The National Standards Committee (no 1) v Deliu [2012] NZHC 3378 (13 December 2012)

Last Updated: 19 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-3785 [2012] NZHC 3378

BETWEEN THE NATIONAL STANDARDS COMMITTEE (NO 1) & ANOR Applicant

AND FRANCISC CATALIN DELIU Respondent

Hearing: 8 November 2012

Further Submissions: 23, 28 and 29 November 2012, 5 and 6

December 2012

Appearances: W Pyke for Applicant

Respondent in person

Judgment: 13 December 2012

_{JUDGMENT OF TOOGOOD J}

This judgment was delivered by me on 13 December 2012 at 4:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

C Grice, New Zealand Law Society, Wellington: [e-mail]

Copy:

WC Pyke, Hamilton: [e-mail]

FC Deliu, Auckland: [e-mail]

THE NATIONAL STANDARDS COMMITTEE (NO 1) & ANOR V DELIU HC AK CIV-2012-404-3785 [13

December 2012]

Introduction

[1] The applicants have initiated disciplinary proceedings against the respondent, Mr Deliu. On 13 April 2012, the General Manager Regulatory of the New Zealand Law Society made an informal application to the Registrar of the High Court, Auckland for access to certain court files.[1] The application was made in respect of

12 identified proceedings issued in the Auckland registry.

[2] The application was referred to Peters J who directed that the request should be made by originating application.[2] The Judge also directed that the Law Society serve a copy of its letter of 13 April 2012, the Minute, and the originating application, on the two lawyers referred to (but not identified) in the opening paragraph of the letter, of whom the respondent was one. It appears to be common ground that Mr Deliu was involved as counsel in some of the cases listed.

[3] An originating application for access to Court documents was filed by the applicants on 3 July 2012.

[4] The application was made on the grounds that:

(a) It will enable the orderly and fair administration of justice in proceedings brought under Part 7 of the Lawyers and Conveyancers Act 2006 (“the Act”).

(b) It will ensure that evidence that is relevant and material to proceedings under Part 7 of the Act is fairly and fully adduced in those proceedings.

(c) No documents relating to the confidentiality or privilege of any party or person will be inspected or copied.

[5] Although it is not directly relevant to the issues to be determined in this interlocutory judgment, the inspection and copying sought is restricted to pleadings and other documents drafted by counsel in the proceedings (including the lawyers in question), Court minutes, directions, rulings and judgments. This indicates a focus on the role played by counsel in the proceedings, rather than on the substance of the proceedings and any evidence adduced.

[6] Mr Deliu opposes the application.

[7] This judgment concerns preliminary issues raised by Mr Deliu in relation to the application for access; namely, discovery; the admissibility of certain evidence; the cross-examination of a witness; and the representation of the applicants by their counsel, Mr Pyke.

Procedural background

[8] The originating application was called before Kós J on 26 July 2012. Mr Deliu was directed to file and serve any application to strike out the originating application or any notice of opposition to it by 30 July 2012. On that date, Mr Deliu filed interlocutory applications seeking consolidation or a joint hearing with another similar application against another practitioner; a request for the applicants to “provide full discovery”; and order striking out, dismissing, staying or otherwise denying without a substantive fixture the originating application. The application signalled the possibility of other interlocutory applications.

[9] Following a case management conference on 2 August 2012, Priestley J issued a Minute in which he recorded counsel for the applicants’ anxieties about what the Judge described as “a simple application being stuck in a procedural bog.” On that basis Mr Deliu’s 20 July application was treated both as a notice of opposition and an application to strike out.

[10] Significantly, Priestley J said:

[9] I sound a warning to the parties that this Court will be disinclined to allow the simple application to which I have referred to become derailed by complex or contrived discovery issues which can only have marginal

relevance. The procedural background is clear. The applicants wish to take disciplinary proceedings against Mr Deliu which may possibly include the somewhat rare application to this Court to suspend the practitioner. Mr Deliu, for his part, is of the view that this action has been hanging over his head for a number of years and that he has been prejudiced thereby. It is as plain as a pike staff to me, however, that if the gravamen of the applicants’ case involves Mr Deliu’s competence as litigation counsel, then the interests of natural justice and the legitimate requirements of both parties need to have relevant parts of the Court files before the disciplinary body.

