specious for Mr Deliu to contend that there is no evidence that the judicial process was undermined, or the dignity of the judiciary offended.  These are

30 Lawyers and Conveyancers Act 2006, s 4.

31     Section 3(1)(a).

32     Orlov 2013 CA decision, above n 5, at [122].

inevitable consequences of the allegations made.  The fact that the Chief High Court Judge was moved to lay a complaint with the Law Society, speaks volumes for the offence caused.

[88]     The Tribunal was correct in ruling that the Judges’ Charges do not contravene

the purposes of the Act.

Issue 5:  Absolute and qualified privilege attaching to statements made about the Judges – Judges’ Charges

[89]     Mr Deliu contends that the Tribunal was wrong to reject his claim to absolute privilege (or absolute immunity from prosecution) with regard to the allegations he made about the Judges.

[90]     There are some circumstances where absolute immunity does arise.   It has been noted overseas, and discussed in New Zealand, that “absolute immunity in principle is inconsistent with the rule of law but in a few strictly limited categories of cases it has to be granted for practical reasons. It is granted grudgingly.”33    In the context of witness immunity, it was noted that “[t]he practical reasons which justify the immunity from suit enjoyed by a witness are to encourage freedom of speech in

the judicial process, by relieving the witness of the fear of vexatious litigation, and to limit the scope for re-litigation”.34   In a different context, the Court of Appeal held in Teletax Consultants Ltd v Williams that there is immunity against a claim of defamation   arising   from   comments   made   in   a   complaint   lodged   with   the Law Society.35   Teletax is relied on by Mr Deliu, but it is not authority for immunity in general.

[91]     The different point at issue here, namely whether the statements made in complaints and in court proceedings, would attract immunity against disciplinary

33     Darker v Chief Constable of West Midlands [2001] 1 AC 435 (HL) at 453. See also EBR Holdings Ltd (in liq) v McLaren Guise Associates Ltd [2016] NZCA 622, (2016) 23 PRNZ 393 at [13].

34     EBR Holdings Ltd (in liq) v McLaren Guise Associates Ltd, above n 33, at [13]. See also

New Zealand Defence Force v Berryman [2008] NZCA 392 at [67].

35     Teletax Consultants Ltd v Williams [1989] 1 NZLR 698 (CA).

proceedings,  was  again  dealt  with  by  the  Full Court  in  Orlov.    It  rejected  the argument:36

Mr Orlov points to no authority to suggest the immunity extends to afford protection to a lawyer facing professional misconduct charges for statements made in proceedings. Such a situation would be inconsistent with the Lawyers and Conveyancers Act (Lawyers' Conduct and Client Care) Rules

2008.   Some parts of those Rules are directed solely to the obligations on lawyers involved in proceedings.  It would be nonsense if one could not lay charges for breaches of these rules.   There are also numerous authorities which  by  inference  stand  for  the  opposite  proposition  to  that  being contended for.  In Gazley v Wellington District Law Society, the prosecution of Mr Gazley was in relation to proceedings he had filed alleging various forms of misconduct by judges of the Court of Appeal.   There was no suggestion immunity existed.   We accordingly reject this submission as it relates to the documents filed in Court.

[92]     While the Full Court made this point in relation to Court proceedings, and did not refer to this reasoning in respect of the complaint Mr Orlov made to the Judicial Conduct Commissioner, I consider that the principles discussed above apply equally to the various comments made by Mr Deliu in contexts unrelated to court proceedings.  To hold that his complaints are protected by absolute privilege would undermine the disciplinary process.

[93]     Importantly, the Court of Appeal, dealing with an application by Mr Orlov for leave to appeal and to judicially review the decision of the Full Court, said that the Full Court’s reasoning was compelling, and the contrary view would create “an inexplicable disciplinary Alsatia”.37   I agree. That decision is binding on this Court.

[94]     I agree with the Tribunal that Mr Deliu has no absolute immunity against prosecution.

[95]     Mr Deliu also argued that his complaints were subject to qualified privilege. His submissions were based on the test for qualified privilege in respect of common

law defamation.

36     Orlov Full Court decision, above n 18, at [72] (footnotes omitted).

37     Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2016] NZCA 224, at [14]. “Alsatia” was an area around Whitefriars, London, in the 17th century, which was a sanctuary for criminals and debtors.

[96]     Mr Deliu relies on the statement by Baron Parke in Toogood v Spyring, where it was said:38

In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, … and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.  In such cases the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending on the absence of actual  malice.   If  fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.

[97]     Statements published on an occasion of qualified privilege are protected “for

the common convenience and welfare of society”.39

[98]     Mr Deliu then submits that he “followed the only legitimate channels of complaint or seeking redress through the Courts.  [He] did so privately.  [He] acted in good faith.  Literally no harm was caused. [He] thus had qualified privilege”.

[99]     Even assuming that qualified privilege immunity is available in disciplinary proceedings, it still would not be available to Mr Deliu. Mr Deliu made allegations that were false or unfounded.   In such circumstances, it could not be said that his comments were “fairly warranted by any reasonable occasion or exigency”, to adopt the language of Baron Parke.

[100]   For that reason, Mr Deliu has no qualified immunity either.

Issue 6:  Disparate treatment – abuse of process

[101]   A strong thread that runs through all of Mr Deliu’s submissions, (including on

penalty) is that he has been treated unfairly as against comparable cases.

38     Toogood v Spyring (1834) 1 CM & R 181 at 193-194.   See also Hagaman v Little [2017] NZHC 813.

39     Toogood v Spyring, above n 38, at 193.

Judges’ Charges

[102]   In terms of liability, Mr Deliu’s argument is that it was an abuse of process to lay the Judge’s Charges and/or to bring charges of serious misconduct when, at worst,  the  conduct  was  unsatisfactory.    He  compares  the  cases  of  himself  and Mr Orlov  with  the  charging  process  adopted  in  the  cases  of  Mr  Molloy  QC, Messrs Bradbury and Muir, Dr Moodie, Mr Carruthers and Mr Hong.40

[103]   The facts of the cases on which Mr Deliu relies were quite different to and less serious than the present (and Orlov).  The facts in Orlov are in turn less serious than this case.  The Tribunal rightly reached the same conclusion after an exhaustive analysis of the other cases and of Orlov.41   The Full Court in Orlov was also of the same view with regard to the other cases.  It said:  “Our assessment at a broad level is that none [of the cases] came close to the sustained misconduct involved here.”42

[104]   I agree with the comparative analysis made and conclusions reached on the identical argument in Orlov, and in more detail by the Tribunal in this case.  These comparisons have been made exhaustively.  I do not propose to repeat the exercise here, but I will refer again to these differences when I come to the closely related point Mr Deliu makes as to disproportionate penalty.

