Deliu v District Court at Auckland
[2022] NZHC 3389
•13 December 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2022-404-81
[2022] NZHC 3389
UNDER Judicial Review Procedure Act 2016, Part 30 of the 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
THE DISTRICT COURT AT AUCKLAND
First Respondent
THE ATTORNEY-GENERAL
Second Respondent
Hearing: 15 September 2022 Appearances:
The applicant in person
H Carrad for the second respondent
Judgment:
13 December 2022
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 13 December 2022 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
DELIU v THE DISTRICT COURT AT AUCKLAND [2022] NZHC 3389 [13 December 2022]
[1] Mr Deliu applied to the District Court to access documents in a criminal proceeding to which he was a party. He asked the Court to email him a copy of the file. Judge Sharp directed that Mr Deliu could attend the Court in person to search, copy and inspect the file, but that a copy of the file would not be emailed to him.
[2] Attending the Court in person was unsatisfactory to Mr Deliu. He lived overseas and intended never to return to New Zealand. He explained this to the Registrar of the Court and requested that his application be reconsidered. The Registrar asked Mr Deliu to file a memorandum for a Judge to consider. More than a year later, in July 2020, Mr Deliu did so.
[3] Mr Deliu’s request for a reconsideration was not determined until 10 February 2022, when it was largely refused by Judge Gibson. Before then, Mr Deliu had applied twice for Judge Gibson to recuse himself from the underlying criminal proceeding. Upon receiving Judge Gibson’s 9 February 2022 decision, Mr Deliu made a further application for Judge Gibson to recuse himself and applied for a reconsideration of the Judge’s refusal of his reconsideration request.
[4] Judge Gibson refused both applications. Mr Deliu applied for recall of the Judge’s decision. Judge Gibson declined the recall application. Mr Deliu emailed the Registrar of the Court suggesting that the Judge had refused to address the recall application. Judge Gibson made a further direction, saying the matter was settled.
[5] Mr Deliu applies to this Court for judicial review of the District Court’s various decisions and processes. He pleads that there have been multiple breaches of his right to natural justice, that there have been errors of law, that Judge Gibson acted corruptly and was biased, that Judge Gibson should have recused himself, that Judge Gibson failed to take into account relevant considerations and that the Judge acted unreasonably.
Background
[6] In April 2018, the Police laid two charges of attempting to pervert the course of justice against Mr Deliu in the Auckland District Court. The Police accused
Mr Deliu of jointly offending with Richard Zhao, a solicitor. The Police concurrently laid the same two charges against Mr Zhao.
[7] Mr Deliu was living overseas at the time (and has remained outside New Zealand ever since). As he could not be served with a summons, the Court issued a warrant for Mr Deliu’s arrest.
[8] In mid-2019, Mr Zhao told Mr Deliu that, during the hearing of an application by Mr Zhao to have the charges against him dismissed, the Police had withdrawn both charges. One of the charges, Mr Zhao said to Mr Deliu, had been withdrawn without prejudice. According to Mr Zhao, the Police said that charge would be re-laid if Mr Deliu ever returned to New Zealand, in order for Police to have leverage against Mr Zhao to “flip him” against Mr Deliu.
[9] On 10 June 2019, Mr Deliu emailed to the District Court an application to access court documents. The application said he wanted to access court documents about “Police v Zhao & Anor” and that the defendant was “F C Deliu”. He said the case numbers were “PRN 80838119; CRN18004005175/18004005176”. That PRN is for Mr Deliu. The CRNs are for the charges against Mr Zhao (not those against Mr Deliu).
[10] In the application, Mr Deliu said he wanted to access all documents. He recorded a contact address in Silverdale, Auckland. His covering email said: “kindly e-mail me a copy of the entire file.”
[11] On 11 June 2019, a Deputy Registrar at the District Court emailed counsel for Mr Zhao and counsel for the prosecution attaching Mr Deliu’s access application and asking if they wished to object to it. On the same day, counsel for Mr Zhao replied, abiding the decision of the Court.
[12] On 17 June 2019, counsel for the prosecution replied to the Deputy Registrar, abiding the decision of the Court but noting some matters “for the assistance of the Court”. These included that any right Mr Deliu might have under r 9(3)(b) of the District Court (Access to Court Documents) Rules 2017 (the Access Rules) was one
to search, inspect and copy documents under the supervision of the Registrar, so that Mr Deliu’s request to have a copy of the file sent to him appeared to be outside the scope of what was allowed by the Access Rules.
[13] On 19 June 2019, the Deputy Registrar prepared a memorandum for Judge Sharp on Mr Deliu’s application. The memorandum referred to the application being made in “Q [sic] v ZHAO” with reference “CRI-2018-004-004496”. The memorandum attached the responses from counsel.
[14] On 28 June 2019, Judge Sharp made a handwritten direction on the memorandum:
Mr Deliu is entitled under the rights available to him to search inspect and copy the Court documents under the supervision of an officer of the Court. It will not be copied and forwarded to him.
[15]On 1 July 2019, the Deputy Registrar emailed Mr Deliu:
Your Application for Access to court documents was referred to the Jury Liaison Judge, Judge D Sharp.
A copy of the file cannot be emailed to you. The file will be available at Auckland District Court (Criminal Counter) for search, inspect and copy under the supervision of an officer of the court, in accordance with rule 9 of the District Court (Access to Court Documents) Rules 2017.
Please advise date and time so we can arrange for court officer to assist.
[16] On 4 July 2019, Mr Deliu replied to the Court by email. He advised that he was overseas and not returning to New Zealand. He said he therefore could not ever come in person to inspect or copy the file. He asked:
So, can my request for an electronic copy please be reconsidered in light of this circumstance. Additionally, I would be content for a copy to be posted to the New Zealand address I nominated. Finally, can I have an agent (possibly a lawyer) come and inspect and copy the file on my behalf? If neither of these courses of action are acceptable then I respectfully ask for a lawful reason for judicial review purposes and thank his Honour in advance.