[11] A one-day fixture for the hearing of the application was allocated for

8 November 2012. Following a further case management hearing on

24 October 2012, Woodhouse J confirmed that it was the applicants’ application under r 3.13 that was to be dealt with on 8 November 2012. He noted that, although it may not have been to Mr Deliu’s satisfaction, Priestley J had addressed the discovery issues raised. Ancillary issues raised by Mr Deliu were reserved for consideration at the substantive hearing.

[12] On 31 October 2012, Venning J issued a Minute referring to an application by Mr Deliu for further and better discovery and other orders and noting that Mr Deliu objected to notice given by the applicants pursuant to s 130 of the Evidence Act 2006 for six judgments of the Court to be produced in evidence without a witness being called.

[13] The application for further discovery and the issue related to the s 130 notice were adjourned to the 8 November 2012 hearing. Venning J made observations in respect of a point raised by the applicants as to the form of affidavits which Mr Deliu sought to have read at the substantive hearing.

[14] On Monday 5 November 2012, at 10:00 am, Mr Deliu filed what he described as “interlocutory submissions” in support of his application to seek discovery, file further evidence, and oppose the applicants’ notice under s 130 of the Evidence Act. In respect of discovery he argued that the originating application was “serious High Court litigation making very serious allegations against a professional and [that it] ought not to be conducted in .... a cavalier fashion.” In those circumstances, he suggested that discovery should be directed and that he be given an opportunity to file further evidence. As to the applicants’ notice under s 130 of

the Evidence Act, he argued that the judgments which the applicants sought to adduce were inadmissible.

[15] At the same time, Mr Deliu filed a notice under rr 9.74 and 19.14 of the High Court Rules requiring the production of Ms Ollivier, who had sworn an affidavit in support of the access application, to be available for cross-examination at the substantive hearing.

[16] Shortly after 5:00 pm on 5 November 2012, Mr Pyke filed by email submissions on behalf of the applicants endeavouring to address the interlocutory matters raised by Mr Deliu.

[17] On 7 November 2012, Mr Deliu filed an application for an order restraining Mr Pyke for further acting in the proceeding; an application for an order that Ms Ollivier’s affidavit not be read and for consequential summary dismissal of the originating application; and an application for adjournment in the event that his other applications were not granted. He filed an affidavit and a synopsis of argument in support of these applications.

Issues

[18] The matters before me at the hearing on 8 November 2012, therefore, were: (a) The challenge to Mr Pyke’s appearance as counsel;

(b) The application for an adjournment;

(c) The application for further and better discovery;

(d) The opposition to the invocation of s 130 of the Evidence Act;

(e) The application to require Ms Ollivier to appear for cross-examination on her affidavit; and

(f) The application for access itself and Mr Deliu’s opposition to it.

[19] When the applications were called for hearing on 8 November 2012, it was agreed between Mr Deliu and Mr Pyke that the application to disqualify Mr Pyke from appearing needed to be addressed first. The thrust of Mr Deliu’s application was that because of Mr Pyke’s extensive involvement in a number of matters between Mr Deliu and the New Zealand Law Society, Mr Pyke was no longer capable of bringing to bear in the matters before the Court the necessary independence and objectivity required of counsel. He referred particularly to a document which appeared to be an extract from the minutes of a meeting of the Board of the New Zealand Law Society recording a Board resolution related to the initiation of disciplinary proceedings against him. The Minute records in part:

The Board carefully considered advice received from Law Society counsel dated 30.3.12.

RESOLVED: that counsel be instructed to commence separate proceedings against Mr F and Mr E as outlined in advice from Law Society counsel dated 30.3.12.

[20] Mr Deliu said that it was a proper inference from the Minute and from the extensive involvement of Mr Pyke as indicated that it was his advice upon which the Law Society had resolved to commence disciplinary proceedings.