[105]   Mr Deliu, who presents as American/Canadian, is particularly focused on his reasoning for the claimed difference in treatment, which he attributes to his (and Mr Orlov) being refugees/immigrants, where he says the other lawyers he mentions are not.  (Whether that is so, I do not know.  One obviously cannot take these matters at face value.)   He refers at the very beginning of his written submissions, and repeatedly  after  that,  to  having  “on  multiple  occasions  in  my  life  been  an immigrant”, apparently having come originally from Romania.   In oral argument, Mr Deliu said that he put forward his background to explain his different experience

of abuse of power and his consequent over-reaction to any perceived unfairness.

40     Dr Tony Molloy QC (2012) National Standards Committee 6446; Bradbury and Muir (2013) National  Standards  Committee  6743;  Moodie  (2013)  National  Standards  Committee  6804; Re Hong [2013] NZLCDT 9.   There was no proceeding against Mr Carruthers.   The only information in this regard is as provided by Mr Deliu.

41     Penalty decision, above n 1, at [73]-[114], [124]-[149].

42     Orlov Full Court decision, above n 18, at [203].

[106]   Mr Deliu needs to understand that while his background may be (part of) the reason for his misconduct, it is not the reason for the findings against him.   The reason for the findings against him is his misconduct.

Meeting Charge

[107]   Mr Deliu argued that the Meeting Charge was so trivial that it should not have warranted the attention of the Standards Committee or the Tribunal, particularly given that it was apparently the first charge laid.

[108]   Given  Mr  Deliu’s  earlier  recorded  concession  where  he  accepted  the

Meeting Charge and conviction were correct, I do not need to address this point.

[109]   However, I do not agree that the Meeting Charge was trivial at all.  I agree with the Tribunal that:43

[52] … The effective operation of the disciplinary process is very important in the public interest.  Lawyers involved must give up their time voluntarily to consider the complaints that come to their notice.  They are busy people with limited time.   Not only was the meeting brought to an end by the conduct, but at least one member felt intimidated by the practitioner.   It is conceivable that lawyers might be put off volunteering for such duties in future by actions such as this.  The disruption of the disciplinary process in this way is a serious act of misconduct.  How serious is a matter for penalty. However we agree with Counsel for the Committee that the practitioner's conduct cannot be downplayed in the way it was by the practitioner.

[110]   I also note that Mr Deliu claims there was disparate treatment in this regard because  Mr  Godinet  and  Mr  Hetherington,  who  were  at  the  meeting  or  in  the Law Society offices, were not prosecuted as a result of their reactions to the conduct of Mr Deliu and Mr Orlov.  I agree with the Tribunal’s dismissal of this argument and their comment that there are no comparisons to be drawn, because “happily, Standards Committee and other Committees of the Law Society are not habitually confronted by those that seek an audience where none exists.”

[111] What Mr Deliu and Mr Orlov did was aggressive, uncontrolled and unprecedented.  It was intimidating to the Committee members, and designed to be

so.

43     Auckland Standards Committee No 1 v Deliu [2016] NZLCDT 25 [Meeting Charge Tribunal decision].

[112]   I  also  consider  it  was  appropriate,  where  the  very  nature  of  the  charge involved  is  in  effect  interfering  with  and  standing  over  the  operation  of  the Law Society’s  disciplinary processes,  for  the  charge  to  have  been  laid  with  the Tribunal, not at a lower level.

Issue 7:  Proof and evidence – Incompetence Charges

Incorrect standard of proof

[113]   Before the hearing of the Incompetence Charges, Mr Deliu applied to strike them out for lack of a prima facie case. The Tribunal heard the strike-out application together with the substantive hearing.   After considering each charge in depth, it recorded with regard to each that a prima facie case was established and shortly thereafter recorded that the charge was proved.   Mr Deliu says the language used shows the Tribunal was applying the wrong standard of proof, in other words, that it considered only whether there was a prima facie case and moved from there to a conclusion.

[114]   It is clear from the decision that this submission is incorrect.  At [68] of the Tribunal’s  decision,  the  Tribunal  said  that  with  each  charge  it  would  consider whether a prima facie case had been made out and then it would decide whether the charge was proved on the balance of probabilities.44

[115]   Thereafter, when concluding in relation to a given particular, the Tribunal stated, for example:45

We find a prima facie case to be proved and proof of the particulars on the balance of probabilities.

[116]   While the language used is slightly confusing, it is clear that the Tribunal meant that the charges were proved to the requisite standard, namely on the balance

of probabilities, and that it followed that a prima facie case was established.

44     National Standards Committee 1 v Deliu [2016] NZLCDT 27 [Incompetence Charges Tribunal decision].

45     Incompetence Charges Tribunal decision, above n 44, at [289].

[117]   I am satisfied that the Tribunal applied the appropriate standard of proof when it found that the charges were proved.

Wrongful admission of (or reliance on) “critical” judgments

[118]   As noted, the Incompetence Charges were based on judicial criticisms of

Mr Deliu as counsel, in six separate cases.

[119]   The Tribunal took the relevant passages in the judgments into account in this regard.

[120]   Mr    Deliu    says    the    judgments    were    inadmissible    by    virtue    of

Auckland District Law Society v Leary46 and s 50 of the Evidence Act 2006.

[121]   I find that to be incorrect.  The effect of s 50 of the Evidence Act is that a judgment would not be admissible before the Tribunal if the judgment were being used to prove the existence of a fact that was in issue in that particular judgment. That was the position, or akin to the position, in Leary.  It is not the position in this case.   Mr Deliu’s conduct was not a fact at issue in any of the cases where the judgments were relied upon.  The facts at issue, and the detailed background to these judgments, were largely irrelevant, other than to test the accuracy of each Judge’s criticisms.

[122]   Mr Deliu also says that because a “critical” judgment, and/or adverse judicial criticism, was not taken into account in Hong,47  the adverse criticisms made of Mr Deliu in the “critical” judgments could not be taken into account in this case.

[123]   First, I note that the Tribunal in Hong did not say the relevant judgment was inadmissible.  This is consistent with the approach taken in this case.  Secondly, the weight placed upon a “critical” judgment, and on any particular piece of evidence, on the facts in one case, is entirely irrelevant to the weight attributed to pieces of

evidence in another case.

46     Auckland District Law Society v Leary HC Auckland M1471/84, 12 November 1985.

47     Re Hong, above n 40, at [61]-[62].

[124]   In this case, the relevant passages in the judgments could properly be taken into account under s 239 of the 2006 Act.  Section 239 provides, inter alia, that:48

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.

