FRANCISC CATALIN DELIU v NATIONAL STANDARDS COMMITTEE AND AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY [2018] NZHC 2873

FRANCISC CATALIN DELIU v NATIONAL STANDARDS COMMITTEE AND AUCKLAND STANDARDSCOMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY [2018] NZHC 2873 [6 November 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-002579CIV-2017-404-000184[2018] NZHC 2873BETWEEN FRANCISC CATALIN DELIUApplicantAND NATIONAL STANDARDS COMMITTEEAND AUCKLAND STANDARDSCOMMITTEE 1 OF THE NEW ZEALANDLAW SOCIETYRespondentsOn the papersJudgment: 6 November 2018JUDGMENT OF HINTON J[LEAVE TO APPEAL]This judgment was delivered by me on 6 November 2018 at 1.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Glaister Ennor, AucklandPhilip Morgan, Queens Counsel, HamiltonParty:F Deliu[1] On 25 September 2017, I dismissed an appeal and an application for judicialreview of a decision of the New Zealand Lawyers and Conveyancers DisciplinaryTribunal.1[2] Mr Deliu seeks leave pursuant to s 254(1) of the Lawyers and ConveyancersAct 2006 (the Act) to appeal to the Court of Appeal on a question of law. (He alsofiled an appeal against my dismissal of his application for judicial review, but thatappeal has been deemed abandoned.)[3] The leave application is essentially a re-run of the appeal, which related to threeliability decisions and one penalty decision of the New Zealand Lawyers andConveyancers Disciplinary Tribunal. The three liability decisions related to three setsof charges against Mr Deliu, which I termed Judges' Charges, Incompetence Chargesand Interrupting a Meeting Charge. Mr Deliu's leave application also raised an issueas to my treatment of the costs awarded against him by the Standards Committee andthe Tribunal.[4] As a result of communication difficulties between Mr Deliu and the Courtthrough 2018, and then delays on Mr Deliu's part, the submissions were ultimately notfiled until 1 October 2018 and 17 October 2018. The parties are agreed the applicationcan be dealt with on the basis of those submissions.[5] On the verge of release of this judgment, a further memorandum has beenhanded to me filed by Mr Deliu. This is an 11-page document labelled "Submissionsin Answer". I did not direct filing of further submissions, and I am not prepared totake that document into account.Test for leave[6] Section 254 of the Act provides as follows:254 Appeal to Court of Appeal on question of law(1) Any party to an appeal under section 253(1) who is dissatisfied withany determination of the High Court in the proceedings as beingerroneous in point of law may, with the leave of that court, or, if the1 Deliu v The National Standards Committee [2017] NZHC 2318.High Court refuses leave, with the leave of the Court of Appeal,appeal to the Court of Appeal against the determination; andsection 56 of the Senior Courts Act 2016 applies to any such appeal.(2) In determining whether to grant leave to appeal under this section, theCourt of Appeal must have regard to whether the question of lawinvolved in the appeal is one that, by reason of its general or publicimportance or for any other reason, ought to be submitted to the Courtof Appeal for its decision.(3) The Court of Appeal, in granting leave under this section, may, in itsdiscretion, impose such conditions as it thinks fit, whether as to costsor otherwise.(4) The decision of the Court of Appeal on any appeal under this sectionis final.[7] The test for leave under s 254 of the Act was considered by Churchman J inMorahan v Wellington Standards Committee 2.2 He noted that s 254 sets out thestandard to be applied by the Court of Appeal when considering whether to grant leaveunder s 254(2), but is silent as to the standard to be applied by the High Court unders 254(1).[8] For the Court of Appeal to grant leave in terms of s 254(2), it must have regardto whether the question of law involved in the appeal is one that, by reason of itsgeneral public importance, or for any other reason, ought to be submitted to the Courtof Appeal for its decision.[9] Churchman J reached the conclusion that, in order for an application to theHigh Court for leave to appeal to the Court of Appeal under s 254 of the Act to besuccessful, there must "at least" be a question of law capable of serious argument andof sufficient importance to justify the pursuit of litigation already twice considered.3Churchman J does not refer to the words "for any other reason", but he also seems tobe saying that the test should be the same for a leave application in the High Court asfor a leave application made to the Court of Appeal.