DELIU v THE NEW ZEALAND LAW SOCIETY [2013] NZHC 2597

DELIU v THE NEW ZEALAND LAW SOCIETY [2013] NZHC 2597 [4 October 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-6182[2013] NZHC 2597BETWEEN FRANCISC CATALIN DELIUPlaintiffAND THE NEW ZEALAND LAW SOCIETYDefendantHearing: 13 September 2013Counsel: Plaintiff in personPJ Morgan QC and TA Needham for DefendantJudgment: 4 October 2013JUDGMENT OF KATZ J(Subpoena application)This judgment was delivered by me on 4 October 2013 at 4:30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors: Glaister Ennor, AucklandCopy to: PJ Morgan QC, HamiltonFC Deliu, AucklandIntroduction[1] Mr Frank Deliu is a barrister practising in Auckland. He seeks leave to issue subpoenas to two witnesses, requiring them to give oral evidence in these judicial review proceedings.[2] These proceedings relate to various decisions of (or actions by) twocommittees established by the New Zealand Law Society ("Law Society") under the Lawyers and Conveyancers Act 2006 ("Act"), namely the Auckland StandardsCommittee No.1 ("ASC1") and the National Standards Committee ("NSC"). The challenged actions and decisions of ASC1 culminated in a decision by that committee to lay a charge of unsatisfactory conduct against Mr Deliu in the Lawyers and Conveyancers Disciplinary Tribunal ("Tribunal") relating to Mr Deliu's allegedconduct at a committee meeting on 14 October 2008. The challenged actions and decisions of the NSC culminated in a decision 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 others.[3] Mr Deliu pleads that the challenged decisions of ASC1 and NSC were, amongst other things, unreasonable, discriminatory, made in bad faith, in breach of statutory or fiduciary duties, in breach of natural justice, based on errors of law, an abuse of process, biased, and substantively unfair.[4] The challenged decisions were made at a preliminary stage of the disciplinary process. The relevant charges have not yet been heard by the Tribunal. Nevertheless, the evidence before the Court in these proceedings is voluminous. It totals more than 9000 pages, comprised in 34 spiral bound volumes. Mr Deliu'sevidence includes 13 affidavits (most of them sworn by him) annexing a total of 533 exhibits. Those exhibits appear to include a significant portion of the discovery provided by the Law Society, as well as additional documents provided to Mr Deliu by the Law Society pursuant to Privacy Act requests. The Law Society has elected to file no additional evidence on substantive issues and only one brief affidavit on interlocutory issues.[5] In addition to the extensive written material before the Court, Mr Deliu also seeks leave to adduce oral evidence. In particular, he wishes to subpoena the respective convenors of the NSC (Mr Nigel Hampton QC) and ASC1 (Mr Stuart Grieve QC). Mr Deliu's subpoena application was filed pre-trial, but was argued (by consent) on the fifth day of the substantive hearing, following the completion of Mr Deliu's submissions and immediately prior to the hearing being adjourned partheard. Mr Deliu's subpoena application is opposed by the Law Society. I must accordingly determine whether, in all the circumstances of this case, leave should be granted to Mr Deliu to issue the proposed subpoenas.Subpoena of witnesses to give oral evidence in judicial review proceedings –relevant legal principles[6] The normal practice in judicial review proceedings is for evidence to be given by affidavit, rather than orally.1 Neither counsel were able to refer to any previous case in which a witness has been subpoenaed by an applicant for judicial review to give oral evidence in the proceedings. There is accordingly no direct authority on the correct approach to such an application.[7] Mr Deliu relied, by analogy, on the principles derived from the authorities on cross-examination of deponents in judicial review proceedings. I will therefore first summarise those principles, before considering the extent to which it may be appropriate to apply them, by analogy, to Mr Deliu's subpoena application.Cross-examination of deponents of affidavits in judicial review proceedings[8] Cross-examination of deponents who have sworn affidavits is not permitted as of right in judicial review proceedings. The underlying rationale for this is that judicial review applications will seldom turn on factual determinations. The relevanttribunal or authority's findings of fact, as distinguished from the legal consequencesof those facts, are generally not open to review by the court in the exercise of its supervisory powers. In such circumstances: 21 This is reflected in the Judicature Amendment Act 1972, see for example s 10(2)(f).2 O'Reilly v Mackman [1983] 2 AC 237 (HL) at 282 per Lord Diplock, as cited in Geary v Psychologists Board [2009] NZAR 338 (CA) at [12].to allow cross-examination presents the courts with a temptationtosubstitute its own view of the facts for that of the decision-making body upon whom the exclusive jurisdiction to determine facts has been conferred by Parliament.