Deliu v National Standards Committee of the New Zealand Law Society
[2015] NZCA 399
•28 August 2015 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA95/2015 [2015] NZCA 399 |
| BETWEEN | FRANCISC CATALIN DELIU |
| AND | THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY |
| Hearing: | 24 August 2015 |
Court: | Wild, White and Miller JJ |
Counsel: | Applicant in Person |
Judgment: | 28 August 2015 at 10.30 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined.
BThe applicant must pay the respondent’s costs for a standard application on a band B basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by White J)
Introduction
The applicant, Mr Deliu, seeks leave to appeal against the decision of Thomas J in the High Court at Auckland[1] dismissing his appeal against the decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) granting the respondent, the National Standards Committee of the New Zealand Law Society (the Committee), leave to amend 12 misconduct charges against him and to adduce in evidence certain affidavits, Court judgments and sentencing decisions.[2]
[1]Deliu v The National Standards Committee [2014] NZHC 2739 [the High Court decision].
[2]National Standards Committee v Deliu [2014] NZLCDT 24 [the Tribunal decision].
As Mr Deliu’s appeal to the High Court was under s 253(1) of the Lawyers and Conveyancers Act 2006 (the Act), he may, by virtue of s 254(1) of the Act, appeal to this Court only on a question of law and only with leave from the High Court or this Court. Mr Deliu sought leave to appeal from the High Court, but it was declined by Thomas J.[3] As permitted by s 254(1), he now seeks leave from this Court.
[3]Deliu v The National Standards Committee [2015] NZHC 67 [the High Court leave decision].
In determining whether to grant leave, this Court 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 this Court for its decision.[4]
Background
[4]Section 254(2).
The 12 misconduct charges against Mr Deliu, six of which are in the alternative, relate to allegations he made in 2008, 2009 and 2010 against two named Judges of the High Court. The allegations are contained in letters and emails sent to the Judicial Conduct Commissioner and the Chief High Court Judge and in an originating application to the High Court and a notice of application for special leave to appeal to the Supreme Court.
Each of the original charges alleged that Mr Deliu had “deliberately or recklessly” made “false, intemperate and scandalous” allegations against the respective Judges. The Tribunal granted the Committee’s application to amend all of the charges by replacing these allegations with allegations that Mr Deliu’s allegations against the Judges “either were false or were made without sufficient foundation”.[5]
[5]The Tribunal decision, above n 2, at [17]–[18].
The evidence the Committee sought to adduce comprises:
(a)two affidavits sworn by Mr Deliu on 9 September 2008 and 19 August 2013, the first filed in support of an application that one of the High Court Judges should recuse himself from proceedings in which Mr Deliu was appearing and the second in respect of Mr Orlov’s charges before the Tribunal stemming from statements he had made about the same Judge; and
(b)judgments and sentencing notes of one of the High Court Judges referred to in Mr Deliu’s letters to the Judicial Conduct Commissioner (the JCC) and the Chief High Court Judge.
The judgments and sentencing notes may be grouped as follows:
(a)cases referred to in Mr Deliu’s letter to the JCC dated 23 July 2008;
(b)cases referred to in Mr Deliu’s letter to the JCC dated 13 August 2008 and his letter to the Chief High Court Judge date 5 August 2008;
(c)a sentencing decision referred to in Mr Deliu’s letter to the JCC dated 18 September 2009;
(d)other decisions of the Judge mentioning nationality; and
(e)judgments in proceedings the subject of Mr Deliu’s complaints.
The Tribunal granted the Committee’s application to adduce all of this
evidence.[6] Mr Deliu now challenges, however, only the admissibility of the decisions and judgments referred to in [7](d) and (e).
[6]At [19]–[21].
The Tribunal is scheduled to hear the charges against Mr Deliu on 30 September 2015.
The Tribunal decision
The Tribunal’s reasons for granting the Committee’s application to amend the charges were:
[17] It is not necessary to discuss in any further detail the submissions for and against the application for amendment of the charges. The Tribunal finds that the evidence in respect of the proposed amended charges is substantially the same as already submitted and that the Respondent [Mr Deliu] has long had notice of that. There is no surprise for him now.
