Deliu v New Zealand Law Society HC Auckland CIV-2010-404-6182

[2011] NZHC 1686

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-6182

UNDER Judicature Amendment Act 1972, Declaratory Judgments Act 1908, Lawyers and Conveyancers Act 2006 and New Zealand Bill of Rights Act 1990

IN THE MATTER OF     an application for judicial review and declaratory relief

BETWEEN  FRANCISC CATALIN DELIU Plaintiff

ANDTHE NEW ZEALAND LAW SOCIETY Defendant

Hearing:         16 June 2011

Appearances: Plaintiff in Person

P Morgan QC for Defendant

Judgment:      4 November 2011 at 4:00 PM

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 4 November 2011 at 4:00 pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Glaister Ennor, P O Box 63, Shortland Street, Auckland 1140

Counsel:            Mr F C Deliu, P O Box 68559, Newton, Auckland 1145 (email:  [email protected])

P J Morgan QC, Thackeray Chambers, P O Box 19021, Hamilton 2001 (email: [email protected])

DELIU V THE NEW ZEALAND LAW SOCIETY HC AK CIV-2010-404-6182 4 November 2011

[1]      The defendant seeks an order for separate trials of causes of action, and consequential directions. The plaintiff opposes the making of the order sought.

[2]      The defendant’s application is made pursuant to High Court Rules, r 10.4 which reads as follows:

10.4     Court may order separate trials

When justice requires, the court may order separate trials of causes of action and it may also direct the sequence of the separate trials and make any supplementary order that is just.

[3]      Counsel also referred me to s 10(1) of the Judicature Amendment Act 1972

(“JA Act”) as being relevant, and that provision reads as follows:

10       Powers of Judge to call conference and give directions

(1)       For  the  purpose  of  ensuring  that  any  application  or  intended application for review may be determined in a convenient and expeditious  manner,  and  that  all  matters  in  dispute  may  be effectively and completely determined, a Judge may at any time, either on the application of any party or intended party or without any such application, and on such terms as he thinks fit, direct the holding of a conference of parties or intended parties or their counsel presided over by a Judge.

...

[4]      The essence of the defendant’s case in support of its application is that justice in this case does require separate trials of the plaintiff’s causes of action.   This is predominantly because of the different issues which arise on the causes of action that the plaintiff has pleaded, and the relief that he seeks.  The defendant’s case is that some of these causes of action (referred to below as the “applications for review”) are capable of comparatively expeditious resolution, whereas others (which I refer to as the “civil causes of action”) are not.  Not only is it desirable that those causes of action which can be resolved expeditiously should be so resolved, but the defendant submits that other advantages will follow as a result.

[5]      The essence of the plaintiff’s opposition is that many of the reasons why the

Court is often reluctant to order separate trials  apply in this case.   The factual

allegations which underlie the claims are common and, accordingly, some witnesses will have to give evidence twice; there may be concerns as to issue estoppels arising from the first trial; and more time and cost will be spent if there are separate trials, than if all matters were determined together.  For these and other reasons the plaintiff submits that all causes of action ought to be progressed and heard together.

Authorities

[6]      The plaintiff referred me to two authorities of particular relevance to the application, namely Goodship v Minister of Fisheries and Turners & Growers Ltd v Zespri Group Ltd.[1]

[1] Goodship v Minister of Fisheries [2001] NZAR 274; (2000) 15 PRNZ 256 and Turners & Growers

Ltd v Zespri Group Ltd HC Auckland CIV-2009-404-4392, 5 May 2010.

[7]      As is made clear in Zespri, the Court has a broad discretion to exercise, and it will exercise that discretion in the circumstances of the case with which it is concerned.  The Court must do so taking into account the interests of the parties to the litigation and the interests of other parties to other cases awaiting hearing before the Court.  In addition, the starting point is the assumption that all matters in issue will be determined in one trial because that usually would be the most expeditious and efficient manner of determining a proceeding.   As a result, in this case the defendant has the burden of satisfying me that the interests of justice do require separate trials.

[8]      Paragraph [11] of Zespri contains a helpful list of criteria that have been taken into account in other cases to decide whether separate trials should be ordered. Some of these are of particular relevance in this instance and are referred to below.

[9]      Goodship is relevant because, amongst other things, it is authority for the proposition that the Court is not more likely to order separate trials simply because a proceeding includes an application for review as this one does.

