National Standards Committee v Deliu (no 1)
[2013] NZHC 2503
•25 September 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-003785 [2013] NZHC 2503
BETWEEN THE NATIONAL STANDARDS COMMITTEE (NO 1)
First Applicant
THE NEW ZEALAND LAW SOCIETY
Second ApplicantAND
FRANCIS CATALIN DELIU
Respondent
| Hearing: | 10, 11 and 12 June 2013 |
Appearances: | P J Morgan QC for Applicants Respondent in person |
Judgment: | 25 September 2013 |
JUDGMENT (NO 3) OF TOOGOOD J
Thisjudgment was delivered by me on Wednesday, 25 September 2013 at 4.30pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
C Grice, New Zealand Law Society, Wellingtopn P J Morgan QC, Hamilton
F C Deliu, Auckland
THE NATIONAL STANDARDS COMMITTEE (NO 1) v DELIU [2013] NZHC 2503 [25 September 2013]
Introduction and result
[1] The respondent, Mr Deliu, is a barrister. The first applicant, the National Standards Committee (No 1) (“the NSC”) constituted under the Lawyers and Conveyancers Act 2006 (“the LCA”) has initiated disciplinary proceedings against Mr Deliu under Part 7 of the LCA and the Board of the New Zealand Law Society (“the NZLS” or “the Society”) is contemplating applying to the Court for an order under s 268 of the LCA suspending Mr Deliu from practice.
[2] 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 rule applies whenever the permission of the court is necessary under the rules and is sought to access a document, court file, or any part of the formal court record, except where access may be sought during the hearing of a matter.1 The court documents relate to proceedings in which Mr Deliu was involved either as counsel or legal adviser, and to judgments in those proceedings in which there are observations which are critical of Mr Deliu’s performance or professional conduct.
Mr Deliu opposes the applications for access.
[3] Mr Deliu commenced judicial review proceedings relating respectively to a resolution of the NZLS Board dated 12 April 2012 that counsel be instructed to commence suspension proceedings in this Court against Mr Deliu and to the decision
by the Board to make the present application. This judgment should be read in conjunction with the contemporaneous judgment2 delivered in those proceedings (“the judicial review judgment”).
[4] Mr Deliu also commenced an application for judicial review of the NSC’s decisions to commence disciplinary proceedings against him under the statutory regime in Part 7 of the LCA and to make this application. That proceeding, Deliu v National Standards Committee (No 1) CIV 2012-404-6182, has been heard separately by Katz J only recently and adjourned part heard.
1 High Court Rules, r 3.13(1).
2 Deliu v Executive Board of New Zealand Law Society [2013] NZHC 2504.
[5] For the reasons given at [17] and [18], I reserve the application by the NSC for further submissions and consideration after Katz J has delivered a judgment in CIV 2012-404-6182 dealing with the application to review the NSC’s decisions.
[6] For the reasons given below, I grant the application by the Society, in the following terms:
(a)The New Zealand Law Society is permitted to inspect the court files listed in the annexure to this judgment.
(b)Subject to order (c), the Society is permitted to copy all pleadings and other documents drafted by counsel in the proceeding, Court minutes, directions, rulings and judgments.
(c)Any documents coming within order (b) which are privileged, or which contain confidential information, or which raise privacy interests, shall not be copied by the Society without the leave of the Court. If the Society wishes to use any such copies as evidence in any proceedings under the Lawyers and Conveyancers Act 2006, the Society shall notify the Court and the respondent of the relevant documents and seek further directions as to how any privilege, confidentiality or privacy issues which arise in relation to such documents are to be addressed.
(d)Any copies made pursuant to these orders may be used only for the purposes of the Society’s investigations or inquiries regarding the respondent and any subsequent Court or disciplinary proceedings and, except as may be necessary for the purposes of any such proceedings, shall be kept confidential to those officers or members of the Society whose duties require them to be involved in the inspection or any subsequent proceedings, and their professional advisers.
(e)Leave is reserved to either party to seek further directions regarding the implementation of these orders, if the need arises.
Background
[7] On 13 April 2012, the General Manager, Regulatory of the Society made an informal application to the Registrar of the High Court, Auckland for access to certain court files.3 The application was made in respect of 12 identified proceedings issued in the Auckland registry.
[8] The application was referred to Peters J who directed that the request should be made by originating application under the High Court Rules.4 The Judge also directed that the Law Society serve a copy of its letter of 13 April 2012, the Minute, and the originating application, on the two lawyers referred to (but not identified) in the opening paragraph of the letter, of whom Mr Deliu was one.
