DELIU v THE NEW ZEALAND LAW SOCIETY [2013] NZHC 1584

DELIU v THE NEW ZEALAND LAW SOCIETY [2013] NZHC 1584 [27 JUNE 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-6182[2013] NZHC 1584BETWEEN FRANCISC CATALIN DELIUPlaintiffAND THE NEW ZEALAND LAW SOCIETYDefendantHearing: 30 April 2013Appearances: Plaintiff in personP J Morgan QC for DefendantJudgment: 27 June 2013JUDGMENT OF KATZ JThis judgment was delivered by me on 27 June 2013 at 4:00 p.m.Pursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors:Glaister Ennor, AucklandCopy to:P J Morgan QC, Thackeray Chambers, HamiltonF C 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 ("Disciplinary Tribunal").However, the decisions by Standards Committees to refer various matters to the Tribunal (and associated issues) have already given rise to a multiplicity of proceedings in this Court.1 The proceedings currently before me include two judicial review causes of action in which Mr Deliu challenges the following decisions of (or actions by) the Auckland Standards Committee No.1 ("ASC1") and the NationalStandards Committee ("NSC"):(a) Decisions by ASC1 regarding Mr Deliu's conduct at an Auckland District Law Society Complaints Committee meeting, which culminated in ASC1 laying one charge of unsatisfactory conduct against Mr Deliu in the Disciplinary Tribunal on 18 June 2010("meeting disruption issue").(b) Decisions by NSC which culminated in a decision to lay charges against Mr Deliu in the Disciplinary Tribunal in relation to certain complaints made about Mr Deliu by Justice Randerson (then ChiefHigh Court Judge) ("Judge's issue").(c) Decisions by NSC which culminated in a decision to lay charges against Mr Deliu in the Disciplinary Tribunal in relation to complaints1 Namely, proceedings against: the Legal Complaints Review Officer and the National Standards Committee (CIV-2012-404-121); the Lawyers and Conveyancers Disciplinary Tribunal and the NSC (CIV-2012-404-6295); the Executive Board of the Law Society (CIV-2012-404-4030 and CIV-2012-404-4409) and these proceedings, against the Law Society. Mr Deliu also brought proceedings before the Human Rights Review Tribunal. Related proceedings have been brought by the Law Society, seeking access to court files relating to Mr Deliu (CIV-2012-404-3785).by Mr AB of "serial incompetence" on the part of Mr Deliu("serial incompetence issue").(d) Conduct by the NSC prosecutor, in particular allegations that he offered to withdraw certain charges if Mr Deliu would plead guilty to other charges and/or withdraw his civil proceedings in this Court("plea bargain issue").(e) Decision by NSC to seek access to certain Court files in which Mr Deliu had been involved as counsel ("access to court recordsissue").[3] Mr Deliu pleads that the above decisions/conduct 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 has filed four interlocutory applications seeking further and better discovery, admissions of facts, further and better particulars of the statement of defence, and interrogatories. Those applications were opposed by the Law Society on various grounds, including that the orders sought are unnecessary, disproportionate, vexatious, oppressive, and relate to material which is irrelevant to the issues before the Court.[5] The key issues before me are:(a) What general principles should guide my consideration of the interlocutory applications, taking into account that they are brought in the context of judicial review proceedings that challenge aspects of the disciplinary process under the Act?(b) Should any of Mr Deliu's interlocutory applications be granted, either in whole or in part?Approach to the interlocutory applications[6] The Act has a strong consumer protection focus. There is a clear public interest in professional disciplinary matters being dealt with expeditiously.2 Part 7 of the Act states that the framework in relation to complaints against lawyers isintended to ensure that such complaints be "processed and resolved expeditiously"3and that disciplinary charges "be heard and determined expeditiously".4[7] In this case the interests of efficiency and expedition are further reinforced by the fact that these are judicial review proceedings. Section 10(1) of the JudicatureAmendment Act 1972 ("JAA") gives powers to judges dealing with applications for judicial review to do all manner of things to enable the application for review to be determined in a convenient and expeditious manner. The Court of Appeal has confirmed in a number of cases that judicial review proceedings are intended to be both relatively simple and expeditious.[8] Indeed, it was to enable the judicial review causes of action in this case to be determined expeditiously that Peters J ordered (over 18 months ago now) that the judicial review causes of action be tried separately from the other seven causes of action in this proceeding.5 Mr Deliu appealed that decision to the Court of Appeal, which upheld Peters J's decision.6 The Court of Appeal noted the public interest in the expeditious determination of judicial review proceedings, as well as the public interest in the expeditious disposition of disciplinary proceedings against lawyers, as being factors in support of separate hearings.7 A prior separate hearing of the judicial review applications was said to be "most likely to achieve an expeditioushearing, both of the judicial review and the disciplinary proceedings".82 See Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [128] and Dorbu v New Zealand