[17] The District Court replied the same day, asking Mr Deliu to file a memorandum for the Judge to consider.
[18] Over a year later, on 16 July 2020, Mr Deliu emailed a memorandum to the District Court. The memorandum said:
MAY IT PLEASE THE COURT,
1.I write further to the Registrar’s 5 July 2019 e-mail asking me to file a formal memorandum in regards to my motion to get access to my files in the above-intituled matters.
2.On or about 1 July 2019 Judge Sharp ruled that: “A copy of the file cannot be emailed to you. This file will be available at Auckland District Court (Criminal Counter) for search, inspect and copy under the supervision of an officer of the court, in accordance with rule 9 of the District Court (Access to Court Documents) Rules 2017. Please advise date and time so we can arrange for court officer to assist.”
3.The difficulty with that is that I am not resident in New Zealand and nor am I ever returning. As such, I cannot attend the counter. This is the reason why I, in the first place, sought to have the files e-mailed to me.
4.In this circumstance the Court has jurisdiction under r 5(1) of the District Court (Access to Court Documents) Rules 2017 to provide me with an electronic copy of the files as I would otherwise be unable to acquire them as a litigant in person.
5.I require the files to, inter alia, use them in an application pursuant to
§ 147(2) of the Criminal Procedure Act 2011 to dismiss the charges on the basis that a properly directed jury could not reasonably convict the defendant and/or to have the charges stayed as an abuse of process. Obviously, my having the files is necessary for such an exercise.
6.As the Court pleases.
[19] In the memorandum, Mr Deliu requested access to files, plural. Paragraph [1] referred to “the above-intituled matters”. The intituling showed the parties as the Police (as prosecutor) and Mr Deliu (as defendant) and had two references: “CRI- 2017-004-142” and “CRN 18004005175/18004005176”. The CRI reference cannot have been to the proceeding brought against Mr Zhao and Mr Deliu for attempting to pervert the course of justice, those charges having been laid in 2018, not 2017. I infer it was a reference to an earlier proceeding against Mr Deliu in respect of two assault charges that were laid against him by Police in February 2017. The CRNs are those relating to the charges against Mr Zhao.
[20] No decision on Mr Deliu’s memorandum was made until 10 February 2022, when it was decided by Judge Gibson. Meanwhile, there were other developments.
[21] On 10 September 2020, Mr Deliu commenced a proceeding in the High Court (CIV-2020-404-1439) for judicial review of the District Court and of the Police. Mr Deliu claimed that, among other things, his right to natural justice had been breached by the District Court failing to deal with his 16 July 2020 application for copies of all the files relating to the charges of assault and of attempting to pervert the course of justice. This appears to be a reference to the request in his 16 July 2020 memorandum. Mr Deliu also alleged that Judge Gibson had, in a judgment in a separate proceeding, R v Shi,1 treated Mr Deliu “as an inherently untrustworthy individual”.
[22] On the same day that he commenced that High Court proceeding, Mr Deliu filed a memorandum in the District Court, applying to recuse Judge Gibson (the first recusal application). The memorandum bore the same intituling as Mr Deliu’s 16 July 2020 memorandum, and therefore was made in the proceeding against Mr Deliu in respect of the assault charges and in the proceeding against Mr Zhao. The recusal application was based on Judge Gibson’s alleged treatment of Mr Deliu in the judgment in R v Shi.
[23] On 12 March 2021, Mr Deliu filed an application in the District Court for various orders, including that Judge Gibson be recused (the second recusal application). The application’s intituling showed the parties as the Police (as prosecutor) and Mr Deliu (as defendant) and had two references: “CRI-2017-004-142” and “CRI-2018-004-3571”. I infer that the second proceeding number is the proceeding against Mr Deliu on the charges that he attempted to pervert the course of justice.
[24] On 19 November 2021, Mr Deliu emailed the District Court with respect to his 16 July 2020 memorandum, saying: “It has been 16 months so when is this going to be determined?” On the same day the District Court replied by a COVID-19 related form email, which said (in part):
Unless your email is related to one of the matters identified by the Chief Justice (in the latest protocols … you may experience a delay in response. ...
1 R v Shi [2018] NZDC 6450.
[25] On 24 January 2022, Mr Deliu emailed the District Court again with respect to his 16 July 2020 memorandum, asking if the Court was ever going to deal with it. He said that if he did not hear soon, he would bring High Court proceedings “over your corrupt refusal”. The District Court replied the same day by a COVID-19-related form email, which said (in part):
Emails are being prioritised in line with the case types identified by the Chief Justice in the latest protocols … . If your email relates to something else, you may experience a delay in response.
[26] On the same day, Mr Deliu filed another application in the District Court to access documents in the R v Zhao proceeding. The application recorded that Mr Deliu had a lawyer, Mr Castelino. Mr Deliu asked for the full file. Under the heading “We want to look at these documents because” he said:
Pursuant to r 9(3) of the District Court (Access to Court Documents) Rules 2017, I am a party to the proceeding and so wish to persue [sic] the file to see what arguments Mr Zhao’s counsel made, and what evidence Mr Zhao adduced, in support of his motion to dismiss the charges against him for potential use as evidence in High Court proceedings I have challenging the charges against me.
I have engaged Mr Bennet Catelino [sic] for the sole and limited purpose of acquiring these materials for me or alternatively perusing them in my stead and so I respectfully request that the Court grant him access accordingly [sic].
