Deliu v The National Standards Committee

• Jurisdiction: New Zealand
• Judge: Thomas J
• Judgment Date: 04 November 2014
• Neutral Citation: [2014] NZHC 2739
• Docket Number: CIV-2014-404-1308
• Court: High Court
• Date: 04 November 2014

Under The Lawyers and Conveyancers Act 2006

In the Matter of s 253 Appeal

Between

Francisc Catalin Deliu

Appellant

and

The National Standards Committee

Respondent

[2014] NZHC 2739

CIV-2014-404-1308

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Appeal against a decision of the Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”) which allowed the respondent to amend its charges against the appellant lawyer — the respondent had laid 12 misconduct charges against the appellant — respondent had been allowed to amend its charges from “misconduct… by virtue of deliberately or recklessly making false, allegations” to “misconduct… by virtue of making allegations… that either were false or were made without sufficient foundation” — whether the Tribunal had failed to apply its own recent decisions on amendments of charges — whether the Tribunal had erred in fact in deciding that the proposed amended charges and initial charges were materially the same — whether the judgments that were the subjects of the complaints were evidence and admissible in lawyers' disciplinary proceedings.

Appearances:

Mr Deliu in person

W C Pyke for the respondent

JUDGMENT OF Thomas J

Introduction

1 The National Standards Committee of the New Zealand Law Society (the Committee) has laid 12 misconduct charges against Mr Deliu, a lawyer based in Auckland. The charges allege that Mr Deliu committed misconduct by deliberately or recklessly making false, intemperate and scandalous allegations against named Justices of the High Court. The Committee sought leave from the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) to amend the charges. Mr Deliu opposed the application but the Tribunal granted it. Mr Deliu has appealed that decision.

2 The 12 charges include six alternative charges. The first two alternative charges relate to conduct in July 2008 and are laid under s 112(1)(a) and (b) of the Law Practitioners Act 1982 respectively:

(1) Subject to this Part of this Act, if after inquiring into any charge against a practitioner the New Zealand Disciplinary Tribunal—

• (a) Is of the opinion that the practitioner has been guilty of misconduct in his professional capacity; or

• (b) Is of the opinion that the practitioner has been guilty of conduct unbecoming a barrister or a solicitor…

3 The remaining charges relate to conduct after 1 August 2008 and are laid under s 7(1)(b)(ii) of the Lawyers and Conveyancers Act 2006 (the Act) which repealed the Law Practitioners Act 1982. Each charge is alternatively laid under s 7(1)(a)(i) and 7(1)(b)(ii):

7 Misconduct defined in relation to lawyer and incorporated law firm

(1) In this Act, misconduct, in relation to a lawyer or an incorporated law firm,—

• (a) means conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct—

  (i) that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable; or

• …

• (b) includes—

  • …

  • (ii) conduct of the lawyer or incorporated law firm which is unconnected with the provision of regulated services by the lawyer or incorporated law firm but which would justify a finding that the lawyer or incorporated law firm is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer or an incorporated law firm.

Proposed amendments

4 The Committee had signalled its intention to amend the charges by memorandum on 3 December 2012. However it had to wait until Mr Deliu's challenges were heard and delivered. 1 The Committee filed its application to amend the charges on 24 January 2014. The Tribunal hearing date was 1 May 2014.

5 The Committee sought to amend the charges from:

• (1) misconduct… by virtue of deliberately or recklessly making false, intemperate and scandalous allegations…

  to

• (2) misconduct… by virtue of making allegations… that either were false or were made without sufficient foundation…

6 The amendments were sought on the grounds that the amendments to the charges were:

By way of a clarifying amendment and to conform to presently available proof, and fairly puts the lawyer charged on notice of the allegations he has to answer.

7 The Committee submitted that the Tribunal could allow the amendments as part of its control over processes under s 252 of the Act:

252 Power of Disciplinary Tribunal to determine procedure

Except as provided by this Act or by rules made under this Act, the Disciplinary Tribunal may determine its own procedure.

