Deliu v New Zealand Law Society
[2013] NZHC 1871
•26 July 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-6182 [2013] NZHC 1871
BETWEEN FRANCISC CATALIN DELIU Plaintiff
ANDTHE NEW ZEALAND LAW SOCIETY Defendant
Hearing: 10 July 2013
Appearances: F C Deliu in person
P J Morgan QC for Defendant
Judgment: 26 July 2013
JUDGMENT OF KATZ J (Recusal application)
This judgment was delivered by me on 26 July 2013 at 10:00 am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:
Glaister Ennor, Auckland
Copy to:
P J Morgan QC, Thackeray Chambers, HamiltonF C Deliu, Auckland
DELIU v THE NEW ZEALAND LAW SOCIETY [2013] NZHC 1871 [26 July 2013]
Introduction
[1] Mr Frank Deliu is a barrister practising in Auckland. He is currently facing disciplinary proceedings brought by Standards Committees established by the New Zealand Law Society (“Law Society”) under the Lawyers and Conveyancers Act 2006 (“LCA”).
[2] The disciplinary proceedings against Mr Deliu have not yet been heard by the Lawyers and Conveyancers Disciplinary Tribunal (“Tribunal”). However, the decisions by Standards Committees to refer various matters to the Tribunal (and associated issues) have already given rise to a multiplicity of proceedings in this Court.1
[3] In this proceeding Mr Deliu challenges various preliminary decisions made by Standards Committees under the LCA. In particular, Mr Deliu challenges certain decisions to refer aspects of his conduct to the Tribunal. This proceeding is currently set down for a five day trial commencing 9 September 2013. I have been assigned as trial Judge. Mr Deliu seeks that I recuse myself from further involvement, on the basis of actual or apparent bias.
Further background
[4] This proceeding was commenced on 17 September 2010. The first significant case management conference took place on 10 March 2011. In a judgment delivered on 4 November 2011, Peters J granted the Law Society’s application for separate trials of the civil causes of action and the judicial review
claims, with the judicial review causes of action to be determined first.2
1 Namely, proceedings against: the Legal Complaints Review Officer and the National Standards Committee (CIV-2012-404-121); the Lawyers and Conveyancers Disciplinary Tribunal and the NSC (CIV-2012-404-6295); the Executive Board of the Law Society (CIV-2012-404-4030 and CIV-2012-404-4409) and these proceedings, against the Law Society. Mr Deliu has also brought proceedings before the Human Rights Review Tribunal. Related proceedings have been brought by the Law Society, seeking access to court files relating to Mr Deliu (CIV-2012-404-3785).
2 Deliu v New Zealand Law Society HC Auckland CIV-2010-404-6182, 4 November 2011.
[5] Mr Deliu appealed that decision to the Court of Appeal, which upheld Peters J’s decision in a judgment dated 9 August 2012.3 The Court of Appeal noted the public interest in the expeditious determination of judicial review proceedings, as well as the public interest in the expeditious disposition of disciplinary proceedings against lawyers, as being factors in support of separate hearings.4 A prior separate hearing of the judicial review applications was said to be “most likely to achieve an expeditious hearing, both of the judicial review and the disciplinary proceedings”.5
[6] Following delivery of the Court of Appeal’s judgment, a further case management conference was held before Courtney J on 6 September 2012. Various timetable orders were made in respect of interlocutory applications foreshadowed by Mr Deliu. A timetable was also set for the exchange of substantive affidavit evidence. Mr Deliu advised that he expected the Law Society to file affidavits and, in that event, he would wish to cross-examine the deponents. The possibility that the Law Society would not file affidavit evidence was also noted. Mr Deliu indicated that, in that event, he would seek to subpoena certain witnesses. Under the heading “Time Estimate” Courtney J recorded that:
In the expectation that evidence will be taken in this case, either from subpoenaed witnesses or by cross-examination of deponents, counsel are agreed that an appropriate time estimate is seven days. I note that this matter is to be heard together with the proceeding CIV-2012-404-121 which will require one day. A fixture of eight days will therefore be required some time next year.