[9] An originating application for access to Court documents was filed by the applicants on 3 July 2012. The access application lists 12 separate proceedings in this Court filed between 2007 and 2009.
[10] The application was made on the grounds that:
(a)Access to the files is necessary to enable the orderly and fair administration of justice in proceedings brought by the NSC under Part 7 of the LCA, and for the purposes of anticipated proceedings by the Society in this Court under s 268 of the LCA.
(b)Access to the files will ensure that evidence that is relevant and material to proceedings under Part 7 of the LCA and any proceeding in this Court is fairly and fully adduced in those proceedings.
(c)Documents relating to the confidentiality or privilege of any party or person to the cases listed may be excluded from any orders made.
3 Pursuant to r 3.13(2) of the High Court Rules.
4 High Court Rules, r 3.13(4).
[11] It is common ground that Mr Deliu was involved in some professional capacity in six of the cases listed. Judgments issued in the proceedings are said by the Society to contain criticisms of the conduct and performance of Mr Deliu.
[12] In the course of his submissions, Mr Deliu took me through the relevant judgments issued in those six cases and the background to them. Because I am not concerned with the merits of the criticisms, however, it is unnecessary to do more than list the specified proceedings.
[13] They are:
(a)L v Chief Executive of the Ministry of Social Development5 (application for judicial review following decision to make a declaration that children were in need of care and protection, Chief Executive, Minister of Justice, Attorney General and lawyer for the children cited as defendants).
(b)Berg v Franix Construction Limited6 (appeal from judgment of District Court granting summary judgment for $7,366.50 plus interest and costs in claim under Construction Contracts Act 2002).
(c)G v Chief Executive of the Ministry of Social Development7 (applications against Chief Executive, a Charity, the Attorney General and others alleging breaches of statutory duty, misfeasance in public office and breaches of fiduciary duty and negligence; strike out application by defendant).
(d)Chopra v Chief Executive of the Department of Labour8 (application for judicial review).
5 L v Chief Executive of the Ministry of Social Development HC Auckland CIV-2007-404-7031, 24 July 2008.
6 Berg v Franix Construction Ltd HC Auckland CIV-2008-404-3421, 24 September 2008.
7 G v Chief Executive of the Ministry of Social Development HC Auckland CIV-2008-404-3461, 27 July 2009.
8 Chopra v Chief Executive of the Department of Labour HC Auckland CIV-2009-404-911, 30 June 2009.
(e)Chea v Chan9 (application by defendant for indemnity costs against plaintiff and her legal advisers).
(f)ANZA Distributing New Zealand Ltd (in liq) v USG Interiors Pacific Ltd10 (liquidation proceedings, application for review of Associate Judge’s decision and other interlocutory applications).
[14] The documents which the Society seeks to copy are restricted to pleadings and other documents drafted by counsel in the proceedings (including the lawyers in question), Court minutes, directions, rulings and judgments. This indicates a focus on the role played by counsel in the proceedings.
[15] In an interlocutory judgment in this proceeding,11 I recorded that Mr Deliu’s application for discovery of documents and his notice of intention to cross-examine the applicants’ deponent in the present proceeding were 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.12 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.13 In refusing discovery and cross- examination I held, however, 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.14
[16] Because I was then assigned to hear the judicial review proceedings, it was appropriate to hear the submissions in the review proceedings and in relation to these applications together. In the judicial review judgment, I have held that in making the resolution of 12 April 2012 to instruct counsel to commence suspension proceedings, and in deciding to apply to the Court for access to the specified files, the Board was not exercising statutory powers of decision which are reviewable under the
9 Chea v Chan HC Auckland CIV-2008-404-2469, 3 April 2009.
10 ANZA Distributing New Zealand Ltd (in liq) v USG Interiors Pacific Ltd HC Auckland CIV- 2007-404-3474, 3 November 2008.
11 National Standards Committee (No 1) v Deliu [2012] NZHC 3378.
12 Ibid, at [31].
13 Ibid, at [35].
14 Ibid, at [40].
Judicature Amendment Act 1972.15 I also determined that Mr Deliu’s evidence and arguments fell well short of establishing any element of bad faith in the Board’s approach.16 Accordingly, I declined to set aside the Board’s resolution to instruct counsel and the decision to make this application.
[17] The access application by the Society falls to be determined on the basis that it has been brought for the purpose of assisting the Society in the proper exercise of its statutory functions.
