DELIU v THE NEW ZEALAND LAW SOCIETY [2013] NZHC 2398

DELIU v THE NEW ZEALAND LAW SOCIETY [2013] NZHC 2398 [13 September 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-6182[2013] NZHC 2398BETWEEN FRANCISC CATALIN DELIUPlaintiffAND THE NEW ZEALAND LAW SOCIETYDefendantHearing: 13 September 2013Counsel: Plaintiff in personPJ Morgan QC and TA Needham for DefendantJudgment: 13 September 2013ORAL JUDGMENT OF KATZ J(Discovery)Solicitors: Glaister Ennor, AucklandCopy to: PJ Morgan QC, HamiltonFC Deliu, AucklandIntroduction[1] Mr Frank Deliu is a barrister practising in Auckland. He is currently facing disciplinary proceedings brought by Standards Committees established by the New Zealand Law Society ("Law Society") under the Lawyers and ConveyancersAct 2006 ("Act").[2] The disciplinary proceedings against Mr Deliu have not yet been heard by the Lawyers and Conveyancers Disciplinary Tribunal ("Tribunal"). However, thedecisions by Standards Committees to refer various matters to the Tribunal (and associated issues) have given rise to various proceedings in this Court. The proceedings currently before me are judicial review proceedings in which Mr Deliu challenges various decisions of (or actions by) the Auckland Standards CommitteeNo.1 ("ASC1") and the National Standards Committee ("NSC"). These culminatedin a decision by ASC1 on 18 June 2010 to lay a charge of unsatisfactory conduct against Mr Deliu in the Tribunal and decisions by the NSC to lay charges against Mr Deliu in the Tribunal in relation to various complaints made about Mr Deliu by Justice Randerson (then Chief High Court Judge) and other complainants.[3] Mr Deliu pleads that the above decisions/conduct on the part of ASC1 and NSC were, amongst other things, unreasonable, discriminatory, made in bad faith, breached statutory or fiduciary duties, breached natural justice, were based on errors of law, abused processes, were biased, and were substantively unfair.[4] Mr Deliu also seeks judicial review in respect of certain alleged conduct byone of the defendant's legal advisers, Mr Warren Pyke. In particular it is alleged that Mr Pyke offered to withdraw certain charges against Mr Deliu if he would plead guilty to other charges and/or withdraw his civil proceedings in this Court. Mr Deliu alleges that such conduct was improper, an abuse of process, and evidence of bad faith on the part of the Law Society. The Law Society's position is that anydiscussions that occurred were privileged but, in any event, they were entirely proper and do not give rise to any grounds for judicial review.[5] During the course of the hearing yesterday Mr Deliu referred to various passages of his affidavit of 15 November 2012. That affidavit set out, at some length,what Mr Pyke was alleged to have said during a meeting at Mr Deliu's offices on 5October 2011. The comments attributed to Mr Pyke appeared to be a verbatim transcript, rather than being based on Mr Deliu's recollection of the meeting. Therelevant passages were in quotation marks. The following exchange between Mr Deliu and the Court then occurred:THE COURT: Did you record this meeting?MR DELIU: Yes.THE COURT: Right because it looks like a transcript. Did he know that it was being recorded?MR DELIU: I refuse to answer that. I mean it's for the Society to put in evidenceon that point and they have chosen not to put in evidence.THE COURT: I was just asking. It looks like a transcript, that's all.MR DELIU: It is. You're correct Ma'am. And I'm sorry, I don't refuse to answer with any disrespect intended but I'm taking the procedural point that that'ssomething that the Society should be putting in evidence. I shouldn't be answeringthat for them.[6] Mr Morgan QC subsequently made an oral application for discovery of the recording of the meeting. He noted that he had only become aware as a result of the exchange between Mr Deliu and the Court that such a record existed. He wished to listen to the recording for himself. Mr Deliu requested that a formal written application and supporting affidavit be filed. After hearing argument on the issue I ruled that an oral application was permissible, but that argument in respect of it would be deferred to this morning, as Mr Deliu had indicated that he needed time to prepare. It was my view that an oral application was in the interests of justice in the circumstances and also that the application was sufficiently urgent to justify an oral rather than a written application, to enable it to be dealt with expeditiously this week. I note that the existence of the document had only come to light during trial, both parties were present in Court and Mr Morgan was in a position to advance hisapplication and the grounds for it orally. Nothing further would, in my view, be gained by requiring a written application.[7] Mr Deliu indicated that he may wish to file evidence in opposition to the application. I indicated that argument would proceed the following morning regardless. However, if as a result of the submissions made it became apparent that evidence was necessary or appropriate to determine the application, it could be adjourned part heard.[8] This morning Mr Deliu sought leave to record the discovery hearing. I declined that request on the basis that the court hearing is already being recorded. I advised that I would arrange for a transcript of the discovery hearing to be made available to the parties.[9] Mr Deliu then advised that he would not oppose the discovery order sought, on certain conditions. Those conditions essentially related to the use that could subsequently be made of any documents discovered pursuant to the order. Mr Morgan acknowledged that the Law Society would, of course, be bound, by the common law implied undertaking on litigants not to use documents obtained during discovery for purposes unrelated to the proceeding. However, he was not willing to offer any undertakings that went further than that.[10] Mr Deliu then requested an adjournment in order to seek legal advice. That adjournment was opposed by Mr Morgan, essentially on the basis that it was a delaying tactic. After hearing argument on the issue I indicated that I would be willing to grant such an adjournment.[11] Mr Deliu then sought confidentiality orders in relation to any search of the court file in respect of any documents that may be discovered. I indicated that I would not be willing to make a blanket order (preventing search under any circumstances) but that it would be appropriate, in my view, to order that any documents (including recordings) discovered pursuant to any discovery orders are not to be accessed, copied, or inspected without further order of the Court. In this context I note that the Law Society has previously foreshadowed that it will advancean argument in its substantive submissions that the discussions were privileged. Ihave not yet heard the Law Society's submissions on that issue, which remains fordetermination at a later stage of the proceedings.[12] After further reflection, Mr Deliu advised that his position was that he would abide the decision of the Court on the discovery application, but that he wanted formal Court orders to be made.[13] In my view the documents sought are clearly relevant, as evidenced by thefact that Mr Deliu's affidavit sets out large passages from them as direct quotes. Isee no basis on which discovery of the recording(s) or any transcript of it could properly be resisted. Extracts of the documents have been put before the Court. The best evidence, however, is clearly the recording itself (and any transcripts made of it)and the Law Society is clearly entitled to discovery of such documents. It's lateapplication is readily explained by the fact that the Law Society was not aware of the existence of the documents until yesterday.[14] I accordingly make the following orders:(a) Mr Deliu is to forthwith provide discovery of:(i) any recordings he has made of discussions between himself and Mr Pyke;(ii) any transcripts or partial transcripts of such recordings.(b) If any documents (including recordings) discovered pursuant to these orders are put in evidence in these proceedings such documents are not to be accessed, copied, or inspected without further order of the Court.____________________________Katz J