Deliu v New Zealand District Court
[2024] NZHC 1693
•25 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-2934
[2024] NZHC 1693
UNDER the Judicial Review Procedure Act 2016, Part 30 of the 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, writs, bill of rights claims and a petition for declaratory relief
BETWEEN
FRANCISC CATALIN DELIU
Applicant
AND
NEW ZEALAND DISTRICT COURT
First Respondent
THE CROWN
Second Respondent
Hearing: 19 June 2024 Appearances:
Applicant in person (via VMR)
D P Neild for Second Respondent (via VMR)
Judgment:
25 June 2024
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 25 June 2024 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/counsel:
Crown Law, Wellington
Copy to:
Mr F C Deliu
DELIU v NEW ZEALAND DISTRICT COURT [2024] NZHC 1693 [25 June 2024]
[1] This is an application for judicial review filed by Mr Deliu. He currently lives in Florida, United States, and wishes to practise law there. He has passed the Florida State Bar exam but has not yet been licensed to practise because of outstanding criminal charges in New Zealand. Those charges were laid in 2017 (CRI-2017-004-1442: two charges of assault with a weapon) and 2018 (CRI-2018-004-3571: two charges of attempting to pervert the course of justice).
[2] Mr Deliu has never been served with any summons to answer the charges. This is because he departed the jurisdiction after receiving death threats. Despite it now being more than seven and six years respectively since the charges were filed against Mr Deliu, they have not been adjudicated on the merits. He now wants to bring the proceedings to an end. On 31 October 2023,1 Mr Deliu sought a (permanent) stay on the grounds of delay and in the interests of justice (the 2023 stay application).
[3] This proceeding mainly concerns whether the 2023 stay application must be heard on an undefended basis, given that no notice of opposition was filed by the Crown within 10 working days of service in terms of r 2.14 of the Criminal Procedure Rules 2012 (CPR).
[4]The Crown says:
(a)Given that a stay application does not fall within any of the types of applications listed in r 2.12 of the CPR, r 2.14 does not apply and no written notice of opposition was required. That requirement only applies when a party responds to an application “that is required by or under rule 2.12 to be made in writing”.
(b)Alternatively, the extension of time granted by the District Court on 20 February 2024 was appropriate, and the Crown’s memorandum dated 17 November 2023 was sufficient as notice of opposition.
1 This step was taken after a Court of Appeal hearing on 31 October 2023, Mr Deliu says consistent with comments by the Judges in that hearing. That Court of Appeal judgment was issued on 4 March 2024: Deliu v Auckland District Court [2024] NZCA 39, about applications to judicially review earlier decisions in the same two District Court criminal proceedings including (among other things) an earlier stay application made in July 2020.
(c)In any event, the concept of a “formal proof” is not apposite in these circumstances. The 2023 stay application concerns whether a stay is required on the grounds of delay and in the interests of justice, and the Crown wishes to be heard on that and to represent the public interest. There is no entitlement to bar the Crown from being heard in opposition and assisting the Court on an application of this type.
(d)The declaratory relief sought under the New Zealand Bill of Rights Act 1990 (NZBORA) is not available for alleged breaches by the judiciary. In any event, there has been no breach of Mr Deliu’s NZBORA rights.
[5] Mr Deliu also challenges the decisions on 21 December 2023 of Judge Gibson not to recuse himself, and not to hear Mr Deliu’s stay application without hearing from the Crown.
[6] In advance of the hearing, Mr Deliu made an application for me to be recused. At the outset of the hearing on 19 June 2024, I declined that recusal application. I explain the nature of that application and my reasons declining it below.
District Court process
[7] The 2023 stay application is dated 31 October 2023 but was filed and served on Wednesday, 1 November 2023.2 The filing and service email stated the following:
Please find ATTACHED an application; kindly arrange for a teleconference to timetable, e.g., the Crown opposition (if any), supporting evidence, arguments in support, et cetera and to set down hearing date, ta.
[8] On Thursday, 9 November 2023, the Crown prosecutor responded by email to both Mr Deliu and the Court, suggesting “that Mr Deliu and I see if we can agree a timetable for the application that can be jointly presented to the Court”.
[9] On Friday, 10 November 2023, Mr Deliu emailed his proposed timetable to the Crown prosecutor. The timetable that Mr Deliu proposed was as follows:
2 Time differences explain the difference. Mr Deliu’s affidavit dated 29 February 2024, Exhibit C is an email recording that the application was sent at 8.23 pm on 31 October 2023, local time in Florida. At that time, New Zealand was 17 hours ahead of Florida. It is currently 16 hours ahead.
1. Your client’s notice of opposition by next week,
2. My affidavit in support within 5 working days,
3. Your client’s affidavit in support (if any) within 5 working days,
4. My submissions (and any affidavit in reply) within 5 working days,
5. Your client’s submissions within 5 working days,
6. Next available 1 hour hearing allocated,
7. I appear by VMR.
[10] The Crown prosecutor responded 13 minutes later, suggesting amendments to the timetable, namely:
(a)15 working days for each step;
(b)that Mr Deliu’s affidavit (if any) was to be filed an advance of the Crown’s opposition;
(c)the Crown’s affidavit (if any) would then be filed at the same time as the Crown’s opposition;
(d)the Crown did not agree to any affidavit in reply, and suggested that leave would need to be sought for that; and
(e)the Crown doubted whether a one-hour hearing would be sufficient.
[11]Eight minutes later, Mr Deliu emailed the court and said that:
The parties tried but cannot agree the way forward so can you allocate the first available :15 telephone conference so that we may argue the process points? I suggest the parties be directed to file and serve their case management memoranda at least 2 clear working days before the telephone conference …
[12]The prosecutor responded to that email, stating the following:
We doubt that a telephone conference is necessary for timetable directions to be set, even in the absence of agreement. We will file a Memorandum proposing a timetable next week and are content for the matter to be decided on the papers.
[13] Mr Deliu responded saying he wanted to be heard (i.e., in a telephone conference) before the contested issues were adjudicated.
