Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal
[2023] NZHC 160
•9 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1683
[2023] NZHC 160
UNDER the Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908, the common law and equity IN THE MATTER
of proceedings moving for an application for judicial review, writs, bill of rights claims and a petition for declaratory relief
BETWEEN
FRANCIS CATALIN DELIU
Plaintiff/Applicant
AND
THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY
TRIBUNAL
First Defendant/RespondentContinued over
Hearing: 2 and 3 May 2022
Further submissions received 11 and 20 May, and 1 June 2022
Appearances:
Plaintiff/Applicant in person
M J Hodge for the New Zealand Law Society as Contradictor
Judgment:
9 February 2023
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 9 February 2023 at 4.45 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
DELIU v NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2023] NZHC
160 [9 February 2023]
AND THE NATIONAL STANDARDS COMMITTEE 1 AND AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY
Second Defendants/Respondents
Solicitors: Meredith Connell, Auckland Counsel: M J Hodge, Auckland
Copy for: Plaintiff/Applicant
[1] This judgment determines an application by the plaintiff, Mr Deliu, for judicial review of proceedings by the first respondent, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“Tribunal”).
[2] On 15 September 2016, the Tribunal found nine charges of misconduct or unsatisfactory conduct proved against the plaintiff. The charges were brought by the second respondents, Auckland Standards Committee 1 and National Standards Committee 1 (“ASC1” and “NSC1”, together the “standards committees”).
[3] On 22 December 2016, the Tribunal suspended the plaintiff from practice for 15 months and ordered him to pay costs of $261,500.
[4] Amongst other things, the plaintiff now seeks an order quashing the Tribunal’s liability and penalty decisions, and an order prohibiting any rehearing of the charges. The plaintiff contends that the Tribunal acted ultra vires in determining liability and penalty; that his right to natural justice was breached in several respects; and that the Tribunal acted as a “kangaroo court”.
[5] This is not the plaintiff’s first application to this Court in respect of the Tribunal’s decisions. The plaintiff appealed against the decisions and made an application for judicial review in proceedings commenced in 2016 (“2016 proceedings”). The respondents to this proceeding were the respondents to those.
[6] Hinton J heard the appeals and application for judicial review in March and April 2017, and issued her judgment on 25 September 2017.1 Subject to varying the costs award in favour of the plaintiff, the Judge dismissed the plaintiff’s appeals, the standards committees’ cross appeal (on penalty, seeking that the plaintiff be struck off the roll of barristers and solicitors), and the plaintiff’s application for judicial review. Hinton J also ordered costs against the plaintiff.2 None of the parties appealed against Hinton J’s judgments.
1 Deliu v National Standards Committee [2017] NZHC 2318.
2 Deliu v National Standards Committee [2018] NZHC 2171.
[7] In August 2021, so almost five years after he commenced the 2016 proceedings, the plaintiff brought this further application for judicial review. In fairness to the plaintiff, his earlier application for judicial review largely reflected the grounds he was advancing on appeal. The submissions he seeks to advance now are “new” in that sense. Regardless, that this is the plaintiff’s second application raises the issue of whether it is an abuse of the process of the Court given the need for finality in litigation and the requirement that a party bring their whole case at the one time.3 I raised this point at the outset of the hearing, and it is discussed further below.
Respondents/contradictor
[8] The respondents abide the decision of the Court. The New Zealand Law Society (“NZLS”) appeared as contradictor to oppose the plaintiff’s application.4
Background
Disciplinary proceedings
[9] The disciplinary proceedings against the plaintiff comprised three sets of charges, identified as “10/10”, “08/12”, and “14/15”.
[10]10/10 was brought by ASC1 in respect of a charge laid in June 2010.
[11] In 08/12, NSC1 charged the plaintiff with misconduct in connection with allegations he had made against two judges on occasions between 2008 and 2010. The charges were laid on or about 30 March 2012. The Tribunal found six of the charges proved.
