FRANCISC CATALIN DELIU AND THE DISTRICT COURT AT AUCKLAND THE ATTORNEY-GENERAL
[2024] NZHC 2904
•7 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-002890
[2024] NZHC 2904
UNDER The Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of Rights Act 1990 and Declaratory Judgments Act 1908 IN THE MATTER OF
Proceedings moving for an application for judicial review, writs, bill of rights claims and a petition for declaratory relief
BETWEEN
FRANCISC CATALIN DELIU
Applicant
AND
THE DISTRICT COURT AT AUCKLAND
First Respondent
THE ATTORNEY-GENERAL
Second Respondent
Hearing: 26 June 2024 Appearances:
The applicant in person
H Carrad for the second respondent
Judgment:
7 October 2024
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 7 October 2024 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
DELIU v THE DISTRICT COURT AT AUCKLAND [2024] NZHC 2904 [7 October 2024]
[1] Mr Deliu applied to the District Court in June 2019 to access documents in a criminal proceeding to which he was a party. The District Court provided copies of the requested documents to Mr Deliu, but not until December 2023 and January 2024. Mr Deliu claims that the delay in providing copies of the documents was such that the District Court violated his right to natural justice in s 27 of the New Zealand Bill of Rights Act 1990 (BORA). Mr Deliu applies for judicial review of the District Court, seeking a Baigent declaration of breach.
[2] This is the second judicial review application that Mr Deliu has brought in relation to his June 2019 application to access documents. He brought an earlier application in 2022. I gave judgment on that judicial review application in December 2022. I found, among other things, that the District Court’s 19-month delay in adjudicating on an aspect of Mr Deliu’s access application breached Mr Deliu’s right to natural justice in s 27 of the BORA.1
[3] In that judgment, I also rejected Mr Deliu’s complaint that the District Court had erred in declining to email the requested documents to him. I found it was not unreasonable for the District Court to decline to email the documents to Mr Deliu, given he had told the District Court he could have a lawyer come and inspect and copy documents on his behalf.2
[4] After that judgment, Mr Deliu engaged a lawyer to attend the District Court and access the documents on his behalf. His lawyer attended the District Court in February 2023 but did not obtain the documents until December 2023 and January 2024. The issue on this judicial review application is whether that further delay is a result of the District Court failing to make a decision within a reasonable time on Mr Deliu’s proposals for his lawyer to access the documents.
Background
[5] In April 2018, the Police laid two charges of attempting to pervert the course of justice against Mr Deliu in the Auckland District Court. The Police accused
1 Deliu v District Court at Auckland [2022] NZHC 3389 at [53].
2 At [108]–[109].
Mr Deliu, who formerly practised as a barrister, of jointly offending with Richard Zhao, a solicitor. The Police concurrently laid the same two charges against Mr Zhao.
[6] Mr Deliu was living overseas at the time (and has remained outside New Zealand ever since). As he could not be served with a summons, the Court issued a warrant for Mr Deliu’s arrest.
[7] In mid-2019, Mr Zhao told Mr Deliu that, during the hearing of an application by Mr Zhao to have the charges against him dismissed, the Police had withdrawn both charges. One of the charges, Mr Zhao said to Mr Deliu, had been withdrawn without prejudice. According to Mr Zhao, the Police said that charge would be re-laid if Mr Deliu ever returned to New Zealand, in order for Police to have leverage against Mr Zhao to “flip him” against Mr Deliu.
[8] On 10 June 2019, Mr Deliu emailed the District Court an application to access court documents. The application said he wanted to access court documents about “Police v Zhao & Anor” and that the defendant was “F C Deliu”. The application said Mr Deliu wanted to access all documents. He recorded a contact address in Silverdale, Auckland. His covering email said: “kindly e-mail me a copy of the entire file.”
[9] On 11 June 2019, a Deputy Registrar at the District Court emailed counsel for Mr Zhao and counsel for the prosecution attaching Mr Deliu’s access application and asking if they wished to object to it. On the same day, counsel for Mr Zhao replied, abiding the decision of the Court.