[7] On 29 and 30 April 2013 I held a further case management conference, in order to identify the issues for trial. I also heard argument in respect of four interlocutory applications that Mr Deliu had filed. Those applications sought further and better discovery, admissions of facts, further and better particulars of the statement of defence, and interrogatories. In addition to affidavits relating to specific interlocutory issues, Mr Deliu relied at the interlocutory hearing on evidence he had filed in support of his substantive claims, including his affidavit of 15
November 2012, which annexes 4961 pages of exhibits, comprising 13 volumes.
3 Deliu v New Zealand Law Society [2012] NZCA 359.
4 At [10].
5 At [11].
[8] At the end of the hearing I sought counsel’s views as to whether the previous time estimate of eight days (for both proceedings) set out in Courtney J’s Minute remained appropriate. Mr Morgan QC advised on behalf of the Law Society that his current estimate was that three days hearing time would be required if there was no oral evidence and five days if any application by Mr Deliu to cross-examine or subpoena witnesses were successful. I understood Mr Deliu’s position to be that the eight day estimate recorded in Courtney J’s Minute remained appropriate.
[9] In the Conference Minute that was issued on 3 May 2013 I made various timetable directions, including in particular for the filing of any application by Mr Deliu to cross-examine or subpoena witnesses. I also directed that:
The substantive proceedings are to be set down for a 7 day hearing on the first available date which is at least two weeks after the half day interlocutory hearing referred to in (c) above.
[10] Subsequently, during the course of preparing my judgment in respect of the interlocutory applications,6 I undertook a comprehensive review of all of the evidence on the court file, including the substantive affidavit evidence, which has now closed (save for any “updating” evidence). I also reviewed many of the leading cases relevant to the substantive claims, as this was necessary in order to determine some of the interlocutory applications (for example, to form a view as to the scope of “relevance” for discovery purposes).
[11] Following this detailed factual and legal review, I concluded that five days hearing time would be a more realistic estimate, assuming I would preside over the trial. I advised the Registry staff accordingly. Further input was not sought from counsel, on the basis that both counsel had already fully outlined their views at the hearing on 30 April 2013.
[12] The Registry subsequently issued a fixture notice to the parties on 6 June
2013, for a five day hearing commencing on 9 September 2013.
[13] The current time estimate is based on the proceedings as they stand
(following extensive interlocutories and the closure of evidence). Evidence at trial
6 Deliu v The New Zealand Law Society [2013] NZHC 1584.
will be by way of affidavit, as is customary in judicial review proceedings. No orders have (yet) been made for any oral evidence to be given, which was factored into the updated time estimate (the estimate in Courtney J’s Minute was predicated on the assumption that there would be oral evidence). I have indicated to counsel, however, that in the event that Mr Deliu’s application to subpoena witnesses (dated
31 May 2013) is successful, the estimated hearing time for trial will need to be re- visited.
[14] Further, as I have previously noted,7 as is the case with any proceedings, if the matter cannot be reasonably concluded within the estimated hearing time, then the hearing will either continue (subject to counsel and court availability) or be adjourned part heard, to be concluded at a later date.
Recusal principles
[15] In Saxmere Company Limited v Wool Board Disestablishment Company Ltd8 the Supreme Court confirmed that the test for disqualification of a Judge on the grounds of apparent bias was 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”. The standard is one of a real (not remote) possibility of bias.9
[16] As Blanchard J noted in Saxmere, this “principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the ... [court] be independent and impartial”.10
[17] The Supreme Court adopted the two-stage inquiry considered appropriate by the High Court of Australia in Ebner:11
7 Minute of Katz J dated 9 July 2013.
8 Saxmere Company Limited v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 (SC).
9 At [4].
10 At [3], adopting the view of the High Court of Australia in Ebner v Official Trustee in
Bankruptcy (2000) 205 CLR 337 at [6].