[18] The Tribunal finds that there is no prejudice to the Respondent in allowing the amendments of the charges and the essence and particulars of the charges has remained from the outset.
The Tribunal’s reasons for granting the Committee’s application to adduce the evidence were:
[19] The Tribunal next considers the application for leave to file additional evidence. There are two aspects to that application. The Applicant [the Committee] seeks leave to introduce into evidence two affidavits sworn by the Respondent on 9th September 2008 and 19th August 2013. The Applicant asserts that the Respondent made affirmations in each of the affidavits about the same subject matter as in the charges he now faces. They are thus relevant and material to the proceedings before the Tribunal.
…
[21] The Applicant says that the judgments and sentencing decisions relied on by the Respondent to support the various complaints made by him were not provided to the Complaints Service during the inquiries. They are public records and are plainly admissible under s 239 … The submission is that because the judgments and decisions have been offered by the Respondent as justification for his complaints about the judges, it is not open to him to oppose the reading of them for the same purpose. It is fair to have them before the Tribunal and so that the Tribunal may evaluate the Respondent’s conduct against the relevant Rules and misconduct provisions of the Act.
[22] The Respondent has not advanced reasons against the filing of the affirmations and record of judgments other than to say that it will unduly cause him to address voluminous evidence which will needlessly lengthen the proceedings.
[23] The Tribunal is satisfied that the affidavits of the Respondent referred to in paragraph 20 of this decision are relevant and admissible and should be admitted into evidence. Likewise the judgments and sentencing decisions reach the test of admissibility as public records and relevance to the proceedings and are to be admitted into evidence.
The High Court decision
Thomas J rejected all of Mr Deliu’s grounds of appeal against the Tribunal’s decision. She considered:
(a)all that could be taken from previous Tribunal decisions in relation to amendments of charges was that each case must be considered in the context of its particular facts;[7]
(b)the Tribunal did not err in deciding that the proposed amended charges and initial charges were materially the same;[8]
(c)the fact that the evidence had changed was not of itself a reason for declining the application;[9]
(d)the Tribunal was not wrong to allow the amendment of the charges;[10] and
(e)the Tribunal did not err in ruling that the judgments/decisions and affidavits were relevant.[11]
[7]The High Court decision, above n 1, at [16]–[20].
[8]At [21]–[46].
[9]At [47]–[48].
[10]At [49]–[73].
[11]At [74]–[93].
In deciding that the Tribunal was not wrong to allow the amendment of the charges, Thomas J noted the responsibility on the Committee under s 154 of the Act to lay an “appropriate” charge,[12] the power of the Tribunal under reg 24 of the Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008 to amend charges during hearings,[13] and the absence of any statutory provisions circumscribing the Tribunal’s power to permit an amendment of the charges before a hearing.[14] She considered the main issue was “a question of natural justice”.[15]
[12]At [62].
[13]At [64].
[14]At [65].
[15]At [65].
The Judge’s concluding reasons for upholding the Tribunal’s decision in respect of the amendment of the charges were:
[71] The application stated that Mr Deliu had a duty to ensure he had sufficient foundation for making the allegations he did and that was the basis on which the Committee sought to amend the charge. The question before the Tribunal will still be whether the words spoken by Mr Deliu when making his allegations against the Judges amount to misconduct. There are no fresh factual allegations.
[72] As mentioned above, the Committee’s duty under s 154 is to lay an “appropriate” charge. In doing that, it must bear in mind the purposes of the Act, one of which is to “maintain public confidence in the provision of legal services and conveyancing services.” This Court has previously held that in laying charges, the Committee is in no way constrained by any preliminary view it has expressed in its s 152 determinations as to what charges are appropriate. I agree that the fact the amendments may make the charges easier to prove is not relevantly prejudicial. In this case, I see no reason why it should be constrained by the charges it initially laid if it subsequently considers that different charges are appropriate.
