Deliu v New Zealand District Court at Auckland
[2023] NZHC 1803
•11 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1360
[2023] NZHC 1803
UNDER the Judicial Review Procedure Act 2016, Part 30 High Court Rules 2016, New
Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908
IN THE MATTER
of proceedings moving for an application for judicial review, writs, bill of rights claims and a petition for declaratory relief
BETWEEN
FRANCISC CATALIN DELIU
Applicant
AND
THE NEW ZEALAND DISTRICT COURT AT AUCKLAND
First Respondent
THE ATTORNEY-GENERAL
Sixth Respondent
Hearing: 4 April 2023 Appearances:
F Deliu in person (via VMR)
P Gunn/N White for Attorney-General
Judgment:
11 July 2023
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Tuesday, 11 July 2023 at 2:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Crown Law, Wellington Copy to: F Deliu
DELIU v THE NEW ZEALAND DISTRICT COURT AT AUCKLAND [2023] NZHC 1803 [11 July 2023]
[1] On 7 July 2022, Mr Frank Deliu presented four charging documents for filing in the Auckland District Court and applied for a fee waiver. On 2 August 2022, Judge D J Sharp refused to accept the charging documents for filing and refused to waive the filing fees.1
[2] The charging documents related to proposed private prosecutions by Mr Deliu under s 17(1) of the Public Records Act 2005 of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal), the Minister of Justice (the Minister), the Ministry of Justice (the Ministry) and the Governor-General. The particulars essentially allege that the proposed defendants did not document or keep a record of the appointment of members of the Tribunal and of the allocation of members by the Chairperson of the Tribunal to the panels that heard the matters numbered LCDT10/10 and 8/12 in May, June or December 2014, which related to Mr Deliu.
[3]Mr Deliu now challenges the Judge’s decision by way of judicial review.
Factual background
[4] Mr Deliu was a practising lawyer in Auckland. Between 2010 and 2016, he faced various disciplinary proceedings in the Tribunal. Hearings involving Mr Deliu took place on 1 May 2014, 19 June 2014 and 11 December 2014, before a Tribunal panel chaired by a retired Judge, Mr B J Kendall. Proceedings continued thereafter before a differently constituted panel chaired by Ms Mary Scholtens QC.
[5] On 15 September 2016, the Tribunal found nine charges of misconduct and unsatisfactory conduct proved against Mr Deliu. On 22 December 2016, the Tribunal suspended Mr Deliu from practice for 15 months and ordered him to pay costs of
$261,500.
[6] In judicial review proceedings filed in 2021, Mr Deliu sought an order quashing the Tribunal’s liability and penalty decisions and an order prohibiting any
1 Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal, Minute of Judge Sharp declining proposed private prosecution (2 August 2022).
rehearing of the charges. In her judgment dated 9 February 2023,2 Peters J recorded Mr Deliu’s motivation for issuing the proceedings as follows:
[32] At the hearing before me, the plaintiff advised that he has brought this proceeding as he wishes to gain admission to practise law in Florida but is unable to do so as matters stand. The plaintiff’s affidavit evidence is that, absent exceptional circumstances, the bar association in Florida will not admit a practitioner who has been suspended from legal practice. Having learned of this, the plaintiff resolved to:
… see if there was any flaw [in his disciplinary history in New Zealand] that I could point to in the process to try and persuade Florida to grant me the [required] waiver. Upon doing so I came across the issue of Judge Clarkson recusing herself and then continuing to act … I thus used that as a starting point of pleadings.
[33] From there, as the plaintiff advised me in the hearing, he resolved to investigate whether all the members of the divisions had been validly appointed, and to this end he asked the Tribunal to give discovery of documents relating to those appointments. To the extent they were able to do so, the Tribunal and the NZLS (assisted by Crown Law) supplied these documents, whether from their own files or through causing searches to be made by other entities such as the Ministry of Justice and Cabinet Office. As it turns out, it has been possible to locate some but not all of the requested documents, which Crown Law has advised would be stored at Archives New Zealand. In any event, the plaintiff has put the documents that were provided to him before the Court in support of his submission that the members of the divisions were not validly appointed.