[27] On 26 January 2022, Mr Deliu commenced the current proceeding in the High Court. Among other things, he claimed that the District Court’s delay in adjudicating upon his 16 July 2020 memorandum breached his right to natural justice.
[28] On 8 February 2022, the Service Manager at the District Court emailed Mr Deliu as follows:
I had sent earlier email correspondence to advise that your application had been submitted to a judge in chambers and we are awaiting direction.
Note that there was a 2019 decision of HH Judge D Sharp that you are aware of and then subsequent request from the registry to file new memorandum requesting electronic court files as you are overseas which was received in 2020, there was some email correspondence also noting you would be content for a copy to be posted to a NZ address that you have nominated or possibly an agent come and inspect the court file on your behalf. All of this is with the judge and I expect some direction today on the matter and then I will make [sic] advise you today of the outcome.
[29] The Service Manager prepared an internal memorandum dated 8 February 2022 for the Duty Judge about Mr Deliu’s memorandum. On 9 February 2022, Judge Gibson made the following handwritten direction on the internal memorandum:
Judge Sharp’s direction of 1 July, 2019 makes it clear that personal attendance is required for the purpose of inspection. A duly authorised agent (in writing) can inspect on the applicant’s behalf under the terms set out by Judge Sharp. Documents to be inspected are those set out in Rule 8(2) of the Rules.
[30] On 10 February 2022, the Service Manager at the District Court emailed Mr Deliu:
Have received direction and as per the judges notation on memo as follows:
“Judge Sharp’s direction of 1 July 2019 makes it clear that a personal attendance is required for the purpose of inspection. A duly authorised agent (in witness) can inspect on the applicants behalf under the terms set out by Judge Sharp. Documents to be inspected are those set out in Rule 8(2) of the Rules.”
[31] That email contained a typographical error. It referred to “A duly authorised agent (in witness)” rather than “A duly authorised agent (in writing)”.
[32] In response, on 10 February 2022, Mr Deliu filed a document in which he applied for Judge Gibson to recuse himself (the third recusal application) and “demand[ed]” that his request for a reconsideration of Judge Sharp’s decision “actually be decided (as opposed to disposed of)”. The document ran to 20 pages and attached hundreds of pages of annexures. It outlined the history of the charges against Mr Deliu and Mr Zhao, the circumstances of Mr Deliu’s departure from New Zealand and explained why he would not be returning to New Zealand. Mr Deliu explained at length why he could not come to the Court to inspect the documents. He applied for Judge Gibson’s recusal, suggesting Judge Gibson had ignored the sole issue he raised (that he was outside New Zealand) and instead provided him with a summary of Judge Sharp’s decision. He referred to his first and second recusal applications and to Judge Gibson’s judgment in R v Shi, and submitted Judge Gibson was actually biased against him.
[33] On 12 February 2022, Mr Deliu made a complaint against Judge Gibson with the Office of the Judicial Conduct Commissioner.
[34] On 17 February 2022, Judge Gibson made a handwritten direction on an internal memorandum in response to Mr Deliu’s document dated 10 February 2022:
Judge Sharp’s direction was considered. It is clear that Mr Deliu’s request to have an agent inspect the file was agreed to. An electronic copy of the file is not to be made available. Judge Sharp has already directed that is not to occur and I cannot review another Judge’s decision. In any event it is one I would have made had the request been referred to me in the first instance.
The request for recusal is refused. Firstly my decision had already been made before the request was received and further no adequate ground was advanced that would cause me to consider the request had any merit.
[35] On 22 February 2022, the District Court Service Manager sent an email to Mr Deliu quoting Judge Gibson’s decision in full.
[36] Later that day, Mr Deliu replied by email, questioning Judge Gibson’s decision. Among other things, Mr Deliu said it was “downright false” that there was no application to recuse Judge Gibson at the time he made his decision. Mr Deliu said there were in fact two applications, and he attached them (being the first recusal application dated 10 September 2020 and the second recusal application dated 12 March 2021). Mr Deliu applied for recall of Judge Gibson’s decision.
[37] On 8 April 2022, Judge Gibson made a further handwritten direction on an internal memorandum, the content of which was quoted in an email sent to Mr Deliu that day:
I do not propose to comment further having already dealt with the matter save as the memorandum dealing with Mr Deliu’s request to access court file and dated 8 February, 2022 [it]2 makes clear the recusal application was not before me otherwise I would have dealt with it as part of my response. The only documents put before me were those referred to in the memorandum.
[38] Undaunted, Mr Deliu responded, by email, to the District Court Service Manager on 11 April 2022. Mr Deliu said that Judge Gibson had wilfully refused to address his recall application. Mr Deliu said that the District Court would be embarrassed in the High Court by the Judge’s improprieties, referring to an amended claim he had filed in this proceeding, which he attached to his email.
2 The “it” was in the email but not in Judge Gibson’s handwritten direction.
[39]On 11 April 2022, the District Court Service Manager emailed Mr Deliu:
I will submit your email response and attachment with the rest of what has been submitted previously and place before Judge Gibson for further direction.
[40] On 4 May 2022, Judge Gibson made a further handwritten direction on an internal memorandum, the content of which was quoted in an email sent to Mr Deliu on 9 May 2022:
My direction of 08-04-2022 speaks for itself. Mr Deliu’s request has been refused save for permission given, as he requested, to inspect the file. I am not prepared to engage further as the issue is now settled.
Mr Deliu’s claims and the respondents’ positions
[41] Mr Deliu pleads that the first respondent, the District Court, erred in a variety of ways in addressing his request to access documents. He does not plead any cause of action against the second respondent, the Attorney-General.3
[42] As is usual in these matters, the District Court abides the decision of the Court. The Attorney-General has actively defended Mr Deliu’s claims.