Pleadings

[10]     The starting point is a consideration of the pleadings.

[11]     In  his  (second)  amended  statement  of  claim  dated  4  October  2010,  the plaintiff pleads eleven causes of action.   In four of these the plaintiff applies for judicial review under the JA Act (“applications for review”), and in the other seven he seeks awards of damages and other relief for acts or omissions alleged against the defendant (“civil causes of action”).

Applications for review

[12]     The first application for review is in respect of decisions that the defendant made on 5 August and 13 September 2010, declining to investigate allegations that the plaintiff had made against a former employee of the defendant.

[13] The second application for review is in respect of decisions the defendant made on 24 November 2008, 17 July and 25 September 2009 and 18 June 2010. These were decisions to investigate the plaintiff, to progress the investigation to a hearing, to refer matters to the New Zealand Lawyers and Conveyancers Tribunal pursuant to s 152(2)(a) of the Lawyers and Conveyancers Act 2006 (“the Act”), and to lay a charge against the plaintiff pursuant to s 154 of the Act.

[14]     The third application for review concerns decisions the defendant made on

14 June  and  12 August  2010.    These  decisions  were  to  investigate  and/or  hear complaints that two members of the judiciary and several legal practitioners had made to the defendant regarding the plaintiff’s conduct.

[15]     The fourth application for review concerns a decision which the defendant made on 1 October 2010, to rescind a decision that the defendant had made in September 2010.

[16]     There are some differences between the grounds of review alleged in each application but counsel for the defendant’s description of them as allegations of illegality and procedural impropriety is a fair one.  In each application the plaintiff seeks orders quashing the decisions in issue.  The plaintiff also seeks the issue of a writ of mandamus on the fourth cause of action.

[17]     The issues on the applications for review will be whether the plaintiff can make out a ground of review and, if so, whether relief should be granted.  There is also a threshold issue on each of the first and fourth applications for review, namely whether the decisions constituted an exercise or refusal to exercise a statutory power for the purposes of s 4(1) of the JA Act.

[18]     The defendant submits that the issues and the evidence on the applications for review will be confined and, in the words of s 10(1) of the JA Act, the matters in dispute on those applications are more likely to be determined in a convenient and expeditious manner if they are tried separately.  The defendant submits that much, if not all, of the evidence on the applications for review could be given by affidavit.  I accept that submission, although given the grounds of review cross examination of at least some witnesses is likely to be sought.

Civil causes of action

[19]     In  the  civil  causes  of  action  the  plaintiff  seeks  relief  in  respect  of  the decisions referred to in [12] to [14] above, on the basis that the decisions were made in breach of statutory duty and/or were an abuse of public office and/or breach of fiduciary duty; were an abuse of process or alternatively constituted malicious prosecution of the plaintiff; constituted the intentional infliction of emotional distress on the plaintiff; and that the defendant breached four different rights guaranteed to the plaintiff under the New Zealand Bill of Rights Act 1990.

[20]     The relief which the plaintiff seeks on the civil causes of action includes compensatory, general, special, aggravated, nominal and exemplary damages. Exemplary damages  are  sought  not  only in  respect  of the  effect  of the alleged conduct on the plaintiff but also in respect of its alleged effect on members of plaintiff’s extended family.  The plaintiff also seeks a declaration that the defendant has breached the plaintiff’s human rights; a permanent injunction; a direction that the defendant investigate third parties, and an award of costs.

[21]     The defendant denies any liability to the plaintiff.  Counsel for the defendant

advised me that the defendant’s case will be that neither the defendant nor any of its

employees has breached any of the plaintiff’s rights and that, if it were to prove necessary, the defendant would rely also on s 272 of the Act. Amongst other things, s 272 protects the defendant and its members, officers and employees from civil liability for acts or omissions in the course of dealing with (in general terms) disciplinary matters, unless the Court is satisfied that the defendant has acted in bad faith.

[22]     The defendant submits that the plaintiff has pleaded evidence and a great deal of irrelevant and scandalous material in his statement of claim.  This complaint is entirely justified.  The statement of claim is 52 pages long and contains numerous wholly irrelevant allegations on a range of topics.  These topics include, for instance, the prior professional history of one of the defendant’s former senior employees; allegations concerning members of standards committees; the defendant’s dealings with another practitioner and the plaintiff’s speculation as to what might have motivated the defendant’s actions; and the consequences which the plaintiff contends he and members of his family have suffered as a result of the defendant’s alleged conduct.  These include the alleged effect on the plaintiff’s practice and his physical and emotional wellbeing.

