Deliu v District Court at Auckland
[2023] NZHC 658
•29 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-390
[2023] NZHC 658
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, writs, civil and Bill of Rights Act claims and a petition for declaratory
relief
BETWEEN
FRANCISC CATALIN DELIU
Plaintiff
AND
DISTRICT COURT AT AUCKLAND
First Respondent
ATTORNEY-GENERAL
Second Respondent
Hearing: 21, 22 June 2022 Appearances:
F C Deliu Plaintiff/Applicant in Person
A F Todd and I M McGlone for the Second Respondent in -390 A P Lawson for the First Respondent in -390
D Harris for the Defendants/Respondents in -2472 and -348
Judgment:
29 March 2023
JUDGMENT OF HARVEY J
This judgment was delivered by me on 29 March 2023 at 2.30 pm
pursuant to r 11.5 of the High Court Rules.
Date: …………………..
(Deputy) Registrar
Solicitors: Crown Law, Wellington Party: The Plaintiff
DELIU v ATTORNEY-GENERAL [2023] NZHC 658 [29 March 2023]
Introduction
[1] In October 2008, Harrison J, as he then was, issued orders for indemnity costs against the applicant, Mr Deliu, and Evgeny Orlov, personally as counsel and solicitors in the proceedings L v Chief Executive of the Ministry of Social Development.1 Four years later, in 2012, the Court of Appeal quashed the costs award.2 Mr Deliu then filed a private prosecution against the Judge on two charges. First, that he had attempted by deception and without claim of right to cause loss to Messrs Deliu and Orlov.3 Secondly, that he accessed a computer system with intent, dishonestly or by deception, without claim of right, to cause loss to Messrs Deliu and Orlov.4
[2] On 1 March 2021, Judge Spear in the District Court declined to accept Mr Deliu’s charging documents on two grounds. First, he concluded that the proposed prosecution amounted to an abuse of process as a collateral attack on the costs decision and an attack on the Judge personally. Secondly, the evidence filed in support of these claims could not provide a sufficient basis to conclude that the elements of the offences could be made out or a trial justified. Mr Deliu now seeks judicial review of that decision. In terms of remedy, he seeks:
(a)a ruling quashing the decision of 1 March 2021;
(b)an order that his intended prosecution be reconsidered by a different judge;
(c)a declaration that the defendant declined him a fair process; and
(d)a direction that the present decision be forwarded to the Judicial Conduct Commissioner.
[3] The Attorney-General has applied to strike out the proceeding arguing that it discloses no reasonably arguable cause of action, is vexatious and/or is otherwise an
1 L v Chief Executive of the Ministry of Social Development HC Auckland CIV-2007-404-7031, 24 July 2008 (substantive judgment); and L v Chief Executive of the Ministry of Social Development HC Auckland CIV-2007-404-7031, 13 October 2008 (costs judgment).
2 Deliu v Chief Executive of the Ministry of Social Development [2012] NZCA 406.
3 Crimes Act 1961, s 240.
4 Section 249.
abuse of the Court’s process.5 Accordingly, the Attorney-General seeks orders that the claim be struck out in its entirety with costs.
[4] The issue for determination is whether or not the application for judicial review in CIV-2021-404-390 should be struck out. This proceeding was heard alongside CIV- 2021-404-348 and CIV-2020-404-2472. As the factual matters between this strike-out application and the latter two judicial reviews are distinct, I have issued this decision separately, with another addressing -348 and -2474 to follow.
[5] Further, on 5 March 2023 Mr Deliu wrote by “urgent memorandum” requesting a stay of proceedings. However, by memorandum of 8 March 2023 he clarified that the issue only affects the -348 proceeding, and he did not seek to defer my decision in the -2472 or -390 cases. Accordingly, I see no issue in proceeding with judgment on the -390 matter.
The substantive judicial review claim
[6] In his amended statement of claim dated 16 December 2021, Mr Deliu cited the following grounds in support of his application for judicial review:
(a)The Judge made errors of fact. First, he erred in fact by not paying regard to Mr Deliu’s appeal against the costs order of Harrison J and the fact he filed a complaint to the Judicial Conduct Commissioner. Secondly, the Judge asserted that Mr Deliu was attacking the integrity of a High Court Judge when the Hon. Rhys Harrison KC had retired from that role. Thirdly, the Judge referred to the “Judicial Complaints Authority” which does not exist so erred as to alleged recourse. Fourthly, that Mr Deliu was not seeking comment on the costs order.
(b)There was no evidential basis for concluding that Mr Deliu embarked upon a strategy of collateral attack on the costs order or impugned the integrity of Mr Harrison and thereby attacked the former Judge.
5 With the District Court abiding the decision and Mr Harrison not wanting to be involved in proceedings, the Attorney-General was joined to act as contradictor: Deliu v Attorney-General [2021] NZHC 2246.
(c)There was a breach of legitimate expectation and a failure to observe natural justice by declining to hold a hearing, not providing a copy of S v Vector6 and failing to give Mr Deliu an opportunity to be heard on factual matters when adverse findings were made against him.
(d)There was also a failure by the Judge to take account of relevant factors including the fact a costs application had not been filed.
(e)Finally, Mr Deliu asserted that the Judge had acted in bad faith contrary to his judicial oath in the manner of his dealings with Mr Deliu.
