Deliu v Deputy Legal Complaints Review Officer

[2023] NZHC 3340

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002063

[2023] NZHC 3340

UNDER

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

IN THE MATTER OF

proceedings moving for an application for judicial review, writs, bill of rights claims, and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

THE DEPUTY LEGAL COMPLAINTS REVIEW OFFICER

Respondent

Hearing:

2 November 2023

Appearances:

Applicant in Person (by VMR)

Respondent – Appearance excused (Abiding decision of Court)

Judgment:

24 November 2023

Reissued:

28 November 2023

JUDGMENT OF WALKER J

[Re-issued to correct typographical errors at paras 27 and 47]

This judgment was delivered by me on 24 November 2023 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

DELIU v THE DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2023] NZHC 3340 [24 November 2023]

[1]                 The applicant, Francisc Deliu, seeks judicial review of procedural decisions made by the respondent, a Deputy Legal Complaints Review Officer (Deputy LCRO). This is not the first judicial review arising from the same disciplinary process. Mr Deliu has succeeded in each of the earlier judicial reviews, in part or in whole.

[2]                 The genesis is determinations by the Wellington Standards Committee and National Standards Committee of complaints against Mr Deliu. One determination was by the Wellington Standards Committee in 2016. Two determinations were by the National Standards Committee in 2017. The background stretches back even further.

[3] Mr Deliu applied to review each of those decisions pursuant to s 193 of the Lawyers and Conveyancers Act 2006 (the Act). His reviews remain unresolved six years after the last of the three determinations.

[4]                 Central to the judicial review now before this Court are two earlier judgments. In the first Powell J directed, among other things, that the Deputy LCRO provide disclosure in response to Mr Deliu’s requests.1 In the second, Woolford J quashed the Deputy LCRO’s decision declining to recuse himself, for failure to give reasons. He remitted Mr Deliu’s application for recusal back to the Deputy LCRO for reconsideration. He also directed that the Deputy LCRO make a reasoned decision on Mr Deliu’s application for a recorded hearing by way of Virtual Meeting Room (VMR) or similar.2

[5]                 Mr Deliu contends that the Deputy LCRO has not complied with either Powell J’s or Woolford J’s directions, rendering the review process manifestly unfair. He makes this challenge on orthodox judicial review grounds including breach of natural justice, mistake of law and unreasonableness. Less orthodox is the primary remedy which Mr Deliu seeks.

[6]                 The Deputy LCRO is appropriately abiding the decision of this Court and so did not participate in the hearing. At a pre-trial case management conference,

1      Deliu v Deputy Legal Complaints Review Officer [2022] NZHC 2061 [Judgment of Powell J].

2      Deliu v Deputy Legal Complaints Review Officer [2023] NZHC 956 [Judgment of Woolford J].

Campbell J directed that the “record” could be produced to the Court as a bundle rather than in affidavit form in view of Mr Deliu’s description of the nature of the proposed material. He also directed that, once Mr Deliu narrowed his challenge by removing one of his pleaded allegations, it was not necessary to appoint counsel to assist the Court.

[7]                 Consequently, there was no material contradicting Mr Deliu’s statement of claim and no opposition at the hearing. Mr Deliu appeared in person by VMR from an overseas jurisdiction.

Decisions under review

[8]                 The first ‘decision’ before this Court comprises the series of disclosure responses from or on behalf of the Deputy LCRO. The issue is whether Mr Deliu’s right to natural justice has been breached by a failure to comply. Disclosure was directed in the first place to enable Mr Deliu to make an informed assessment of whether there are grounds to seek the Deputy LCRO’s recusal.

[9]                 The second ‘decision’ before this Court is the Deputy LCRO’s reconsideration of recusal, delivered on 6 July 2023.3 At the same time, the Deputy LCRO also determined that the substantive hearing on all three review applications are to be conducted by telephone. This is notwithstanding Mr Deliu’s request that there be a hearing by audio-visual link.