[14] On Wednesday, 15 November 2023, Mr Deliu filed (but did not serve) a document called “Accused’s Ex Partes Motion”. The document stated that the applicant “applies to the Court for an order debarring the Crown from opposing his 31 October 2023 Application to Stay the Proceedings” on the grounds that the Crown had not filed any notice of opposition and therefore was not opposing the application, wanting to be heard on it, or entitled to be heard. The application was made in reliance on r 2.14(1) of the CPR and the Court’s inherent jurisdiction to regulate its own processes. The cover email stated:
The Crown no longer has a right to be heard as it is in default of its obligation under the Rules to file and serve a notice of opposition within 10 working days, see ATTACHED application and proof of service. Accordingly, under
§ 63(1)(b) of the District Court Act 2016, you may now set down the application to stay for an undefended hearing…
[15] On Friday, 17 November 2023, in accordance with their email at [12] above and without knowing about the existence of the “Accused’s Ex Partes Motion”, the Crown filed and served its memorandum. The Crown recorded that it was opposing the stay application, and proposed the following timetable directions leading up to a defended hearing:
(a)The applicant, Mr Deliu, is to file and serve any affidavit in support within 15 working days;
(b)The Crown is to file and serve any affidavit in opposition within 15 working days thereafter;
(c)Mr Deliu’s submissions to follow within 15 working days thereafter;
(d)The Crown’s submissions to follow within 15 working days thereafter; and
(e)A ninety minute hearing be allocated in consultation with Counsel and Mr Deliu for a date thereafter.
[16] In response, Mr Deliu filed a memorandum that same day called “Accused’s ex parte memorandum”. It took the position that the Crown was in default and had “not even bothered itself to beg of the Court for an extension of time”, nor had it provided the requisite explanation for its delay. By reference to Rabobank New Zealand Ltd v Phillips,3 Mr Deliu took the position that “no indulgency is possible”.
[17] On 22 November 2023, Mr Deliu said that he would bring proceedings in the High Court alleging bad faith if he did not receive any response to his requests. After no response was received from the Court, Mr Deliu commenced the present judicial review proceedings on 28 November 2023 (New Zealand time).
[18] On 12 December 2023, Judge Gibson gave the following directions (with the Registry’s email attaching the Crown memorandum dated 17 November 2023):
Memorandum be served on Mr Deliu, His Memorandum in reply with any alternative proposed timetable required to be filed and served 7 days thereafter. Matter to be determined on the papers.
[19] Mr Deliu then filed and served a document called “Accused’s memorandum for Judge Gibson”. The cover page is dated 12 December 2023. In that memorandum he maintained that the stay application should be set down unopposed. He also sought to recuse Judge Gibson. The memorandum set out some background, including reference to a 2018 decision, and two other recusal applications on 10 September 2020 and 12 March 2021. It complained that the direction given that day ignored Mr Deliu’s motion and memorandum seeking to have the stay application set down to be heard unopposed.
[20] On 18 December 2023 and 15 January 2024, Mr Deliu made applications seeking rulings that the Crown’s evidence against him was inadmissible.
[21] On 21 December 2023, Judge Gibson refused the recusal application (the first decision under review), with the email stating:
3 Rabobank New Zealand Ltd v Phillips [2022] NZHC 3390.
Your application dated 12 December matter was referred to HH Judge Gibson and Judge has directed “Recusal application refused. No substantive reasons advanced.”
[22] On the same day, Judge Gibson issued the following direction about stay application process (the second decision under review):
Your application was referred to HH Judge Gibson and Judge has made the following direction “Application refused as per ex parte motion. To be served and dealt with at substantive fixtures.”
[23] On 12 January 2024, 21 January 2024 and 26 January 2024, Mr Deliu corresponded further with the Court seeking the outcomes referred to in his previous applications and correspondence, including proposing timetable directions for an undefended hearing of his 2023 stay application on or after 11 March 2024.
[24] The timetable proposed by Mr Deliu in his 26 January 2024 memorandum was as follows:4
A. Crown to file and serve notice of opposition to all extant applications and any affidavit in support within 5 working days (it indicated back in November 2023 that it would need 15 working days so has had plenty of time in the interim to attend),
B. My affidavit in support within 5 working days,
C. Crown affidavit in support within 5 working days,
D. My evidence in response, if any, and submissions within 5 working days,
E. Crown submissions within 5 working days,
F. My submissions in reply, if any, and submissions within 5 working days,
G. First available 2-hour hearing from 11 March 2024 onwards.
[25] On 20 February 2024, Judge Glubb issued a “Rulings and Directions” decision (the third decision under review).5 He characterised the 2023 stay application as “a notice filed pursuant to r 2.12(2)(i) of the [CPR].”6 Judge Glubb accepted that r 2.14 required the filing and service of a notice of response not later than 10 working
4 With a footnoted proviso: “On the assumption that the Court is somehow still allowing the Crown to oppose, but without prejudice to my not waiving my superior court challenge that it cannot.”
5 R v Deliu [2024] NZDC 3307.
6 At [6].
days after service.7 He observed that the Crown’s memorandum dated 17 November 2023 recording its opposition appeared to have been filed two working days later than the 10 working day deadline.8 Despite there being no express application for an extension of time, Judge Glubb treated the memorandum as seeking an extension, which he granted retrospectively, on the grounds that this was consistent with proper oversight of the proceedings and the interests of justice.9 Judge Glubb declined the application for a formal proof hearing on the grounds it would be contrary to the interests of justice,10 and adopted the Crown’s proposed timetable, making directions as follows:11
(a)The Applicant is to file and serve any affidavit in support of the application within 15 working days of the date of these directions.
(b)The Crown is to file and serve any affidavit in opposition within 15 working days thereafter.
(c)The Applicant is to file and serve submissions in support of the application within 15 working days thereafter.
(d)The Crown is to file and serve submissions in opposition to the application within 15 working days thereafter.
[26] Mr Deliu filed and served a memorandum dated 20 February 2024 with the District Court objecting to the above.
