Deliu v New Zealand District Court
[2016] NZHC 2806
•23 November 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-002942 [2016] NZHC 2806
BETWEEN FRANCISC CATALIN DELIU
Plaintiff
AND
THE NEW ZEALAND DISTRICT COURT
First Defendant
THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL
Second Defendant
contʼd …/2
Hearing:
Further submissions:
21 November 2016
22 November 2016
Appearances:
Plaintiff in Person
P J Morgan QC for Third DefendantsJudgment:
23 November 2016
JUDGMENT OF GILBERT J
This judgment is delivered by me on 23 November 2016 at 11.45 am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Counsel:
F C Deliu, Barrister, Auckland
P J Morgan QC, Auckland
DELIU v THE NEW ZEALAND DISTRICT COURT & ORS [2016] NZHC 2806 [23 November 2016]
NATIONAL STANDARDS COMMITTEE NO. 1 AND AUCKLAND STANDARDS COMMITTEE NO. 1
Third Defendant
Introduction
[1] The plaintiff, Mr Deliu, practises as a barrister. He has been found guilty of three charges of professional misconduct by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal). Two of these charges relate to false and abusive allegations Mr Deliu made about two Judges, who were then Judges of this Court. A penalty hearing is scheduled to occur before the Tribunal this Friday, 25 November 2016. The third defendants, the Standards Committees, have notified Mr Deliu that they will be seeking an order that he be struck off the roll of barristers and solicitors. They contend that Mr Deliu was negligent or incompetent to such a degree as to reflect on his fitness to practise.
[2] Mr Deliu wishes to compel six Judges of this Court to attend the penalty hearing to give evidence on his behalf concerning his competence and fitness to practise based on their observations of him conducting cases before them. He wrote to each of these Judges on 31 October 2016 asking them to advise within seven days whether they would be prepared to attend the hearing voluntarily. Failing that, he indicated that he would attempt to compel their attendance by summons.
[3] None of the Judges indicated their willingness to attend. Two stated that they would be presiding over trials in other centres at the time of the penalty hearing. A response was sent on behalf of another advising that he would be on leave. Three Judges did not respond. Accordingly, on 7 November 2016, Mr Deliu applied to the District Court for a certificate pursuant to cl 6 of sch 4 of the Lawyers and Conveyancers Act 2006 authorising the Tribunal to issue summonses to all six Judges. In his supporting affidavit, Mr Deliu explained the evidence he wants the Judges to give:
I wish to call a number of judges in my defence. These are judges whom I have appeared before dozens of times in my career and whom I believe will give relevant evidence on the ultimate issue of whether I am a fit and proper person to practice law. … I am certain they can give evidence on my professionalism and crucially how the conduct I have been found guilty of has never actually affected a single court case I have acted in before them.
[4] Judge G M Harrison dismissed Mr Deliu’s application for reasons he
summarised in the following passages of his judgment delivered on 11 November
2016:1
[11] It is quite clear that none of the Judges who Mr Deliu seeks to subpoena are witnesses as to fact that relate in any way to the proved charges. Even if they were, the facts have now been determined by the Tribunal, and it is unlikely at the hearing as to penalty that any further evidence relating to factual matters, the subject of the charges would be admitted. Mr Deliu seeks one, more or all of the Judges to be witnesses as to character and reputation in the hope that their evidence will avoid a “strike off” order.
…
[16] … I am satisfied that a Judge can only be subpoenaed when his or her evidence is as to a fact arising otherwise than in respect of the Judge’s conduct as a Judge.
[17] That is not sought in this case. All of the Judges in respect of which the certificate is sought are to be asked to give their opinion on whether Mr Deliu is a fit and proper person to practise law. All of the Judges could only have formed any relevant opinion in the course of their conduct as Judges, that is in the performance of their judicial functions, presiding over cases in which Mr Deliu has appeared as counsel for a party.
[18] Section 74(d) [of the Evidence Act 2006] makes it quite clear that a Judge is not compellable to give evidence in respect of the Judge’s conduct as a Judge, which would include impressions formed as to the competence and integrity of counsel appearing before that Judge.
Application for judicial review
[5] Mr Deliu applies for judicial review of this decision contending that the
Judge:
(a) breached natural justice because he did not give Mr Deliu an opportunity to be heard on his application;
(b) acted unreasonably by failing to take into account Mr Deliu’s
submissions; and
(c) erred in law in his interpretation of s 74 of the Evidence Act.