[7]Peters J dismissed Mr Deliu’s application for judicial review. She concluded:
[74] Accordingly, I am satisfied the members of the Tribunal which heard and determined the charges and penalty were appointed in accordance with the Act. Thus it is unnecessary to consider what might follow if any defect in their appointment had been established. I should add that many of the documents to which I have referred are also concerned with the appointment of members assigned to the interlocutory division(s). I have not considered it necessary to review that evidence because no relief is sought in respect of their decisions.
[8] The proposed prosecutions arise out of the application for judicial review by Mr Deliu which was dismissed.
[9] As noted in Peters J judgment, extensive inquiries were made to locate documents which evidenced the appointment of members to the Tribunal and their
2 Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal & Anor [2023] NZHC 160.
allocation to a Tribunal panel. Crown Law Office advised Mr Deliu by way of email dated 15 February 2022:
The Ministry have advised that they are endeavouring to locate the appointment-related documents but that, unfortunately, the hard copy files which would contain the briefing papers for Cabinet Honours and Appointments Committee and the appointment papers addressed to the Office of the Governor General have been archived and have not yet been located. Efforts are being made to do so. We understand the Ministry have asked the Cabinet Office for their copies of appointment documents for the three lay members. As the documents are held at Archives NZ some time will be needed to locate them. The Office of Archives NZ is currently closed due to the protest in Parliament grounds so at this stage it is not clear when officials would be able to access those documents.
This means that, at present, except for two documents from 2015, the Ministry has only been able to locate unsigned electronic copies of the documents for 2011 and 2015. There are no electronic copies of documents from 2008.
[10] Crown Law Office went on to advise Mr Deliu that papers are not retained by the Office of the Governor-General but are returned to the Minister’s Office after the relevant warrant of appointment has been signed so the Governor-General’s Office would not hold copies of the requested documents. Crown Law further advised Mr Deliu that the Minister’s Office invariably then returns the papers to the Ministry.
[11] Then on 31 March 2022, Crown Law Office further advised Mr Deliu as follows:
The Ministry of Justice have sourced Cabinet Office copies of Cabinet papers and minutes for the relevant lay member appointments. Unfortunately, the archived hard copy Ministry of Justice appointments file cannot be located. The Ministry of Justice has therefore provided electronic copies of some documents from 2011 and 2015. These are, therefore, not signed documents but the Ministry of Justice advise that they are the final versions of the documents held on the Ministry’s document management system.
We understand that the documents that have not been located are:
(a)2008 cover letter and advice sheet from the Minister of Justice to the Governor-General.
(b)2011 cover letter and signed advice sheet from the Minister of Justice to the Governor-General. An unsigned copy of the advice sheet for 2011 has been provided.
(c)2015 signed cover letter and signed advice sheet from the Minister of Justice to the Governor-General. An unsigned cover letter and advice sheet have been provided together with the associated attachments.
There may also have been other briefings or correspondence. Failure to locate the archived Ministry of Justice appointments file means that a complete list of all possibly missing documents related to the lay member appointments cannot be provided.
[12]To summarise, the documentation provided to the Court by Mr Deliu indicated:
(a)the Governor-General and Minister of Justice had held, but had subsequently transferred to the Ministry of Justice, documents related to the appointment of members of the Tribunal;
(b)the Ministry of Justice held some documents related to the appointment of members of the Tribunal, and had transferred some documents to Archives New Zealand where they were not able to be located;
(c)the Tribunal held documents relating to the appointment of members to the Tribunal panel, and records showing which members had been appointed to sit on the panels in issue (primarily the notices of hearing), but did not hold correspondence from the Chairperson to the panel members informing them that they had been appointed.
[13] It is against this background that Mr Deliu wants to prosecute the Governor- General, the Minister of Justice and the Ministry of Justice for wilfully or negligently failing to document or keep a record of the appointment of members to the Tribunal. He also wants to prosecute the Tribunal for wilfully or negligently failing to document the allocation of members by the Chairperson to the panels that sat in May, June and December 2014 to hear the case against him.
[14] During the course of argument, Mr Deliu accepted that the Governor-General is not a public office as defined in s 4 of the Public Records Act as the Governor- General is not part of the legislative, executive or judicial branches of government, but rather a representative of the Head of State. Mr Deliu therefore advised that he no longer sought to prosecute the Governor-General. Although Mr Deliu had been advised by Crown Law Office that the Minister of Justice, like the Governor-General, did not retain records of the appointment of members to the Tribunal, but instead
returned them to the Ministry, he did not indicate that he would review the proposed prosecution against the Minister.
