Deliu v National Standards Committee

[2015] NZHC 67

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1308 [2015] NZHC 67

UNDER THE

Lawyers and Conveyancers Act 2006

IN THE MATTER OF

s 253 Appeal

BETWEEN

FRANCISC CATALIN DELIU Appellant

AND

THE NATIONAL STANDARDS COMMITTEE

Respondent

Judgment:                4 February 2015

JUDGMENT OF THOMAS J

LEAVE TO APPEAL RECUSAL AND COSTS

This judgment was delivered by me on 4 February 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

DELIU v THE NATIONAL STANDARDS COMMITTEE [2014] NZHC 67 [4 February 2015]

Introduction

[1]      On 4 November 2014, I dismissed Mr Deliu's appeal against the decision of the Disciplinary Tribunal, allowing the amendment of the charges against him.

[2]      Mr Deliu now seeks leave to appeal against this decision.   He also alleges apparent bias by me and seeks that I recuse myself from the application.

[3]      Conversely, the National Standards Committee seeks costs against Mr Deliu.

Recusal

[4]      Judges are generally required to sit on the cases which are assigned to them. An exception exists to this in the form of recusal, or self-disqualification.  Recusal should be applied where there is a risk of impartiality or, more commonly, a risk of the appearance of impartiality.   In such cases, it is in the interest of justice that a Judge recuse herself.

[5]      A Judge may be required to step aside even in cases where no actual bias exists.  The requirement to stand down is said to arise from “apparent bias”, that is the mere appearance that a judge could be biased.   This rule comes from the requirement, famously recorded in R v Sussex Justices, ex parte McCarthy, that:1

…it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

[6]      The Supreme Court in Saxmere v New Zealand Wool Board Disestablishment

Co Ltd (No 1) 2 considered the issue in some detail.

[7]      Tipping J described the test in the following terms:3

1      R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 (KB) at 259.

2      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 1) [2009] NZSC 72, [2010] 1 NZLR

35 at [3], [38] and [127].

3 At [37].

[37]     The  crucial  question  in  this  appeal  is  whether  a  fair-minded, impartial, and properly informed observer could reasonably have thought that the Judge might have been unconsciously biased…

[8]      Blanchard J described the test as a question of whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind  to  the resolution  of the question  the  judge  is  required  to  decide.”4     This

language was also adopted by Anderson J.5

[9]      It is commonly accepted that this test has two steps:  These were detailed by

Blanchard J:6

(a)       first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and

(b)       secondly, there must be “an articulation of the logical connection between  the  matter  and  the  feared  deviation  from the  course  of deciding the case on its merits.”7

[10]     It is important that judges sit on cases which they are able to hear and do not simply recuse themselves whenever an objection arises.   This is to avoid the possibility of deliberate judge shopping which may have an equally strong affect on the  appearance  of  justice.    This  was  noted  in  Muir  v  Commissioner  of  Inland

Revenue, where Hammond J observed:8

The requirement of independence and impartiality of a Judge is counterbalanced by the Judge’s duty to sit, at least where grounds for disqualification do not exist in fact or in law. This duty in itself helps protect judicial independence against manoeuvring by parties hoping to improve their chances of having a given matter determined by a particular Judge or to gain forensic or strategic advantages through delay or interruption to the proceeding. As Mason J emphasised in Re JRL, ex parte CJL:9

[I]t is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

4      Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6].

5      Saxmere (No 1), above n 2, at [127].

6      At [4]

7      Ebner, above n 4, at [8].

8      Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495, at [35].

9      Re JRL, ex parte CJL (1986) 161 CLR 342 at 352.

Analysis

[11]     In the present case, Mr Deliu has provided no articulation of how apparent bias could arise, save to say that I decided a number of issues against him.  From this he appears to conclude that I must be biased against him.

[12]     There are numerous situations in which a Judge is required to make findings either in favour of or against a particular person.  For example, it is very common for a judge to determine interlocutory matters prior to a hearing, some of which may even require an assessment of the merits of the case.  It is well accepted that this fact alone does not require a Judge to recuse herself from any future matter between the parties.  Indeed, if it did, then the judicial system would quickly grind to a halt.

[13]     I am unable to identify any factors in this case to indicate apparent bias.  I am satisfied there is no basis on which this claim could succeed.

[14]     For those reasons I am satisfied I have a duty to sit on this matter and should not recuse myself.