Judge Spear’s decision
[7] Judge Spear began his decision by canvassing the background to both the private prosecution application under s 26 of the Criminal Procedure Act 2011 (CPA) and Harrison J’s costs decision.7 He then moved on to assess the s 26 factors. The relevant passages giving rise to Mr Deliu’s challenges are set out below:
[13] It is not for me to comment on the judgment of a Judge of the High Court (as the proposed defendant was at the time). Of importance, however, is that it must surely have been appreciated by Mr Deliu, from his reading of the judgments in that case, that if he felt aggrieved at the costs’ order then the proper response was to appeal that order - and certainly Mr Deliu had a right of appeal, as did Mr Orlov. That costs’ order would have then been considered by the Court of Appeal. Instead, Mr Deliu has devised this extraordinary strategy of attempting a collateral attack on the costs’ order by making a personal attack on the integrity of a Judge of the High Court, without paying any regard at all to either his rights of appeal and/or his right of complaint to the Judicial Complaints Authority.
[14] There is nothing raised by Mr Deliu in his “statement” that could possibly provide a sufficient basis for allegations that the proposed defendant acted by deception, without claim of right or otherwise dishonestly in relation to making the order for costs that he did. Those are essential elements of the offences alleged by the proposed charges. Not only is there evidential insufficiency to justify the matter proceeding to trial, there has been absolutely no evidence adduced that would provide such justification or even the suggestion of justification. Furthermore, to allow this form of collateral attack on a judgment of any Court by way of such a personal and direct attack on the Judge concerned must never be countenanced. It would be an abuse of process to allow this to happen. I go further and say that the actions of Mr Deliu to
6 S v Vector [2020] NZSC 97.
7 Deliu v Harrison DC Auckland, 1 March 2021 (Judge R LB Spear). There is no file number assigned to the decision as the documents were not accepted for filing.
attempt to lay charges of this nature in such circumstances against any Judge are reprehensible in the extreme.
[8]The Registrar was directed to not accept the charging documents for filing.
Attorney-General’s submissions
[9] Ms Todd first argued that Mr Deliu’s claim is an abuse of process. His initial charging document offended against the doctrine of judicial immunity and was therefore an abuse of process. This proceeding, seeking as it does to perpetuate the prosecution, suffers from that same character.
[10] Counsel contended that while immunity is now incorporated in statute, in this case in s 28 of the Senior Courts Act 2016, judicial immunity is nonetheless a common law doctrine. Judges acting in the bona fide exercise of their office and the belief they hold jurisdiction are invariably protected by judicial immunity. In Attorney-General v Chapman the Supreme Court did not accept that the scope of judicial immunity should be qualified to exclude bad faith, gross negligence or recklessness in discharging judicial office.8 Moreover, counsel underscored that judicial immunity is based on high public policy and that it must apply equally to criminal proceedings as it does to civil, citing the New South Wales Court of Appeal case Yeldham v Rajski.9
[11] Counsel emphasised that this did not mean judges can never be criminally accountable, given the recognised exception in the common law doctrine for judicial corruption. In any event, the Attorney-General submitted that judges are immune from criminal prosecutions for judicial actions carried out in a bona fide belief of jurisdiction and in the absence of corruption.
[12] Ms Todd submitted that Harrison J, as he then was, made the costs order, as foreshadowed, in the exercise of his judicial function and in the belief he held the jurisdiction to do so. According to counsel, it is irrelevant whether the costs order was orthodox or that it was quashed on appeal. In addition, Ms Todd contended that the proposed prosecution is inherently an abuse of District Court processes, given that it
8 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.
9 Yeldham v Rajski (1989) 18 NSWLR 48, cited with approval in Fingleton v R [2005] HCA 34, (2005) 227 CLR 166.
is an attack on the immunity conferred on Judges of the High Court when they discharge judicial office.
[13] Counsel argued that it is also an attempt to challenge the decision and performance of the Judge wholly inappropriately. Once a careful examination of the allegations was completed, Ms Todd submitted that it was inevitable the proposed prosecution would be rejected. Put another way, counsel underscored that the proposed proceeding was obviously abusive and so Judge Spear correctly concluded that was the case. Accordingly, Ms Todd submitted that, the judicial review application is similarly an abuse of Court processes. It is also vexatious and discloses no reasonably arguable cause of action, counsel contended.
[14] Ms Todd’s second argument was that the grounds for review pleaded disclose no reviewable error and cannot therefore succeed. Comments or statements by the Judge which had no material impact on the decision could not be regarded as genuine factual conclusions. Even if they were, the threshold is very high before they can be disturbed on judicial review. To amount to an error of law Ms Todd argued that the factual findings must be unsustainable or untenable.10 Moreover, counsel submitted that Mr Deliu’s “no evidential basis” review ground is untenable because the material he provided enabled the Judge to make the conclusions he did about the nature of the proposed prosecution.
[15] As to a legitimate expectation of a full hearing, Ms Todd submitted three steps are relevant.11 First, the nature of the commitment made, which is a question of fact determined by the surrounding circumstances. Secondly, whether the plaintiff’s reliance on the promise is legitimate, which involves an assessment of whether reliance was reasonable. Thirdly, the remedies sought. Counsel contended that there must be a clear, unambiguous and unqualified representation for a breach of legitimate expectation.
10 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].
