Deliu v Auckland Standards Committee 1 and the National Standards Committee of the New Zealand Law Society [2014] NZHC 2530 (15 October 2014)

Last Updated: 16 October 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001857 [2014] NZHC 2530

BETWEEN	FRANCISC CATALIN DELIU Appellant
AND	THE AUCKLAND STANDARDS COMMITTEE 1 AND THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY Respondents

Hearing:	8 October 2014
Appearances:	Appellant in person P J Morgan QC and O Morgan for Respondents
Judgment:	15 October 2014

_{JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Wednesday, 15 October 2014 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

_{Registrar/Deputy Registrar}

Solicitors:

F C Deliu, PO Box 68559, Newton, Auckland 1145

Glaister Ennor, PO Box 63, Shortland Street, Auckland

FRANCISC CATALIN DELIU v THE AUCKLAND STANDARDS COMMITTEE 1 AND THE NATIONAL STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2014] NZHC 2530 [15 October

2014]

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;

¹ _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].}

² Clear Communications Ltd v Telecom Corporation of New Zealand Ltd (1999) 14 PRNZ 477 at

482.

(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 refer those matters to the Tribunal was a matter for the relevant Standards Committee.

[13] As to (b), the submission is that the respondent [Mr Deliu] must fail because:

(a) He has not established a prima facie case in that he not only failed to, but elected not to, provide a recording and transcript of the conversation he had with Mr Pyke.

(b) The conversations were privileged by reason of s 57 of the

Evidence Act 2006.

(c) There is nothing in the evidence provided that could support an abuse of process defence. There is nothing out of the ordinary that emerges from the discussions bearing in the mind the selective evidence that the respondent has provided.

(d) The best evidence is the recording and a transcript verified as to accuracy. The respondent has made an election not to provide it.

Grounds of appeal

[7] The grounds of appeal set out in the notice of appeal are:

(a) The Tribunal breached natural justice as the statement of reasons for its decision were inadequate.

(b) The Tribunal acted with bias in acting as a rubber stamp for the respondents at [14] when it had already (and repeatedly) been put on notice by the appellant that if it ruled against him it had an obligation to apply the facts to the law and conclude why he was wrong in his application as would be expected of any Court in any civilised country.

(c) The Tribunal completely failed to take into account the appellant’s submissions in support of his application and/or in reply to the respondents’ submissions in opposition.

(d) The Tribunal took into account an irrelevant consideration at [15] as what was being invoked was not a disciplinary mechanism against Mister Prosecutor, but rather ordinary debarment processes which are a discrete jurisdiction that is collaterally available.

[8] Mr Deliu approached the appeal on the basis that the Tribunal had not reached a proper decision because of procedural irregularities in how it dealt with his application. On the other hand, Mr Morgan focused on the merits of Mr Deliu’s application to debar Mr Pyke in recognition of the High Court’s role to reach its own view on the merits in accordance with the principles enunciated in Austin, Nichols & Co Inc.

Factual background

[9] Mr Deliu currently faces charges relating to the interruption of an Auckland District Law Society Committee meeting and making false, intemperate and scandalous allegations against two judges. The meeting interruption charge was served on Mr Deliu in June 2010. The scandalous allegations charges were served in May 2012. A Standards Committee has also apparently resolved to prosecute Mr Deliu for incompetence, but no charges of incompetence have been served on him to date.

[10] In September 2010, after service of the meeting interruption charge, but before service of the scandalous allegations charges, Mr Deliu issued a civil claim against the New Zealand Law Society alleging breaches of the New Zealand Bill of Rights Act 1990 and malicious prosecution, among other things.

