Deliu v The New Zealand Law Society

• Jurisdiction: New Zealand
• Judge: Wild J
• Judgment Date: 13 February 2015
• Neutral Citation: [2015] NZCA 12
• Docket Number: CA121/2014
• Court: Court of Appeal
• Date: 13 February 2015

Between

Francisc Catalin Deliu

Appellant

and

The New Zealand Law Society

Respondent

[2015] NZCA 12

Court:

Wild, White and Miller JJ

CA121/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against a decision to adjourn a judicial review (JR) application part-heard, pending the outcome of the disciplinary proceedings against the appellant under the Lawyers and Conveyancers Act 2006 — appellant was seeking review of the decisions by the National Standards Committee and Auckland Standards Committee to investigate and lay charges against him for alleged unprofessional comments and behaviour — charges were laid over six years earlier — High Court had adjourned the proceeding part heard following a Supreme Court decision in a parallel proceeding that the Court would not normally permit JR proceedings to be heard ahead of statutory (disciplinary) proceedings, other than in exceptional cases — whether the JR hearing should be adjourned pending the outcome of the disciplinary process.

Counsel:

Appellant in Person

P J Morgan QC for Respondent

A The appeal is dismissed.

B The discovery orders against the appellant confirmed by Katz J in her 13 February 2014 minute are set aside.

C The appellant is to pay the respondent's costs for a standard appeal on a band A basis with usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Wild J)

Introduction

1 These two appeals were, by consent, consolidated by order of White J on 26 March 2014. 1 Both appeals challenge decisions of Katz J in the High Court at Auckland in the course of managing and then part-hearing an application for judicial review brought by Mr Deliu.

2 The first appeal, filed on 4 July 2013, challenged a decision by Katz J on 6 June 2013 to reduce the hearing time allowed for the judicial review application from seven to five days.

3 The second appeal, filed on 12 March 2014, is against a decision of Katz J on 13 February 2014 to adjourn the judicial review application part-heard, pending the outcome of the disciplinary proceedings against Mr Deliu under the Lawyers and Conveyancers Act 2006 (the Act). 2

4 Although Mr Deliu makes the point that the first decision necessitated the second, it has effectively been overtaken by the second decision, to adjourn the proceeding part-heard. Our focus will thus be on that decision to adjourn.

5 For the reasons we will explain, we consider the decision to adjourn was correct. The High Court ought not to have embarked on hearing and determining Mr Deliu's judicial review application until the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) had decided the disciplinary charges Mr Deliu faces. It accordingly cannot have been wrong to adjourn the hearing of a proceeding which should not have begun in the first place.

Background

6 Three different complaints or groups of complaints had been made against Mr Deliu, who is a lawyer practising in Auckland. The first complaint, instigated by the Complaints Committee of its own volition in November 2008, alleged Mr Deliu

had acted unprofessionally in disrupting a meeting of the Auckland District Law Society's Complaints Committee No 2. The resulting charge was laid by the Auckland Standards Committee No 1 on 15 June 2010. The second complaints, made in December 2009 and July 2010, relate to allegedly unprofessional comments and behaviour directed against a Judge of the High Court. The resulting charges by the National Standards Committee were laid on 30 March 2012. The third set of complaints, made in October 2009, allege serial incompetence by Mr Deliu. No charges have been laid in respect of those complaints of incompetence

7 Mr Deliu filed his application for judicial review in the High Court at Auckland on 17 September 2010. His fifth amended statement of claim dated 21 December 2012 challenges, as unlawful, decisions of:

• (a) the Auckland Standards Committee No 1 to investigate and lay a charge of unsatisfactory conduct in respect of his alleged disruption of the meeting. Relief, in particular the quashing of those decisions, is sought on a number of grounds, including that the decisions are unreasonable, discriminatory and otherwise in bad faith; and

• (b) the National Standards Committee to lay charges against Mr Deliu in relation to his comments about the Judge and also the Chief High Court Judge, also on a number of grounds, including that the decisions abused processes, were biased, discriminatory or otherwise in bad faith and were contrary to the human right of freedom of expression and the civil right to complain about state matters.