Law Society [2011] NZAR 174 at [24].3 Lawyers and Conveyancers Act 2006, s 120(2)(b).4 Ibid, s 120(3).5 Deliu v New Zealand Law Society HC Auckland CIV-2010-404-6182, 4 November 2011.6 Deliu v New Zealand Law Society [2012] NZCA 359.7 At [10].8 At [11].Selective prosecution[9] One of Mr Deliu's key grievances is that, he says, he is being "selectively prosecuted" by the Law Society on the basis that he is "foreign born". Mr Deliuclaims that New Zealand born lawyers who have engaged in conduct which is worse than that alleged against him have not been subjected to disciplinary processes under the Act. Mr Deliu surmises that the reason for this must be that he is foreign born as"there is no other way to explain the disparate treatment". Much of the information that Mr Deliu seeks in the interlocutory applications before the Court relates to his selective prosecution claim. It is therefore helpful to briefly consider the legal basis for such a claim.[10] Mr Deliu relied in particular on American jurisprudence, where selective prosecution is recognised as a ground of defence to a criminal prosecution. Mr Deliu relied in particular on the decision of the Supreme Court in United States v Armstrong.9 Armstrong reaffirmed earlier Supreme Court authority to the effect that, in order to succeed in a selective prosecution claim, the defendant must show that:10(a) the prosecution policy had a discriminatory effect; and(b) the prosecution policy was motivated by a discriminatory purpose.[11] The Supreme Court in Armstrong adopted a "rigorous" discovery standard forselective prosecution defences.11 Under the Armstrong approach, defendants mustfirst make a "credible showing" of both discriminatory effect and discriminatorypurpose before discovery will be ordered. To establish discriminatory effect thedefendant must show that the Government failed to prosecute other "similarly situated individuals" under the same statute. In United States v Olvis12 the FourthCircuit ruled that "defendants are similarly situated when their circumstances presentno distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.13 Several other Circuits have adopted9 United States v Armstrong 517 U.S. 456 (1996).10 At 465. This test was first established by the Supreme Court in Wayte v United States 470 U.S.598 (1985) at 608.11 At 468.12 United States v Olvis 97 F.3d 739 (4th Cir.1996).13 At 744 (emphasis added).the same or similar definitions. The "discriminatory purpose" limb of the test relatesto prosecutorial motive. Defendants must show that they were prosecuted because of their race, religion or other arbitrary classification.14[12] Successful selective prosecution claims in the United States appear to be rare. The only specific example of such a case cited in Armstrong dates back to 1886: Yick Wo v Hopkins.15Review of prosecutorial discretion – the New Zealand position[13] United States law has no direct application in New Zealand. Selective prosecution has not developed as a separate defence in England or New Zealand. However there is a broadly analogous line of cases which has considered the circumstances in which it is appropriate for the courts to intervene in the exercise of a discretion to prosecute, in a more general sense.[14] It has long been established in English law that, while there is jurisdiction to judicially review a public authority's decision to prosecute (or not prosecute), it is a jurisdiction which should be exercised sparingly.16 The English jurisprudence parallels the American selective prosecution jurisprudence in this respect. New Zealand courts have followed the English approach.17Review of decisions made by Standards Committees under s 152(2)(a) of the Act[15] The American selective prosecution jurisprudence relied on by Mr Deliu and the English and New Zealand authorities on prosecutorial discretion are, however, only indirectly relevant in this case. Standards Committees are not acting in a prosecutorial capacity when making decisions under s 152(2)(a) of the Act.18 Such decisions are nevertheless judicially reviewable, although the Court of Appeal has made it clear that Courts should be circumspect about intervening and that there is14 Wayte v United States 470 U.S. 598 (1985) at 608.15 Yick Wo v Hopkins 118 US 356 (1886).16 Sharma v Antoinne-Brown [2007] 1 WLR 780 at [14](5) and [30]; R(Bermingham) v Director of the Serious Fraud Office [2007] 2 WLR 635 at [63] (Courts should avoid satellite litigation which will delay the criminal trial).17 Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [68].18 Orlov v New Zealand Law Society and Ors [2013] 1 NZLR 390 at [61].very limited scope for review. In particular, in Orlov v New Zealand Law Societythe Court of Appeal observed that:19[50] It is unnecessary for us in this case to embark on any definitive exposition of the scope of judicial review of a decision made under s 152(2)(a), other than to observe that the prosecutorial analogy is not entirely apt. Unlike a prosecutor, the Standards Committee can only reach its determination after first conducting an inquiry and holding a hearing (albeit usually on the papers). Further, while the Standards Committee has the power to regulate its own procedure, the Act also expressly requires that in exercising and performing its duties, powers and functions, a Standards Committee must do so in a way that is consistent with the rules of natural justice. On the other hand, there is a strong legislative imperative that complaints are to be