[9] In Roussel Uclaf Australia Pty Limited v Pharmaceutical Management Agency Limited a Full Bench of the Court Appeal reviewed the relevant principles. The Court observed that:3the objectives expressed in s 10(1) [of the Judicature Amendment Act 1972] of convenience, expedition and effective and complete determination of review proceedings will ordinarily best be served by refusing or restricting cross-examination of deponents.[10] Leave to cross-examine should therefore only be granted when it is "clearly necessary to enable the case to be disposed of fairly".4 The application for leave to cross-examine was declined in Roussel, on the basis that it exceeded the proper scope of judicial review and was in the nature of a "fishing expedition seeking to delve into the merits and substance of the decision".5[11] Subsequently, in Commerce Commission v Powerco Ltd the Court of Appeal noted that both parties accepted that cross-examination should only be permittedwhere it is "clearly necessary in order to fairly resolve the matter before the Court".6This approach was subsequently reaffirmed by the Court of Appeal and Supreme Court in Geary v Psychologists Board.7 It is therefore now well established that the relevant test is whether cross-examination is necessary, not whether it is helpful. The requirement that cross-examination be necessary results in leave to cross-examine being granted "only on rare occasions when required by the interests ofjustice".83 Roussel Uclaf Australia Pty Limited v Pharmaceutical Management Agency Limited [1997] 1 NZLR 650 (CA) at 656 per Richardson P.4 Ibid.5 At 658.6 Commerce Commission v Powerco Ltd CA123/06, 9 November 2006.7 Geary v Psychologists Board (2009) NZAR 338 (CA); Geary v Psychologists Board (2009) 19PRNZ 415 (SC).8 Geary v Psychologists Board (2009) 19 PRNZ 415 (SC) at [1].[12] In considering whether cross-examination is necessary the Court will consider a range of factors, including the supporting documents that are available, whether cross-examination is likely to help the Court clarify or decide the issues and the risk that the Court might be led squarely into the merits of a decision. The desirability of keeping judicial review as a simple, untechnical, and prompt procedure must also be kept in mind.9 Examples of situations where leave to cross- examine may be given include where there are clearly disputed issues of fact,10 thedecision maker's affidavit is inconsistent with the primary documents, the credibilityof a deponent is in issue,11 or when an applicant challenges a precedent fact on which the making of an impugned decision depended.12Consequences of a witness not attending for cross-examination[13] An order granting leave to cross-examine in judicial review proceedings does not of itself compel the deponent's attendance at trial, and it is not permissible forthe cross-examining party to seek to compel the attendance of a deponent by subpoena. Rather, the party that has served the affidavit will be entitled (but not required) to subpoena the deponent to attend for cross-examination, if they wish to do so. If they do not issue a subpoena, and the deponent does not attend for cross-examination, the court may decline to allow the affidavit to be read.13Should the "leave to cross-examine" principles be applied by analogy to anapplication for leave to subpoena witnesses?[14] I now turn to consider the extent to which it is appropriate to apply, by analogy, the principles derived from the cross-examination in judicial review proceedings cases to Mr Deliu's application to subpoena witnesses. In my view there are a number of factors that suggest that the analogy is not entirely apt.9 Wilson v White [2005] 1 NZLR 189 (CA) at [25] per McGrath J; Minister of Energy v PetrocorpExploration Ltd [1989] 1 NZLR 348 (CA) at 353.10 Auckland City Council v Auckland Electric Power Board and Ors HC Auckland CP26/93, 10 June 1993.11 Stratford Racing Club Incorporated v Adlam [2008] NZAR 329 (CA); Edwards v Toime (No 1)[2005] NZAR 140 (HC).12 Roussel Uclaf Australia Pty Limited v Pharmaceutical Management Agency Limited [1997] 1 NZLR 650 (CA).13 Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 at 353; New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 554; see also McGechan on Procedure (online ed, Brookers) at [HR9.74].[15] First, the effect of the orders Mr Deliu seeks would be to compel the attendance at trial of the conveners of ASC1 and NSC. However, as set out at [12] above, granting leave to cross-examine a decision maker on his or her affidavit would not, in itself, compel their attendance at trial. Accordingly, if Messrs Grieve and Hampton had sworn affidavits in these proceedings, Mr Deliu would not be able to compel their attendance at Court for cross-examination on those affidavits.