Deliu v Deputy Legal Complaints Review Officer
[2022] NZHC 2061
•19 August 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1756
[2022] NZHC 2061
UNDER The Judicial Review Procedures 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, writs, bill of rights claims and a petition for declaratory relief
BETWEEN
FRANCISC CATALIN DELIU
Applicant
AND
DEPUTY LEGAL COMPLAINTS REVIEW OFFICER
Respondent
Hearing: 18 May 2022 Appearances:
The applicant in person
No appearance by respondent (excused) S Jerebine as contradictor
Judgment:
19 August 2022
JUDGMENT OF POWELL J
This judgment was delivered by me on 19 August 2022 at 11 am pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
Crown Law / Te Tari Ture o Te Karauna, Wellington (D Jones / CPC Wrightson) S Jerebine, Bank Chambers, Auckland
Copy:
Mr Deliu, Millwater, Auckland
DELIU v DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2022] NZHC 2061 [19 August 2022]
[1] In these proceedings the applicant, Francisc Deliu, seeks judicial review of three related procedural decisions made by a Deputy Legal Complaints Review Officer (“DLCRO”), Owen Vaughan.
[2] Mr Vaughan had been assigned to hear three applications for review by Mr Deliu pursuant to s 193 of the Lawyers and Conveyancers Act 2006 (“LCA”). Mr Deliu sought review of three complaints determined against him; one in 2016 by the Wellington Standards Committee and two in 2017 by the National Standards Committee of the New Zealand Law Society (“the reviews”).
[3] Mr Deliu alleges that in the period leading up to the scheduled hearing of the reviews:
(a)Mr Vaughan failed to recuse himself when requested to do so by Mr Deliu;
(b)Mr Vaughan otherwise failed to disclose his association with members of the National Standards Committee/Wellington Standards Committee or with those who were the subject of the complaints of those decisions; and
(c)Mr Vaughan had moved to deny Mr Deliu a hearing in person.1
[4] As the respondent, the DLCRO, is appropriately abiding the decision of this Court, Ms Jerebine was appointed to act as a contradictor on the applications.
Factual background
[5] The decisions of the Wellington Standards Committee and National Standards Committee at issue were released in 2016 and 2017 respectively. The Wellington Standards Committee decision related to a series of comments made by Mr Deliu about a number of individuals, none of whom were named in the decision. The National Standards Committee decisions related to a specific complaint brought by a
1 Actually a hearing by AVL given Mr Deliu is now permanently based out of New Zealand.
practitioner for comments made about him by Mr Deliu, and a complaint about the quality of representation provided by Mr Deliu to a former client.
[6] Mr Deliu applied to review each of the decisions. The reviews were set down for hearings before Rex Maidment, the Legal Complaints Review Officer (“LCRO”), but in June and July 2018, after Mr Deliu failed to appear at the hearings set down, they were struck out by Mr Maidment and the decisions of the Standards Committees were confirmed.2
[7] Mr Deliu applied to the High Court for judicial review of the LCRO decisions. On 3 December 2020 Palmer J issued a minute that recorded a consent decision finding that, through no fault of Mr Maidment, there had been a natural justice error. The LCRO decisions of 25 June, 18 July and 19 July 2018 were quashed and the reviews remitted back to the LCRO for reconsideration.
[8] Following remission, in April 2021 a LCRO staff member, Carolyn Umali, sought Mr Deliu’s consent for the three reviews to be determined on the papers. Mr Deliu declined and confirmed he wished an oral hearing.
[9] On 10 May 2021, Ms Umali noted Mr Deliu’s request for hearings and sought to confirm details about Mr Deliu’s attendance at the hearings. On 17 May 2021, Mr Deliu responded to confirm that he would attend virtually during New Zealand business hours and sought a hearing date after 28 July 2021.