[12] In 14/15, NSC1 charged the plaintiff with negligence or incompetence in his professional capacity, and with unsatisfactory conduct. These charges were laid on or about 3 July 2015. The Tribunal found these charges proved also.
[13]As indicated above, Hinton J upheld the Tribunal’s decisions.
3 Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 at 319 (Ch).
4 Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2021] NZHC 2990.
Procedural matters
[14] I turn now to outline the procedural course of the proceedings before the Tribunal, so as to put into context the issues the plaintiff now wishes to pursue.
[15] By way of background, the Tribunal consists of a chairperson; a deputy chairperson; lay members, being people not on the roll of barristers and solicitors nor on the register of conveyancers; lawyer members; and conveyancing practitioners.5
Recusals and actions thereafter
[16] At all material times the chairperson of the Tribunal was Judge Dale Clarkson and the deputy chair was (retired) Judge Bernard Kendall. Ultimately both were recused from hearing matters relating to the charges against the plaintiff. The plaintiff relies on events after Judge Kendall’s recusal, and particularly Judge Clarkson’s actions thereafter, as giving rise to his first grounds of review.
[17] Judge Clarkson recused herself in April 2014, several weeks after the Judicial Conduct Commissioner resolved to refer a complaint by the plaintiff against the Judge to her Head of Bench.
[18] Judge Kendall then commenced chairing hearings (interlocutory only at that time) in respect of the charges against the plaintiff, which at that time were those in 10/10 and 08/12.
[19] Judge Kendall then recused himself, or was recused by the division of the Tribunal that he was chairing, following a heated exchange with the plaintiff on 14 December 2014.
[20] Judge Kendall’s recusal meant that it was necessary to constitute a fresh division. By memorandum of 15 December 2014, Mr Morgan KC, for the standards committees, requested the expeditious constitution of a fresh division of the Tribunal to hear the charges, and the designation of a chair of that division. On 16 December
5 Lawyers and Conveyancers Act 2006, s 228.
2014, the plaintiff emailed the Tribunal asking that no action be taken until he had been heard.
[21] Judge Clarkson issued a minute on 18 December 2014. She did not hear from the plaintiff before doing so. In her minute the Judge said that a further division of the Tribunal would sit in relation to the charges against the plaintiff and that it would be chaired by Ms Mary Scholtens KC, one of the Tribunal’s lawyer members.
[22] Subsequently, in March 2015, Judge Clarkson confirmed Ms Scholtens’ designation and advised the names of the other members assigned to the division.
[23] The plaintiff sought to appeal Judge Clarkson’s directions of December 2014 and March 2015. This appeal came before Woolford J later in 2015, who held that the Court’s jurisdiction was confined to determining appeals against an order or decision of the Tribunal, and not against directions given by the chair of the Tribunal on her own.6 Importantly for present purposes, Woolford J noted that the plaintiff would be able to pursue any issue of procedural impropriety, bias, or breach of natural justice in the course of any proceedings after the Tribunal’s (substantive) decisions.
[24] Despite this, the plaintiff did not pursue the point in the 2016 proceedings, an omission he says was due to oversight.
[25] The plaintiff now contends that, having recused herself, Judge Clarkson was precluded from taking any further step in the proceedings against him. The plaintiff also contends that, by failing to hear from him, as referred to in [21], Judge Clarkson breached his right to natural justice.
Composition of divisions
[26] The second set of issues the plaintiff raises are concerned with the composition of the division of the Tribunal which heard the interlocutory matters which arose in the proceedings and which heard the charges and determined penalty.
6 Deliu v Auckland Standards Committee 1 [2015] NZHC 1023.
[27] The “interlocutory” division comprised Ms Scholtens as chair, Mr Colin Lucas, Mr Brent Stanaway, Ms Christine Rowe, and Mr William Smith. Messrs Lucas and Stanaway were lawyer members of the Tribunal, and Ms Rowe and Mr Smith were lay members.
[28] The division which heard the charges and determined penalty comprised Ms Scholtens, Ms Susan Hughes KC, Ms Jacqueline Gray, Mr Peter Shaw, and Mr Smith. Ms Hughes and Ms Gray were lawyer members of the Tribunal, and Messrs Shaw and Smith were lay members.
