Deliu v National Standards Committee

[2016] NZHC 204

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2548 [2016] NZHC 204

IN THE MATTER

of Parts 7 and 11 Lawyers and

Conveyancers Act 2006

AND IN THE MATTER

of Part VII Law Practitioners Act 1982

BETWEEN

FRANCISC CATALIN DELIU Appellant

AND

NATIONAL STANDARDS COMMITTEE

Respondent

Hearing:	17 February 2016
Appearances:	Appellant in person P J Morgan QC and M L Jepson for Respondent
Judgment:	18 February 2016

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 18 February 2016 at 11 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Counsel:            F C Deliu, Auckland

P J Morgan QC, Hamilton

M L Jepson, Hamilton

DELIU v NATIONAL STANDARDS COMMITTEE [2016] NZHC 204 [18 February 2016]

[1]      Mr Deliu, the Appellant, has appealed against a decision of the New Zealand

Lawyers and Conveyancers Disciplinary Tribunal (“Tribunal”) dated 28 September

2015 (“decision”).1   In its decision the Tribunal dismissed Mr Deliu’s application for dismissal  or stay of  disciplinary charges  laid  against  Mr Deliu  on  3  July 2015 (“charges”).2

[2]      In submissions, counsel for the Respondent (“NSC”) proposed that I should adjourn this appeal because, quite aside from anything else, the Tribunal is scheduled to hear the charges on their merits in just two working days, at a fixture commencing on 22 February 2016, and Mr Deliu may renew his application at that time.

[3]      I accept that submission and adjourn the appeal for the following reasons.

[4]      The Tribunal heard Mr Deliu’s application on 21 September 2015.   In its decision a week later, dismissing the application, the Tribunal expressly left it open to Mr Deliu to renew his application at the merits hearing if he wished.  In fact, it is clear from the decision that the Tribunal would have preferred not to express any view whatsoever on the grounds of the application but rather to adjourn it to the

merits hearing for determination in light of all evidence and argument.3

[5]      However,  Mr  Deliu  advised  that  he  wished  to  have  a  ruling  on  the application, favourable or unfavourable, and so the Tribunal declined the application with the proviso that Mr Deliu could renew it.4    For myself, I think it would have been preferable for the Tribunal to make the ruling it thought appropriate, rather than accede to a different course proposed by, in this case, Mr Deliu.

[6]      Regardless, Mr Deliu advised me yesterday that he does propose to renew the application on 22 February 2016 (in the absence of my allowing his appeal prior to

then) and it is clear that the NSC has no objection to Mr Deliu doing so.

1      National Standards Committee 1 v Deliu [2015] NZLCDT 31.

2      Application dated 23 July 2015.

3      I record Mr Deliu’s submission that in fact the Tribunal had all evidence and argument in

September 2015.

4      Further Memorandum dated 24 September 2015.

[7]      In these circumstances it is better that Mr Deliu does renew his application and that the Tribunal determine it in light of all the evidence and with the benefit of argument, as was its preference in September 2015.

[8]      The proximity of the hearing is a compelling reason to adjourn.  But, in any event, an adjournment accords with statements made by the Court of Appeal that, whenever  possible,  there  is  to  be  a  hearing  and  decision  on  the  merits  at  first instance, in this case by the Tribunal, before any appeal or review of interlocutory decisions is heard.  For instance, in Deliu v New Zealand Law Society the High Court had part-heard an application by Mr Deliu for judicial review.5    It having become difficult to complete the hearing due to Mr Deliu’s commitments, the High Court adjourned the application pending the outcome of other disciplinary proceedings

against Mr Deliu.   In dismissing Mr Deliu’s appeal against that adjournment the

Court of Appeal said:6

[22]     These are the principles we consider determine this appeal:

...

(c)       Judicial review only after disciplinary process complete: To ensure complaints against professionals are dealt with expeditiously, the High Court should not entertain an application   for   judicial   review   before   the   disciplinary process is complete, unless the complaint cannot be cured by the Disciplinary Tribunal.

[9]      The  Supreme  Court  expressed  similar  views  in  dismissing  Mr Deliu’s

application for leave to appeal.7

[10]     I accept that the case to which I have just referred (and the decision in Ortmann  noted  below)  concern  judicial  review  proceedings.     However,  the underlying  principle  –  of  having  a  merits  hearing  before  other  processes  are

entertained – applies with equal if not more force in the present circumstances.

5      Deliu v New Zealand Law Society [2015] NZCA 12. See also Ortmann v District Court at North

Shore [2015] NZCA 443.

6 At [22].

7      Deliu v New Zealand Law Society [2015] NZSC 75.

[11]     Accordingly, I adjourn this appeal.  If Mr Deliu succeeds before the Tribunal (whether on his renewed application or on the merits) the appeal will fall away.  If not, this appeal may be heard and determined with any others that may be filed.

..................................................................

M Peters J