Deliu v Independent Police Conduct Authority
[2022] NZHC 413
•10 March 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1092
[2022] NZHC 413
UNDER the Judicial Review Procedure Act 2016; Part 30 High Court Rules 2016; New Zealand Bill of Rights Act 1990; and Declaratory Judgments Act 1908 IN THE MATTER
of proceedings moving for an application for judicial review, a writ of mandamus, bill of rights claims and a petition for declaratory relief
BETWEEN
DOCTOR FRANCISC CATALIN alias
dictus FRANK DELIU Applicant
AND
THE INDEPENDENT POLICE CONDUCT AUTHORITY
Respondent
Hearing: 28 October 2021 Appearances:
Applicant in person
JBM Smith QC and KOM Fitzgibbon for the Respondent
Judgment:
10 March 2022
JUDGMENT OF GAULT J
This judgment was delivered by me on 10 March 2022 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors / Counsel:
The Applicant
Mr JBM Smith QC and Ms KOM Fitzgibbon, Barristers, Wellington Mr R S May, Luke Cunningham Clere, Wellington
DELIU v THE INDEPENDENT POLICE CONDUCT AUTHORITY [2022] NZHC 413 [10 March 2022]
[1] Mr Deliu seeks judicial review in relation to the response of the Independent Police Conduct Authority (IPCA) to five complaints Mr Deliu made in early 2018 concerning Police conduct. In particular, Mr Deliu claims that IPCA failed to make a decision on each complaint.
[2] As a result of decisions taken and communicated by IPCA since this proceeding was commenced, the issues have narrowed. Where Mr Deliu accepts that IPCA has now made a decision, he still seeks a declaration.
[3] A preliminary issue also arises as to the effect of the bar on proceedings in s 33 of the Independent Police Conduct Authority Act 1988 (the Act).
The complaints
[4]In summary, the five complaints in issue are as follows:
(a)First complaint – Mr Deliu sent a complaint to IPCA by email dated 21 January 2018 alleging that Police had violated his privacy rights by investigating his financial affairs in 2015.
(b)Second complaint – Mr Deliu complained to IPCA by email also dated 21 January 2018 alleging that a Police detective had perjured herself and/or misled the Auckland District Court in a search warrant application in August 2016.
(c)Third complaint – Mr Deliu sent two emails to IPCA dated 22 January 2018 alleging that a Police sergeant had refused to charge a (retired) judge with fraud.
(d)Fourth complaint – Mr Deliu complained to IPCA by email dated 23 January 2018 that Police had conducted an ultra vires/mala fides investigation into him.
(e)Fifth complaint –Mr Deliu complained to IPCA by email dated 5 March 2018 in relation to the same Police sergeant referred to in the third
complaint, alleging that he had conspired with two criminals to harm Mr Deliu.
The proceedings
[5] Mr Deliu’s amended statement of claim dated 24 October 2019 made claims against a number of defendants, including IPCA.1 The claims against IPCA included the five complaints. In relation to each of the complaints, Mr Deliu claimed that IPCA had not taken any steps to advance the complaint.
[6] Defendants including IPCA applied for security for costs on grounds including that Mr Deliu’s claims lack merit. In relation to claims against IPCA (which extended beyond the five complaints in issue here), Palmer J’s judgment dated 19 August 2020 stated:2
I agree that the pattern of Mr Deliu not receiving responses to his complaints is troubling. But I do not agree that constitutes bad faith. Bad faith is not pleaded other than in relation to failure to take action in 24 hours, which cannot be bad faith in itself. I can see no basis for impugning the IPCA’s decision not to investigate the complaint involving Queen Elizabeth under s 18(1)(a) of the Act. In the face of s 33, I do not consider these proceedings are reasonably arguable. If he wishes to proceed with them, I order that he provide $5,000 security for costs.
[7] Mr Deliu applied to recall that judgment. Palmer J granted the recall application on the basis it had not been sufficiently drawn to his attention that IPCA had not made a decision about some of the complaints, which was plainly relevant, and Mr Deliu’s argument that the privative clause in s 33(1)(a) does not apply to omissions may be found to be tenable.3 Accordingly, on the condition that Mr Deliu repleaded the case to challenge only those complaints which IPCA did not address,
Palmer J dismissed the IPCA application for security for costs.4
[8] Mr Deliu filed a further amended statement of claim dated 4 April 2021 limited to the five complaints.
1 The status of Mr Deliu’s earlier statement of claim dated 11 April 2018 is unclear but nothing turns on this.
2 Deliu v Chapman [2020] NZHC 2100 at [22].
3 Deliu v Independent Police Conduct Authority [2021] NZHC 10 at [16]-[19].
4 At [20].
IPCA’s response to the complaints
[9] IPCA admits that it received the first complaint on 22 January 2018. It says that, through oversight, it did not determine the complaint until 2021 when, in the course of preparing its statement of defence, it discovered Mr Deliu’s email and identified it as a complaint that had not been actioned.
[10] IPCA says the second and fifth complaints were factually connected to previous complaints by Mr Deliu and were treated as supplementary information rather than discrete complaints.
[11] In relation to the third and fourth complaints, IPCA says it decided to take no further action but, through oversight, did not communicate this to Mr Deliu at the time.