[11] Mr Pyke was instructed as counsel by the respondents in the disciplinary proceedings taken against Mr Deliu. On 5 October 2011, Mr Pyke visited Mr Deliu’s offices to discuss possible resolution of the proceedings. Mr Deliu apparently recorded approximately two hours of the meeting with Mr Pyke. Mr Pyke and Mr Deliu had another meeting on 22 March 2012 at Starbucks on Queen Street in Auckland. In the course of those meetings, Mr Deliu says that Mr Pyke offered to withdraw the meeting interruption charge and not proceed with charges of incompetence if Mr Deliu withdrew his civil claim against the Law

Society, pleaded guilty to the scandalous allegations charges and accepted a suspension from practice of six to 12 months. Mr Deliu says that Mr Pyke made it clear that he thought that the proposed incompetence charges lacked merit, but that if Mr Deliu did not agree to the proposed resolution, then the Law Society would proceed with them.

[12] Mr Deliu also says that Mr Pyke made it clear that he thought the meeting interruption charge was petty, but that the Law Society wanted to rid itself of the civil claim brought by him alleging that it was a malicious prosecution.

[13] On 23 April 2014, Mr Deliu made application to debar Mr Pyke from acting for the respondents in the disciplinary proceedings. Mr Deliu swore and filed an affidavit in support of his application. In that affidavit, Mr Deliu quotes Mr Pyke at some length in respect of what he said at the first meeting, which he apparently had recorded. Mr Deliu states:

I feel that my choice was a stark one – plead guilty to the judges charges, take a moderate suspension, withdraw your civil actions and all of your law society problems will go away. Or, elect my civil right to defend myself (and, worse yet, claim I have been mistreated) and all hell will be released upon me.

Case law on debarment of counsel

[14] The starting point is the leading New Zealand case of Black v Taylor.³ In Black v Taylor a solicitor had previously acted for several members of a family, including the plaintiff and his late uncle. The plaintiff brought proceedings against the estate of his late uncle alleging breach of an agreement as to reciprocal wills and also making a claim under the Law Reform (Testamentary Promises) Act 1949. The plaintiff sought an injunction to restrain the solicitor from acting as either solicitor or counsel for the estate. The injunction application was brought as an interlocutory application in the proceedings against the estate. The application was made on the ground of conflict of interest based on the solicitor’s receipt of confidential

_{information relevant to the issues in the proceeding.}

³ Black v Taylor [1993] 3 NZLR 403 (CA).

[15] The three members of the Court of Appeal gave separate judgments. Cooke P

stated:⁴

As to those who may be allowed to represent parties to argue cases, the Courts have an inherent jurisdiction... The jurisdiction extends to the propriety of a representative appearing in a particular case: it is not then a question of the right of practice generally, which is governed in New Zealand by statute, but a question concerning what is needed or may be permitted to ensure in a particular case both justice and the appearance of justice. Obviously it is a jurisdiction to be exercised with circumspection.

[16] Similarly, Richardson J stated:⁵

The High Court has an inherent jurisdiction to control its own processes except as limited by statute. As an incident of that inherent jurisdiction it determines which persons should be permitted to appear before it as advocates. In determining what categories of person may appear it does so in accordance with established usage and with what is required in the public interest for the efficient and effective administration of justice...

Another aspect of the inherent jurisdiction is the control of a particular proceeding in the court. There the court's concern is with the administration of justice in a particular case and in the generality of cases and with the associated basic need to preserve confidence in the judicial system. The right to a fair hearing in the Courts is an elementary but fundamental principle of British justice. It reflects the historical insistence of the common law that disputes be settled in a fair, open and even-handed way. ...

An associated consideration is the fundamental concern that justice should not only be done but should manifestly and undoubtedly be seen to be done...

The integrity of our system of justice depends on its meeting those standards. The assessment of the appearance of justice turns on how the conduct in question - here Mr Gazley's wish to be able to act as counsel for the defendants against M A Taylor - would appear to those reasonable members of the community knowing of that background.

In making that assessment the court will also give due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause. The right to the choice of one's counsel is an important value. But it is not an absolute.

