Deliu v National Standards Committee

[2023] NZHC 1184

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2016-404-2579

CIV 2017-404-0184

[2023] NZHC 1184

UNDER

The Lawyers and Conveyancers Act 2006

BETWEEN

FRANCISC CATALIN DELIU

Appellant

AND

THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY

Respondents

Continued…

Hearing:

30 March 2023

Appearances:

The appellant in person (by VMR)

M Hodge for the Standards Committee respondents

Judgment:

17 May 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 17 May 2023 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

DELIU v THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY [2023] NZHC 1184 [17 May 2023]

CIV 2017-404-0260

UNDER

The Judicature Amendment Act 1972

IN THE MATTER OF

An application for judicial review

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY

TRIBUNAL

First Respondent

THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY

Second Respondents

Introduction

[1]                In three decisions dated 15 September 2016, the Lawyers and Conveyancers Disciplinary Tribunal (LCDT) found charges of misconduct proved against Mr Deliu. On 22 December 2016, the LCDT suspended Mr Deliu from legal practice for the misconduct. His suspension was for 15 months from 1 February 2017.

[2]                Mr Deliu brought these three proceedings, two appeals and one judicial review,1 to challenge the LCDT’s decisions on liability and penalty. His appeals and judicial review were heard together by Hinton J in March and April 2017. Her Honour rejected Mr Deliu’s challenges in a judgment dated 25 September 2017.2 In two further judgments delivered in 2018,3 her Honour ordered Mr Deliu to pay costs to the New Zealand Law Society and declined Mr Deliu’s application for leave to appeal to the Court of Appeal.

[3]                Mr Deliu applies to recall Hinton J’s three judgments. He says there was a reasonable apprehension her Honour was biased. He also says that the LCDT had acted ultra vires and that, although he did not raise the ultra vires issue at the time, he should be able to now.

[4]                The Standards Committees who prosecuted Mr Deliu oppose the application. They say that the issues raised on the application have already been determined against Mr Deliu in other decisions of this Court, such that he is estopped from ventilating them again on this application. They say in any case that neither of Mr Deliu’s grounds has any merit.

[5]In determining whether to recall the judgments,4 three issues arise:

1      The proceedings with CIV numbers ending 2579 and 0184 are Mr Deliu’s respective appeals from the LCDT’s liability and penalty decisions. The proceeding with the CIV number ending 0260 is Mr Deliu’s application for judicial review of the LCDT’s two decisions.

2      Deliu v The National Standards Committee and The Auckland Standards Committee No 1 of The New Zealand Law Society [2017] NZHC 2318.

3      Deliu v The National Standards Committee and The Auckland Standards Committee No 1 of The New Zealand Law Society [2018] NZHC 2171; and Deliu v The National Standards Committee and The Auckland Standards Committee No 1 of The New Zealand Law Society [2018] NZHC 2873.

4      The hearing proceeded on the assumption that I could exercise a power to recall judgments of another Judge. That assumption is unlikely to be correct (see Jessica Gorman and others

(a)Is Mr Deliu estopped from arguing that there was a reasonable apprehension that Hinton J was biased?

(b)If not, was there a reasonable apprehension of bias?

(c)Is Mr Deliu estopped from raising the ultra vires issues?

Background

[6]                The most serious of the charges of which the LCDT found Mr Deliu guilty were that he had made allegations against two judges, Harrison and Randerson JJ, that were false or without any sufficient foundation.

[7]                After filing his appeal against the LCDT’s liability decision, Mr Deliu wrote a letter to the then Chief High Court Judge, Venning J, on 19 January 2017. Mr Deliu noted his understanding that the allocation of a judge to a hearing was an administrative matter. He said that, although he was not as such seeking to recuse a judge for bias (given he did not know which judge was to hear his appeal), he raised several issues for the consideration of whomever was to allocate the judge to the hearing. Among other things, he said he had been found guilty of making wrongful allegations against two judges while they were sitting in the Auckland High Court, and so an out-of-town judge “with absolutely no connection to Justices Harrison or Randerson or the New Zealand Law Society would be most appropriate”.