11 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [125]– [127].
[16] Ms Todd argued that there was no promise or settled practice that a full hearing would occur. Even though there was a fixture scheduled there was no confirmation that a full hearing would proceed. Moreover, counsel submitted that it was not reasonable for Mr Deliu to rely on that representation, and he did not do so to his detriment. While a full hearing may not have occurred, nonetheless, everything relevant was before the Judge, including Mr Deliu’s written submissions. Accordingly, Mr Deliu was in fact heard.
[17] In this context, Ms Todd submitted that the claim of breach of natural justice is also untenable. In Goodman Fielder NZ Ltd v District Court at Porirua (Goodman Fielder), Cooke J indicated that a hearing is not necessarily appropriate or good practice since it is not consistent with the overall statutory framework for private prosecutions and held that a judge should decide on the papers.12
[18] Mr Deliu filed charging documents, a written statement and exhibits in support along with written submissions. According to Ms Todd, there was no unlawfulness or unfairness resulting from the Judge deciding not to hold a hearing or notify Mr Deliu that his decision would be critical of Mr Deliu.
[19] As to the relevant factors review ground, counsel submitted that mandatory relevant considerations must be taken account of while permissible considerations may be. Mr Deliu did not identify mandatory considerations which the Judge failed to address. Ms Todd argued that, accordingly, this ground of review must also be dismissed.
[20] Finally, as to the assertion that Judge Spear acted in bad faith, counsel submitted that there is no legal or evidential basis to support the spurious and untenable argument. Ms Todd submitted that the claim should be struck out in its entirety.
12 Goodman Fielder NZ Ltd v District Court at Porirua [2019] NZHC 599, [2019] NZAR 489.
Mr Deliu’s submissions
[21] Mr Deliu underscored the importance of judicial review as an element of maintaining the rule of law and the protection of basic human rights, emphasising its constitutional importance.13 Mr Deliu argued that fundamental human rights have been codified for over 700 years as set out in the Statutes of Westminster, the Magna Carta, the Observance of Due Process of Law Statute 1368 and related laws.
[22] Regarding the Attorney-General’s application for strike out, Mr Deliu submitted that it is a question of law as to whether the pleadings as formulated might succeed. He emphasised that the focus is on the pleadings, not the underlying merits. Mr Deliu contended that strike-out should only granted where a plaintiff cannot prove there are a set of facts in support of the claim which would entitle the plaintiff to relief.14 With a strike-out, he argued, a plaintiff is assumed to be able to prove all the facts pleaded. Mr Deliu submitted that his factual allegations are tenable, his causes of action are “dogmatic” and his relief sought straightforward. He contended that his application for judicial review is simply a routine review of a lower court decision. As a result, the Attorney-General’s application for strike-out must be dismissed.
[23] Conversely, he argued that the Attorney-General sought, improperly, to argue the merits in two respects. First, the Attorney-General seeks to adjudicate the innocence of Mr Harrison when this is not the forum for that. Accordingly, Mr Deliu submitted that the strike-out application itself is an abuse of process. Secondly, the Attorney-General contended, effectively, that Judge Spear’s decision is unassailable. However, Mr Deliu highlighted that this is a matter for trial.
[24] Mr Deliu argued that the Attorney-General’s recourse to judicial “absolute immunity” cannot support a strike-out of his application because judicial immunity is
13 Citing in support Auckland District Court v Attorney General [1993] 2 NZLR 129 at [133]; Marbury v Madison 5 US 137; R v Somerset County Council ex parte ARC Southern Ltd [1998] Env LR 111 (HC); and Horse Fairy Road Magistrate’s Court, Ex parte Bennett [1994] 1 AC 42.
14 Conley v Gibson 355 US 41 (1957) at 45–46. I note that in the United States this has been overruled by Bell Atlantic Corp v Twombly 550 US 544 (2007) and Ashcroft v Iqbal 556 US 662 (2009) which require pleadings to state a “plausible” claim for relief. This aligns with the New Zealand test that facts are assumed to be true unless they are allegations which are “self-evidently speculative or false” or plainly unsupportable and without foundation: Tamihere v Commissioner of Inland Revenue [2017] NZHC 2949.
not absolute. In support he cited Attorney-General v Chapman, emphasising that absolute judicial immunity would undermine the public interest.15 He noted that for the judiciary to create an absolute immunity would be tantamount to judges acting in their own cause. Mr Deliu also submitted that there is no absolute immunity for criminal offending.16 Where it could be proven that a judicial officer did not act in a bona fide exercise of office, then effectively, the issue could go beyond civil liability to criminal.
[25] Further, he contended that judicial immunity only applies for the duration of a judge’s tenure. Judges may be prosecuted for crimes committed in office thereafter. Mr Deliu emphasised that Mr Harrison was not acting in the bona fide exercise of office when making the costs orders, and that as a fact supporting the judicial review, this should be presumed true for the purposes of strike-out. In any event, Mr Deliu submitted that strike-out is not appropriate given that this is a developing area of the law as to judicial immunity for criminal sanction. Finally, Mr Deliu made submissions on the importance of independence between the executive and the judiciary in relation to the Attorney-General’s role in these proceedings.17
Legal principles
[26]Rule 15.1 of the High Court Rules 2016 provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
15 Attorney-General v Chapman, above n 8.
16 Citing Nahkla v McCarthy [1978] 1 NZLR 291 (CA).
17 I consider Mr Deliu’s submissions in this regard have been addressed earlier in these proceedings by Nation J: Deliu v Attorney-General, above n 5. I make no further comments.