[10] On 3 August 2021, Ms Umali emailed Mr Deliu proposing four alternative dates for the hearings to take place by telephone. On 4 August 2021, Mr Deliu confirmed his availability for a hearing on 14 September 2021. Ms Umali subsequently issued Notices of Applicant-Only Hearings for all three hearings to be held on 14 September 2021 and noted a presiding officer had yet to be assigned to the hearings.
2 Deliu v Chambers LCRO 98/2017, 105/2017, 223/2017, 25 June 2018; Deliu v Wellington Standards Committee 1 LCRO 191/2016, 18 July 2018; Deliu v Chen LCRO 92/2017, 19 July 2018.
[11] On 12 August 2021 Mr Deliu emailed Ms Umali again and proceeded to go through a list of LCRO/DLCRO potentially available to hear the reviews. Mr Deliu sought the recusal of four of the six officers he named, including Mr Vaughan on the grounds Mr Vaughan “used to get red, nervous and stutter in [Mr Deliu’s] presence”. Mr Deliu then asked who had been assigned to hear his review.
[12] Later that same day Mr Deliu was advised that Mr Vaughan had been assigned to the reviews. Mr Deliu responded:
Under the Official Information Act 1982 I want a copy of his entire HR file, including but not limited to his CV and especially previous employment in the regulatory system. He is about as classic a good old boy as I have seen in the system and is the antithesis of a non-lawyer as required by the Act. He is mates with NZLS club members and so I want to inquire into conflicts.
[13] On 16 August 2021, Mr Deliu requested that the 14 September hearings be adjourned on the basis that he would not receive a response to his Official Information Act request in time for him to consider whether the information received would support a recusal application.
[14] In response, on 17 August 2021 Mr Vaughan issued three identical minutes on each of Mr Deliu’s review files recording:3
[1]This file has been assigned to myself. Mr Deliu seeks that I recuse myself. He has provided no reasonable grounds to support his application.
[2]He has applied under the Official Information Act (OIA) for personal details and information.
[3]Notwithstanding any response to the OIA request, there is no reason for recusal.
[4]By email, 4 August 2021, Mr Deliu advised that the 14th September was a suitable date for the hearing to proceed. Mr Deliu now seeks an adjournment of the date.
[5]No adjournment is granted.
[6]This decision is final and no further correspondence in relation to the request for an adjournment and/or the OIA application will be acknowledged or responded to.
3 Deliu v Wellington Standards Committee 1 LCRO 46/2021, 17 August 2021; Deliu v Chen LCRO 47/2021, 17 August 2021; Deliu v Chambers LCRO 48/2021, 17 August 2021.
[7]If Mr Deliu does not provide his submissions no less than 2 weeks prior to the hearing as directed, and does not appear as directed, this review will be completed on the papers.
[15] Mr Deliu filed submissions on 31 August 2021. These remained focused on the issue of recusal. The structure of the submissions is at times difficult to follow but it is clear that overall Mr Deliu concentrated on a particular issue: that since the enactment of the LCA those appointed as LCRO and DLCRO (including Mr Vaughan) were not “real lay people” and as a result provided a basis for Mr Vaughan’s recusal. As Mr Deliu explained:
... Preliminarily, I move to recuse Mr Vaughan and have a new LCRO appointed by the government to hear these reviews, and that it be an actual lay person at that. These are my grounds.
The first reason for this is because he is part of what I will colloquially refer to as the “good old boys club” meaning he is the antithesis of an independent non-lawyer to oversee standards committees of the New Zealand Law Society. According to the government’s own press release, Mr Vaughan practiced as a lawyer for 33 years and further served 10 years on the Law Practitioners Disciplinary Tribunal and on the current New Zealand Lawyers and Conveyancers Disciplinary Tribunal:
[16] Developing this argument Mr Deliu spent some time delineating Mr Vaughan’s legal experience before stating:
Mr Vaughan thus continued to consider himself a lawyer. This defeats the whole purpose of [s] 190(1) which is to provide for a non-lawyer to independently conduct reviews of decisions of the standards committees of the New Zealand Law Society, but more importantly shows that he does not consider himself detached from the profession despite his appointment.