[8]                Mr Deliu said that he also had specific issues about certain Auckland Judges sitting, but that they would have to be dealt with on a case-by-case basis at or before the hearing. Mr Deliu therefore asked “to be advised at the earliest opportunity whom has been allocated so that I may consider my position”. Mr Deliu also identified several Judges (sitting both in Auckland and elsewhere) whose sitting on the appeal, he said, would be contrary to the appearance of justice.

[9]                Venning J responded in a minute issued on 3 February 2017. His Honour treated Mr Deliu’s letter as a memorandum of counsel, and said:

McGechan on Procedure (online ed, Thomson Reuters) at [HR11.9.01(8)]). Given the view I have taken on the merits of the recall application, it is not necessary for me to determine this point.

Mr Deliu’s appeal is scheduled to be heard on 27, 28 and 29 March 2017. Hinton J is the Judge scheduled to hear the appeal. Any further preliminary issues should be referred to the allocated trial Judge.

[10]            Hinton J heard Mr Deliu’s appeals and judicial review in March and April 2017. Mr Deliu did not raise any concern with Hinton J sitting.

[11]            Hinton J dismissed Mr Deliu’s appeals and judicial review in a judgment dated 25 September 2017. A subsequent judgment awarded costs against Mr Deliu.

[12]            Mr Deliu applied for leave to appeal Hinton J’s substantive decision to the Court of Appeal. Her Honour dealt with that application on the papers, declining leave in a judgment dated 6 November 2018.

Mr Deliu’s recall application and the opposition to it

[13]            Almost three years later, on 3 October 2021, Mr Deliu filed an application for various orders, including:

(a)Orders that Hinton J disclose any potential conflict of interest she may have to sit in these proceedings, including but not limited to full details about any relationship that her Honour may have or have had with certain persons associated with the LCDT (the disclosure application).

(b)Orders that Hinton J’s three judgments be recalled (the recall application).

[14]            Mr Deliu’s disclosure application was determined by Paul Davison J in a judgment delivered on 10 August 2022.5 His Honour found that none of the associations or events on which Mr Deliu relied warranted further inquiry by way of inviting Hinton J to provide disclosure in the terms sought by Mr Deliu.

5      Deliu v The National Standards Committee and The Auckland Standards Committee No 1 of The New Zealand Law Society [2022] NZHC 1972.

[15]            In the recall application, as originally filed, Mr Deliu said Hinton J’s judgments should be recalled because there was a reasonable apprehension her Honour had been biased (the apparent bias ground). The appearance of bias was said to arise from her Honour having been, prior to her appointment to the Bench, a member of the LCDT (or its predecessor) and from her Honour’s resultant connections to the LCDT members that sat on Mr Deliu’s disciplinary proceedings and to one of the prosecutors in those proceedings. In an affidavit in support, Mr Deliu said he became aware of these matters only in August 2021.

[16]            On 10 March 2023, Mr Deliu filed an amended application for recall together with a further affidavit of the same date. His further affidavit raised an additional ground for recall, namely that the LCDT had acted ultra vires in three ways (the ultra vires grounds). First, Mr Deliu said the members of the LCDT that sat on his disciplinary proceedings were not lawfully appointed. Alternatively, Mr Deliu said the members that sat were not lawfully assigned to sit on those proceedings. Thirdly, Mr Deliu said the LCDT did not meet quorum requirements in voting for his guilt and suspension.

[17]            In his submissions, Mr Deliu clarified that he relied on the apparent bias ground in seeking recall of Hinton J’s decisions on his two appeals, and on the ultra vires grounds in seeking recall of Hinton J’s decisions on his application for judicial review.

[18]            The LCDT, which is the first respondent in Mr Deliu’s judicial review, abides the decision of the Court.