[29] The plaintiff submits that these apparent members of the Tribunal were not appointed in accordance with ss 233(1) and (2) of the Lawyers and Conveyancers Act 2006 (“Act”) (discussed below), and from this it follows that their decisions are nullities or void, and the product of a “kangaroo court”.
Voting
[30] The plaintiff’s third principal contention is that there is no evidence of how members of the division which heard the charges/imposed the penalty “voted” and thus it is impossible to know whether their apparently unanimous decisions were unanimous in fact.
Miscellaneous
[31]Lastly, the plaintiff raises a series of miscellaneous issues. These are:
(a)whether, on Judge Kendall’s recusal, Judge Clarkson had jurisdiction to designate Ms Scholtens as chair of the newly constituted division or whether it was necessary for the Minister (of Justice) to appoint a new deputy chair under s 232 of the Act;
(b)if not, whether Ms Scholtens’ designation as chair had the effect of putting the division in breach of s 234 of the Act. This provides for a mandatory number of lay and lawyer members;
(c)whether appointees to the Tribunal were properly identified. By way of example, the plaintiff submits that on his appointment as a lawyer member, Mr Lucas was referred to as “Colin Lucas”, not “Colin James Lucas” as appears on the roll; and
(d)whether a handwritten alteration to a typed document substituting Mr Shaw for Ms Rowe on the, or one of the, interlocutory divisions was a sufficient act or notice of assignment to the division.
Present proceeding
[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.
Relevant legal principles as to finality
[34] The plaintiff filed comprehensive submissions, with supporting authorities, in response to the discussion referred to in [7]. The plaintiff later requested that I allow a further two hours for additional argument on the issue, which I declined, as being unnecessary, given the comprehensive written submissions filed, and the oral submissions made on 3 May 2022.
[35] In any event, there is no dispute as to the principles to be applied in determining whether a proceeding is an abuse of the process of the Court on the basis it offends the rule requiring finality in litigation. Recent decisions on the point include Beattie v Premier Events Group Ltd and Broadspectrum (New Zealand) Limited v Nathan. In Beattie, the Court of Appeal said that it is an abuse of process for a plaintiff to commence a proceeding in which they seek to rely on issues or facts which could and ought to have been raised in a previous proceeding.7 In Broadspectrum, the Court of Appeal said:8
[49] It is incumbent upon a party to litigation to raise every point that is relevant to the issues before the court in that litigation. This point is often traced to the following passage from the judgment of Sir James Wigram VC in Henderson v Henderson: ...
[50] If a party does not raise an aspect of its case in litigation, but then in a later proceeding attempts to introduce it as relevant to the same issue between the parties, that can amount to an abuse of procedure. Lord Bingham put the matter as follows in Johnson v Gore Wood & Co (a firm):
But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.
7 Beattie v Premier Events Group Ltd [2014] NZCA 184, [2015] NZAR 1413 at [45].
8 Broadspectrum (New Zealand) Ltd v Nathan [2017] NZCA 434 (footnotes omitted).
[36] Reference is also often made to the following passage in Johnson v Gore Wood:9
… Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.
[37] In Dotcom v District Court at North Shore, the Court of Appeal held that the principle in Henderson v Henderson is as applicable to judicial review as it is to general proceedings.10
[38] Drawing these authorities together, it is clear that it may be an abuse of process for a plaintiff to commence a proceeding in which they seek to rely on issues or facts which could and ought to have been raised in a previous proceeding. Whether the later proceeding is such an abuse requires a broad, merits-based judgment which takes account of all relevant circumstances.
9 Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (HL).
10 Dotcom v District Court at North Shore [2018] NZCA 442 at [34] citing Henderson v Henderson, above n 3.
Could and ought to have been raised in the prior proceeding
[39] I am satisfied that the plaintiff could and ought to have raised each issue that he now seeks to advance in the course of the 2016 proceedings.