[10]              The thrust of Mr Deliu’s case is that the process associated with his substantive reviews under the Act have become farcical with no substantive progress since 3 December 2020. He contends that failures by the Deputy LCRO show that the review process is such that he has no hope of fair treatment in the substantive review. He asks this Court to direct that his extant reviews now be decided by another Deputy LCRO. In essence, while challenging the process by which the Deputy LCRO has dealt with his applications for recusal, he effectively seeks that officer’s recusal. He submits that this Court is entitled to do so without necessarily making any finding of bias against that officer.

3      That decision is erroneously dated 6 July 2022.

[11]              In the alternative, Mr Deliu asks for a writ of certiorari requiring the respondent to reconsider the decisions in accordance with the two prior judgments and the judgment of this Court along with a declaration as to breach of natural justice and an order quashing the second decision.

Background

[12]              It is unnecessary to traverse the history of this and Mr Deliu’s previous judicial review applications in any detail. The background is helpfully set out in Powell J’s judgment.4 In short, each of the judicial review applications to date have challenged procedural decisions leading up to the scheduled hearing of the reviews. The procedural decisions fall into one of the following interrelated categories:

(a)Recusal applications which the respondent has consistently declined.

(b)Requests for disclosure of, among other things, the Deputy CLRO’s prior association with members of the National Standards Committee and Wellington Standards Committee or individuals who have been the subject of complaints made against Mr Deliu; and

(c)Mode of hearing. As developed, this is whether the substantive hearing is to be conducted by telephone or by some audio-visual platform and recorded.5

Judgment of Powell J

[13]Three issues were determined by Powell J:

(a)Whether the Deputy LCRO should have recused himself at the request of Mr Deliu. Those requests were made on 12 August 2021(before any Deputy LCRO was allocated to the matter) and 31 August 2021.

4      Judgment of Powell J, above n 1, at [5]–[27].

5      Counsel for the respondent filed a memorandum dated 19 October 2023 advising, among other things, that substantive hearings before the LCRO are recorded as a matter of usual practice, similar to court and tribunal hearings. She confirmed that the same would apply to any future hearing of the underlying review at issue in this case.

(b)Whether the respondent ought to have addressed various requests for disclosure of information pertaining to the Deputy LCRO’s association with identified persons.

(c)Whether Mr Deliu was entitled to a hearing in person.

[14]              Powell J held that the Deputy LCRO had responded appropriately to both of the specific recusal requests made and neither ‘application’ provided any basis for recusal in the circumstances.6 Thus the first issue was decided against Mr Deliu.

[15]              He determined that Mr Deliu’s ability to make an informed decision on whether to pursue recusal required appropriate disclosure of all relevant information but the respondent had not at any point addressed those requests.7 He said:

[48] … Leaving aside the abrasive, often inappropriate, and  indeed  belittling tone of both the requests and the wider submissions focused upon recusal, Mr Deliu’s request of 31 August 2021 could not just be ignored. This did not mean that [the Deputy LCRO] had to outline “all dealings” as requested by Mr Deliu. On the contrary, and as Mr Deliu accepted, the response could have been very brief, or otherwise confirmed, as before, there was nothing to disclose “where it was possible that [an] observer might reasonably think the [decision maker] could be biased because of it” in terms of the judgment of Tipping J in Saxmere noted above. The request could not, however, simply be ignored, still less when there appears to have been some material provided by Mr Deliu sufficient to provide at least some foundation for the existence of a previous relationship between [the Deputy LCRO] and the subjects of one of the decisions and/or the decision makers. It was therefore important for disclosure to occur with regard to the nature of those relationships so as to ensure “protection of the manifest integrity of the judicial process”. It likewise follows that until such disclosure had been made Mr Deliu could not make an informed decision as to whether to make a further recusal application or not.

(Emphasis added)

[16]The second limb of Mr Deliu’s review was therefore made out.

[17]              On the third issue, Powell J was satisfied that the circumstances represented an exceptional situation justifying review in respect of a preliminary rather than a final

6 At [39].

7 At [41].

decision.8 The determination to make a decision on the papers was unreasonable, took into account irrelevant matters and breached Mr Deliu’s legitimate expectations. He therefore directed an oral hearing either before the same Deputy LCRO (if he did not recuse himself following provisional disclosure) or before another LCRO/Deputy LCRO as appropriate.9 Mr Deliu therefore also succeeded in his third ground of review.