[19]            The Standards Committees that brought the charges against Mr Deliu in the LCDT, and which are the respondents to the appeals and the second respondents in the judicial review, oppose the recall application. In relation to Hinton J’s decisions on the appeals, the Standards Committees say the apparent bias ground turns on issues that were decided against Mr Deliu by Paul Davison J in his decision on the disclosure application. The Standards Committees say that an issue estoppel is therefore raised, preventing Mr Deliu from advancing this ground of recall. Alternatively, the Standards Committees say there was no appearance of bias.

[20]            In relation to Hinton J’s decisions on his application for judicial review, the Standards Committees say that the ultra vires grounds were decided against Mr Deliu by Peters J in a separate proceeding brought by Mr Deliu against the same respondents to judicially review the same decisions of the LCDT.6 The Standards Committees say that these grounds of recall are therefore also barred by an issue estoppel. Alternatively, they say the ultra vires grounds do not justify recalling Hinton J’s decisions on the judicial review application.

Mr Deliu’s other proceeding to judicially review the same LCDT decisions

[21]            As just noted, the Standards Committees say that Mr Deliu is barred from advancing the ultra vires grounds by a decision of Peters J in another proceeding that Mr Deliu brought to judicially review the same LCDT decisions.

[22]            Mr Deliu filed that judicial review proceeding in August 2021. He advanced it on the basis the LCDT had acted ultra vires in determining liability and penalty (that is, the ultra vires grounds that he now pursues in his recall application). Mr Deliu had not advanced those grounds in his first judicial review before Hinton J.

[23]            Peters J dismissed Mr Deliu’s application for judicial review in a judgment dated 9 February 2023.7 Her Honour considered that Mr Deliu could and ought to have raised each of the ultra vires grounds in his first judicial review.8 It was a Henderson v Henderson9 abuse of process for Mr Deliu to pursue those grounds in a second judicial review proceeding.10 Her Honour was also satisfied that the members of the LCDT who heard and determined the charges and penalty were lawfully appointed.11

6      Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2023] NZHC 160.

7      Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2023] NZHC 160.

8      At [39] and [46].

9      Henderson v Henderson (1843) 3 Hare 100, 67 ER 313.

10     Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2023] NZHC 160 at [51].

11 At [74].

Legal principles as to recall

[24]An unsealed judgment may be recalled in three categories of case:12

(a)where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority;

(b)where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and

(c)where for some other very special reason justice requires that the judgment be recalled.

[25]Mr Deliu relies on the third category. Two broad issues arise:

(a)Is there some very special reason justice requires recall of Hinton J’s decisions on the appeals?

(b)Is there some very special reason justice requires recall of Hinton J’s decisions on the judicial review?

Is there some very special reason justice requires recall of Hinton J’s decisions on the appeals?

Mr Deliu’s apparent bias ground in more detail

[26]            Mr Deliu says the very special reason that justice requires recall of Hinton J’s decisions on his appeals is, as noted, that there was a reasonable apprehension her Honour was biased. He says this reasonable apprehension of bias arises from two matters.

[27]            First, Mr Deliu complains about Venning J’s minute of 3 February 2017 advising that Hinton J was scheduled to hear Mr Deliu’s appeals in late March 2017.

12     Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

Mr Deliu points to the Supreme Court’s observation, when addressing the test for apparent judicial bias in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd,13 that cases are randomly allocated to judges. Mr Deliu also says the usual practice is that Judges are allocated to cases only the week before hearings. He says that rather than Hinton J being randomly allocated “as required by Saxmere” and in accordance with that usual practice, her Honour was “specially assigned” well in advance of the hearing by or with “the Chief High Court Judge’s assent who ought not have been involved”.14

[28]            Secondly, Mr Deliu points to her Honour’s connections to one of the prosecutors of the disciplinary charges against him and to the members of the LCDT that heard the charges:

(a)From 2003 to 2007, prior to her appointment on 30 January 2015 as a judge of the High Court, Ms Hinton QC (as she then was) was on the panel of practitioner members of the New Zealand Law Practitioners Disciplinary Tribunal (LPDT), the statutory predecessor to the LCDT. During Ms Hinton’s time on that panel, Nigel Hampton QC was either the chairperson of the LPDT or was on the LPDT’s panel of practitioner members. Mr Hampton was the Chairperson of the New Zealand Law Society’s National Standards Committee, which was one of the two standards committees that acted as prosecutor in the disciplinary proceedings against Mr Deliu, and which was a party to the appeal and judicial review proceedings that were heard by Hinton J.