Issues
[12]The issues for determination are:
(a)whether s 33 is a bar to consideration of Mr Deliu’s claims;
(b)whether Mr Deliu’s claims are made out; and
(c)whether relief should be granted.
[13] Before addressing these issues, I summarise the key aspects of the statutory scheme.
Statutory scheme
[14] IPCA is an independent Crown entity. Its core functions are to receive complaints and to investigate incidents involving death or serious bodily harm of its own motion.5 Where it investigates, it forms an opinion which is conveyed to the Commissioner of Police and it may make recommendations.6 Its recommendations are not enforceable but if no action is taken which seems to IPCA to be adequate and
5 Independent Police Conduct Authority Act 1988, s 12(1)(a) and (b).
6 Section 27.
appropriate, it must send its opinion and recommendations to the Attorney-General and Minister of Police (and may transmit a report to the Attorney-General for tabling in Parliament).7 It has no power to provide complainants with a legal remedy nor to deprive complainants of any legal remedy they may have. In that sense, the Act is concerned with the public interest of police oversight rather than private legal remedies.
[15]In relation to complaints, s 17 relevantly provides:
17Action upon receipt of complaint
(1)On receiving or being notified of a complaint under this Act, the Authority may do all or any of the following:
(a)investigate the complaint itself, whether or not the Police have commenced a Police investigation:
(ab)refer the complaint to the Police for investigation by the Police:
(b)defer action until the receipt of a report from the Commissioner on a Police investigation of the complaint undertaken on behalf of the Authority:
(c)oversee a Police investigation of the complaint:
(ca) defer action until the receipt of a report from the Commissioner following a criminal investigation or a disciplinary investigation, or both, initiated and undertaken by the Police:
(d)decide, in accordance with section 18, to take no action on the complaint.
(2)Subject to subsection (2A), the Authority shall, as soon as practicable, advise the Commissioner and the complainant of the procedure it proposes to adopt under subsection (1).
…
[16] Section 18 sets out the basis for IPCA to exercise its discretion to decide to take no action or no further action on a complaint:
Authority may decide to take no action on complaint
(1)The Authority may in its discretion decide to take no action, or, as the case may require, no further action, on any complaint if—
7 Section 29(2).
(a)the complaint relates to a matter of which the person alleged to be aggrieved has had knowledge for more than 12 months before the complaint was made; or
(b)in the opinion of the Authority—
(i)the subject matter of the complaint is minor; or
(ii)the complaint is frivolous or vexatious or is not made in good faith; or
(iii)the person alleged to be aggrieved does not desire that action be taken or, as the case may be, continued; or
(iv)the identity of the complainant is unknown and investigation of the complaint would thereby be substantially impeded; or
(v)there is, or was, in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives, that it would be reasonable, or would have been reasonable, for the person alleged to be aggrieved to exercise.
(2)The Authority may decide not to take any further action on a complaint if, in the course of the investigation of the complaint by the Authority or the Police, or as a result of the Commissioner’s report on a Police investigation, it appears to the Authority that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.
(3)In any case where the Authority decides to take no action, or no further action, on a complaint, it shall inform the complainant of that decision and the reasons for it.
[17]In relation to investigations, s 30 provides:
Parties to be informed of progress and result of investigation
Where the Authority investigates a complaint, it shall—
(a)conduct the investigation with due expedition; and
(b)if it seems appropriate, inform the complainant and the Commissioner of the progress of the investigation; and
(c)in every case inform the parties concerned, as soon as reasonably practicable after the conclusion of the investigation, and in such manner as it thinks proper, of the result of the investigation.
[18]Section 33(1) relevantly provides:8
33 Proceedings privileged
(1) …
(a)no proceedings, whether civil or criminal, may lie against the Authority, any member of the Authority, or any person holding any office or appointment under the Authority, for anything done or said by them in the course of the exercise or intended exercise of their functions under this Act, unless it is shown that they acted in bad faith:
(b)the Authority, members of the Authority, and any person holding office or appointment under the Authority must not be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to their knowledge in the exercise of their functions under this Act.
Effect of s 33
[19] As indicated, a preliminary issue arises as to the effect of s 33 on this proceeding. Given that s 33(1)(a) provides that no proceedings may lie “for anything done or said”, on the interlocutory application Palmer J left open whether s 33(1)(a) applies to omissions.
[20] Mr Smith QC, for IPCA, acknowledged that privative clauses are traditionally construed narrowly on the basis that Parliament is required to express very clearly an intention that judicial scrutiny not apply. But he submitted that a narrow approach is neither necessary nor appropriate where the entity under scrutiny is itself an oversight body rather than a core part of the Executive. He also submitted that Parliament cannot have intended to create an exclusion that applies differently depending on whether conduct can be characterised as an act or omission, and the text and purpose of s 33 does not support such a distinction.
[21] Mr Deliu submitted that s 33 has no application to omissions, nor to judicial review proceedings. Alternatively, he submitted that IPCA has acted in bad faith.
8 Subsection (1) is subject to subsection (2), which provides that nothing in subsection (1) applies in respect of proceedings for certain specified offences under the Crimes Act 1961. Those offences are not relevant here.