[17] Richardson J then reviewed cases from both Australia and Canada and quoted extensively from a Canadian decision, Everingham v Ontario.⁶ Richardson J concluded:⁷

⁴ _{At 406 line 25.}

⁵ _{At 408-409.}

⁶ _{Everingham v Ontario (1992) 88 DLR (4th) 755.}

⁷ At 412 line 19.

I respectfully agree with the approach of the Ontario Court. Disqualification will ordinarily be the appropriate remedy where the integrity of the judicial process would be impaired by counsel's adversarial representation of one party against the other. The decision to disqualify is not dependent on any finding of culpable conduct on the lawyer's part. Disqualification is not imposed as a punishment for misconduct. Rather it is a protection for the parties and for the wider interests of justice. The legitimacy of judicial decisions depends in large part on the observance of the standards of procedural justice. Where the integrity of the judicial process is perceived to be at risk from the proposed or continuing representation by counsel on behalf of one party, disqualification is the obvious and in some cases the only effective remedy although considerations of delay, inconvenience and expense arising from a change in representation may be important in determining in particular cases whether the interests of justice truly demand disqualification.

[18] In similar vein, McKay J stated:⁸

It is essential to the functioning of the Court as a Court of justice that it must be able to prevent a barrister acting as counsel in a matter in which he has a conflict of interest, or in which he appears to have a conflict of interest such that justice will not be seen to be done. The fact that a barrister who so acted would be subject to the disciplinary powers contained in Part VII of the Law Practitioners Act 1982 does not in any way diminish the inherent jurisdiction of the Court to control proceedings before it in such a way as to enable justice to be done and to be seen to be done.

The position in New Zealand is accurately expressed in the following passage in the judgment of a Divisional Court of the Ontario Court (General Division) in Everingham v Ontario (1992) 88 DLR (4th) 755 at 761:

“It is within the inherent jurisdiction of a superior court to deny the right of audience to counsel when the interests of justice so require by reason of conflict or otherwise. This power does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached.”

[19] In a later case, Clear Communications Ltd v Telecom Corporation of New Zealand Ltd,⁹ Fisher J listed a number of principles relating to the circumstances in which a Court may debar a lawyer from continuing to act for a party to civil proceedings. However, Fisher J specifically stated that he was not attempting an exhaustive or definitive list of such principles.¹⁰ One of the principles articulated by Fisher J relied upon by the respondents in this case is that, although the jurisdiction is not to be emasculated by setting the threshold so high that it could never be

_{attained, there must be something truly extraordinary before removal could be}

⁸ _{At 418 line 33.}

9. Clear Communications Ltd v Telecom Corporation of New Zealand Ltd (1999) 14 PRNZ 477 (HC).

¹⁰ At 482.

contemplated. It could be justified only in cases of "truly egregious misconduct likely to infect future proceedings".¹¹ Fisher J quoted an American authority for this statement.¹²

[20] I prefer the approach taken by the Court of Appeal in Black v Taylor in which Cooke P stated it is a jurisdiction to be exercised with circumspection. The Court of Appeal also made it clear that misconduct is not required before the jurisdiction to debar may be exercised. In Black v Taylor itself, there was no finding of culpable conduct on the part of the lawyer, but nonetheless disqualification was the obvious and only effective remedy.

[21] In Accent Management Ltd v Commissioner of Inland Revenue¹³ the Court of Appeal was dealing with a case where taxpayers applied to have Crown Law Office and Crown counsel debarred from acting in challenges made by the taxpayers against tax assessments. The application was primarily based on an allegation that Crown Law Office could not act with the required degree of independence and could not comply with its duties to the Court because it had colluded in assessments being made fraudulently or knowingly contrary to law and had wrongly maintained the position. The Court of Appeal summarised what it said was the applicable law in

one paragraph,¹⁴ in which it stated that the threshold for removal is a high one,

requiring something extraordinary. However, I do not take this brief comment by the Court of Appeal to detract from the principles which were extensively considered by the same Court in Black v Taylor.