(4)This rule does not affect the court’s inherent jurisdiction.
[27] As can be seen from the above rule there are two broad grounds to strike out. The first is related to the substance of the claim. The claim should be struck out where the cause of action is clearly untenable and cannot possibly succeed. The second is related to its character. Where there is an element of impropriety or misuse of the Court’s processes the claim may be struck out. This latter category may include prolix, unintelligible or scandalous pleadings, a collateral challenge to a concluded proceeding or improper motive seeking a collateral advantage.18
[28] The approach to strike-out is well settled.19 A strike-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. This, however, does not extend to facts which “‘self-evidently speculative or false’ or plainly unsupportable and without foundation”.20 The Court should take a restrained approach to strike-out and only grant it where the case is obvious. It follows that the Court must have the necessary material before it to determine that it is such an obvious case. Where there is a novel element to the case the Court will be hesitant to grant strike out, but, conversely, the fact that the application to strike out raises difficult questions of law does not mean those cannot be resolved in favour of strike out. Finally, the plaintiff should normally be given an opportunity to cure any defect in their pleadings if it is possible to do so.21
[29] Plainly, a judicial review proceeding can be struck out under r 15.1. That said, the application of that rule is subject to judicial control under ss 13 and 14 of the Judicial Review Procedure Act 2016, in light of the most effective procedural path.22 The Court of Appeal confirmed in South Ocean Trawler Ltd v Director-General of Agriculture that the same principles set out above also apply to strike out of a judicial
18 Tamihere v Commissioner of Inland Revenue, above n 14, citing Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53; [2013] 2 NZLR 679.
19 Couch v Attorney-General [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J; and Attorney- General v Prince [1998] 1 NZLR 262 (CA), (1997) 16 FRNZ 258 at 267.
20 Tamihere v Commissioner of Inland Revenue, above n 14.
21 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 18.
22 See for example Cooke J’s comments in Ngāti Tama ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166 at [16]–[19].
review proceeding.23 In addition, where alternative remedies more appropriate to the issue exist and are available, the law is clear, as set out in Gill v Attorney-General:24
Judicial review will rarely be appropriate where there is a readily available alternative remedy, and in particular the Courts have held that they will only intervene in matters which involve the exercise of a prosecutorial discretion or investigative power and in exceptional cases.
[30] I disagree with Mr Deliu’s formulation of the law insofar as it implies the Court must take an arm’s length approach to strike out and only assess whether the pleading is made in a form that is known to law and has some allegations supporting each element. In New Zealand law, the test for strike out (under the first ground) is that the cause of action in the pleading is not reasonably arguable. That test requires the Court, at least in a preliminary way, to consider the merits of the claim. It simply means that the threshold for the claim surviving strike-out is lower than that of being substantively granted.
[31] The District Court’s jurisdiction to direct that a private prosecutor’s charging document is not accepted for filing is contained in s 26 of the CPA, in particular in subsection (3):
26 Private prosecutions
(1) If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
(a)accept the charging document for filing; or
(b) refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.
(2) The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.
(3) A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—
23 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA); and see also Te Whakakitenga O Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173.
24 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [19].
(a) the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or
(b)the proposed prosecution is otherwise an abuse of process.
(4) If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—
(a) notify the proposed private prosecutor that the charging document will not be accepted for filing; and
(b)retain a copy of the proposed charging document.
(5) Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.
[32] In S v Vector the Supreme Court noted that s 26 is a “filing or preliminary screening exercise, not a more expansive one under which factual or other issues are resolved”.25 Nonetheless any issue of insufficient evidence requires a Court to engage in a more extensive assessment of the evidence contrasted with a more general exercise relevant to underlying allegations.26 The abuse of process limb does not require this more intensive review.
[33] There is no right of appeal against a decision under s 26.27 There is also no express requirement to conduct a hearing.28 Nor is there a requirement to give reasons, but if a decision is made not to accept the charges for filing, brief reasons may be appropriate given the right to challenge the decision in judicial review proceedings.29
Do the pleadings identify any reviewable error?
Is there a reviewable error based on errors of fact?
[34] I first consider the Attorney-General’s submission that the pleadings do not identify a reviewable error. Mr Deliu’s pleadings refer to several “errors of fact”. However, that is to mischaracterise the ground necessary to establish a judicial review. Merely because a Judge has made a factual mistake will not mean a successful judicial review is guaranteed. This is because the decision-making error must be material to
25 At [49].
26 S v Vector, above n 6.
27 At [51] citing Goodman Fielder New Zealand Ltd v District Court at Porirua, above n 12, at [20]. See also Mitchell v Tyson [2016] NZHC 2210.
28 S v Vector, above n 6, at [51].
29 Goodman Fielder New Zealand Ltd v District Court at Porirua, above n 12, at [20] and [75(d)].
the decision.30 In my assessment, this critical element of materiality has been omitted from the pleadings. Ordinarily, Mr Deliu might have been invited to amend his pleadings to address this omission. However, for the reasons that follow, I consider that the errors pleaded could not be material, and accordingly no amendment could address that fundamental issue with this part of the claim.