[125]   Relevant to applying s 239, the Court of Appeal, when it declined Mr Deliu’s application for leave to appeal in relation to amendment of the Judges’ Charges, stated the following in respect of admission of various judgments (including judgments of Harrison J mentioning nationality):49

It is of course well-established that the Tribunal is not entitled to determine that facts in issue are proved by accepting without inquiry the findings of another court or tribunal as to the existence of those facts. But, as Mr Morgan confirmed, that is not the purpose for which the Committee seeks to adduce the judgments in evidence in this case. Here the Committee simply seeks to produce them under s 239(1) of the Act as evidence that may assist the Tribunal to deal effectively with the matters before it. As Mr Deliu points out, s 239(1) is subject to s 236 which requires the Tribunal to observe the rules of natural justice, but there is no basis here for concluding in advance of the Tribunal hearing that it will breach those rules when considering this evidence.

[126]   The Court of Appeal also stated that:50

[T]he Tribunal must exercise its discretion to admit otherwise inadmissible evidence under s 239 of the Act in accordance with the interests of justice. The centrality of the evidence to the case and the effects of an inability to cross-examine may be material considerations in its assessment.

[127]   In addition, the Full Court in Orlov said (in relation to Mr Orlov contending that various judgments of Harrison J were inadmissible):51

We consider that [s 239](1) [of the 2006 Act] 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

48 Lawyers and Conveyancers Act 2006, s 239(1).

49     Deliu v National Standards Committee of the New Zealand Law Society [2015] NZCA 399 at [34] (footnotes omitted).

50     Above n 49, at fn 31.

51     Orlov Full Court decision, above n 18, at [80].

judgment is being relied on.  We therefore reject this challenge to the extent it is an admissibility challenge.

[128]   In  light  of  the  relevant  legislation  and  case  law,  the  judgments  were admissible.  They could be considered under s 239 of the 2006 Act, and were not barred by s 50 of the Evidence Act. As such, the Tribunal was therefore permitted to consider them, albeit with care insofar as the weight given to the conclusions drawn in the decisions.

[129]   Mr Deliu also submits that it was wrong for the Tribunal to rely on the “critical” judgments because he had no opportunity to address the respective Judges on the points of criticism.  He says it was a breach of natural justice for the Tribunal to therefore rely on the critical passages.  The answer to this is that Mr Deliu had the opportunity before the Tribunal, to respond to and refute the criticisms and he did so by affidavit.   He then declined to be cross-examined.   He has therefore had an opportunity to respond. There is no breach of natural justice.

Insufficient evidence to prove the Charges

[130]   There is an overlap here with the earlier discussion around the burden of proof.

[131]   Mr Deliu says that there was no, or insufficient, proof of the Incompetence Charges, because the Standards Committee failed to assess the files underlying the “critical” judgments; and failed to adduce expert evidence regarding the standard for negligence or incompetence.

[132]   In respect of the first point, I do not agree.  There was sufficient evidence without the files, for the Tribunal to properly find the Incompetence Charges proved on the balance of probabilities.

[133]   The Standards Committee tried to obtain the relevant files as part of its investigation, but was blocked from doing so by Mr Deliu.   In the context of a disciplinary  proceeding,  where  there  is  some  obligation  on  the  practitioner  to co-operate, and files could have been obtained with his assistance, there was no obligation on the part of the Standards Committee to go further.

[134]   In the absence of a Court order, Mr Deliu did not have to provide access to the files, but the Tribunal could then only take the evidence it did have at face value, subject to the usual weighing-up exercise.

[135]   Had Mr Deliu facilitated access to the files, that would not have meant he had to  prove  anything  from  them  (which  he  contends).    It  would  have  meant  the Standards Committee would have had to review them and provide material helpful or unhelpful to the Tribunal.

[136]   I also do not agree with Mr Deliu’s submission that to establish negligence or incompetence before the Tribunal, expert evidence was required.   Mr Deliu has provided no authority in that respect.  In some cases it may be of assistance or even necessary.  In this case, it was not.

[137]   The Tribunal said:52

[71]  … As  with  the  Court,  the  issue  of  the  practitioner's  negligence  or incompetence and the seriousness of it, and the frequency of it, are matters for the assessment of this Tribunal based on the evidence it has before it.  We are not able to delegate that function to an expert witness and then decide whether or not we accept that witness' evidence.

[72] We also accept the submission of Counsel for the Committee that, given the limitations that exist on the evidence in this case, and in particular the lack of much of the supporting documentation that might otherwise have been available, we do not see that expert evidence would have advanced this Tribunal's fact finding role.  The Tribunal has the knowledge and experience to determine the matters that are in issue.

[138] I agree, though for clarification this does not mean that the Standards Committee could not have called expert evidence, or that at times it may not be necessary.  But it was not necessary here.

[139]   This was a case where the Tribunal had evidence of six different judgments where a number of different Judges were levelling significant criticisms at Mr Deliu. This was not a case of one judgment critical of Mr Deliu, or of one Judge repeatedly criticising him.  The extent and breadth of the criticism is relevant.  As he did on a number of points, Mr Deliu has sought to downplay or to mischaracterise the Judges’

criticisms  on  this  appeal.    In  his  submissions,  Mr  Deliu  repeatedly  referred  to Potter J wrongly taking the view that he could not file an omnibus application.  But the criticism made of him by Hugh Williams J was that Mr Deliu had blatantly not complied with very clear directions made by Potter J that he file individual applications; was purporting instead to seek clarification when the direction was clear and further the Judge had expressed very good reasons for the direction.   In short, Mr Deliu was simply not accepting her authority on the point.

[140]   Further, contrary to Mr Deliu’s submissions, the “critical” judgments were not the only material available in respect of the Incompetence Charges. The Tribunal considered the submissions made by Mr Deliu to the Standards Committee and the affidavit evidence before the Tribunal.  Also, the critical passages in each judgment could be assessed against the judgment as a whole.  The Tribunal could then form its own assessment of whether there was negligence or incompetence.  It did not rely on any “finding” of such by the Judges in the six cases.

[141]   I am satisfied the Tribunal had sufficient evidence to conclude, on the balance of probabilities, that Mr Deliu was guilty of the Incompetence Charges.

Issue 8: Wrongful Refusal of Stay

Incompetence Charges

[142]   Mr Deliu says the delay in the laying of the Incompetence Charges was an abuse of process and that the Tribunal erred in finding Mr Deliu was responsible for the delay, and erred in finding no abuse of process.

[143]   The complaints of incompetence were made in late 2009.  The investigation began in the first half of 2010. There was a decision to prosecute in November 2010. Charges were only laid in 2015.  Mr Deliu says the alleged incompetence was stale and spent by the time the charges were laid.

