Francisc Catalin Deliu v The Auckland Standards Committee 1 and the National Standards Committee of the New Zealand Law Society

• Jurisdiction: New Zealand
• Judge: Woolford J
• Judgment Date: 15 October 2014
• Neutral Citation: [2014] NZHC 2530
• Year: 2014
• Docket Number: CIV-2014-404-001857
• Court: High Court
• Date: 15 October 2014

Between

Francisc Catalin Deliu

Appellant

and

The Auckland Standards Committee 1 and the National Standards Committee of the New Zealand Law Society

Respondents

[2014] NZHC 2530

CIV-2014-404-001857

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Appeal against the refusal of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (Tribunal) to debar the respondent's counsel from acting in disciplinary proceedings — respondent was taking disciplinary action against appellant — appellant filed proceedings against respondent under New Zealand Bill of Rights Act 1990 — alleged that at meetings with him, respondent's counsel had offered to withdraw one of the charges and reduce the penalty in respect of another if appellant withdrew his proceedings against respondent — appellant argued that proceedings were an abuse of process — appellant had also requested that Tribunal issue a witness summons to respondent's counsel — whether the meetings were covered s57 Evidence Act 2006, privilege for settlement negotiations or mediation) — whether the test for debarring counsel from acting required misconduct.

Held: In Clear Communications Ltd v Telecom Corporation of New Zealand Ltd the Court held that although the jurisdiction to debar counsel was not to be emasculated by setting the threshold so high that it could never be attained, there had to be something truly extraordinary before removal could be contemplated. It could be justified only in cases of “truly egregious misconduct likely to infect future proceedings”.

However the preferable approach was that taken by the Court of Appeal (CA) in Black v Taylor which stated the jurisdiction to debar was to be exercised with circumspection, but misconduct was not required before it could be exercised. Although in Accent Management Ltd v Commissioner of Inland Revenue the CA stated that the threshold for removal was a high one, requiring something extraordinary, this brief comment did not detract from the principles which were extensively considered by the same Court in Black v Taylor.

The issue was not whether any ethical rule had been breached, nor was the issue solely whether one of the parties had lost confidence in the process ( Everingham v Ontario). The issue was whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor.

P could not act as counsel for the respondents if the Tribunal issued a witness summons to him which was not set aside.

P would have some difficulty continuing to act as counsel for the respondents if he chose to ask any questions of D in cross-examination about the meetings they had. D might refer to other matters which arose at the meetings with P or in some further communication between the two of them.

Further, P would have to address the Tribunal on the merits of D's application, regardless of whether or not he cross-examined D about what was said at the meetings they had. In effect, P would be submitting to the Tribunal that he did nothing wrong and was acting ethically as counsel in trying to reach a settlement with the other party to the dispute. In those circumstances, it was hard to see how P could be seen as anything other than an advocate in his own cause. P would then be appearing in litigation where he had been personally involved in the matters which were being litigated ( Vector Gas Limited v Bay of Plenty Energy Ltd).

There might be an argument that s57 EA did not apply to disciplinary proceedings as they might not fall within the definition of “a dispute of a kind for which relief may be given in a civil proceeding”. It could be argued that disciplinary proceedings were more akin to criminal proceedings for the purposes of privilege. Settlement negotiations conducted in a criminal proceeding might not be privileged.

Even if s57 EA did apply to disciplinary proceedings, D would argue that the Tribunal had to disallow the claim of privilege by P because there was a prima facie case that P either communicated with him for a dishonest purpose or committed the crime of blackmail. Again, P would argue s57 EA granted him privilege as one of the participants in the meetings and there was no prima facie case that he was acting for a dishonest purpose or committing the crime of blackmail. P would therefore again appear to be an advocate in his own cause if he sought to rely on s57 EA.

While the meetings between P and D were unrelated to the substance of the allegations made by the respondents against D, the Tribunal would still have to determine D's application to stay or dismiss the charges as an abuse of process. It was open to the Tribunal to stay or dismiss the charges either on procedural or substantive grounds. A fair-minded reasonably informed member of the public would think that D should have the ability to have his application determined by an impartial Tribunal and an impartial process. That impartiality had to extend to counsel for respondents.