[27] Since then, I understand that the parties have broadly complied with the timetable set on 20 February 2024. A one-day hearing is scheduled to take place on Thursday, 27 June 2024.
High Court process
[28] As mentioned, Mr Deliu commenced this proceeding on 28 November 2023. On 26 January 2024, he filed an interlocutory application seeking a mandatory injunction compelling the District Court to set down his extant applications.
7 At [10].
8 At [12].
9 At [13].
10 At [17].
11 At [20].
[29] On 21 February 2024, timetable orders were made for the injunction application to be heard on 21 March 2024.
[30] In a memorandum dated 22 February 2024, Mr Deliu advised that he no longer pursued that injunctive relief. The 21 March 2024 hearing of the application for injunctive relief was accordingly vacated.
Causes of action
[31] In para 25 of the amended statement of claim, the applicant makes the following criticisms of the third decision under review and says it includes the following errors in law or fact:
(a)describing Mr Deliu as a “fugitive”;
(b)treating the Crown’s memorandum dated 17 November 2023 as a notice in opposition;
(c)enlarging the time for the Crown to oppose the stay application when the factual and/or legal requirements were not met; and
(d)failing to set down the stay application for a hearing by formal proof.
[32] Mr Deliu contends that the above errors breached natural justice, breached ss 25 and 27 of NZBORA and/or the Magna Carta ch 29 and represented a partisan rubber-stamping of the Crown position while ignoring Mr Deliu’s proposal.
[33]Mr Deliu states the following in respect of the second decision under review:
The second decision is incoherent and so judicially incompetent or,
alternatively, anyway requires Deliu to do that which he has already done, while not requiring the Crown to do that which it was obliged to do, and/or in any event fails to appropriately, if at all, progress the stay application to any, much less a proper, resolution in spite of its earlier indication that it would and so is irrational.
[34] The second decision under review is criticised as incoherent and judicially incompetent or, alternatively, irrational. Mr Deliu’s position is that:
(a)The Court allowing the Crown to be heard on the stay application contravenes Mr Deliu’s rights.
(b)The Court’s failure to progress the evidential application and/or set down the stay application breaches Mr Deliu’s rights.
(c)The Crown’s failure to file a notice of opposition to the stay application precludes it from doing so later. Mr Deliu relies on “laches, estoppel, or an innominate ground”.
[35] Mr Deliu also challenges the first decision under review for failing to give reasons or, in the alternative, on the grounds that it is unreasonable and amounts to an error in law that no reasonable decision maker would make.
Legal principles
Judicial review
[36] Judicial review is the exercise of the Court’s inherent jurisdiction to rule on the legality of public acts.12 The Supreme Court has said:13
Judicial review is a supervisory jurisdiction which enables the courts to ensure that public powers are exercised lawfully. In principle, all exercises of public power are reviewable, whether the relevant power is derived from statute, the prerogative or any other source. The courts acknowledge limits, however. These limits are reflected primarily in the notions that the case must involve the exercise of a public power, that even if the court has jurisdiction, the exercise of power must be one that is appropriate for review and that relief is, in any event, discretionary.
12 D v Family Court at Manukau [2021] NZHC 2326 at [9]: The High Court’s inherent jurisdiction derives from the original constituent instruments of the Supreme Court (now the High Court) (see the Supreme Court Ordinances of 1841 and 1844), which exercised the jurisdiction of the common law and equity Courts in England. Section 12 of the Senior Courts Act 2016 carries over and preserves all of the jurisdiction of the High Court provided by the earlier instruments.
13 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1].
[37] For reasons of policy and principle, judicial review has only a limited role in the context of criminal pre-trial matters.14
The need to avoid collateral challenges interrupting the conduct of criminal prosecutions means that it is necessary for there to be compelling reasons to step outside the statutory framework within which criminal proceedings are designed to be conducted, which of course provides for “carefully crafted appeal rights”.
[38] The starting point is that the Criminal Procedure Act 2011 (CPA) does not completely oust the judicial review jurisdiction of the High Court; pre-trial decisions of the District Court remain amenable to judicial review and the existence of appeal rights does not preclude judicial review.15 But the CPA does narrow the scope for judicial review: the power must be used sparingly, judicial review is appropriate “only in rare cases” where “the intervention of the High Court is imperative”.16
[39] It is not the High Court’s role on judicial review to intervene in the merits of a decision, particularly one that involves the exercise of a discretion made within the correct statutory framework.17
Imperial legislation
[40] There are still in force in New Zealand several ancient statutes that guarantee a broad entitlement to due process.18
(a)The Magna Carta 1297 (Imp), c 29 guarantees that no one shall be imprisoned “but by lawful judgment of his peers or by the law of the land”.19
14 Deliu v Auckland District Court, above n 1, at [43] (footnote omitted), referencing DGN v Auckland District Court [2015] NZHC 3338; [2018] NZAR 137; aff’d [2017] NZCA 135; [2018] NZAR 137; Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC); Angus v District Court [2017] NZHC 2879; [2018] NZAR 1804; Bennett v District Court of New Zealand [2020] NZHC 1730; and Gifford v District Court of New Zealand [2022] NZHC 851; [2022] NZAR 50.
15 Gifford v District Court of New Zealand, above n 14, at [74] referencing Judicial Review Procedure Act 2016, s 16(3).
16 At [74], referencing Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 136.
17 Deliu v Auckland District Court, above n 1, at [39].
18 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [3.4.33]
19 Following a recommendation by the New Zealand Law Commission in 1987, the Imperial Laws Application Act 1988 identifies particular imperial enactments and provisions that remain part of New Zealand law. By s 3(1) and sch 1, only c 29 of the Magna Carta 1297 was retained as part of the law of New Zealand.
(b)The Criminal and Civil Justice Statutes of 1351 and 1354 (Imp) and the Observance of Due Process of Law Statute 1368 (Imp) also guarantee no imprisonment without due process.