[10] On 17 June 2019, counsel for the prosecution replied to the Deputy Registrar, abiding the decision of the Court but noting some matters “for the assistance of the Court”. These included that any right Mr Deliu might have under r 9(3)(b) of the District Court (Access to Court Documents) Rules 2017 (the Access Rules) was one to search, inspect and copy documents under the supervision of the Registrar, so that Mr Deliu’s request to have a copy of the file sent to him appeared to be outside the scope of what was allowed by the Access Rules.
[11] On 19 June 2019, the Deputy Registrar prepared a memorandum for Judge Sharp on Mr Deliu’s application. The memorandum attached the responses from counsel.
[12] On 28 June 2019, Judge Sharp made a handwritten direction on the memorandum:
Mr Deliu is entitled under the rights available to him to search inspect and copy the Court documents under the supervision of an officer of the Court. It will not be copied and forwarded to him.
[13]On 1 July 2019, the Deputy Registrar emailed Mr Deliu:
Your Application for Access to court documents was referred to the Jury Liaison Judge, Judge D Sharp.
A copy of the file cannot be emailed to you. The file will be available at Auckland District Court (Criminal Counter) for search, inspect and copy under the supervision of an officer of the court, in accordance with rule 9 of the District Court (Access to Court Documents) Rules 2017.
Please advise date and time so we can arrange for court officer to assist.
[14] On 4 July 2019, Mr Deliu replied to the Court by email. He advised that he was overseas and not returning to New Zealand. He said he therefore could not ever come in person to inspect or copy the file. He asked:
So, can my request for an electronic copy please be reconsidered in light of this circumstance. Additionally, I would be content for a copy to be posted to the New Zealand address I nominated. Finally, can I have an agent (possibly a lawyer) come and inspect and copy the file on my behalf? If neither of these courses of action are acceptable then I respectfully ask for a lawful reason for judicial review purposes and thank his Honour in advance.
[15] The District Court replied the same day, asking Mr Deliu to file a memorandum for the Judge to consider.
[16] Over a year later, on 16 July 2020, Mr Deliu emailed a memorandum to the District Court. The memorandum said:
MAY IT PLEASE THE COURT,
1.I write further to the Registrar’s 5 July 2019 e-mail asking me to file a formal memorandum in regards to my motion to get access to my files in the above-intituled matters.
2.On or about 1 July 2019 Judge Sharp ruled that: “A copy of the file cannot be emailed to you. This file will be available at Auckland District Court (Criminal Counter) for search, inspect and copy under the supervision of an officer of the court, in accordance with rule 9 of the District Court (Access to Court Documents) Rules 2017. Please advise date and time so we can arrange for court officer to assist.”
3.The difficulty with that is that I am not resident in New Zealand and nor am I ever returning. As such, I cannot attend the counter. This is the reason why I, in the first place, sought to have the files e-mailed to me.
4.In this circumstance the Court has jurisdiction under r 5(1) of the District Court (Access to Court Documents) Rules 2017 to provide me with an electronic copy of the files as I would otherwise be unable to acquire them as a litigant in person.
5.I require the files to, inter alia, use them in an application pursuant to
§ 147(2) of the Criminal Procedure Act 2011 to dismiss the charges on the basis that a properly directed jury could not reasonably convict the defendant and/or to have the charges stayed as an abuse of process. Obviously, my having the files is necessary for such an exercise.
6.As the Court pleases.
[17] By 19 November 2021, no decision on Mr Deliu’s 16 July 2020 memorandum had been made. That day, Mr Deliu emailed the District Court, saying: “It has been 16 months so when is this going to be determined?” On the same day the District Court replied by a COVID-19-related form email, which said (in part):
Unless your email is related to one of the matters identified by the Chief Justice (in the latest protocols … you may experience a delay in response. ...
[18] On 24 January 2022, Mr Deliu emailed the District Court again with respect to his memorandum, asking if the Court was ever going to deal with it. He said that if he did not hear soon, he would bring High Court proceedings “over your corrupt refusal”. The District Court replied the same day by a COVID-19-related form email, which said (in part):
Emails are being prioritised in line with the case types identified by the Chief Justice in the latest protocols … . If your email relates to something else, you may experience a delay in response.
