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

• Jurisdiction: New Zealand
• Judge: White J
• Judgment Date: 28 August 2015
• Neutral Citation: [2015] NZCA 399
• Docket Number: CA95/2015
• Court: Court of Appeal
• Date: 28 August 2015

Between

Francisc Catalin Deliu

Applicant

and

The National Standards Committee of the New Zealand Law Society

Respondent

[2015] NZCA 399

Court:

Wild, White and Miller JJ

CA95/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

Application for leave to appeal the dismissal of the applicant's appeal against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal — the Tribunal had granted the respondent Standards Committee leave to amend charges against the appellant and to adduce evidence — the charges alleged that the appellant had “deliberately or recklessly” made “false, intemperate and scandalous” allegations against two Judges — the Tribunal had allowed the charges to be replaced with allegations that the allegations against the Judges “either were false or were made without sufficient foundation” — the Committee sought to adduce affidavits sworn by the appellant and judgments of the High Court — whether the judgments could be used as evidence — what was the test for the consideration of the amendment of charges — whether the fact that an amendment to a charge made it easier to prove that charge was relevantly prejudicial.

Counsel:

Applicant in Person

P J Morgan QC for Respondent

A The application for leave to appeal is declined.

B The applicant must pay the respondent's costs for a standard application on a band B basis and usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by White J)

Introduction

1 The applicant, Mr Deliu, seeks leave to appeal against the decision of Thomas J in the High Court at Auckland 1 dismissing his appeal against the decision

of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) granting the respondent, the National Standards Committee of the New Zealand Law Society (the Committee), leave to amend 12 misconduct charges against him and to adduce in evidence certain affidavits, Court judgments and sentencing decisions. 2

2 As Mr Deliu's appeal to the High Court was under s 253(1) of the Lawyers and Conveyancers Act 2006 (the Act), he may, by virtue of s 254(1) of the Act, appeal to this Court only on a question of law and only with leave from the High Court or this Court. Mr Deliu sought leave to appeal from the High Court, but it was declined by Thomas J. 3 As permitted by s 254(1), he now seeks leave from this Court.

3 In determining whether to grant leave, this Court must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for its decision. 4

Background

4 The 12 misconduct charges against Mr Deliu, six of which are in the alternative, relate to allegations he made in 2008, 2009 and 2010 against two named Judges of the High Court. The allegations are contained in letters and emails sent to the Judicial Conduct Commissioner and the Chief High Court Judge and in an originating application to the High Court and a notice of application for special leave to appeal to the Supreme Court.

5 Each of the original charges alleged that Mr Deliu had “deliberately or recklessly” made “false, intemperate and scandalous” allegations against the respective Judges. The Tribunal granted the Committee's application to amend all of the charges by replacing these allegations with allegations that Mr Deliu's

allegations against the Judges “either were false or were made without sufficient foundation”. 5

6 The evidence the Committee sought to adduce comprises:

• (a) two affidavits sworn by Mr Deliu on 9 September 2008 and 19 August 2013, the first filed in support of an application that one of the High Court Judges should recuse himself from proceedings in which Mr Deliu was appearing and the second in respect of Mr Orlov's charges before the Tribunal stemming from statements he had made about the same Judge; and

• (b) judgments and sentencing notes of one of the High Court Judges referred to in Mr Deliu's letters to the Judicial Conduct Commissioner (the JCC) and the Chief High Court Judge.

7 The judgments and sentencing notes may be grouped as follows:

• (a) cases referred to in Mr Deliu's letter to the JCC dated 23 July 2008;

• (b) cases referred to in Mr Deliu's letter to the JCC dated 13 August 2008 and his letter to the Chief High Court Judge date 5 August 2008;

• (c) a sentencing decision referred to in Mr Deliu's letter to the JCC dated 18 September 2009;

• (d) other decisions of the Judge mentioning nationality; and

• (e) judgments in proceedings the subject of Mr Deliu's complaints.