[41] Such enactments are subject to s 15 of the Constitution Act 1986, which provides that the Parliament of New Zealand continues to have full power to make laws, which means that Magna Carta may be superseded by subsequent New Zealand legislation.20
New Zealand Bill of Rights Act
[42]Mr Deliu relies on ss 25 and 27 of NZBORA. They provide as follows:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a)the right to a fair and public hearing by an independent and impartial court:
(b)the right to be tried without undue delay:
(c)the right to be presumed innocent until proved guilty according to law:
(d)the right not to be compelled to be a witness or to confess guilt:
(e)the right to be present at the trial and to present a defence:
(f)the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
(g)the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:
(h)the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:
20 David Clark “In a Constitutional State: Magna Carta in New Zealand 1840-2015” (2015) 21 Canterbury Law Review 44 at 53, referencing Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154 at 157, West v Martin [2001] NZAR 49 (CA) at [26]; Ellis v R [2011] NZCA 90 at [70]; Matahaere v Police [2012] NZHC 2436 at [13]; and Malster v Chief Executive of the Ministry of Social Development [2014] NZHC 1368 at [36].
(i)the right, in the case of a child, to be dealt with in a manner that takes account of the child’s age.
27 Right to justice
(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
(2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
(3)Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
[43]In Attorney-General v Chapman, the Supreme Court held (by a majority) that the Court did not have jurisdiction to hear and determine a claim for public law compensation for alleged breaches by the judiciary of ss 25 and 27 of the NZBORA.21 The public policy reasons which supported personal judicial immunity also justified confining Crown liability for governmental breaches of the Bill of Rights Act to actions of the executive branch.22 The public law cause of action was not appropriately extended to the judicial branch in view of the desirability of finality in litigation and the importance of judicial immunity, which promoted and protected judicial independence.23
[44]In these proceedings Mr Deliu seeks declarations only, for the alleged breaches of the NZBORA. In Siemer v Attorney-General, Toogood J held that, while not acting as a complete bar, the Supreme Court’s principles in Chapman have equal application to NZBORA declaratory relief in respect of judicial acts or omissions.24 On the other hand, orders of that type were made in one instance by Campbell J.25
21 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.
22 At [204] per McGrath and William Young JJ.
23 At [205] per McGrath and William Young JJ.
24 Siemer v Attorney-General [2013] NZHC 1111 at [50]. See also Dunstan v Manukau District Court [2023] NZHC 2742 at [17].
25 Deliu v The District Court at Auckland [2022] NZHC 3389 at [115] and [118]. He distinguished two cases provided post-hearing as involving orders sought against the Attorney-General.
[45]Mr Deliu takes the position that any affirmative defence that declaratory relief is unavailable must be pleaded. The arguments based on Siemer and Chapman were not pleaded.
Timetables and extensions
[46] Mr Deliu relies on the following principles from Rabobank New Zealand Ltd v Phillips:26
[15]The power to extend time is discretionary. In order to justify the exercise of this discretion, the Court will require a proper foundation to be laid:27
The rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a timetable for the conduct of litigation.
[16]To file a notice of opposition out of time, a defendant/respondent needs to:28
(a) show that it has an arguable defence to the claim;
(b) provide an explanation for the delay in filing; and
(c) demonstrate that any prejudice the defendant/respondent might suffer if leave were not granted would outweigh any prejudice that other parties might suffer were the Court to grant an extension of time.
[47] Rabobank concerned an application to set aside a statutory demand issued against it by Mr Phillips. Mr Phillips’ main reason for not filing his opposition in time was an assertion that he did not receive a copy of Rabobank’s affidavit in support when the application was served on him.29 The Court was prepared to accept that as a valid
26 Rabobank New Zealand Ltd v Phillips, above n 3, at [15]–[16] (footnotes omitted).
27 Day v Ost (No 2) [1974] 1 NZLR 714 (SC) at 717, applying Ratnam v Cumarasamy [1965] 1 WLR 8 (PC). This has subsequently been adopted by the High Court in Spicers Paper (NZ) Ltd v BPK & GA Buckley Ltd (1993) 6 PRNZ 16 (HC).
28 See Kupe Trustee Company Ltd v My Trustee Company (Beach) Ltd [2022] NZHC 2700 at [6].
29 Rabobank New Zealand Ltd v Phillips, above n 3, at [20].
explanation for his delay in filing any opposition.30 However, examining the merits of what he had filed, Mr Phillips could not establish an arguable defence to the claim.31
[48] The test applied in Rabobank from Kupe Trustee Company Ltd is for civil cases in which the other party has not taken any steps in the proceeding, and then applies to file out of time and participate in the proceeding.
[49] The circumstances are different in a criminal process when both parties are already fully engaged, and the defendant has had disclosure and witness statements. The CPA introduced a new case management process, with a focus on requiring the prosecution and defence to engage in discussions outside the courtroom and ensure that hearings only take place in front of a judge if there is something positive for the judge to do.32 Both the CPA provisions and the rules retain flexibility, with the overriding question being what is “in the interests of justice”. For example, under s 58 of the CPA, if the court considers that it will facilitate resolution of the proceeding, or it is otherwise in the interests of justice, the court may authorise or accept a departure from any of the requirements of ss 54–57 or give any other directions in relation to the management of the case. Such a direction may be given on the court’s own motion, or on the application of the prosecutor or the defendant.
Recusal
[50] The relevant principles for recusal were settled by the Supreme Court in the leading decision of Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.33 Those principles are expressly referred to and reflected in the High Court Recusal Guidelines.34
30 At [21].
31 At [23], [30] and [33].
32 Matthew Downs (ed) Adams on Criminal Law – Criminal Procedure (online looseleaf ed, Thomson Reuters) at [CPAIntro.03(4)(c)].
33 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 [Saxmere (No 1)] at [3]–[4], [20] per Blanchard J, [81] and [86] per McGrath J; recalled on the merits by Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76.
34 Chief High Court Judge “High Court Recusal Guidelines” (12 June 2017) at [1.4] and n 1.
[51] A Judge should recuse himself or herself on the basis of apparent bias if a fair-minded and properly informed lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question which the Judge is to decide.35
[52]This involves two stages:36
(a)First, the Judge must identify the circumstances that may lead the Judge to decide a case other than on its merits.