[22] Dealing first with the Court’s general approach to ouster or privative clauses, Mr Smith began with a review of the leading case of Anisminic Ltd v Foreign Compensation Commission, in which the House of Lords held that a provision that a determination by that Commission not be called into question in any court did not preclude the court from inquiring into whether a purported determination was a nullity. The Commission had misconstrued its jurisdiction. Mr Smith emphasised that it is important to appreciate what it meant by “jurisdiction” in this sense, referring to a number of passages in the speeches. Lord Reid said:9
It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word “jurisdiction” has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I understand that some confusion has been caused by my having said in Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192, 234 that if a tribunal has jurisdiction to go right it has jurisdiction to go wrong. So it has, if one uses “jurisdiction” in the narrow original sense. If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law…
[23]Lord Pearce said:10
Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not
9 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL) at 171.
10 At 195.
directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.
…
It is simply an enforcement of Parliament's mandate to the tribunal. If the tribunal is intended on a true construction of the Act to inquire into and finally decide questions within a certain area, the courts' supervisory duty is to see that it makes the authorised inquiry according to natural justice and arrives at a decision whether right or wrong. They will intervene if the tribunal asks itself the wrong questions (that is, questions other than those which Parliament directed it to ask itself). But if it directs itself to the right inquiry, asking the right questions, they will not intervene merely because it has or may have come to the wrong answer, provided that this is an answer that lies within its jurisdiction.
[24]Lord Wilberforce said:11
In every case, whatever the character of a tribunal, however wide the range of questions remitted to it, however great the permissible margin of mistake, the essential point remains that the tribunal has a derived authority, derived, that is, from statute: at some point, and to be found from a consideration of the legislation, the field within which it operates is marked out and limited…
[25] As well as distinguishing between different types of error, these passages highlight that the scope of an ouster clause is a matter of statutory interpretation.
[26] Mr Smith next referred to the Court of Appeal decision in Bulk Gas Users Group v Attorney-General,12 which concerned the following privative clause in s 96 of the Commerce Act 1975:
Proceedings of the Secretary under this Part of this Act shall not be held bad for want of form. Except on the ground of lack of jurisdiction, no order, approval, proceeding, or decision of the Secretary under this Part of this Act shall be liable to be challenged, reviewed, quashed, or called in question in any Court, but there shall be a right of appeal to the Commission in accordance with section 99 of this Act.
11 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL) at 207.
12 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA). Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690 (CA) involved a similar privative clause (s 19(9) of the Inspector- General of Intelligence and Security Act 1996). So did New Zealand Rail Ltd v Employment Court [1995] 3 NZLR 179 (CA) except the clause in that case (s 135 of the Employment Contracts Act 1991) went on to define lack of jurisdiction.
[27]Cooke J stated:13
It is generally accepted under our constitutional system that Parliament can empower an administrative tribunal to determine some questions of law, typically questions of statutory interpretation, conclusively. I will assume that to be so — at least within limits that need not here be explored. The consequence must be that such power may be given either expressly or by necessary implication. But it must at least be given clearly — as Lord Diplock says, there is a presumption against it. One of the major advantages of his analysis is that it enables one to consider whether or not such power has been given with attention unclouded by a vague and probably undefinable concept of “jurisdiction”.
[28] Against this background, Mr Smith submitted that the IPCA statutory scheme distinguishes this case from those cases where ouster clauses have been construed narrowly. He submitted those cases involved deprivation of a legal remedy, unlike this case or the Ombudsman cases.
[29] Financial Services Complaints Ltd v Wakem was a strike out application based on privative clauses in the Ombudsmen Act 1975.14 That Act contained both a privative provision that was similar to the clause in Bulk Gas (in s 25 of the Ombudsmen Act) and one that was similar to s 33 of the Act (in s 26 of the Ombudsmen Act):
… no proceedings, civil or criminal, shall lie against any Ombudsman, or against any person holding any office or appointment under the Chief Ombudsman, for anything he may do or report or say in the course of the exercise or intended exercise of his functions under this Act or the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987 or the Protected Disclosures Act 2000, unless it is shown that he acted in bad faith:
[30]Toogood J said:15
I see no difficulty in adopting a cautious and narrow interpretative approach to s 26. Although there is no doubt that the Chief Ombudsman is a unique actor in New Zealand’s constitutional structure, the Chief Ombudsman should not be beyond the reach of the law unless Parliament has expressed so in the clearest possible language.
13 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 136.