[16] The authorities are replete with examples of cases where Courts have robustly criticised decision makers for failing to provide an affidavit. However, it has never been suggested, to the best of my knowledge, that the appropriate course in such circumstances would be to subpoena the decision maker to give oral evidence at trial. For example, in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries14 the Court of Appeal heavily criticised the Minister for his failure to provide an affidavit , which was seen as being inconsistent with hisduty of candour. However, there was no suggestion that the appropriate "remedy"was to compel his attendance at trial. Rather, the Court observed that a decision- maker who fails to provide an affidavit risks adverse inferences being drawn in relation to matters of doubt on which he was best placed to give evidence.[17] The Law Society, however, did not suggest that I had no power to grant leave to Mr Deliu to issue subpoenas to Messrs Grieve and Hampton. Rather, argument focussed on whether it was appropriate to do so in all the circumstances of this caseapplying, by analogy, the "necessary" test from the cross-examination cases. I will therefore approach the issue on that basis.[18] I note, however, that in my view it would only be in an exceptional case that it would ever be appropriate to compel the presence before the Court of a decision maker in judicial review proceedings. The "necessary" test should be applied strictlyin the subpoena context. The appropriate "remedy" in most cases would be for theCourt to draw an adverse inference against the decision maker if there is reliable evidence before the Court that raises significant matters of doubt that the decision maker has elected not to address.14 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA).Should leave be granted to Mr Deliu to issue subpoenas to Messrs Grieve and Hampton?[19] I now turn to consider whether evidence from Messrs Grieve and Hamptonon the issues identified by Mr Deliu is "necessary" in order to fairly dispose of theproceedings.Proposed areas of cross-examination[20] It is well established that an application to cross-examine a deponent in judicial review proceedings should state the factual areas for cross-examination, relating them to the grounds for challenging the decision as pleaded, and matching them to passages in particular affidavits or documentary material contended to give rise to gaps and deficiencies which should be subject to cross-examination.15 In myview the same general principles should apply, by analogy, to Mr Deliu's subpoena application. As Mr Deliu's application was deficient in this respect, I gave him theopportunity to address this during the hearing.[21] Firstly, in relation to Mr Grieve, Mr Deliu advised that he wished to elicit evidence from him on the following issues:(a) Why were two committee members not investigated in relation to their own actions at the 14 October 2008 meeting which resulted in the laying of charges against Mr Deliu?(b) Is it correct that Mr Orlov was not charged in relation to his conduct at the 14 October 2008 meeting because he was not acting as a lawyer at that meeting?(c) Why is Mr Deliu's case "so special" that it should go to the Tribunal (rather than be determined at standards committee level)?15 Roussel Uclaf Australia Pty Limited v Pharmaceutical Management Agency Limited [1997] 1 NZLR 650 (CA); Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA);Commerce Commission v Powerco Ltd CA123/06, 9 November 2006.(d) Why was Mr Deliu (allegedly) given an offer that certain charges would be withdrawn, contingent on his withdrawing civil proceedings against the Law Society?[22] In relation to Mr Hampton, Mr Deliu advised that he wished to elicit evidence from him on the following issues:(a) Why have charges not yet been laid (in relation to Mr Deliu's allegedserial incompetence) after four years of processes?(b) Why did Mr Hampton not provide Mr Deliu with particulars and other procedural rights that Mr Hampton had referred to in an article he wrote about disciplinary investigations in the NZ Lawyer Magazine?(c) Was Mr Hampton aware of the legal principles set out in the Leary16and Dorbu17 judgments as to the limitations on the use of legal judgments in disciplinary proceedings?(d) Why was the Court of Appeal judgment that overruled a judgment of Harrison J (which was critical of Mr Deliu) not considered by the NSC?(e) Why was Mr Deliu (allegedly) given an offer that certain charges would be withdrawn, contingent on his withdrawal of civil proceedings?(f) Why did another practitioner who made negative comments aboutJudges and/or the judicial system only receive a "slap on the wrist"?(g) Why is the Law Society doing nothing to investigate other practitioners who have made negative comments about Judges and/or the judicial system?16 Auckland District Law Society v Leary HC Auckland M1471/84, 22 October 1986 at 25-28;Auckland District Law Society v Leary HC Auckland M1471/84, 12 November 1985 at 9-11.17 Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-7381,11 May 2011.(h) Did Mr Hampton act under dictation from any Judges?