National Standards Committee no.1 v Deliu

[2013] NZHC 1184

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-3785 [2013] NZHC 1184

BETWEEN

THE NATIONAL STANDARDS

COMMITTEE (NO 1) & ANOR Applicants

AND

FRANCISC CATALIN DELIU Respondent

Hearing:	On the Papers
Appearances:	WC Pyke for Applicants Respondent in person
Judgment:	23 May 2013

JUDGMENT (NO 2) OF TOOGOOD J

[Applicants for stay of interlocutory judgment and adjournment of substantive

proceeding]

This judgment was delivered by me on 23 May 2013 at midday

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

THE NATIONAL STANDARDS COMMITTEE (NO 1) & ANOR v DELIU [2013] NZHC 1184 [23 May 2013]

Introduction

[1]      The applicants have initiated disciplinary proceedings against the respondent, Mr Deliu, who is a legal practitioner.  By originating application under Part 19 of the High  Court  Rules,  the applicants  have applied  for an  order for access  to  court documents under r 3.13(2) of the Rules.  The court documents relate to proceedings in  which  Mr Deliu  was involved  either as  counsel  or legal  adviser.    Mr Deliu opposes the application.

[2]      On   13 December 2012   I   issued   a   judgment1    (“the   first   interlocutory judgment”) dealing with preliminary issues raised by Mr Deliu about the application for access.

[3]      Mr Deliu now seeks orders staying the first interlocutory judgment and adjourning any substantive hearing of the application for access until after the disposition of related judicial review proceedings2  set down for hearing over three days beginning on 10 June 2013 (“the judicial review proceedings”).

[4]      The judicial review proceedings relate respectively to the decision by the Executive Board of the New  Zealand  Law Society (“the Board”) to  commence proceedings in this Court for the exercise of the Court’s summary jurisdiction to suspend Mr Deliu from practice, and the Board’s decision to apply for access to specified court documents which led to this proceeding.

Result

[5]      For the reasons given below:

(a)       I decline to order a stay of the first interlocutory judgment; and

1      The National Standards Committee (No 1)r v Deliu [2012] NZHC 3378.

2      Deliu v The Executive Board of the New Zealand Law Society HC Auckland CIV 2012-404-4030 and Deliu v The Executive Board of the New Zealand Law Society HC Auckland CIV 2012-404-

4409.

(b)I direct the Registrar to convene a telephone conference with me as soon as possible to address whether the application for access should be heard with the judicial review proceedings on 10-12 June 2013.

Background

[6]      In the first interlocutory judgment, I gave my reasons for ruling in the course of the hearing on the preliminary issues that Mr Pyke was not disqualified from appearing as counsel and ruled, further, that:

(a)      adjournment of the substantive application for access was rendered inevitable;

(b)      it was unnecessary for the applicants to rely on s 130 of the Evidence

Act 2006 to put court judgments before the Court in the proceeding;

(c)      judicial review proceedings provided the appropriate forum for any challenge to the motives of the applicants in taking disciplinary action against him;

(d)the  criteria  for  access  to  court  documents  could  be  adequately addressed on the basis of the material before the Court;

(e)       I would not make any order for discovery of documents3; and

(f)      the applicants had leave to rely on the affidavit of Ms Ollivier as evidence without making her available for cross-examination.4

[7]      I also determined that there was no issue justifying joinder of the access application with the judicial review proceedings.

3      National Standards Committee v Deliu, above n 1 at [43].

4 Ibid, at [45].

[8]      After   addressing   the   timetabling   of   an   exchange   of   further   written submissions about the substantive application, I reserved the question of whether a further oral hearing of the application for access was necessary.

[9]      A further memorandum was filed on behalf of the applicants on 22 January

2013.   On 22 February 2013, Mr Deliu filed a memorandum containing what he described as his “skeleton synopsis” on substantive matters, repeating his assertion that he should be afforded a further opportunity to make oral submissions.

[10]     Mr Deliu also argued that I had not considered his application to adjourn the proceedings until after the judicial review proceedings had been determined.

[11]     On  27 February 2013,  Mr Deliu  applied  separately  for  orders  staying  the effect of my judgment of 13 December 2012 on the grounds that:

(a)       he had appealed the judgment to the Court of Appeal;

(b)his appellate rights would be rendered nugatory if a stay were to be refused;

(c)       he would be denied “the legal right to argue mala fides” in respect of

the application for access to documents;

(d)the Court of Appeal was due to hear an appeal on a similar issue in another case;

(e)       the  applicants  had  misled  the  Court  as  to  the  urgency  of  the proceeding;

(f)       no third parties would be adversely affected;

(g)      the intended appeal was novel and/or of public importance; (h)         the appeal and judicial review claims had merit;

(i)       the overall balance of convenience lay in the respondent’s favour; and

(j)       it was in the interests of justice to grant the stay.

