Deliu v Legal Complaints Review Officer

[2025] NZHC 1730

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-0562 [2025] NZHC 1730

UNDER  the Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of Rights Act 1990 and

Declaratory Judgments Act 1908

IN THE MATTER             of proceedings moving for an application for

judicial review, writs, a Bill of Rights claim and a petition for declaratory relief

BETWEEN  FRANCISC CATALIN DELIU

Applicant

ANDTHE LEGAL COMPLAINTS REVIEW OFFICER

First respondent

ANTHONY JOSEPH ELLIS
Second respondent

Judicial review list: 25 June 2025 Appearances:  Applicant in person

A Bloomfield and L E Sinclair for first respondent P M Fee and GFA Potter for second respondent

Date of reasons:       27 June 2025

REASONS FOR JUDGMENT OF JAGOSE J

[Recusal]

Solicitors:

This reasons for judgment was delivered by me on 27 June 2025 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Fee Langstone, Auckland Crown Law, Wellington

DELIU v LEGAL COMPLAINTS REVIEW OFFICER [2025] NZHC 1730 [27 June 2025]

Copy to:

Mr Deliu

[1]    This proceeding came before me in the judicial review list on 25 June 2025. On the parties’ proposal for a timetable leading to hearing of an interlocutory application for particular discovery, I indicated my expectation such timetable include any preliminary interlocutory application, expressly including any for further particulars or security for costs. I directed accordingly.1

[2]    As may be seen from my associate’s annexed transcription of the list’s call, as I was working through that timetable, Mr Deliu sought my recusal. I deferred its hearing until I had compiled the intended timetable. I then heard Mr Deliu’s application. He contended my unilateral specification of prospective applications adverse to his interests was “potentially perverting the course of justice by seeking to have [his] access to it stopped through irregular measures that a party has not sought”. He took objection to my initial response, when I said “[k]nock yourself out]” to his indication a recusal application would be made, as “a facetious, sarcastic and inappropriate comment to make in open court, … not one befitting a judicial officer but more importantly … [raising] the spectre of apparent bias”. Such “mockery” of him meant I was “partisan and … not here to be a[n] independent, neutral arbiter of justice but rather to vex and frustrate [his] ability to pursue this proceeding”. He additionally took exception to my continuing to address timetable issues, after he indicated his intention to seek my recusal, as “impermissible” because “the law is very clear and … says that a recusal issue must be resolved ahead of all other issues”.2

[3]    I declined to recuse myself, as previously I had declined in other proceedings involving Mr Deliu,3 with reasons to follow. These are those reasons.

[4]    Resolution of legal disputes by impartial and independent judges is “an essential underpinning” of democratic society.4 Those charged with criminal offences

1      Deliu v Legal Complaints Review Officer HC Auckland CIV-2025-404-0562, 25 June 2025 (Minute of Jagose J).

2      Relying on Deliu v Connell [2016] NZHC 361, [2016] NZAR 475, although the proposition was more Mr Deliu’s submission there than any finding on the part of the Judge.

3      Deliu v Various parties [2024] NZHC 1423.

4      Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [32], endorsed by Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].

have “the right to a fair and public hearing by an independent and impartial court”;5 the right to apply for judicial review engages no lesser consideration.6 Not only must the Court actually be impartial and independent; it also must appear to be so.7 Nonetheless, the Supreme Court has stipulated “[j]udges should not recuse themselves without sufficient cause”.8 Apparent bias is to be assessed on a case-by-case basis.9

[5]    Section 171 of the Senior Courts Act 2016 required development and publication of recusal guidelines for the High Court. The resultant guidelines include:10

A judge should recuse him or herself if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

giving rise to a two-stage test,11 to identify first the relevant circumstances and then any “logical and sufficient connection” to such apprehension.