Further reservation of judgment on application by National Standards Committee
[18] Until Katz J has delivered her judgment addressing the allegations of reviewable error on the part of the NSC, however, I am not in a position to approach the Committee’s application on the same basis. Accordingly, it will be necessary to reserve the application by the NSC for further submissions and consideration after Katz J has delivered her judgment in that review proceeding CIV-2012-404-6182.
Approach to access application by the New Zealand Law Society
[19] The Society’s position is that an application under r 3.13(2) is merely a matter of routine not in itself giving rise to matters which are likely to affect the substantive interests of counsel involved in any case to which the subject files are relevant. The Society does not dispute that there may be cases in which the granting of an application will affect a person substantively, such as where granting access to the file or a document will, by itself, disclose private or sensitive information, but it says this is not one.
[20] The fact that any document, court file, or part of the court record covered by the rule is in the Court’s keeping requires the Court to exercise control over it, but an application by a non-party to proceedings to inspect and copy information on court files is purely administrative and in most instances relatively routine.
15 Deliu v The Executive Board of the New Zealand Law Society above n 2 at [39]-[46].
16 Ibid, at [52] – [55].
[21] The rules relating to access to court files demonstrate the routine nature of the procedure. First, the application is initially to be made informally to the Registrar by letter. The rules require certain information to be provided to the Registrar, including reasons for the application; r 3.16 lists the matters to be taken into account before an application may be granted. But r 3.13 does not contemplate that a formal hearing will always or even usually be required before a decision on the application is made. Second, a Judge may direct a Registrar to deal with an application, suggesting that a hearing in the nature of a judicial process is not usually contemplated. Cases which may be considered to be out of the ordinary may be accommodated by a direction under r 3.13(4) that an interlocutory application or originating application should be made in respect of the application.
[22] For the purpose of deciding under r 3.13(5) that Mr Deliu ought to be notified of the application, the potential downstream consequences of the use to which information made available to the applicants might be put was an obviously relevant consideration.
The matters which must be considered
[23] For present purposes, the relevant provisions of r 3.16 are as follows:
3.16 Matters to be taken into account
In determining an application under rule 3.13 ... the Judge or Registrar must consider the nature of, and the reasons for, the application ... and take into account each of the following matters that is relevant to the application ... :
(a) the orderly and fair administration of justice:
(b) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:
(c) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:
(d) the freedom to seek, receive, and impart information:
...
(f) any other matter that the Judge or Registrar thinks just.
[24] In Schenker AG and Schenker (NZ) Ltd v Commerce Commission,17 the Court of Appeal dealt 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. The judgment affirmed the view taken by Asher J in Commerce Commission v Air New Zealand.18 Those were cases in which access was sought under r 3.9 during the hearing of a proceeding but the considerations in r 3.16 apply to such applications, as they do to the present application. The Court is required to undertake a balancing act, weighing the relevant matters listed in r 3.16 which include the interests of litigants.19 It is no longer necessary for an applicant to show “a genuine or proper
interest”,20 but the Court’s decision in any case will be informed by the reasons for
the application. Lack of a recognisable and legitimate interest in the subject matter of the file will be likely to weigh against the exercise of the Court’s discretion.21 The converse is also true.
[25] The specific matters listed in r 3.16 focus the Court’s attention on the content of the records sought. It is relevant to the substantive consideration of the application in this case that access is sought to a limited range of documents on the court file, said to be relevant to the conduct of counsel in the proceedings.
[26] In considering the assessment of the relevant r 3.16 factors to this case, I have been assisted by the judgment of Katz J in National Standards Committee (No 1) v Orlov.22 Mr Orlov was the other practitioner named in the initial informal letter to the Registrar in which Mr Deliu was named. Mr Orlov also opposed the application for access.
[27] Katz J granted the application subject to conditions concerning confidentiality and the privacy of the parties to the proceedings concerned. I am in general agreement with the approach taken by Katz J and can state my views on the application in this case succinctly.
17 Schenker AG and Schenker (NZ) Limited v Commerce Commission [2013] NZCA 114.
18 Commerce Commission v Air New Zealand [2012] NZHC 271, (2011) 9 NZBLC 103,318.
19 Chapman v P (2009) 20 PRNZ 330 at [31].
20 BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 20 PRNZ 311; and compare McCully v Whangamata Marina Society Inc [2007] 1 NZLR 185 (CA) which was decided under the former r 66(9).