(i) On what basis did Mr Hampton sign off on the charges when, Mr Deliu alleges, he "knew that they had never been the subject of a single lawful process"?[23] The issue I must determine is whether it is clearly necessary, in order to fairly resolve the matters before the Court, that Messrs Grieve and Hampton give oral evidence on these issues. In my view it is not, for the reasons outlined below.[24] Mr Deliu submitted that the absence of affidavit evidence from the Law Society necessitates the issuing of subpoenas. However, as noted at [16] above, the case law is replete with examples of cases where decision makers have not provided affidavits. Although this has often resulted in robust criticism from the Courts it has never, to date, resulted in the issuing of subpoenas against the relevant decision makers.[25] Further, Orlov v New Zealand Law Society18 demonstrates that affidavits will not always be necessary where there is a full and proper record before the Court of disciplinary proceedings. The primary documents will usually tell the story. As summarised at [4] above, there is voluminous contemporaneous documentary evidence before the Court in this case. The Court is well experienced in determining whether the inferences that Mr Deliu seeks to draw from the contemporaneous documents are available and appropriate.[26] In any event, to a significant extent this case is likely to turn on legal rather than factual issues. Although I have yet to hear submissions from the Law Society, it appears that many of the facts relied on will not be in dispute. Rather, the focus will be on whether such facts give rise, as a matter of law, to any proper ground of review.18 Orlov v New Zealand Law Society [2013] NZCA 230 at [102].[27] Turning to the specific issues Mr Deliu seeks to address, it is difficult to seehow answers to Mr Deliu's questions could materially assist the Court. For example, evidence from Mr Hampton as to "whether he was aware of the legal principles setout in the Leary and Dorbu judgments as to the limitations on the use of legaljudgments in disciplinary proceedings" will not be of assistance. It is not in disputethat the NSC relied on various legal judgments critical of Mr Deliu in its deliberations. Whether, as a matter of law, it was entitled to do so, is a matter for this Court, not Mr Hampton.[28] Similarly, evidence from Mr Hampton as to why he (allegedly) "didn'tprovide Mr Deliu with particulars and other procedural rights that Mr Hampton had referred to in an article he wrote about disciplinary investigations in the New Zealand Lawyer Magazine" will not advance matters. It is clear from the record what information or other "procedural rights" were afforded to Mr Deliu bythe NSC. Whether this falls short of the required standards is a matter for this Courtto determine. The same observations apply to Mr Deliu's assertion that the chargesagainst him have "never been the subject of a single lawful process". It is for this Court to determine whether that is so. Mr Hampton's views on the topic will notassist.[29] The strongest ground that Mr Deliu has for obtaining leave to subpoena Mr Grieve or Mr Hampton is that bad faith is alleged against both the NSC and ASC1. In particular, Mr Deliu argues that he is being "selectively prosecuted" by theLaw Society on the basis that he is "foreign born". At least some of his proposed questions touch on this or related issues.[30] The Courts have recognised that leave to cross-examine will sometimes be appropriate where bias, pre-determination, or bad faith is alleged, if cross- examination is necessary to resolve those issues.19 Even then, however, courts will usually be circumspect. As the Court of Appeal recently observed in Orlov v NZLS20 "the utility of calling a witness in order to ask the witness whether he or she19 See for example Whakatane District Council v Bay of Plenty Regional Council (2008) 19 PRNZ 91 (HC) and Zaoui v Attorney General (No 2) (2003) 7 HRNZ 279 (HC).20 Orlov v New Zealand Law Society [2012] NZCA 12 at [27].made a decision in bad faith is doubtful, to say the least". Similar observations were made by the Court of Appeal in Geary v Psychologists Board:21It cannot be the case that mere allegations of bias and predetermination are enough in themselves to require leave to be granted thereby allowing cross- examination effectively as of right. There must be an evidential basis for such claims and, as a matter of fairness, cross-examination must be necessary for these to be advancedIt is unrealistic to expect that, in cross- examination, the deponents of the affidavit will suddenly make oral statements which will be of material assistance in the determination if all that is proposed are general allegations of bias. There is, in addition, the problems inherent in the assessments or views of one member of a multi- member body being held out as representative of the view of all the members, which cannot be overlooked.