[18]              Powell J directed disclosure in accordance with Mr Deliu’s requests which he set out in full in the judgment as follows:

[19]               Interspersed within the submissions were two requests for disclosure. The first provided:

I also demand that [the Deputy LCRO] disclose any and all dealings he has had with any of the “victims” of my supposedly untoward communications in file 12902. Frankly, this should have been done at the same time as the advice that he had been appointed to this file so that I would have adequate time to consider my position and prepare a recusal application that dealt with other possible conflicts. It is not for me to have to ask for these things, but rather those in authority should be fully transparent. Be that as it may, I now formally seek disclosure.

(emphasis in original)

[20]While the second stated:

I thus demand that [the Deputy LCRO] disclose any and all dealings he has had with any of the standards committee members that sat on either the National Standards Committee for the period of 11.09.2014 – 28.03.2017 in the file number 11979 (review file number 47/2021), 11.09.2014 – 19.04.2017 in file number 11982 (review file number 48/2021) or the Wellington Standards Committee 1 for the period of 12.01.2015 – 26.05.2017 (being the time from when an own motion investigation was first considered up until the determination on publication after which the file was closed) in file number 12902 (review file number 46/2021).

(emphasis in original)

…

[25] Four days later, on 11 September 2021, Mr Deliu made a further and final request for disclosure from [the Deputy LCRO] of the following information with regard to the members of the Standards Committee whose

8      Referring to Marlborough Aquaculture Limited v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC) at [15] cited in Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 220, [2014] 3 NZLR 23 at [36].

9 At [59].

decisions are under review and the “’Victims’ of [Mr Deliu’s] Unsatisfactory Conduct Electronic-Mails”, naming all of those in both classes:

I write to [the Deputy LCRO] and demand that he disclose any and all connections, be they in the nature of business, pecuniary, professional or personal relationships or associations, including but not limited to any friendships, acquaintances, partnerships, memberships in the same organizations (including but not limited to corporations, companies, societies, body corporates, boards, trusts or otherwise) and especially any mutual sittings on public bodies or private bodies performing public or quasi-public functions or otherwise, for the following individuals or relatives including but not limited to spouses, partners, parents, children et cetera)

[19]   The required disclosures all relate to members of the Standards Committee whose decisions are under review and the persons subject to the “unsatisfactory conduct electronic-mails”.

The disclosures by the Deputy LCRO

[20]   On 29 August 2022, the Deputy LCRO wrote referencing the judgment and advising:

As directed by Powell J at [62(1)] of the judgment, dated 19 August 2022, I advise:

1.Nigel Hampton QC was a member of the Law Practitioners Disciplinary Tribunal and the New Zealand Lawyers and Conveyancers Disciplinary Tribunal during the time I was a member of those Tribunals.

2.Ms Styants is known professional [sic] to me through common membership of Law Society committees.

3.Ms Ollivier is known to me by virtue of her role as General Manager Regulatory of the New Zealand Law Society.

4.Ms Bouchier was the Legal Complaints Review Officer during a period of time when I was a Deputy Legal Complaints Review Officer.

[21]   Mr Deliu considered that this response did not address dealings, connections or relationships or the extent of the respondent’s relationship. He emailed the Office of the LCRO on 13 September 2022 alleging non-compliance and signalling an application for recusal on that basis. He followed up on 27 September 2022 pointing out perceived inadequacies with the response. He wrote:

Proper disclosure would have required you to give details of the following: including but not limited to full details (i.e who, what, where, when, how) about any relationship (business or otherwise), be it friendship, professional association or elseways that you may have or have had with Mr Hampton QC, Ms Styants, Ms Ollivier and/or Ms Bouchier. You have given no information other than conceding that you knew them, which in the case of Ms Bouchier I already knew. That is not sufficient. I want to know how well you knew them,

i.e were you mates? When did you first meet? Did you socialize? If so, how often and in what form and how recently? Have you discussed me/my cases (complaints or litigation) with any of them? If so, please give full particulars.

[22]   Mr Deliu reiterated that the scarcity of disclosure information prejudiced his ability to advance an application to recuse the respondent on the basis of conflicts, thereby denying him a fair process.