dealt with promptly and accordingly it is appropriate, as noted by Heath J, that the rules of natural justice be tailored to meet that objective. A further important consideration is the existence of the statutory right of review to the LCRO, whose decision is in turn amenable to judicial review. Also highly relevant is the fact that a decision under s 152(2)(a) does not determine the outcome of the complaint. It only determines which body should be seized of it. The decision is procedural in nature and occurs at a very preliminary stage of what is a comprehensive statutory process involving several checks and balances in what the legislature saw as a more responsive regulatory regime. Suffice it to say we accept the court must be circumspect and that there is very limited scope for review. Examples of where judicial review might be available would be cases where there has been non-compliance with the statutory prerequisites to the making of the decision, such as failing to conduct a hearing as required by s 152(1) or where there has been bad faith.Summary of matters relevant to all interlocutory applications[16] In light of the authorities and statutory provisions outlined above, I approach the interlocutory applications before the Court on the following basis:(a) It is clear from both from the American jurisprudence relied on by Mr Deliu and comparable English and New Zealand authorities that Courts will only intervene in the exercise of prosecutorial discretion in rare cases.(b) The Court of Appeal has mandated a similarly cautious approach to judicial review of determinations made by Standards Committees under s 152(2)(a) of the Act. Courts must be circumspect in reviewing such decisions and there is limited scope for review. The19 Orlov v New Zealand Law Society [2013] NZCA 230 at [50].approach to interlocutories in relation to such applications should reflect this.(c) The challenged decisions are procedural in nature and occurred at a"very preliminary stage of what is a comprehensive statutory process involving several checks and balances." Mr Deliu, following any substantive decision by the Disciplinary Tribunal, will have a statutory right of review to the Legal Complaints Review Officer, whose decision is in turn amenable to judicial review.(d) Disciplinary issues relating to the legal profession raise strong public interest considerations. There is therefore a "strong legislative imperative" that complaints under the Act be dealt with promptly. It is important that any collateral challenges to the preliminary stages of the disciplinary process be managed efficiently and effectively, given the potential of such challenges to fragment the disciplinary process and frustrate the legislative requirement to deal with disciplinary matters promptly.(e) Judicial review is intended to be a relatively simple, efficient and prompt procedure. Extensive interlocutories in judicial review proceedings are rare. In the present context wide-ranging interlocutory orders would have the potential to build a further layer of delay into the process.(f) Ultimately the interests of justice must prevail. The above factors must be given considerable weight in the exercise of the Court'sdiscretion as to whether or not to grant the interlocutory applications. They will not, however, be determinative if the further information sought by Mr Deliu is reasonably necessary in order to fairly and effectively adjudicate on the issues in the proceedings.[17] I now turn to consider each of the four specific interlocutory applications before the Court.Discovery application[18] Comprehensive discovery has already been undertaken informally, by agreement between the Law Society and Mr Deliu pursuant to r 8.2 of the High Court Rules. The Law Society has also provided Mr Deliu with extensive material in response to Privacy Act requests. Mr Deliu deposed that the Law Society has nowdisclosed "tens of thousands" of pages of documents to him. His main affidavit in support of his judicial review claims (sworn 15 November 2012) includes 4961 pages of exhibits, comprising 13 volumes.[19] Against this background, the Law Society submitted that the further discovery sought would be burdensome and disproportionate to the time and expense required to undertake such discovery. It submitted that, given the extent of discovery to date, further documentation is not necessary in order to ensure the fair determination of these proceedings.Approach to discovery in judicial review proceedings[20] Discovery in judicial review proceedings is discretionary. Whether discovery is necessary, and the scope of any such discovery, will vary from case to case.20 The approach to discovery in judicial review proceedings was summarised by Hammond J in Wellington International Airport Limited v Commerce Commission in the following terms:21(a) In civil proceedings discovery extends to what may advance theparty's case or damage the opponent's case in terms of the issues and the pleadings.(b) Relevance alone is not a sufficient test for discovery. Discovery must also be necessary for fairly disposing of the proceedings.20 Air NZ Ltd v Auckland International Airport Ltd (2001) 16 PRNZ 783 (HC) at [35]; Wellington International Airport Limited v Commerce Commission HC Wellington CP151/02, 25 July 2002;Abdee v New Zealand Law Society Wellington CIV-2004-485-2643, 1 April 2005.21 Wellington International Airport Limited v Commerce Commission HC Wellington CP151/02, 25 July 2002.