Deliu v Auckland District Court
[2021] NZHC 213
•22 February 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1439
[2021] NZHC 213
UNDER The Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of Rights Act 1990 and Declaratory Judgments Act 1908, the common law and equity IN THE MATTER
of proceedings moving for an application for judicial review, remedy in writ, injunctive relief, civil and bill of rights claims and a petition for declarations
BETWEEN
FRANCISC CATALIN DELIU
Plaintiff/Applicant
AND
THE AUCKLAND DISTRICT COURT
First Defendant/Respondent
AND
THE NEW ZEALAND POLICE
Second Defendant/Respondent
AND
THE ATTORNEY-GENERAL
Third Defendant/Respondent
Hearing: 17 December 2020 Appearances:
Applicant, self-represented (by telephone)
L Dittrich for First Respondent (by telephone)
K Laurenson and AP Lawson for Third Defendant (by telephone)Judgment:
22 February 2021
JUDGMENT OF WALKER J
This judgment was delivered by me on 22 February 2021 at 10.00 a.m.
Pursuant to Rule 11.5 High Court Rules Registrar/Deputy Registrar
DELIU v THE AUCKLAND DISTRICT COURT [2021] NZHC 213 [19 February 2021]
Introduction
[1] Mr Francisc Deliu is a barrister formerly practising in Auckland. He is now in an overseas jurisdiction. He is the plaintiff in multiple proceedings in the Auckland High Court which he conducts in person by remote means such as VMR or telephone.
[2] At the time of bringing his present application there were five proceedings on foot against various defendants, including four judicial review proceedings which are to be case managed by me in my capacity as judicial review list judge.1 These proceedings are at different stages. Substantive fixtures have been allocated in respect of some but not all. One judicial review proceeding had also recently been resolved.
[3] When this proceeding was called for mention on the judicial review list, Mr Deliu signalled further anticipated judicial review proceedings against the Minister of Police, the Ombudsman, Crown Law Office and the Attorney-General. He describes these as relating to requests he has made to stay criminal charges against him or to remove the prosecutor for alleged prosecutorial misconduct.
[4] Mr Deliu seeks my recusal from any proceeding in which he is a party.2 The basis for the application is said to be repeated failure to give reasons for my decisions. He relies primarily on directions made at earlier case management conferences in this proceeding and another unrelated judicial review proceeding in which he is plaintiff, and which has since been settled. A subsidiary basis is said to be a reference in a Minute to the risk of an adverse cost order if the grounds for a discovery application he intends to make are not made out. Lastly, he relies on my refusal to respond to an emailed request to my Associate asking the Court to identify the adverse party to that discovery application.
[5] Mr Deliu is alive to the fact that recusal is not about the correctness or otherwise of any direction made. As the Court of Appeal commented in Muir v Commissioner of Inland Revenue, it knew of “no common law jurisdiction which
1 Deliu v Johnstone CIV-2019-404-1098; Deliu v Chapman CIV-2019-404-1091; Deliu v Doe CIV- 2019-404-1092; Deliu v National Standards Committee No. 1 of the New Zealand Law Society; and Deliu v Attorney-General CIV-2020-404-1886.
2 Memorandum of plaintiff (No 6) for case management conference dated 14 December 2020.
accepts that a Judge’s adverse rulings are disqualifying per se”.3 This is so even if the adverse rulings are erroneous.
[6] Mr Deliu instead rests his application on his stated fear that he will not have a fair process on the present outstanding interlocutory matters as no reasons may be given for an adverse decision.
Principles
[7] Under s 171 of the Senior Courts Act 2016 (“the Act”), each head of the Senior Courts is required to prepare and publish guidelines setting out the Court’s approach to recusal. The guidelines are issued after consultation with the Chief Justice. The High Court recusal guidelines state, among other things:4
1.1A judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist.
1.2A judge should recuse him or herself if, in the circumstances, a fair- minded, fully informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide.
[8]This principle:5
... gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the [court] ... be independent and impartial.
[9] Thus, underpinning the concept of recusal are the twin principles of independence and impartiality.
[10] The Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd adopted a two-staged inquiry for recusal.6 The Judge must consider:7
3 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [101].
4 Justice Venning “High Court of New Zealand Recusal Guidelines” (12 June 2017) Courts of New Zealand <courtsofnz.govt.nz> at 1.1–1.2.