[23]     Even if the plaintiff were to remedy these very substantial deficiencies, it is clear that numerous factual and legal issues will have to be addressed to determine the matter of liability on each civil cause of action and, if any such liability is found, what forms of relief are available and appropriate.  If it were to come to the matter of damages, then quantum would be the subject of considerable dispute.

[24]     The civil causes of action, if not the entire statement of claim, are likely to have to be re-pleaded.  Extensive discovery is likely to be required in relation to the civil causes of action, and possibly by third parties.  Briefs of evidence from many factual and possibly expert witnesses will also be required.

[25]     For completeness I add that the plaintiff seeks a jury trial in respect of the civil causes of action.   That is a matter I take into account, although I do not put

great weight on it because previously, and in a different context, the plaintiff has said he would be willing to forego a jury trial in certain circumstances.[2]

Discussion

[2] The plaintiff ’s memorandum for case management conference dated 10 November 2010.

[26]     I accept the defendant’s submission that the issues on the applications for review are reasonably confined and that those on the civil causes of action are not.  I also accept that there is no prospect whatsoever of all causes of action being brought to trial promptly.  It is also possible, as the defendant submits, that the determination of the applications for review may expedite or assist in determination of the issues in the civil causes of action.

[27]     In addition, the defendant has delayed the conduct of the investigations of the plaintiff referred to in [13] and [14] above, pending determination of the applications for review.  The sooner the applications for review are determined, the sooner those investigations may be completed.  At present, there is no legal impediment to the defendant continuing the process of investigation.   Nevertheless, naturally the defendant would have some reluctance to do so whilst the applications for review are extant.    I  also  note  that  the  plaintiff  states  in  his  notice  of  opposition  to  the defendant’s application that he will seek an adjournment, interim relief, injunctive or other relief if the defendant seeks to continue those investigations..

[28]     The plaintiff submits that consideration of many of the criteria referred to in the Zespri list would lead to the defendant’s application being declined.  The plaintiff submits that there is an overlap between the factual allegations underlying the applications for review and those underlying the civil causes of action and, accordingly, separate trials are likely to create difficulties which would not otherwise exist.  These difficulties include the potential for overlapping factual findings; that some witnesses are likely to have to give evidence twice; that the proceedings are likely to require more of the parties’ and Court’s resources if there are separate trials; and that the time taken to resolve the entire proceeding may be longer than if all

matters are heard together.

[29]     I accept the submission that there is a factual overlap but I do not consider that the extent of that overlap is such that separate trials become unduly problematic. To the extent that there is an overlap, it is possible the determination of the applications for review may assist the parties and the Court regarding the determination of the civil causes of action.

[30]     I also accept that separate trials may give rise to the other difficulties to which the plaintiff has referred.

[31]     It is a matter of balancing the pros and cons of separate trials against the pros and cons if the matters are heard together.  I am satisfied that the interests of justice do require that I grant the defendant’s application.  That is because there is a good prospect of resolving the applications for review with expedition if they are tried separately to the civil causes of action.  Not only is that likely to serve to clarify the issues but it also has the advantage of allowing the investigations referred to above to be completed.  There is no prospect of a prompt resolution if all causes of action are tried together, even if the plaintiff of his own volition were to reassess his pleading and confine it to the essentials and even if there were to be rigorous case management.

[32]     Accordingly, I order that the trial of causes of action one, two, three and eleven (these being the applications for review) in the second amended statement of claim dated 4 October 2010 be tried separately from causes of action four to ten inclusive in the same statement of claim.

[33]     In his notice of opposition to the application, the plaintiff sought an order that the civil causes of action be determined first, if separate trials were ordered.  The defendant opposes that order.  I accept the defendant’s submission that the causes of action for judicial review should be determined first and order accordingly.

[34]     The parties are to file memoranda as to the directions they consider should be made in light of this decision.  The defendant should file and serve its memorandum by 4 pm on 11 November 2011 and the plaintiff by 4 pm on 18 November 2011.

[35]     Counsel may also file memoranda on costs, on the same timetable, if they wish.  Failing that costs are reserved.

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PETERS J