[10] I also note, that in the case of the Immigration Act 2009, which also providesfor second appeals from a tribunal decision, s 246 of that Act provides that the same2 Morahan v Wellington Standards Committee 2 [2018] NZHC 1583.3 At [13].test is to be applied by the High Court and the Court of Appeal in determining whetherleave should be granted for an appeal from a determination of the High Court. Thatleave provision is the same as s 254(2) of the present Act, and allows both Courts togrant leave "for any other reason".[11] I proceed on the basis that the test this Court is to apply is the same as set outin s 254(2) of the Act.Analysis[12] The respondents contend that no genuine question of law is posed by thesubmissions of Mr Deliu. They say that, to the extent legal as opposed to factual issuesare raised, none warrants the granting of leave. They seek that the application bedismissed.Judges' Charges[13] Mr Deliu submits that my findings on the Judges' Charges contain errors oflaw, as follows:(a) Finding that Mr Deliu's conduct was not protected by freedom ofspeech and that his complaints undermined the authority of thejudiciary and the rule of law.(b) Failing to find that Mr Deliu's conduct was much less serious than thatof others, who were less heavily penalised, or not penalised at all, thisthen leading to disparate treatment.[14] Mr Deliu also submits that the decision of the Full Court of the High Court inOrlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal4 wasincorrectly decided and should go to the Court of Appeal for the law to be settled inthe general or public interest. Mr Deliu says that "even" I had my reservationsregarding that decision.4 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987,[2015] 2 NZLR 606.[15] I agree with Mr Morgan QC for the respondents, that my finding about freedomof speech does not raise any question of law which needs to go back to the Court ofAppeal. The relevant law has been considered at length by the Court of Appeal inOrlov v New Zealand Law Society, which related to judicial review of the decision ofthe New Zealand Law Society to submit the complaints to the Tribunal.5 My findingis also consistent with the Canadian Supreme Court decision in Doré v Barreaudu Québec.6 In light of those authorities, particularly the judgment of the Court ofAppeal in Orlov, no question of law warranting a further appeal arises.7[16] Mr Deliu's argument about disparate treatment focuses on an assessment of thefactual differences between conduct in other cases and Mr Deliu's conduct, not anyquestion of law. The Full Court in Orlov made a comparative analysis and reachedconclusions following a very similar argument.8 The same analysis was made in evenmore detail by the Tribunal in this case. I agreed with the Tribunal's assessment.[17] I agree with the respondent that the comparisons have been exhausted and noquestion of law arises.[18] I also did not, as Mr Deliu contends, find that the judgment of the Full Courtin Orlov was incorrect on the subject of the provision of regulated services. Rather, Ireached the same outcome by different reasoning. No important question of law isinvolved. As is plain from my judgment, on whatever view of the law, on the facts ofthis case Mr Deliu was providing regulated services.9Incompetence Charges[19] Mr Deliu submits there are two questions of law arising in connection with theIncompetence Charges. The first of them is that I erred in law in upholding theDisciplinary Tribunal's reliance on judgments in cases where Mr Deliu was counsel,5 Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562. This decision precedesthe decision referred to above, which followed the substantive decision of the Tribunal.6 Doré v Barreau du Québec [2012] 1 SCR 395.7 Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562.8 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987,[2015] 2 NZLR 606.9 At [63]–[64].as evidence of incompetence. The second question relates to the delay in thedisciplinary process, which he says led to a miscarriage of justice.[20] In terms of the former, no serious question of law arises. The law is settled bys 239 of the Lawyers and Conveyancers Act 2006, and the previous judgments of boththe Court of Appeal in Deliu v National Standards Committee of New Zealand LawSociety10 and the Full Court decision in Orlov, which I applied.11[21] As to the second point, Mr Deliu submits that my judgment in regard to theIncompetence Charges was "completely one-sided" in favour of the respondents andtherefore a miscarriage of justice. It is true that my judgment is one-sided in the sensethat I concluded firmly in favour of the respondents, which seems to be the nub of hisobjection.