[21] Mr Deliu argued that Mr Pyke was prevented by r 13.5 of the Lawyers and Conveyancer’s Act (Lawyers: Conduct and Client Care) Rules 2008 from acting in the proceeding. He argued, first, that Mr Pyke might be required to give evidence of a contentious nature in the matter before the Court. This possibility arises because Mr Deliu seeks to challenge the application for access to the Court file as an abuse of the Court’s process. In making this submission, he has asked the Court to have regard to a discussion between Mr Pyke, in his capacity as counsel for the Law Society, and Mr Deliu in which Mr Pyke was said to have made certain observations about the merits of the proposed disciplinary proceedings. Mr Deliu claimed that Mr Pyke had improperly included in submissions presented to the Court contestable and controversial evidence which went to the heart of his submissions that NZLS was acting in bad faith and that Mr Pyke was personally implicated.

[22] Mr Deliu also argued that Mr Pyke should not be permitted to appear as counsel to defend his own advice and actions.

[23] I ruled in the course of the hearing that Mr Pyke was not disqualified from appearing as counsel and said I would give my reasons in due course; they follow.

[24] While Mr Pyke may have overstepped the boundary between submissions and evidence in informing the Court, in a written memorandum, of matters which might more properly have been put before the Court by way of affidavit evidence, I did not consider that his doing so compromised his independence or objectivity as counsel in respect of the matters I was required to consider. Counsel frequently inform the Court of background factual matters (which these were in the context of this application), in effect giving evidence from the Bar, in circumstances which are almost invariably helpful to the Court. I do not doubt that that was Mr Pyke's intention on this occasion. Mr Deliu was entitled, however, to raise an objection to what Mr Pyke did in this case.

[25] The matters raised are likely to be the subject of closer scrutiny in the judicial review proceedings which Mr Deliu has initiated in respect of the Law Society’s disciplinary proceedings. If issues are raised relating to the conversations between Mr Deliu and Mr Pyke over the merits of the Law Society’s concerns about Mr Deliu’s conduct, Mr Pyke may be required to give evidence about them, and that would disqualify him from appearing as counsel in that proceeding.

[26] In the present case, however, I am concerned only with the procedural issue of an application by the Law Society and the National Standards Committee to inspect the Court’s files rather than with the merits of the Law Society’s position on Mr Deliu’s competence. In those circumstances, I did not consider that Mr Pyke had compromised his independence or that he was placed in the position of having to defend his own advice.

[27] Mr Deliu’s application for an adjournment of the substantive access application was pre-empted, at least in part, by the hearing of the preliminary matters raised. Adjournment of the substantive access application was rendered inevitable, given the amount of hearing time occupied by the preliminary issues. I was left, however, to resolve the issue of Mr Deliu’s notice to cross-examine Ms Ollivier on her affidavit and his opposition to the notice given by the applicants to rely on s 130 of the Evidence Act 2006 to offer into evidence, without calling a witness, six judgments of this Court which were delivered in respect of the matters contained in the files which the applicants wish to inspect. Further, there is in respect of the application for access and Mr Deliu’s opposition to it, an application by Mr Deliu for orders for discovery against the applicants.

The application by the applicants to adduce evidence other than by calling witnesses

[28] The application under s 130 of the Evidence Act may be disposed of briefly. Judgments of this Court are matters of public record and the Court is entitled to take judicial notice of them. There is no need for the judgments to be produced as evidence; the copies may be handed up to the Court.

The nature of an application for access under r 3.13(2), High Court Rules

[29] Whether Mr Deliu is entitled to discovery and/or to require Ms Ollivier to be present for cross-examination on her affidavit will turn, at least in part, on my view as to the nature of an application for access to Court files under r 3.13(2).

[30] The position taken by Mr Pyke on behalf of the applicants is that an application under r 3.13(2) is merely a matter of routine not in itself giving rise to matters which are likely to affect the substantive interests of counsel involved in any case to which the subject files are relevant. He does not dispute that there may be cases in which the granting of an application will affect a person substantively, such as where granting access to the file or a document will, by itself, disclose private or sensitive information, but says this is not one.