[23]On 29 September 2022, the office of the LCRO emailed stating:

In response to your email 28 September, [the Deputy LCRO] advises:

“I have had no dealings with Mr Hampton or Ms Styants since at least 2010. My contact with Ms Ollivier was by reason of her role with the New Zealand Law Society. I do not recall discussing anything relating to Mr Deliu with her.”

[24]   Mr Deliu responded on 3 October 2022 asking the respondent to advise why this still did not address his earlier points.

[25]   On 5 October 2022, the office of the LCRO responded stating that the Deputy LCRO advises that he has had no dealings with either of the “respondents”. It further advised that the substantive reviews would be set down for an oral hearing by telephone after the time specified in the judgment elapses.

[26]   On 20 October 2022, Mr Deliu reapplied for the Deputy LCRO’s recusal. The Deputy LCRO issued a Minute that same day in which he declined to recuse himself. The material part of the Minute states:

[8]        Only today has Mr Deliu applied for my recusal. The reasons set forth in the application are not correct, insulting and do not provide any basis for recusal.

[9]Mr Deliu’s application for recusal is declined.

[27]   That outcome prompted Mr Deliu to commence judicial review proceedings on 1 November 2022.

Woolford J decision

[28]   Mr Deliu argued before Woolford J that his recusal application was dismissed without addressing a single one of the grounds that he had advanced against the Deputy LCRO. Further, that his application for hearing by way of recorded VMR or similar had been ignored.

[29]   Woolford J held that the omission to provide reasons was a reviewable error.10 He remitted the application for recusal back to the Deputy LCRO for reconsideration. He made no comment on the grounds advanced for recusal. He also stated that “[t]he Review Officer should also make a reasoned decision on Mr Deliu’s application for a hearing by way of recorded VMR or similar.11

The second decision under review

[30]   On 6 July 2023, the Deputy LCRO issued his “reconsideration” of the application for recusal, with reasons. Mr Deliu argues that this is not a “reconsideration” as directed as it does not address the correct application.

Discussion

[31]   The context of this judicial challenge is an important consideration. The purpose of the Act includes maintenance of public confidence in the provision of legal services and conveyancing services.12 One of the means of achieving those purposes is to provide a more responsive regulatory regime in relation to lawyers. There are numerous references to the requirement that the process of investigation of complaints be consistent with natural justice. 13

10     Judgment of Woolford J, above n 2.

11     At [8] and [10].

12 Lawyers and Conveyancers Act, s 3(2)(b).

13     Section 142 in relating to the procedure of standards committees.

[32]    Every determination of a standards committee is subject to the right of review to the LCRO under s 193 which reads:

193     Right of review

A person who is specified in any provision of sections 194 to 197 as a person who may apply under this section for a review may apply to the Legal Complaints Review Officer for that review.

[33]A review by the LCRO has been described in the following way:14

A review by the LCRO is neither a judicial review nor an appeal. Those seeking a review of a Committee determination are entitled to a review based on the LCRO’s own opinion rather than on deference to the view of the Committee. A review by the LCRO is informal, inquisitorial and robust. It involves the LCRO coming to his or her own view of the fairness of the substance and process of a Committee’s determination.

[34]Clearly, natural justice is no less important at this stage of the process.

The disclosure

[35]   I accept the submission that disclosure has not to date fully complied with the directions. There has been an attempt by the Deputy LCRO. The responses have gone some way to fulfilling the purpose of the directions but they have not gone far enough. The directions have been construed too narrowly without sufficient regard to their intrinsic purpose which was to inform Mr Deliu of the nature of those relationships so as to ensure “protection of the manifest integrity of the judicial process”. The importance of natural justice in the framework of a disciplinary process provided by the Act requires that the directions be fairly, purposively and objectively interpreted by the decision maker. The disclosures provided are not sufficiently informative. While it could arguably be inferred that the slimness of the information is by application of the test in Saxmere, more detail clarifying the nature of the connection with the four named persons is required so that informed decisions about potential conflicts can be made.