District Court decision
[15] At the outset, the Judge referred to a formal written statement from Mr Deliu, submitted in support of the proposed prosecution, in which he cited an email dated 20 January 2022 he had received from Crown Law Office, as follows:3
In accordance with the extension of time for provision of documents described in the joint memorandum dated 24 December 2021, and approved by the Court on 10 January 2022, we attach an index and associated documents. The documents relate to category E of the applicant’s memorandum dated 20 November 2021. In particular, they identify the members who were assigned to the Tribunal panel chaired by Judge Kendall, which sat on 1 May 2014, 19 June 2014 and 11 December 2014.
[16] The Judge then noted that the proposed prosecution was for not documenting or keeping a record of the appointment of members. He was of the view that details of the members of the proposed Tribunal panel had been provided to Mr Deliu. In addition, annual reports of the Tribunal were published and were publicly available. The Judge said that “As a consequence, the misconceived nature of the proceedings is apparent”. The Judge stated:4
[6] Unless the proposed prosecutor is able to support the charging documents with material to suggest no record of the appointment of members of the Tribunal Panel was retained (in the face of public record to the contrary), then the proceedings serve no purpose.
[7] Accordingly, the application for waiver of fees in respect of the lodgement of the prosecution is declined and the charging documents are not accepted for filing.
[17]The Judge added:
[8] I add that the pursuit of a disciplinary tribunal and public officials by a litigant create the impression that these proceedings are some form of retribution against statutory bodies and individuals who are required to uphold professional standards. As such, material to show the proceedings are not an abuse of process would need to be provided.
3 Above n 1 at [3].
4 Above n 1.
Application for Judicial Review
[18]Mr Deliu claims:
(a)In violation of natural justice and/or breach of s 27 of the New Zealand Bill of Rights Act 1990, the Judge failed to rule on three of the four charging documents.
(b)The Judge failed to take into account relevant considerations, particularly Exhibits A – F and H to R, which were attached to his formal written statement.
(c)The Judge took into account irrelevant considerations, particularly the 20 January 2022 e-mail from Crown Law Office.
(d)The decision is misleading in that it misrepresented the evidence by omitting the one highlighted sentence most helpful to the intended prosecution in the 20 January 2022 email.
(e)The Judge erred in fact when stating at [6] that the applicant was unable “to support the charging documents with material to suggest no record of the appointment of members of the Tribunal Panel was retained”, that the proposed prosecution flies “in the face of public record to the contrary”.
(f)The Judge erred in law when stating at [6] that “the proceedings serve no purpose” and/or at [8] that the applicant had to positively adduce evidence showing the intended prosecution was not an abuse of process.
(g)The Judge unreasonably refused the application for waiver of fees on criteria not known to the law.
(h)In violation of natural justice and/or breach of s 27 of the New Zealand Bill of Rights Act 1990 the Judge made inflammatory obiter dicta
comments at [8] without giving the applicant an opportunity to be heard beforehand.
Statutory provisions
[19] The charging documents each referred to a substantive offence of wilfully or negligently contravening or failing to comply with s 17(1) of the Public Records Act.
[20]Section 17 of the Act provides:
17 Requirement to create and maintain records
(1)Every public office and local authority must create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice, including the records of any matter that is contracted out to an independent contractor.
(2)Every public office must maintain in an accessible form, so as to be able to be used for subsequent reference, all public records that are in its control, until their disposal is authorised by or under this Act or required by or under another Act.
(3)Every local authority must maintain in an accessible form, so as to be able to be used for subsequent reference, all protected records that are in its control, until their disposal is authorised by or under this Act.
[21]The offence is created by s 61, which provides:
61 Offences
Every person commits an offence who wilfully or negligently—
(a)damages a public record; or
(b)disposes of or destroys a public record otherwise than in accordance with the provisions of this Act; or
(c)contravenes or fails to comply with any provision of this Act or any regulations made under it.