[31] Mr Deliu’s position is that the application does indeed affect his personal interests substantively because it is part of a process upon which the applicants have embarked, in bad faith, to suspend him from practice. He argues that whether the applicants are justified in the steps they are taking is a matter properly going to the exercise of the Court’s discretion to allow access to the files.

[32] At the hearing on 8 November 2012, Mr Deliu suggested that he had not been given an adequate opportunity in the time available to address that issue, and said he wished to be heard further on it if the Court considered it was a matter of importance. I gave him an opportunity to provide written submissions on the point and allowed time for Mr Pyke to reply in the same manner.

[33] On 23 November 2012, I received lengthy submissions from Mr Deliu addressing his allegations that the applicant’s were acting in bad faith and submitting those allegations required thorough investigation by the Court in the context of the present application. Mr Pyke filed memoranda dated 28 November 2012 and

29 November 2012, the second of which was prompted by an appearance by counsel and Mr Deliu before Woolford J in connection with Mr Deliu’s judicial review proceedings. Although not timetabled, I subsequently received reply memoranda from Mr Deliu, dated 5 and 6 December 2012, addressing Mr Pyke’s memorandum of 29 November 2012 on the question of joinder of this application with the judicial review proceeding.

[34] Mr Deliu is understandably concerned about the prospect of disciplinary proceedings being taken against him. He wishes to challenge the ability of the applicants to pursue questions of his competence as a member of the legal profession and the procedure they have adopted in doing so. However, the submission that the present application for access to the Court files raises substantive issues of impropriety by the applicants in pursuing allegations of incompetence against Mr Deliu is misconceived. What has the potential to affect Mr Deliu’s rights is not the disclosure of the information on the Court’s files but the use to which information so obtained may be put by the applicants.

[35] Mr Deliu is entitled to challenge a decision by the applicants to take disciplinary action, to the extent that they are reviewable by this Court in judicial review proceedings. It is in such proceedings that allegations of bad faith on the part of the applicants or any officer or representative of the applicants should be examined.

[36] The fact that any document, court file, or part of the court record covered by the rule is in the Court’s keeping requires the Court to exercise control over it, but an application by a non-party to proceedings to inspect and copy information on court files is purely administrative and in most instances relatively routine.

[37] The rules relating to access to court files demonstrate the routine nature of the procedure. First, the application is initially to be made informally to the Registrar by letter. The rules require certain information to be provided to the Registrar, including reasons for the application; r 3.13(6) lists the matters to be taken into account before an application may be granted. But r 3.13 does not contemplate that a formal hearing will always or even usually be required before a decision on the application is made. Second, a Judge may direct a Registrar to deal with an application, suggesting that a hearing in the nature of a judicial process is not usually contemplated. Cases which may be considered to be out of the ordinary may be accommodated by a direction under r 3.13(4) that an interlocutory application or originating application should be made in respect of the application.

[38] For the purpose of deciding how the application should be dealt with, Peters J was entitled to form the opinion under r 3.13(5) that Mr Deliu ought to be notified of it, in the form of an originating application, because of the potential consequences. But that does not determine the scope of the inquiry under rule 3.13(3).

[39] The mandatory factors to be considered by the Court in deciding on the appropriateness of allowing access indicate the nature of the inquiry. For present purposes, the relevant provisions of r 3.16 are as follows:

3.16 Matters to be taken into account

In determining an application under rule 3.13 ... the Judge or Registrar must consider the nature of, and the reasons for, the application ... and take into account each of the following matters that is relevant to the application ... :

(a) the orderly and fair administration of justice:

(b) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(c) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:

(d) the freedom to seek, receive, and impart information: (e) ...

(f) any other matter that the Judge or Registrar thinks just.

[40] While the Court is bound to consider the reasons for the application, it is no longer necessary for an applicant to show “a genuine or proper interest”.[3] The Court is required to undertake a balancing act, weighing the matters listed in r 3.16 which include the interests of litigants.[4] The specific matters listed focus the Court’s attention on the content of the records sought. It will be relevant to the substantive consideration of the application that access is sought to a limited range of documents on the court file, said to be relevant to the conduct of counsel in the proceedings. That approach confirms my view that it is the judicial review proceedings, and not the hearing of this application, which provides the appropriate forum for any challenge to the motives of the applicants in taking disciplinary action against the respondent.