(b)In 2009, Ms Hinton was on the panel of practitioner members of the LCDT. Mary Scholtens QC, Susan Hughes QC and Jacqui Gray (practitioner members) and Peter Shaw and William Smith (lay members) served on the LCDT with Ms Hinton that year. Those five members heard the disciplinary charges against Mr Deliu in the LCDT.

13  Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [8].

14 This point was not identified in Mr Deliu’s application (initial or amended) or in his affidavits in support. It was first raised in the written submissions Mr Deliu filed for the hearing. No issue arises from this, as Mr Deliu relied on Venning J’s minute of 3 February 2017 and Mr Hodge was content (and able) to respond to this point at the hearing.

They made the liability and penalty decisions that were the subject of Mr Deliu’s appeals and judicial review heard by Hinton J.

[29]            The Standards Committees say that Paul Davison J’s decision on Mr Deliu’s disclosure application raises an issue estoppel, preventing Mr Deliu from arguing that these circumstances gave rise to a reasonable apprehension that Hinton J was biased. In any event, they say that the circumstances do not give rise to a reasonable apprehension of bias.

[30]Two issues arise:

(a)Does the decision of Paul Davison J raise an issue estoppel preventing Mr Deliu from arguing that these circumstances gave rise to a reasonable apprehension of bias?

(b)If not, do these circumstances give rise to a reasonable apprehension of bias?

[31]            Before addressing these issues, I outline the legal principles relating to apparent judicial bias and summarise the decision of Paul Davison J.

Apparent judicial bias

[32]            The test for apparent judicial bias was settled in the Saxmere litigation. The general principle is that a judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.15 The question is one of real and not remote possibility.16

[33]There are two steps in assessing a claim of apparent bias:17

15  Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3]; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [4].

16     Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at

[4]citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7].

17     Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [4], [85] and [127].

(a)First, it is necessary to identify the matter that is said might lead a judge to decide a case other than on its factual and legal merits.

(b)Secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits, to determine whether the matter might lead a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case.

[34]            In Saxmere, Blanchard J said it is presumed that the fair-minded lay observer is intelligent and views matters objectively.18 The lay observer must be taken to be reasonably informed about the workings of our judicial system. However, courts must be careful not to ascribe too much legal knowledge to the lay observer, lest that mean that justice is not both done and seen to be done by a notional representative of the public.19

[35]            Blanchard J also said the lay observer must be taken to understand further matters relating to judicial conduct.20 Relevantly for this case:

(a)Judges are expected to be independent in decision making and have taken a judicial oath to do so.

(b)Judges have an obligation to sit on any cases allocated to them unless there are grounds for recusal. Judges are not entitled to pick and choose their cases, which are randomly allocated.

Paul Davison J’s decision on Mr Deliu’s disclosure application

[36]            In his disclosure application, Mr Deliu sought orders that Hinton J disclose any potential conflict of interest she may have to sit in these proceedings, including but not limited to full details about any relationship that her Honour may have or have had with certain persons associated with the LCDT. Mr Deliu said these orders were

18 At [5].

19     At [5] and [6].

20 At [8].

warranted because Hinton J had failed to disclose her connections to one of the prosecutors and to the members of the LCDT that heard the charges. Those alleged connections included all the connections that Mr Deliu relies on in his recall application.21 But Mr Deliu did not rely, in his disclosure application, on Hinton J having been allegedly “specially assigned” to hear the appeals and judicial review.

[37]            Paul Davison J said that the question for him was whether the court should invite Hinton J to provide disclosure for the reason outlined in Mr Deliu’s application. His Honour said:22

It is  not  necessary  in  this  respect  for  Mr  Deliu  to  adduce  evidence  of a relationship giving rise to a reasonable apprehension of bias (further disclosure would be unnecessary if that threshold were met), but he must demonstrate the existence of reasonable grounds that would warrant the Court making further enquiries of the Judge.