1 In Re Deliu DC Auckland CIV-2016-004-002007, 11 November 2016.
[6] At the conclusion of his oral submissions in this Court, Mr Deliu advised that he did not pursue the first two grounds because the third ground, alleged error of law, will be dispositive in any event. However, in case the matter proceeds further, I explain briefly why I consider there is no substance in either of the first two grounds.
Was there a breach of natural justice?
[7] Mr Deliu contends that the Judge was not entitled to decline the application if he was not satisfied by the evidence that proper grounds for issuing a certificate had been established. Instead, Mr Deliu argues that in those circumstances the Judge was obliged by the principles of natural justice to notify Mr Deliu of his assessment, explain his reasons for it, and convene a hearing to enable Mr Deliu to present further evidence and submissions to address the deficiencies.
[8] Mr Deliu relies on the maxim audi alteram partem, the natural justice requirement to give the other party an opportunity to be heard before making an order contrary to that party’s interest. Mr Deliu also relies on r 7.36 of the District Courts Rules 2014 in support of his contention that the Judge was obliged to convene an oral hearing.
[9] The audi alteram partem principle has no application in the present case. Mr Deliu is not the “other party”. He had every opportunity to provide whatever evidence and submissions he considered appropriate to support his ex parte application. Applications of this nature are routinely dealt with on the papers and Mr Deliu emphasised the urgency of his application noting that the penalty hearing was due to take place in just over two weeks. He accordingly asked for his application to “be determined forthwith”.
[10] Although Mr Deliu also asked for a 30 minute hearing in chambers, it was perfectly proper for the Judge to determine the application on the basis of the material filed without convening a hearing. The Judge was not required to provide Mr Deliu with an interim, provisional, decision and give him an opportunity to improve his case at an oral hearing convened for that purpose. The Judge did not contravene the principles of natural justice in dealing with the matter promptly, as he
had been requested to do, on the basis of the papers Mr Deliu had filed, and without hearing further from him.
[11] Mr Deliu’s reliance on r 7.36 is also misplaced. This rule provides:
7.36 Making of interlocutory orders
(1) A Judge may make any interlocutory order that –
(a) is provided for in these rules; or
(b) may be made under rule 1.11. (2) An interlocutory order may be made –
(a) on the interlocutory application of a party; or
(b) on a Judge’s own initiative.
(3) Before making an order under subclause (2)(b), the Judge must give the parties an opportunity to be heard.
[12] The Judge did not make any order, let alone an order on his “own initiative”.
Rule 7.36(3) does not apply.
Did the Judge fail to take into account Mr Deliu’s submissions?
[13] Mr Deliu submits that the Judge failed to consider his submissions. He bases this submission on the fact that the Judge refers to his application and his affidavit in the judgment but not to the submissions. Alternatively, Mr Deliu argues that even if the Judge did read the submissions, he cannot have given them any meaningful consideration because the decision was released an hour and a half after they were filed.
[14] Mr Deliu’s submissions comprised nine short paragraphs and would have taken the Judge no more than a minute or two to read. Only two paragraphs addressed jurisdictional issues: paragraph 2 set out cl 6 of sch 4 of the Lawyers and Conveyancers Act; and paragraph 7 drew attention to s 74(d) of the Evidence Act relating to the compellability of judges as witnesses. Apart from those two paragraphs, the submissions stressed the urgency of the application, the importance of the penalty hearing for Mr Deliu and the fact that he had been unable to secure the Judges’ agreement to attend the hearing.
[15] There is no reason to suppose that the Judge did not read Mr Deliu’s submissions. The Judge specifically addressed cl 6 of sch 4 of the Lawyers and Conveyancers Act and s 74(d) of the Evidence Act in his judgment. The other relevant matters set out in the submissions are drawn from the affidavit and these were also referred to in the judgment.
Did the Judge err in law?
[16] Section 74(d) of the Evidence Act reads:
74 Compellability of Sovereign and certain other persons
None of the following persons is compellable to give evidence:
…
(d) a Judge, in respect of the Judge’s conduct as a Judge.