[35] Regarding the first pleaded error of fact, that the Judge erred by not paying regard to Mr Deliu’s costs appeal or Judicial Conduct Commissioner complaint, two points are relevant. First, where a decision is made in ignorance of a fact, the person whose responsibility it was to provide information about the fact cannot claim material error of fact.31 Nowhere in his materials before the District Court nor in the transcript of hearing does Mr Deliu state those matters. Secondly, the error of fact cannot be material to the decision on any construction of the pleadings. It is the prima facie existence of these alternative avenues to challenge the costs decision and a judicial officer’s conduct which render the private prosecution an abuse of process, regardless of whether Mr Deliu had or had not in fact exercised them.
[36] The second error of fact pleaded is that Judge Spear described Mr Deliu as attacking the integrity of a judge, even though the proposed defendant had retired from judicial office. The Judge was well aware of Mr Harrison’s retirement.32 Thus there was no mistake. The temporal distinction Mr Deliu seeks to draw is irrelevant. Judge Spear found that he was collaterally attacking a judge’s decision by claiming it amounted to criminal conduct. Such a claim attacks the integrity of Mr Harrison at the time he was a High Court Judge and thus attacks the integrity of a judge. My conclusion is that there is no error of fact on the pleadings, and even if there was, it could not be material.
[37] The third pleaded error of fact is that the Judge referred to the Office of the Judicial Conduct Commissioner as the “Judicial Complaints Authority”. This part of the claim is also without merit because the misstatement is minor. The pleadings do not establish the basis for a material error of fact. This is also my conclusion regarding
30 Ririnui v Landcorp Farming [2016] NZSC 62, [2016] 1 NZLR 1056 and Peters v Davison [1992] 2 NZLR 164 (CA).
31 Commissioner of Inland Revenue v New Zealand Wool Board (1999) 19 NZTC 15,476 (CA).
32 See Deliu v Harrison, above n 7, at [13].
the fourth pleaded error of fact—which in any event is not an error of fact at all. The Judge stated “[i]t is not for me to comment on the judgment of a Judge of the High Court”.33 This is an obiter comment with no bearing on the decision.
[38]Regarding the four errors of fact pleaded, the comments of Paul Davison J in
Prescott v District Court at North Shore are relevant:34
[57] An application for judicial review will engage the challenged decision, but not each and every conclusion reached by the decision maker which led to the challenged decision. The reasons and conclusions of the decision maker may disclose an error of law upon which the challenge to the decision is founded, but it is the decision itself that is the focus of the Court’s judicial review. In Arbuthnot v Chief Executive, Dept of Work and Income, the Supreme Court said:
It is fundamental that an appeal must be against the result to which a decision-maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision-maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result. A litigant cannot therefore, save perhaps in very exceptional circumstances, bring an appeal when they have been entirely successful and do not wish to alter the result. The successful litigant cannot seek to have the appeal body overturn unfavourable factual or legal conclusions made on the journey to that result which have had no significant impact on where the decision- maker ultimately arrived. In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself.
[58] While the Supreme Court was referring to an appeal and not judicial review, I consider that the same principle applies as regards conclusions reached by the decision maker where the decision is challenged by way of judicial review.
[39] As foreshadowed, my conclusion is that there are no reviewable errors of fact and even if there were, they are not material.
Did the Judge err in finding there was a collateral attack on the costs order and the Judge?
[40] Mr Deliu pleaded that there was no evidential basis for concluding the proposed prosecution was a collateral attack on the costs order or impugned the
33 At [13].
34 Prescott v District Court at North Shore [2017] NZHC 2828, citing Arbuthnot v Chief Executive, Dept of Work and Income [2007] NZSC 55, [2008] 1 NZLR 13 at [25] (footnote omitted; emphasis added).
integrity of Mr Harrison. I note that with a pleading of no evidence to support a finding, an applicant faces a “very high hurdle”.35 I accept that the Judge used strong language and imputed a deliberate intention onto Mr Deliu that was not strictly necessary. For the private prosecution to be an abuse of process, an intention to circumvent the court’s processes is not strictly required. All that is needed is that in fact the proceeding does so.
[41] However, it is untenable to claim that the Judge had no evidence upon which to make a finding of collateral attack. He had before him the costs judgment itself. He was also aware that the order was made against Mr Deliu personally; that it was made in what on its face were controversial circumstances; that Mr Deliu was now bringing a private prosecution; that it was against the Judge who had made the decision; and the fact the charges sought not to sanction the Judge for judicial corruption but instead alleged that judicial action amounted to the crime of deception. That factual matrix was sufficient for the finding, if not compelling it. In other words, on the objective facts, Mr Deliu cannot tenably argue that “the true and only reasonable conclusion contradicts the determination”.36
Did the Judge take account of irrelevant considerations?
[42] To the extent Mr Deliu pleaded that the Judge here took account of irrelevant considerations (that Mr Deliu was impugning the integrity of Mr Harrison), that too is untenable. Judge Spear was required to take account of matters that went to whether the prosecution was an abuse of process. Whether a proceeding challenges a judicial officer personally for a judicial decision is plainly relevant to that assessment. No formulation of such a pleading has any prospects of success.
Were there breaches of legitimate expectation and natural justice?