14 Financial Services Complaints Ltd v Wakem [2016] NZHC 634.
15 At [38].
[31] Toogood J considered that Parliament intended that s 25 would prevent the courts from reviewing or questioning the exercise of the Ombudsmen’s investigative functions, and described s 26 as a companion provision limiting the personal civil and criminal liability of the Ombudsmen, and the officers and employees appointed under s 11, for anything done or said in carrying out those functions.16 However, the complaint in that case related to the Chief Ombudsman’s decision to refuse the plaintiff consent to using the term “Ombudsman” in its company name for the purposes of s 28A, which prohibited use except pursuant to statute or with the prior written consent of the Chief Ombudsman. Toogood J held this was outside the scope of the immunity.17
[32] Taylor v The Social Security Appeal Authority also involved these twin privative provisions in the Ombudsmen Act.18 On a strike out application, Edwards J rejected an argument that the Ombudsman’s decision not to investigate was outside jurisdiction or in bad faith.19
[33] Mr Smith also relied on a 1982 article by Professor Kenneth Keith (as he was) in relation to judicial control of the Ombudsmen, which stated: 20
And yet ... the growing willingness of the courts to reassert and widen their traditional authority to control public power has been widely – if not unanimously – welcomed: the insistence on procedural fairness, on allowing litigants access to official information relevant to their litigation, on the lawful use of discretions by Ministers and local authorities, and on lawmakers and tribunals staying within the law. Why should the ombudsmen be seen differently? It is not really suggested that they should be. If they fail to comply with the fair procedures laid down in their Acts or if they attempt to exercise their powers over bodies which are not subject to their authority, the court should be able to intervene. But there are several important features of the law relating to the ombudsmen that suggest judicial caution. One is that they can, in the end, "do no more than recommend or comment". A second is that they are control agencies rather than themselves the direct wielders of public power. A third is that the statutes confer the powers in broad, non technical terms, with flexible procedures to match.
[34]Mr Smith submitted the same considerations apply to IPCA.
16 Financial Services Complaints Ltd v Wakem [2016] NZHC 634 at [42].
17 At [43]-[46].
18 Taylor v The Social Security Appeal Authority [2019] NZHC 1718.
19 At [56]-[66].
20 K J Keith “Judicial control of the Ombudsmen” (1982) 12 VUWLR 299 at 322 (footnotes omitted).
[35] Mr Smith further relied on JDP v Crown Health Funding Agency, which involved an issue as to whether the immunity for civil and criminal liability in mental health legislation in respect of “acts” also applied to “omissions”.21 Simon France J concluded that the word “act” in the immunity provision in s 124(1) of the Mental Health Act 1969 and its predecessor includes omissions.22 At least in part, this conclusion was based on the express inclusion of “omission” in s 124(2) but Simon France J also considered that to interpret “act” in s 124(1) as including omissions would be consistent with the policy of the immunity.
[36] Mr Deliu submitted that JDP is distinguishable given the reference to “omission” in s 124(2) and there was nothing to suggest the wording in s 124(2) was intended to effect a substantive change from the preceding provision.
[37]In JDP, Simon France J also referred to the Law Commission’s report, stating:
[35] In its Report 37, Crown Liability and Judicial Immunity (1997), the Law Commission notes the extensive use of these immunities. Its research suggested about 200 statutes contained them. Table Four of that Report sets out the words used in each statute to achieve the protection. It is plain that there are variations in drafting technique that are not explicable by any obvious intention to draw a distinction. The Commission notes the difficulties in interpreting immunities because of these drafting variances. Some immunities, if read literally, would protect only lawful acts which would make the immunity otiose. It is specifically noted in the Report that the inconsistent inclusion of omissions raises doubts about whether they are covered when not included (the plaintiffs’ present submission).
[36] The invaluable survey by the Commission serves to illustrate that caution is needed before placing too much reliance on the specific form of wording. Consistency in drafting is not there, and it tells against a conclusion that a variation was specifically used to indicate a different degree of protection…
[38] I turn to the scope of s 33 of the Act and make the following points. First, on its face, s 33(1)(a) provides IPCA (and its members and officers etc) civil and criminal immunity for anything done or said in the course of the exercise or intended exercise of functions under the Act, unless it is shown that they acted in bad faith.
21 JDP v Crown Health Funding Agency HC Wellington CIV 2003-485-1625, 19 December 2006, which concerned s 6 of the Mental Health Amendment Act 1935 and s 124 of the Mental Health Act 1969.
22 At [32]-[36].
[39] Secondly, I accept that IPCA does not determine private legal rights. Rather, it forms opinions and may make recommendations. IPCA’s role is more like that of the Ombudsmen. As (then) Professor Keith said, that suggests judicial caution – in the exercise of judicial review. The IPCA statutory scheme is also key to the proper interpretation of the privative provision in s 33, but I do not consider it requires a different approach to statutory interpretation. The cautious approach to interpretation of privative provisions is appropriate where, as here, it is suggested that it precludes applications to the High Court for judicial review (unless bad faith is shown). As the Supreme Court said in H (SC52/2018) v Refugee and Protection Officer:23
Given the constitutional importance of judicial review, reinforced as it is by s 27(2) of the Bill of Rights Act, the courts approach privative clauses cautiously and in particular will give anxious consideration to their interpretation and application. As noted in the reasons of the majority in Tannadyce Investments Ltd v Commissioner of Inland Revenue, judges should be slow to conclude that an ouster provision precludes applications to the High Court for judicial review alleging unlawfulness of any kind.
[40] Thirdly, in relation to whether the immunity in s 33 extends to omissions to do something required by the Act, I accept Mr Deliu’s submission that JDP is distinguishable given the different statutory wording. As Simon France J said in that case, caution is needed before placing too much reliance on the specific form of wording – consistency in drafting is not there, and it tells against a conclusion that a variation was specifically used to indicate a different degree of protection. The focus in s 33(1)(a) on what is “done or said” might simply reflect the fact that pure omissions were not considered to give rise to liability; they would only give rise to civil liability where there is a duty to act enforceable by private action. I doubt that s 33 was intended to provide immunity for anything done or said in the course of the exercise or intended exercise of functions under the Act but no immunity for a failure to do something required by the Act. I consider that interpreting s 33(1)(a) as including such an omission is consistent with the policy of the immunity. In each case, the immunity does not apply if bad faith is shown.