8 The Tribunal granted the Committee's application to adduce all of this

evidence. 6 Mr Deliu now challenges, however, only the admissibility of the decisions and judgments referred to in [7](d) and (e)

9 The Tribunal is scheduled to hear the charges against Mr Deliu on 30 September 2015.

The Tribunal decision

10 The Tribunal's reasons for granting the Committee's application to amend the charges were:

[17] It is not necessary to discuss in any further detail the submissions for and against the application for amendment of the charges. The Tribunal finds that the evidence in respect of the proposed amended charges is substantially the same as already submitted and that the Respondent [Mr Deliu] has long had notice of that. There is no surprise for him now.

[18] The Tribunal finds that there is no prejudice to the Respondent in allowing the amendments of the charges and the essence and particulars of the charges has remained from the outset.

11 The Tribunal's reasons for granting the Committee's application to adduce the evidence were:

[19] The Tribunal next considers the application for leave to file additional evidence. There are two aspects to that application. The Applicant [the Committee] seeks leave to introduce into evidence two affidavits sworn by the Respondent on 9th September 2008 and 19th August 2013. The Applicant asserts that the Respondent made affirmations in each of the affidavits about the same subject matter as in the charges he now faces. They are thus relevant and material to the proceedings before the Tribunal.

…

[21] The Applicant says that the judgments and sentencing decisions relied on by the Respondent to support the various complaints made by him were not provided to the Complaints Service during the inquiries. They are public records and are plainly admissible under s 239 … The submission is that because the judgments and decisions have been offered by the Respondent as justification for his complaints about the judges, it is not open to him to oppose the reading of them for the same purpose. It is fair to have them before the Tribunal and so that the Tribunal may evaluate the Respondent's conduct against the relevant Rules and misconduct provisions of the Act.

[22] The Respondent has not advanced reasons against the filing of the affirmations and record of judgments other than to say that it will unduly cause him to address voluminous evidence which will needlessly lengthen the proceedings.

[23] The Tribunal is satisfied that the affidavits of the Respondent referred to in paragraph 20 of this decision are 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.

The High Court decision

12 Thomas J rejected all of Mr Deliu's grounds of appeal against the Tribunal's decision. She considered:

• (a) all that could be taken from previous Tribunal decisions in relation to amendments of charges was that each case must be considered in the context of its particular facts; 7

• (b) the Tribunal did not err in deciding that the proposed amended charges and initial charges were materially the same; 8

• (c) the fact that the evidence had changed was not of itself a reason for declining the application; 9

• (d) the Tribunal was not wrong to allow the amendment of the charges; 10 and

• (e) the Tribunal did not err in ruling that the judgments/decisions and affidavits were relevant. 11

13 In deciding that the Tribunal was not wrong to allow the amendment of the charges, Thomas J noted the responsibility on the Committee under s 154 of the Act to lay an “appropriate” charge, 12 the power of the Tribunal under reg 24 of the

Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008 to amend charges during hearings, 13 and the absence of any statutory provisions circumscribing the Tribunal's power to permit an amendment of the charges before a hearing. 14 She considered the main issue was “a question of natural justice”. 15

14 The Judge's concluding reasons for upholding the Tribunal's decision in respect of the amendment of the charges were:

[71] The application stated that Mr Deliu had a duty to ensure he had sufficient foundation for making the allegations he did and that was the basis on which the Committee sought to amend the charge. The question before the Tribunal will still be whether the words spoken by Mr Deliu when making his allegations against the Judges amount to misconduct. There are no fresh factual allegations.

[72] As mentioned above, the Committee's duty under s 154 is to lay an “appropriate” charge. In doing that, it must bear in mind the purposes of the Act, one of which is to “maintain public confidence in the provision of legal services and conveyancing services.” This Court has previously held that in laying charges, the Committee is in no way constrained by any preliminary view it has expressed in its s 152 determinations as to what charges are appropriate. I agree that the fact the amendments may make the charges easier to prove is not relevantly prejudicial. In this case, I see no reason why it should be constrained by the charges it initially laid if it subsequently considers that different charges are...