Deliu v Deputy Legal Complaints Review Officer

[2023] NZHC 956

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2145

[2023] NZHC 956

UNDER

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

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:

27 April 2023

Appearances:

Applicant in person (via VMR)

No appearance by or on behalf of Respondent

Judgment:

27 April 2023

JUDGMENT OF WOOLFORD J

Solicitors:           Crown Law, Wellington Copy to:  Applicant

DELIU v THE DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2023] NZHC 956 [27 April 2023]

[1]                  In a judicial review proceeding dated 1 November 2022, Mr Frank Deliu challenges a decision of the Deputy Legal Complaints Review Officer (Review Officer) dated 20 October 2022  declining  to  recuse  himself  from  dealing  with Mr Deliu’s case.

[2]                 When the proceeding was called in this Court on 8 February 2023, counsel   D Jones appeared for the Review Officer and advised the Court that he would abide by the Court’s decision.  Lang J set the matter down for a formal proof hearing on  27 April 2023. In a subsequent minute dated 1 March 2023, Campbell J declined to appoint counsel to assist the Court at the formal proof hearing.

[3]                 Mr Deliu has filed a comprehensive affidavit and extensive submissions and appeared by way of VMR from the United States of America, where he currently resides. No affidavit evidence to the contrary has been filed. Nor have any contradictory submissions been received.

Decision under review

[4]                 The decision under review is contained in a minute dated 20 October 2022. 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.

[5]                 Mr Deliu complains that the Review Officer dismissed his recusal application without addressing a single one of the allegations against him, even though it is trite that reasons are required, and without applying the required test, principles or procedures set out in the Supreme Court decision of Saxmere Company Ltd v Wool Board Disestablishment Company Ltd1 when deciding recusal.

1      Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35.

[6]                 Mr Deliu also complains that the Review Officer completely ignored his application for a hearing by way of VMR or similar, which would be recorded. The minute dated 20 October 2022 merely states:

The hearings will be conducted by telephone during  business  hours  in  New Zealand.

Discussion

[7]                 The right to reasons is beyond dispute.2 Where a body is acting in a judicial or quasi-judicial role, the provision of reasons can be seen as an aspect of the principle of open justice. The giving of reasons is important because if reasons are not given it is not possible for a Court on review to know whether there has been an error or mistake by the decision-maker and is instead obliged to guess or infer.

[8]                 In the present case, I am not going to guess or infer why the Review Officer declined Mr Deliu’s application for his recusal. The Review Officer should have provided reasons. That is a reviewable error.

[9]                 In the circumstances, I am not required to consider Mr Deliu’s other or alternative submissions or the merits of Mr Deliu’s application for recusal.

[10]              The Review Officer’s decision on Mr Deliu’s application for recusal is quashed. Mr Deliu’s application is remitted back to the Review Officer for reconsideration. The Review Officer  should  also  make  a  reasoned  decision  on Mr Deliu’s application for a hearing by way of VMR or similar, which would be recorded.

Woolford J

2      X & Y v Chief Executive Oranga Tamariki [2021] NZHC 2449 at [172]–[181].