(b)Second, the party alleging apparent bias must also articulate a logical connection between the matter complained of and the feared deviation from impartiality.
[53] The question of whether a Judge is impartial is “one of possibility (real and not remote), rather than probability”.37
[54] Judges should not recuse themselves without sufficient cause.38 A Judge exercising his or her judicial functions does not thereby become ineligible to hear the matter.39
[55] In Deliu v Deputy Legal Complaints Review Officer, Woolford J held that the omission to provide reasons for declining a recusal application was a reviewable error.40
The right to reasons is beyond dispute. Where a body is acting in a judicial or quasi-judicial role, the provision of reasons can be seen as an aspect of the principle of open justice. The giving of reasons is important because if reasons are not given it is not possible for a Court on review to know whether there has been an error or mistake by the decision-maker and is instead obliged to guess or infer.
35 Saxmere (No 1), above n 33, at [89]; and High Court Recusal Guidelines, above n 34, at [1.2].
36 Saxmere (No 1), above n 33, at [4]; and High Court Recusal Guidelines, above n 34, at [1.4].
37 Saxmere (No 1), above n 33, at [4] and [81]; and High Court Recusal Guidelines, above n 34, at [1.3].
38 A (SC 106/2015) v R [2016] NZSC 31 at [16], cited in Rowell v District Court at Blenheim [2018] NZHC 1863, [2018] NZAR 1393 at [21].
39 Deliu v Auckland District Court, above n 1, at [43].
40 Deliu v Deputy Legal Complaints Review Officer [2023] NZHC 956 at [7] (footnote omitted).
[56] In Lewis v Wilson & Horton Ltd, the Court of Appeal noted there is no invariable rule that courts must give reasons for their decisions.41 The provision of reasons by a Judge is generally desirable as an important part of openness in the administration of justice,42 to enable assessment by a court exercising supervisory jurisdiction,43 and as a judicial discipline to protect against arbitrariness and inconsistent delivery of justice.44 The general rule may yield to the extent necessary to prevent the interests of justice being frustrated.
My recusal application
[57] Shortly before the hearing, Mr Deliu applied for me to recuse myself because of a complaint he made about me to the New Zealand Law Society on 29 September 2015. The complaint was about whether or not I was present at a meeting of the ADLS Council on 14 October 2008. I was an elected General Council member and was due to attend that Council meeting, but I gave my apology that day because of work commitments. The minutes recorded my apology, but also (in error) noted my name as an attendee. Mr Deliu attended the meeting, at which an altercation took place. That in turn led to disciplinary proceedings for which he wanted to identify witnesses. When contacted on his behalf for that purpose on 23 September 2015, I explained I had not attended the meeting and was not a witness. Subsequently, Mr Deliu’s complaint letter dated 29 September 2015 was provided to me, along with the minutes containing the discrepancy and a letter from NZLS dated 29 January 2009 listing those present (presumably based on the minutes). I responded with proof of my apology email to ADLS and a document substantiating my work commitments that day. The complaint was dismissed as a result, with no action taken.
[58] Mr Deliu acknowledged in the hearing that I did not attend the Council meeting on 14 October 2008. However, he says that I would justifiably feel resentful that he had made the complaint, so a fair-minded observer might reasonably apprehend that I might not bring an impartial mind to the questions in this judicial review hearing.
41 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75].
42 At [76].
43 At [80].
44 At [82].
[59]Adopting the two-stage approach in Saxmere:45
(a)I do not believe that the above circumstances could lead any fair-minded, fully informed observer to have a reasonable apprehension that I may not bring an impartial mind to this proceeding. As Mr Deliu emphasises, the discrepancies in the minutes and the NZLS letter gave Mr Deliu a genuine reason to wonder whether I was present at the meeting. His concerns on that score were simply dealt with more than eight years ago by me writing a letter with supporting evidence.
(b)There is no logical connection between the matter complained of, and a feared deviation from impartiality. The events that happened in the Council meeting in 2008 are entirely unrelated to the subject matter of this judicial review hearing.
[60] Mr Deliu referred to other instances where judges have recused themselves in circumstances of complaints made against them to the New Zealand Law Society or the Judicial Conduct Commissioner. Each such recusal will depend on the detail of the factual circumstances involved, not the mere fact that a complaint was made.46 In my case, the “complaint” was simply the initiating letter to ascertain the truth about a verifiable fact. I expect the other instances to which he refers were not as narrow and quickly resolved, with no ongoing difference of views.
[61] For the above reasons, I declined the recusal application. I have an obligation to sit on this case allocated to me, and no valid grounds for recusal exist.
Analysis
[62] Rule 2.12 of the CPR requires certain applications to be made by filing a “notice of application” in writing. The list contained in r 2.12(2)(a)–(p) does not refer to an application for stay. It does refer to an application under s 147 of the CPA for the dismissal of a charge.47
45 See [52] above.
46 Slavich v Attorney-General [2013] NZSC 130 at [6].
47 Criminal Procedure Rules 2012, r 2.12(2)(i).
[63] For applications falling within r 2.12(2), the requirements are set out in r 2.13, namely that the notice:
(a)states the particulars of the applicant; and
(b)states the order or direction being sought; and
(c)states the grounds for making the application; and
(d)refers to any provision authorising the order or direction being sought; and
(e)includes the evidence the applicant relies on, unless the court directs that the evidence be filed separately, or identifies the evidence the applicant relies on if already filed; and
(f)states whether the application and any document attached to it is the original of the application or other document or is an amended version of the original (in which case, the version must be identified); and
(g)confirms whether the applicant requests an oral hearing to determine the application and, if so, includes the applicant’s estimate of the length of the hearing.