5 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
6 At [4]. The Supreme Court adopted the two-stage inquiry considered appropriate by the High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [8].
7 “High Court of New Zealand Recusal Guidelines”, above n 4, at 1.4.1–1.4.2 referring to Saxmere, above n 5, at [4].
1.4.1First, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and
1.4.2Second, whether there is a “logical and sufficient connection” between those circumstances and that apprehension.
[11] In this jurisdiction, the impugned Judge makes the decision on his or her own recusal.8
[12] The fair-minded and informed observer will not adopt the perspective of a party seeking recusal unless they are objectively justified in doing so.9 The observer is to be regarded as not unduly sensitive or suspicious.10 They are also presumed to be reasonably informed about the general workings of the legal system and the issues in the case.11
[13] The recusal guidelines require that these principles be applied firmly and fairly.12 The Judge should not accede too readily to suggestions of bias since to disqualify oneself on spurious grounds risks manipulation of the Court’s processes by a litigant.13 A Judge’s duty to sit:14
… helps protect judicial independence against manoeuvring by parties hoping to improve their chances of having a given matter determined by a particular Judge or to gain forensic or strategic advantages through delay or interruption to the proceeding.
Discussion
[14]I turn to the matters relied on by Mr Deliu and their context.
[15] First, there is my Minute of 27 October 2020 in Deliu v Legal Complaints Review Officer & Others.15 This was a matter in which Mr Deliu challenged decisions of the Legal Complaints Review Officer (LCRO). Other parties were named to encompass other complaints. A resolution was proposed by the parties. This was to
8 At 1.5.
9 Siemer v Heron (Recusal) [2011] NZSC 116, [2012] 1 NZLR 293 at [11].
10 Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 at [53] per Kirby J.
11 A v R [2016] NZSC 31 at [16].
12 At 1.5.1.
13 Deliu v New Zealand Law Society [2013] NZHC 1871 at [20].
14 Muir, above n 3, at [35].
15 Deliu v Legal Complaints Review Officer CIV-2020-404-1440 [LCRO proceeding].
record that, through no fault of the LCRO, there was a natural justice error and its decisions on certain complaints should be quashed and remitted to the LCRO for reconsideration. One of the parties signalled that it may be appropriate to serve the complainants in the LCRO complaint. Mr Deliu considered the complainants to the LCRO need not be served.
[16]After reviewing the memoranda filed, I recorded in a Minute:
[4] The applicant considers it unnecessary to name or serve the complainants because they did not actively oppose before the LCRO. Consequently, he contends that there is no prejudice by a reconsideration when they could be heard on the reconsideration and on the merits.
[5]The second defendant abides the decision of the Court.
[6] The proposed resolution by consent is a finding that through no fault on the part of the first defendant, there has been a natural justice error and complaints 191/2016, 105/2017 and 92/2017 should be quashed and remitted to the first defendant to be reconsidered and the proceedings discontinued against all the defendants save the fourth defendant.
[7] I acknowledge the applicant’s position on notice, but direct that the complainants be afforded an opportunity to be heard on the proposed consent orders. They are to be served with the joint memorandum and a copy of this Minute. I direct that if they wish to be heard on the proposed orders, they are to notify the Court within 21 days of service.
[17] In a subsequent Minute of Palmer J dated 3 December 2020, his Honour recorded that counsel for the first and third defendants considered those parties had been successfully served and that it was reasonably safe to proceed on that basis. The proceeding was therefore discontinued and by consent, the decisions of the LCRO quashed and remitted for reconsideration.
[18] Secondly, there is a direction made in the present proceeding at a case management conference. Some background to the proceeding is helpful to understand the case management issues.
[19] It was commenced in July 2020 against the Auckland District Court and New Zealand Police. Mr Deliu filed an amended statement of claim on 8 September 2020; a second amended statement of claim on 10 September 2020; a third amended statement of claim on 29 September 2020 and a fourth amended statement of claim on 14 October 2020. He also provided particulars to the respondents in response to a
request for particulars. The notice requesting particulars and the particulars provided in response were served but not filed. This is conventional. It is not however a convenient practice for the Court. It often leads to confusion for court officers. My direction that the particulars be incorporated into a more explicit statement of claim is a matter about which Mr Deliu complains.