[40] There is no contest about this in respect of the events referred to in [25]. The plaintiff acknowledges that he could have pursued these points in the 2016 proceedings.
[41] It was also open to the plaintiff to advance his third contention, and all his miscellaneous issues, referred to in [30] and [31], in the 2016 proceedings if he wished. That it may not have occurred to the plaintiff to do so is irrelevant.
[42] The plaintiff is adamant, however, that he could not have pursued the matters referred to in [29] in the 2016 proceedings. The plaintiff submits that, even if it had then occurred to him to investigate these matters, he would not have succeeded in obtaining the relevant documents. He says that the standards committees were “active” opponents in the 2016 proceedings and that they would have opposed any application for discovery.
[43]I do not accept this submission for the following reasons.
[44] The first is that the plaintiff says that he began to investigate whether members of the Tribunal had been properly appointed after he recalled and decided to pursue the points in [25]. As Mr Hodge submits, however, had the plaintiff pursued those points in the 2016 proceedings, there is no reason to believe he would not also have pursued his “proper appointment” point, as he has now.
[45] Nor do I accept the plaintiff’s submission that he would not have obtained the documents he now has, had he sought them in the 2016 proceedings. Documents pertaining to the appointment of lay members may be obtained under the Official Information Act 1982. Those relating to the appointment of lawyer members may not be obtained under that Act. However, the plaintiff’s submission that he would not have been able to obtain them, whether by agreement (as in this instance) or by order of the Court, is speculative. There is no reason to believe that the co-operation
extended to the plaintiff in the present case would have been refused in the 2016 proceedings. Even if it were, there is no reason to consider the Court would have declined to order discovery of the documents.
[46] Accordingly, I am satisfied that this is a case in which the plaintiff could and ought to have pursued the matters on which he now relies in the 2016 proceedings.
Broad, merits-based judgment
[47] This conclusion requires me to proceed to the “broad, merits-based judgment” referred to above. The matters I take into account in doing so are these.
[48] The first is the comprehensive nature of the 2016 proceedings. The case was heard over seven sitting days. The standards committees instructed senior counsel. Hinton J’s judgment was more than 50 pages. The plaintiff contends that no additional burden is now imposed by addressing his current points, because had he advanced them earlier Hinton J would have had to spend correspondingly longer on her judgment. This may or may not be correct but it is a submission that could usually be made in any event. The important point is that considerable resource, judicial and otherwise, was devoted to the 2016 proceedings, and it is not in the public interest to devote more.
[49] The plaintiff submits that, in circumstances where neither the respondents nor the contradictor made any submission to the Court or raised any affirmative defence to the effect that this proceeding is an abuse, the case should be determined without objection. I do not accept this submission. The rule requiring finality in litigation is one intended not only to protect parties but to ensure the efficient use of judicial resource. There is no requirement that the point be pleaded. It is open to the Court to raise it of its own volition. Moreover, there can be no suggestion of any prejudice. The plaintiff was given time to, and did, respond to the issue in a comprehensive way.
[50] The second important matter is the lapse of time between the events the plaintiff now wishes to pursue and the date on which he issued this proceeding (August 2021). The charges were laid in 2010, 2012 and 2015. Judge Clarkson designated Ms Scholtens to chair the division in late 2014. The relevant period for the
proposed issue as to the appointments is 2014 and 2015. The plaintiff has observed his period of suspension (although he has not paid the costs awarded against him). To compound matters, the plaintiff has sought to bolster his submission that the relevant members of the Tribunal were not properly appointed by referring to what he contends are fatal absences or omissions in the historic documents made available to him.
[51] All of these matters lead me to conclude that it is not in the interests of justice that this matter proceed, and that the plaintiff is seeking to misuse or abuse the process of the Court.
Appointment of members
[52]This brings me to one final matter, as follows.