The a priori Law Practitioners Act 1982 similarly had an office known as the “Lay Observer”, [ss] 96-97. The main difference is that those individuals were real lay people. Since the 2006 Act came into force the system has stopped appointing actual lay people and instead selected those who are well- entrenched in the system and who thus could not realistically be expected to act truly independently.
(footnote omitted)
[17] Mr Deliu then detailed four examples of LCRO appointees whose appointments in his view were thereby flawed.4
4 The four examples named were Duncan Webb, Hanneke Bouchier, Dorothy Thresher and Robert Hesketh. At the hearing it was suggested that it was Mr Vaughan’s relationship with the four named examples that provided a basis for recusal, but the structure of the submissions instead
[18] The thrust of Mr Deliu’s submissions was captured in the following paragraphs:
Because of my history of conflict with various actors in this Office, and because the two features they all seem to have in common is they: A) are lawyers in disguise as lay people, B) seem to have real difficulties with basic ethical issues that often do not even require legal training but basic common sense, but most crucially C) all seem to somehow do wrong by me, then I demand that a new, fresh and truly “lay” LCRO be appointed to conduct these reviews. I have three adverse disciplinary findings against me and this is my one and only opportunity for a de novo review. I will not accept anything less than a fully fair process.
…
I thank the Deputy Legal Complaints Review Officer in advance for his serious consideration of these issues I have raised, including a request to the Minister of Justice for my reviews to be heard by an actual lay person who is truly (and not for show) independent from the legal profession, [s] 190 of the Lawyers and Conveyancers Act 2006.
(emphasis in original)
[19] Interspersed within the submissions were two requests for disclosure. The first provided:
I also demand that Mr Vaughan 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 Mr Vaughan 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 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).
makes clear that they were each included as examples of non-lay people appointed as LCRO/DLCRO.
(emphasis in original)
[21] On 6 September 2021 Mr Vaughan responded by once again issuing three identical minutes on each of the three review files:5
[1]Dr Deliu has filed submissions in which, primarily, he moves that I recuse myself from this review.
[2]In earlier correspondence, Dr Deliu has also sought that I recuse myself.
[3]In [3] of a Minute dated 17 August 2021, I recorded that there was no reason for me to recuse, and declined to do so.
[4]In his present submissions, Dr Deliu questions the independence of members of this Office. He requests that these reviews be heard by an ‘actual lay person who is truly … independent from the legal profession’.
[5]None of the Review Officers appointed by the Minister of Justice fall under the category of what Dr Deliu considers to be an ‘actual lay person’. This review must be conducted by a presently appointed Review Officer.
[6]Over the years since the creation of this Office by the Lawyers and Conveyancers Act 2006, Dr Deliu has moved numerous times for recusal of Review Officers assigned to reviews involving himself. One of the earliest was made in Deliu v Godinet LCRO 218/09. Some of the reasons discussed there are equally as relevant to the current application by Dr Deliu.
[7]Dr Deliu’s present submissions do not present any cogent reason for me to recuse myself. I decline (again) to do so.
[8]Para [7] of the Minute of 17 August reads:
If Dr Deliu does not provide his submissions no less than 2 weeks prior to the hearing as directed, and does not appear as directed, this review will be completed on the papers.
The date by which submissions were to be filed was therefore 31 August 2021. No substantive submissions have been received.
[9]I infer from this that Dr Deliu no longer wishes to present submissions. Oral submissions alone will not assist this review.
[10]With Dr Deliu’s consent, I can retrieve any submissions made by him previously and complete this review on the papers.
[11]Dr Deliu is requested to respond to this suggestion by 5 pm New Zealand time on Wednesday, 8 September 2021.
Deliu v Wellington Standards Committee 1 LCRO 46/2021, 6 September 2021; Deliu v Chen
LCRO 47/2021, 6 September 2021; Deliu v Chambers LCRO 48/2021, 6 September 2021.