[41] Fourthly, turning to applications for judicial review, I do not accept Mr Deliu’s submission that IPCA is estopped from contending that s 33 precludes judicial review
23 H (SC52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [63].
given IPCA’s position in Wright v Darvill.24 In that interlocutory decision, Keane J recorded that IPCA accepted that it is amenable to judicial review, reserving for another day if need be whether it may be immune under s 33(1)(a).
[42] Finally, I accept that, procedurally, applications for judicial review are civil proceedings. As indicated, s 25 of the Ombudsmen Act has been considered to prevent the courts from reviewing or questioning the exercise of the Ombudsmen’s investigative functions and s 26 as a companion provision limiting personal civil and criminal liability. Here, while s 33 is similar to s 26 of the Ombudsmen Act, the Act contains no equivalent of s 25 of the Ombudsmen Act. That is not determinative since caution is needed before placing too much reliance on the specific form of wording, but I do not consider that s 33(1)(a) precludes applications for judicial review on all grounds except bad faith. While Mr Smith accepted the Court also retains jurisdiction to intervene where IPCA has acted outside of its functions, this did not appear to extend to a situation where IPCA has unlawfully failed to act (unless in bad faith) or failed to comply with the requirements of natural justice (unless in bad faith). In the absence of a clear ouster such as that in s 25 of the Ombudsmen Act 1975, which acknowledges an exception for lack of jurisdiction, I consider that s 33(1)(a) is aimed at precluding civil and criminal liability (unless bad faith is shown). I do not consider that s 33 precludes applications to the High Court for judicial review.
[43] Accordingly, s 33 is not a bar to consideration of Mr Deliu’s judicial review claims. It is therefore unnecessary, at least for the purposes of the preliminary issue, to address Mr Deliu’s alternative submission that IPCA has acted in bad faith.
Consideration of the claims
Mr Deliu’s causes of action
[44]In essence, in relation to each complaint, Mr Deliu claims that IPCA has:
(a)unjustifiably delayed in breach of s 30(a) of the Act and contrary to its own core values of accountability, timeliness and vigilance;
24 Wright v Darvill [2015] NZHC 1821 at [37].
(b)breached its statutory duty under s 17(1) of the Act and Mr Deliu’s right to natural justice under s 27 of the New Zealand Bill of Rights Act 1990; and
(c)acted illegally in not processing the complaints.
[45] As Mr Deliu appreciated, in this application for judicial review I focus on whether the complaints were lawfully processed by IPCA, not on their merits.
First complaint
[46] The first complaint in issue is one that Mr Deliu sent to IPCA by email dated 21 January 2018 alleging that Police had violated his privacy rights by investigating his financial affairs in 2015.
[47] IPCA admits that it received the first complaint on 22 January 2018 and says that, through oversight, it did not determine the complaint. IPCA says this was one of seven complaints Mr Deliu made to IPCA between 19 and 23 January 2018. It says that on 27 April 2021, in the course of preparing its statement of defence, it discovered Mr Deliu’s email, identified it as a complaint that had not been actioned, opened a case file and commenced an investigation. On 17 May 2021, IPCA advised Mr Deliu that it had not found anything of concern in relation to the conduct of Police, did not identify anything warranting further investigation and that pursuant to s 18(2) of the Act IPCA would not be taking any further action and the matter would be closed.
[48] Thus, IPCA acknowledges that it did not address this complaint in 2018 and make any decision, even a decision to take no action on the complaint. It does not suggest the delay until 2021 was reasonable even though the “due expedition” requirement in s 30(a) applies specifically to investigations, which IPCA made no decision to commence.
[49] The primary issue is whether IPCA breached its duty under s 17(1) as alleged. Section 17(1) envisages initial consideration of a complaint before deciding on the procedure IPCA proposes to adopt. Clearly, s 17(1) does not require IPCA to investigate every complaint. But I consider that s 17(1) requires IPCA to decide on at
least one of the procedures referred to even though the introductory words state that IPCA “may” do all or any of them. That interpretation of s 17(1) is supported by subsection (2) which states that IPCA shall advise the Commissioner and the complainant “of the procedure it proposes to adopt under subsection (1)”. I do not accept Mr Smith’s submission that s 17(2) only applies if IPCA decides to take action. Deciding to take no action is one of the procedures it is required to advise about. This interpretation of s 17(1) is also consistent with the statutory scheme and purpose.
[50] Therefore, failing to decide on at least one of the procedures within a reasonable time is a breach of s 17. I do not consider it is also a breach of natural justice. The principles of natural justice focus on the opportunity to be heard before a decision rather than the requirement to make a decision. Also, given my approach to s 17, it is unnecessary to consider whether IPCA’s stated core values give rise to any procedural legitimate expectation.