[6]    To paraphrase that test for application here, the issue is if my impugned involvement in the case makes it a real possibility a fair-minded, fully informed intelligent lay observer reasonably would apprehend I might not impartially decide the issue before me on its merits, notwithstanding my oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”.12

5      New Zealand Bill of Rights Act 1990, s 25(a).

6      Section 27(2), and see Muir v Commissioner of Inland Revenue, above n 4, at [32].

7      R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259.

8      A v R [2016] NZSC 31 at [16], citing Stephen Sedley “When should a judge not be a judge?” [2011] 33 LRB 1 at 9 (republished in Stephen Sedley Law and the whirligig of time (Hart Publishing, Oxford, 2018) as “Recusal: when should a judge not be a judge?” at 116). See also Shimon Shetreet and Sophie Turenne Judges on Trial: The Independence and Accountability of the English Judiciary (2nd ed, Cambridge University Press, Cambridge, 2013) at 214; and Chamika Gajanayaka “Judicial recusal in New Zealand: looking to procedure as the principled way forward” (2015) 46 VUWLR 415 at 422. And see also Lyttleton v R [2018] NZCA 243 at [5]; and Stokes v Insight Legal Trustee Company Ltd [2015] NZCA 519 at [27].

9      KI Commercial Ltd v Christchurch City Council [2019] NZCA 645 at [10], citing Russell v Taxation Review Authority [2011] NZCA 158, [2011] NZAR 310 at [23] (citing Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA)).

10 Courts of New Zealand, “High Court recusal guidelines” (12 June 2017)

< at 1.2.

11 High Court recusal guidelines, above n 10, at 1.4; see also Sisson v Canterbury District Law  Society [2011] NZCA 55, [2011] NZAR 340 at [20]–[22].

12 Oaths and Declarations Act 1957, s 18.

[7]    In considering Mr Deliu’s application, I applied those guidelines, including the standard of “real and not remote possibility”, rather than probability, of partiality;13 to be determined by the two-stage test;14 in the application of which I am to apply the relevant principles “firmly and fairly and not accede too readily to suggestions of bias”.15

[8]In my assessment, a fair-minded, fully informed observer would understand:

(a)judicial review is the exercise of this Court’s supervisory jurisdiction over susceptible decision-makers “to ensure that public powers are exercised lawfully”;16

(b)distinctly from some other contested disputes between parties, susceptible decision-makers have particular responsibilities attached to public decision-making to be candid with the Court,17 often reflected in decision-makers otherwise ‘abiding’ this Court’s decision (as does the first respondent here);18

(c)as judicial review list judge, I have responsibility for ensuring judicial review proceedings are determined “in a convenient and expeditious manner”, “effectively and completely”, including by directing at my own initiative parties’ attendance at case management conferences and any consequential directions I consider necessary;19

(d)in the context of this Court’s  refusal to allow a sum held by it on     Mr Deliu’s account to be disbursed in partial satisfaction of his costs liability to third parties,20 the Court of Appeal recently observed:21

Mr Deliu has, for some time, failed to meet costs orders against him. It is reasonable to infer that he does not intend to

13     High Court recusal guidelines, above n 10, at 1.3.

14     At 1.4.

15     At 1.5.1.

16     Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1].

17 At [105].

18     High Court Rules 2016, r 5.50.

19     Judicial Review Procedure Act 2016, ss 13–14.

20     Deliu v Johnstone [2022] NZHC 467.

21     Harborow v Deliu [2024] NZCA 138 at [30]–]31].

do so. There are very limited means by which the appellants can enforce the orders.

…

[P]ublic confidence in the administration of justice would be served by demonstrating that the Court can and will take steps to ensure compliance with its orders.

(e)                  the question for my decision was the content of timetable directions leading to the proceeding’s determination;

(f)in my preliminary assessment, the proceeding’s statement of claim lacked adequate particulars of its causes of action D and E;

(g)Mr Deliu proposed particularisation of E from the presumed success of his application for particular discovery, and then would attend also to further particularisation of D;

(h)no party had sought further particulars or security for costs;

(i)Mr Deliu is resident out of New Zealand;

(j)r 5.21(2) of the High Court Rules 2016 anticipates a pleading will “give fair notice of … the cause of action” and (4) entitles “the court on its own initiative [to] order a more explicit pleading to be filed and served”; and

(k)r 5.45 entitles a Judge to order the giving of security for costs if just in all the circumstances, if satisfied on a defendant’s application a plaintiff is resident out of New Zealand.