[19] On the same day, Mr Deliu filed another application in the District Court to access documents in the R v Zhao proceeding. The application recorded that
Mr Deliu had a lawyer, Mr Castelino. Mr Deliu asked for the full file. Under the heading “We want to look at these documents because” he said:
Pursuant to r 9(3) of the District Court (Access to Court Documents) Rules 2017, I am a party to the proceeding and so wish to persue [sic] the file to see what arguments Mr Zhao’s counsel made, and what evidence Mr Zhao adduced, in support of his motion to dismiss the charges against him for potential use as evidence in High Court proceedings I have challenging the charges against me.
I have engaged Mr Bennet Catelino [sic] for the sole and limited purpose of acquiring these materials for me or alternatively perusing them in my stead and so I respectfully request that the Court grant him access accordingly.
[20] On 26 January 2022, Mr Deliu commenced his earlier judicial review application. Among other things, he claimed that the District Court’s delay in adjudicating on his 16 July 2020 memorandum breached his right to natural justice.
[21] On 8 February 2022, the Service Manager at the District Court, Mr Ettles, emailed Mr Deliu as follows:
I had sent earlier email correspondence to advise that your application had been submitted to a judge in chambers and we are awaiting direction.
Note that there was a 2019 decision of HH Judge D Sharp that you are aware of and then subsequent request from the registry to file new memorandum requesting electronic court files as you are overseas which was received in 2020, there was some email correspondence also noting you would be content for a copy to be posted to a NZ address that you have nominated or possibly an agent come and inspect the court file on your behalf. All of this is with the judge and I expect some direction today on the matter and then I will make [sic] advise you today of the outcome.
[22] Mr Ettles prepared an internal memorandum dated 8 February 2022 for the Duty Judge about Mr Deliu’s memorandum. On 9 February 2022, Judge Gibson made the following handwritten direction on the internal memorandum:
Judge Sharp’s direction of 1 July, 2019 makes it clear that personal attendance is required for the purpose of inspection. A duly authorised agent (in writing) can inspect on the applicant’s behalf under the terms set out by Judge Sharp. Documents to be inspected are those set out in Rule 8(2) of the Rules.
[23]Mr Ettles conveyed that direction to Mr Deliu by email on 10 February 2022.
Mr Deliu’s earlier (2022) judicial review application
[24] In his 2022 judicial review application, Mr Deliu pleaded that the District Court erred in a variety of ways in addressing his request to access documents. He pleaded ten causes of action against the District Court. I need only refer to three of them, and my decisions on them.
First cause of action: delay in adjudicating on request for a reconsideration
[25] Mr Deliu’s first cause of action concerned the District Court’s delay in adjudicating on his 16 July 2020 request for a reconsideration of Judge Sharp’s initial decision on his access application. I found that this delay breached Mr Deliu’s right to natural justice in s 27 of the BORA. My reasons were (footnotes omitted):
[46] Natural justice requires that a decision be made within a reasonable time. Where a party has properly used a statutory procedure, the right to natural justice in s 27 of the BORA includes a right to receive a decision within a reasonable time.
[47] Mr Deliu filed his memorandum in response to an invitation by a Deputy Registrar to formalise his application for a reconsideration of his initial request for an electronic copy of the file to be emailed to him. It was proper for him to do so. The issue is whether the 19-month delay in determining that request was unreasonable.
[48] Whether a delay is unreasonable depends on the circumstances. Here the most relevant circumstance is that the issue raised by Mr Deliu’s memorandum was a straightforward one. It did not require lengthy analysis or consideration. This suggests it would be reasonable to expect such an issue to be determined promptly.
[49] Some of the features of this case point the other way. Mr Deliu did not exhibit any great urgency. After the Deputy Registrar asked for a memorandum, Mr Deliu took more than a year to file it. Although he submitted that he had “repeatedly” followed up with the Court on the memorandum, he did so only twice: once on 19 November 2021 (16 months after he filed the memorandum) and again on 24 January 2022. At those times, the District Court was still struggling with the consequences of the pandemic. Mr Deliu may also have contributed to a small part of the delay by intituling the memorandum with a proceeding number different from the proceeding to which his original application related.
