Deliu v Thomas

[2022] NZHC 2358

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-454

[2022] NZHC 2358

UNDER

the Judicial Review Procedure Act 2016, Part 30 High Court Rules 2016, New
Zealand Bill of Rights Act 1990 and Declaratory Judgments Act 1908

IN THE MATTER OF

proceedings moving for an application for judicial review, a writ, a bill of rights claim and a petition for declaratory relief

BETWEEN

DR FRANCISC CATALIN DELIU

Applicant

AND

JUSTICE SUSAN THOMAS

First Respondent

JUSTICE PHEROZE JAGOSE

Second Respondent

On the Papers
Judgment:	14 September 2022

JUDGMENT OF GWYN J

Introduction

[1]                  On 10 August 2022 the applicant, Mr Deliu, presented for filing in the Wellington Registry of the High Court a statement of claim for judicial review against the above named respondents.

[2]                  The proceeding was referred to me, as Duty Judge, by the Registrar  under     r 5.35A of the High Court Rules 2016 (the Rules). Rule 5.35A provides:

DELIU v THOMAS & JAGOSE JJ [2022] NZHC 2358 [14 September 2022]

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1)This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)However, the Registrar may,—

(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

The proceeding

[3]                  The statement of claim purports to seek judicial review of a decision of the first respondent, in her capacity as Head of Bench of the High Court of New Zealand, in relation to a decision made by the second respondent, in his capacity as a Judge of the High Court of New Zealand. The claim alleges dishonesty by the first respondent and seeks a writ of certiorari and a declaration that the applicant’s statutory right to due process has been breached. The applicant also seeks a direction that a copy of this judgment be sent to the Office of the Judicial Conduct Commissioner for consideration of a recommendation to the Attorney-General to convene a panel to consider removing the first respondent from office.

Rule 5.35B

[4]                  Proceedings referred under s 5.35A are considered by a Judge under r 5.35B of the Rules which provides:

5.35B Judge’s powers to make orders and give directions before service

(1)This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.

(2)The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—

(a)the proceeding be struck out:

(b)the proceeding be stayed until further order:

(c)documents for service be kept by the court and not be served until the stay is lifted:

(d)no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).

(3)Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

(4)A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

(5)See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.

Assessment of the proceeding

[5]                  The High Court, as a superior court of general jurisdiction, is responsible for determining the jurisdiction and legality of the decisions and conduct of the inferior Courts and tribunals.1 As judicial review is essentially a supervisory jurisdiction, it would be a contradiction in terms for the High Court to judicially review itself.2 The High Court must determine its own jurisdiction and “if it is responsible for any irregularity, the defect must be corrected by the Court itself or on appeal”.3

[6]                  The focus of the immunity from supervisory judicial review is the court itself rather than the individual judicial officers who exercise its functions.4 The Chief High Court Judge is the head of the High Court appointed under s 100 of the Senior Courts Act 2016 (the Act).5    When acting as head of bench under s 92 of the Act the     Chief High Court Judge is exercising the powers of the High Court. There is therefore no jurisdiction for the Court to consider this application for judicial review.

1      Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133.

2      Hawkins v Attorney-General (1999) 14 PRNZ 5 (HC) at [13], citing In re Racal Communications Ltd [1985] AC 347, at 384.

3      Auckland District Court v Attorney-General above n 1, at 133.

4      Hawkins v Attorney-General above n 1, at [14].

5      Senior Courts Act 2016, s 92.

[7]                  In addition, Judges in the exercise of their judicial office enjoy absolute immunity from suit.6 As above, the Chief High Court Judge is discharging her judicial responsibilities as a Judge when acting in that role.

Result

[8] For the reasons set out at [5] – [7] above there is no jurisdiction for this Court to consider the applicant’s claim. The statement of claim is therefore struck out.

[9]                  Mr Deliu has a right of appeal against this decision.7 The named respondents are to be served with this judgment.8

Gwyn J

6      Nakhla v McCarthy [1978] 1 NZLR 291 (CA) at 294, 299. Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [161]-[165].

7      Rule 5.35B(3).

8      Rule 5.35B(4).