[41] I conclude, therefore, that the criteria for access may be adequately addressed on the basis of the material now before the Court.

[42] The High Court Rules authorise the Court to give directions to secure the just, speedy and inexpensive determination of a proceeding.[5] The Court may also direct the steps that must be taken to prepare a substantive proceeding for hearing,[6] and direct how the hearing of a proceeding is to be conducted.[7]

[43] Bearing in mind the narrow focus of the inquiry under r 3.13, discovery of documents is neither necessary nor appropriate.

[44] Mr Deliu’s notice requiring Ms Ollivier to attend for cross-examination is founded on r 9.74.[8] The rule reads:

9.74 Cross-examination of person who has sworn affidavit

(1) A party desiring to cross-examine a person who has sworn or affirmed an affidavit on behalf of an opposite party may serve on that opposite party a notice in writing (which may be by letter addressed to the opposite party's solicitor) requiring the production of that person for cross-examination before the court at the trial.

(2) The notice must be served, and copies of it filed in the court and delivered to all other parties who have taken any step in the proceeding, not less than 3 working days before the day fixed for the trial.

(3) The affidavit of a person who is not produced must not be used as evidence unless the evidence is routine, or there are exceptional circumstances, and in either case the court grants leave.

(4) The party to whom the notice is given is entitled to compel the attendance of the person who has sworn an affidavit for cross- examination in the same way as that party might compel the attendance of a witness to be examined.

[45] The applicants submit that Ms Ollivier’s affidavit is routine in nature, providing the Court with background information as to the steps taken by the applicants prior to the making of the application, and conveying the applicants’ reasons for seeking access. Mr Pyke submits that as an employee of the Law Society, Ms Ollivier is merely a reporter and that cross-examination of her will not assist the Court. Mr Deliu acknowledged that his purpose in seeking to cross-

_{examine the witness is to explore the issues related to the applicants’ bona fides and}

the propriety of the disciplinary proceedings which I have ruled irrelevant to the current application. I approach this question as if the applicants had failed to produce Ms Ollivier for cross-examination. In my view, her evidence is routine and it is not necessary in the interests of a fair consideration of Mr Deliu’s opposition to access to permit him to cross-examine Ms Ollivier. I grant leave to the applicants to use Ms Ollivier’s affidavit as evidence without making her available for cross- examination.

[46] It follows also from my determination as to the nature of the application for access that no issue of joinder with the judicial review proceedings arises.

Procedure for resolving application for access and Mr Deliu’s objection

[47] I have received a large volume of written material related to the application, and I have heard from counsel orally over almost a full sitting day. While much of the material and submissions provided addressed background matters and the interlocutory issues resolved by this judgment, I am now well informed as to the factual matters relevant to the application. I do not consider a further viva voce hearing to be necessary but the parties should have an opportunity to address directly the considerations under r 3.16 which are relevant to the substantive application for access.

[48] In the exercise of my powers under r 7.9(1)(d), I direct that Mr Pyke and Mr Deliu shall have until 18 December 2012 to confer and file a joint memorandum or separate memoranda as to a timetable for the exchange of written submissions. I will then make timetable orders on the papers. Once I have considered counsel’s written submissions in due course, I shall determine whether an oral hearing is necessary. The written submissions should be prepared on the basis that an oral hearing may not be considered necessary.

......................................
Toogood J

---

[1] _{Pursuant to r 3.13(2) of the High Court Rules.}
[2] High Court Rules, r 3.13(4).

[3] BNZ Investments Ltd v CIR (2009) 20 PRNZ 311; and compare McCully v Whangamata Marina

_{Society Inc [2007] 1 NZLR 185 (CA) which was decided under the former r 66(9).}

[4] Chapman v P (2009) 20 PRNZ 330 at [31].
[5] _{High Court Rules, r 7.9(1)(a), applied to originating applications by r 19.11.}
[6] _{Rule 7.9(1)(d).}
[7] _{Rule 7.9(1)(e).}
[8] Which applies by virtue of r 9.14.