[22] Mr Deliu responded the next day, 7 September 2021, by filing submissions addressing the merits of the reviews. These were acknowledged by Mr Vaughan in further minutes issued later the same day on each of the review files, which minutes then went on to record:6
[3]Auckland is presently locked down under COVID level 4. Under this level, Review Officers and Ministry staff are unable to attend the workplace. The hearing scheduled for 14 September cannot now proceed on that date and it is likely to be some months before an oral hearing can be rescheduled.
[4]The right of the respondent to have this review completed must be acknowledged whether or not they are actively participating in the review.
[5]The current circumstances present a need to reconsider whether or not an oral hearing is necessary. Dr Deliu is well qualified to be able to express his submissions in writing. He has been provided with every opportunity to do so but is now provided with a final opportunity to give reasons why an oral hearing is required.
[6]Reasons are required no later than two weeks following the date of this Minute. The copies of the authorities required are to be provided by the same date.
[23] The indication that Mr Deliu may lose his oral hearings received an immediate email response. First, Mr Deliu advised:
If Mr Vaughan denies me a hearing I will go to the High Court, I have already been granted a hearing (twice) so it is unlawful to rescind it and it is not for me to maintain something I already have. I do not aver to the delay. Please confirm the new hearing date, ta.
[24]Two hours later Mr Deliu elaborated further:
If I do not get confirmation that my hearings will not be unlawfully taken away from me forthwith I will sue the next working day. Mr Vaughan knows he has improperly not dealt with my recusal application, i.e., he has ignored the Bouchier issue, as well as him claiming to be a lawyer to the High Court at the same time as being a [“]lay[”] person, and he has totally ignored my request for disclosure of his connections with standards committee members/the [“]victims[”] of my offending and he knows I will raise this at the hearing where he will no longer be able to not address these issues, hence his sudden desire to vacate the hearing for improper purposes. Mr Maidment gave me a hearing and the High Court ordered a reconsideration. Mr Vaughan confirmed the Applicant-only hearing. The flu cannot change that as Mr Vaughan's sudden concern about delay is inexplicable for matters that date
Deliu v Wellington Standards Committee 1 LCRO 46/2021, 7 September 2021; Deliu v Chen
LCRO 47/2021, 7 September 2021; Deliu v Chambers LCRO 48/2021, 7 September 2021.
back almost a decade, i.e., what difference will a couple of more months make, especially if I do not aver and the respondents could care less? It is also notable that the power he relies on came into force after my review applications were lodged and so he is illegally applying it retroactively to my detriment. Please advise the Deputy's position, ta.
[25] Four days later, on 11 September 2021,7 Mr Deliu made a further and final request for disclosure from Mr Vaughan of the following information with regard to the members of the Standards Committee whose 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 Mr Vaughan 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, etcetera):
[26] Although no formal minute appears to have been issued there is no dispute that Mr Vaughan has not yet heard nor determined the reviews pending the outcome of these present proceedings.
[27] The final matter of significance to date was that on 8 October 2021, Jeff Orr, the Chief Legal Counsel for the Ministry of Justice, wrote to Mr Deliu regarding his 13 August 2021 request under the Official Information Act for a copy of Mr Vaughan’s “entire HR file, including but not limited to his CV”. Mr Orr confirmed that there was no HR file as such for Mr Vaughan but certain documents, including a CV, relating to his appointment were held by the Ministry but that the information was withheld to protect Mr Vaughan’s privacy.
7 It is noted in agreed facts regarding the memorandum it was filed on 11 September 2021 although on the actual email itself it is dated 10 September 2021.
Issue 1 – should Mr Vaughan have recused himself?
[28] The legal principles as to recusal are not in dispute. The legal test for recusal on the basis of bias is well established, as set out by the Supreme Court in Saxmere.8 The question of apparent bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide.