[144]   I agree with the Tribunal and Mr Morgan for the Standards Committee that there are two answers to this part of Mr Deliu’s case:

(a)       He has very largely been causative of the delay.

(b)      He has not suffered any prejudice.

[145]   The chronology attached to the Tribunal’s Incompetence Charges decision shows  that  Mr Deliu  filed  an  application  for  judicial  review  of  the  decision  to prosecute these charges.  He opposed an application for access to the underlying files for  the  charges.     He appealed  decisions  to  the  Court  of  Appeal  and  to  the Supreme Court.  Mr Deliu was not solely responsible for the delay.  That is seldom the case.  But, in my view, Mr Deliu did everything he could to obstruct and/or delay the laying and prosecution of the Incompetence Charges.

[146]   I consider Mr Deliu is in no position in this proceeding to complain about delay, or seek relief from it.

[147]   I also agree with Mr Morgan that I can see no prejudice to Mr Deliu, beyond the passing of time.

All Charges

[148]   Mr Deliu raised as an additional point of appeal that the Tribunal should have stayed the proceedings in full because of alleged prosecutorial misconduct on the part of Mr Pyke, the lawyer originally acting for the Standards Committee.  Mr Deliu had without prejudice discussions with Mr Pyke, partly at his own instigation.  He covertly  recorded  those  discussions  and  then  alleged  blackmail  on  the  part  of Mr Pyke,  whilst  declining  to  produce  the  actual  recordings.     Mr  Deliu  then succeeded in having Mr Pyke recused on the basis that Mr Pyke would be required to answer the blackmail allegations in the Tribunal hearing.   Mr Deliu also sought a stay of all of the charges on the basis of prosecutorial misconduct.

[149]   I agree with the Tribunal’s findings against this argument and its comment that  Mr  Deliu’s  “characterisation  of  the  matter  as  an  abuse  of  process  is extraordinary and not accepted”. 53

Judicial Review

[150]   At the outset, Mr Deliu said I needed to consider only two points in terms of his Judicial Review submissions and otherwise did not need to read those submissions.  He said the submissions were otherwise a complete duplicate of points made on appeal.  The two additional points were “primary facts cf secondary facts” and costs.

[151]   After completing his submissions on the appeal, and turning to his duplicate judicial review submissions, Mr Deliu advised that he had nothing to add on the first point, “primary facts cf secondary facts”, which is addressed above.

[152]   The second point relates to costs, but I address it here.  Mr Deliu says that Mr Pyke, a lawyer formerly representing the Standards Committee, continued to act for an impermissible period after he was debarred from acting as counsel in the Judge’s Charges and Meeting Charge proceedings before the Tribunal.   The order sought by Mr Deliu was an order debarring Mr Pyke from appearing in the proceedings.

[153]   Mr Morgan argues that Mr Pyke was debarred from acting as an advocate for the hearings before the Tribunal and not from assisting effectively new counsel pick up a very substantial brief at very short notice.  This is consistent with the reason for Mr  Pyke’s  recusal,  which  was  because  he  would  have  to  give  evidence  at  the Tribunal hearing in order to respond to Mr Deliu’s claim of blackmail.  Also, as I understood Mr Deliu’s submission, he had accepted that Mr Pyke could continue for a   reasonable   period.      However,   to   err   on   the   side   of   caution,   the Standards Committee  should  deduct  the  two  or  three  invoices  (net  of  GST)  of Mr Pyke  in  relation  to  those  two  proceedings,  that  post-dated  the  decision  of Woolford J. As I understand it, these are relatively small sums.

Conclusion on Liability Appeal/Judicial Review application

[154]   With the exception of the costs variation at [153], for the reasons set out in this judgment and for the reasons given by the Tribunal in its three decisions, I

consider the findings on all charges are correct, and the grounds for appeal/review have not been made out.

PENALTY APPEAL AND CROSS-APPEAL

Tribunal penalty decision

[155]   The Tribunal delivered a long and carefully considered decision as to penalty.

[156]   It said that striking Mr Deliu off was seriously considered, but the required unanimity could not be achieved.  It considered strike-off was open on the basis of the repetitive and quite outrageous conduct in relation to the Judges’ Charges.  The totality of the conduct and the practitioner’s response to the charges called into question whether he was a fit and proper person to practise as a lawyer.54

[157]   After taking into account Mr Deliu’s ability and firm commitment to justice; his promise these matters would not happen again; the largely historical nature of the charges; his last-minute expressions of regret and letters of apology, the Tribunal determined that suspension was the appropriate response.55

[158]   The Tribunal started at 18 months’ suspension for the most serious charges, being  the  Judges’ Charges,  and  added  three  months  to  recognise  the  remaining charges, bringing the total to 21 months’ suspension.56

[159]   The Tribunal then gave credit of six months, in particular for the historical nature of the offences; for previous good character, and taking into account the significant costs Mr Deliu would have to pay.  The Tribunal noted that they did not allow any credit for “first offence”, given the penalty for a previous matter was on the basis of first offence and given the significant number of offences involved

here.57

54     Penalty decision, above n 1, at [152].

55     At [153]-[154].

56     At [156]-[157].

[160]   Accordingly, the Tribunal ordered that Mr Deliu be suspended from practice as a barrister or as a solicitor or as both, for a period of 15 months with effect from

1 February 2017, that date giving him some time to make arrangements with respect to his practice.58

Principles relevant to penalty

[161]   The purposes and principles of disciplinary penalties were discussed by the Court in Daniels v Complaints Committee 2 of the Wellington District Law Society, which stated that:59

The predominant purposes are to advance the public interest (which include “protection of the public”), to maintain professional standards, to impose sanctions on a practitioner for breach of his/her duties, and to provide scope for rehabilitation in appropriate cases.   Tribunals are required to carefully consider  alternatives  to  striking  off  a  practitioner.    If  the  purposes  of imposing disciplinary sanctions can be achieved short of striking off then it is the lesser alternative that should be adopted as the proportionate response. That is “the least restrictive outcome” principle applicable in criminal sentencing. In the end, however, the test is whether a practitioner is a fit and proper person to continue in practice.  If not, striking off should follow.  If striking off is not required but the misconduct is serious, then it may be that suspension from practising for a fixed period will be required.

