Deliu v The Executive Board of the New Zealand Law Society

• Jurisdiction: New Zealand
• Judge: Toogood J
• Judgment Date: 25 September 2013
• Neutral Citation: [2013] NZHC 2504
• Docket Number: CIV-2012-404-004030 CIV-2012-404-004409
• Court: High Court
• Date: 25 September 2013

Between

Francis Catalin Deliu

Plaintiff

and

The Executive Board of the New Zealand Law Society

Defendant

[2013] NZHC 2504

CIV-2012-404-004030 CIV-2012-404-004409

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Applications for judicial review from decisions of the defendant (New Zealand Law Society) to appoint counsel to commence disciplinary proceedings against the plaintiff (lawyer) and its application under r3.13(2) High Court Rules (“HCR”) (permission to access documents) to inspect court files related to six court proceedings in which the plaintiff was involved either as counsel or in some other professional capacity — defendant was contemplating applying for an order under s268 LCA (inherent jurisdiction of High Court) suspending the plaintiff from practice — whether the defendant had made decisions which were reviewable under the Judicature Amendment Act 1972 — whether the defendant had erred in law by determining that it was appropriate to make an application under s268 LCA — whether the defendant had breached the principles of natural justice, was biased or had acted in bad faith.

Appearances:

FC Deliu in person

PJ Morgan QC for Defendant

JUDGMENT OF Toogood J

1 These proceedings are two related applications for judicial review by Mr Francisc Deliu, a barrister against whom the Board of the New Zealand Law Society (“the NZLS” or “the Society”) is contemplating beginning disciplinary proceedings by applying to the Court for an order under s 268 of the Lawyers and Conveyancers Act 2006 (“the LCA”) suspending him from practice. First, Mr Deliu seeks review of a resolution of the NZLS Board dated 12 April 2012 that counsel be instructed to commence proceedings against him as outlined in advice from counsel for the NZLS dated 30 March 2012. Second, he asks the Court to review a decision by the Board to apply to the Court under Part 3(2) of the High Court Rules to inspect court files related to six court proceedings in which Mr Deliu was involved either as counsel or in some other professional capacity.

2 This judgment should be read in conjunction with the contemporaneous judgment 1 delivered in a proceeding between the National Standards Committee (No. 1) of the NZLS (“the NSC”) and the NZLS Board as applicants, and the plaintiff as respondent, in which the applicants have applied for access to the Court documents. In this judgment I refer to that proceeding as “the access application” and to the judgment as “the access judgment”.

The issues and result

3 The issues identified by the parties for determination in this judgment are:

• (a) Whether the NZLS Board and/or the Society have made decisions which are reviewable under the Judicature Amendment Act 1972 (“the JAA”) in:

  • (i) resolving to instruct counsel to issue proceedings; and

  • (ii) resolving to seek access to the Court's files.

• (b) Whether any decision which is held to be reviewable ought to be set aside because:

  • (i) the Board has erred in law by determining that it was appropriate to make an application under s 268 of the LCA to suspend the plaintiff;

  • (ii) the Board acted disproportionately because such an application would have no prospect of success, and unreasonably because it was made without any admissible evidence to support it;

  • (iii) the Board took into account irrelevant considerations;

  • (iv) the Board failed to take into account relevant considerations;

  • (v) the Board abused its processes in reaching its decision;

  • (vi) the Board's decision was ultra vires or made under an invalid delegation;

  • (vii) the Board breached the principles of natural justice in making the decision;

  • (viii) the Board was biased or its decision was predetermined; or

  • (ix) the Board acted in bad faith or with an improper purpose.

4 For the reasons given below, I have decided that:

• (a) In making the resolution of 12 April 2012 to instruct counsel, 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 JAA.

• (b) Even if these steps were reviewable, relief would not have been granted due to the general reluctance of the Courts to interfere with the exercise of a discretion to prosecute, to which this present situation is analogous, and to the nature of the decisions as preliminary steps taken towards possible proceedings in this Court where Mr Deliu's fair trial interests would be protected.

• (c) There is no evidence that the Board acted in bad faith in making the resolution or deciding to seek access to the Court's files.

• (d) The applications shall be dismissed.

Background facts

5 Mr Deliu is a lawyer in practice as a barrister sole. He appears frequently before the courts and tribunals in New Zealand.

NZLS powers and functions

6 The NZLS is a statutory body having among its functions under s 65 of the LCA the responsibility to control and regulate the practice of barristers. 2 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. 3 For all relevant purposes in this proceeding, steps taken by or on behalf of the Society may be regarded as steps taken by or on behalf of the Board.

7 Under s 67(1) of the LCA, the Society has all such powers, rights 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. 4

8 Established under practice rules made pursuant to the LCA are several lawyers' standards committees, including the NSC. The NSC has statutory duties, independently of the Council and Board of the Society, to take disciplinary proceedings against lawyers. The Society has its own responsibilities for monitoring the performance of the Complaints Service and of the Lawyers' Standards Committees.

9 Pursuant to its statutory functions, the Society is empowered to exercise an inherent jurisdiction to strike off the Roll or otherwise discipline lawyers in their capacity as officers of the High Court. Further, s 268 of the LCA provides:

268 Inherent jurisdiction of High Court

• (1) Nothing in this Act (other than sections 266 and 267) affects the inherent jurisdiction and powers of the High Court over a person enrolled under or by virtue of this Act as a barrister and solicitor of the High Court (whether or not the person is practising as a barrister and solicitor, or as a barrister but not also as a solicitor).

• (2) Despite section 245, the High Court has, in the exercise of its summary jurisdiction, full power, on reasonable cause being shown, to suspend any from practice a person enrolled under or by virtue of this Act as a barrister and solicitor of the High Court (whether or not the person is practising as a barrister and solicitor, or as a barrister but not also as a solicitor).

10 Section 270 of the LCA says that except as provided in Part 7, nothing in that part of the Act limits the jurisdiction of the High Court.

11 It is unnecessary for the purposes of this judgment to provide an analysis of the disciplinary scheme under the LCA which was comprehensively reviewed by Heath J in Orlov v New Zealand Law Society 5 whose account, in that respect, was upheld by the Court of Appeal. 6 The decisions under scrutiny do not concern the statutory disciplinary procedures, except indirectly in the sense that Mr Deliu submits that the Court, in effect, should hold that the Society should be required to let the statutory processes follow their course and not act outside them by pursuing an application to the Court under s 268.

12 The Board does not dispute that it resolved to instruct counsel in relation to a proposal to apply to this Court to suspend Mr Deliu and that it decided, or counsel decided on its behalf, to apply to the Court for access to the Court files. But a threshold issue to be determined in this case is whether, in taking either of those steps, the Board exercised a judicial function or a reviewable power.

NZLS Board resolutions

13 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 also says 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. 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 deposes that the Board of the Society concluded that there were good grounds for applying to the High Court for suspension of Mr Deliu from practice.

14 The challenged decision of the Board to instruct counsel to commence proceedings is recorded in a resolution of the Board on 12 April 2012 which appears in the Board's Minutes in the following terms:

The Board carefully considered advice from Law Society counsel dated 30.3.12.

RESOLVED that counsel be instructed to commence separate proceedings against [Mr Deliu] as outlined in advice from Law Society counsel dated 30.3.12.

15 There is no evidence of any Board resolution or other formal decision to make an application for access to the Court's files, but Ms Ollivier says that the access application asks for...