14     Deliu v Connell [2016] NZHC 361, [2016] NZAR 475 at [2].

[36]   Although I find that there has not been sufficient compliance, I do not accept Mr Deliu’s overly expansive interpretation requiring details of matters such as when they first met, whether they socialised or whether they had discussed Mr Deliu’s case. I also accept that disclosure is only required of any dealings from which an observer might reasonably think the decision maker could be biased because of it, a point which Mr Deliu accepted in his oral submissions. It may well be that the disjunct between the respective interpretations has led to the current impasse.

[37]   To illustrate, the Deputy LCRO says that Ms Bouchier was the LCRO during a period of time when the Deputy was in his role. It is clear that there is a relevant relationship or connection. No specific period of time is mentioned. There is no confirmation as to whether that connection is a working relationship only, and no explanation of how closely they worked together, if at all. A fair interpretation of the disclosure directions against the backdrop of their purpose requires that further information.15

[38]   A second example is the disclosure that Ms Styants is known to the Deputy LCRO professionally through common membership of Law Society committees. Very little can be fairly gauged from this information. There is no period of time, no indication of how many committees nor any sense of whether the only interaction was at committee meetings.

[39]   The same can be said in respect of all four persons identified by the Deputy LCRO. The further drip fed disclosures did not take the matter much further. As Mr Deliu argued, each further response paradoxically raises more questions than answers.

[40]   To recap, I agree that the disclosure has not been sufficient to comply with the directions made by Powell J. However, the extent of information Mr Deliu presses for goes beyond that which is required on any objective interpretation of the directions. Mr Deliu therefore succeeds in his first challenge on the basis of breach of natural justice and error of law.

15     Further information was disclosed in the second decision but I put this to one side for present purposes to focus on the “disclosure” correspondence.

The recusal decision

[41]   I accept there has been an error of law if Mr Deliu is correct that the decision dated 6 July 2023 does not address the October recusal application but earlier applications. This turns on whether the decision is in substance a reconsideration of the later application. It is necessary then to look more closely at the October recusal grounds compared to the earlier applications.16

[42]   The material Mr Deliu sent to the LCRO on 20 October 2022 was approximately 15 pages. Interspersed with submissions supporting the grounds are extracts from Powell J’s judgment and submissions made before Powell J (identified in coloured font) which Mr Deliu described before me as “rehashing old arguments that have never been resolved”. It began:

I move to recuse [the Deputy LCRO] and these are my reasons.

[43]   Although the structure is not completely clear, in part because of the inclusion of old arguments, four grounds are enumerated. The first ground is advanced in support of a request that the recusal application itself be argued via VMR rather than in support of the substantive recusal application. (This was not pursued by Mr Deliu as part of this review).

[44]The grounds raised were:

(a)Previous dealings with the Deputy LCRO in reviews.

(b)Lack of candidness about dealings with relevant individuals and misconduct by ignoring initial requests for disclosure and subsequently not complying with the directions to disclose.

(c)Manner of dealing with issues of recusal and mode of hearing, including:

16 There was initial confusion at the hearing as to which document was the October 20 ‘application’ given it was not dated and incorporated earlier submissions. This may have contributed to any error.

(i)Breaching the legitimate expectation that a hearing would be afforded;

(ii)Requiring that Mr Deliu justify why a hearing in person is required;

(iii)Applying amended provisions of the Act relating to mode of hearing retrospectively;

(iv)Avoidance of a hearing without justification and for ulterior motive.

(d)Admitted nexus with “victims”.

[45]    The Deputy LCRO’s decision begins by referencing the judgment of Woolford J and his direction to reconsider. It sets out the established test for recusal in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1).17

[46]   Relevantly, the decision does not identify the particular application until the next paragraph and then only refers to Mr Deliu’s application dated 31 August 2021. There is no explicit reference anywhere in the decision to the application of 20 October 2022.

[47]   It is incontrovertible that the direction was to reconsider the application dated 20 October 2022. That must mean on the grounds set out in that particular application. The recusal application dated 31 August 2021 had already been the subject of the hearing before Powell J although Mr Deliu himself submits there remained ‘live’ issues from that hearing.

[48]   The decision then refers to various reasons advanced by Mr Deliu and his “demands” for disclosure. These are all matters set out in the August submission.

17     Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1) [2009] NZSC 72; [2010] 1 NZLR 35.