[162]   When  strike-off  is  a  possible  penalty,  the  principles  to  be  applied  are well-settled. As the Full Court of the High Court said in Dorbu in 2012:60

[35]      … The question posed by the legislation is whether, by reason of his or her conduct, the person accused is not a fit and proper person to be a practitioner.   Professional misconduct having been established, the overall question is whether the practitioner’s conduct, viewed overall, warranted striking off.  The Tribunal must consider both the risk of reoffending and the need to maintain the reputation and standards of the legal profession.  It must also consider whether a lesser penalty will suffice.   The Court recognises that the Tribunal is normally best placed to assess the seriousness of the practitioner’s offending.  Wilful and calculated dishonesty normally justifies striking off.  So too does a practitioner’s decision to knowingly swear a false affidavit.  Finally, personal mitigating factors may play a less significant role than they do in sentencing.

[163]   In Hart v Auckland Standards Committee 1 of New Zealand Law Society,61

the Court cited the above passage from Dorbu with approval, and stated what it said were settled propositions, including the following:

58 At [160].

59     Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR

850 (HC) at [22].

60     Dorbu v New Zealand Law Society [2012] NZHC 564, [2012] NZAR 481 (footnotes omitted).

(a)      The ultimate issue is the fitness and propriety of the professional person concerned.  Determination of this issue will always be a matter of assessment having regard to several factors.62

(b)The  nature  and  gravity  of  the  proved  charges  will  generally  be important and in some cases that factor alone will lead to a conclusion of  unfitness.     Cases   involving  dishonesty  are  usually  in   this category.63

(c)      However, dishonesty or misconduct of that order is not a necessary prerequisite to a conclusion of unfitness.  Cases involving lesser forms of misconduct may still lead to a conclusion of unfitness depending on other factors.64   Such factors include the way the professional person responded  to  the  complaint  or  charges,65   and  whether  they  have

demonstrated adequate insight into their offending and taken responsibility.66     In addition, disciplinary history may well assume considerable importance.67

[164]   A lawyer’s conduct following the conduct leading to the charges, including in relation to the disciplinary process, is relevant to the question of sanction, and can aggravate the original offending.68   I consider this must extend to conduct following suspension.    I  raised  this  point  during  the  hearing  and  received  no  contrary submission from Mr Deliu.

[165]   There do not tend to be comparable cases in disciplinary proceedings because of the wide range of conduct that can be subject to such proceedings and because of the relevance of wider  factors,  making each  case very fact-specific.   There are

limited categories of charge, but the particulars can range widely, as illustrated by

61     Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83, [2013]

3 NZLR 103.

62 At [185].

63 At [186].

64     At [187] to [189].

65 At [187].

66 At [187].

67     At [188] to [189].

68 Above n 61, at [237]. See also Orlov Full Court decision, above n 18, at [190].

this case.   Correspondingly, there are no tariff cases, as would often apply in a criminal proceeding.

[166]   Having said that, in this case the Full Court decision in Orlov is clearly relevant to penalty, both in terms of principle and fact.   In Orlov, the Full Court overturned the order made by the Tribunal striking Mr Orlov from the roll of barristers and solicitors and made no further order after he had been struck off for nine months.

Was the Tribunal wrong to decline to strike-off?

[167]   I begin  with  the  Standards  Committee’s  cross-appeal.    It  says  Mr  Deliu should have been struck off.

Nature and gravity of the charges

[168]   The first matter to consider is the nature and gravity of the charges.

[169]  I agree with the Tribunal that the speech offences involved disgraceful, intemperate and baseless attacks on two members of the Judiciary, made at least in part for the purposes of advancing Mr Deliu’s own interests.  The accusations were repeated by Mr Deliu over two years and were not acknowledged to be wrong (or false) until during the penalty hearing, some eight years after they were made. Mr Deliu says no one was harmed, but as I said earlier, that is patently incorrect.

[170]   The euphemistic “Interrupting a Meeting” finding against Mr Deliu, although only briefly referred to by the Tribunal in the Penalty decision, is a lesser form of the same sort of undisciplined and somewhat threatening conduct evidenced in the Judges’ convictions.  Again Mr Deliu says no one was harmed.  That is not correct. It  is  very  clear  that  Mr Deliu’s  actions  caused  major  disruption  within  the Law Society’s offices and a large amount of wasted (voluntary) time of all involved.

[171]   As to the Incompetence Charges, there was a clear pattern of incompetent actions over a period of some seven months between 2008 and 2009.   Mr Deliu stresses that the charges did not involve complaints from clients.  The Incompetence

Charges were the result of a lawyer filing a complaint.   I am wary about placing reliance on the lack of client complaints.  First, because of the nature of his practice, Mr Deliu’s clients tend to be vulnerable people and secondly, I am concerned that Mr Deliu’s conduct in response to criticism would make the prospect of making a complaint  intimidating.    Mr  Deliu  says  that  no  one  was  harmed  or  required protection but in three of the cases at least, there were negative costs consequences for clients.

[172]   None of the misconduct involves dishonesty.  As stated, dishonesty is not a prerequisite for a strike-off, but it generally features in strike-off cases.  The need for protection of the public is most obvious in such circumstances.  As with Mr Orlov, the charges on which Mr Deliu has been convicted also do not involve allegations of bad faith.  The Standards Committee amended the Judges’ Charges to remove such particulars.  In my view, such language was not appropriate or necessary in the first place.   If a charge is brought against a lawyer of misconduct by making false or unfounded allegations against Judges, it is a matter for the Tribunal to then assess the circumstances.  The charges do not require further description in terms of level of intent.  However, I accept that the amendment is something that should be taken into account when determining the appropriate penalty.

[173]   Like  the  Full  Court  in  Orlov,  I  also  place  positive  weight  on  the circumstances in which the allegations against the Judges were made.  Mr Deliu, like Mr Orlov, did seek to use the proper channels, in terms of letters to the Chief High Court Judge and the Judicial Conduct Commissioner.   The filing of Court proceedings was more public, but still not entirely public.  While not an answer to liability,  the  manner  in  which  the  allegations  were  made  is  clearly  relevant  to penalty.

Other factors relevant to the offending

[174]   As the Tribunal did, I accept that the conduct which was the subject of the Incompetence Charges is historical and does not appear to have been repeated for something like nine years.  The Standards Committee says the Tribunal should not have given credit for matters being historical, when that is substantially the case as a

result  of  delays  on  the  part  of  Mr  Deliu.    That  is  an  understandable  position. However, whatever the reason for the time lapse, the lack of repeat negligent or incompetent conduct is clearly relevant.   That is not to say that I endorse what appears to be Mr Deliu’s mode of practice, which involves voluminous undisciplined submissions of a cut-and-paste nature, in this case in blatant non-compliance with

the rules.69

[175]   The Judges’ Charges and Meeting Charge fall  into a somewhat different category.   While there has been no repeat of the same offences, there have been instances of uncontrolled and sometimes threatening behaviour in the course of this disciplinary proceeding.