[9]    Given represented or abiding parties were not then seeking either further particulars or security for costs, the absence of any such application might possibly lead to an apprehension I directed the filing of any such application other than on the merits for such filing. Such apprehension would not appear reasonable to a fair-minded, fully informed observer, who would comprehend I am expected—as judicial review list judge—actively to manage judicial review proceedings, and early identification of interlocutory applications—especially if for further particulars, as giving fair notice of the cause of action, or security for costs, which if unmet may

result in the proceeding being stayed—is desirable. There is no logical or sufficient connection between my role in these proceedings as judicial review list judge and any apprehension I might make timetable directions other than on the merits for such timetables.

[10]Mr Deliu’s application for my recusal was declined.

—Jagose J

Annexure: Transcript of 25 June 2025 case management conference

THE COURT:

Right, good morning. Good morning, Mr Deliu.

MR DELIU:

Good morning sir, welcome back, I guess I should say.

THE COURT:

Thank you. Counsel.

MS BLOOMFIELD:

Tēnā koe your Honour, Ms Bloomfield and Ms Sinclair for the first respondent.

THE COURT:

Thank you, Ms Bloomfield, Ms Sinclair.

MRS FEE:

May your Honour please, Mrs Fee and Mr Potter for the second respondent.

THE COURT:

Thank you Mrs Fee, Mr Potter. I get the impression that notwithstanding the exchange of memoranda that you’re all pretty much in the same place, that there needs to be an application, opposition, a hearing and moving on from there. Am I right?

MRS FEE:

Yes, yes sir, I think -

MR DELIU:

Yes, I think we just don’t agree on the details, but, but yes.

THE COURT:

Okay, so in terms of dates, 28 August for a half-day. Mr Deliu?

MR DELIU:

Ah [inaudible 09:01:51] yes, thank you.

MRS FEE:

Sorry, sir, I’m just bringing up the diary. Ah, yes that’s fine sir, yes.

THE COURT:

Ms Bloomfield.

MS BLOOMFIELD:

Yes, thank you your Honour, that’s suitable.

THE COURT:

All right. It struck me looking at the proceeding, or looking at the claim rather, that—whilst  I understand, Mr Deliu, you anticipate greater particularisation of, I think, the innominate ground for review, assuming success on your interlocutory application—it seemed to me that your preceding ground could use some attention as well. There’s a complete absence of any particularisation of what errors are articulated, and I would expect that that would need some attention. So -

MR DELIU:

I don’t disagree, sir, but I would say that it would be sensible if there’s going to be a repleading anyway on the innominate ground, sorry, there’s potentially a repleading -

THE COURT:

Correct.

MR DELIU:

Might as well just, might as well just do [inaudible 09:03:10] -

THE COURT:

Well, I’m sure that’s, I’m sure that’s right. What I want to signal is that any preliminary applications ought to be made now, with whatever timetable we end up with. So, if that is for better particulars, that needs to be specified at this point. And we will hear that in that half-day as well. Similarly, if there’s any other applications for security for costs or anything else preliminary, they ought to be brought all at the same time. I do not want to have these preliminary applications being drip-fed. So, dates for  filing of applications, did you have     a particular view at the moment? If we went 10 working days out from today.

MR DELIU:

No, I’m busy setting up a business so that’s why I suggested the 31st of July. I don’t see how that date prejudices anybody because it’s still a month before the hearing, that your Honour just allocated. So, there’s no reason to get the papers in now and have them just sit in the registry file for two months. It causes nobody any advantage but it causes me disadvantage.

THE COURT:

Ah, sure.

MR DELIU:

So, [inaudible 09:04:35].

THE COURT:

Just hold on a minute, Mr  Deliu, I’m just  trying to figure out the rest of the timetable.     Ms Bloomfield, do you have a sense of how long you’d require for any opposition?