[53] The plaintiff submits that there can be no suggestion he is precluded from advancing his submission that relevant members of the Tribunal were not appointed in accordance with the Act. This is because, if he is correct, he contends that any decision rendered by a division on which such a member sat would be void. The plaintiff referred me to several decisions of Courts in the United States which he submits are to this effect.11
[54] Mr Hodge disputes the plaintiff’s submissions as to the alleged deficiencies in the appointment process. He submits there is sufficient evidence in the documents produced to establish that the correct appointment process was followed. Mr Hodge also disputes the effect of the authorities to which the plaintiff referred me, and also their application to New Zealand law. In any event, Mr Hodge submits that, even if one or more of the appointments was deficient, the “de facto officer” doctrine would apply to remedy the position, or that recourse might be had to s 19 Judicial Review Procedure Act 2016. Section 19 permits the Court to decline relief or make an order validating a decision affected by defect or irregularity.
11 Bruce v Miller 360 P 2d 508 (OK 1961); Commander v Bryan 123 SW 2d 1008 (Tex Civ App 1938) at 177; Maury v Turner 244 SW 809 (Tex Com App 1922); Conway v Samet 59 Misc 2d 666 (NY Sup Ct 1969); Arkansas State Highway Commission v Coffelt 782 SW 2d 45 (Ark 1990); State v Wilson 652 NE 2d 196 (Ohio 1995) at 200, footnote 6; and Harrison v Whiteley 6 SW 2d 89 (Tex Com App 1928).
[55] As it turns out, it is unnecessary for me to determine the plaintiff’s submission as to the effect of a defect in appointment. Having considered the relevant documents, I am satisfied that there is sufficient evidence that the lawyer and lay members who heard the charges and determined penalty were appointed in accordance with the requirements of the Act. I record that in each case the appointment to which I refer below was a reappointment but I do not consider anything turns on that.
Lawyer members
[56]Section 233(2) of the Act provides:
233 Appointment of other members
(2)[Lawyer] members ... are to be appointed by the Council of the New Zealand Law Society.
[57] The plaintiff is correct in submitting that, on the face of the documents before me, the Executive Board of the NZLS (“Board”) appointed the lawyer members of the Tribunal, and not the Council of the NZLS as s 233(2) provides. The plaintiff submits the appointments were invalid as a result.
[58] Mr Hodge does not accept that submission and submits the Board was entitled to make the appointments.
[59] Mr Hodge referred me to cl 6 of the Lawyers and Conveyancers Act (Lawyers) Constitution 2008 (“constitution”). Clause 6(1) vests all of the regulatory and representative powers of the NZLS in the Council. Clause 6(2), which is important for present purposes, provides that the Council may, amongst other things, delegate such of its powers as it considers fit. The Council delegated the power of appointment to the Board on 19 April 2013. Thus it was that the Board appointed (or reappointed) Ms Scholtens, Ms Hughes, and Ms Gray to the Tribunal on 30 June 2014 for a three year term.
[60] The plaintiff submits that the Council could not lawfully delegate a function conferred on it by express statutory provision, that is by s 233(2). The plaintiff submits that this is so as a matter of general principle but also submits that the provisions of the Act concerning the New Zealand Council of Legal Education (“NZCLE”) are
instructive. Section 280(2) of the Act confers on the NZCLE an express power to delegate any of its powers or functions, with the exception of those referred to in s 280(4). I add that s 82(4) of the Act, concerning the rules of the New Zealand Society of Conveyancers (“NZSOC”), also make express provision for delegation.
[61] However, for the following reasons I am not satisfied that these other statutory provisions lead to a conclusion that the Council was unable to delegate its power of appointment.
[62] The constitution derives from s 70 of the Act. Section 70(1) requires the NZLS to adopt and maintain a constitution which makes provision for a variety of matters, including “a Council of the New Zealand Law Society and the powers of the Council”. The power to delegate in cl 6.2 of the constitution is a provision relating to “the powers of the Council”. I note also that s 70(2) provides that the constitution may contain “any other provisions that are not inconsistent with this Act or any other Act or any rule of law”. I do not consider the power to delegate conferred by cl 6.2 is so inconsistent. On the contrary, the functions imposed on the Council under the Act are so extensive that it must have been in Parliament’s contemplation that the Council would require a power of delegation.