[29] The Supreme Court confirmed that the question is one of possibility “real and not remote”, not probability. Two steps are required:9
(a)First, the identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits; and
(b)Secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
[30]The test for bias has been summarised in Siemer v Heron:10
It is well-established that apparent bias arises only if a fair-minded and informed lay observer might reasonably apprehend that there is a real and not remote possibility that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The observer will not adopt the perspective of a party seeking recusal unless objectively it is a justified one. It is necessary for those making decisions on whether there is apparent bias in a particular situation first to identify what is said that might lead a judge to decide the case other than on its merits and, secondly, to evaluate the connection between that matter and the feared deviation.
[31] The fair-minded lay observer is presumed to be intelligent and to view matters objectively. They are neither unduly sensitive or suspicious, nor complacent.11 They must be taken to be a non-lawyer but reasonably informed about the workings of our
8 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
9 At [4], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
10 Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293 at [11].
11 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 8, at [5].
judicial system and the facts and issues relevant to the case. It has also been noted that judges should not recuse themselves without sufficient cause.12
[32] Though Saxmere and the legal principles of recusal were developed in the context of the recusal of judges, it has been noted that the principles apply with equal force to tribunals and to their members.13
Discussion – Issue 1
[33] As the factual background makes clear there were two specific recusal applications made by Mr Deliu in the course of the review proceedings:
(a)On 12 August 2021, prior to Mr Vaughan having been assigned to the three reviews;14 and
(b)On 31 August 2021, for the reasons detailed in those submissions.15
[34] It is beyond any dispute that the first of Mr Deliu’s applications for recusal is best described as spurious. Leaving aside the issue about whether an application for recusal can properly be made before the decision-maker has even been appointed, in no circumstances can an allegation that a decision-maker “used to get red, nervous and stutter in [the litigant’s] presence” could possibly be regarded as a basis for recusal. Mr Vaughan’s response accordingly did not warrant any more detail than was given in his minutes of 17 August 2021.
[35] With regard to the application to recuse contained in the 31 August 2021 submissions, it is equally clear that there was no merit in the grounds advanced by Mr Deliu, specifically, that Mr Vaughan had to recuse himself because he was not an “actual lay person”, and that an actual lay person needed to be appointed in order to determine his review.
12 A (SC 106/2015) v R [2016] NZSC 31 at [16].
13 Brown v New Zealand Post Ltd [2016] NZHRRT 37 at [23].
14 See [11] above.
15 See [15]–[20] above.
[36] As I discussed with Mr Deliu at the hearing there is nothing in the LCA that requires an actual lay person to hold the office of LCRO/DLCRO. Instead, s 190 specifies:
190Legal Complaints Review Officer
(1)A person who is not a lawyer or a conveyancing practitioner is to be appointed to be the Legal Complaints Review Officer.
(2)The Legal Complaints Review Officer is to be appointed by the Minister, after consultation with the New Zealand Law Society and the New Zealand Society of Conveyancers.
(3)No person is deemed to be appointed in the service of the Crown for the purposes of the Public Service Act 2020 or the Government Superannuation Fund Act 1956 by reason of the person’s appointment as the Legal Complaints Review Officer.
[37] Far from requiring an actual lay person, it can be seen that the definition of lawyer contained in the LCA makes it clear that lawyer “means a person who holds a current practising certificate as a barrister or as a barrister and solicitor”.16 It follows that admission as a barrister and solicitor is no obstacle, nor is previous practice as a lawyer as long as the candidate no longer holds a practicing certificate. The criteria for appointment set out in s 191 of the LCA moreover are likely to render actual lay persons entirely unqualified for such a role:
191Criteria for appointment
In appointing any person as the Legal Complaints Review Officer, the Minister must have regard, among other things to—
(a)the person’s personal attributes:
(b) the person’s knowledge of, and experience in, matters relevant to the functions of the Legal Complaints Review Officer, such as—
the law of New Zealand:
(ii)the provision of legal services:
(iii)the issues related to professional conduct:
(c) the person’s ability, by reason of his or her skills or experience or both, to deal with the resolution and management of disputes.