[43] I turn now to the process issues raised by Mr Deliu concerning the hearing and provision of legal authorities. Mr Deliu pleaded that the first defendant breached his legitimate expectation created by the 8 December 2020 directions by denying him a hearing. As I have found previously in relation to Mr Deliu, there can be no legitimate
35 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [27] and [28]
36 Bryson v Three Foot Six, above n 35.
expectation of a hearing arising simply from the matter being set down.37 Here it is the form of hearing rather than the date of it that is put in issue but nonetheless the same principles still apply. Court processes are liable to change in order to ensure the efficient administration of justice. Decisions of registrars are also liable to be subject to judicial oversight and review.38 Additionally, as someone with legal experience Mr Deliu should have appreciated from the authorities that a hearing under s 26 is an unusual occurrence. In short, there are no matters capable of giving rise to a legitimate expectation of a hearing. The cause of action is also untenable.
[44] In a related pleading, Mr Deliu asserted that his right to natural justice was breached when the Judge denied him a hearing or failed to give him the opportunity to be heard in circumstances where an adverse factual finding would be made against him, that Mr Deliu’s actions were “reprehensible in the extreme”.39 I deal with the two grounds of review relating to the hearing below.
[45] As foreshadowed, the process under s 26 envisages, in most cases, a decision on the papers.40 There is no entitlement to a hearing. The statement of Paul Davison J relied on by Mr Deliu in fact supports the proposition that natural justice requirements are fulfilled by the proposed prosecutor placing any evidence they consider relevant before the Court, per s 26(1)(b):41
[47] When the s 26 procedural sequence is followed and s 26(1)(b) employed to direct the filing of formal statements, the Judge will then be in a position to make an informed decision as to the sufficiency of the evidence. By omitting to comply with that step in the procedure, the Judge has denied the private prosecutor the opportunity of putting his evidence forward for consideration. That is, in my view, much more than a technical requirement. Its function and clear purpose is to ensure that the private prosecutor puts forward evidence with the form and quality of formal statements which are declared by the witnesses to be true and made with knowledge that their statements will be used in court proceedings. Until that step in the process has been followed, any decision by the Judge is premature and deprives the private prosecutor of the opportunity to place all and any evidence they consider relevant before the Court. The opportunity afforded to a private prosecutor by
37 Deliu v Auckland District Court [2023] NZHC 164 at [62]–[64] and [132].
38 At [132], citing District Court at Christchurch v McDonald [2021] NZCA 535, [2021] 3 NZLR
585. It is not clear from the material, however, whether the matter was set down for hearing by a registrar or another District Court Judge.
39 See Deliu v Harrison, above n 7, at [14].
40 S v Vector, above n 6, at [51] and Goodman Fielder New Zealand Ltd v District Court at Porirua, above n 12, at [30] citing H Construction North Island Ltd [2018] NZHC 2327 at [51].
41 Prescott v District Court at North Shore, above n 34.
s 26(1)(b) is, in my view, a legislative recognition of their right to be heard and the observance of the principles of natural justice as confirmed by s 27 of the New Zealand Bill of Rights Act 1990.
[46]Further, in Goodman Fielder this Court noted that:42
In other statutory contexts the Court of Appeal has observed that there is an important difference between giving affected parties an ability to participate as a matter of good practice, and a requirement that they be able to participate as a matter of legal obligation enforceable by way of judicial review.
[47] Taking account of the statutory scheme, this scenario is not one where there is a legal obligation for parties to participate in an oral hearing. Thus, there is no obligation enforceable by way of judicial review.
[48] In any event, Mr Deliu appeared before Judge Spear on 22 February 2021, and they discussed the approach to s 26. Mr Deliu confirmed the statements he had filed was the evidence he wanted the Court to have regard to, with the caveat that he wished to file supplementary evidence, which he outlined to the Judge. He then discussed with the Judge a second proposed private prosecution, not relevant to the present proceeding. Judge Spear confirmed he had no questions for Mr Deliu about the evidence or the submissions. Mr Deliu was also able to put his written material before the Court to persuade the Judge that the prosecution was bona fide and of merit. It is not tenable for Mr Deliu to claim in these total circumstances, which are not challenged, that he has been denied natural justice via lack of a hearing.
[49] Additionally, the fact the statute expressly requires the Judge to consider whether the prosecution is an abuse of process means Mr Deliu was on notice that his motives for bringing the prosecution would be assessed, especially in circumstances where, on its face, any proposed prosecution of a judge would raise the question of abuse of process. Given the issue for Judge Spear was whether private prosecution documents against a former High Court Judge for actions done while holding judicial office should be accepted for filing, the bona fides of the applicant was at issue.43
42 Goodman Fielder New Zealand Ltd v District Court at Porirua, above n 12, at [27].
43 Although I have said above mala fides is not strictly necessary for a finding of abuse of process it is, of course, relevant.
[50] One of the purposes of s 26 is to filter documents where an applicant is acting maliciously or vexatiously.44 If an adverse finding is foreseeable there can be no “surprise”, a key element of the duty to warn of adverse findings.45 The law is also clear that the duty to warn is more applicable to non-judicial decision-making, and its application to judicial decisions will only be in exceptional cases.46 This is not an exceptional case. Accordingly, my conclusion is that there is no reasonably arguable cause of action based on a failure to warn of adverse findings.