[64] Rule 2.14 provides for how a party responds to an application under r 2.12. A notice of response is required not later than 10 working days after the date of service of the notice of application.48 It must state whether the responding party consents or opposes.49 A notice of response indicating opposition to an application must also:50
(a)state the particulars of the respondent; and
(b)state the grounds for opposing the application; and
(c)include the evidence the respondent relies on, unless the court directs that the evidence be filed separately, or identify the evidence the respondent relies on if already filed; and
(d)state whether the response and any document attached to it is the original of the response or other document or is an amended version of the original (in which case, the version must be identified); and
(e)confirm whether the respondent requests an oral hearing to determine the application and, if so, include the respondent’s estimate of the length of the hearing.
48 Rule 2.14(1).
49 Rule 2.14(2).
50 Rule 2.14(3).
[65] At the hearing and in memoranda filed afterwards, I was referred to numerous cases about the District Court’s implied power to grant a stay (for example, for delay or abuse of process).51
(a)In Department of Social Welfare v Stewart, the issue was whether the District Court had an inherent jurisdiction to dismiss criminal charges on the grounds of delay. It did, because it had inherent powers to regulate its own procedures so as to act effectively within its jurisdiction and to prevent an abuse of process. These powers include the right to do what is necessary to enable an inferior court to exercise the functions conferred on it by statute on the one hand and the duty to see that there is no abuse of process.52 Accordingly, the District Court has the power “to dismiss or permanently stay a prosecution for abuse of process”.53
(b)In Lyttle v R, the Court of Appeal refers to “the discretionary decision to stay a proceeding or dismiss the charges under s 147 of the CPA”.54 That decision also referred to the wording of s 296 of the CPA (when enacted), which allowed an appeal on a question of law (with leave) for “the dismissal of the charge under section 147, or a stay of prosecution”.55 The Court held that the jurisdiction under s 296 was only likely to apply when the charge had been thereby determined.56 The stays granted in that particular case did not have the effect of determining the proceeding, and were therefore not amenable to an appeal. A stay had been granted because of inadequate disclosure, which was remediable. As an editorial note in the judgment records, the defendant was found guilty in a subsequent trial.
51 Department of Social Welfare v Stewart [1990] 1 NZLR 697 (HC); Fox v Attorney-General [2002] 3 NZLR 62 (CA); H (CA427/2009) v Auckland District Court [2010] NZCA 178, [2010] NZAR 397; and Lyttle v R [2019] NZCA 329, [2019] 3 NZLR 636.
52 Department of Social Welfare v Stewart, above n 51, at 702, referencing McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276 and 706–708.
53 At 708 and 713.
54 Lyttle v R, above n 51, at [23].
55 At [26], referencing Criminal Procedure Act 2011, s 296(3)(b).
56 At [32] and [35].
(c)There are numerous decisions in which reference has been made to the ability to apply for a stay or dismissal of the charges under s 147 of the CPA.57 In these authorities, the reference to stay or dismissal is disjunctive, using the word “or”. There continues to be a distinction between the two, because the nature of a stay covers a much wider range of circumstances, from a temporary halt of the process through to a permanent stay with an effect like a dismissal. It follows that not all applications for a stay will fall within the scope of s 147, or the requirement in r 2.12 for the application to be made in writing. Even for a permanent stay, other differences are that the proceeding remains in existence but with no steps permitted, whereas a dismissal is a substantive determination that brings the existence of the current proceeding to an end (but new proceedings might be allowed in some circumstances, such as new evidence).
[66] The scope of s 147 of the CPA is wide and not restricted to the three specific circumstances listed in s 147(4):
147 Dismissal of charge generally
(1) The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
(2) The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.
(3) A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.
(4) Without limiting subsection (1), the court may dismiss a charge if—
(a)the prosecutor has not offered evidence at trial; or
(b)in relation to a charge for which the trial procedure is the Judge- alone procedure, the court is satisfied that there is no case to answer; or
57 Buttle v District Court at Auckland [2023] NZHC 2279 at [52] and [86]; Angus v District Court, above n 14, at [3]; Rider v District Court [2021] NZHC 1967 at [38].
(c)in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.
(5) A decision to dismiss a charge must be given in open court.
(6) If a charge is dismissed under this section the defendant is deemed to be acquitted on that charge.
(7) Nothing in this section affects the power of the court to convict and discharge any person.
[67] Section 147 has been specifically acknowledged as a valid vehicle through which to challenge a criminal proceeding for abuse of process, including on the grounds of delay:58
… s 147 authorises a court to dismiss a charge at any time. That section is generally used as the vehicle through which to challenge sufficiency of evidence (including credibility arguments) but is not limited to that. There is no reason why an abuse of process argument cannot be advanced under it, and that is so whether the alleged abuse is sourced in delay, or misconduct, or because there is no useful purpose to the proceeding.
[68] In fact the Court of Appeal has indicated that the usual procedure for an application for a (permanent) stay on the grounds of delay would be to make an application under s 147 of the CPA:59
In this case a stay on the ground of delay could have been sought under s 147 of the Criminal Procedure Act.
… But, as discussed, the real basis on which the stay was sought was the delay in coming to trial. That did not require the District Court Judge’s decision to be impugned. It simply required consideration of whether the overall delay (which was attributable to a variety of causes) had led to sufficient prejudice to take the extreme step of staying the proceeding. It is apparent from the outcome in the High Court that the position would not have been any different or better had the application been made in the usual way under s 147.
[69] The principles for determining an application to stay criminal proceedings on the grounds of delay are as follows:60
58 DGN v Auckland District Court, above n 14, at [30], referencing Bruce Robertson (ed) Adams on Criminal Law, (loose leaf ed, Thomson Reuters) at [CPA147].
59 S (CA199/20) v District Court at Manukau [2021] NZCA 163 at [35]–[36].
60 CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [32].
(a)Delay between offending and prosecution does not erase criminal liability and the adoption of limitation periods is for Parliament and not the courts. There is no scope for a presumption that after a particular time memories are too unreliable for the purposes of a criminal trial.
(b)The adequacy or otherwise of the explanation for delay may be relevant to credibility but perceived inadequacy of such explanation of itself is not a ground for a stay, at least in the case of serious crime.
(c)A judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial judge must take to mitigate the risk of prejudice, there cannot be a fair trial.