16 Lawyers and Conveyancers Act 2006, s 6 definition of “lawyer”.
[38] It follows that Mr Deliu’s objection detailed in the 31 August 2021 submissions as a basis for Mr Vaughan’s recusal was entirely misconceived, and Mr Vaughan’s response rejecting that approach was therefore entirely justified and consistent with the statutory framework.
[39] I am therefore satisfied that with regard to the first limb of Mr Deliu’s review in this Court, Mr Vaughan responded appropriately to both of the specific recusal requests made by Mr Deliu and that neither provided any basis for recusal in the circumstances.
Issue 2 – was there any failure to disclose on the part of Mr Vaughan?
[40] Both Mr Deliu and Ms Jerebine also relied on the decision of the Supreme Court in Saxmere17 in identifying the relevant principles with regard to the obligation on a decision-maker to disclose interests to a party.
[41] While Saxmere was focused on the circumstances in which recusal is appropriate, a decision whether to seek recusal cannot be made unless there has been appropriate disclosure of all relevant information, a proposition neatly illustrated by the Supreme Court’s own subsequent recall of Saxmere when further information became available.18
[42]With regard to the nature of the obligation Blanchard J observed:19
… It is frequently the position that a judge will think it appropriate to alert counsel and their clients to some circumstance which might at first blush, without sufficient information, attract attention. The judge does so in order that the parties to the case can consider the situation and either indicate a lack of concern or, if thought fit, make a recusal application, upon which full consideration can be given to the validity of the objection to the judge’s sitting in the particular case.
Notwithstanding what is said in Taylor v Lawrence about English practice, such disclosure is to be encouraged in a small jurisdiction like New Zealand where the limited number of available replacement judges reinforces the general obligation for a judge to sit on all cases to which he
17 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 8.
18 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 122, [2010] 1 NZLR 76.
19 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 8, at [31]–[34].
or she has been assigned. It is not fairly to be taken as an acknowledgement that the circumstances give rise to a reasonable apprehension of bias. It merely indicates the need for the matter to be considered, on an informed basis, by counsel and client. The practice of giving the parties prior advice about a connection with a party, a witness or a counsel is actually, as Kirby P remarked in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd, a protection of the manifest integrity of the judicial process and also a defence against later applications for disqualification.
That of course assumes the prior disclosure is properly and adequately made. …
… it is for a judge who makes a disclosure to ensure that the parties have enough information, shorn of unnecessary detail, to make up their minds about whether to make a recusal application. They and their counsel should not be placed in the embarrassing position of having to seek further information from the judge.
[footnotes omitted]
[43]Likewise Tipping J stated:20
… A matter should be disclosed in any case where it is possible that the observer might reasonably think the judge could be biased as a consequence of it. The judge or the court can then consider the responses of all the parties to the disclosure and assess what course to take on that fully informed basis.
Discussion – Issue 2
[44] Against that background it is clear Mr Vaughan did not at any point address the request for disclosure made by Mr Deliu.
[45] As the factual background section notes, Mr Deliu made an OIA request on 12 August 2021 in respect of Mr Vaughan, and then requested specific disclosure from Mr Vaughan on both 31 August 2021 and 11 September 2021 with regard to Mr Vaughan’s dealings with:
(a)The subjects of the complaints that formed the basis for the Wellington Standards Committee decision; and
20 At [48].
(b)Members of the National Standards Committee and/or Wellington Standards Committee 1 during defined periods while those Committees were considering the matters that formed the basis of the decisions under review.
[46] There is no doubt Mr Vaughan did specifically address the OIA request “for personal details and information” in his minutes of 17 August 2021 and ultimately, as noted, a formal response to the OIA request was provided by the Ministry of Justice. The minutes could also be seen as an implied assertion that Mr Vaughan had nothing to disclose of relevance to recusal at that time.
[47] Despite that, the requests for disclosure contained in Mr Deliu’s submissions filed on 31 August 2021 and 11 September 2021 were never responded to by Mr Vaughan. With regard to the latter request it is clear that by then the reviews were on hold pending the outcome of the present proceedings. With regard to the 31 August 2021 request however, in the minutes of 6 September 2021 Mr Vaughan responded only to the request he recuse himself, noting that he had previously been requested to recuse himself and that he had previously determined “there was no reason for me to recuse, and declined to do so”.