[73] I am not satisfied there was any breach of natural justice, bad faith, material error in the application of the law, or exercise of the power in a way which cannot rationally be regarded as coming within the statutory purpose. I am satisfied that the application to amend the charges should have been granted.
In deciding that the Tribunal had not erred in ruling the evidence relevant and admissible, the Judge referred to s 239 of the Act which relevantly provides:
239 Evidence
(1)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.
…
(4)Subject to subsections (1) to (3), the Evidence Act 2006 applies to the Disciplinary Tribunal in the same manner as if the Disciplinary Tribunal were a court within the meaning of that Act.
(5)A hearing before the Disciplinary Tribunal is a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).
The Judge considered that pursuant to s 239(1) the issue was not a question of admissibility of the documents but rather the weight which should be attributed to them and that was a matter for the Tribunal.[16]
[16]At [89].
After summarising the contents of Mr Deliu’s two affidavits, the Judge concluded:
[92] While the affidavits post-date the offences, they are relevant to the charges. It is hard to see how they can be of prejudice to Mr Deliu. They are his affidavits and record his recollection of events and opinion.
[93] I am satisfied that the affidavits are relevant and admissible. Mr Deliu has conceded that judgments (a)-(c) … [at [7] above] are relevant. Other decisions … up to the date of the conduct complained of in 2008 must be relevant as they go to the issue the Tribunal must determine and Mr Deliu relied on them in making his complaints. Judgments in proceedings the subject of Mr Deliu’s complaints are also obviously relevant. The evidence is admissible pursuant to s 239 of the Act whereby the judgments may be accepted by the Tribunal as evidence. The question then is the weight to be attached to the conclusions. By limiting item (d), the prejudice about which Mr Deliu is concerned, that is the need to undertake exhaustive research, is overcome.
The High Court leave decision
Thomas J referred to the following well-established principles relating to the granting of leave:[17]
(a)the appeal must raise some question of law capable of bona fide and serious argument;
(b)the case must involve some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal; and
(c)ultimately the question is whether granting leave is in the interests of justice.
[17]The High Court leave decision, above n 3, at [17]–[18].
The Judge then noted that the three questions of law on which Mr Deliu sought leave to appeal were:[18]
(a)Whether judgments can be used as evidence?
(b)Whether the fact that an amended charge is easier to prove is prejudicial?
(c)What is the legal test for amending charges?
[18]At [19].
Applying the well-established leave principles, the Judge concluded:
[20] None of these questions meets the threshold required for the granting of leave. The first question does not recognise that the LCA [the Act] 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.
The application for leave to appeal to this Court
Mr Deliu’s application for leave to appeal to this Court is made on the following grounds:
(a)the High Court Judge breached natural justice in denying him any right to be heard on his application for leave to appeal; and
(b)the questions of law involved in the appeal are ones that, by reason of their general or public importance or for any other reason, ought to be submitted to the Court of Appeal.
Mr Deliu also filed an affidavit, which outlined his proposed submissions, and subsequently a memorandum of arguments in which he identifies the following questions of law for this Court:
(a)Are the Tribunal and High Court decisions and the decision in Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal,[19] that as a matter of law judgments can be used as evidence, correct?
(b)Is the test for the consideration of the amendment of charges as per the approach in the decisions in Wellington Standards Committee v Hall[20] and Auckland Standards Committee v Hylan[21] or as per the “fact specific” discretionary standard in the High Court decision or otherwise?
(c)If the amendments to the charges make them easier to prove is that fact relevantly prejudicial?
(d)Was the High Court Judge able to dispose of the application for leave without a hearing?
[19]Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606.
[20]Wellington Standards Committee v Hall [2014] NZLCDT 1.
[21]Auckland Standards Committee v Hylan [2014] NZLCDT 3.
It is unnecessary to address the fourth question because there is no right of appeal against the decision of the High Court refusing Mr Deliu leave to appeal. Mr Deliu’s application to this Court for leave to appeal is a fresh application which is being determined by this Court after hearing from him. Any criticism of the High Court Judge for not hearing from him is therefore of no moment now.