[176]   I  refer  first  to  a  decision  of  the  Wellington  Standards  Committee  dated

26 July 2016 regarding correspondence Mr Deliu sent to persons associated with the New Zealand Law Society.   The correspondence was related to this disciplinary matter, in particular the New Zealand Law Society’s unsuccessful application to the High Court in 2014 to have Mr Deliu struck off or suspended.  As the Tribunal said

in the Penalty decision:70

The focus of the charge was the language used in the correspondence.  The practitioner had variously labelled the recipients as being “crooked, biased, discriminating, bent, debauched, iniquitous, perfidious, rotten, shady, treacherous, unscrupulous, unethical, cowards, untrustworthy, malicious thugs,  simpletons,  buffoons,  inbred,  incompetent,  cretinous  and  venal”. Some was made in threatening terms.

[177]   Similarly in the conduct of this disciplinary proceeding, Mr Deliu wrote to Mr Pyke on 12 July 2012, copying Mary Ollivier, a Law Society staff member. In that letter he said:

I also put Mary Ollivier and the rest of the individuals involved on notice that this is not going to be the ordinary Court processes to date, from here on out as I intend to take personal action against them.  No longer will they be able to escape liability behind the veneer that they are acting in an official capacity as in my submission they are acting in bad faith and thus do not have the normal protections of law.  As and when I prevail in each judicial review I will thereafter pursue claims against the male fides functionary accordingly. …

69     Each party to an appeal is limited by r 7.14(6) and Schedule 6 to a submission of 30 pages in total. Mr Deliu filed 140 pages in support of his liability appeal.

70     Penalty decision, above n 1, at [29].

[178]   I  view  dimly  Mr  Deliu’s  actions  with  regard  to  the  without  prejudice meetings with Mr Pyke and his subsequent allegation of blackmail against Mr Pyke. I appreciate there was no finding on that point, but even on Mr Deliu’s version of the facts, his actions were entirely inappropriate.

[179]   I do not consider Mr Deliu accepts that the conduct that led to the Judges’ and Meeting Charges was wrong.  His letters of apology to the Judges and his arguments before me were contradictory, if not surreal.  There is nothing in any real sense in the apologies.    Many of  Mr Deliu’s  submissions  were so  contrary to  his  letters  of apology  that  I  gave  him  the  opportunity  to  withdraw  them  at  the  hearing. He considered that option through until the end of the hearing, but then advised he would not.   The letters of apology were written at the suggestion of a Tribunal member, and because it was clearly politic at that point to do so.

[180]   In  my view, the Tribunal wrongly took  into  account the apology letters. I have to concur with Mr Morgan when he submits they can be given no weight in light of Mr Deliu’s conduct generally.   I refer by way of example to the following paragraphs from his written submissions of 3 February 2017:

289.     The convictions are an abomination; they are obscenities, see the

United States Supreme Court’s famous definition in Jacobellis v. Ohio 378

U.S. 184 (1964):

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …

290.     The law should not countenance such being upheld.   The Judges’ charges bring the New Zealand state into disrepute due to their oppressive and persecutory nature.  The incompetence charges simply have no proper basis  and  should  never  have  been  brought  but  certainly  not  allowed  to proceed due to delay.  The interrupting of a meeting charge shows how the prosecution has lost all sense of rationality.

[181]   While  I accept  that  an  apology does  not  necessarily  preclude  an  appeal (though such an exhaustive appeal as this might not be expected), the excessive and intemperate language used in his submissions makes it clear Mr Deliu is not apologetic.

[182]   Mr Deliu’s general conduct of his defence to this disciplinary proceeding reflects badly on him.   While I acknowledge that the Standards Committee took some missteps, Mr Deliu took every step possible to delay or avoid a proper enquiry, including an application for malicious prosecution and numerous appeals.   I have already referred to his untenable arguments before the Tribunal and before me, in particular on the factual findings in respect of the Meeting Charge.

[183]   I do not consider that Mr Deliu has insight, or is capable of having insight, into the nature and consequences of his offending.  I acknowledge that he accepted belatedly that the Meeting Charge was properly laid and he was guilty of it.  But this was many years after the event; after eight days of hearing time was spent on that charge before the Tribunal, and at the end of five days’ argument on this appeal.

[184]   It is clear that Mr Deliu has no respect, in fact he has contempt, for the Standards Committee, the Tribunal and the disciplinary process.    He was discourteous about the Tribunal when appearing before me, and similarly with regard to the Standards Committee.  He referred to the Tribunal repeatedly as a kangaroo

court, a description used also by Mr Orlov.71

[185]   While I view these matters with real concern, I recognise that all of the repeat conduct is related to this disciplinary proceeding.   It does not directly impact on Mr Deliu’s clients who arguably are the main sector of the public at risk, although there is indirect impact on his clients because of the effect his conduct might have on his standing within the profession, the Law Society and the judiciary.

[186]  I consider there is a real risk that Mr Deliu will continue to act in an undisciplined and overbearing manner.   However, I do not consider he will repeat conduct similar to the Judges’ or Meeting Charges, nor to the extent he did in the Law Society correspondence referred to above.   I consider that, while he is not in fact apologetic or remorseful, Mr Deliu has learnt a lesson in terms of avoiding more serious offending.  If he faced further disciplinary action, he would be on notice of the likely consequences.

Personal mitigating factors

[187]   As the Tribunal recorded, Mr Deliu has ability and a firm commitment to justice.  He works with immigrant communities, an area of the law which is sadly short of champions.  I accept he has had a successful practice.  I note the references he has provided, but do not consider it appropriate to place much weight on these. I have already taken into account that these matters have had limited impact on his clients.

[188]   I  agree  with  Mr  Morgan  that  the  Tribunal  wrongly  took  into  account Mr Deliu’s submission that he intended to leave the country once this proceeding was concluded.   I can see no basis for taking Mr Deliu’s supposed departure into account.  Mr Deliu conceded this point.

Conclusion against striking off

[189]   I consider all of these matters are relevant when considering sanction and I agree with the Tribunal that striking off is a real consideration.   I note that the Full Court thought likewise with regard to Mr Orlov.72

[190]   As will be apparent, I consider the Tribunal erred somewhat in Mr Deliu’s

favour, but not materially when the decision is read overall.

[191]   Like the Tribunal, I am left with the view that strike-off is not the appropriate remedy.  I take into account the conclusion reached by the specialist Tribunal in this regard and pay particular regard to the principle of imposing the least restrictive punishment.