[48] Mr Vaughan’s response effectively relied upon the decision in the earlier minute and ignored the fact that the request for disclosure contained in the 31 August 2021 submissions clearly covered different information than the OIA. 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 Mr Vaughan 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 Mr Vaughan 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.
[49]I therefore conclude that the second limb of Mr Deliu’s review is made out.
Issue 3 – was Mr Deliu entitled to a hearing in person and was that entitlement breached?
[50] At the time Mr Deliu first sought a review s 206(2) of the Lawyers and Conveyancers Act provided:
206 Proceedings of Legal Complaints Review Officer
……
(2)If—
(a) it appears to the Legal Complaints Review Officer that a review can be adequately determined in the absence of the parties, their representatives, and witnesses; and
(b) the parties consent to the review being determined in the absence of the parties, their representatives, and witnesses,—
the Legal Complaints Review Officer may conduct the review on the basis of such information, records, reports, or documents as are available to the Legal Complaints Review Officer (including any obtained by the Legal Complaints Review Officer as a result of a request made under section 204(b)).
(emphasis added)
[51] In November 2018 after the initial dismissal of the reviews before the reinstatement s 206(2) was amended as follows:
206 Proceedings of Legal Complaints Review Officer
…
(2) Despite anything in this Act to the contrary, if it appears to the Legal Complaints Review Officer that a review can be adequately determined on the papers, he or she may, without the consent of the parties, do so on the basis of the information available, including any information obtained under section 204(b).
(2A) Before doing so, he or she must give the parties a reasonable opportunity to comment on whether the review should be dealt with in that manner.
(2B)The hearing of a matter or any part of it may be conducted by telephone, audiovisual link, or other remote access facility if the Legal Complaints Review Officer considers it appropriate and the necessary facilities are available.
…
Discussion – Issue 3
[52] As the factual background section of this judgment makes clear, Mr Deliu has consistently emphasised the importance of an oral hearing (albeit with him attending virtually) on the reviews, and one was scheduled for 14 September 2021. As noted, the scheduled hearing was referred to as “Applicant-Only” which I understand to mean that only Mr Deliu would be attending.
[53] Despite the reviews having been set down for hearing and the subsequent assignment of Mr Vaughan, as the factual background section details:
(a)Mr Vaughan’s minutes of 17 August 2021 advised Mr Deliu if submissions were not filed on time “this review will be completed on the papers”.
(b)After no substantive submissions were received on 31 August 2021 Mr Vaughan advised in the 6 September minutes:
I infer from this that Dr Deliu no longer wishes to present submissions. Oral submissions alone will not assist this review.
With Dr Deliu’s consent, I can retrieve any submissions made by him previously and complete this review on the papers.
Dr Deliu is requested to respond to this suggestion by 5 pm New Zealand time on Wednesday, 8 September 2021.
[54] Mr Vaughan makes it quite clear by his comments that he would prefer to deal with the reviews on the papers, but equally made it clear that at that point at least he considered that the previous version of s 206(2) of the LCA applied, noting that “with Mr Deliu’s consent” Mr Vaughan could “complete [the] review on the papers”.
[55] Although Mr Deliu subsequently filed his substantive submissions as directed, Mr Vaughan chose to revisit the issue of the oral hearing once again in his 7 September minutes, this time against the backdrop of the August 2021 lockdown in Auckland.
[56] While it is acknowledged that the lockdown may have led to difficulties in proceeding with the scheduled hearing, it is noted that any Covid protocol applying to LCRO hearings at that time has not been placed before me. In any event any such issues were minimised by the fact that the hearing was not taking place in person, it was always intended to take place by telephone with only Mr Vaughan, Mr Deliu and Registry staff present. Likewise, it is difficult to see why Mr Vaughan was concerned with the effect of an adjournment on the respondents to the reviews, given that they had not participated in the reviews to that point and were not attending the hearing, while any such adjournment was likely to be minor in the overall scheme of things, where five years had already passed since the reviews were originally filed.