[31] The utility of cross-examining one member of a board or authority was also questioned in Powerco. In that case the Court of Appeal concluded that it was not necessary to cross-examine the Chair of the Commerce Commission in relation to a collective decision of the Commission.22[32] Such observations are apt in this case. Subpoenaing Mr Grieve or Mr Hampton in order to attempt to elicit evidence on the "selective prosecution"issue is likely to be pointless and, frankly, would amount to little more than a fishing exercise. Mr Deliu has exhibited voluminous documentation relating to his selective prosecution arguments. Evidence from one member of a committee that made a collective decision to refer certain matters to the Tribunal is not necessary in order to determine these or any other allegations of bad faith. As in Geary, the allegations of bad faith in this case are general in nature. They essentially amount to an allegation of institutional discrimination on the part of the Law Society and its organs. There is no specific evidence of bad faith on the part of Messrs Grieve and Hampton which it is necessary to lead evidence from them on.[33] I also note that Mr Deliu's submissions proceeded on the assumption that hewould be cross-examining Messrs Hampton and Grieve. However, if Mr Deliu'sapplication is successful he would be calling those witnesses to give evidence in chief. Any cross-examination would be undertaken the Law Society.23 The21 Geary v Psychologists Board [2009] NZAR 338 (CA) at [26].22 Commerce Commission v Powerco Ltd CA123/06, 9 November 2006.23 Orlov v New Zealand Law Society [2012] NZCA 12 at [27].observations of the Court of Appeal in Orlov and Geary to the effect that it would be unrealistic to expect that, in cross-examination, deponents would suddenly make concessions of bias or bad faith have even more force in circumstances where Mr Deliu would not be able to cross-examine the relevant witnesses, but would be leading their evidence in chief.Summary[34] Mr Deliu seeks leave to issue subpoenas requiring the convenors of the NSC (Mr Hampton) and ASC1 (Mr Grieve) to give evidence in these judicial review proceedings.[35] There appear to be no previous New Zealand cases in which decision makers have been subpoenaed by an applicant for judicial review to give oral evidence at trial. Mr Deliu accordingly relied on the authorities relating to cross-examination of deponents in judicial review proceedings, by way of analogy. The Court will grant leave to cross-examine a deponent on specifically identified issues if such cross-examination is clearly necessary to fairly determine the proceedings ([10] to [12] above).[36] I have reservations as to whether the cross-examination analogy is apt, for the reasons outlined at [15] and [16] above. In my view it would only be in an exceptional case that it would ever be appropriate to compel the presence before theCourt of a decision maker in judicial review proceedings. The appropriate "remedy"in most cases would be for the Court to draw an adverse inference against the decision maker if there is reliable evidence before the Court that raises significant matters of doubt that the decision maker has elected not to address.[37] However, even applying the cross-examination principles by analogy, I have concluded (for the reasons outlined at [24] to [33] above) that oral evidence from Messrs Hampton and Grieve is not necessary in order to fairly determine these proceedings. There has been extensive discovery and disclosure, resulting in comprehensive documentary evidence being placed before the Court. The primary documents will usually tell the story. Further, most of the key facts are not indispute. Rather, determination of these proceedings is likely to turn on the legal consequences of those facts.[38] In relation to the specific issues Mr Deliu seeks to address with MessrsGrieve and Hampton, it is difficult to see how answers to Mr Deliu's questions couldmaterially assist the Court. Indeed a number of the proposed questions relate to legal issues.[39] The strongest ground that Mr Deliu has for obtaining leave to subpoena Mr Grieve or Mr Hampton is that bad faith is alleged against both the NSC and ASC1. However, as the Court of Appeal recently observed in Orlov v NZLS24 "theutility of calling a witness in order to ask the witness whether he or she made a decision in bad faith is doubtful, to say the least". It is not necessary to adduce oral evidence from Mr Hampton or Mr Grieve in order to determine the issues of bad faith raised by Mr Deliu ([29] to [32] above).Result[40] Oral evidence from Mr Grieve or Mr Hampton is not necessary in order to fairly determine these proceedings. The application for leave to subpoena those witnesses is accordingly dismissed.[41] My preliminary view is that the Law Society is entitled to costs on a 2B basis. If costs cannot be agreed based on this indication then leave is reserved to file memoranda.____________________________Katz J24 Orlov v New Zealand Law Society [2012] NZCA 12 at [27].