(c) While there is no difference in principle between discovery in civil proceedings and judicial review, the requirements of expedition are relevant in judicial review proceedings, which necessitates a greater judicial responsibility to see that issues are narrowed and only what is truly required is laid before the court.(d) The ultimate question is whether the court could fairly and effectively adjudicate on the issues in the proceedings without the additional material sought.[21] High Court Rule 8.2 also requires that proportionality be taken into account.22Proportionality must reflect the time lost and cost of the order to the defendant, as balanced against the value of the documents.Documents relating to Mr Nigel Hampton QC[22] Mr Deliu's application for discovery seeks that "certain relevant documentsin relation to the position or status of Mr Nigel Hampton QC be discovered".[23] On 1 April 2010 the Board of the Law Society resolved that all existing complaints involving Mr Deliu, or own motion investigations, be transferred to anewly established NSC for investigation and completion, "in order to ensuremaximum efficiency, speed and economy". Mr Hampton was appointed as Chair of that NSC, which was established solely to deal with complaints by and against Mr Deliu and another lawyer.[24] Mr Hampton considered various documents provided to him and wrote, on 21 May 2010, to the Law Society's Complaints Manager in the following terms:Thank you for making available time, space and personnel on Wednesday and Thursday. Valuable from my point of view, enabling me to see a clear way forward with these vexed matters.I think that the schematic diagrams I left...do present the future procedural steps which the NSC, chaired by me, should take. It is, I think, a relatively straightforward, pared-down path...22 See also Karam v Fairfax New Zealand [2012] NZHC 887.Once the outstanding matters are tidied up...then [the relevant documents] should be copied and sent to each NSC member so that those folk can prepare themselves for a telephone conference meeting, in the near future.[25] The letter concluded with a suggested agenda for the proposed telephone conference, and enclosed an interim fee note.[26] Mr Deliu submitted that it could be inferred from this letter that Mr Hampton was being paid to act as legal counsel to the Law Society, in addition to his role as convenor of the NSC. If so, it was submitted that Mr Hampton was conflicted. This would, in turn, taint NSC's decisions to lay charges in the Disciplinary Tribunal against Mr Deliu.[27] Mr Paul Byers deposed that the Law Society meets the fees of Mr Hamptonbased on time expended, "in recognition of the extra time and responsibility that the convenors of these Committees might be required to expend and exercise over and above that which is expected of the convenors and members of other StandardsCommittees".[28] In order to consider whether Mr Hampton potentially acted in two or more capacities, giving rise to an arguable conflict of interest, it is necessary to consider the respective roles and functions of Standards Committees and the Complaints Service under the Act. Section 130 describes the functions of Standards Committees in the following terms:130 Functions of Standards CommitteesThe functions of each Standards Committee are—(a) to inquire into and investigate complaints made under section 132:(b) to promote, in appropriate cases, the resolution of complaints by negotiation, conciliation, or mediation:(c) to investigate of its own motion any act, omission, allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner...:(d) to intervene, in the circumstances prescribed by this Act, in the affairs of practitioners or former practitioners or incorporated firms:(e) to make final determinations in relation to complaints:(f) to lay, and prosecute, charges before the Disciplinary Tribunal.[29] In relation to complaints or own motion investigations a Standards Committee has only three options under s 152(2)(a) of the Act, namely whether:(a) the matter they are investigating should be considered by the Disciplinary Tribunal; or(b) the matter should be dealt with by itself as unsatisfactory conduct; or(c) no further action should be taken.[30] The Standards Committees can only receive complaints via the Complaints Service, which the Law Society is required to establish under s 121 of the Act. The Complaints Service is required to deal in a fair, efficient, and effective manner with all complaints received by the Complaints Service.23 The functions of the Complaints Service are set out at s 124 of the Act. They include providing assistance to Standards Committees and to the office of each such committee.[31] I am unable to find anything in Mr Hampton's letter (or other documentation that Mr Deliu relied on) that suggests that Mr Hampton's interaction with theComplaints Service was outside the scope of their respective roles, as envisaged by the Act. The NSC was required to inquire into and investigate the complaints relating to Mr Deliu and make a determination under s 152(2)(a) of the Act. As convenor of the NSC it was appropriate for Mr Hampton to undertake a preliminary review of the relevant documentation and form a view as to the best way forward procedurally. The Complaints Service, which was in possession of all of the relevant documentation regarding the various complaints, was obliged to provide Mr Hampton with whatever assistance and support he required. It appears to have done so.