Deliu v The National Standards Committee

JurisdictionNew Zealand
CourtHigh Court
JudgeThomas J
Judgment Date04 Nov 2014
Neutral Citation[2014] NZHC 2739
Docket NumberCIV-2014-404-1308

[2014] NZHC 2739

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2014-404-1308

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
Appearances:

Mr Deliu in person

W C Pyke for the respondent

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.

Held: The decisions Wellington Standards Committee v Hall and Auckland Standards Committee v Hylan relied on by D involved amendments which arguably made proof of the charges easier. However, neither case had considered that a bar to amendment. All that could be taken from the Hall and Hylan decisions was that each case must be considered in the context of its particular facts.

The proposed amended charges and the initial charges were not materially the same. However, it could not be suggested that in amending the charges the Committee has acted impartially, unfairly or for the purpose of “winning”. The Committee's duty under s154 LCA (reference of complaint or matter to Disciplinary Tribunal) was to lay an “appropriate” charge. In doing that, it had to bear in mind the purposes under s3 LCA (purposes), one of which was to maintain public confidence in the provision of legal services and conveyancing services.

The proposed amendment had not involved the making of fresh factual allegations. To the extent that the Tribunal allowed further evidence to be adduced, the evidence had changed but that in itself was not a reason to decline the application. Amendments could be granted even during hearings pursuant to reg 24 (Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008 (amendment of or addition to charge). There was no statutory provision circumscribing the Tribunal's power to permit an amendment of the charges before a hearing.

The main issue was a question of natural justice. The Committee had signalled its intention to amend the charges in December 2012. The delay had been occasioned by the need for D's earlier applications to the HC to be dealt with. Furthermore, D had not filed a response to the charges at the time of the application to amend them. Given those circumstances, there was no prejudice to D by reason of the delay in the charges being amended. The HC had previously held that in laying charges, the Committee was in no way constrained by any preliminary view it had expressed in its s152 LCA (power of Standards Committee to determine complaint or matter) determinations as to what charges were appropriate. The fact the amendments may make the charges easier to prove was not relevantly prejudicial. There was no reason why the Committee should be constrained by the charges it initially laid if it subsequently considered that different charges were appropriate.

There had not been any breach of natural justice, bad faith, material error in the application of the law, or exercise of the power in a way which could not rationally be regarded as coming within the statutory purpose. The application to amend the charges should have been granted.

Section 239 Evidence Act 2006 (“EA”) (evidence) provided that a Disciplinary Tribunal could receive as evidence any document whether or not it would be admissible in a court of law.

While the affidavits post-dated the offences, they were relevant to the charges. It was hard to see how they could be of prejudice to D. They were his affidavits and recorded his recollection of events and opinion.

Other decisions of Harrison J mentioning nationality up to the date of the conduct complained of in 2008 had to be relevant as they went to the issue the Tribunal had to determine and D relied on them in making his complaints. Judgments in proceedings the subject of D's complaints were also obviously relevant. The evidence was admissible pursuant to s239 LCA whereby the judgments could be accepted by the Tribunal as evidence. The issue was not a question admissibility of the documents rather the weight which should be attributed to them. That was a matter for the Tribunal.

Appeal was dismissed save that the judgments were restricted to those pre-dating the conduct the subject of the complaint.

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...

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