[17] Mr Deliu submits that the Judge misinterpreted the plain meaning of the words used in s 74(d) of the Evidence Act. He argues that:
The statute does not preclude the giving of evidence by judges as to what has occurred in their courtroom. It simply does not allow them to be compelled to give evidence about their conduct. … this restriction cannot be read as wide as to encompass my not being able to call the judges to give evidence about my conduct which is obviously discrete from their conduct and which is all the provision disallows.
[Mr Deliu’s emphasis]
[18] Mr Deliu contends that s 74(d) was not intended to codify the existing common law rule and must be interpreted literally. Alternatively, he argues that even if this was Parliament’s intention, the purpose of the common law rule was to prevent collateral attacks on Court decisions and to promote the public interest in finality of litigation. He submits that the evidence sought from the Judges in this case would not contravene these purposes and would therefore fall outside the scope of the common law rule. He argues that any contrary analysis would be “asinine” because it would mean that the Judges who are the subject of the complaints “are used as swords against my good self” but he would not be able “to call these other learned Judges as shields”.
[19] One of the purposes of the Evidence Act was to enhance access to the law of evidence.2 In interpreting the Act, the Court is entitled to have regard to the common law to the extent that it is consistent with the Act’s provisions and the promotion of its purpose and principles.3 The legislative history indicates that s 74(d) was intended to codify the common law rule restricting the compellability of Judges as witnesses. In its 1999 Report on the Reform of the Law of Evidence, the Law Commission stated, when commenting on the draft provision which was later enacted in identical terms as s 74:4
This section codifies the current law in making the persons listed non compellable in any proceeding. Paragraph (d) is of limited application. In matters unrelated to the Judge’s conduct as a Judge, he or she is compellable like any other citizen.
[20] There is no indication that Parliament intended to change the law when enacting s 74(d). On the contrary, it appears that its intention was to capture and codify the existing common law rule.
[21] The general rule is that every citizen is compellable to give relevant and admissible evidence so that a Court or Tribunal can arrive at a just determination of the matter before it. Exceptions to this rule must have a proper foundation.
[22] It has long been established that Judges cannot be compelled as witnesses to give evidence touching on the reasons for their decisions in matters they have heard.
[23] In Warren v Warren, the English Court of Appeal sought to explain the rationale for the rule and define its scope.5 Lord Woolf MR observed that the “earlier authorities on which the learning is based are far from impressive being founded neither on principle or precedent and consist of little more than off-the-cuff
judicial reactions to particular situations”.6 Lord Woolf regarded the “most
2 Evidence Act 2006, s 6(f).
3 Evidence Act, s 10.
4 Law Commission Report on the Reform of the Law of Evidence (NZLC 55 – Volume 2, 1999) at
[C298].
5 Warren v Warren [1996] 4 All ER 664 (CA).
6 At 670.
impressive authority” as being Duke of Buccleuch v Metropolitan Board of Works in which Cleasby B made the following statement of general principle:7
With respect to those who fill the office of Judge it has been felt that there are grave objections to their conduct being made the subject of cross- examination and comment (to which hardly any limit could be put) in relation to proceedings before them.
[24] Lord Woolf considered that this principle remained valid and expressed the rule in the following terms:
The exception to the principle of compellability only applies to the judge being required to give evidence of those matters of which he became aware relating to and as a result of his performance of his judicial functions. If therefore, to take the example considered in argument, a murder is committed in the face of the court the judge could be compelled to give evidence as to the murder, since although he would have observed the murder when acting as a judge, the murder did not relate to his functions as a judge. The position is no different from that which would apply if the murder had taken place in the presence of the judge outside the court. It would be a collateral incident.
…
Accordingly, it is my view that no judge in relation to his judicial functions is a compellable witness.
[25] The Court of Appeal’s decision in Warren was applied by Penlington J in setting aside a witness summons that had been served on a District Court Judge in Rota v Tukiri.8 Mr Tukiri faced criminal charges. Judge Rota, who initially presided, adjourned the case part-heard. The Judge then disqualified himself from continuing and ordered a rehearing. Mr Tukiri wanted to compel the Judge’s attendance as a witness at the rehearing to give evidence about the demeanour of the prosecution witnesses. Justice Penlington concluded, applying Warren, that the Judge was not compellable to give such evidence because it “relate[d] to matters of which the Judge became aware during the performance of his judicial functions”.9
[26] In Shaw v Attorney-General & Ors, Durie J referred to Warren and Rota and explained that the underlying rationale for the rule was concerned with the
7 Duke of Buccleuch v Metropolitan Board of Works (1872) LR 5 HL 418 at 433.
8 Rota v Tukiri HC Hamilton M217/00, 11 October 2000.
9 At [26] [emphasis in original].
impartiality and independence of judicial officers and was of high constitutional importance:10
Judicial officers must be both impartial and independent in order for the judicial function to be maintained. Equally, the courts cannot compromise that function by effectively requiring judicial officers to take a position in any particular case, for one or other party or in defence of their own decision.