[32] Ultimately, only the NSC could make a decision under s 152(2)(a). That is what it did. There was no scope for the Complaints Service to make that decision, and there is no suggestion that it did so. Their role was strictly a support role. There23 Lawyers and Conveyancers Act 2006, s 123.is nothing on the face of Mr Hampton's letter which suggests that he was acting as legal counsel to the Law Society. On the contrary, the letter indicates that he was acting in his capacity as convenor of the NSC. The role of the Complaints Service was to provide administrative support role to Mr Hampton as convenor of the NSC. It appears to have done so.[33] Discovery of further documents regarding the "position or status" ofMr Hampton is accordingly not reasonably necessary in order to fairly and effectively adjudicate on the issues in the proceedings.Correspondence from the Law Society about Mr X[34] This discovery request relates to Mr Deliu's selective prosecution argument.Mr Deliu says that Mr X has "publicly and intemperately slurred the entire judicialbranch of government". Mr Deliu submits that Mr X's conduct is worse than hisown, but only he has been prosecuted.[35] Mr Deliu deposes that he "understands" that the President of theNew Zealand Law Society has written a letter to Mr X's chambers regarding hisconduct. Mr Deliu seeks discovery of that letter. However, Mr Deliu has annexed tohis affidavit the source material he relies on in support of his claim that Mr X'scomments are worse than his own. Further, there appears to be no suggestion that the letter Mr Deliu seeks discovery of was before either ASC1 or the NSC at the time of the challenged decisions.[36] In these circumstances, discovery of any letter written by the Law Society toMr X's chambers (if it exists) is not reasonably necessary in order to fairly and effectively adjudicate on the issues in the proceedings. I note for completeness that applying the stringent discovery test in Armstrong, which Mr Deliu relied on by analogy, would almost certainly lead to the same result.Any and all other documents which the Law Society has improperly refused to release[37] The final category of further discovery sought by Mr Deliu is described in hisapplication as being "any and all other documents which the respondent hasimproperly refused to release".[38] The Law Society's position was that none of the listed documents were"improperly" withheld. It relied on r 8.28 of the High Court Rules in terms of those documents which are privileged and confidential, and which were listed as such in compliance with r 8.16. The Law Society submitted that Mr Deliu's remedy was aformal application under r 8.25, which would need to be supported by more than hissimple "assertion" that documents have been wrongly withheld. The Court will usually require cogent evidence in support of a challenge to privilege.[39] On 6 September 2012 Courtney J directed Mr Deliu to file and serve, by 27 September 2012, an application for further discovery that specifically identifiedthe documents from the Law Society's "withheld" list which he said were properlydiscoverable.24 Mr Deliu did not comply with this direction. The Law Society, in its notice of opposition dated 5 October 2012 specifically noted this deficiency as a ground of opposition. However no amended application was filed prior to the hearing identifying the particular documents under challenge.[40] An attempt was made by Mr Deliu to identify some of the challenged documents during oral argument and a schedule listing the challenged documents (or some of them) was produced overnight.[41] The Law Society objected to this course and submitted that it would be prejudiced if the application were to proceed on the basis of a list of challenged documents produced at the "eleventh hour." There was simply no time to review and take instructions on the challenged documents during the course of the hearing, in order to elaborate further as to the basis on which they were privileged or withheld.24 At [4](a) of the Minute of Courtney J of 6 September 2012.[42] I accept the Law Society's submission on this issue. Courtney J gave a clear direction, eight months prior to the discovery hearing, as to what was required. It was not complied with. The category of documents challenged is expressed in extremely general terms in the application ("any and all other documents which therespondent has improperly refused to release"). It would be prejudicial to require the Law Society to deal with this aspect of the application without sufficient notice or time to prepare. Nor was it practical to produce the challenged documents for inspection by the Court at such short notice. Accordingly there would be significant practical constraints on my ability to resolve any disputed issues of privilege, had it been necessary to do so.[43] In the circumstances it is not appropriate to set aside any of the Law Society'sclaims to privilege and I decline to do so.Interrogatories[44] Mr Deliu has filed a notice requiring answers to a list of 145 interrogatories.They relate to the role of Mr Hampton (questions 1 to 35), "selective prosecution and other prosecutorial misconduct" (questions 36 to 86), the involvement of Harrison and Randerson JJ (questions 106 to 135) and a former Law Society President (questions 136 to 145). The questions also include a number of individual questions on a wide range of other issues. 