Deliu v New Zealand Law Society [2012] NZCA 359 (9 August 2012)

Last Updated: 16 August 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA796/2011 [2012] NZCA 359

BETWEEN FRANCISC CATALIN DELIU Appellant

AND THE NEW ZEALAND LAW SOCIETY Respondent

Hearing: 26 July 2012

Court: Glazebrook, Rodney Hansen and Simon France JJ

Counsel: Appellant in person P J Morgan QC for Respondent

Judgment: 9 August 2012 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

2. The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.
   

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

[1] Mr Deliu has filed a claim in the High Court against the New Zealand Law Society (NZLS). In his statement of claim, he pleads eleven causes of action. Four are applications for judicial review of decisions made by the NZLS. In the other seven causes of action, Mr Deliu seeks awards of damages and other relief for acts or omissions alleged against the NZLS.
[2] The NZLS applied for, and Peters J granted,[1] an order that the four judicial review issues be tried separately from the other causes of action, pursuant to r 10.4 of the High Court Rules.
[3] Mr Deliu appeals against that decision on the following grounds:

(a) Peters J had no evidence before her to make her findings;

(b) Peters J failed to apply the “balance of convenience test” set out in r 10.4;

(c) Peters J failed to “properly fetter her discretion whereby in certain conditions civil trials and judicial review applications will not be severed as a matter of law”;

(d) Peters J failed to “apply the presumption of one trial and instead went astray into a balancing exercise which was an error of law”; and

(e) Peters J failed to take into account Mr Deliu’s submissions that his natural justice rights of cross-examination and discovery required there to be one trial.

Alleged lack of evidence

[4] Mr Deliu complains that the following passage in Peters J’s judgment was made without any evidence and, indeed, that it was contrary to the limited evidence before her:

[27] In addition, the [NZLS] has delayed the conduct of the investigations of [Mr Deliu] referred to in [13] and [14] above, pending determination of the applications for review. The sooner the applications for review are determined, the sooner those investigations may be completed. At present, there is no legal impediment to the [NZLS] continuing the process of investigation. Nevertheless, naturally the [NZLS] would have some reluctance to do so whilst the applications for review are extant. I also note that [Mr Deliu] states in his notice of opposition to the [NZLS]’s application that he will seek an adjournment, interim relief, injunctive or other relief if the [NZLS] seeks to continue those investigations.

[5] We accept that it does not appear that the judicial review proceedings have to date been responsible for any delays in investigation or prosecution. The Judge’s comment in the first sentence of [27] about the NZLS delaying investigations is therefore not correct.
[6] However, the error is of no moment. The real issue is the potential delay that may be caused if the judicial review proceedings are not tried separately. Peters J noted, at [26], that “there is no prospect whatsoever of all causes of action being brought to trial promptly”.
[7] As Peters J noted, Mr Deliu has stated that he will seek an adjournment, or interim or injunctive relief should the investigations continue before the judicial review proceedings are determined. There is thus a real prospect of delay in the disciplinary proceeding if Mr Deliu succeeds in any application for adjournment or other relief he may seek. This potential delay was a legitimate factor for Peters J to take into account.

Balance of convenience

[8] The next three grounds[2] are really one ground. Mr Deliu’s complaint is that, once there is commonality of parties, the period covered by the causes of action and significant factual overlap, there should be one trial. In his submission, Peters J should not have merely balanced the various factors set out in Turners & Growers Ltd v Zespri Group Ltd (Zespri).[3]
[9] It would normally be the case that, once there is a convergence of the matters relied on by Mr Deliu, a consideration of the factors set out in Zespri would lead to there being one trial of all causes of action.
[10] Where judicial review is involved, however, the situation may be different. There is a public interest in the expeditious determination of judicial review proceedings.[4] There is also (as the NZLS points out) a public interest in the expeditious disposition of disciplinary proceedings against lawyers.[5]
[11] We accept the NZLS’ submission that a prior separate hearing of the judicial review applications will be most likely to achieve an expeditious hearing, both of the judicial review and the disciplinary proceedings. It was legitimate therefore for Peters J to put emphasis on possible delay in the balancing exercise that she conducted.
[12] We also note that there is nothing in Peters J’s judgment to prevent the civil causes of action from being readied for a hearing (although the judicial review proceedings would, in terms of her judgment, need to be heard first).

Natural justice

[13] We do not accept Mr Deliu’s submission that he risks being deprived of rights to discovery and cross-examination by the split trial. Mr Deliu does not lose any rights to discovery and cross-examination that would be available in judicial review proceedings.
[14] His complaint is rather that there may be additional cross-examination and discovery rights available in the civil proceedings. His concern therefore is that, if the judicial review proceedings are tried separately, he will not have the benefit of those additional rights.
[15] We do not consider that an inability to access additional cross-examination and discovery rights that would not normally be available in judicial review proceedings can amount to a denial of natural justice rights.
[16] If something extra comes out of cross-examination and/or discovery in the course of the civil proceedings, it may be that any findings made in the course of the judicial review proceedings could be revisited for the purpose of the civil proceedings,[6] without being met with arguments relating to res judicata or issue estoppel. This is because the findings in the judicial review proceedings would have been made in a different, more limited, context and the split trial was at the instigation of the NZLS.

Result

[17] The appeal is dismissed.
[18] The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Glaister Ennor, Auckland for Respondent

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[1] Deliu v The New Zealand Law Society HC Auckland CIV-2010-404-6182, 4 November 2011.

[2] Set out at [3](b)–(d) above.

[3] Turners & Growers Ltd v Zespri Group Ltd HC Auckland CIV-2009-404-4392, 5 May 2010 at [11].

[4] Consistent with s 10(1) of the Judicature Amendment Act 1972.

[5] Consistent with s 120(3) of the Lawyers and Conveyancers Act 2006. See also the objects set out at s 3(1)(a)–(b) and (2)(b) of that Act.
[6] Any findings in the judicial review proceedings would of course stand.