21 Commerce Commission v Air New Zealand above, n 8 at [30].
22 National Standards Committee (No 1) v Orlov [2012] NZHC 2911.
The orderly and fair administration of justice
[28] The NZLS is a statutory body having among its functions under s 65 of the LCA the responsibility to control and regulate the practise of barristers.23 It is also bound to uphold the fundamental obligation of the legal profession to the administration of justice and related duties which lawyers owe as officers of the High Court.24 Under s 67(1) of the LCA, the Society has all such powers and authorities as are necessary or expedient for or conducive to the performance of its regulatory functions, including the institution of prosecutions against lawyers relating to the provision of legal services.25
[29] The disciplinary regime in Part 7 of the LCA is designed to promote the statutory objectives by providing a mechanism for complaints against lawyers to be addressed and for disciplinary charges to be heard and determined expeditiously.26
[30] Although it is reasonable to infer that the majority of disciplinary proceedings initiated by the Society will have their genesis in a complaint from a client, a member of the public or another lawyer, the Society’s supervisory powers and responsibilities enable it to act of its own motion in appropriate cases. In an affidavit filed in support of the access application, Ms Mary Ollivier, the General Manager, Regulatory of the Society says that the Society had noted the number and nature of complaints, inquiries and charges relating to Mr Deliu’s professional conduct. She says also that the Society observed that Judges of the High Court, other courts and tribunals have been critical of the professional conduct and performance of Mr Deliu.
[31] According to Ms Ollivier, the Society considers also that particular disciplinary proceedings which had already been instituted against Mr Deliu, or which the NSC resolved to take against him, did not represent a complete picture of Mr Deliu’s professional conduct and performance. Saying that it looked at a ‘wider picture’ of Mr Deliu’s conduct than was before the NSC, Ms Ollivier deposed that
23 Lawyers and Conveyancers Act 2006, s 65(a).
24 Ibid, ss 4(a) and 65(b).
25 Ibid, s 67(2)(e).
26 Ibid, s 120(3).
the Board of the Society concluded that there were good grounds for applying to the High Court for suspension of Mr Deliu from practice.
[32] I have read the judgments issued in the six specified proceedings referred to at [12] above and, as requested by Mr Deliu, examined the files held by the Court. The criticisms of the conduct and performance of Mr Deliu by the Courts in the cases specified, so far as they can be ascertained from the judgments, include comments about misconceived proceedings or applications to the Court, unfocused pleadings, inappropriate joinder of parties, failure to comply with directions of the Court, and unduly lengthy and irrelevant submissions. In considerable detail, Mr Deliu took me through the relevant judgments and the background to them. In this comprehensive review, Mr Deliu argued that on a proper analysis of the judgments, and in some cases of the views subsequently expressed either by the Judges concerned or by the Court of Appeal, the adverse comments can be seen to be misconceived or, at least, as having far less serious implications than could conceivably justify a conclusion that there may be good grounds to suspend Mr Deliu from practice. I set out a summary of Mr Deliu’s submissions to that effect in the judicial review judgment at [20] – [24].
[33] It is neither necessary nor appropriate for me to express any view on whether any of the apparent criticisms have substance. It is only upon an examination of the Court file that the validity of any criticism could be put in context and assessed. For the same reasons that no doubt prompted Mr Deliu to urge me to examine the files myself, the Society seeks access to them. Considerations of the orderly and fair administration of justice, therefore, weigh heavily in favour of granting access to the Society in this case. I note in that regard that the Court of Appeal dismissed
Mr Orlov’s appeal against the judgment of Katz J referred to at [26]27 for non-
payment of security for costs.28 In doing so, the Court expressed the views, obiter and without hearing full argument, that Katz J was justified in that case in holding that the Society is required to carry out investigations into the conduct of legal practitioners under the LCA, which is designed to maintain public confidence in the
27 Above, n 19.
28 Orlov v National Standards Committee (No 1) [2013] NZCA 338.
provision of legal services and to protect consumers of such services, and that the files in issue in that case may contain information relevant to such investigations.29
The protection of confidentiality, privacy interests and any privilege
[34] There is no evidence before the Court in respect of this application of any objection by any of the original parties to the proceedings specified to the granting of the access sought in this case. Given the nature of some of the proceedings, however, it is obvious that the subject matter of some is of a private and confidential nature. The names of some of the parties have been anonymised and orders made preventing publication of the names and identifying particulars of the individuals involved. I agree with Katz J’s comment in the Orlov case, however, that it is not the granting of access to the files which creates a risk of adverse consequences for the original party; it is the use to which any information obtained might be put that has the potential to compromise any privacy or confidentiality interests. The proceedings are at an end and no substantive rights of the parties can be affected by anything the Law Society might do with the information it obtains. Although it might be said that confidentiality and privacy issues in some of the cases concerned weigh against access to those files, any risk of encroachment on confidentiality or privacy rights can be mitigated by the imposition of conditions such as those attaching to the grant of access in Orlov. In taking this matter into account, it is relevant that the Society’s application is restricted to pleadings and other documents drafted by counsel in the proceedings, Court minutes, directions, rulings and judgments.