[51] Finally, Mr Deliu’s complaint that IPCA acted illegally also subsumes his allegation of bad faith. As this requires assessment of IPCA’s overall handling of the five complaints, I will address this separately below.
Second complaint
[52] The second complaint is one Mr Deliu sent to IPCA by email also dated 21 January 2018 alleging that a Police detective had perjured herself and/or misled the Auckland District Court in a search warrant application in August 2016. The allegation was that the detective had represented that she would comply with her obligations relating to privileged material when she had no intention of doing so and never took any steps to do so.
[53] IPCA says the second complaint was connected to a previous complaint lodged by Mr Deliu in 2016 and constituted supplementary information rather than a discrete complaint. It says it reviewed the Police records, found no misconduct and advised Mr Deliu on 23 March 2018 of its decision and that it would be taking no further action.
[54] IPCA says that Mr Deliu requested the matter be reopened on 1 October 2020. It became aware of the judgment of Duffy J in Deliu v New Zealand Police finding that the August 2016 search did not meet the requirements of s 143 of the Search and Surveillance Act 2012 and that Police had arbitrarily detained Mr Deliu.25 Upon further review, IPCA agreed with Duffy J that the failings were due to ignorance of the law rather than malice or deliberate flouting and found no other misconduct or neglect. It determined that no further action was necessary. On 30 October 2020, it wrote to Mr Deliu setting out its findings and advising that no further action would be taken.
[55] Subsequently, however, IPCA learned that Duffy J’s judgment had been appealed. On 4 December 2020, it apologised to Mr Deliu for the confusion and advised that it would be in touch with him once the appeal process was finalised.
[56] Mr Deliu submitted that this complaint has nothing to do with the ongoing civil proceedings and that IPCA’s response indicates bad faith. He accepted it was reasonable to await the outcome of the strike out application in the civil proceeding, which was determined by Downs J on 19 May 2017.26 The strike out application was dismissed in respect of Mr Deliu’s claim but he was required to replead, confining his claim to arbitrary detention. Mr Deliu submitted that the effect was that a wider claim was struck out (albeit he also pursued claims in false imprisonment and misfeasance in public office). At trial before Duffy J, his claim for arbitrary detention by Police succeeded but his other claims were dismissed. Mr Deliu submitted the search issue is no longer before the Court. He relied on an agreed list of issues prepared for the Court of Appeal dated 12 October 2021. He seeks an order that IPCA determine this complaint.
[57] I accept that this complaint was connected to the 2016 complaint which was properly deferred at least pending determination of the strike out. The complaint was dealt with in March 2018. In October 2020, following Mr Deliu’s request that it be reopened, it was further reviewed taking into account Duffy J’s judgment. Again,
25 Deliu v New Zealand Police [2020] NZHC 2506.
26 S v Police [2017] NZHC 1060.
IPCA advised Mr Deliu that no further action would be taken, albeit it appears from IPCA’s 4 December 2020 email that it reopened the complaint again due to the appeal.
[58] I consider the scope of the Police appeal, confirmed by the agreed list of issues, indicates that the appeal does not concern the subject matter of this complaint and does not provide a basis for deferring consideration of it. Insofar as this complaint was reopened again due to the appeal, IPCA should now consider whether to take any further action.
Third complaint
[59] This complaint comprises two emails Mr Deliu sent to IPCA dated 22 January 2018 alleging that a Police sergeant had refused to charge a (retired) judge with fraud. The supporting documents indicated that this complaint related to Mr Deliu’s October 2016 complaint to Police concerning earlier legal proceedings in which the judge had made a costs order against Mr Deliu personally as counsel. On 30 September 2020, Mr Deliu emailed IPCA asking it to acknowledge this complaint.
[60] IPCA says it considered the relevant material, found no evidence of police misconduct and made a decision not to investigate further. It also says that due to an oversight it did not open a separate case file and did not communicate that decision to Mr Deliu at the time. IPCA says it became aware of this oversight when preparing its statement of defence in April 2021, investigated the complaint afresh and communicated its decision to Mr Deliu on 17 May 2021.
[61] As indicated, s 30 applies specifically to investigations. If IPCA “investigated” this complaint before deciding not to investigate further, s 30(c) required it to inform Mr Deliu, as soon as reasonably practicable after the conclusion of the investigation, and in such manner as it thought proper, of the result of the investigation. If, instead, IPCA decided to take no action or no further action, s 18(3) required it to inform Mr Deliu of that decision and the reasons for it. IPCA failed to do either until May 2021. My reasons above in relation to natural justice and IPCA’s core values apply equally to this complaint, and I will address bad faith separately below.
Fourth complaint
[62] Mr Deliu complained to IPCA by email dated 23 January 2018 that Police had conducted an ultra vires/mala fides investigation into him. This complaint alleged that Police had been “trying to get” Mr Deliu for eight years and that during an interview with a (former) client of his Police had indicated to her that they were investigating whether Mr Deliu had practised law whilst suspended. This complaint also referred to the background of Mr Deliu’s conflict with the judge referred to above, another judge, the New Zealand Law Society (NZLS) and the Police.