25Interrogatories – the law[45] Interrogatories require a party to answer in writing, usually on oath, specific questions prior to trial. The answers to those questions may be used as evidence at trial. Interrogatories must relate to matters in issue between the parties. They are often used to establish facts that would otherwise be difficult or expensive to prove.25 Questions 87 to 105 were not pursued.[46] Interrogatories in judicial review proceedings are unusual. If there are to be interrogatories they must be ordered under s 10 of the JAA, not under the High Court Rules.26 Cases in which interrogatories have been allowed in a judicial review context are extremely rare. Zaoui v Greig27 was such a case, but the facts of that case are far removed from this one.The proposed interrogatories[47] Mr Deliu's submissions did not set out any reasons as to why he should be permitted to ask the proposed interrogatories. The reason for this was that Mr Deliu did not appreciate that, in a judicial review context, leave to issue interrogatories should be sought under s 10 of the JAA. The onus was accordingly on Mr Deliu to satisfy the Court that the interrogatories were appropriate, relevant, and necessary to fairly dispose of the proceedings. Mr Deliu had instead purported to issue interrogatories "as of right" under the High Court Rules.[48] The Law Society declined to answer Mr Deliu's interrogatories and applied to set them aside on the basis that they do not relate to matters in question between the parties; they are vexatious or oppressive; they are not material to the issues in the proceeding; they exceed the legitimate requirements of the subject matter in question; they are unduly burdensome and impose a burden on the Law Society which would be disproportionate to any benefit gained by Mr Deliu; and they are prolix, as evidenced by their sheer number (145 in total).[49] I will address each category of interrogatories in turn.The role of Nigel Hampton QC[50] Answers to the various questions regarding the role of Mr Hampton are not necessary in order to fairly dispose of the proceedings, for the reasons outlined at [22] – [33] above.26 G D S Taylor Judicial Review: A New Zealand Perspective (2nd ed, LexisNexis, Wellington, 2010) at [10.25] citing Black v New Zealand Law Practitioners Disciplinary Tribunal (1997) 12 PRNZ 52.27 Zaoui v Greig [2005] 1 NZLR 105 (HC).Selective prosecution and other prosecutorial misconduct[51] This category includes questions aimed at eliciting the number of lawyers who have had charges laid against them in the Disciplinary Tribunal and their country of birth; the number of lawyers in New Zealand who hold practicing certificates and the percentage of them who were born overseas; what disciplinary actions have been taken against various named lawyers; the country of birth of those lawyers, and so on.[52] Requiring the Law Society to review its files relating to every practising lawyer in New Zealand in order to determine if it holds information on their country of origin would in my view be oppressive and entirely disproportionate to any likely benefit to be gained from such an exercise. It is presumably for such reasons (amongst others) that the United States Supreme Court in Armstrong laid down strict threshold requirements for obtaining discovery in selective prosecution cases in theUnited States, requiring a "credible showing" of discriminatory purpose anddiscriminatory effect before discovery would be ordered in such a case.[53] Mr Deliu has already collated, and exhibited to his affidavits, extensive material in support of his selective prosecution claim. The Law Society has not challenged this evidence. Rather, it seems that at trial the Law Society is likely toaddress Mr Deliu's selective prosecution argument on the basis of legal principle,rather than by debating whether individual practitioners were born in New Zealandor overseas. Mr Deliu's evidence on such issues is accordingly unchallenged.[54] Any "benefit" Mr Deliu may obtain from answers to this proposed category is likely to be disproportionate to the burden that allowing the interrogatories would impose on the Law Society. Taking into account the various matters outlined at [16] above, it is my view that answers to this category of interrogatories are not necessary in order to fairly and effectively adjudicate on the issues in the proceedings.Correspondence between Judges and the Law Society[55] This category of questions relates broadly to the "Judge's issue" set out at[2](b) above. In particular, these 30 questions appears to be directed at finding outwhether there have been any communications (other than those already disclosed) between members of various Law Society bodies on the one hand and Justices Randerson, Harrison or Winkelmann on the other.[56] The primary issue in these proceedings is whether there are grounds for judicial review of the decisions by ASC1 and NSC to refer certain conduct by Mr Deliu to the Disciplinary Tribunal. Mr Deliu has deposed that he has received"tens of thousands" of pages of discovery materials. This appears to include all the information that was before the relevant committees, including correspondence from Randerson J (in his capacity as Chief High Court Judge) to the then President of the Law Society, which resulted in the decisions under challenge set out at [2](b) above.