Leave to Appeal

[15] Mr Deliu's case was dealt with pursuant to the Lawyers and Conveyancers Act 2006 (the LCA). Section 254 of the LCA provides a right of appeal, with leave, against decisions of the High Court on questions of law. That section provides:

254     Appeal to Court of Appeal on question of law

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

66 of the Judicature Act 1908 applies to any such appeal.

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

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

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

[16]     This  application  also  engages  r  20.22  of  the  High  Court  Rules  which provides:

20.22   Applications for leave

(1)       This rule applies when an enactment provides that a decision of the court may be appealed to the Court of Appeal with leave of the court.

(2)       If this rule applies, an application for leave to appeal must be made to the court within 20 working days after the decision is given.

(3)       A respondent who wishes to cross-appeal must apply for leave to cross-appeal within 10 working days after the date on which a copy of the application under sub clause (2) is served on the respondent.

(4)       An application for leave to appeal under sub clause (2) or to cross- appeal under sub clause (3) must be made by interlocutory application.

[17]     The principles which apply on this application are well established.  Leave may only be granted in certain cases, namely where:10

(a)       the appeal  raises  some  question  of law  capable  of bona  fide  and serious argument; and

(b)the  case  involves  some  interest,  public  or  private,  of  sufficient importance to outweigh the cost and delay of the further appeal.

[18]     In S v W the Court of Appeal addressed the threshold which applies to such an application, noting that the “threshold for leave to bring a second appeal is high” and that there must be a question “sufficiently important to justify a court going into the matter for the third time, with the delays and further expense that inevitably

result”.11     Ultimately the question is whether granting leave is in the interests of

10     Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Snee v Snee (1999) 13 PRNZ 609 (CA) at 612.

11     S v W [2014] NZCA 199 at [6].

justice and particular regard must be had to the desirability of finality of the outcome of litigation.

[19]     In his affidavit in support of the application, Mr Deliu sets out the three questions on which he seeks to appeal to the Court of Appeal, namely:

(a)       Whether judgments can be used as evidence?

(b)Whether  the  fact  that  an  amended  charge  is  easier  to  prove  is prejudicial? and

(c)       What is the legal test for amending charges?12

[20]     None of these questions meets the threshold required for the granting of leave.   The first question does not recognise that the LCA provides that the Disciplinary  Tribunal   may  receive   evidence   which   would   not   generally  be admissible in a proceeding.  There can be little doubt that judgments fall within this scope.   This issue was dealt with in the decision and there is no reasonable basis advanced for an appeal.

[21]     The second question fails to meet the threshold.   The decision involved a weighing of a number of factors and squarely addressed this issue.  The law on this point is adequately clear and an appeal is not warranted.

[22]     Finally, the third question, as well as being unclearly expressed, does not meet the required threshold.   The appropriate standard for amending charges has seen  significant  judicial  comment  at  all  levels  of  the  Court  hierarchy  and  is adequately clear.

[23]     In the circumstances and having regard to the desirability of finality of the outcome of litigation, granting leave to appeal is not in the interests of justice.  Leave

to appeal is therefore refused.

12     Mr Deliu describes this question in the following terms: "The third and final question I intend to ask the Court of Appeal address is as to the test for consideration of amendment of charges (i.e. is it Hall, Hylan, the Deliu "it is fact specific" discretionary standard or some other).

Costs

[24]     Mr Deliu  has  applied  for costs  on  the current  application.    For obvious reasons, this application cannot succeed.

[25]     The Committee seeks costs for the substantive hearing.  Its actual costs fall below costs on a 2B basis and so seeks that its actual costs be reimbursed.

[26]     The Committee, except on one issue, was the successful party and did not act unreasonably in the proceeding.  Therefore the Committee is entitled to costs which I would have ordered on a 2B basis but, as actual costs are below this amount, actual costs are awarded.

[27]     At the hearing, counsel for the Committee conceded a point raised by Mr Deliu. This concerned the admissibility of decisions of the Judge allegedly criticised by Mr Deliu which post dated the conduct complained of.  Mr Deliu was therefore partially successful in his appeal on the admissibility of evidence.  In recognition of this factor, I reduce the overall costs to be awarded to the Committee by 10 per cent of the amount sought.

[28]     The  security  which  was  provided  by  Mr  Deliu  is  to  be  released  to  the

Committee.

Thomas J