[22] Section 26 of the Criminal Procedure Act 2011 sets out the procedural requirements for a private prosecution. It provides:
26 Private prosecutions
(1)If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
(a)accept the charging document for filing; or
(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial
or such part of that evidence that the person considers is sufficient to justify a trial.
(2)The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.
(3)A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—
(a)the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or
(b)the proposed prosecution is otherwise an abuse of process.
(4)If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—
(a)notify the proposed private prosecutor that the charging document will not be accepted for filing; and
(b)retain a copy of the proposed charging document.
(5)Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.
Discussion
[23]I shall refer to each of the allegations in turn.
Failure to rule on three of four charging documents
[24] Although the Judge does refer to “the proposed charge” (singular) in [4] of his minute, the intituling of the minute refers to each of the four proposed defendants. At
[1] and [7] the Judge also refers to the “charging documents” (plural). It is apparent from a perusal of the whole minute that it relates to the four charging documents filed in the District Court.
Failure to take Exhibits A – F and H – R into account
[25] A Court will only hold a decision to be invalid on the basis of a failure to take into account a relevant consideration if the consideration was, as a matter of legal obligation, required to be taken into account.5 The obligation will typically arise expressly or impliedly from the operative statute.6 It is not enough that a consideration
5 Serco New Zealand Ltd v Chief Inspector of Corrections [2016] NZHC 1859, [2016] NZAR 1280 at [95].
6 At [95].
may properly be taken into account or even is one that many people would have taken into account in making the decision.7
[26] The operative statute in the present case is s 26(3) of the Criminal Procedure Act in respect of which the inquiry is whether the evidence provided is insufficient to justify a trial or whether the proposed prosecution is otherwise an abuse of process. The statute does not require any particular consideration to be taken into account.
[27] In any event, it is again apparent that the Judge did consider the documentation provided by Mr Deliu. He refers to his formal written statement, stated that “within the materials provided to the proposed prosecutor”, details of the members of the Disciplinary Panel had been provided and quoted from Exhibit G. I accept Crown counsel’s submission that there is nothing to indicate that the Judge failed to consider any particular aspect of the material provided by Mr Deliu.
Taking into account the 20 January 2022 email from Crown Law Office
[28] The 20 January 2022 email is quoted above at [9]. Mr Deliu says that is a classic example of the logical fallacy known as a strawman. He says the Judge built up an assertion that he never advanced – namely that he had not been given any materials and ergo, there were no public records – and then used the email to knock down an argument that he never advanced.
[29] Rather than ‘building a strawman’ Judge Sharp was following the procedure required under s 26, which is “specific in its direction as to what material a Judge can take into account in deciding whether there is sufficient evidence to justify a trial.8 Specifically, the material to be taken into account is that which forms part of the proposed prosecutor’s formal statement/s. Judge Sharp’s inclusion of the Crown Law email was clearly within the remit of materials he was entitled to consider – those which Mr Deliu himself provided. As this ground of judicial review focuses on the procedure rather than the substance, Mr Deliu cannot succeed as the Judge was relying on materials provided to the Court as envisioned by statute.
7 CREEDNZ Inc. v Governor-General [1981] 1 NZLR 172 (CA) at 183.
8 HT v District Court at Auckland [2015] NZHC 972; [2016] NZAR 1459 at [25].
[30]As an additional point, the Court noted the following:9
[57] An application for judicial review will engage the challenged decision, but not each and every conclusion reached by the decision maker which led to the challenged decision. The reasons and conclusions of the decision maker may disclose an error of law upon which the challenge to the decision is founded, but it is the decision itself that is the focus of the Court’s judicial review. In Arbuthnot v Chief Executive, Dept of Work and Income, the Supreme Court said:
It is fundamental that an appeal10 must be against the result to which a decision-maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision- maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result. A litigant cannot therefore, save perhaps in very exceptional circumstances, bring an appeal when they have been entirely successful and do not wish to alter the result. The successful litigant cannot seek to have the appeal body overturn unfavourable factual or legal conclusions made on the journey to that result which have had no significant impact on where the decision-maker ultimately arrived. In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself.
[31] On this basis, even if there was an error of law by Judge Sharp in ‘misinterpreting’ Mr Deliu’s argument, there is nevertheless sufficient basis for the rejection of his proposed prosecution such that no relief should be granted.