(d)The exercise does not turn on whether the Judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice (for instance, that but for the delay there would have been identifiable evidence which would have assisted the defendant). Rather what is required is a judicial evaluation based on assessments of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay.
(e)Material to such assessments will be the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in the defendant’s physical or mental health (with consequent impact on ability to mount a defence), indeterminacy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case.
(f)While a defendant facing serious charges will usually have to be able to point to tangible delay-related prejudice, a combination of a very lengthy delay and a weak Crown case may justify a stay.
(g)Judges must approach stay applications on the basis that an evaluative assessment is required of the facts of the case at hand without any presupposition as to what the result should be.
[70] In this case, I accept that Mr Deliu probably intended to apply for a permanent stay, even if he did not say so in the document.61 This is supported by facts external to the application itself, that he wants to resolve the criminal charges so that he is able to practise as a lawyer in Florida. Therefore, his application should have been brought under s 147. If so, then compliance with r 2.12 was required.62
61 In the hearing, he said this was evident because his grounds of delay would not go away or reduce (that passage of time will never be reversed).
62 Criminal Procedure Rules, r 2.12(2)(i).
[71]The full substantive text of the 2023 stay application is set out below:
The applicant, Doctor F C Deliu, will, on a date and time to be named later, apply to the Court for orders that the proceedings numbered CRI-2017-004-1442 and CRI-2018-004-3571 (or 4496, as the case may be) be stayed and/or for such other relief as deemed fit.
The grounds are that I have never been served with the charges in CRI-2018-004-3571 (or 4496), cannot get a fair trial in either proceeding due to delay and it is otherwise in the interests of justice that the charges be stayed.
This application is made in reliance on § 25 (a), (b), (d) & (f) and 27 (1) of the New Zealand Bill of Rights Act 1990, CT v R [2014] NZSC 155, Deliu v National Standards Committee 1 of the New Zealand Law Society [2021] NZHC 1177 at ¶ [56] esp and the inherent jurisdiction to do justice.
[72]In terms of the requirements of r 2.13:
(a)Regarding the order or direction being sought,63 and any provision authorising such order or direction,64 it does not say that the relief sought is permanent or equivalent to a dismissal, nor that it is sought under s 147 of the CPA. If anything, the express reliance on Deliu v National Standards Committee 1 of the New Zealand Law Society65 might imply the suggested relief was a conditional stay rather than dismissal. In that case, a stay was granted with leave reserved to the relevant standards committee and the New Zealand Law Society to apply to lift or vary the stay if circumstances going to Mr Deliu’s conduct as a lawyer, or his future as a lawyer, changed.66
(b)Regarding the grounds,67 the details are remarkably brief and conclusory, especially when compared with the relevant principles set out in [69] above.
63 Rule 2.13(b).
64 Rule 2.13(d).
65 Deliu v National Standards Committee 1 of the New Zealand Law Society [2021] NZHC 1177.
66 At [67].
67 Criminal Procedure Rules, r 2.13(c).
(c)In terms of the evidence the applicant included and relied on,68 there was none. Arguably his cover email indicated his intention to seek a retrospective direction to address this.
(d)It does not confirm whether the applicant requests an oral hearing, nor does it include the applicant’s estimated length of hearing.69
[73] In circumstances where the 2023 stay application departed from the requirements of rr 2.12 and 2.13 of the CPR in the above respects, I accept the Crown’s submission that there was no obligation to file a notice of opposition under r 2.14 by the time the Crown’s memorandum was filed on 17 November 2023. Among other things, the Crown knew that Mr Deliu intended to rely on evidence that had not been included despite r 2.13(e).70 Unsurprisingly, a pragmatic approach was taken by the Crown (and ultimately the Court) to progress the application with a suitable timetable that would address all outstanding issues.
[74] Even if r 2.14 did apply, despite the r 2.13 non-compliance, to require a notice of opposition within 10 working days (i.e., by 15 November 2023), then I find that the extension of time granted by the District Court on 20 February 2024, and treating the 17 November 2023 memorandum as sufficient, was entirely appropriate and within the Court’s lawful powers, in the interests of justice.
(a)By the time Mr Deliu filed his “Accused’s Ex Partes Motion” on 15 November 2023, I find that Mr Deliu was in no doubt that the Crown would be opposing the 2023 stay application, and the Crown reasonably assumed that they had until 17 November 2023 (the end of that week) to file their memorandum.71
68 Rule 2.13(e).
69 Rule 2.13(g).
70 For that reason, I find the Crown’s position entirely reasonable that this step would need to be taken before opposition documents could be filed — see [10] and [47] above.
71 On 10 November 2023, he had proposed that the Crown should have until the following week to file its notice of opposition, and the proposal they each file competing timetable memoranda and then attend a court telephone conference did not indicate that this would already be too late — see [9]–[13] above.
(b)This was the process that been advised to the Court,72 which Mr Deliu did not object to (other than saying he wanted to be heard by teleconference on other specific issues).73 In fact his initial offer (not copied to the Court) was for the Crown to file its notice of opposition during the week ending 17 November 202374 — at no stage did he contend it was required by 15 November 2023 regardless. Equally the Crown was entirely justified by r 2.13(e) to expect to receive Mr Deliu’s evidence before any notice of opposition could be required,75 absent Court directions.
(c)In the above context, including the email correspondence with the Court about the Crown’s intention to file a memorandum by 17 November 2023, I do not accept that it was incumbent on the Crown to “beg of the Court for an extension of time”76 or expressly request an extension of time with an explanation of delay. The Court already had sufficient information about the intention for memoranda to be filed. The District Court is entitled to give its own directions, including permitting adjustments to the requirements of rr 2.13 and 2.14 and extending deadlines. Such directions can be given on the Court’s own motion.77
(d)As at 17 November 2023, I accept that any Crown opposition document could only engage at a level reflecting the detail provided in the application. It is a “response” document by nature. In circumstances where no evidence was relied on, the only grounds given were that he “cannot get a fair trial in either proceeding due to delay and it is otherwise in the interests of justice that the charges be stayed”. The Crown’s memorandum recording its opposition was sufficient to
72 See [12] above.
73 See [13] above.
74 See [9] above.
75 See [10] and [47] above.
76 See 0 above.
77 See [49] above.
respond at that same level of detail, particularly when the defendant already had the Crown’s disclosure.