8 The Committee also sought to delete some of the particulars on the ground that the statements were evidential only and were no longer relied on as particulars of the charge.

Proposed additional evidence

9 The Committee sought leave:

• (a) to adduce two affidavits sworn by Mr Deliu on 9 September 2008 and 19 August 2013; and

• (b) to file and serve copies of cases referred to in Mr Deliu's letters to the Judicial Conduct Commissioner (JCC) and the Chief High Court Judge, decisions in which Harrison J mentions nationality and judgments in proceedings the subject of Mr Deliu's complaints.

Tribunal's decision

10 The Tribunal held that the evidence in respect of the proposed amended changes was substantially the same as already submitted and that Mr Deliu had long had notice of that. 2 There was no prejudice to Mr Deliu in allowing the amendments and the essence and particulars had remained from the outset. 3

11 With regard to the additional evidence, the Tribunal was satisfied that the affidavits of Mr Deliu were relevant and admissible and should be admitted into evidence. Likewise, “the judgments and sentencing decisions reach the test of admissibility as public records and relevance to the proceedings and are to be admitted into evidence”. 4

12 Mr Deliu appealed the decision on the following five grounds:

• (a) The Tribunal failed to apply any law or alternatively failed to correctly apply two of its own recent decisions.

• (b) The Tribunal erred in fact in deciding that the proposed amended charges and initial charges were materially the same.

• (c) The Tribunal misguided itself by focusing on whether the evidence was substantially the same.

• (d) The Tribunal failed properly to take into account Mr Deliu's submissions or otherwise failed to give reasons why his submissions (in particular those relating to the reverse onus) were not preferred.

• (e) The Tribunal erred in law in ruling that the judgments/decisions and affidavits were relevant.

Approach on appeal

13 On a general appeal, the appellate court has the responsibility of considering the merits of the case afresh. 5 In Austin, Nichols & Co Inc v Stichting Lodestar, Elias CJ stated that the appellate court must reach its own opinion “even where that opinion is an assessment of fact and degree and entails a value judgment”. 6 She continued: 7

If the appellate Court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

14 This does not mean that the appellate Judge should be “uninfluenced” by the lower court. 8 What influence the lower court's reasoning should have is for the High Court's assessment. As Elias CJ stated in Austin, Nichols: 9

The High Court Judge was obliged to reconsider the issue. He was entitled to use the reasons of the Assistant Commissioner to assist him in reaching his own conclusion, but the weight he placed on them was a matter for him.

15 Mr Pyke, appearing for the Committee, pointed out that the Act does not envisage wide-ranging interlocutory hearings prior to the substantive hearing, as the focus is on getting disciplinary proceedings to a hearing quickly and efficiently. 10 He noted that there is some doubt as to whether these matters should be dealt with by way of an interlocutory appeal but the Committee was not pursuing the point at this stage and therefore I take it no further.

Did the Tribunal fail to apply its own recent decisions?

16 Mr Deliu submitted that the Tribunal applied no legal test when considering the amendment of the charges. The cases of Wellington Standards Committee v Hall and Auckland Standards Committee v Hylan should have been applied. 11

17 The Hall decision involved an amendment opposed by the practitioner on the ground that, inter alia, the amendment lowered the relevant negligence threshold. The Tribunal considered that the amendment made no such difference. It considered the amendment was of a de minimis nature being a minor technical correction and the charge largely remained as it was following amendment, referring to the same rules of professional conduct said to have been breached. The Tribunal decided that there was no change to the nature of the conduct charged, including its test for seriousness, and no change to the particulars relied on in respect of the conduct alleged. It allowed the amendment.

18 The focus of the Hylan decision, which involved a number of amendments, was whether the scope of the charges was enlarged; whether there was any element to the amendments requiring a different approach in the defence; and whether there was anything prejudicial or unfair in the amendments. The Tribunal allowed an amendment to the particulars relating to a misconduct charge, considering there was nothing prejudicial or unfair in the amendment and the changes were largely

inconsequential. Although the particulars were...