[38]            The threshold that Mr Deliu had to meet in his disclosure application was, as Paul Davison J recognised,23 therefore lower than the threshold required to give rise to a reasonable apprehension of bias.

[39]            Paul Davison J held that Hinton J’s former membership of the LCDT (and its predecessor tribunal) and her professional relationship with Mr Hampton fell well short of reaching the threshold.24 His Honour therefore found that Mr Deliu had not met a threshold that is lower than the threshold that Mr Deliu has to meet in applying to recall Hinton J’s decisions on the ground of apparent bias.

Does the decision of Paul Davison J raise an issue estoppel preventing Mr Deliu from arguing that the circumstances gave rise to a reasonable apprehension of bias?

[40]            An issue estoppel arises when there has been a final judicial decision of the same issue (of fact or law) that a party wishes to raise in a later dispute between the same parties to the prior judicial decision.25  An issue estoppel is usually raised where

21 In his disclosure application, Mr Deliu also relied on some other alleged connections between Hinton J and either members of the LCDT or counsel for the prosecutors. Before me, Mr Deliu abandoned any reliance on those matters in his recall application.

22 Deliu v The National Standards Committee [2022] NZHC 1972 at [34].
23 At [42].

24 At [36] and [42].

25 Shiels v Blakely [1986] 2 NZLR 262 (CA) at 266.

parties are involved in successive proceedings, but it can also be raised where the parties are involved in successive disputes within the same proceeding.26

[41]            A necessary element of an issue estoppel is that the issue raised in the later dispute is the same as the issue decided in the earlier judicial decision. That element is absent here. Paul Davison J had to decide whether Hinton J’s connections to one of the prosecutors and to the members of the LCDT that heard the charges warranted inviting her Honour to make the disclosure sought by Mr Deliu. I have to decide whether those connections together with the manner in which Hinton J was assigned to hear Mr Deliu’s appeals and judicial review gave rise to a reasonable apprehension of bias. These are not the same issues.

Do these circumstances give rise to a reasonable apprehension of bias?

[42]            I deal first with Mr Deliu’s concerns about the manner in which Hinton J was assigned to hear his appeals and judicial review. His first concern is that her Honour was assigned earlier than usual. Mr Deliu says, relying on an article by Dr Butler published in 2003,27 that the usual practice of the court is to assign cases to judges only the week before hearings. He submits that Hinton J was instead assigned “months in advance” to his case. His second concern is that Hinton J was “specially” assigned, by or with the Chief High Court Judge’s assent, rather than randomly assigned. Mr Deliu relies on the minute of Venning J dated 3 February 2017 advising that Hinton J was scheduled to hear Mr Deliu’s appeals.

[43]            These points do not give rise to a reasonable apprehension of bias. While it is common for cases to be assigned to judges the week before hearings, it is not a universal practice, particularly for (as here) a three-day hearing. There is nothing to suggest that Hinton J’s assignment to that hearing was anything but random. Venning J’s minute, issued six weeks (not “months”) prior to the hearing, was in response to Mr Deliu’s request (addressed to Venning J, and in which Mr Deliu referred to and relied on Dr Butler’s article) that he be advised of the assigned judge “at the earliest opportunity … so that I may consider my position”. I consider a fair-minded lay

26     Johnson v Felton [2006] 3 NZLR 475 (CA) at [56].

27     Petra Butler “The Assignment of Cases to Judges” (2003) 1 NZJPIL 83.

observer would not, in these circumstances, reasonably apprehend that the assigned judge would not bring an impartial mind to the hearing. Even Mr Deliu, whose letter to Venning J shows that he was alert to any appearance of bias, did not at the time raise any concern at being told by Venning J, six weeks in advance, who had been assigned to the hearing.

[44]            I now turn to the connections between Hinton J and one of the prosecutors of the disciplinary charges and to the members of the LCDT that heard the charges. The connection to the prosecutor was through Mr Hampton. That connection was from 2003 to 2007 – more than nine years before Hinton J heard Mr Deliu’s appeals and reviews. The connection to the LCDT members was from 2009 – more than seven years before the hearing.