[51] Mr Deliu pleaded that his rights to natural justice were also breached by the failure of the amicus and/or the Court to provide him with the judgment text of S v Vector. The amicus is not subject to this judicial review. In any case, there is no right to have the Court put relevant authority in front of parties. It is the duty of counsel to competently represent their client, including by researching and accessing important precedents. It is also arguable that Mr Deliu could have avoided this mishap by engaging a lawyer, notwithstanding the fact that he is himself legally trained and without undermining the right of any person to represent themselves. Having a legal background, Mr Deliu could have also purchased a copy of the judgment as part of the costs of litigation.
[52] Moreover, as canvassed above, the s 26 process is designed to be a simple screening mechanism. The material Mr Deliu was required to produce is plainly set out in the section, namely: a charging document, formal statements and the exhibits referred to in those statements. Access to S v Vector was not necessary for Mr Deliu to understand what was required of him. The short point is that in this respect Mr Deliu has not identified any action which could be said to be in breach of natural justice and this part of the claim has no prospect of success.
Did the Judge fail to take account of relevant considerations?
[53]Mr Deliu then pleaded:
44 S v Vector, above n 6, at [42].
45 Khalon v Attorney-General [1996] 1 NZLR 458 (HC); and Ali v Deportation Review Tribunal
[1997] NZAR 208 (HC) at 220.
46 Goston v Designer Space & Storage (2006) Ltd HC Auckland CIV-2007-404-103, 2 April 2007 at [34].
The first defendant failed to take into account relevant considerations, namely the process issues the applicant specifically outlined in ¶ 8 of his 24 January 2021 memorandum pled at paragraph 4 supra.
[54] The form of this pleading is, with respect, somewhat unhelpful. It would be preferable to set out the particulars without requiring cross reference to other documents. However, I have referred to the other document which at [8] states: “At
[2] of the costs judgment the accused falsely stated that ‘[c]ounsel for the children, Mr Antony Mahon, has applied for costs’.”
[55] I accept that when considering whether there is insufficient evidence for the purposes of s 26, a judge should engage in a more extensive assessment of the evidence.47 However, it is evident from Judge Spear’s decision that his principal concern was that the prosecution was an abuse of process. One or the other may be satisfied for the Judge to reject the charging the document. The Judge being satisfied the prosecution was an abuse of process, it was not then necessary for him to closely examine the merits of the evidence.
[56] Further, the Judge did take account of the facts alleged to underpin the charge. He had regard to those matters when he stated:
There is nothing raised by Mr Deliu in his “statement” that could possibly provide a sufficient basis for allegations that the proposed defendant acted by deception, without claim of right or otherwise dishonestly in relation to making the order for costs that he did. Those are essential elements of the offences alleged by the proposed charges.
[57] Mr Deliu is dissatisfied with the way the Judge assessed those matters, but that goes to the merits of the decision and that is not appropriate for judicial review.
Did the Judge act in bad faith?
[58] Finally, Mr Deliu pleaded that Judge Spear acted in bad faith and in breach of his judicial oath. It is accepted that judicial review is available where there was bad
47 S v Vector, above n 6.
faith.48 However an applicant alleging bad faith faces a high evidential burden.49 Taking the pleaded facts as true, there is no basis to establish bad faith. Even if the Judge had been wrong in law, that does not establish bad faith. The transcript of the hearing before Judge Spear was available to me and I could not discern from it any improper treatment of Mr Deliu, or indeed any exchange that could possibly give rise to a finding of improper treatment. My conclusion is that part of the claim is also untenable.
Is the judicial review an abuse of process?
[59] As I have found that Mr Deliu’s claim is not reasonably arguable under r 15.1(1)(a), it is not necessary for me to make a finding on whether it is also an abuse of process. However, I now add several observations on the other limb of the Attorney-General’s argument, that the judicial review offends against the principle of judicial immunity and is thus an abuse of process.
[60] First, although counsel referred to the law of judicial immunity as “unsettled” regarding criminal proceedings, the law of judicial immunity is well established. It is settled that judicial immunity is required to promote and protect judicial independence.50 That independence requires freedom from retaliation by disappointed litigants or other actors.51 Protection from claims allows a judge to act on that part of the judicial oath to act without fear or favour. If their decisions exposed them to personal liability it would not be possible to cast fear aside. There would always be a degree of trepidation—recalling Lord Denning’s reference to “trembling fingers”52— which would interfere with the proper bases for decision-making. Thus, judicial immunity is not a private privilege but a public right central to the protection of judicial independence.53
48 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 at 391 (PC); Lab Tests Auckland Ltd v Auckland District Health Board [2009] 1 NZLR 776 at
[91] (CA); and Air New Zealand Ltd v Wellington International Airport Ltd [2009] NZCA 259, [2009] 3 NZLR 713 at [21].
49 Attorney-General v Ririnui [2015] NZCA 160 at [78].
50 Attorney-General v Chapman, above n 8.
51 Deliu v Attorney-General, above n 5 (footnotes omitted).
52 Sirros v Moore [1975] QB 118, [1974] 3 All ER 776 (CA) at 136.
53 Nakhla v McCarthy, above n 16.
[61] Judicial immunity also serves to uphold finality in litigation and prevent collateral attacks on judgments, beyond the orthodox remedies of appeal and review.54 There is also academic commentary that notes that appeal and review not only serve to correct any legal error with the judgment but do indeed serve as a personal accountability mechanism for the judge:55
The appellate and judicial review processes are not only potential sources of a remedy for the litigant affected by the unlawful judicial action, but they also facilitate the accountability of the erring judge. Judges do not like being reversed on appeal and the possibility of such accountability at the hands of their more senior colleagues will be a strong encouragement for their striving not to act unlawfully.