8 In a directions minute on 6 September 2012, Courtney J directed a fixture of eight days for the hearing of Mr Deliu's judicial review application and of a separate application by Mr Deliu seeking judicial review of the decision of the Legal Complaints Review Officer (LCRO) reviewing decisions of the Standards Committee (seven days for the first judicial review; one day for the LCRO proceeding). The Judge noted: “the expectation that evidence will be taken in this case, either from subpoenaed witnesses or by cross-examination of deponents”. 3

9 Following a two day issues conference and interlocutory hearing in April 2013, the trial Judge, Katz J, in a minute dated 3 May 2013, directed the Court to fix a seven day hearing. 4 Subsequently, after comprehensively reviewing the file in the course of determining the interlocutory applications, Katz J directed the Registry to allocate a five day fixture.

10 Mr Deliu responded to the fixture notice issued by the Court by applying to Katz J that she recuse herself from hearing his substantive judicial review application, on the ground of actual or apparent bias. In the judgment she delivered on 26 July 2013, Katz J refused to do that. 5

11 It is apparent from Katz J's recusal judgment that she directed a five day fixture having dealt with applications for discovery, admission of facts, further particulars and interrogatories over two days. She recorded: 6

In addition to affidavits relating to specific interlocutory issues, Mr Deliu relied at the interlocutory hearing on evidence he had filed in support of his substantive claims, including his affidavit of 15 November 2012, which annexes 4961 pages of exhibits, comprising 13 volumes.

She also recorded that she considered five days “would be a more realistic estimate” of the time it would take to hear the application. 7

12 The hearing of the two proceedings began on 9 September 2013 but had not finished after the allocated five days, and was adjourned part-heard on 13 September.

13 In her subsequent minute of 13 February 2014 further adjourning the

proceedings pending outcome of the disciplinary proceedings against Mr Deliu, Katz J noted: 8

[6] Ultimately the substantive hearing could not be concluded in five days, primarily due to the length of Mr Deliu's submissions (179 pages), which were served on the eve of the hearing.

14 The Judge then recorded her attempts to find a further three days to complete the hearing. Mr Morgan QC was readily available, but Mr Deliu advised the Court “that he would not be available until March 2014, at the earliest”. 9

15 Next Katz J referred to a minute she had issued on 15 November 2013, noting that a delay of at least six months in completing the hearing was not satisfactory. 10 In that minute the Judge had also noted the Supreme Court, in the interim, had declined leave to appeal to Mr Orlov, 11 in what the Judge termed “parallel proceedings”. She cited these two passages from that leave judgment: 12

[6] Procedural issues concerning the respondent Committees' decisions that complaints should be considered by Disciplinary Tribunal could of course have been raised before the Disciplinary Tribunal, and thereafter if necessary on an appeal to the High Court by way of rehearing and a further appeal to the Court of Appeal, with leave, on a question of law. 13 In such a case the High Court would generally consolidate any concurrent judicial review proceedings in respect to the Tribunal's decision with an appeal brought against it. The Court would not normally permit judicial review proceedings to be heard ahead of the statutory proceedings, other than in exceptional cases. 14 The Court of Appeal has also observed that, since the applicant's proceedings were issued, it has become settled that there is a right of review to the Legal Complaints Review Officer of Standards Committees' decisions made under s 152(2)(a). 15

[7] In this case the High Court and Court of Appeal heard and determined the judicial review proceeding in advance of the hearing. That does not mean it is in the interests of justice that we hear a second appeal. There is no settled basis of fact on which this Court could decide whether the way the Committees proceeded, and laid charges, was lawful and fair. The statutory process would probably provide helpful factual context and

facilitate the Court's determination of the issue. Importantly, in our view, there is no prejudice to the applicant in requiring him to go through the disciplinary hearing process before seeking to raise his objections to the respondents' process on an application for leave to appeal in this Court. It is a straightforward application of the statutory procedure.

16 Katz J recorded the responses from the parties to her invitation to file memoranda as to the appropriate course in the light of those observations by the Supreme Court and the difficulty in finding a date to complete the hearing. Mr Deliu had opposed adjournment of the proceeding; Mr Morgan for the Law Society submitted it was the correct course.

17 After reviewing relevant authorities, the Judge directed: 16

[The two proceedings] are adjourned pending the outcome of the disciplinary proceedings against Mr Deliu under [the Act].

Mr Deliu's submissions

18 Mr Deliu...