[50] Ms Carrad, counsel for the Attorney-General, submitted that another relevant feature was that Mr Deliu had at all times during the delay been able to arrange a lawyer to access the file on his behalf. I do not consider that this is relevant to whether the delay was reasonable. Mr Deliu had properly raised for the District Court’s determination whether that Court would, given he was overseas and not returning to New Zealand, email him a copy of the file.
Mr Deliu was entitled to a decision on that question. That he may have had an alternative available to him did not excuse the District Court from the responsibility of making a determination on that request (and of doing so in a reasonable time).
[51] Notwithstanding the features I have identified at [49] above, I consider a 19-month delay in determining Mr Deliu’s application in his memorandum was unreasonable. The application was straightforward. Those features may have made it reasonable for a decision to take a month or so, but they do not explain a 19-month delay.
[52] Mr Deliu’s written submissions said that an inference could be drawn that the District Court’s delay was deliberate. He withdrew that submission at the hearing. To be clear, the only reasonable inference is that the delay was an oversight. On all other occasions the District Court responded promptly to Mr Deliu’s various requests associated with his application to access documents, even when those requests were informally made in emails (a practice that should be discouraged). But an unreasonable delay through oversight remains an unreasonable delay.
[53] For these reasons, I find that the District Court’s delay in adjudicating on the request in his memorandum of 16 July 2020 breached Mr Deliu’s right to natural justice in s 27 of the BORA.
[26] This cause of action, and my decision, did not question the substance of the District Court’s adjudication (namely, that personal attendance was required to inspect the requested documents but that an agent could inspect on Mr Deliu’s behalf).
Third cause of action: alleged error in telling Mr Deliu that a copy of the file could not be emailed to him
[27] Mr Deliu’s third cause of action was that the District Court erred in law when, in response to his application to access all the documents on Mr Zhao’s file, it told Mr Deliu that “[a] copy of the file cannot be emailed to you”. Mr Deliu said this was an error because (i) there was no legal prohibition on the District Court emailing him the file and (ii) the District Court had inherent power to control its own proceedings.
[28] I accepted Mr Deliu’s submission that the District Court has an inherent power to email a document to a person who has applied for access. It would therefore have been an error of law for the District Court to rule that it had no power to email documents to Mr Deliu. But the Court had not made such a ruling. The Court had merely decided it would not exercise the power. There was, therefore, no error of law.3
3 At [63]–[68].
Tenth cause of action: alleged unreasonableness in denying Mr Deliu his statutory recourse to access the documents
[29] In his tenth cause of action, Mr Deliu pleaded that the District Court acted unreasonably in denying him his statutory recourse to access the documents.
[30] I found there was no merit to this cause of action. Mr Deliu’s complaint was that the District Court had declined to email the documents to him. But he had no right to have court documents emailed to him. The District Court did have power to email court documents to someone who applied to access them. But it was not unreasonable for the District Court to decline to email documents to Mr Deliu, given he had twice told the District Court he could have a lawyer come and inspect and copy documents on his behalf.4
Further events
[31] Mr Ettles had told Mr Deliu on 10 February 2022 of Judge Gibson’s decision that Mr Deliu could have an agent inspect the court documents. Despite Mr Deliu being aware of this,5 he took no steps to have an agent inspect the documents until 31 January 2023. On that day, Mr Deliu sent an email to Mr Ettles which quoted from my December 2022 judgment and said:
This is my formal notice in writing that Mr Bennet Castelino, a practicing barrister and solicitor, will attend on 10 February 2023 to obtain a copy of Mr Zhao’s criminal file on my behalf, kindly ensure he is given unimpeded access to all documents, but especially those relating to the Crown withdrawing the wrongful charges against Mr Zhao as I particularly require them for anticipated litigation against the King, New Zealand Police and law firm of Meredith Connell for, inter alia, malicious prosecution, abuse of process, intentional infliction of emotional distress, et cetera. Thank you in advance for respecting the rule of law and transparency, albeit 4 years on from my original request.
[32] Mr Deliu’s email was copied to Mr Castelino (among others). On 9 February 2023, there were the following email exchanges:
4 At [108]–[109].
5 On 22 February 2022, in the course of seeking Judge Gibson’s recusal, Mr Deliu said that Judge Gibson “did extend the decision to allow an agent to inspect”.