11 Ebner v Official Trustee in Bankruptcy, (2000) 205 CLR 337 at [8], cited by Blanchard J in
Saxmere at [4].
[a] The first step is the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits.
[b] In the second step 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”.
[18] Blanchard J further observed that the lay observer must be taken to understand three matters relating to the conduct of judges. The first is that a judge is expected to be independent in decision-making and has taken the judicial oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”. Secondly, a judge has an obligation to sit on any case allocated to the judge unless grounds for disqualification exist. Judges are not entitled to pick and choose their cases, which are randomly allocated. Thirdly, our judicial system functions on the basis of deciding between litigants irrespective of
the merits or demerits of their counsel.12
[19] The other members of the Court in Saxmere agreed with Blanchard J’s analysis. Tipping J said that in considering the appearance of justice being done, “the question is not how the matter appears to a professional judge, but how it would appear to an ordinary sensible member of the public with appropriate knowledge of all the relevant circumstances including the general workings of the legal system”.13
[20] It is clear from the case law on judicial disqualification on the grounds of bias that, while a cautious approach to disqualification on the ground of apprehended bias is appropriate, judges should not too readily accede to suggestions of the appearance of bias. To disqualify oneself on spurious grounds is to risk manipulation of the court’s processes by a litigant. The apprehension of bias must be founded on proper grounds having a real and not fanciful connection to the
possibility of bias.
12 At [8].
13 At [38].
Mr Deliu’s recusal application
[21] Mr Deliu’s recusal application seeks an order “that Justice Katz be recused from further acting in this proceeding (or CIV-2012-404-121)”. The primary ground on which the order is sought was set out as follows:
The plaintiff has been denied a fair trial and/or access to justice by judicial fiat vis-a-vis the Judge having acted ultra vires by: (i) camera stellata, (ii) ex parte, (iii) sua sponte, (iv) without documentation and (v) without due reasons purporting to overturn a prior September 2012 direction of Justice Courtney to allocate eights to these matters which was pursuant to the consent of the plaintiff and New Zealand Law Society and indeed her Honour’s own 3 May 2013 direction affording 7 days of hearing time after accepting the plaintiff’s argument that 9 or so days of hearing time is required to dispose of these proceedings thus raising the spectre of actual or apparent bias.
(Footnotes omitted).
[22] Mr Deliu’s submissions in support of the recusal application focussed to a significant extent on why, in his view, I had erred in concluding that five days would be sufficient hearing time. The key issue, however, is not whether five or seven days hearing time is likely to be necessary (or an entirely different figure). Rather, the issue is whether the decision to set the matter down for a five day hearing rather than seven days (or some issue relating to the process by which that decision was made) indicates the possibility of actual or apparent bias against Mr Deliu.
[23] In response to a submission from Mr Morgan that Mr Deliu had not outlined any basis for his allegation of apprehended bias, Mr Deliu summarised his argument, in reply, along the following lines. Firstly, Mr Deliu noted that these are judicial review proceedings in which he will argue that the Law Society has treated him
unfairly over many years. Important issues of due process arise. Further:14
Now, if a Judge thinks that he or she can make secret, unreasoned, unrecorded, sua sponte decisions, that Judge is more likely then to therefore view due process in a certain way. So if I argue that the Law Society...did this without an application. They did this without reasons. They did this in secret. They did this by not recording it properly. Then a Judge who has done the same thing in a proceeding to me, will view what the Law Society has done as being reasonable. So it would be impossible to assume that if a Judge thinks that he or she can do whatever they want, in any fashion they want, would then have a problem with the Law Society doing whatever they
14 Transcript of recusal hearing at p 18.
want in any fashion they want. So that’s why the process is much more important than whether or not it’s been reduced from 7 days to five days...