[75] In any event, I accept the Crown’s submissions that a concept of a “formal proof” is not apposite in these circumstances. The 2023 stay application concerns whether a stay is required on the grounds of delay and in the interests of justice. Far from the position where one party has taken no steps, in this case the Crown has provided disclosure of its evidence and it remains the prosecutor actively engaged. The Crown is the appropriate contradictor to ensure that the Court has the necessary information before it to assess the interests of justice issues,78 including from the perspective of the public interest.
[76] There is no natural justice entitlement to bar the Crown from being heard on an application for a permanent stay. Nor are any Magna Carta or imperial enactment rights infringed by hearing from both parties on such an application. On the basis that the parties have now complied with the timetable,79 Mr Deliu has had proper notice of the Crown’s detailed position on the issues for determination in the 2023 stay application (including full written submissions). As referred to below, much of the delay in hearing the 2023 stay application has been caused by Mr Deliu seeking to bar the Crown from participating. I understand that a hearing day has been allocated for 27 June 2024. Access to justice by the hearing of that application has not been denied. Accordingly, I find no breach of s 27 of the NZBORA.
[77] Mr Deliu alleges breaches of the s 25(a) NZBORA right to fair hearings by an impartial court. I address the recusal applications separately and find there have been no such breaches preventing a fair hearing of the applications.
[78] Mr Deliu complains that the 20 February 2024 decision was a rubber-stamping of the Crown’s proposed timetable. I do not accept there is any factual basis for this allegation.
78 See [69] above.
79 See [25] above.
(a)The main complaint is that this rejected the “formal proof” alternative, but, as outlined above, I do not accept that was ever appropriate as a matter of law, or on the facts.
(b)Up until 26 January 2024, delay was caused by Mr Deliu seeking to insist on a timetable and hearing that excluded the Crown.80 Until Mr Deliu’s evidence was filed and served, the next steps could not be progressed.
(c)Mr Deliu’s 26 January 2024 proposed timetable sought to include the evidence applications. The orthodox position would be that disputed evidence issues need to be addressed only if the charges proceed to trial. For jury trials, subss 101(1) and (2) of the CPA provide for the party seeking to rely on evidence that will be challenged on admissibility grounds to apply (if they wish) for a pre-trial order to the effect that the evidence is admissible. On the other hand, the party seeking to rely on the evidence can choose not to lead that evidence, or otherwise address the issues at trial if they arise.81 Normally a stay would prevent any further steps being taken in the proceeding, including the determination of disputed admissibility issues. Accordingly, hearing the 2023 stay application first is more logical, and consistent with the interests of justice, including considerations of cost. Any decision of the District Court to proceed on that basis would be entirely lawful.
(d)Otherwise, the difference was shorter time frames (five working days rather than 15 working days), which becomes an unnecessary constraint if there would still remain a large gap before the first available hearing date.
80 See [23] above.
81 R v Manuel [2017] NZHC 2461 at [4].
[79] I accept Mr Deliu’s criticism of the reference in Judge Glubb’s decision to Mr Deliu being a “fugitive from justice”.82 That characterisation is incorrect. As held by the Court of Appeal:83
[35] … in effect, Mr Deliu could not properly be said to be a fugitive from justice. We agree.
[36] The assertion that Mr Deliu is a fugitive from justice is inconsistent with the factual background. …
[39] … Mr Deliu is not, on the materials before us, a fugitive seeking to avoid the justice system.
[80] However, I do not consider that any relief is necessary or appropriate to address the above error. The Court of Appeal authority already states the correct position. Those words used within the judgment are not a reviewable “decision”, and I do not accept that it was material to the outcome, namely the determination that a two-day extension would be granted for the Crown’s opposition, the acceptance of the Crown’s memorandum of 17 November 2023 as satisfying that requirement and setting the timetable for a defended hearing.
[81] Given my assessment of the issues arising with the third decision under review, I do not consider that there are any material issues requiring determination or relief in respect of the second decision under review of Judge Gibson on 21 December 2023. His assessment of the “Accused’s Ex Parte Motion” was superseded by Judge Glubb’s decision on 20 February 2024. To the extent it remains relevant, I interpret the minute as saying that the ex parte motion would not be dealt with on an ex parte basis (which in my view is entirely correct — it was not appropriate for Mr Deliu to have filed the “Accused’s Ex Parte Motion” without serving the Crown). Rather, that application was to be served, and disputed issues would have to be dealt with at substantive fixtures. In any event, in my view this falls squarely within the category of pre-trial case management that does not call for High Court supervisory intervention.
82 R v Deliu, above n 5, at [5].
83 Deliu v Auckland District Court, above n 1.
[82] In terms of the first decision under review of Judge Gibson on 21 December 2023, Judge Gibson declined the recusal application and stated, “No substantive reasons advanced”. That explanation does not engage with the content of “Accused’s memorandum for Judge Gibson” dated 12 December 2023. In general, reasons should be given for declining a recusal application, and this should respond to the grounds raised.84 I have considered whether to remit the recusal application to Judge Gibson for him to reconsider and state reasons that engage with the issues set out in the “Accused’s memorandum for Judge Gibson” dated 12 December 2023. However, my assessment is that nothing material would be achieved by that retrospectively. The substantive decision on the application to proceed by formal proof was made by Judge Glubb on 20 February 2024. I do not understand there to be any pending hearing before Judge Gibson requiring his recusal to be reassessed.
Result
[83]The application for my recusal was declined.
[84]The application for judicial review is dismissed.
[85] If the parties cannot agree costs, the respondents may file their memoranda within 15 working days, and Mr Deliu may file his memorandum 15 working days later. I will then determine costs issues on the papers (including the residual issues from the withdrawn injunction application on which written submissions have already been filed and served).
O’Gorman J
84 See [55]–[56] above.
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