[45]            The fair-minded lay observer is intelligent and views matters objectively. Further, the lay observer is taken to be reasonably informed about the workings of New Zealand’s judicial system. These include that judges of appellate courts regularly sit on appeals against decisions of their former colleagues in lower courts and do so soon after their elevation to the appellate court. Further, the intelligent lay observer would understand that this is the norm in common law jurisdictions.

[46]            That an appellate judge is hearing an appeal from a decision of former colleagues does not give rise to a reasonable apprehension of bias. This is because judges are trained (and take a judicial oath) to decide cases impartially and on the merits.

[47]            Similarly, Hinton J’s connections that arose from her former membership of the LCDT and its predecessor do not give rise to a reasonable apprehension of bias. This is reinforced by the long passage of time that elapsed between her membership of those bodies and the hearing of Mr Deliu’s appeals and judicial review.

Conclusion

[48]            There was no reasonable apprehension of Hinton J being biased. Accordingly, there is no basis for recalling Hinton J’s decisions on the appeals.

Is there some very special reason justice requires recall of Hinton J’s decisions on the judicial review?

Scope of hearing

[49]            Mr Deliu seeks recall of Hinton J’s decisions on his judicial review on the ground that the LCDT acted ultra vires in three ways. The Standards Committees say an issue estoppel arises from Peters J’s decision in Mr Deliu’s separate judicial review proceeding. Alternatively, they say the ultra vires grounds do not justify recalling Hinton J’s decisions on the judicial review application.

[50]            The parties agreed that the hearing would address only whether an issue estoppel arises from Peters J’s judgment. They agreed that if I were to find there was no issue estoppel, a further hearing would be necessary to address the merits of the ultra vires grounds.

The recall jurisdiction: a limit on the “very special reason” category

[51]            Mr Deliu relies on the third category of the Court’s recall jurisdiction: that for some very special reason justice requires that the judgment be recalled. The Court of Appeal in Nottingham v Real Estate Agents Authority said of this category:28

[I]t is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal.

… It does not extend to putting forward further arguments that could have been raised at the earlier hearing but were not.

[52]            It follows that if Mr Deliu could have put forward the ultra vires grounds at the earlier hearing before Hinton J, he is not entitled to have her Honour’s decisions recalled merely so that he can have the opportunity to advance arguments based on those grounds. The issue that then arises is whether Mr Deliu could have advanced those grounds at the hearing before Hinton J.

[53]            This is an issue that Peters J determined when dismissing Mr Deliu’s further application for judicial review of the same LCDT decisions. In deciding whether that application was a Henderson v Henderson abuse of process, Peters J had to decide

28     Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [9] (footnotes omitted).

whether the ultra vires grounds were matters that Mr Deliu could and ought to have raised in his earlier judicial review application before Hinton J.29 Her Honour answered that issue in the affirmative.30

[54]            Peters J’s decision on this issue creates an issue estoppel against Mr Deliu. It was a final judicial decision on that issue, made on the merits, between the same parties. The decision on the issue was one of the matters that it was necessary for her Honour to decide in order to reach her ultimate conclusion that the proceeding before her was an abuse of process.

[55]            In this proceeding, then, I must proceed on the basis that Mr Deliu could and ought to have raised the ultra vires grounds in his earlier judicial review application before Hinton J. It follows that his desire to raise these arguments many years later does not provide some very special reason that justice requires recall.

Result

[56]I decline the recall application.

[57]            The Standards Committees are entitled to costs. If the parties cannot agree the quantum of costs by 2 June 2023, costs memoranda may be filed, and I will resolve costs on the papers. The Standards Committees’ memorandum is to be filed and served by 9 June 2023, Mr Deliu’s by 16 June 2023. Each memorandum is not to exceed three pages (excluding relevant annexures and schedules).

Campbell J

29     Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2023] NZHC 160 at [38].

30     At [39] and [46].