[12]     Mr Deliu also filed in support of the application for a stay a 13-page affidavit to which are attached 29 exhibits, principally copies of judgments of various courts.

[13]     To the extent that the  affidavit  addresses  matters arguably related  to  the application for access, it contains a mixture of factual assertions and submissions or expressions of opinion.  Paragraphs 1 to 8 and their sub-paragraphs address issues arising  from  the  six  cases  on  which,  it  seems,  any  disciplinary  action  against Mr Deliu might be founded.

[14]     Paragraphs 9 to 17 address Mr Deliu’s application to adjourn consideration of the  access  application  until  after  the  hearing  of  the  judicial  review  and  his applications for stay.  To the extent that the affidavit contains submissions going to the matters to be determined in this judgment, I treat the affidavit as such.  I do not understand Mr Pyke to object either to that course or to the evidential content of the affidavit being relied upon by Mr Deliu in support of his submissions.

[15]     I record that I have also had regard to memoranda filed by Mr Deliu dated

5 April 2013 and 9 April 2013 and to a case management memorandum filed by

Mr Pyke on 8 April 2013.

Application for stay of first interlocutory judgment

[16]     Mr Deliu’s application for a stay of the first interlocutory judgment pending the  hearing  of  his  appeal  has  been  overtaken  by  events.     Mr  Pyke  filed  a memorandum dated 17 May 2013 drawing my attention to the judgment of the Court of Appeal,  dated  17 April 2013,  in  Schenker  AG  and  Schenker  (NZ)  Limited  v

Commerce Commission.5   That judgment deals with the issue of what requirements a

non-party to a civil proceeding must satisfy to obtain access to documents on a High

Court civil proceeding file and Mr Pyke submits that it affirms the view of that issue

5      Schenker AG and Schenker (NZ) Limited v Commerce Commission [2013] NZCA 114.

taken by Asher J in Commerce Commission v Air New Zealand Ltd,6 a decision upon which he relies in support of the applicant’s position in the present proceeding.

[17]     Mr  Deliu’s  application  for  discovery  of  documents  and  his  notice  of intention to cross-examine the applicants’ deponent in the present proceeding was based on an assertion that the applicants were acting in bad faith in instituting and pursuing the disciplinary proceedings against him and in seeking access to the court files.  In refusing discovery and cross-examination, I acknowledged that Mr Deliu was entitled to challenge a decision by the applicants to take disciplinary action against him, to the extent that such a decision was reviewable by this Court in judicial review proceedings.   I said that it was in such review proceedings that allegations of bad faith on the part of the applicants or any officer or representative

of the applicants should be examined.7

[18]     I have since been assigned to hear the judicial review proceedings and I will accordingly be required to address Mr Deliu’s bad faith argument in that context. Given the proximity of the hearing at which those matters will be addressed, and acknowledging that any substantive judgment on the application for access to court documents should be deferred pending further submissions from Mr Deliu on the Court of Appeal’s judgment in Schenker, it now seems inevitable that I will be hearing  argument  on  the  bad  faith  issue  before  determining  the  application  for access.

[19]     It follows that no substantial further delay prejudicing the applicants will be caused if the Court’s judgment in the judicial review proceedings is delivered prior to or contemporaneously with the judgment on the application for access.   If the judicial review proceedings result in the Board’s decision to apply for access being set  aside,  it  would  seem  inevitable that  the present  proceeding will  have  to  be abandoned or, at least, postponed.  If the decision to apply for access is not set aside,

Mr Deliu’s arguments as to bad faith will have been heard and disposed of.

6      Commerce Commission v Air New Zealand Ltd [2012] HCNZ 271.

7      National Standards Committee v Deliu, above n 1 at [35] and [40].

[20]     In those circumstances, an order staying the effect of the first interlocutory judgment, if it was ever practicable to make one, is unnecessary.

Application for an adjournment

[21]     The submission by Mr Deliu that he is entitled to a further oral hearing of the substantive application for access, and the question of deferring any judgment on that application until after the judicial review proceedings have been heard, have similarly been overtaken by my assignment to hear the judicial review proceedings in June.

[22]     It seems to be to be sensible to combine the completion of a substantive hearing on the application for access with the hearing of the judicial review proceedings, but I am mindful that Mr Morgan QC, counsel for the defendant in the judicial review proceedings, Mr Pyke, and Mr Deliu have not had an opportunity to be heard on that proposition.

[23]     For these reasons:

(a)       I decline to order a stay of the first interlocutory judgment; and

(b)I direct the Registrar to convene a telephone conference with me as soon as possible to address whether the application for access should be heard with the judicial review proceedings on 10–12 June 2013.

[24]     The Registrar shall arrange for both Mr Morgan and Mr Pyke to be involved in the telephone conference, unless the New Zealand Law Society and the National Standards Committee consider that their interests will be adequately represented by one counsel.

............................................

Toogood J