[43] The issues are most conveniently identified as I consider each of Mr Deliu’s causes of action below. To those I now turn.
First cause of action: District Court’s delay breached right to natural justice
[44] Mr Deliu’s first cause of action concerns the District Court’s delay in adjudicating on his request for a reconsideration of Judge Sharp’s initial decision on Mr Deliu’s access application.
[45] Mr Deliu made that request in his memorandum of 16 July 2020. The District Court did not make a decision on the request until almost 19 months later, on 10 February 2022, when Judge Gibson’s direction was emailed to Mr Deliu. Mr Deliu
3 Mr Deliu named the Crown as the second respondent. On 25 May 2022, Jagose J directed that the appropriate second respondent was the Attorney-General rather than the Crown.
says that the District Court’s delay breached his right to natural justice in s 27 of the New Zealand Bill of Rights Act 1990 (BORA).
[46] Natural justice requires that a decision be made within a reasonable time.4 Where a party has properly used a statutory procedure, the right to natural justice in s 27 of the BORA includes a right to receive a decision within a reasonable time.5
[47] Mr Deliu filed his memorandum in response to an invitation by a Deputy Registrar to formalise his application for a reconsideration of his initial request for an electronic copy of the file to be emailed to him. It was proper for him to do so. The issue is whether the 19-month delay in determining that request was unreasonable.
[48] Whether a delay is unreasonable depends on the circumstances. Here the most relevant circumstance is that the issue raised by Mr Deliu’s memorandum was a straightforward one. It did not require lengthy analysis or consideration. This suggests it would be reasonable to expect such an issue to be determined promptly.
[49] Some of the features of this case point the other way. Mr Deliu did not exhibit any great urgency. After the Deputy Registrar asked for a memorandum, Mr Deliu took more than a year to file it.6 Although he submitted that he had “repeatedly” followed up with the Court on the memorandum, he did so only twice: once on 19 November 2021 (16 months after he filed the memorandum) and again on 24 January 2022. At those times, the District Court was still struggling with the consequences of the pandemic. Mr Deliu may also have contributed to a small part of the delay by intituling the memorandum with a proceeding number different from the proceeding to which his original application related.
[50] Ms Carrad, counsel for the Attorney-General, submitted that another relevant feature was that Mr Deliu had at all times during the delay been able to arrange a
4 Unitec Institute of Technology v Attorney-General [2006] 1 NZLR 65 (HC) at [125] (overturned on appeal, but not on this point).
5 Ngunguru Coastal Investments Ltd v Māori Land Court [2011] NZAR 354 at [23]; and Baker v Waitangi Tribunal [2014] NZHC 1219 at [43].
6 Oddly, Mr Deliu deposed in his affidavit in support, and insisted in his written submissions, that he had filed the memorandum on 16 July 2019. During the hearing, faced with the date of the memorandum and the date of the email to which the memorandum was attached, he accepted he filed it on 16 July 2020.
lawyer to access the file on his behalf. I do not consider that this is relevant to whether the delay was reasonable. Mr Deliu had properly raised for the District Court’s determination whether that Court would, given he was overseas and not returning to New Zealand, email him a copy of the file. Mr Deliu was entitled to a decision on that question. That he may have had an alternative available to him did not excuse the District Court from the responsibility of making a determination on that request (and of doing so in a reasonable time).
[51] Notwithstanding the features I have identified at [49] above, I consider a 19-month delay in determining Mr Deliu’s application in his memorandum was unreasonable. The application was straightforward. Those features may have made it reasonable for a decision to take a month or so, but they do not explain a 19-month delay.
[52] Mr Deliu’s written submissions said that an inference could be drawn that the District Court’s delay was deliberate. He withdrew that submission at the hearing. To be clear, the only reasonable inference is that the delay was an oversight. On all other occasions the District Court responded promptly to Mr Deliu’s various requests associated with his application to access documents, even when those requests were informally made in emails (a practice that should be discouraged). But an unreasonable delay through oversight remains an unreasonable delay.7
[53] For these reasons, I find that the District Court’s delay in adjudicating on the request in his memorandum of 16 July 2020 breached Mr Deliu’s right to natural justice in s 27 of the BORA.
Second cause of action: District Court’s “ex parte” consideration of counsel’s submissions contravened right to natural justice
[54] Mr Deliu’s second cause of action is concerned with the way in which the District Court went about dealing with his initial application for access to documents. After receiving that application, a Deputy Registrar emailed counsel for Mr Zhao and
7 Vea v Minister of Immigration [2002] NZAR 171 (HC) at 182.
counsel for the prosecution asking if they wished to object to Mr Deliu’s application. Both counsel responded. Mr Deliu was not served with either response.
[55] Mr Deliu pleads that the District Court’s consideration of counsel’s responses, without him having notice of those responses or an opportunity to be heard, contravened his right to natural justice.
[56] Access to documents in the custody or control of the District Court is governed by the Access Rules. Those Rules require that any objections made to access applications be given to the Registrar.8 There is no requirement that the Registrar provide those objections to the applicant. A Judge may determine an application for access in any way the Judge considers just.9 One option is for the Judge to require the applicant to file an interlocutory application or an originating application (in which case the applicant would receive and have the opportunity to be heard on any notices of opposition). Under the Access Rules, it is therefore open to a Judge to determine an application without requiring that objections be provided to the applicant and without giving the applicant the opportunity to be heard on the objections.
[57] The Access Rules thereby leave it to the judge to determine the extent to which the applicant should be served with objections and be given the opportunity to be heard on them. This is not surprising, given the subject matter of the Rules.