[27] The judicial immunity from compulsion to give evidence about judicial proceedings in which they have been involved also applies in other jurisdictions. The authorities were reviewed by the Supreme Court of Canada in MacKeigan v Hickman.11 The Court considered that the privilege was absolute and was necessary to maintain the independence and impartiality of the judiciary:12
Nevertheless, I hasten to agree with my colleague that there is for very good reason an absolute privilege accorded to the judiciary exempting them from testifying as to their mental processes in arriving at a judgment or as to how they reached a decision in any case that came before them. This has been the law since Knowles’ Trial (1692), 12 How. St. Tr. 1167, and has continued to be so with unabated force to the present time.
[28] The same rule applies in Australia. In Hennessy v Broken Hill Pty Co Ltd, the High Court of Australia explained the position as follows:13
Even Judges are competent witnesses, though they may not be compellable to testify as to matters in which they have been judicially engaged; but their evidence has been received upon matters which did not involve the exercise of their judicial discretions and powers.
[29] In Zanatta v McCleary, the New South Wales Court of Appeal considered that a Judge could not be compelled to give evidence about the considerations which led to his or her decision or as to the manner in which his or her judicial powers were exercised.14
[30] In the more recent Australian case of Herijanto v Refugee Review Tribunal & Ors, Gaudron J referred to Lord Denning MR’s judgment in Sirros v Moore15 to
10 Shaw v Attorney-General & Ors [2002] NZAR 987 (HC) at [31].
11 MacKeigan v Hickman [1989] 2 SCR 796.
12 At 840 per Cory J.
13 Hennessy v Broken Hill Pty Co Ltd [1926] 38 CLR 342 at 349.
14 Zanatta v McCleary [1976] 1 NSWLR 230 at 239.
15 Sirros v Moore [1975] QB 118.
support his conclusion that the immunity extended to all aspects of the decision- making process because this is “what is required to ensure freedom of thought and independence of judgment”.16
[31] Although the authorities have developed in response to widely differing factual scenarios, the underlying rationale for the immunity is to preserve the independence of the judiciary. There is a consistent line of authority tracing its origins to cases decided in the seventeenth century establishing that Judges cannot be compelled to give evidence relating to their performance of their judicial functions. I reject Mr Deliu’s submission that Warren and Rota were incorrectly decided and should not be followed by this Court.
[32] In the present case, Mr Deliu wants to compel the Judges to give evidence regarding his conduct and competence in cases over which they presided. The Judges would be asked to comment on the adequacy of Mr Deliu’s performance in eliciting relevant evidence through his questioning of witnesses and the adequacy of his written and oral submissions. The Judges would be questioned about how Mr Deliu’s performance did, or did not, assist them in their mental processes leading to their decision in each case. It would be open to counsel representing the Standards Committees to question the Judges on whether Mr Deliu had explored relevant evidence adequately and drawn their attention to all relevant authorities and question the impact this may have had on the outcome. Judges cannot be compelled to give this type of evidence. It falls squarely within the statutory immunity. It cannot be said that such evidence is collateral to the Judges’ conduct as judges.
[33] Adopting Lord Woolf’s formulation in Warren, the proposed evidence concerns “matters of which [the Judge] became aware relating to and as a result of his performance of his judicial functions”. The common law rule codified in s 74(d) makes it clear that judges cannot be compelled to give this type of evidence.
[34] For these reasons, I consider that the District Court Judge made no error in his interpretation of this provision or in its application to the facts of the present
case. This ground of review also fails.
16 Herijanto v Refugee Review Tribunal & Ors [2000] HCA 16 at [16].
Result
[35] The plaintiff’s application for judicial review fails. The decision of the
District Court is confirmed.
[36] Costs are reserved. Memoranda should be filed if the parties are unable to agree.
M A Gilbert J