[57] Mr Deliu has not pointed to any evidence which suggests that the Law Society has not already given full disclosure of any relevant material under thishead. Questions 106 to 135 appear to fall within the category of "fishing". Answers to this category of questions are not necessary to enable the Court to fairly and effectively adjudicate on Mr Deliu's judicial review claims.Mr John Marshall QC[58] The final 10 questions relate to the former President of the Law Society, Mr Marshall. They are directed at establishing whether he has ever had any communications with various members of Law Society bodies about Mr Deliu. Mr Deliu has failed to establish the relevance of this line of questioning.Miscellaneous questions[59] Most of the interrogatories fall within the categories I have outlined above. However, there are some that do not. These include questions such as:(a) whether the New Zealand Law Society has implemented the United Nations Basic Principles on the Role of Lawyers;(b) why the NSC has not laid charges against Mr Deliu pursuant to its 12 November 2010 decision to prosecute him for serial incompetence;(c) what penalty the NSC is intending to seek against Mr Deliu if he is ultimately found guilty of serial incompetence, "saying bad things"about Harrison J or Randerson J, or disrupting the Complaints Committee meeting.[60] I have reviewed all of the questions which do not fall within the categories previously addressed. It is difficult to see the relevance of any of them to the pleaded issues. Answers to the various questions in this category are not necessary to enable the Court to fairly and effectively adjudicate on Mr Deliu's judicial reviewclaims.Admissions of fact[61] Mr Deliu served a notice to admit facts on the Law Society on 11 October 2012. A total of 53 "facts" were included in the notice to admit facts. Theseincluded wide ranging matters including allegations as to what Mr Pyke (the prosecutor in respect of the various charges laid before the Disciplinary Tribunal) said to Mr Deliu on various occasions, comments allegedly made bymembers of the Disciplinary Tribunal, whether Mr Hampton's invoices have beenpaid, whether a member of a Law Society Committee held pro-apartheid views, whether a member of a Law Society Committee has yelled at Mr Deliu and made certain comments to him, whether any disciplinary charges have ever been upheld against Mr Deliu, and so on.[62] The Law Society responded by solicitor's letter dated 16 October 2012. Thatletter advised that the Law Society did not intend to respond to the notice to admitfacts because the "facts" Mr Deliu was seeking admissions in respect of wereirrelevant to the pleadings, and further that some of them were self-evident in any event or were already the subject of evidence. The letter did not identify which particular questions were self-evident or which were already the subject of evidence.[63] Mr Deliu filed a formal application the following day, seeking orders that:(a) The Law Society's letter of 16 October 2012 be declared as anadmission of all (or some) facts contained in Mr Deliu's 11 October2012 notice to admit facts and that it be admitted into evidence as such.(b) That Mr Deliu be given judgment as to the causes of action relating to the decisions of 5 October 2011 and 22 March 2012 under judicial review.(c) Alternatively, that the Law Society be directed to properly respond toMr Deliu's notice to admit facts.Discussion[64] A notice to admit facts must specify the particular facts to be admitted. If those are admitted, there is no need to formally prove them at trial. If they are not admitted, but are subsequently proved at trial, the party who failed to admit them will be liable for the costs of proving them (regardless of the overall outcome).[65] Notices to admit facts are most commonly used where a party has pleaded a number of formal or technical matters which are uncontentious (for example that a particular company was incorporated overseas) but which may involve some expense to formally prove. Obtaining an "admission" in relation to such facts willhelp ensure proceedings are conducted efficiently and cost effectively, and that the issues are focussed on genuinely contentious matters. Admissions are usually sought prior to evidence being briefed, so that the costs of briefing evidence on admitted issues can be avoided.[66] The first order Mr Deliu seeks is that the Law Society's letter be declared tobe an admission of some or all of the facts in his notice to admit facts. However, the contrary conclusion must be drawn from that letter. The Law Society has declined to formally admit any of the facts in the notice, for the reasons set out in its letter.[67] The second order sought by Mr Deliu (judgment by admission) appears to rely on rr 15.15 and 15.16 of the High Court Rules. However, no admissions have been made which could justify judgment on any of the causes of action in this case.[68] The final order Mr Deliu seeks is that the Law Society be ordered to"properly respond" to his notice to admit facts. A notice to admit facts is not, however, analogous to a pleading. It is not necessary to deny every allegation or otherwise be deemed to admit it. A party is not required to formally respond to a notice to admit facts at all. Rather, r 8.47(4) simply records that if the party on whoma notice to admit facts is served "refuses or neglects to admit the facts within 5 working days" the costs of proving the facts in the notice must be paid by thatparty, unless a Judge otherwise orders.