Mr Ettles to Mr Deliu, copied to Mr Castelino: I can confirm I will be available on Friday 10 February 2023 at 3pm till 4pm, if a longer time is required please let me know and I can arrange this for next week.
Mr Castelino to Mr Ettles, copied to Mr Deliu: Basically Mr. Deliu is requiring a copy of the relevant information in the said File.
Mr Ettles to Mr Castelino: Do you envisage this taking longer than 60mins, if so then possibly a longer time next week that is suitable can be arranged.
Mr Castelino to Mr Ettles: Tomorrow I will just review the file and then we agree on a mutually agreed date and time
[33] The next day, 10 February 2023, Mr Castelino personally attended at the Registry of the District Court and inspected the file. Mr Deliu alleges that Mr Castelino confirmed that Mr Deliu wanted a copy of the entire file. This is denied by the Attorney-General (who is the only respondent defending Mr Deliu’s claim).
[34] Mr Deliu alleges that on 3 August 2023 Mr Castelino filed a memorandum in the District Court which said:
Further to the inspection undertaken before Mister Registrar Ettles earlier this year, my client confirms that he seeks and requires a full copy of the file[.] … As agreed, these may be e-mailed from the Registry to my good self.
[35] The Attorney-General denies that this memorandum was filed on 3 August 2023.
[36] On 23 November 2023, Mr Deliu emailed Mr Ettles. He said that if he was not urgently “provided a copy of the file as the Registry has many months ago agreed” he would bring a further proceeding.
[37] Mr Deliu sent another email to Mr Ettles on 24 November 2023. Mr Deliu referred to the declaration I had made on 13 December 2022 that the District Court had breached Mr Deliu’s right to natural justice. He said he had a direction of Judge Sharp dated 1 July 2019 entitling him to a copy of the Zhao file. He attached the 3 August 2023 memorandum from Mr Castelino. The Attorney-General says this was the first time the memorandum was provided to the District Court.
[38] On 27 November 2023, Judge Sharp wrote on Mr Castelino’s 3 August 2023 memorandum:
Was this filed 3/8/23? Has the Crown responded? If no Crown response please ask them if they would like to. Pending the Crown response I will wait.
[39] Mr Ettles then, on 27 November 2023, forwarded Mr Deliu’s 24 November 2023 email to the Crown solicitor (copying Mr Deliu and Mr Castelino), asking the Crown to provide their views on Mr Castelino’s memorandum. The Crown solicitor responded by asking Mr Ettles or Mr Castelino to provide copies of my decision dated 13 December 2022 and Judge Sharp’s decision dated 1 July 2019. Mr Deliu responded to Mr Ettles by emailing him (copying Mr Castelino and the Crown solicitor):
I am suing as I have a 2019 order granting access so you are acting in bad faith asking the Crown for views 5 years later. See you in the High Court you awful human.
[40] Mr Deliu also emailed Mr Castelino (copying Mr Ettles and the Crown solicitor), instructing him not to cooperate with the Crown “as I am suing Ettles over his bad faith”.
[41] On 30 November 2023, the Crown solicitor emailed Mr Ettles, noting that the Crown had abided the decision of the court on Mr Deliu’s June 2019 application to access court documents and that Crown did so again. Mr Ettles referred this to Judge Sharp, who made the following direction on 1 December 2023:
I have previously directed that the file may be inspected by Mr Deliu’s agent copies may be made under the supervision of an officer of the Court. That direction stands. The Court will not provide a full copy of the file.
[42] Mr Ettles emailed that direction to Mr Deliu on 5 December 2023. Mr Deliu then instructed Mr Castelino to attend with Mr Ettles again. At some point in December 2023, Mr Castelino did so, and obtained a copy of the file.
[43] On 23 January 2024, Mr Castelino thanked Mr Ettles for his assistance in copying the file, but noted there were some pages missing from one document. He arranged to meet with Mr Ettles the next day and obtained the missing pages.
[44] In the meantime, Mr Deliu had, on 29 November 2023, commenced this judicial review application.