As the Committee accepts that the issue is whether the remaining three questions meet the requirements of s 254(2) of the Act, it is also unnecessary to determine whether they are truly questions of law.
Like the Tribunal and the High Court, we consider the questions relating to the amendment of the charges before the question relating to the admissibility of the judgments.
The amendment of the charges
Neither of the questions raised by Mr Deliu relating to the amendment of the charges against him is a question of general or public importance.
First, there is no question that the Tribunal has power to amend a charge laid before it by a Standards Committee under the Act. This power may be exercised by the Tribunal before or at the hearing. Indeed at the hearing the Tribunal has power to amend the charge “of its own motion”.[22]
[22]Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008, reg 24(1); and Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal, above n 19, at [36].
Second, the Tribunal’s power to amend a charge is discretionary, but must be exercised fairly and in order to ensure that the person charged faces the appropriate charge. If the Tribunal decides an amendment to a charge is necessary, fairness may require an adjournment of the hearing to avoid the person charged being taken by surprise or the conduct of the case being prejudiced.[23]
[23]Regulation 24(2) and H (a law practitioner) v Auckland District Law Society [1985] 1 NZLR 8 (HC) at 22–23; and Orlov, above n 19, at [24]–[26].
Third, beyond the requirements to exercise the discretionary power to amend a charge fairly and for the purpose of ensuring that the person charged faces the appropriate charge there is no other relevant “test” or “standard”. Whether the Tribunal will exercise the power in a particular case will depend on all the relevant circumstances of the particular case. This is shown by the decisions relied on by
Mr Deliu to suggest that there is an inconsistency in approach.[24] An examination of these decisions discloses no such inconsistency.
[24]Hall, above n 20, at [58]–[91]; Hylan, above n 21, at [9]–[60]; and Orlov, above n 19, at [27]–[35].
Fourth, the amendments by the Tribunal to the 12 charges against Mr Deliu in this case were entirely appropriate. They were correctly made to ensure that Mr Deliu faces appropriate charges. In this respect we agree with the approach of the Full Court of the High Court in Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal where similar amendments were approved as appropriate for the following reasons:[25]
[25]Orlov, above n 19.
[27] There is no doubt these were significant changes – much more so than counsel’s memorandum suggested or the Disciplinary Tribunal appreciated given how it dealt with and reasoned the matter. The original charges accused Mr Orlov of:
… deliberately or recklessly making false and scandalous allegations against [the High Court Judge].
[28] The new charges would accuse Mr Orlov of:
… making statements against [the High Court Judge] that were false or made without sufficient foundation.
[29] Two obvious differences can be seen. The Committee has no longer given itself the task of proving falsity; now proof of an insufficient basis for making the claims will suffice. Second, it is no longer alleged that Mr Orlov knew the statements were false, or was reckless as to that fact.
[30] We are satisfied that the nature of the new charges was correct and appropriate. The new wording reflects the decision of the Full Court in Gazley v Wellington District Law Society.[26] There, having reviewed overseas authority, the Court observed that the privilege and immunity a lawyer enjoys:[27]
… bring with them a professional responsibility not to make allegations “without a sufficient basis” or “without reasonable grounds”. This responsibility applies irrespective of the persons against whom allegations are made.
[31] That passage built on the well-known statement by Lord Reid:[28]
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information …
[32] There was much sense in the change being made by the Committee. Notwithstanding the extreme nature of Mr Orlov’s allegations, falsity is difficult to objectively prove when the Judge, properly, is not available as a witness. The allegations are generally about matters that are not readily susceptible to proof, especially absent a denial from the person impugned. It is not enough to resort to reasoning such as a Judge would not have such motives, or on its face the judgment does not disclose that it was motivated by underlying prejudice. By contrast, a charge which puts in issue the basis that the practitioner had for making the statements, appropriately places the focus on the practitioner’s conduct.
[26]Gazley v Wellington District Law Society [1976] 1 NZLR 452 (HC).
[27]At 454.
[28]Rondel v Worsley [1969] 1 AC 191 (HL) at 227.