[192]   I also agree with the Full Court in Orlov that a review of the authorities suggests that it is too severe to strike off when the key factor in consideration is the Judges’ Charges.  (I address these authorities subsequently.)  The additional charges faced by Mr Deliu and the other factors to which I have referred are obviously material, but not so material as to justify such a difference in penalty.  Also, while other factors related to the offending can aggravate the charges, real care needs to be

taken in that regard, bearing in mind the rules of natural justice. The primary matters should be the charges themselves and the practitioner’s disciplinary record.

Was 15 months’ suspension a proportionate sentence?

[193]   Mr  Deliu  says  he  should  at  the  very  most  have  been  suspended  for seven months.

[194]   The main plank of Mr Deliu’s appeal on penalty is an alleged failure by the Tribunal to properly compare the “speech” misconduct here with the treatment of other lawyers in other instances.

[195]   Contrary to Mr Deliu’s submission, the Tribunal meticulously compared his

position with the other cases on which he heavily relied.

[196]   The main point of comparison on which Mr Deliu relies for his argument as to disproportionate penalty is the Full Court decision in Orlov.   That decision is clearly relevant.   However, the Tribunal went to considerable lengths (over eight pages  of the Penalty decision) to  contrast  the circumstances  here with  those  in

Orlov.73   It concluded, in my view correctly, that the facts here were materially more

serious than in the case of Mr Orlov.74    The charges Mr Orlov faced were a lesser subset of the charges faced by Mr Deliu, even in respect of the Judges’ Charges. Mr Orlov’s allegations against Harrison J were less serious, and Mr Orlov did not attack Randerson J.  The complaints against Randerson J are a significant distinction between  Mr  Deliu  and  Mr  Orlov’s  conduct.    A further  example  of  Mr Deliu’s conduct being more serious is the language he employed in his complaint to the Judicial Complaints Commissioner in July 2008.   His language was more abusive than that which Mr Orlov employed in his complaint to the Judicial Complaints Commissioner over six months later.

[197]   In addition, it cannot be concluded from the fact that the Full Court cancelled the strike-off order made against Mr Orlov, but did not then consider an appropriate period of suspension or other penalty, that it considered the suspension Mr Orlov had

effectively  served  to  be  appropriate.    (I  note  that  the  Full  Court  referred  to Mr Orlov’s period out of practice as eight months.  Mr Deliu referred to it as seven months.   It seems in fact to have been nine months.)   Mr Orlov had received the ultimate  penalty  of  strike-off,  which  the  Full Court  considered  to  be  in  error. In those circumstances it would have been inappropriate to impose an alternative sentence.  There was therefore no, or little point, in considering what it would have been.  In my view that is the approach the Full Court took.

[198]   In the same way as this case is worse than Orlov, it is materially worse than the other New Zealand cases on which Mr Deliu relies.  Even the base case of the charges relating to Harrison J is significantly worse than the other cases.  Although Mr Molloy QC’s statements were unacceptable, they were in essence attacking an issue rather than a Judge.   They were making allegations of incompetence, rather than malice, corruption and racism.  Then of course there is much more here beside the base case.

[199]   The  facts  relating  to  the  other  lawyers  to  whom  Mr  Deliu  referred  are similarly not as serious as the present situation.  The Standards Committee described the complaints made by Messrs Bradbury and Muir about a High Court Judge as carefully written and temperate and resolved to take no further action.75    Mr Deliu placed weight on other statements made by these same lawyers for which he says no prosecution was advanced.  I cannot comment on those.

[200]   As with the Full Court, I would not wish to be taken as saying the response in all of the New Zealand “speech” cases was adequate,76  at least on the face of the material as known.  I accept that these cases can fairly be referred to by Mr Deliu in regard to penalty, but  I do not consider they show the penalty imposed by the Tribunal here to be disproportionate.   With the exception of Orlov, they are not sufficiently comparable.  What they do show, as I have already said, is that strike-off

would be disproportionate.

[201]   I also have regard to the Canadian case of Doré where the practitioner’s

abuse  of  the  Judge  was  severe,  albeit  for  a  less  sustained  period  than  here.77

Mr Doré was suspended for 21 days, an outcome the Supreme Court upheld.   In another Canadian case, Histed v Law Society of Manitoba, the practitioner had called the Judge a “bigot”, and suggested his colleagues were too right-wing to sit on a case.78     He was fined, albeit for conduct plainly much less serious than that of Mr Deliu.

[202]   As noted by the Full Court and referred to again by Mr Deliu, there are decisions of the European Court of Human Rights which may support a lesser level of penalty.79   However, I question the relevance of these cases. They are far removed from the present facts.   The most relevant seems to be a case where a lawyer’s conversation with a journalist was published.  The lawyer had said that a decision would produce total anarchy in the legal profession.  He was formally censured and

this was overturned. That case is in a different league to the present.

[203]   Viewing these other cases overall, I consider the Tribunal accurately weighed them up in assessing penalty.

[204]   I consider the penalty imposed by the Tribunal is fair.  First, when the matter came close to a strike-off, it is relevant that the maximum period of suspension is

36 months and it would be expected that this matter would be towards the upper end. Secondly, suspension of 15 months bears a reasonable comparison to the outcome in Orlov, bearing in mind the more serious circumstances here.  Third, I am influenced again by the fact that the Tribunal has expertise and experience in determining an appropriate penalty.

[205]   I see nothing wrong with the reasoning by which the Tribunal reached its decision, nothing that erred against Mr Deliu in any event.  The Tribunal was entitled to add to the suspension period as a way of dealing with the Incompetence and

Meeting Charges.   The Incompetence Charges involved findings of unsatisfactory

77     Doré v Barreau du Québec, above n 21.

78     Histed v Law Society of Manitoba [2007] MBCA 150.

79     Nikula v Finland (2004) 38 EHRR 45 (ECHR); Amihalachioaie v Moldova (2005) 40 EHRR

35 (ECHR); Steur v Netherlands (2004) 39 EHRR 33; Kudeshkina v Russia (2011) 52 EHRR 37.

and negligent/incompetent conduct, and involved six cases over a short period. Although the Meeting conviction is for “unsatisfactory and unprofessional conduct” under s 12 of the 2006 Act, it is an example, similar to the Judges’ Charges, of Mr Deliu’s acting in an uncontrolled and somewhat threatening way.  It would have been inadequate and ineffective in all the circumstances to respond to that charge, as Mr Deliu submits, by a fine.  A very clear message has to be given to Mr Deliu and the profession generally.

[206]   I therefore uphold the Tribunal’s sentence of 15 months’ suspension.