[58] Nor is it surprising that, in this case, the Judge did not require that counsel’s responses be served on Mr Deliu. Both responses said the parties abided the Court’s decision. The only response with any content was the prosecutor’s. That content consisted almost entirely in reciting parts of the Access Rules. It did not raise (as objections sometimes do) any substantive reasons opposing access (such as a suggestion that Mr Deliu had no valid interest in accessing the documents).
[59] I conclude that the way in which the District Court dealt with counsel’s responses did not contravene Mr Deliu’s right to natural justice.
8 Rule 11(5).
9 Rule 14.
Third cause of action: District Court erred in law in ruling that a copy of the file “cannot be emailed to you”
[60] Mr Deliu pleads that the District Court erred in law when, in response to his initial application to access all the documents on Mr Zhao’s file, it told Mr Deliu that “[a] copy of the file cannot be emailed to you”. Mr Deliu says this was an error because (i) there is no legal prohibition on the District Court emailing him the file; and
(ii) the District Court has inherent power to control its own proceedings.
[61] Rights of access to court documents are granted by rr 8 and 9 of the Access Rules. Rule 4 says that “access” means “to search, inspect, or copy under the supervision of an officer of the court”. It follows from this definition that the rights of access granted by the Access Rules do not include a right to have documents emailed to the person applying for access.
[62] Mr Deliu accepted this. His point was that the Access Rules do not prohibit the District Court from emailing documents to a person who requests access. He submitted that this was reinforced by r 5(1) of the Access Rules, which provides that those Rules “do not affect the court’s inherent power to control its own proceedings”. Ms Carrad acknowledged that the District Court has that power.
[63] I accept Mr Deliu’s submission that there is nothing in the Access Rules to prevent the District Court from emailing a document to a person who has applied for access. The District Court’s inherent power to control its own proceedings would include such a power. This is so, even though r 3(5) provides that nothing in the Access Rules requires “a Registrar or any other person to prepare a document that is not in existence at the time a person asks to access it” (and emailing a document would sometimes first require the preparation of a new electronic version of the document). This is because, as Mr Deliu submitted, the inherent power is unaffected by the Access Rules.
[64] It would therefore have been an error of law for the District Court to rule that it had no power to email documents to Mr Deliu. The premise of the second cause of action is that the District Court made such a ruling. Mr Deliu says that it did, when
on 1 July 2019 the Deputy Registrar sent him an email saying that a copy of the file “cannot be emailed to you”.
[65] I do not accept that premise. For convenience, I repeat the Deputy Registrar’s email in full:
Your Application for Access to court documents was referred to the Jury Liaison Judge, Judge D Sharp.
A copy of the file cannot be emailed to you. The file will be available at Auckland District Court (Criminal Counter) for search, inspect and copy under the supervision of an officer of the court, in accordance with rule 9 of the District Court (Access to Court Documents) Rules 2017.
Please advise date and time so we can arrange for court officer to assist.
[66] This made it clear that a decision had been made by Judge Sharp, not by the Deputy Registrar. The Deputy Registrar was conveying the effect of that decision, not purporting to convey the words of the decision. Judge Sharp’s decision was that the file “will not be copied and forwarded to [Mr Deliu]”. The effect of that decision was that the Deputy Registrar could not email the file to Mr Deliu. The Deputy Registrar conveyed this to Mr Deliu.
[67] Judge Sharp’s decision that the file would not be emailed to Mr Deliu was not a ruling that the District Court had no power to email documents to Mr Deliu.
[68] For these reasons, I find that there was no error of law in the District Court’s ruling on Mr Deliu’s initial application to access court documents.
Fourth cause of action: Judge Gibson violated Mr Deliu’s right to natural justice by not addressing the first or second recusal applications
[69] Mr Deliu pleads that Judge Gibson failed to address either of his recusal applications when he made his decisions (on Mr Deliu’s application for a reconsideration of Judge Sharp’s decision) in February 2022. Mr Deliu says that Judge Gibson’s failure to do so was a breach of his right to natural justice.
[70] Mr Deliu’s first recusal application was dated 10 September 2020. It was intituled Police v Deliu and its only proceeding reference was CRI-2017-004-142,
which cannot be a reference to the criminal proceeding brought against Mr Zhao in respect of which Mr Deliu was asking to access documents. In the application, Mr Deliu applied to recuse Judge Gibson. However, there was nothing on the application indicating that Judge Gibson had been assigned to hear or decide any particular matter in the Police v Deliu proceeding. Nor was there any evidence before me that the Judge had been so assigned.
[71] The second recusal application was dated 12 March 2021. It was also intituled Police v Deliu. It had two proceeding references, CRI-2017-004-142 and CRI-2018- 004-3571. Neither of those was a reference to the proceeding against Mr Zhao. In the application, Mr Deliu applied to recuse many judges, including Judge Gibson. However, there was nothing on the application indicating that Judge Gibson (or the other judges) had been assigned to hear or decide any particular matter in either of the Police v Deliu proceedings. Nor was there any evidence before me that Judge Gibson had been so assigned.
[72] I consider Judge Gibson was not required to consider either of these recusal applications before making his decisions in February 2022. The applications sought his recusal from two criminal proceedings brought by the Police against Mr Deliu. They did not require any consideration unless and until Judge Gibson was assigned to hear or decide a matter in either of those proceedings. Until that time, the recusal applications were moot.10 In February 2022, Judge Gibson was called upon to decide Mr Deliu’s application for a reconsideration of his request for access to documents. Mr Deliu’s access request, although it related to his co-accused in one of his criminal proceedings, was not an application in that criminal proceeding. A request for access to documents in a proceeding is not a request in that proceeding.
[73] For those reasons, I find that Judge Gibson did not violate Mr Deliu’s right to natural justice by not addressing the recusal applications in February 2022.