Mr Deliu’s current judicial review application
[45] Mr Deliu pleads that the first respondent, the District Court, violated his right to natural justice under s 27 of the BORA by unduly delaying his timely receipt of the Zhao file. He seeks a Baigent declaration of breach. He does not plead any cause of action against the second respondent, the Attorney-General.6
[46] As is usual in these matters, the District Court abides the decision of the Court. The Attorney-General has defended Mr Deliu’s claim.
What is in issue?
[47] Natural justice requires that a decision be made within a reasonable time.7 Where a party has properly used a statutory procedure, the right to natural justice in s 27 of the BORA includes a right to receive a decision within a reasonable time.8
[48] Ms Carrad, for the Attorney-General, submitted it was difficult to identify any decision at issue in this proceeding. She submitted the only potentially relevant decision (leaving aside those that were the subject of my December 2022 judgment) was the direction of Judge Sharp on 1 December 2023, and that there was no delay associated with that.
[49] I disagree. Mr Deliu is complaining about delay by the District Court in allowing his agent to access the documents. In order for Mr Deliu to access documents through his agent, at least two decisions had to be made by the District Court. The first was a decision as to Mr Deliu’s access entitlement: whether or not he was entitled to use an agent to access the documents. That decision was made on 10 February 2022, and was the subject of my earlier judgment. The second was a more practical decision: whether to agree to proposed arrangements for Mr Deliu’s agent to access the documents. It is that second decision that is the focus of Mr Deliu’s current claim.
6 Mr Deliu initially named the Crown as the second respondent. On 23 January 2024, O’Gorman J directed that the Attorney-General be substituted as second respondent for the Crown.
7 Unitec Institute of Technology v Attorney-General [2006] 1 NZLR 65 (HC) at [125] (overturned on appeal, but not on this point).
8 Ngunguru Coastal Investments Ltd v Māori Land Court [2011] NZAR (HC) 354 at [23]; and Baker v Waitangi Tribunal [2014] NZHC 1219 at [43].
[50] The key issue, therefore, is whether the District Court made a decision, or decisions, within a reasonable time on Mr Deliu’s proposals for Mr Castelino to access the documents.
Did the District Court make a decision, or decisions, within a reasonable time on Mr Deliu’s proposals for Mr Castelino to access the documents?
[51] Mr Deliu obtained a decision from the District Court on 1 July 2019 that the file would be available to him to search, inspect and copy under the supervision of an officer of the court. On 10 February 2022, a further decision was made that Mr Deliu was entitled to use an agent to access the documents in that manner.
[52] Mr Deliu then took no steps to have an agent access the documents for almost a year. On 31 January 2023, he sent an email to Mr Ettles advising that Mr Castelino would attend Court on 10 February 2023 to obtain a copy of the file.
[53] Mr Ettles responded to Mr Deliu and Mr Castelino on 9 February 2023, saying he was available for the proposed attendance on 10 February 2023. Mr Ettles asked Mr Castelino how much time would be needed. Mr Castelino responded:
Tomorrow I will just review the file and then we agree on a mutually agreed date and time
[54] Mr Castelino attended the Court on 10 February 2023 and viewed the file. To that point, there can be no criticism of the District Court’s timeliness in deciding on Mr Deliu’s proposal for Mr Castelino to access the documents.
[55] Mr Deliu pleaded that during the 10 February 2023 attendance Mr Castelino “again confirmed that [Mr Deliu] wanted a copy of the entire file”. The Attorney- General denied this allegation.
[56] The allegation was central to Mr Deliu’s claim. His case was that Mr Castelino asked for a copy of the entire file on 10 February 2023, and the District Court delayed in allowing Mr Castelino to obtain that copy until December 2023 and January 2024. The Attorney-General’s position was that Mr Castelino was entitled to copy the file under the supervision of an officer of the court, that he had chosen merely to review
the file on 10 February 2023, and did not seek to copy the file until he attended again in December 2023 and January 2024.
[57] Mr Deliu bore the burden of proving this allegation. He did not file any affidavit from himself or Mr Castelino. The only evidence before me was the record of documents from the District Court file. That includes the emails from Mr Castelino on 9 February 2023 in which he said that Mr Deliu was requiring a copy of “the relevant information” from the file and that he intended to “just review the file” and then agree another date and time.9 So, at least before his attendance on 10 February 2023, Mr Castelino intended merely to review the file. There is no evidence that Mr Castelino said, during his attendance on 10 February 2023, that Mr Deliu wanted a copy of the entire file. I am not satisfied that Mr Castelino did say that.