Discussion
[24] Although, in reply, an attempt was made to develop a reasoned basis for the recusal application, it was apparent during oral argument that much of Mr Deliu’s dissatisfaction is due to his belief that five days hearing time is simply insufficient to do justice to his case. In his view seven days is the minimum hearing time necessary, or even longer. The strength of Mr Deliu’s views on the issue are evidenced by the fact that, at the hearing on 30 April 2013 (and before any of the procedural “deficiencies” he now asserts had occurred) Mr Deliu stated that he would “appeal” if the estimated hearing time set out in Courtney J’s Minute were revised downwards. I understand that he has done so, separately from this recusal application.
[25] To the extent that Mr Deliu’s issue is with the merits of the direction to set the matter down for a five day hearing (as opposed to the process by which that decision was made) the Court of Appeal’s comments in Muir v Commissioner of Inland Revenue15 are relevant. In particular the Court stated that it knew of no common law jurisdiction which accepts that a judge’s adverse rulings are disqualifying per se.
[26] The mere fact that I did not accept Mr Deliu’s estimate of eight days hearing time as appropriate is not disqualifying. I note that the Law Society’s estimate (of three days hearing time in the absence of oral evidence) was also not accepted. Obviously, there would be huge potential for abuse if recusal applications were permitted to be predicated on a party’s subjective perceptions regarding a judge’s
decision (whether procedural or substantive).16 I will accordingly focus on
Mr Deliu’s argument that the process culminating in my (administrative) decision that five days hearing time was likely to be sufficient gives rise to a reasonable
apprehension of bias.
15 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 (CA) at [101].
16 Ibid, at [100].
[27] Applying the Saxmere principles, the first step is the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. In this case Mr Deliu relies, in essence, on the decision to revise the estimated hearing time without giving the parties a further opportunity to be heard on the issue and without providing written reasons for the decision.
[28] Applying the second step in Saxmere, 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”. Mr Deliu’s submission is essentially that a Judge whose own decision-making processes are deficient is likely to favour the Law Society in a case which alleges deficiencies in its decision-making processes. This is said to constitute actual or apprehended bias, although such an argument does not appear to fall within any recognised category of bias. There appears to be no suggestion that I am biased against Mr Deliu in particular. Indeed the argument advanced would presumably (if accepted) preclude me from involvement in any judicial review proceedings at all.
[29] As the principles articulated by the Supreme Court in Saxmere make clear, apprehended bias is to be assessed by reference to the view of the intelligent lay observer, reasonably informed about the workings of the courts, not by reference to the views of the particular litigant, who will usually be the least objective observer of all.
[30] Bias claims are not determined in a vacuum. Such claims depend heavily on the wider context within which they are raised.17 In Johnson v Johnson the High Court of Australia explained the relevance of context and current judicial practice to bias claims in the following terms:18
The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management,
17 Re JRL (1986) 161 CLR 342 at 349-350 per Gibbs CJ, 356-357 per Mason J, 359-360 per
Wilson J.
18 Johnson v Johnson (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne JJ. These remarks were quoted with approval by Kirby and Crennan JJ in Concret Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577.
intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.
[31] Although those remarks were made in the context of a consideration of the Judge’s role in the conduct of a hearing, they apply with equal force to the proactive role required of a modern Judge in case management generally. The normal exigencies of case management are even more demanding in this case, because of the particular statutory context in which these proceedings arise.
[32] In particular, the LCA has a strong consumer protection focus. There is a clear public interest in professional disciplinary matters being dealt with expeditiously.19 Part 7 of the LCA states that the framework in relation to complaints against lawyers is intended to ensure that such complaints be “processed and resolved expeditiously”20 and that disciplinary charges “be heard and determined expeditiously”.21
[33] The decisions of the Standards Committees that Mr Deliu challenges are procedural in nature and occurred at a “very preliminary stage of what is a comprehensive statutory process involving several checks and balances”.22 Any undue delay in resolving the present proceedings has the potential to cut across the legislative scheme for dealing with complaints against lawyers.