[22] I am of the view that the public interest in the administration of justice requires an unqualified perception of its fairness in the eyes of the general public. As noted in the Canadian case of Everingham v Ontario the issue is not whether any ethical rule has been breached, nor is the issue solely whether one of the parties has

_{lost confidence in the process.}¹⁵ _{The issue is whether a fair-minded reasonably}

¹¹ _{At 483.}

12. Koller v Richardson-Merrell Inc 737 F 2d 1038 (1984 DC Cir) at 1055-1056 (reversed on jurisdictional grounds at 105 S Ct 290).

¹³ _{Accent Management Ltd v Commissioner of Inland Revenue [2013] NZCA 155; [2013] 3 NZLR 374 (CA).}

¹⁴ _{At [32].}

¹⁵ Everingham v Ontario, above n 7 at 761-762.

informed member of the public would conclude that the proper administration of justice requires the removal of the solicitor.

Discussion

[23] I prefer to focus on the merits of Mr Deliu’s application to debar Mr Pyke, rather than examine the Tribunal’s reasons in detail.

[24] It is clear that the Tribunal has an implied power to ensure that its processes are used fairly, including a power to stay or dismiss charges as an abuse of process in an appropriate case.¹⁶ The categories of abuse of process are not closed.

[25] Mr Deliu has specifically pleaded in his amended response to the charges dated 26 May 2014 by way of opposition and/or affirmative defences that the proceedings are an abuse of process. He asserts that the proceedings are an abuse of process because Mr Pyke sought to improperly coerce him into withdrawing his civil claim against the Law Society and was also guilty of blackmail in threatening to proceed with the incompetence charges, notwithstanding his view that they lacked merit.

[26] Mr Deliu is also entitled to give or call evidence before the Tribunal as to the alleged abuse of process. I have no doubt that, at the very least, Mr Deliu will personally give evidence of the meetings he had with Mr Pyke.

[27] In a further application dated 24 June 2014 and filed with the Tribunal, Mr Deliu specifically asks the Tribunal to issue a witness summons to Mr Pyke. Although Mr Morgan points out that Mr Deliu needs to apply to a District Court Judge, pursuant to clause 6 of Schedule 4 of the Lawyers and Conveyancers Act

2006 for a certificate authorising the Tribunal to issue a summons, again, I have no doubt that Mr Deliu will make such an application. If a summons to Mr Pyke is

_{issued, Mr Deliu will also resist any application by the respondents to set it aside.}

¹⁶ McMenamin v Attorney-General [1985] 2 NZLR 274 (CA); Chow v Canterbury District Law

Society [2005] NZCA 313; [2006] NZAR 160 (CA); New Zealand Law Society v Gilbert [2012] NZLCDT 24.

[28] Mr Morgan recognised at once that Mr Pyke could not act as counsel for the respondents if the Tribunal issued a witness summons to him which was not set aside,¹⁷ but submitted that that problem could be dealt with if and when it arose.

[29] Mr Morgan also recognised that Mr Pyke would have some difficulty continuing to act as counsel for the respondents if he chose to ask any questions of Mr Deliu in cross-examination about the meetings they had. As noted by Wilson J in Vector Gas Limited v Bay of Plenty Energy Ltd:

[147] Whatever the court or tribunal in which they are appearing, it is undesirable for practitioners to appear as counsel in litigation where they have been personally involved in the matters which are being litigated. In that situation, counsel are at risk of acting as witnesses and of losing objectivity.

[30] However, Mr Morgan submitted that it was most unlikely that Mr Pyke would want to cross-examine Mr Deliu about what was said at the meetings they had. He submitted that Mr Deliu’s affidavit was sufficient in itself for the Tribunal to deal with his application to stay or dismiss the charges as an abuse of process. However, Mr Morgan’s submissions do not take into account the possibility that Mr Deliu will go beyond the matters set out in his affidavit and refer to other matters which arose at the meetings themselves or in some further communication between the two of them.