Fifth, the fact that the amendments to the charges may make them easier to prove is, as Thomas J held,[29] not relevantly prejudicial. In one sense a person facing misconduct charges of this nature will always have feelings of “prejudice”, but that does not mean the Committee should be precluded from laying, and the Tribunal from determining, appropriate charges. The fact that the appropriate charges are amended charges which are easier to prove is not a reason for declining to approve the amendments. It is in the public interest that a person charged before the Tribunal should face appropriate charges.
[29]High Court decision, above n 1, at [72].
For completeness, we note that Mr Deliu has not claimed prejudice of the type claimed in Orlov:
[34] Mr Orlov’s main claim to prejudice is that the change meant he now had to prove his primary facts. He wanted an adjournment so he could gather together such evidence as might be available to show what happened on the hearing days in issue. This submission squarely puts in issue Mr Orlov’s analysis of the case. We consider his focus on the primary facts was incorrect and failed to recognise that the real issue was the legitimacy of the claims he was making based on those primary facts. Put simply, even assuming that things happened as Mr Orlov claims, what is the basis for saying that they stem from prejudice, racism and a malicious desire to harm Mr Orlov rather than from the fact that the Judge considered Mr Orlov was not displaying the basic knowledge and skills a client is entitled to expect from their lawyer?
[35] We are satisfied Mr Orlov was not prejudiced by the change. The particulars which identify the objectionable statements had not changed. Mr Orlov’s decision to ignore providing a justification for the pleaded statements and to focus on the primary facts was his choice. Further, in reality he has said all that can be said in support of the reasonableness of making these allegations. In each of the documents, and to the extent he chose to do so in his affidavit filed in the Disciplinary Tribunal, Mr Orlov has set out the basis for his claims. Whether that material provided a sufficient basis was a matter for analysis and submission. It did not require further evidence. Accordingly, despite a process breach in the handling of the amendment application, we do not consider prejudice has resulted.
The admissibility of the judgments
The question raised by Mr Deliu relating to the admissibility of the judgments referred to in [7](d) and (e) above is misconceived and therefore not a question of general or public importance.
First, as Mr Morgan QC points out in his submissions for the Committee, the question whether judgments can be used as evidence in disciplinary hearings depends on the use the judgments are being put to in the particular case. 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.[30] 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.[31] 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.
[30]Evidence Act 2006, s 50; Dorbu v Lawyers and Conveyancers Tribunal HC Auckland CIV-2009-404-7381, 11 May 2011 at [17]–[30]; Auckland District Law Society v Leary HC Auckland M1471/84, 12 November 1985 at 9–10 and 12–13; and Geoffrey Palmer “The Admissibility of Judgments in Subsequent Proceedings” (1968) 3 NZULR 142.
[31]We note that the 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: Commerce Commission v Fletcher Challenge (No 1) (1989) 2 PRNZ 1 (HC) at 4; and Callplus Ltd v Telecom New Zealand Ltd (2000) 15 PRNZ 14 (HC) at [47] (concerning a materially similar provision in the Commerce Act 1986).
Second, the judgments are clearly admissible for this purpose because they are relevant to the charges against Mr Deliu. They are admissible in terms of s 7 of the Evidence Act 2006 and not inadmissible in terms of s 8 of that Act.
Third, the weight to be given to the judgments is a matter for the Tribunal in determining whether the charges are proved.
No other reason
Mr Deliu advanced no other reason why the questions he raised ought to be submitted to this Court for its decision.
In our view public interest considerations weigh against a grant of leave to appeal. As we have previously noted in respect of disciplinary proceedings involving Mr Deliu,[32] the Act is consumer protection legislation which requires expeditious resolution of complaints.
Result
[32]Deliu v The National Standards Committee [2015] NZCA 12 at [22].
Accordingly, the application for leave to appeal is declined.
As costs should follow the event, Mr Deliu must pay the Committee’s costs for a standard application on a band B basis and usual disbursements.
Solicitors:
Glaister Ennor, Auckland for Respondent
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