MS BLOOMFIELD:

I wouldn’t have thought we would need very long your Honour, although I’m just looking at the first couple weeks of August. I’ve got a three-day trial the 4th–6th and a two-day trial the 12th–13, so the two weeks immediately after the 31st of July are quite busy and then we’re getting rather close to the hearing date. If we’re just still talking about notices at this point. So, in the abstract probably two weeks or in 10 working days would be plenty for the notice, from our perspective but it does depend a little bit which dates we’re looking at.

THE COURT:

Yeah, I appreciate that and that’s what I’m trying to work my way through.

MS BLOOMFIELD:

Mmm.

THE COURT:

Mrs Fee?

MRS FEE:

Sir, my sense of it is that, with due respect to Mr Deliu’s business activities, that in fact the timetabling of this should take precedence and I don’t believe that the 31st of July gives adequate time to, particularly in light of Ms Bloomfield’s hearings, I’m, I’m free sir but just as a matter of good form -

THE COURT:

Sorry, what I’m, what I’m asking is how many working days do you require for opposition.

MRS FEE:

10, 10 working days, sir.

THE COURT:

All right and reply, Mr Deliu?

MR DELIU:

Ah, so just to be clear sir, I’m willing to put in my application, affidavit and submissions in one go. So, if you, if you mean reply evidence or if you mean reply submissions -

THE COURT:

No, I mean, I mean any reply to the opposition.

MR DELIU:

Ah, one working day, yep.

THE COURT:

Okay. And then in terms of, you say, you will file your submissions at the outset Mr Deliu -

MR DELIU:

Yes, sorry, that’s on my proposal of late July.

THE COURT:

Yeah.

MR DELIU:

Yeah, and therefore Ms Bloomfield, with respect, would have, would be able to also [inaudible 09:06:55] take all steps that her client feels appropriate. In one go.

THE COURT:

I’m not seeing that at the moment.

MR DELIU:

No, no, I understand.

THE COURT:

And you will also have 10 working days for filing any opposition to applications that come in.

MR DELIU:

Yes, although -

THE COURT:

So -

MR DELIU:

I do take issue with the bench telling the other parties to seek security against me. It’s disgraceful, with respect, that the bench -

THE COURT:

Thank you, Mr Deliu, we’ve been through this before.

MR DELIU:

Right, but I can make a new recusal application today.

THE COURT:

Knock yourself out.

MR DELIU:

And that’s what I’m doing. I should knock myself out. That’s very unprofessional behaviour so that’s another ground of my recusal application, is that you’ve disgraced the bench -

THE COURT:

Thank you, Mr Deliu.

MR DELIU:

With your [inaudible 09:07:48] finish my recusal application. If not, sir, I’m gonna start recording this hearing because obviously there is a need to ensure that we have a proper record of your Honour’s behaviour, so if you just give me a second please.

THE COURT:

Thank you, Mr Deliu. I’m going to move the date for any application back to the 25th of July.

MR DELIU:

Thank you, thank you sir, but I believe -

THE COURT:

I’m going give -

MR DELIU:

[inaudible 09:08:16] unless you’re not going to allow me to make it.

THE COURT:

I’m just working through a timetable, Mr Deliu, so would you be quiet for a moment.

MR DELIU:

Of course, sir.

THE COURT:

25 July is the date for any applications, 8 of August for any opposition, submissions in support 15 August, submissions in opposition 22 August and that leads us to hearing on 28 August. Any difficulty with any of that?

MRS FEE:

No, sir.

MR DELIU:

I’m, I’m sorry, I wasn’t paying attention because I was in the middle of my recusal application, so I didn’t really hear it. So, may I continue my recusal application or is the bench not allowing me to do so.

THE COURT:

Do you want to hear the timetable, Mr Deliu, or not?

MR DELIU:

Only if you want to hear the recusal.