The Tribunal was wrong to dismiss D's application to debar P from acting as counsel for the respondents.

This decision was not to be seen as a reflection of on any finding of culpable conduct on P's part. Disqualification was not imposed as a punishment for misconduct. Rather, it was a protection for the parties and for the wider interests of justice which had to be seen to be done.

Appeal allowed.

Appearances:

Appellant in person

P J Morgan QC and O Morgan for Respondents

JUDGMENT OF Woolford J

Introduction

1 The appellant, Francisc Catalin Deliu, is a practising lawyer who faces a number of disciplinary charges in the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (Tribunal) laid by both the Auckland Standards Committee 1 and the National Standards Committee of the New Zealand Law Society (the respondents).

2 On 23 April 2014, Mr Deliu made an application to the Tribunal for an order debarring Mr W C Pyke from acting as the respondents' counsel in the disciplinary proceedings. On 19 June 2014, the Tribunal heard Mr Deliu's application. It reserved its decision. In a written decision dated 27 June 2014 the Tribunal dismissed Mr Deliu's application. Mr Deliu now appeals against the Tribunal's decision declining to debar Mr Pyke from acting as counsel.

Nature of appeal

3 The appeal is brought under s 253 of the Lawyers and Conveyancers Act 2006. Section 253 relevantly provides:

253 Appeal against order or decision of Disciplinary Tribunal

• (1) Any of the persons specified in subsection (2) may appeal to the High Court against any order or decision made under this Part by the Disciplinary Tribunal.

• …

• (3) Every appeal under subsection (1)—

  • (a) must be by way of rehearing; and

  • (b) must be made within such time and in such form as may be prescribed by rules of court; and

  • (c) must be heard in such manner as may be prescribed by rules of court.

• (4) On hearing an appeal under subsection (1), the High Court may confirm, reverse, or modify the order or decision appealed against.

4 An appeal under s 253 is a general appeal which requires the High Court to come to its own view on the merits. The weight the High Court gives to the decision of the Tribunal is a matter of judgment. If the High Court is of a different view from the Tribunal and is therefore of the opinion that the Tribunal's decision is wrong, it must act on its own view. As noted by Elias CJ in Austin, Nichols & Co Inc v Stichting Lodestar: 1

…the extent of the consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.

In this case, the Tribunal did not have any particular advantage, such as technical expertise or the opportunity to assess the credibility of witnesses where such assessment is important. Accordingly, no particular deference is required to the Tribunal's findings.

Decision of Tribunal

5 The Tribunal's decision is commendably short. It sets out the grounds of Mr Deliu's application, the grounds of opposition by the respondents, summarises the contents of an affidavit sworn by Mr Deliu and then reviews the submissions of both Mr Deliu and the respondents – all in 13 paragraphs. The substantive part of the Tribunal's decision is as follows:

[14] We find the arguments on behalf of the applicants [respondents in this appeal] are unassailable.

[15] Mr Deliu's assertion of bad conduct on Mr Pyke's part are properly for the complaints process of the Law Society. See Clear Communications v Telecom Corporation. 2

[16] Accordingly, we dismiss the respondent's [Mr Deliu's] application.

6 The respondents' arguments which were adopted by the Tribunal were summarised in the preceding three paragraphs as follows:

[11] Counsel for the applicants [respondents] submits that the respondent's [Mr Deliu's] application falls well below the threshold test in that:

• (a) He has failed to show that Mr Pyke lacked independence or is conflicted;

• (b) He has not made a prima facia case to show that Mr Pyke is a likely witness;

[12] As to (a), the submission is that the only evidence is from the excerpts set out in the respondent's [Mr Deliu's] affidavit. Counsel submits that those excerpts show that Mr Pyke was endeavouring to bring about a resolution by way of compromise and that he was acting reasonably. He put all of the litigation on the table, including the serial incompetence matters. The decision to...