COSTS

The Tribunal’s ruling

[207]   The Tribunal noted that the proceedings had been protracted and drawn out.80

There were no fewer than 17 hearing days and the volume of material presented for consideration filled seven large filing boxes.  It said much of that material was filed by Mr Deliu.81     It made allowance in Mr Deliu’s favour for one hearing being aborted as a result of his successful application for recusal of a member of the Tribunal.82

[208]   The  Tribunal  said  the  costs  were  very  significant  because  of  the  way

Mr Deliu had conducted his defence.83

[209]   Mr Deliu had provided no information to indicate he could not pay costs and the Tribunal considered he should bear a significant proportion of them, those costs otherwise falling on his fellow practitioners.84

[210]   The Standards Committee’s total costs were $165,921.56 and the Tribunal’s

costs were $117,426, a total of approximately $283,000.   The Tribunal ordered

Mr Deliu to pay costs to the Standards Committee in the amount of $153,500, after a

80     Penalty decision, above n 1, at [161].

81 At [161].

82 At [162].

83 At [163].

84 At [163].

discount of approximately 7.5 per cent.85   The Tribunal ordered that Mr Deliu repay to the New Zealand Law Society a proportion of the Tribunal costs, amounting to

$108,500.86

Basis for costs order

[211]   Mr Deliu claims first, that there is no basis in law for the orders as to costs of prosecution in the Tribunal.

[212]   Under s 249 of the 2006 Act, the Tribunal has authority to “make such order as to the payment of costs and expenses as it thinks fit”.  It is clear from the language of the section as a whole that this includes the costs and expenses of a Standards Committee.  The Tribunal therefore had authority to make the order in respect of the Standards Committee’s costs.

[213]   The Tribunal similarly has authority under s 257(1) of the 2006 Act, to order the New Zealand Law Society to reimburse it for its own costs in relation to the hearing.  The costs of the hearing include not only out of pocket expenses in relation to the hearing, but also a reasonable sum in respect of the remuneration and allowances payable to the chairperson, deputy chairperson, and lay members of the Disciplinary Tribunal, and the costs of the accommodation and administrative and

secretarial services provided to the Disciplinary Tribunal by the Ministry of Justice.87

[214]   The Tribunal can also make a further order under s 249 of the 2006 Act against  the  practitioner,  whereby  the  practitioner  is  ordered  to  refund  to  the New Zealand Law Society the costs of the Tribunal.

[215]   On the basis of these provisions, the Tribunal had authority to make the costs orders that it did.   Similar orders, albeit in smaller amounts, have been made on

many previous occasions.

85 At [167]. This sum will alter as a consequence of my ruling regarding Mr Pyke’s post -October

2014 invoices.

86 At [169].

87 Lawyers and Conveyancers Act 2006, s 257(2).

[216]   In various submissions that were filed after the hearing, it became apparent that the costs of the Tribunal which had been met by the New Zealand Law Society and  which  Mr  Deliu  was  ordered  to  refund  to  the  Law Society,  included  GST. Mr Deliu then raised the point that it was not lawful for costs to include GST.  That is correct, but the Tribunal’s costs are ordered against Mr Deliu not as costs, but as an expense met by the Law Society.  Expenses met by the Law Society include GST. In my view, such GST would then be included in the order against Mr Deliu, but would be recoverable by him.  In any event, the point is ultimately cost-neutral and I am sure it is a matter that can be resolved if necessary between Mr Deliu and Mr Morgan.

Set-off for successes

[217]  Secondly, Mr Deliu argues that there should be a set-off for his “many successes”.   He says that he succeeded at multiple interlocutory steps, including adjourning the 2010 and 2012 charges for many years, debarring the original prosecutor, Mr Pyke, recusing the original Tribunal chairperson (Judge Clarkson) and recusing the second Tribunal chairperson (Judge Kendall).

[218]   The  Tribunal  did  expressly  take  into  account  Mr  Deliu’s  successful application  for  recusal  of  Judge  Clarkson.    Judge  Kendall  recused  himself  on Mr Deliu’s application, so that there was no time involved in that.  Beyond that, it seems  to  me  that  in  very  substantial  part  the  Standards  Committee  has  been successful and Mr Deliu has served only to delay and cause costs far beyond those that  would  otherwise have resulted.   The 7.5  per cent  discount  is  a reasonable deduction for the points raised by Mr Deliu.

[219]   As the Tribunal clearly considered, the way in which Mr Deliu conducts proceedings  is  strongly causative of high  costs.    I have commented  already on Mr Deliu’s submissions.

[220]   It is not infrequent that the Tribunal awards indemnity (or close to indemnity) costs to the Standards Committee and orders substantial reimbursement of the expenses of the Tribunal itself.   I consider there is every reason why this practice should apply here.  Mr Deliu has caused these costs.  He has also caused a great deal

of inconvenience; wasted time (that will not have been billed) and stress to members of the profession and of the Standards Committee.  He must at least meet the costs. The size of the costs orders was a factor expressly taken into account by the Tribunal in its sentencing decision.

[221]   I agree with Mr Morgan that the Tribunal has a discretion as to costs and in a matter of this nature, only a limited inquiry into those costs is appropriate, unless real cause is shown.  I agree that it would not be appropriate for the Tribunal or the Standards Committee to have to provide time records, or to be subject to an inquisition on the part of a lawyer against whom a successful prosecution has been brought.   That would simply further expand the cost, and in this case, what has already been a very long drawn-out process.

[222]   I  sought  further  details  from  the  Standards  Committee  as  to  both  costs amounts.  These were provided.   I also sought confirmation from Mr Morgan QC that he had assessed the costs and considered them to be appropriate.  He provided that confirmation.  I have in turn reviewed the costs information and I am satisfied that it is appropriate.  It needs to be remembered, as I have said, that the Tribunal hearings occupied 17 days in total.  The total time involved far exceeded the hearing time.   The total sums involved are very reasonable based on the hearing and preparation time alone.

[223]   I note that this appeal occupied five days, of which three-and-a-half days were spent on Mr Deliu’s submissions.  This is extraordinary by any standard.   It confirms my view that the proceeding and the Tribunal hearing was much longer and more expensive than it needed to be because of Mr Deliu’s exacting and exhaustive approach to it.

[224] In the circumstances, the costs orders are reasonable, subject to the modification for Mr Pyke’s post-October 2014 invoices at [152]-[154] above.

CONCLUSION

[225]   Subject to the minor modification of costs for Mr Pyke’s post-October 2014 invoices referred to above, the findings of the Tribunal as to liability, penalty and costs are upheld and the appeal, application for judicial review and cross-appeal are all dismissed.

[226]   At the request of Mr Deliu, costs are reserved.  The respondent is to file a memorandum within three weeks.   Mr Deliu shall file his memorandum within a

further two weeks. The respondent will have one week to reply.

Hinton  J