THE COURT:

I’m not refusing recusal, Mr Deliu, I have just set a timetable and I’ve just asked everybody if it’s okay. You said you’re not paying attention, so -

MR DELIU:

No, I’m busy -

THE COURT:

Is this, is this timetable okay, Mr Deliu – 25 July for any application, 8 August for any opposition, 15 August for any submissions in support, 22 August for any submissions in opposition, 28 August hearing.

MR DELIU:

Yes, sir, to answer your question it is acceptable in the sense that I can do it.

THE COURT:

Good.

MR DELIU:

It is unacceptable that a judge in the middle of a recusal application is making any procedural or substantive directions. So, it is both yes – the answer is yes it is okay, but the answer unfortunately sir, is also no – it is not okay that you should even be doing this in the middle of a recusal application.

THE COURT:

Right. Now, you have an application to make, Mr Deliu.

MR DELIU:

Yes, sir. So, just to record what’s happened here before because I wasn’t recording previously. In the course of the hearing your Honour openly invited parties to make interlocutory applications against me. The applications that you invited to be made were for particulars of my pleading. This was after I conceded that the pleading would potentially have to be repleaded. So, I was willing to give particulars and yet you invited the other parties to seek particulars against my pleadings. Now, that alone would have been fine and I wouldn’t have taken issue with that cos I agree there’s a potential need for repleading. But then you also indicated that if they wanted to make applications for security for costs. Nobody in their memoranda or in the hearing today I record under the payment penalty of perjury, it raised any issue of security. Ms Bloomfield or junior counsel did not. Ms Fee or junior counsel did not. So, you raised that issue of your own accord even though you had no basis to do so. My financial situation is not in evidence before you and indeed when I mentioned to you at the start of the hearing was the reason that I can’t do the 10 working days is because I’m setting up a business. So, indeed the only information you had before you, if anything, was that I am trying to get financial security in my business dealings. So, why you would raise the spectre of security of costs is not only inexplicable as a matter of basic evidence but indeed is impermissible because effectively you know that a security for costs application could cause the termination of my ability to pursue this proceeding. So, therefore you are potentially perverting the course of justice by seeking to have my access to it stopped through irregular measures that a party has not sought. When I then said to you that I would make a recusal application and this is where your behaviour flows into clear judicial misconduct, objectively speaking, you said that I should knock myself out. Not only was that a facetious, sarcastic and inappropriate comment to make in open court, it is not one befitting a judicial officer but more importantly getting us to the Saxmere test, it raises the spectre of apparent bias, i.e. you think this proceeding is a joke, you think I’m a joke. In any event, it is most peculiar language for a respected senior High Court judicial officer to make to a party in what should be serious litigation, in what should be a serious court. And so, your mockery of me and of my recusal

application indicates further that you are a partisan and are not here to be a independent, neutral arbiter of justice but rather to vex and frustrate my ability to pursue this proceeding. So, for those reasons I do move to recuse you except with the additional reason that you prevented me from doing so earlier, interrupted me and told me to be quiet as I was seeking to pursue a recusal application and went on to make procedural timetabling directions. Which is also impermissible because the law is very clear and there’s a Deliu v Connell case, which Ms Fee was involved in and so she knows it intimately, that it says that a recusal issue must be resolved ahead of all other issues. And, and I presume your Honour is also learned in the law and would be aware of that authority and therefore it was improper of you to interrupt me from making a recusal and move onto other things, no matter how minor or major they may be. So, with that additional ground, that would be the recusal application I, I now make. Thank you.

THE COURT:

Thank you very much, Mr Deliu. The application is denied, reasons will follow in writing.

MR DELIU:

Thank you [inaudible 09:14:28].

THE COURT:

Anything else we need to address. Mr Deliu?

MR DELIU:

Um, no, no thank you, sir.

THE COURT:

Ms Bloomfield?

MS BLOOMFIELD:

No, thank you, your Honour.

THE COURT:

Mrs Fee?

MRS FEE:

No, thank you, sir.

THE COURT:

All right, I’ll adjourn. Thank you very much.

MR DELIU:

As the court pleases.

MS BLOOMFIELD:

As the court pleases.