[62] In a previous judgment regarding these proceedings, Nation J underscored the importance of the judicial oath, while also noting that criminal proceedings being brought against a judge in the exercise of that office could undermine judicial independence:56
[29] Mr Harrison, as a High Court Judge, made a decision over costs. His decision was overturned on appeal but it would be extremely rare that, simply through having a decision overturned on appeal, a Judge could have committed a criminal offence. It is seriously arguable that for a court to allow a Judge to be prosecuted for a criminal offence would undermine judicial independence.
[30] The judicial oath which Mr Harrison took on his appointment as a Judge of the High Court was to swear that he would “well and truly serve Her Majesty, … Her heirs and successors, according to law in the office of a Justice of the High Court” and that he would “do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will”.
[63] In addition, Professor Harris’ article referred to above makes what I consider are accurate comments about the nature of judicial immunity from criminal proceedings:57
However, notwithstanding the general principle, if the alleged criminal action taken by the judge is within his or her jurisdiction, that jurisdiction may prevent what would otherwise be regarded as criminal action being held to be such by the courts. For example, a judge could not be successfully prosecuted for what might otherwise be crimes in respect of a decision to imprison an
54 Hunter v Chief Constable of West Midlands Police [1982] AC 529 (HL).
55 BV Harris “Remedies and Accountability for Unlawful Judicial Action in New Zealand: Could the Law be Tidier?” [2008] NZ L Rev 483 at 489.
56 Deliu v Attorney-General, above n 5.
57 BV Harris, above n 54, at 490.
offender where the judge was considered to be acting within the jurisdiction to impose such a sentence. A judge acting outside his or her jurisdiction will be vulnerable to successful criminal prosecution, as he or she will have no positive legal authority for that which has been done.
[64] The High Court of Australia has also cited with approval the observations of the New South Wales Court of Appeal that:58
[T]his policy is as equally applicable to criminal proceedings for the acts of judges, in the exercise of their judicial functions, as it is in respect of civil proceedings. … If the law were that any disgruntled litigant could charge a judge with contempt for being wrong and mala fide in his conclusion, or in arriving at the conclusion without any or any insufficient evidentiary basis, the independence required of judges would be greatly eroded.
[65] All of the above indicates that, although it could be suggested that the law in New Zealand is “unsettled” on the point of criminal judicial immunity, none of the underlying principles are in serious dispute. It seems to me that the doctrine would be applicable in New Zealand in the appropriate case, but I leave that for such a case.
[66] Secondly, Mr Deliu points to the above uncertainty as a reason why his case should not be struck out. The principle that novel cases should be less susceptible to strike out derives from the fact that the novel argument or factual scenario may not be amenable to full exploration at the interlocutory strike-out phase, and accordingly an assessment of the strength of the claim cannot be properly made. Thus the claim should go to substantive hearing. But here, the strength of the claim does not rely on establishing the law relating to criminal judicial immunity. It simply relies on the grounds pleaded by Mr Deliu, referred to at [6] above. It is the Attorney-General that relies on the judicial immunity argument in favour of strike-out, but as foreshadowed it is not necessary to make findings given my determination regarding r 15.1(1)(a).
[67] I take the Attorney-General’s point that insofar as a doctrine of judicial immunity against criminal proceedings exists in New Zealand Mr Deliu’s attempted prosecution offends against it. Indeed there is a flavour of that view in Judge Spear’s decision. Even so, the more pertinent finding is that Mr Deliu’s proposed prosecution was an abuse of process because it constituted a collateral attack on the costs judgment. Although there are elements of that collateral attack seeping through to the present
58 Fingleton v R, citing Yeldham v Rajski, both above n 9.
judicial review, in particular the ground set out at [6(d)] above, other parts of the review seek to challenge what Mr Deliu argued were process flaws with the private prosecution hearing itself. So, while I leave the point of judicial immunity open, I find that the claim should not be struck out for abuse of process on the ground of collateral attack.
Conclusion
[68] As mentioned, I accept that a strike-out of judicial review is to be sparingly exercised. However, the principles of strike out do not prohibit a preliminary assessment of the pleadings and their context. As foreshadowed, in any case, my overall conclusion is that Mr Deliu’s claim is not tenable as a matter of law. I have had the benefit of the factual record and because it relates to matters recorded in judgments, very little is seriously in contention. Nor it is likely that there would be any significant change to the factual matrix if a substantive hearing was held. Thus, the traditional dangers of strike out do not weigh as heavily in this case.
[69] In these circumstances I am satisfied that it is appropriate for the claim to be struck out.
Decision
[70]Mr Deliu’s judicial review claim in CIV-2021-404-390 is struck out.
[71] The Attorney-General is entitled to costs on the strike-out application. However, given this proceeding was case managed and heard together with -348 and
-2472, and costs may overlap, costs memoranda should not be filed until the release of the judgment dealing with those matters, according to the directions therein.
Harvey J
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