[31] Nor do Mr Morgan’s submissions take into account the fact that Mr Pyke will have to address the Tribunal on the merits of Mr Deliu’s application, regardless of whether or not he cross-examines Mr Deliu about what was said at the meetings they had. In effect, Mr Pyke will 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 is hard to see how Mr Pyke can be seen as anything other than an advocate in his own cause. To use the words of Wilson J in Vector Gas, Mr Pyke would then be appearing in litigation where he had

_{been personally involved in the matters which are being litigated.}

¹⁷ A lawyer must not act in a proceeding if the lawyer may be required to give evidence of a contentious nature (whether in person or by affidavit) in the matter: r 13.5.1 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008; Beggs v Attorney-General [2006] 2 NZLR 129 (HC); Vector Gas Limited v Bay of Plenty Energy Limited [2010] NZSC 5, [2010] 2 NZLR 444 at [147]- [149].

[32] Mr Morgan submitted that the meetings between Mr Pyke and Mr Deliu were, in any event, covered by s 57 of the Evidence Act 2006, which grants privilege to persons involved in settlement negotiations. Section 57(1) provides:

57 Privilege for settlement negotiations or mediation

(1) A person who is a party to, or a mediator in, a dispute of a kind for which relief may be given in a civil proceeding has a privilege in

respect of any communication between that person and any other person who is a party to the dispute if the communication—

(a) was intended to be confidential; and

(b) was made in connection with an attempt to settle or mediate the dispute between the persons.

[33] However, there may be an argument that s 57 does not apply to disciplinary proceedings as they may 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 are more akin to criminal proceedings for the purposes of privilege. The learned authors of the The Evidence Act 2006: Act and Analysis are of the opinion that there is, probably, a lack of protection for settlement negotiations conducted in a

criminal proceeding.¹⁸

[34] In any event, the privilege is not absolute. Section 67 provides:

67 Powers of Judge to disallow privilege

(1) A Judge must disallow a claim of privilege conferred by any of

sections 54 to 59 and 64 in respect of a communication or information if satisfied there is a prima facie case that the

communication was made or received, or the information was

compiled or prepared, for a dishonest purpose or to enable or aid anyone to commit or plan to commit what the person claiming the privilege knew, or reasonably should have known, to be an offence.

[35] At the hearing of his application to stay or dismiss the charges as an abuse of process, Mr Deliu will submit to the Tribunal that even if s 57 does apply to disciplinary proceedings, the Tribunal must disallow the claim of privilege by Mr Pyke because there is a prima facie case that Mr Pyke either communicated with him for a dishonest purpose or committed the crime of blackmail. I note that proof of a dishonest purpose or the crime of blackmail, of whatever standard, is not required. A

_{prima facie case is all that is required.}

¹⁸ Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Brookers, Wellington,

2014) at [EV57.06].

[36] Again, Mr Pyke will be submitting to the Tribunal that s 57 grants him privilege as one of the participants in the meetings and there is not a prima facie case that he was acting for a dishonest purpose or committing the crime of blackmail. Mr Pyke will therefore once again appear to be an advocate in his own cause if he seeks to rely on s 57.

[37] Mr Morgan further submitted that whatever may have taken place at the meetings between Mr Pyke and Mr Deliu was irrelevant to the substantive determination the Tribunal had to make. The meetings mattered “not a jot”. While I accept that the meetings between Mr Pyke and Mr Deliu are unrelated to the substance of the allegations made by the respondents against Mr Deliu, the Tribunal will still have to determine Mr Deliu’s application to stay or dismiss the charges as an abuse of process. It is open to the Tribunal to stay or dismiss the charges against Mr Deliu either on procedural or substantive grounds. If the Tribunal dismisses Mr Deliu’s application to stay or dismiss the charges as an abuse of process, then the Tribunal will go on to determine the unrelated substantive allegations, but it must first determine the procedural objection taken by Mr Deliu.