[63] IPCA says that it erroneously categorised the fourth complaint as being related to a previous complaint rather than as a discrete new complaint due to the number of emails Mr Deliu had sent in the surrounding days. IPCA says it investigated the complaint as part of the wider complaint and found no evidence that Police had acted outside the scope of their authority or in bad faith, so no further action was taken. It admits that as part of preparing for this proceeding it discovered that its decision had not been communicated to Mr Deliu. It says that it considered it afresh and issued a new decision on 17 May 2021 reaching the same conclusion.
[64] Since IPCA acknowledges that its categorisation was erroneous, this complaint was not considered as a discrete complaint in accordance with s 17 until 2021. Insofar as IPCA relied on its earlier investigation of the wider complaint, s 30(c) would have been engaged. IPCA failed to inform Mr Deliu of the result until 2021. My reasons above in relation to natural justice and IPCA’s core values apply equally to this complaint also, and I will address bad faith separately below.
Fifth complaint
[65] Mr Deliu complained to IPCA by email dated 5 March 2018 in relation to the same Police sergeant referred to in the third complaint. This complaint alleged that he had conspired with two criminals to harm Mr Deliu by telling them that he would love to catch Mr Deliu and/or that they should complain to NZLS. The complaint attached a statement from one of them. Mr Deliu sent further information regarding this complaint to IPCA on 27 March 2018 and 10 April 2018.
[66] IPCA says the fifth complaint is substantially the same as a complaint lodged on 16 December 2017, which IPCA dealt with on 19 January 2018. It says that it received follow up correspondence from Mr Deliu but advised the matter was closed on 1 February 2018. It says that it continued to receive correspondence from Mr Deliu but having said its file was closed did not correspond further. It says it did not receive Mr Deliu’s email of 10 April 2018.
[67] Mr Deliu submitted this complaint is not substantially similar to the earlier complaint. He says the earlier complaint concerned the refusal of Police to investigate death threats against him. That complaint made no mention of the Police sergeant defaming him. Mr Deliu submitted that while the death threats involve the same individuals, the complaint is not the same. He submitted this complaint has not been properly determined and seeks an order that IPCA determine it.
[68] I consider this complaint is not substantially the same as the complaint dealt with on 19 January 2018. That earlier complaint alleged Police had refused to investigate alleged harassment (Mr Deliu says death threats) against Mr Deliu and his family. The 5 March 2018 complaint alleged that the Police sergeant had conspired with two criminals to harm Mr Deliu by telling them that the officer would love to catch Mr Deliu and/or that they should complain to NZLS. IPCA’s letter of 19 January 2018 stating that no further action would be taken in relation to the harassment complaint does not address the Police sergeant’s alleged conversation. I consider it does not inform Mr Deliu of a decision that no action be taken in relation to the fifth complaint. Therefore, this complaint still needs to be considered in accordance with s 17.
Bad faith
[69] Mr Deliu submitted that IPCA has acted in bad faith on the basis that there is more than a single instance of oversight and that IPCA lost the benefit of the doubt in relation to its claimed oversights following service of the amended statement of claim in October 2019 and its application for security for costs in 2020.
[70] While it was unnecessary to address alleged bad faith given my conclusion on the preliminary issue, I do so now as it may be relevant to the issue of relief.
[71] I accept that IPCA faced challenges given the total number of complaints and the nature of some of Mr Deliu’s correspondence. In total, it received more than 2,500 complaints in the 2017/2018 year. IPCA’s database held 17 email exchanges with Mr Deliu in January 2018. Particular challenges with Mr Deliu’s correspondence included emails sent to different IPCA addresses, emails sent to other recipients and only copied to IPCA, and emails relating to the same underlying incident or issue making it unclear whether they were restating an existing complaint, providing further information, expressing dissatisfaction with a decision or making a new complaint.
[72] Even so, IPCA’s explanation does not sit well with the stance it took in 2020 when (together with other defendants) it applied for security for costs on grounds including that Mr Deliu’s claims lack merit, albeit Palmer J’s judgment indicates the focus of IPCA’s application was on s 33. I do not doubt that IPCA believed that Mr Deliu’s claims lacked merit. But the circumstances indicate that IPCA had not reviewed its files in any detail when it applied for security on grounds including that his claims lack merit, since it had not ascertained that it had:
(a)received the first complaint but failed to take any steps to consider it;
(b)failed to open a separate case file for the third complaint and failed to communicate its decision to Mr Deliu; and
(c)erroneously categorised the fourth complaint as being related to a previous complaint rather than a discrete new complaint and had failed to communicate any decision to Mr Deliu.
[73] Further, even when Mr Deliu asked IPCA to acknowledge the third complaint on 30 September 2020, it did not do so.
[74] Taken together, these circumstances indicate that IPCA failed to consider these complaints properly until it identified its shortcomings when preparing its statement of defence in April 2021. That is relevant to the issue of relief, but I do not conclude that IPCA’s failures in relation to the first, third and fourth complaints involved bad faith. I consider the more likely explanation is that the shortcomings were the result
of a lack of adequate consideration due to a combination of IPCA’s previous dealings with Mr Deliu dating back to 2007 and the challenges created by his correspondence. I consider the same applies to the fifth complaint even though IPCA did not respond to the emails it received or seek clarification from Mr Deliu as to perceived overlap with the earlier complaint.