[22] Mr Deliu relies on the words "for any other reason" in s 254(2) of the Act(which I have held applies also on a leave application to this Court), to say that I shouldgrant leave. The Court of Appeal has held that those words allow for leave to begranted in an exceptional case involving individual justice to such an extent that theCourt could not countenance the decision continuing to stand.12 The point advancedby Mr Deliu falls well short of that test.[23] I considered the issue of delay as part of Mr Deliu's case that the Tribunalwrongly refused him a stay.13 The Tribunal refused a stay on the basis that Mr Deliu'sactions were largely the cause of the delay, and he suffered no prejudice. I upheld thatfinding on the same basis. No question of law arises.Interrupting a Meeting Charge[24] I am not clear as to Mr Deliu's point here.10 Deliu v National Standards Committee of New Zealand Law Society [2015] NZCA 399 at[33]-[36].11 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987,[2015] 2 NZLR 606 at [78]–[80].12 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162 at [8]. Duffy J heldin Zhang v Immigration and Protection Tribunal [2013] NZHC 1573 that these words would alsoallow leave in certain cases of procedural duplication, not applicable here.13 At [142]–[147].[25] He cites a judgment of the Supreme Court14 refusing leave to Mr Orlov toappeal from the Court of Appeal decision in Orlov v New Zealand Law Society.15 InOrlov, the High Court had held that there were charges which did not meet a"seriousness" threshold required before the Standards Committee can refer charges tothe Tribunal under s 152(2)(a) of the Act and ordered that those charges be referredback to the Standards Committee. The Court of Appeal determined there was nothreshold and quashed those orders. The Supreme Court, although refusing leave asnot being in the interests of justice, said that the question of whether a "seriousness"threshold was required might constitute a legal question for purposes of a leaveapplication.16[26] Mr Deliu presumably contends that the question of whether it was appropriatefor the Standards Committee to refer the "meeting" charge to the Disciplinary Tribunalshould be the subject of a ruling by the Court of Appeal. However, that was not anissue before me and cannot be the subject of an appeal.[27] Furthermore, I did consider that the Interrupting a Meeting Charge was serious.As I said:17What Mr Deliu and Mr Orlov did was aggressive, uncontrolled andunprecedented. It was intimidating to the committee members, and designedto be so.[28] I agree with the respondents that no question of law arises that warrants yetanother appeal.Costs[29] Mr Deliu submits that the costs aspect of my decision addressed theStandards Committee's costs, but "ignored the Tribunal's costs".[30] Again, I cannot follow the point made.14 Orlov v New Zealand Law Society [2013] NZSC 94.15 Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562. This was the judicialreview appeal that preceded the substantive Tribunal hearing in Orlov, which I referred to aboveat [11].16 At [4].17 At [111].[31] I did address the question of the Tribunal's costs.18[32] This part of Mr Deliu's submissions does not identify or raise a question oflaw, nor is it a matter where leave should be granted for any other reason.Conclusion[33] Mr Deliu's submissions do not identify questions of law which requiredetermination by the Court of Appeal. His points are a re-run of the argument beforeme. I see little merit in his application. All of his points were dealt with, in part onthe facts, by the Tribunal and upheld by me on appeal. On the more significant pointsthe law is settled by decisions of the Court of Appeal already.[34] I agree with the respondents that Mr Deliu's points do not warrant the cost tothe respondents, or the public, in allowing him yet another appeal.[35] The application for leave to appeal is dismissed.[36] The respondents are entitled to costs on a 2B basis.-----------------------------------------Hinton J18 At [221]-[222]. Although it is clear from the context, for clarification, my comment in [222] that"I sought full details from the Standards Committee as to both costs amounts", is a reference tothe costs of the Standards Committee and of the Tribunal.