[34] In this case the interests of efficiency and expedition are further reinforced by the fact that these are judicial review proceedings. Section 10(1) of the Judicature Amendment Act 1972 gives powers to judges dealing with applications for judicial review to do all manner of things to enable the application for review to be determined in a convenient and expeditious manner. The Court of Appeal has confirmed in a number of cases that judicial review proceedings are intended to be
both relatively simple and expeditious.
19 See Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [128]
and Dorbu v New Zealand Law Society [2011] NZAR 174 at [24].
20 Lawyers and Conveyancers Act 2006, s 120(2)(b).
21 Ibid, s 120(3).
22 Orlov v New Zealand Law Society & Ors [2013] NZLR 230 at [50].
[35] The Court of Appeal has recently reaffirmed the importance of statutory context (requiring expeditious resolution of disciplinary proceedings under the LCA) in related judicial review proceedings involving Evgeny Orlov. Those proceedings arise, in part, out of the same factual matrix as these proceedings. In Orlov v New Zealand Law Society & Ors the Court made the following observations:23
[165] These and all other charges should now be heard by the Tribunal without delay. On this point we add the following observations. We direct them particularly to Mr Orlov.
[166] As a legal practitioner, Mr Orlov is subject to his profession’s disciplinary regime. It exists primarily for the benefit of the consumers of legal services. That is, people who include Mr Orlov’s own clients. But it exists also for the benefit of all legal practitioners, not least Mr Orlov himself.
[167] We mentioned at the outset of this judgment, and we reiterate, that one of the central objectives of the Act is to provide for “a more responsive regulatory regime in relation to lawyers and conveyancers”.
[168] By raising the numerous procedural objections this judgment considers and rejects, Mr Orlov has thwarted and delayed the disciplinary process. He now complains of these largely self-inflicted delays.
[169] The oldest of the complaints dates back to 19 May 2008. It is imperative that the charges against Mr Orlov now be heard by the Tribunal on their merits, and without still further delays.
(Footnotes omitted.)
[36] Unfortunately, the current proceedings have already been on foot for almost three years. As the (relatively recently) assigned trial Judge, it is my role to manage them through their final interlocutory stages to trial in September 2013.
[37] Applying the Saxmere principles, a fair-minded lay observer must be assumed to have appropriate knowledge of all the relevant circumstances (including the history of these proceedings and the statutory regime I have outlined). Would such a person believe there is a real possibility that I might not bring an impartial mind to the resolution of these proceedings because neither the Law Society nor Mr Deliu were given an opportunity to make further submissions regarding likely hearing duration (having been given the opportunity to fully express their views
several weeks previously)? In my view it is fanciful to suggest that such
23 Ibid.
circumstances would cause a fair-minded lay observer to believe there is a real possibility that I might be biased against Mr Deliu, such that I could not bring a fair and impartial mind to the hearing of this case.
[38] Similarly, the “failure to provide reasons” (to either party) for such a routine administrative decision would not in my view lead to a reasonable apprehension of bias against Mr Deliu on the part of a fair-minded lay observer. Indeed, if the failure to provide written reasons for routine timetabling or case management directions was an indicator of bias then very few Judges would be able to sit at all.
[39] No determination of substantive rights is involved. As is the case with any proceedings, if the matter cannot be reasonably concluded within the estimated hearing time, then the hearing will either continue (subject to counsel and court availability) or be adjourned part heard, to be concluded at a later date.
[40] Applying the Saxmere principles, no basis for recusal has been made out.
Should I recall my judgment on the interlocutory issues?
[41] Mr Deliu submitted that I should recall my interlocutory judgment of 27 June
2013, which determined Mr Deliu’s four interlocutory applications. He submits that
those interlocutory applications should now be re-heard by a different Judge.