[57] Instead, given the context and noting also that the lockdown was already in place at the time the 6 September minutes were issued, I am satisfied that none of the matters set out by Mr Vaughan in his minutes of 7 September provided a basis for requiring Mr Deliu to justify “why an oral hearing is required” when the reviews had already been set down for the hearing to proceed and it was quite clear that Mr Deliu did not consent to Mr Vaughan determining the reviews on the papers.
[58] Inevitably the approach taken by Mr Vaughan acted as a red rag to Mr Deliu and resulted in the prompt issue of the present proceedings.
[59] While I recognise that Mr Vaughan had not yet made a final decision about whether an oral hearing would go ahead, and that there is a high bar for the availability of judicial review in preliminary decisions,21 the circumstances here represent an
21 A Lawyer v New Zealand Law Society [2019] NZHC 1961 at [117].
exceptional situation where the process in question has “seriously gone off the rails”22 before a final decision is made. Requiring Mr Deliu to justify the need for an oral hearing was a step in the decision-making process capable of altering his rights, interests or liabilities,23 thereby making it amenable to review.
[60] Having considered the issue I am satisfied that it was, as well as being unreasonable and taking into account irrelevant matters, in breach of Mr Deliu’s legitimate expectations for Mr Vaughan to attempt to use the August 2021 lockdown and the effect of delay on respondents as a basis for reconsidering whether the oral hearing that had previously been allocated should be adjourned or potentially determined on the papers when Mr Vaughan was clearly predisposed against proceeding with a hearing.24 I am therefore satisfied that the third limb of Mr Deliu’s application for review has been made out.
Decision
[61]For the reasons set out above I have concluded:
(a)Mr Vaughan did not err in declining to recuse himself in response to Mr Deliu’s requests of 12 August 2021 and 31 August 2021.
(b)Mr Vaughan erred in law by not making disclosure in response to the requests by Mr Deliu on 31 August 2021 (subsequently elaborated upon on) 11 September 2021.
(c)Mr Vaughan unreasonably and in breach of Mr Deliu’s legitimate expectations attempted to prevent an oral hearing of the reviews that had previously been set down for hearing on 14 September 2021.
22 Marlborough Aquaculture Ltd 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].
23 Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries, above n 22, at [14].
24 Legitimate expectation is a subset of natural justice, arising as a ground of review where a person legitimately relies on a commitment made by a public authority, whether by some promise or settled practice or policy: Ngāti Paoa Trust Board v Auckland Council [2022] NZHC 893 at [131]. The principle is that a public authority is bound by its undertakings as to the procedure it will follow: Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 351.
[62]Given this position I direct:
(a)Mr Vaughan is directed to provide disclosure on Mr Deliu’s requests set out at paragraphs [19], [20] and [25] and informed by the list of names in Mr Deliu’s email of 11 September 2021 within three weeks of the date of this judgment.
(b)Mr Deliu will have a further two weeks to make a recusal application in relation to the disclosure provided. If no recusal application is made Mr Deliu’s reviews are to be set down for an oral hearing before Mr Vaughan.
(c)If Mr Deliu makes a recusal application Mr Vaughan is to determine whether or not to recuse himself. In the event that he does not recuse himself the reviews are to be set down before Mr Vaughan but if Mr Vaughan recuses himself the reviews are to be set down for an oral hearing before another LCRO/DLCRO as appropriate.
[63] For the reasons set out in other recent decisions involving Mr Deliu, Mr Deliu is a self-represented non-lawyer for the purposes of costs.25 Costs are therefore to lie where they fall, but Mr Deliu is entitled to any reasonable disbursements in relation to his application for review.
Powell J
25 Catalin v Independent Police Conduct Authority [2022] NZHC 1411 and Deliu v Johnstone [2022] NZHC 1557.
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