[69] It is clear from the Law Society's letter that it has elected not to formally admit any of the facts set out in the notice. It follows that it has "refused or neglected" to admit those facts in terms of r 8.47(4). That is a course the Law Society is entitled to take.Particulars[70] Mr Deliu's final interlocutory application is an application for further and better particulars of the Law Society's statement of defence.[71] The Law Society submitted that its statement of defence complies with r 5.48 of the High Court Rules and that Mr Deliu was simply trying to use the particulars sought to obtain answers to his interrogatories through an alternative means. I will address each request in turn.Paragraph 3[72] Paragraph 3 relates to the "meeting disruption" issue and sets out in somedetail Mr Deliu's allegations as to what happened at the relevant meeting. The LawSociety's statement of defence denies the allegations, save that it admits that no criminal investigation, charges and/or convictions were ever conducted, laid or secured against Mr Deliu.[73] The Law Society's pleading is compliant with r 5.48 and does not require further particularisation. Mr Deliu's alleged conduct at that meeting founds one ofthe charges currently before the Disciplinary Tribunal. What actually occurred at the meeting is an issue that will ultimately need to be determined in that forum. It does not require determination in these judicial review proceedings. The focus of these proceedings is on the procedural aspects of the decision by ASC1 to refer the"meeting disruption" issue to the Disciplinary Tribunal, rather than the details ofwhat occurred at the meeting itself.Paragraphs 6 and 18[74] Paragraphs 6 and 18 of the statement of claim plead that certain statementswere made to Mr Deliu by the Law Society's prosecutor, which are relevant to the"plea bargain" issue set out at [2](d) above. The statement of defence asserts that theLaw Society is not required to plead to those allegations as:(a) the pleaded discussions are not evidence of any decision capable of being judicially reviewed; and(b) the discussions were privileged.[75] I accept Mr Deliu's submission that this pleading is deficient. The Law Society has not applied to strike out the pleadings relating to the "plea bargain"issue. It must accordingly be assumed for present purposes that the issue is justiciable. The Law Society may argue to the contrary at trial, but at this stage it cannot simply assert that it not required to plead to the issue. Such a pleading presupposes that the Law Society will succeed at trial in its submission that the "plea bargain" issue is not one that is amenable to judicial review.[76] The position is similar in relation to the privilege objection. The relevant discussions may or may not have been privileged. The Law Society has not sought to have that issue resolved pre-trial. The Law Society cannot therefore avoid pleading to the facts asserted in paragraphs 6 and 18 merely by asserting privilege. It must admit or deny the underlying facts and, if it wishes, also plead that therelevant discussions were privileged. If the privilege claim is upheld at trial then any evidence or pleadings relating to the privileged conversations will ultimately need to be disregarded by the trial judge.Paragraphs 10 and 11[77] Paragraph 10 of the statement of claim refers to a letter that the Law Society received from Randerson J on 18 December 2009. The statement of defence admits receiving that letter and resolving to enquire into the matters raised by Randerson J, pursuant to s 130(c) of the Act. Mr Deliu seeks particulars as to "specifically, what concerns did Justice Randerson have about the plaintiff?"[78] Paragraph 11 of the statement of claim relates to a letter that the Law Society received from Randerson J on 6 July 2010. The statement of defence admits that Randerson J asked it to consider material Mr Deliu had submitted to the Judicial Conduct Commissioner and that it resolved to enquire into the material referred to it by Randerson J pursuant to s 130(c) of the Act. Mr Deliu seeks particulars as to"specifically, for what purpose was this material to be considered?"[79] Neither of these requests for particulars is well founded. The letters themselves form part of the evidence. The Court will be able to read the first letterand form its own views as to what Randerson J's concerns were, no doubt informedby any submissions the parties wish to make. In relation to the second letter, the particular sought is not a matter of pleading, but is more in the nature of an interrogatory.Paragraph 17[80] Paragraph 17 of the statement of claim pleads that "the AB charges have not been laid as at 21 December 2012". The statement of defence admits this.[81] Mr Deliu seeks further particulars as to why the charges have not been laid and when it is anticipated they will be laid. This is not a request for further and better particulars of a pleading. The questions are, in effect, interrogatories. Thepleading complies with the High Court Rules and no further particularisation is required.Result[82] The Law Society is required to plead to the allegations in paragraphs 6 and 18 of the statement of claim dated 21 December 2012. The amended statement of defence, including those pleadings, is to be filed and served by 19 July 2013.[83] The plaintiff's interlocutory applications are otherwise dismissed.[84] Leave is reserved to file memoranda on costs. Any memorandum on behalf of the Law Society is to be filed by 19 July 2013. Any memorandum in response by Mr Deliu is to be filed by 2 August 2013.____________________________Katz J