10 For this reason, unless a judicial officer has been assigned to hear or decide a particular matter, a party should not file an “advance” recusal application.
[74] For completeness, the District Court record shows that the recusal applications were not put before Judge Gibson when he made his decisions in February 2022. But that is not the basis of my decision on this cause of action.
Fifth cause of action: Judge Gibson corruptly adjudicated Mr Deliu’s third recusal application
[75] Mr Deliu pleads that Judge Gibson corruptly, that is in bad faith or with wilful disregard of the law and facts, adjudicated Mr Deliu’s third recusal application.
[76] That recusal application was made in the document that Mr Deliu filed on 10 February 2022. The document began as follows:
I move to recuse Judge Gibson and demand that my request for a reconsideration of the requirement that I come in person to inspect the files actually be decided (as opposed to disposed of).
[77] There were thus two parts to the document. In the first 10 pages, Mr Deliu elaborated on his demand that his request for a reconsideration of the in-person requirement be decided. In the second 10 pages, Mr Deliu sought Judge Gibson’s recusal, suggesting Judge Gibson had ignored the sole issue he raised (that he was outside New Zealand) and instead provided him with a summary of Judge Sharp’s decision. He referred to his first and second recusal applications and to Judge Gibson’s judgment in R v Shi and submitted Judge Gibson was actually biased against him. Hundreds of pages of annexures followed.
[78] On 17 February 2022,11 Judge Gibson made the following decision in response to Mr Deliu’s document:
Judge Sharp’s direction was considered. It is clear that Mr Deliu’s request to have an agent inspect the file was agreed to. An electronic copy of the file is not to be made available. Judge Sharp has already directed that is not to occur and I cannot review another Judge’s decision. In any event it is one I would have made had the request been referred to me in the first instance.
The request for recusal is refused. Firstly my decision had already been made before the request was received and further no adequate ground was advanced that would cause me to consider the request had any merit.
11 This decision was emailed to Mr Deliu on 22 February 2022.
[79] Mr Deliu claims the Judge made this decision corruptly. He says the Judge wilfully disregarded the law and facts. In particular, Mr Deliu says the Judge made the decision without applying the Supreme Court’s test for bias in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd,12 and without adequate reasons that addressed any of the grounds of recusal or evidence advanced.
[80] A claim of corruption is a very serious allegation. It should be made only where there is a proper basis to support the claim. Here, there is none. Mr Deliu’s claim is misconceived, for the following reasons.
[81] Judge Gibson had already, on 9 February 2022, made a decision on Mr Deliu’s request for a reconsideration of the requirement that he inspect the documents in person. As I have explained with reference to the previous cause of action, there was no relevant recusal application in play when Judge Gibson made that decision. The Judge’s decision was final, subject only to the possibility of recall, appeal or review. There was no basis upon which Mr Deliu could apply for his request to be decided again (whether by Judge Gibson or another judge), let alone demand that be done.
[82] Judge Gibson was therefore right to refuse the recusal application on the ground that he had already made his decision on Mr Deliu’s request for a reconsideration. That decision having been made, and Mr Deliu having no entitlement to demand (or even apply) to have his request decided again, there was no further decision for Judge Gibson to make. There was, therefore, no matter in respect of which the Judge needed to recuse himself. It follows that the Judge did not have to address the underlying merits of the recusal application. That the Judge chose to add a comment that there were no adequate grounds for recusal is neither here nor there.
[83] Even if there had been some decision for Judge Gibson to make at this point, I would have regarded his reasons for refusing the recusal application to be sufficient in the circumstances. Context is important. Mr Deliu had already been told he could access the documents. The issue was merely about how that access right could be exercised. By February 2022, Mr Deliu had twice told the District Court that he could have a lawyer come and inspect and copy documents on his behalf (once on 4 July
12 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
2019, the second time on 24 January 2022). On 10 February 2022, Mr Deliu was told he could have an agent inspect on his behalf. Where so little remained in issue, and where (for the reasons set out below under the next cause of action) there was no merit in the grounds of recusal, it was not necessary for Judge Gibson to issue a decision reciting the Saxmere test and addressing the recusal grounds in detail.
[84] I therefore conclude that there is no basis upon which it could be said that Judge Gibson acted corruptly in dealing with Mr Deliu’s third recusal application.
Sixth cause of action: Judge Gibson has been biased against Mr Deliu since 2017– 2018 and this tainted the Judge’s decisions in 2022
[85] Mr Deliu pleads that Judge Gibson had been actually or apparently biased against him since 2017–2018 and that the Judge’s prejudice tainted the decisions he made in 2022 relating to Mr Deliu’s request to access documents.
[86] Mr Deliu’s allegation of bias was based on a comment that Judge Gibson made in a 5 April 2018 judgment, R v Shi.13 In that judgment, the Judge had to decide whether privilege applied to documents seized during a search of premises occupied by Mr Deliu and Mr Zhao. A barrister, Mr Simmonds, had been appointed by the Court to assess the seized documents. Mr Deliu had filed a memorandum challenging Mr Simmonds’ independence. Judge Gibson said:
[11] [Mr Deliu’s] substantive memorandum of 28 March consists of an attack on Mr Simmonds, alleging that he has been appointed by the police as independent counsel. He asserts Mr Simmons is secretly retained to act for the police and cannot be considered to be independent. I do not accept those submissions from a suspended lawyer concerning counsel of good standing with the Court. …
[87] Mr Deliu says there are several improprieties in that paragraph. They boil down to two essential complaints.
[88] First, while Mr Deliu acknowledges that he was a suspended lawyer at the time, he says there was no evidence of that in the Shi proceeding. Secondly, he says Judge Gibson ignored evidence that was before him, namely that Mr Simmonds had
13 R v Shi [2018] NZDC 6450.
been appointed independent counsel under the warrant but had further been appointed by Police as independent counsel.