Curiously, while Powell J’s judgment is referred to, there is no reference to the directions he made.

[49]   The decision then turns to the disclosures to Mr Deliu and cites the email correspondence on 29 August 2022 and 30 September 2022: The decision records:18

[11]              Mr Deliu has been advised of my association with four of the persons referred to by him. That association, and with members of the Disciplinary Tribunal, has not extended beyond a professional relationship.

[12]              Mr Deliu says that it is not sufficient that I acknowledge a professional relationship with these persons. He wants to know:

... how well you knew them, i.e. were you mates? When did you first meet? Did you socialise? If so, how often and in what form and how recently? Have you discussed me/my cases (complaints or litigation) with any of them? If so, please give particulars.

[13]             I do not consider that it is appropriate for a Judicial Officer to be subjected to cross examination such as this, and I do not intend to respond. I can only repeat that my association with those persons with whom I am acquainted was nothing other than a professional relationship, which may have involved a certain degree of what Mr Deliu may consider to be 'socialising'. That is not a reason for me to recuse myself from completing these reviews.

[14]              Mr Deliu has emphasised the fact that I was appointed to my role as Deputy LCRO when Ms Bouchier was the LCRO, and that, as Ms Bouchier was one of his "victims" then I am, ipso facto, biased against him.

[15]              The question is, does my professional relationship working as a Deputy LCRO, alongside Ms Boucher for a number of years, compromise my ability to bring a fair and independent approach to a consideration of Mr Deliu's review applications?

[16]I do not consider that to be the case.

[17]              If Mr Deliu’s submission were to be accepted, it would mean that if a person chooses to ‘say bad things’ about any Review Officer, then all Review Officers at the time would then be disqualified from conducting any future reviews involving that person.

[18]              That would be an illogical outcome that can not be accepted. (Emphasis added)

18     No email dated 30 September 2022 was produced to the Court. I anticipate there is an error in the date and it intended to refer to 29 September 2022.

[50]   The propositions in paragraphs [14]-[18] in the decision are not controversial but, as I apprehend it, the statement that his association has not extended beyond a professional relationship is the first time that this has been expressly stated.

[51]The reasons given for declining to recuse himself are:

(a)His professional relationship with the former LCRO after appointment to the role of Deputy LCRO does not compromise his ability to bring a fair and independent approach to a consideration of Mr Deliu’s case.19

(b)His association with persons with whom he is acquainted is nothing other than a professional relationship, which may have involved a certain degree of what Mr Deliu may consider to be socialising (meals during Tribunal hearings).

(c)The allegation that he has reacted in a negative manner towards Mr Deliu in previous hearings has already been addressed by Powell J who determined it was spurious.

(d)The submission that the Act requires an actual ‘layperson’ was also rejected by Powell J.

[52]   The decision then turns to the background and circumstances surrounding the mode of hearing issue:

[25]      Mr Deliu requires the hearing to be conducted by audio/visual means, and has stated that he intends to record the hearing. The reasons advanced by him is to record my reactions to him. Powell J has described that reason as “spurious”. There is consequently no need for a visual hearing and many hearings by this Office are conducted by telephone.

[26]      Mr Deliu previously agreed to the hearings being conducted by telephone and has not advised why that is no longer acceptable to him.

[27]      Section 206(5) of the Act provides that Review Officers may regulate his or her procedure in such manner as he or she thinks fit. Mr Deliu will have the opportunity to provide written submissions prior to the hearing, and will have the opportunity to speak on those submissions at the hearing. He will not be disadvantaged in any way by the hearing being conducted by telephone.

19     At [15]–[16].

[28]      If Mr Deliu advises why he would prefer a hearing by VMR (other than for reasons described by Powell J as ‘spurious’) the hearing can proceed in that manner (or similar).

[53]   The Deputy LCRO directed Mr Deliu not to record the hearing. Mr Deliu submits that this part of the decision is a mischaracterisation as he never indicated directly or indirectly that he intended (or indeed wished) to record the hearing himself as opposed to requesting that the officer record it.