[75] I also do not consider that IPCA’s handling of the second complaint indicates bad faith. The complaint was dealt with in March 2018, reopened at Mr Deliu’s request in October 2020 and dealt with again, albeit it appears that IPCA then reopened the complaint a further time due to the appeal. There is no evidence indicating that IPCA knew then that the appeal did not concern the subject matter of this complaint. If it did, it would have had no reason to tell Mr Deliu it would be in touch with him once the appeal process was finalised.
Relief
[76] In relation to the first, third and fourth complaints, Mr Deliu seeks a declaration even though IPCA has now made a decision.27 In relation to the second and fifth complaints Mr Deliu seeks orders (mandamus) that IPCA process the complaints. He also seeks a letter of apology. IPCA opposes relief.
[77] Public law remedies are discretionary.28 In Air Nelson Ltd v The Minister of Transport,29 the Court of Appeal said that in considering whether to exercise its discretion not to grant a remedy, the Court can take into account the needs of good administration, any delay or other disentitling conduct of the claimant, the effect on third parties and the utility of granting a remedy. It then said that nevertheless there must be extremely strong reasons to decline to grant relief.30 Since then, the Court of Appeal has observed that Air Nelson was directed towards situations where the claimant had suffered substantial prejudice and that a more nuanced approach might be necessary in the generality of cases.31 That Court also noted that it is
27 The declaration sought in the pleading for each complaint, that IPCA has breached one or more of its core values and/or violated Mr Deliu’s human right to natural justice, is inapt and superseded by the declaration now sought in relation to the first, third and fourth complaints.
28 Judicial Review Procedure Act 2016, s 18(1).
29 Air Nelson Ltd v The Minister of Transport [2008] NZCA 26 at [59].
30 At [60].
31 Secretary for Justice v Simes [2012] NZCA 459 at [117].
well-established that irregularities and unfairness in a hearing process may be “cured” if there is a further process of appeal or review that involves a complete rehearing.32
[78] In relation to the first, third and fourth complaints, the failures have since been addressed and IPCA has apologised to Mr Deliu. Mr Smith reiterated that the absence of prompt disposal and communication is regretted, but submitted that a declaration would serve no purpose as the delay did not cause prejudice.33 While IPCA does not confer legal remedies and there is no right to have a complaint investigated, I consider its failure to consider a complaint or advise of the outcome may nevertheless give rise to prejudice. Given the delay in this case, including after judicial review proceedings were filed, I would not decline relief on the basis that Mr Deliu has not been prejudiced.
[79] As the failures have since been addressed, the question is whether a declaration would serve a useful purpose. If some form of relief could have a practical value then it ought to be granted, as the Court of Appeal said in Just One Life Ltd v Queenstown Lakes District Council.34 In that case, the Court noted that declarations that the original consents were invalid were not sought on appeal because the granting of new consents meant that any declaration would have no practical effect.35 Here, the declaration would not concern the validity of superseded decisions but the failure to address the complaints.
[80] Mr Smith relied on Deliu v The Office of the Judicial Conduct Commissioner where relief was declined. However, that case is distinguishable as relief was declined on the basis that the delay was caused by a lack of resources and the issue was better remedied by bringing the Court’s judgment to the attention of the Executive.36 Here, IPCA’s resource constraints were not the overriding issue.
32 At [109].
33 Citing Huia Resorts Ltd v Ashburton District Council [2005] NZRMA 449.
34 Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA) at [39].
35 At [4]. See generally Matthew Smith The New Zealand Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington) at [19.6.1] and [19.7].
36 Deliu v The Office of the Judicial Conduct Commissioner [2012] NZHC 356.
[81] This judgment addresses IPCA’s statutory obligations and concludes that it failed to address the first, third and fourth complaints in accordance with the requirements of the Act irrespective of whether a declaration is granted. But I consider a declaration to that effect will have some practical value for the parties and in the public interest, and there is no good reason to decline to grant relief.
[82] In relation to the second complaint, I have concluded that it was dealt with in March 2018, again in October 2020 and, insofar as it was subsequently reopened due to the appeal, IPCA should now consider whether to take any further action since the appeal does not concern the subject matter of the complaint. But in those circumstances an order (mandamus) is neither necessary nor appropriate.
[83] In relation to the fifth complaint, I have concluded that it is not substantially the same as the earlier complaint and still needs to be considered in accordance with s 17. In the circumstances, I consider that an order that IPCA consider the fifth complaint in accordance with s 17 is the appropriate relief.
[84] While I accept that the apology in IPCA’s letter to Mr Deliu dated 17 May 2021 has no application to the second and fifth complaints, it is not part of the Court’s function on this application for judicial review to order an apology.
Result
[85]Mr Deliu is entitled to the following relief:
(a)a declaration that IPCA failed to address Mr Deliu’s first, third and fourth complaints (emails dated 21, 22 and 23 January 2018) in accordance with the requirements of the Act; and
(b)an order that IPCA consider the fifth complaint in accordance with s 17 of the Act.
Costs
[86] Mr Deliu is entitled to costs. If they cannot be agreed, the parties are to file memoranda not exceeding three pages within 15 working days, and I will determine costs on the papers.
Gault J
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