[89] Based on these complaints, Mr Deliu submitted that the Judge showed himself to decide matters “not on evidence before him”, played “the man and not the ball”, and “disgracefully decided the issue not based on the evidence, but instead based on his perceptions of the litigant before him”. He said that the Shi judgment can be seen “as a fraud on the Court”, in part because the judgment was based on “a wholly irrelevant matter”. He submitted that the Judge “defamed me to reach a pernicious end”. Mr Deliu submitted that several inferences could be drawn from this “disgraceful” behaviour, including that the Judge engages in ad hominem attacks on litigants and does not adjudicate issues before him fairly.
[90] I reject Mr Deliu’s complaints and his claims. In the Shi proceeding, Judge Gibson was responding to a submission by Mr Deliu that Mr Simmonds was “secretly retained” to act for Police and therefore could not be independent. That was a very serious submission to make. It required a solid foundation. Based on the materials put before me, the only foundation that Mr Deliu appears to have had for the submission was that Mr Simmonds had also been appointed by Police to act as independent counsel in another role. This did not support his submission: there was nothing secret about the appointment, and the appointment did not involve Mr Simmonds being retained to act for Police.
[91] Given the flimsy foundation to what was a very serious submission by an enrolled barrister and solicitor, it is not surprising that the Judge responded in robust fashion. He was justified in doing so. Further, there was nothing improper in the Judge referring to Mr Deliu’s status as a suspended lawyer. That was a matter of public record and something of which the Judge could take judicial notice. Finally, Judge Gibson, although rejecting Mr Deliu’s challenge to Mr Simmonds’ independence, then went on to uphold some of the claims of privilege made by Mr Deliu.
[92] For these reasons, there is no basis upon which a fair-minded lay observer would reasonably apprehend, based on Judge Gibson’s comment in R v Shi, that the
Judge might not bring an impartial mind to deciding the various matters that were put before him in 2022 relating to Mr Deliu’s access application.
Seventh cause of action: because of the complaint made against him, Judge Gibson had a conflict of interest and this tainted his 2022 decisions
[93] As an alternative to the sixth cause of action, Mr Deliu pleads that owing to the complaint that Mr Deliu made to the Judicial Conduct Commissioner against Judge Gibson on 12 February 2022, the Judge had an actual or perceived conflict of interest. This conflict, Mr Deliu claimed, meant the Judge ought not thereafter to have sat in any matter involving Mr Deliu. Mr Deliu says this vitiates the Judge’s decisions from 12 February 2022.
[94] The Supreme Court has held that the making of a complaint to the Judicial Conduct Commissioner against a judge does not serve to disqualify that judge from hearing cases involving the complainant.14 Mr Deliu acknowledged this proposition but submitted that the Supreme Court was saying only that the mere fact of the complaint was insufficient to disqualify the judge. He said his position was different, as there was substance to his complaint. He submitted the Supreme Court was not saying that a complaint could never be the basis of a recusal.
[95] I do not accept Mr Deliu’s submission. It is the matters underlying a complaint, not the fact of the complaint (even if it has substance), that are relevant. If those matters justify recusal, the fact of the complaint is irrelevant. If those matters do not justify recusal, the fact of the complaint does not create a situation justifying recusal.
[96] I therefore put the fact of the complaint to one side. I look instead at the matters underlying Mr Deliu’s complaint. These are matters with which I have already dealt: Judge Gibson allegedly failing to address Mr Deliu’s first and second recusal applications, and Judge Gibson’s alleged bias arising from his comment in the R v Shi judgment. For the reasons I have already given, these matters did not justify Judge Gibson’s recusal.
14 Slavich v Attorney-General [2013] NZSC 130 at [6]. See also Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293 at [13].
[97] It follows that Judge Gibson did not have a conflict of interest after Mr Deliu made his complaint with the Judicial Conduct Commissioner.
Eighth cause of action: Judge Gibson’s direction of 9 February 2022 was merely an advisory opinion and failed to address Mr Deliu’s arguments
[98] Mr Deliu next pleads that Judge Gibson’s direction of 9 February 2022 “is not actually a decision” but rather an advisory opinion. Alternatively, Mr Deliu pleads that the Judge failed to address the arguments that he made in his 16 July 2020 memorandum and therefore violated his right to natural justice in the BORA.
[99]For convenience, I repeat Judge Gibson’s direction:
Judge Sharp’s direction of 1 July, 2019 makes it clear that personal attendance is required for the purpose of inspection. A duly authorised agent (in writing) can inspect on the applicant’s behalf under the terms set out by Judge Sharp. Documents to be inspected are those set out in Rule 8(2) of the Rules.
[100] There is no merit to Mr Deliu’s claim that this was merely an advisory opinion. In his memorandum of 16 July 2020, Mr Deliu requested a reconsideration of the requirement that he access the documents by attending in person. Judge Gibson confirmed the requirement of personal attendance but decided that an agent could inspect on Mr Deliu’s behalf.
[101] As to the suggestion that the Judge failed to address the arguments Mr Deliu made in his memorandum, the adequacy of reasons must be assessed in light of the type of case and issues involved. In some circumstances, it may not be necessary to refer at all to the arguments that the party has advanced.15 I consider this was one of those cases. Mr Deliu’s memorandum was brief. Other than providing some background and explaining why he wanted to access the file, the only argument that Mr Deliu presented was that he was overseas and would never be returning and so could not attend in person. In addition to the memorandum, Mr Deliu twice told the Court that he could have an agent inspect in person on his behalf. In that context, it was sufficient for the Judge to confirm that personal attendance was required but that it could be by an agent.
15 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [37].
[102]I therefore dismiss this cause of action.