[20] The genesis of the pleaded claim is charges laid by the Police against Mr Deliu in 2017. Mr Deliu alleges that the manner in which those charges were dealt with, in particular the District Court’s refusal to conduct a trial in his absence despite alleged Police agreement, and which led to the issue of arrest warrants amounted to multiple breaches of natural justice and of ss 25 and 27 of the New Zealand Bill of Rights Act 1990. He asserts, among other things:
(a)failure to deal with his various applications related to the charges;
(b)wrongful issue of a warrant for his arrest instead of proceeding to trial as agreed by both parties;
(c)the issue of a “facially invalid” warrant;
(d)provision by the District Court of a misleading transcript, failure to deal with his recusal applications in 2017, improper denial of a trial and improper treatment; and
(e)failure to process private criminal prosecutions filed with the District Court.
[21] Mr Deliu seeks a panoply of remedies. By way of illustration, and by no means capturing all remedies sought, he seeks judgment requiring the District Court to show cause regarding why it has not processed the private prosecutions or progressed any of the applications made to it; declarations that the Court has repeatedly denied him justice and a speedy trial; an order of mandamus requiring the Court to process his private prosecutions; a direction that the District Court apologise to him for denying him justice; a direction that named District Court judges not be
further involved in the case and directions regarding how a judge is to be selected for any case in the District court (by random selection rather than allocation); orders quashing the arrest warrants and a writ of prohibition in his criminal trial or alternatively a writ of mandamus that a particular judge be the trial judge in the District Court.
[22] Materially, Mr Deliu at the first case management conference noted that he was alleging bad faith against the District Court.16 Various allegations impugning the integrity of individual judges are also pleaded. As Mr Deliu will be aware from his practice as a barrister, it is inappropriate for judicial officers to take part in proceedings to review or appeal their decisions.17
[23] The first respondent indicated it would abide the decision of the court after provision of further and better particulars but reserved rights. This is an orthodox position to take. The Police reserved their position after Mr Deliu informed the Court that the Police are only named because they were parties to the decision under challenge.
[24] Counsel for the first respondent however also raised from the outset the question of the desirability of appointing counsel to assist in the role of contradictor. By the second case management conference she submitted that the better course would be for the Attorney-General to consent to being named as a respondent under s 14(2)(b) of the Judicial Review Procedure Act 2016. In her memorandum dated 19 October 2020 the stated reason was the nature of the allegations against the first respondent and members of the judiciary.
[25] Mr Deliu, in his memorandum in response for the case management conference, strongly objected to the Attorney-General taking part. He argued that as he had moved the Attorney-General to stay the criminal proceedings under s 176(1) of the Criminal Procedure Act 2011 it would be wrong for the Attorney-General to take
16 Minute of Palmer J dated 17 September 2021.
17 See, for example, Hugel v Cooney HC Tauranga CP17/98, 9 April 1999 at 6 as cited in Shaw v Attorney-General (No 1) [2002] NZAR 987 at [25].
a partisan role in this proceeding. He also argued that there was no need for a contradictor at all and that he was entitled to proceed to formal proof.
[26] At the telephone conference I identified the issue of joinder as the priority issue. Asked if he had any further submissions to make, Mr Deliu declined and relied on his earlier memorandum. He did not seek hearing time. Counsel for the first respondent submitted that the functions of the Attorney-General’s Office in respect of the stay request and defending these proceedings as the embodiment of the Crown defending the judiciary were separate functions. I indicated to the parties that I proposed to make a direction joining the Attorney-General. I stated that this is appropriate in the ordinary course and there is no justifiable basis for not doing so. It could be said that reasons were in fact orally delivered on one view of the matter. I also directed that a more explicit statement of claim should be filed incorporating the responses to the request for further particulars.
[27] Thirdly, Mr Deliu criticises a direction I made on 1 December 2020. My Minute of that date records that Mr Deliu is to make a formal application for discovery in respect of material he seeks from the Auckland District Court. In particular, he seeks material to support his allegation that a judicial officer had produced a “doctored” transcript to this Court, a clearly serious allegation. An application for particular discovery requires that there be grounds for belief that the document sought exists. My Minute recorded:
If the applicant seeks discovery, as signalled, he should file a formal application setting out succinct grounds as to his belief that the documents sought exist and why a discovery order should be made. The applicant will naturally be exposed to an adverse cost order if the grounds for such application are not made out.
[28] The fourth and last particular on which Mr Deliu relies relates to an email he sent to my Associate and copied to the Registry and other parties after issue of my Minute. His email stated:
There is one issue I am not clear on - who is the party that is adverse here, the District Court or the AG?