[54]   Although the Deputy LCRO has left open the question of a VMR hearing, I accept that the reconsideration as a whole has gone awry. Grounds formerly advanced for recusal but no longer advanced by Mr Deliu are addressed. Grounds which are actually advanced in the October submission are not squarely addressed but avoided. The decision does not explicitly address the issue of compliance with Powell J’s directions for disclosure. On the contrary, the Deputy LCRO states that it is not appropriate to “cross-examine” a judicial officer. This statement is correct but, with respect, misses the essential point.20

[55]   In addition, it appears there has been a misunderstanding about Mr Deliu’s request that there be a hearing by VMR or similar which is recorded.

[56]   The cumulative effect is that I am satisfied that the decision of 6 July 2023 proceeded on the wrong basis. This constitutes an error of law.

Outcome

[57]   The orthodox course is to direct that the decision maker reconsider. As the Court of Appeal explained in Financial Services Complaints Ltd v Chief Ombudsman:21

[6] In judicial review proceedings, the court is concerned with the  lawfulness of the decision under review. Whether the decision was one the court itself might have made, had it been the decision-maker, is not relevant.

20 Also correct is his point that it would be an illogical outcome if all Review Officers at the time would be disqualified from conducting any future reviews involving someone who makes adverse remarks about any Review Officer.

21   Financial Services Complaints Ltd v Chief Ombudsman [2022] NZCA 248; [2022] 2 NZLR 740 at [6].

As a result, it is generally not for the court to substitute its decision for that of the statutory decision-maker; the appropriate relief will be a direction that the decision-maker reconsider. Nonetheless, there are cases in which the court might legitimately substitute its own decision. This includes when the court is satisfied that only one lawful decision was available to the decision-maker.

[58]    Mr Deliu was not able to cite any authority but forcefully argued that the Court should direct that a new Deputy LCRO be appointed. He submitted that a fresh start is required to avoid further delay and in the interests of justice being seen to be done. In doing so he expressly stepped away from arguing bias on the part of the decision maker and maintained that recusal can arise in instances other than establishment of bias. Mr Deliu submitted that, in the absence of a direction removing the Deputy LCRO from this case, there are two stages before the substantive case can take place; disclosure complying with Powell J’s directions and then a reasoned decision on recusal based on the grounds advanced by Mr Deliu on 20 October 2023 and new grounds (if any) arising from the disclosure.

[59]   I have sympathy for Mr Deliu’s argument because of the difficult history. I accept that Mr Deliu’s review has gone off the rails procedurally. I also acknowledge that the Court of Appeal in the passage cited above did not close the door to other reasons for substituting the decision-maker’s decision. However, after careful consideration, I decline to make the order he seeks. That order would essentially grant recusal in substitution for the decision without a reasoned jurisprudential basis for doing so.22

[60]In conclusion, Mr Deliu’s judicial review succeeds.

[61]I make a declaration that Mr Deliu’s right to natural justice has been breached.

[62]The ‘decision’ of 6 July 2023 is quashed.

[63]   The respondent is to provide the disclosure directed by Powell J within 14 days. This includes describing not only the nature of each of the relationships with the four identified individuals and the period of time of the association but is to indicate in a general way the frequency of association. For the avoidance of doubt this does not

22     Arguably there has been no reconsideration decision to substitute.

mean providing all of the details which Mr Deliu requested in the exchange of correspondence after Powell J’s judgement. I have found that goes beyond both the letter and spirit of Powell J’s directions.

[64]   Mr Deliu is to make any amendment adding grounds to his October 20 2022 recusal application in relation to the disclosure provided within 7 days of the disclosure.

[65]   The respondent is then to determine whether or not to recuse himself having regard to the grounds in the 20 October 2022 application (as amended).

[66]   I direct the respondent to consider Mr Deliu’s request for hearing by VMR giving due weight to the desirability and advantages of such over telephone hearings and to issue a reasoned decision without delay.

[67]   I further direct that the substantive hearing is to be recorded, as confirmed by counsel for the respondent.

Costs

[68]   Costs are to lie where they fall given that Mr Deliu is a self-represented non-lawyer for the purposes of costs and given the lack of opposition to the application for review. Mr Deliu is however entitled to any reasonable disbursements in relation to the filing of the application for review.

............................................................

Walker J