Ninth cause of action: Judge Gibson’s decision of 17 February 2022 made a mistake of law or failed to take into account relevant considerations
[103] Mr Deliu pleads that in Judge Gibson’s decision of 17 February 202216 the Judge made a mistake of law by thinking that he was being asked to review Judge Sharp’s decision, when in reality he was being asked to vary it. Alternatively, Mr Deliu pleads that Judge Gibson failed to give proper reasons for affirming Judge Gibson’s decision and failed to take into account the relevant considerations advanced by Mr Deliu in his “motion” for a reconsideration of Judge Sharp’s decision. Mr Deliu pleads that Judge Gibson thereby violated his right to natural justice in the BORA.
[104] I have already dealt with the 17 February 2022 decision when addressing Mr Deliu’s fifth cause of action. To recap:
(a)The decision was made after Mr Deliu filed a document, dated 10 February 2022, in which he “demand[ed]” that his request for a reconsideration of the requirement that he inspect the files in person “actually be decided”.
(b)Judge Gibson had already, on 9 February 2022, decided Mr Deliu’s request for a reconsideration of the in-person requirement.
(c)The Judge’s 9 February 2022 decision was final, subject only to the possibility of recall, appeal or review.
(d)There was no basis upon which Mr Deliu could apply for his request to be decided again (whether by Judge Gibson or another judge), let alone demand that be done. To be clear, Mr Deliu’s document was not a “motion” or application for a reconsideration; it was a demand.
16 Emailed to Mr Deliu on 22 February 2022.
[105] In these circumstances, Judge Gibson was not required to make a second decision on Mr Deliu’s request for a reconsideration. It is therefore hardly surprising that in the relevant part of his decision of 17 February 2022 the Judge merely explained why he had made his earlier decision (and that he had agreed to Mr Deliu’s request to have an agent inspect the file):
Judge Sharp’s direction was considered. It is clear that Mr Deliu’s request to have an agent inspect the file was agreed to. An electronic copy of the file is not to be made available. Judge Sharp has already directed that is not to occur and I cannot review another Judge’s decision. In any event it is one I would have made had the request been referred to me in the first instance.
[106] There was no error of law, no failure to give proper reasons and no failure to take into account relevant considerations.
Tenth cause of action: District Court acted unreasonably in denying Mr Deliu access to the documents
[107] Mr Deliu pleads that the District Court acted unreasonably in denying him his statutory recourse to access the documents.
[108] There is no merit to this claim. As Mr Deliu acknowledged, his statutory right under the Access Rules is merely to search, inspect, or copy documents under the supervision of an officer of the court. The District Court has not denied him that right. It has affirmed it and has acceded to Mr Deliu’s request that an agent access documents on his behalf.
[109] Mr Deliu’s complaint is that the District Court has declined to email the documents to him. He has no right to have court documents emailed to him. I accept that the District Court has power to email court documents to someone who applies to access them. But it was not unreasonable for the District Court to decline to email documents to Mr Deliu, given that he had twice told the District Court that he could have a lawyer come and inspect and copy documents on his behalf.
Relief
[110] Mr Deliu has succeeded on his first cause of action. In respect of that cause of action, he seeks a declaration that his right to natural justice was breached.
[111] Ms Carrad resisted the making of such a declaration. She said that Judge Sharp had promptly made a decision on Mr Deliu’s initial access application (which is correct) and that Mr Deliu could have acted on that decision by arranging an agent to access the documents (in person) on his behalf.
[112] Ms Carrad’s submission ignores that Mr Deliu asked whether he could use an agent and the District Court did not respond until February 2022. Just a few days after Judge Sharp’s July 2019 decision, Mr Deliu emailed the District Court asking that his request for an electronic copy be reconsidered. In that email, Mr Deliu asked whether he could have an agent inspect and copy the file on his behalf. The District Court responded by asking Mr Deliu to file a memorandum. Mr Deliu did so, and it was only when a decision was made on that memorandum in February 2022 that the District Court said an agent could inspect on Mr Deliu’s behalf.
[113] The Attorney-General also pleaded, as an affirmative defence, that declaratory relief and damages under the BORA are unavailable against the Attorney-General in respect of the judiciary. Ms Carrad did not make submissions on this matter before or at the hearing. After the hearing, she filed a short memorandum identifying two authorities on which the Attorney-General relied for the affirmative defence. In the memorandum, she sought leave to file it.
[114]Mr Deliu objected to leave being granted for the filing of the memorandum.
[115] It is unnecessary for me to consider the matter raised in the memorandum. The affirmative defence is that declarations and damages under the BORA are unavailable against the Attorney-General. But Mr Deliu pleads no cause of action, and does not seek any relief or remedies, against the Attorney-General. The authorities to which Ms Carrad referred me appear inapplicable, as Mr Deliu is judicially reviewing decisions of the District Court, a court over which this Court has supervisory jurisdiction.17
17 See, similarly, the relief granted against the Māori Land Court in Ngunguru Coastal Investments Ltd v Māori Land Court [2011] NZAR 354.
[116] Accordingly, I will make a declaration that, by taking 19 months to make a decision on the request in Mr Deliu’s 19 July 2020 memorandum, the District Court breached Mr Deliu’s right to natural justice in s 27 of the BORA.
Costs
[117] If either party seeks costs, memoranda of not more than three pages each are to be filed: Mr Deliu first (by 10 February 2023), followed by the Attorney-General (by 17 February 2023).
Result
[118] I make a declaration that, by taking 19 months to make a decision on the request in Mr Deliu’s 19 July 2020 memorandum, the District Court breached Mr Deliu’s right to natural justice in s 27 of the BORA.
[119]All other causes of action are dismissed.
Campbell J
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