Deliu v Deputy Legal Complaints Review Officer

[2024] NZHC 1697

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-0423

[2024] NZHC 1697

UNDER

the Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of Rights Act 1990, and Declaratory Judgments Act 1908

IN THE MATTER

of proceedings moving for an application for judicial review, and other relief

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

DEPUTY LEGAL COMPLAINTS REVIEW OFFICER

First respondent

ATTORNEY-GENERAL

Second respondent

Hearing:

On the papers

Counsel/Parties:

Applicant in person

A Bloomfield and A J Vincent for first respondent (abiding) A P Lawson and S R Hiha for second respondent

Date of judgment:

25 June 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 25 June 2024 at 3.45pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Crown Law, Wellington

Copy to:
Applicant

DELIU v DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2024] NZHC 1697 [25 June 2024]

[1] This proceeding, allocated to me for determination as judicial review list judge, has its roots in the first respondent’s procedural failures in deciding not to recuse himself in disciplinary proceedings brought under the Lawyers and Conveyancers Act 2006 against Mr Deliu, the subject of Mr Deliu’s three successive (and successful) applications for judicial review.1 In the last of those, Walker J directed the first respondent reconsider recusal (as had Woolford J before her), after making disclosure directed by Powell J.

[2]    On 6 December  2023,  the  first  respondent  made  disclosure.  On  7  and  12 December 2023, Mr Deliu amended the grounds on which he sought the first respondent’s recusal. On 23 January 2024, the first respondent made further disclosure and directed any response be filed by 6 February 2024. On 21 February 2024, the first respondent again declined to recuse himself, noting Mr Deliu had not responded to his direction. In fact, by emails of 23 and 24 January 2024, Mr Deliu had responded.

[3]    The first respondent abiding this Court’s  decision,  Mr  Deliu  and  the second respondent agree I may dispose of this proceeding on proposed terms.

[4]Section 206(3) of the 2006 Act provides:

Subject to subsection (2) and to sections 205, 207, and 208, the Legal Complaints Review Officer must perform his or her functions and duties and exercise his or her powers in a way that is consistent with the rules of natural justice

and s 27(1) of the New Zealand Bill of Rights Act 1990 provides:

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

[5]    In the contextual assessment of natural justice’s application, as to “what form of procedure is necessary to achieve justice without frustrating the apparent purpose of the legislation”:2 the Legal Complaints Review Officer is such an authority;

1      Deliu v Deputy Legal Complaints Review Officer [2022] NZHC 2061 [Judgment of Powell J]; Deliu v Deputy Legal Complaints Review Officer [2023] NZHC 956 [Judgment of Woolford J]; Deliu v Deputy Legal Complaints Review Officer [2023] NZHC 3340 [Judgment of Walker J].

2      Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].

determination of his recusal affects Mr Deliu’s interests; and (absent statutory direction to the contrary) Mr Deliu was entitled to be heard in respect of it.3 The provisions to which s 206(3) is subject are not presently relevant.

[6] Having regard for the proceeding’s history as set out in the prior judgments and at [2] above, I find the LCRO’s failure to take into account Mr Deliu’s 23 and  24 January 2024 emails not to have met his entitlement to be heard. I am satisfied the proposed terms are appropriate relief to which Mr Deliu accordingly is entitled under ss 16 and 17 of the Judicial Review Procedure Act 2016.

[7]I therefore:

(a)declare there has been a breach of Mr Deliu’s right to natural justice, through the first respondent’s apparent failure to consider Mr Deliu’s emails regarding recusal dated 23 and 24 January 2024;

(b)quash the first respondent’s decision dated 21 February 2024;

(c)direct the first respondent reconsider Mr Deliu’s recusal application, and in particular:

(i)his recusal application dated 20 October 2022; and

(ii)the amendments to this application filed by Mr Deliu by email on 7 and 12 December 2023 and 23 and 24 January 2024; and

(d)order costs lie where they fell or fall.

—Jagose J

3      See, for example, Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at [153].