[42] Mr Deliu relied in support of this submission on Greymouth Petroleum Ltd v The Solicitor-General.24 In that case MacKenzie J heard a judicial review application on 11 December 2009. On 18 December 2009 one of the parties filed a memorandum seeking that he recuse himself and order a rehearing without delivering judgment. That application was not referred to his Honour until
22 December 2009. In the interim he had delivered his substantive judgment on
21 December 2009.
[43] The recusal application in that case was based on the Judge’s prior involvement, as counsel, in “acrimonious” litigation against Greymouth Petroleum.
24 Greymouth Petroleum Ltd v Solicitor General HC Wellington CIV-2009-485-1425, 3 February
2010.
Greymouth Petroleum submitted that this gave rise to an appearance of bias. The Judge concluded that “given the unfortunate sequence of events” it was not appropriate to resolve the matter by now dealing with the plaintiff’s recusal application. His view was that the appropriate course would have been to deal with the recusal application before delivering substantive judgment. A re-hearing was ordered. The Judge noted that any risk of injustice in such a course was slight as the case was of “short compass” and could be re-heard soon. It involved submissions only. Further, at the outset of the recusal hearing the Judge had raised his proposed course with counsel who had “conferred and indicated that they did not oppose the course which I had suggested”.
[44] Mr Morgan submitted that any recusal application must be determined on its own facts. Unlike in Greymouth Petroleum, in this case a recall of the interlocutory judgment would result in “huge prejudice” to the parties who have spent a lot of time on interlocutory issues already. Another Judge would have to get up to speed with the voluminous material before the Court and further (highly undesirable) delay would inevitably result.
[45] As I have noted above, bias claims are not determined in a vacuum. Such claims depend heavily on the wider context within which they are raised. The recusal application in Greymouth Petroleum was based on one of the standard recusal grounds, well recognised in the case law. Mr Deliu, by contrast, was unable to refer to any cases in which a recusal application has been made (let alone granted) in circumstances such as those in this case.
[46] It is well established that to disqualify oneself on spurious grounds is to risk manipulation of the court’s processes by a litigant. The apprehension of bias must be founded on proper grounds having a real and not fanciful connection to the possibility of bias. In my view the same reasoning applies, by analogy, to the issue of whether a judgment should be recalled in circumstances such as these.
[47] There is no substance to Mr Deliu’s recusal application. The grounds he raises are, frankly, spurious. This is not a case where the issue is finely balanced. It follows that there is no justification for recalling the interlocutory judgment. The
inevitable consequence of such a course would be significant further delay and loss of the trial date.
[48] The mere filing of a recusal application will not automatically cause proceedings to grind to a halt in every case. If that were the case then the process would clearly be open to significant abuse. A recusal application could be made, on spurious grounds, half way through a hearing, or when notice was received that a (potentially adverse) judgment on an urgent injunction application was about to be delivered.
[49] I further note that the second step in the Saxmere analysis requires “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”. There is simply no such logical connection in relation to the interlocutory judgment. Even if Mr Deliu’s arguments were accepted (contrary to the views I have expressed above) in relation to the substantive hearing, there is no logical nexus between Mr Deliu’s ground of objection and the interlocutory issues.
[50] In particular, Mr Deliu’s submission was that the statement of claim alleges various procedural shortcomings on the part of the Law Society. His argument was that, at the substantive hearing, a Judge whose own processes are deficient is likely to take a somewhat lax view of any similar shortcomings on the part of the Law Society. On his analysis, this amounts to actual or apparent bias. However, whether or not the Law Society has erred procedurally in the ways alleged in the statement of claim is irrelevant to the interlocutory issues. The interlocutory issues fell to be determined by the application of orthodox principles regarding interlocutory applications in judicial review proceedings.
[51] Taking into account all of these factors, there is simply no basis for recalling the interlocutory judgment.
Result
[52] For the above reasons I decline the plaintiff’s application that I recuse
myself from further acting in this proceeding or proceeding CIV-2012-404-121.
[53] Leave is reserved to file memoranda on costs.
Katz J
3
9
1