The principle of open justice
[35] The consideration in r 3.16(c) of “the principle of open justice, namely, encouraging fair and accurate report of, and comment on, court hearings and decisions” recognises that many applications for access to court files will be made by news media organisations. The principle of encouraging fair and accurate commenting on court decisions is apt nevertheless in the context of an inquiry into the validity of criticisms of counsel appearing on the face of a judgment of a court.
29 Ibid, at [16].
Just as a journalist should have access to a court file to ensure fairness and accuracy in reporting or commenting on a court decision, so too should the Law Society be permitted to make a fair and accurate assessment of the validity of any criticism by examining relevant material on the file to enable any critical comments to be put into context.
[36] I consider this factor weighs in favour of access.
The freedom to seek, receive and impart information
[37] This matter is important in considering an application by a regulatory body having statutory responsibilities for discipline among the members of a profession. Restricting the Society’s access to information would impede the exercise of functions which it is required to carry out in the public interest. This matter also weighs in favour of access being granted.
Any other matter
[38] There are no other relevant matters which the interests of justice require to be taken into account.
Decision
[39] After considering all relevant factors, I am satisfied there is no merit in Mr Deliu’s opposition to access by the Society. The orders I make will permit the Society to inspect any documents which may be privileged or confidential, or which raise privacy interests, for the purpose of determining their potential relevance but not to copy or use them in any proceeding without the leave of the Court.
[40] For the reasons given, I grant the application by the Society, in the following terms:
(a)The New Zealand Law Society is permitted to inspect the court files listed in the annexure to this judgment.
(b)Subject to order (c), the Society is permitted to copy all pleadings and other documents drafted by counsel in the proceeding, Court minutes, directions, rulings and judgments.
(c)Any documents coming within order (b) which are privileged, or which contain confidential information, or which raise privacy interests, shall not be copied by the Society without the leave of the Court. If the Society wishes to use any such copies as evidence in any proceedings under the Lawyers and Conveyancers Act 2006, the Society shall notify the Court and the respondent of the relevant documents and seek further directions as to how any privilege, confidentiality or privacy issues which arise in relation to such documents are to be addressed.
(d)Any copies made pursuant to these orders may be used only for the purposes of the Society’s investigations or inquiries regarding the respondent and any subsequent Court or disciplinary proceedings and, except as may be necessary for the purposes of any such proceedings, shall be kept confidential to those officers or members of the Society whose duties require them to be involved in the inspection or any subsequent proceedings, and their professional advisers.
(e)Leave is reserved to either party to seek further directions regarding the implementation of these orders, if the need arises.
[41] I reserve the application by the NSC for further submissions and consideration after Katz J has delivered her judgment in proceeding CIV-2012-404- 6182.
Costs
[42] Mr Deliu’s opposition to this application has failed and the Society would appear to be entitled to costs in accordance with r 14.2(a) of the High Court Rules. Any costs application by the Society shall be made by way of memorandum filed
and served not later than 25 October 2013. Any reply memorandum by Mr Deliu shall be filed and served by 29 November 2013. Unless otherwise directed, a decision as to costs shall then be made on the papers.
.................................................
Toogood J
ANNEXURE - COURT FILES TO WHICH THE ORDER FOR ACCESS APPLIES
(a)L v Chief Executive of the Ministry of Social Development
HC Auckland CIV-2007-404-7031.
(b)Berg v Franix Construction Limited HC Auckland CIV-2008-404- 3421.
(c)G v Chief Executive of the Ministry of Social Development
HC Auckland CIV-2008-404-3461.
(d)Chopra v Chief Executive of the Department of Labour HC Auckland CIV-2009-404-911.
(e)Chea v Chan HC Auckland CIV-2008-404-2469.
(f)ANZA Distributing New Zealand Ltd (In Liquidation) v USG Interiors Pacific Ltd HC Auckland CIV-2007-404-3474.
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