[58] Even if Mr Castelino had said that Mr Deliu wanted a copy of the entire file, it would not have assisted Mr Deliu. The District Court had decided that Mr Deliu could access the documents by having an agent personally attend to search, inspect and copy the file under the supervision of a court officer. Mr Deliu had failed in his challenge to that decision in his 2022 judicial review application: I had held that it was not unreasonable for the District Court to decline to email documents to Mr Deliu, given he had twice told the District Court he could have a lawyer come and inspect and copy documents on his behalf. Mr Deliu did not have any right to have the District Court do the copying for him or send the documents to him.
[59] Mr Deliu also relied on the memorandum that he said Mr Castelino had filed on 3 August 2023, which said that Mr Deliu “seeks and requires a full copy of the file” and asked the Registry to email the documents to him. The Attorney-General denied that the memorandum was filed on that date. The burden of proof was on Mr Deliu. There was no evidence from Mr Castelino that the memorandum was filed on that date. The District Court’s record of documents has only an unsigned version of the memorandum and no record of it being filed on that date. I am not satisfied it was.
9 The documents included an email from Mr Ettles recounting his version of events at the attendance on 10 February 2023. Mr Deliu objected to any reliance on that email on the ground that it was hearsay. At the hearing, Ms Carrad accepted that it was hearsay and did not seek to rely on it. I have ignored the email.
And, even if it had been, it would not have assisted Mr Deliu, as the memorandum requested that the documents be emailed to Mr Castelino.
[60] Mr Deliu had a fallback position. This was that there had been undue delay by the District Court in November 2023 in seeking the Crown’s views on his access request, given that the Crown had already given its views on the same access request in June 2019. I accept it was unnecessary to seek the Crown’s views a second time. But this did not cause a significant delay. Mr Deliu’s email of 23 November 2023 threatened another proceeding if he was not urgently provided with a copy of the file. As I have noted, Mr Deliu was not entitled to require the Court to provide him with a copy of the file. Less than two weeks later, on 5 December 2023, he was told of Judge Sharp’s decision that the file could be inspected by Mr Deliu’s agent, with copies made under the supervision of a court officer, but that the Court would not provide a copy of the file. Mr Castelino attended and obtained a copy of the file soon thereafter.
[61] The short delay occasioned by obtaining the Crown’s view was immaterial and not undue. It has to be assessed in context. Mr Deliu was told on 10 February 2022 that he could have an agent inspect and copy the file. He did not arrange any agent to do so until Mr Castelino’s attendance on 10 February 2023. There is no evidence that Mr Castelino sought to copy (rather than inspect) any documents on 10 February 2023. Thereafter, there is no evidence that Mr Deliu made any arrangements for Mr Castelino to attend and copy documents from the file until after 5 December 2023.
[62] Mr Deliu requested that if I came to this view that I should allow him and the Attorney-General to file further evidence addressing whether Mr Castelino requested a copy of the file during his 10 February 2023 attendance and addressing when the 3 August 2023 memorandum was filed. I decline to accede to that request. Mr Deliu was aware that both these matters were in issue on the pleadings, and he was alive to the importance of evidence on them (as he objected, successfully, to the Attorney- General relying on hearsay evidence in an email from Mr Ettles that was in the record of documents). Mr Deliu had ample opportunity to adduce evidence on these issues before the hearing. Further, as I have explained, it would not have assisted Mr Deliu to show that Mr Castelino had requested that the documents be emailed to him.
Mr Deliu was merely entitled to have Mr Castelino search, inspect and copy the documents.
[63] For these reasons, Mr Deliu has failed to satisfy me that there was any failure by the District Court to make decisions within a reasonable time on Mr Deliu’s proposals for Mr Castelino to access the documents.
Result
[64]I decline Mr Deliu’s application for judicial review.
[65] If there is any issue as to costs, brief memoranda (no more than two pages each) may be filed.
Campbell J
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