[63] In summary, I am satisfied the Board had power to make the appointments referred to in [59].
Lay members
[64] Section 233(1) of the Act provides the following as to the appointment of lay members:
233 Appointment of other members
(1) [Lay] members ... are to be appointed by the Governor-General on the recommendation of the Minister, after consultation by the Minister with the chairperson of the Disciplinary Tribunal, the Council of the New Zealand Law Society, and the Council of the New Zealand Society of Conveyancers.
[65] There can be no dispute that the lay members, Messrs Shaw and Smith, were appointed by the Governor-General. The documents that the plaintiff produced
include their individual warrants of appointment for a three year term, executed by the then Governor-General, the Rt Hon Sir Jerry Mateparae, on 18 May 2015.
[66] The plaintiff contends, however, that the evidence as to the Minister’s recommendation and of the required prior consultation is insufficient. I have considerable reservations as to whether the Court should ever seek to look behind a warrant of appointment of this nature. However, Mr Hodge did not raise any objection to the plaintiff’s submissions, nor refer me to any authority on the point. Given that, I shall address the evidence, despite my misgivings.
[67] The relevant evidence regarding consultation commences with a signed memorandum from Mr Jeff Orr, then chief legal counsel of the Ministry of Justice, to the Hon Amy Adams, the then Minister of Justice dated 15 January 2015, seeking the Minister’s direction on how she wished to proceed with appointments of lay members to the Tribunal. Amongst other things, the memorandum recites the consultation requirements of s 233(1); refers to advice from Judge Clarkson that she would recommend the reappointment of, amongst others, Messrs Shaw and Smith; and asks the Minister to indicate whether she supports their reappointment, which the Minister did. Mr Orr says in the memorandum that, if the Minister supports the reappointments, he will arrange consultation with Judge Clarkson, the Council of the NZLS, and the Council of NZSOC.
[68] There are then letters dated 3 February 2015 from the Secretary for Justice, Mr Gavin Duffy, to the then Presidents of the NZLS and NZSOC, expressly for the purpose of consulting in accordance with s 233(1) and seeking their response. These documents are unsigned, presumably with the signed originals sent to the recipients.
[69] There is then an “Appointment Briefing Sheet” signed by Mr Orr for the Minister’s consideration dated 3 March 2015. In the memorandum, Mr Orr refers to the Minister’s prior approval of Messrs Shaw and Smith, states that he has consulted Judge Clarkson and the two societies, and asks the Minister to refer the necessary papers to the Cabinet Appointments and Honours Committee.
[70] The next document is an “Appointment Briefing Sheet: Warrant for Governor- General” dated 13 April 2015. This document too is unsigned. However, it relates to the appointment of lay members, including Messrs Shaw and Smith, and is for signature by Mr Orr, and intended for the Minister’s review. The document sets out the next steps required of the Minister to bring about the appointments, and these steps include signing and referring an attached letter to the Governor-General. That (draft) letter to the Governor-General included biographical material for each proposed appointee and a separate document from the Minister requesting that the Governor- General reappoint those lay members to the Tribunal.
[71]The Governor-General’s appointments then followed.
[72] The plaintiff emphasises that several of the documents are unsigned and that there is no evidence that a sufficient degree of consultation in fact took place.
[73] That some of the documents are unsigned is a matter to take into account. On the other hand, the content of the documents is consistent, and I consider sufficient to establish or enable an inference to be drawn that the requirements of the Act were met. As Mr Hodge submits, it is most unlikely that Mr Orr was mistaken (or worse) in his memorandum to the Minister of 3 March 2015 that the required consultation of the required bodies had taken place. It is also unlikely that the Minister did not recommend the appointments to the Governor-General, given that the warrants were indeed signed.
Summary
[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.
Result
[75]I dismiss this application for judicial review.
[76] The contradictor is entitled to costs. The parties may submit memoranda in the absence of agreement.
Peters J
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