…
So, with respect, can this e-mail be treated as an informal request to the Bench to clarify this point? It may be that an amicus curiae is required.
I thank her Honour in advance for a clarification direction pursuant to High Court r 1.6.
[29]I directed the registry to respond in the following terms:
The applicant is asking for advice as to which party is the adverse party to an interlocutory application for discovery. It is not for the court to engage on this question.
[30] Mr Deliu’s submission is that these illustrate a pattern of failing to give reasons for decisions adverse to his interests. The failure to give reasons, he says, means that it is not possible to know on what basis the decision is made.
Position of other parties
[31] Counsel for the Auckland District Court indicated that the first respondent does not object to me presiding but otherwise abides my decision on the point. In short, the first respondent is agnostic as to the application.
[32] Counsel for the Attorney-General submits that the grounds relied on by Mr Deliu do not fall within the conventional bounds of a recusal application. Ms Laurenson characterises the nature of Mr Deliu’s complaints as asserted errors of law and not matters in which it is appropriate or necessary to grant recusal.
[33] The two-stage test to determine recusal requires me to first identify what it is said that might lead me to decide the case other than on its merits; and, secondly, to evaluate the connection between that matter and the feared deviation.
[34] It is unnecessary to canvass the reasons why Mr Deliu says my directions are in error. It is common ground that that is not the essential question despite the written material devoted to the issue by Mr Deliu.
[35] It is important to appreciate the context. All the directions complained of were made in the context of management of the judicial review list. The directions were made either in the course of or after telephone conferences of short duration but after
receiving voluminous memoranda from Mr Deliu.18 These were not hearings dedicated to interlocutory issues but generally “mentions” along with other judicial review cases by other parties.
[36] Most of the directions fall into the category of procedural or administrative decisions within the ordinary context of case management. The direction to file a more explicit statement of claim incorporating particulars provided by notice is so routine as to be purely administrative.
[37] I respectfully endorse the comment of Katz J in Deliu v The New Zealand Law Society that:19
… if the failure to provide written reasons for routine timetabling or case management directions was an indicator of bias then very few Judges would be able to sit at all.
[38] I frame the quintessential question at issue as would a fair-minded lay observer, assumed to have appropriate knowledge of all the relevant circumstances, believe there is a real possibility that I might not bring an impartial mind to any decision- making in Mr Deliu’s proceedings? The relevant circumstances include the procedural and substantive history of the proceedings. This is the measure of whether I must recuse myself. In my assessment, the answer is no. My reasons may be stated briefly.
[39] Mr Deliu’s complaints do not bear on nor suggest impartiality. It is a strain to suggest otherwise. His approach to his recusal argument falters for the same reason as it did in the case before Katz J. That is, rather than indicating a bias against him, his argument presumably means that I should recuse myself from involvement in any judicial review proceedings at all.20
[40] The directions at issue (save in respect of joinder of the Attorney-General) do not have the character of substantive decision-making but are routine directions in the context of robust case management of judicial review proceedings.
18 The exception to this description is the Minute issued on the papers in the LCRO proceeding.
19 Deliu v The New Zealand Law Society [2013] NZHC 1871 at [38].
20 See the comment of Katz J at [28].
[41] Mr Deliu’s arguments ignore the context of the directions, the submissions in memoranda filed before the mentions and the discussions at the case management conferences, including my indications at those conferences.
[42] Mr Deliu mischaracterises the nature of the last particular relied on by him. It was not a proper request to make of the Court nor was the manner appropriate. It was not and could not be construed in any shape or form as an application for directions as to service. I therefore put this particular to one side.
[43] Joinder of the Attorney-General was also a straightforward step in the context of the case Mr Deliu seeks to make. It is self-evidently necessary in circumstances where a plaintiff makes assertions of the type at issue in this proceeding. The purported conflict which Mr Deliu relies on was created from his choice to request a stay from the office of the Attorney-General. Though displeasing to Mr Deliu, joinder was an inevitable direction. In any event, the reasons for the request were sufficiently identified in the respondents’ memorandum and the reasons for proposing to make the direction were identified orally, albeit not recorded in the Minute.
[44] It follows that I must decline the plaintiff’s request that I recuse myself from further presiding over this or any other proceeding in which Mr Deliu is a party.
.......................................................
Walker J
7
1