Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal

[2021] NZHC 2990

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1683

[2021] NZHC 2990

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

FRANCISC CATALIN DELIU

Applicant

AND

THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY

TRIBUNAL
First respondent

THE NATIONAL STANDARDS COMMITTEE 1 and AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY

Second respondent

Judicial review list:

On the papers

Appearances:

Applicant in person

H M Carrad and C N Tocher for first respondent M J Hodge for second respondent

Date of judgment:

5 November 2021

JUDGMENT OF JAGOSE J

[Recusal, and contradictor]

This judgment was delivered by me on 5 November 2021 at 3.30pm..

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

DELIU v THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2021]

NZHC 2990 [5 November 2021]

[1]                 My 3 November 2021 minute of that day’s call of this proceeding in the judicial review list recorded:

The respondents both abiding this Court’s decision, I am to decide on the papers if to appoint a contradictor and then if it should be the New Zealand Law Society. On that decision, I shall return this proceeding to the subsequent judicial review list for further directions.

[2]Mr Deliu also seeks my recusal.

Recusal

[3]                 In another proceeding,1 I dismissed Mr Deliu’s applications for my recusal on grounds of my associations with others (including my sister, the Solicitor-General)2 against whom Mr Deliu has issued other judicial review proceedings, which relationships he said I should have disclosed; and in my role as judicial review list judge, overseeing his other then-intended judicial review proceedings (of which this proceeding is one).

[4]                 Mr Deliu’s failures in those respects does not establish circumstances as may give rise to a real and not remote possibility a fair-minded, fully informed observer would have a reasonable apprehension I might not bring an impartial mind to resolution of the question I am required to decide. I am not pointed to, and cannot identify, anything else in the circumstances as may lead to that apprehension. I will not recuse myself.

Contradictor

[5]                 Mr Deliu says contradiction is not required here because “the allegations are purely a matter of applying statutory provisions to undisputed facts”. That would be an unusual position on judicial review of public or statutory decision-makers’ exercise of their powers “in accordance with the law, fairly and reasonably”,3 in which relief generally is discretionary.4

1      Deliu v The Minister of Police [2021] NZHC 2458 at [2].

2      To whom Mr Deliu copied his 22 September 2021 list memorandum in this proceeding as “head of the Crown Law Office entity traditionally acting as counsel for the Tribunal”.

3      New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.

4      Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].

[6]Mr Deliu gives 10 factual particulars for his contention the Tribunal:

… acted ultra vires in terms of its unlawful procedures, illegal allocation of panel members, lack of proper constitution for proceedings, improper manner in issuing decisions, want of quorum, sitting absent the membership required by law and/or failure to vote thereby rendering its trial and penalty/costs processes and/or decisions of 15 September and/or 22 December 2016 ineffective, inoperative, invalid, nugatory, nullities, void ab initio and/or otherwise extrajudicial in nature such that the plaintiff was denied a trial and/or a penalty/costs hearing. –

and seeks relief including declarations he was denied a lawful trial and penalty hearing in breach of the New Zealand Bill of Rights Act 1990, and apologies from Tribunal members. None of that follows mechanically from proof of his factual allegations.

[7]                 A contradictor is appointed to maintain orthodox litigation’s “appropriately adversarial process”.5  The Court will be assisted in  achieving that process here by   a contradictor’s appointment. I will make such an appointment.

[8] On judicial review of the conduct of disciplinary proceedings under the Lawyers and Conveyancers Act 2006, in which decision-maker entities abide this Court’s decision, the New Zealand Law Society (NZLS) typically takes up the role of contradictor,6 as it would do here.

[9]                 Mr Deliu seeks to distinguish judicial recognition of the appropriateness of that appointment for application here,7 and contends the NZLS is conflicted as beneficiary (in substance and costs) of the decisions of which he seeks judicial review.

[10]              Such is to miscomprehend the NZLS’s role. It stands beyond its established Lawyers Standards Committees relevantly:8

to uphold the fundamental obligations imposed on lawyers who provide regulated services in New Zealand: [and]

5      Orlov v ANZA Distributing (NZ) Ltd (in liq) [2011] NZSC 28, [2011] 2 NZLR 721 at [9], citing

Gawler v Raettig [2007] EWCA 1560.

6      See, for example, Keene v Legal Complaints Review Officer [2018] NZHC 1869; Gallaway v National Standards Committee [2020] NZHC 3384; and Parmenter v Legal Complaints Review Officer [2021] NZHC 2025].

7      Shand v Legal Complaints Review Officer [2019] NZHC 3105 at [13].

8 Lawyers and Conveyancers Act 2006, s 65(b) and (c).

to monitor and enforce the provisions of this Act, and of any regulations and rules made under it, that relate to the regulation of lawyers:

as acting in contradiction to Mr Deliu’s case would further.

[11]              Mr Deliu’s ‘distinction’ is only to gainsay that which already has been established: the NZLS “acting as contradictor in a case involving discipline in the legal profession is an extension of its function of assisting to administer that system”.9 Its ‘benefit’ is in upholding and enforcing lawyers’ obligations and regulation, irrespective of individual outcome in any case. There is no conflict of interest.

Result

[12]I appoint the NZLS as contradictor to oppose Mr Deliu’s claim.

Next steps

[13]              Mr Deliu seeks a direction the Tribunal “make available a Record of Proceeding”, which he particularises. Having regard for the ambit of Mr Deliu’s claim, the Tribunal consents to a direction it:

… provide disclosure of documents providing for the appointment of the members of the Tribunal’s panel 10 LCDT proceedings 10/10, 8/12 and 15/15 and for Judge Clarkson by Friday 26 November 2021.

I direct accordingly. If additional material is sought, and is not agreed to be disclosed, it may be sought by memorandum filed for this proceeding’s next call in the judicial review list.

[14]              Given my appointment of a contradictor, Mr Deliu’s wish the proceeding be set down for formal proof is inapposite. Instead, I would make timetable directions as proposed at para 6 of the NZLS’s 2 November 2021 memorandum, which appear to accommodate those  earlier proposed  by Mr Deliu. If those  are not accepted by    Mr Deliu, or an alternative is not agreed, he may propose otherwise by memorandum filed for this proceeding’s next call in the judicial review list.

9      Shand v Legal Complaints Review Officer, above n 7, at [14].

[15]              This proceeding is to be called in the judicial review list to be held at 9.00 am on Wednesday, 1 December 2021.

—Jagose J

Solicitors:

Crown Law, Wellington Meredith Connell, Auckland

Copy to:

Applicant