[38] Finally, Mr Morgan submitted Mr Deliu’s application to stay or dismiss the charges as an abuse of process was bound to fail as the application did not meet the test set out in Fox v Attorney-General.¹⁹ In Fox v Attorney-General McGrath J stated:

[37] These principles set a threshold test in relation to the nature of a prosecutor’s conduct which warrants a decision to end a prosecution, prior to trial, as an abuse of process. Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a court to proceed with the prosecution on its merits would tarnish the court’s own integrity or offend the court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes nor to reflect a court’s view that a prosecution should not have been brought. The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on an accused. Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.

¹⁹ Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA).

[39] Mr Morgan submitted that the affidavit filed by Mr Deliu showed that Mr Pyke was acting ethically. He had retained his objectivity, but that he wanted to avoid costs for both parties. The affidavit also disclosed Mr Pyke’s view that some of the charges are not all that strong and proffered Mr Pyke’s view that Mr Deliu was not at risk of being struck off, but would be fined and suspended if the charges were found proven. On the other hand, Mr Deliu submitted that Mr Pyke’s offer not to proceed with incompetence charges in return for a plea of guilty on the scandalous allegations charges together with an acknowledgement that there was no substance in the meeting interruption charge, but that it would be continued if Mr Deliu did not discontinue his civil claim against the Law Society, was improper and fell within the grounds noted by McGrath J as warranting a stay.

[40] It is not my role on appeal to determine Mr Deliu’s application to stay or dismiss the charges against him as an abuse of process. That is clearly a matter for the Tribunal in due course and I make no comment on its merits, but a fair-minded reasonably informed member of the public would think that Mr Deliu should have the ability to have his application determined by an impartial Tribunal and an impartial process. That impartiality should extend to counsel for the Law Society.

[41] I have therefore reached the conclusion that Tribunal was wrong to dismiss Mr Deliu’s application to debar Mr Pyke from acting as counsel for the respondents in these proceedings. I repeat that in so doing I make no comment on the merits or otherwise of Mr Deliu’s application to stay or dismiss the charges as an abuse of process. I also stress that my decision should not be seen as a reflection of Mr Pyke’s conduct. My decision to allow the appeal and disqualify Mr Pyke does not depend on any finding of culpable conduct on his part. Disqualification is not imposed as a punishment for misconduct. Rather, it is a protection for the parties and for the wider interests of justice which must be seen to be done.

[42] I am of the view that disqualification of Mr Pyke will not unduly delay, inconvenience or cause expense to the respondents. First, there is no date yet allocated for the hearing of the substantive proceedings against Mr Deliu. It will not be this year. Mr Deliu has filed a large number of further interlocutory applications dated 24 June 2014 which need to be determined first. The respondents have also

indicated that leave will be sought to amend the charges. Second, Mr Morgan argued this appeal on behalf of the respondents. He has appeared for the respondents in an application by Mr Deliu for leave to issue summonses to witnesses to give oral evidence in judicial review proceedings. He has also appeared for the Law Society in other judicial review proceedings filed by Mr Deliu. He is familiar with Mr Deliu’s file and is able, in my view, to take over as counsel for the respondents without any difficulty or inconvenience. Third, because the hearing of the substantive proceedings is some time away and Mr Morgan is able to take over as counsel without inconvenience, undue expense will not be caused to the respondents by the change of counsel.

[43] The appeal is allowed. Mr W C Pyke is debarred from acting as counsel for the respondents in the proceedings LCDT 010/10 and 008/12 before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. I had considered whether it was appropriate to debar Mr Pyke from representing the respondents only when the Tribunal was considering Mr Deliu’s application to stay or dismiss the charges as an abuse of process, but reached the view that it would not be practical or desirable in principle. One of the interlocutory applications, dated 24 June 2014, seeks an order that a witness summons be issued to Mr Pyke, while the application to stay or dismiss the charges as an abuse of process will, at this stage at least, be dealt with as part of the substantive hearing.

[44] Mr Deliu is entitled to costs on this appeal on a 2B basis.

.....................................

Woolford J