Omitting sentence from 20 January 2022 email
[32] Mr Deliu complains that the last sentence was omitted from the 20 January 2022 email when the Judge quoted it in his minute. The sentence reads, “This is the extent of the documents located about the assignment of members of the panel chaired by Judge Kendall.” He says the omission made the email misleading.
[33] The quoted part of the email relates to the provision of material to Mr Deliu detailing the identity of the members assigned to the Tribunal panel. I agree with Crown counsel that this is relevant to the sufficiency of evidence, which is part of the inquiry under s 26(3) of the Criminal Procedure Act. The excluded sentence is not essential to the evidential assessment and its exclusion is not misleading.
9 Prescott v The District Court At North Shore [2017] NZHC 2828.
10 Reference to appeal applies also to judicial review.
Unreasonable to find applicant unable to provide material suggesting no record kept
[34] The documents provided by Mr Deliu and public documents show that some record of the appointment of members of the Tribunal panel was retained. I again agree with Crown counsel that Mr Deliu has not identified any documents for which there is evidence of wilful or negligent unauthorised disposal, which would be necessary for a prosecution under the Public Records Act. The mere fact that public bodies do not hold certain records is not sufficient evidence to prove the criminal offending Mr Deliu alleges.
Error of law to find proceedings served no purpose
[35] The comment that the proceedings served no purpose was made in the context of the Judge’s consideration of the sufficiency or otherwise of the evidence tendered in support of the charging documents. The Judge conceded there would be a purpose to the proceedings if there was no record at all of the appointment of members of the Tribunal panel.
Decision on waiver of fees
[36] Mr Deliu submits that a fee waiver is a prerequisite to attempting to file charging documents so the issue of a fee waiver is one that must be decided before the issue of whether to accept a charging document. He also points to r 5 of the District Courts Fees Regulations 2009 which sets out the test to be applied, but which was not applied by the Judge. Finally, the power to waive or not waive fees rests with the Registrar, not the Judge.
[37] Mr Deliu has, however, declined to provide a copy of his fee waiver application because it contained private information that he did not trust the New Zealand Government with and did not want to be in a public record. The Court is therefore at a disadvantage in determining whether the relevant criteria for a fee waiver set out in r 5 of the District Court Fees Regulations were met. As to the exercise of the power to rule on an application for a fee waiver, a Judge is entitled, by s 20 of the District Court Act 2016, to exercise the jurisdiction of the Court.
Abuse of process
[38] The Judge’s comment about the proposed prosecution having the appearance of an abuse of process was an observation by the Judge. It was not a substantive part of his decision. It reflected the clear view of the Judge that there was insufficient evidence to justify a trial in terms of s 26(3)(a) of the Criminal Procedure Act 2011.
Time bar
[39] Although not referred to by the Judge, the proposed prosecutions also appear to be time barred. Taken together, ss 6 and 25(3) of the Criminal Procedure Act and s 62 of the Public Records Act provide that charging documents alleging a breach of s 17(1) of the Public Records Office must be filed within six or 12 months (depending on whether the proposed defendant is a natural person). The alleged breach by the Tribunal occurred between 15 April 2014 and 11 December 2014 and is therefore time barred. Crown counsel say that the documents provided by Mr Deliu in relation to alleged breaches by the Governor-General, Minister of Justice and Ministry of Justice are dated between 2008 and 2018 and are therefore also time barred without evidence from Mr Deliu showing that the alleged breaches occurred within the proceeding six or 12 months.
[40] Mr Deliu complains that he had no advance notice that the Crown would raise a limitation issue, which, he says, is an alternative defence for a defendant at trial. He also submits that the failure to keep records is a continuing offence and therefore a limitation defence is not available. Without fuller argument, I will not rely on any possible limitation.
Result
[41] The decision of Judge Sharp dated 2 August 2022 is not illegal as claimed. Similarly, the process followed by the Judge was not unlawful. Mr Deliu did not provide sufficient evidence of wilfulness or negligence on the part of the proposed defendants in the keeping of records.
[42]Mr Deliu’s application for judicial review is accordingly dismissed.
Costs
[43] Costs should follow the event. If the parties cannot agree, I will receive memoranda from both parties of no more than five pages in length by 31 July 2023, and will then make a decision on the papers.
Woolford J
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