DELIU v THE INDEPENDENT POLICE CONDUCT AUTHORITY [2022] NZHC 413

DELIU v THE INDEPENDENT POLICE CONDUCT AUTHORITY [2022] NZHC 413 [10 March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-1092[2022] NZHC 413UNDER the Judicial Review Procedure Act 2016;Part 30 High Court Rules 2016; NewZealand Bill of Rights Act 1990; andDeclaratory Judgments Act 1908IN THE MATTER of proceedings moving for an application forjudicial review, a writ of mandamus, bill ofrights claims and a petition for declaratoryreliefBETWEEN DOCTOR FRANCISC CATALIN aliasdictus FRANK DELIUApplicantAND THE INDEPENDENT POLICE CONDUCTAUTHORITYRespondentHearing: 28 October 2021Appearances: Applicant in personJBM Smith QC and KOM Fitzgibbon for the RespondentJudgment: 10 March 2022JUDGMENT OF GAULT JThis judgment was delivered by me on 10 March 2022 at 10:00 ampursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarParties / Solicitors / Counsel:The ApplicantMr JBM Smith QC and Ms KOM Fitzgibbon, Barristers, WellingtonMr R S May, Luke Cunningham Clere, Wellington[1] Mr Deliu seeks judicial review in relation to the response of the IndependentPolice Conduct Authority (IPCA) to five complaints Mr Deliu made in early 2018concerning Police conduct. In particular, Mr Deliu claims that IPCA failed to make adecision on each complaint.[2] As a result of decisions taken and communicated by IPCA since thisproceeding was commenced, the issues have narrowed. Where Mr Deliu accepts thatIPCA has now made a decision, he still seeks a declaration.[3] A preliminary issue also arises as to the effect of the bar on proceedings in s 33of the Independent Police Conduct Authority Act 1988 (the Act).The complaints[4] In summary, the five complaints in issue are as follows:(a) First complaint – Mr Deliu sent a complaint to IPCA by email dated21 January 2018 alleging that Police had violated his privacy rights byinvestigating his financial affairs in 2015.(b) Second complaint – Mr Deliu complained to IPCA by email also dated21 January 2018 alleging that a Police detective had perjured herselfand/or misled the Auckland District Court in a search warrantapplication in August 2016.(c) Third complaint – Mr Deliu sent two emails to IPCA dated 22 January2018 alleging that a Police sergeant had refused to charge a (retired)judge with fraud.(d) Fourth complaint – Mr Deliu complained to IPCA by email dated23 January 2018 that Police had conducted an ultra vires/mala fidesinvestigation into him.(e) Fifth complaint –Mr Deliu complained to IPCA by email dated 5 March2018 in relation to the same Police sergeant referred to in the thirdcomplaint, alleging that he had conspired with two criminals to harmMr Deliu.The proceedings[5] Mr Deliu's amended statement of claim dated 24 October 2019 made claimsagainst a number of defendants, including IPCA.1 The claims against IPCA includedthe five complaints. In relation to each of the complaints, Mr Deliu claimed that IPCAhad not taken any steps to advance the complaint.[6] Defendants including IPCA applied for security for costs on grounds includingthat Mr Deliu's claims lack merit. In relation to claims against IPCA (which extendedbeyond the five complaints in issue here), Palmer J's judgment dated 19 August 2020stated:2I agree that the pattern of Mr Deliu not receiving responses to his complaintsis troubling. But I do not agree that constitutes bad faith. Bad faith is notpleaded other than in relation to failure to take action in 24 hours, whichcannot be bad faith in itself. I can see no basis for impugning the IPCA'sdecision not to investigate the complaint involving Queen Elizabeth unders 18(1)(a) of the Act. In the face of s 33, I do not consider these proceedingsare reasonably arguable. If he wishes to proceed with them, I order that heprovide $5,000 security for costs.[7] Mr Deliu applied to recall that judgment. Palmer J granted the recallapplication on the basis it had not been sufficiently drawn to his attention that IPCAhad not made a decision about some of the complaints, which was plainly relevant,and Mr Deliu's argument that the privative clause in s 33(1)(a) does not apply toomissions may be found to be tenable.3 Accordingly, on the condition that Mr Deliurepleaded the case to challenge only those complaints which IPCA did not address,Palmer J dismissed the IPCA application for security for costs.4[8] Mr Deliu filed a further amended statement of claim dated 4 April 2021 limitedto the five complaints.1 The status of Mr Deliu's earlier statement of claim dated 11 April 2018 is unclear but nothing turnson this.2 Deliu v Chapman [2020] NZHC 2100 at [22].3 Deliu v Independent Police Conduct Authority [2021] NZHC 10 at [16]-[19].4 At [20].IPCA's response to the complaints[9] IPCA admits that it received the first complaint on 22 January 2018. It saysthat, through oversight, it did not determine the complaint until 2021 when, in thecourse of preparing its statement of defence, it discovered Mr Deliu's email andidentified it as a complaint that had not been actioned.[10] IPCA says the second and fifth complaints were factually connected toprevious complaints by Mr Deliu and were treated as supplementary informationrather than discrete complaints.[11] In relation to the third and fourth complaints, IPCA says it decided to take nofurther action but, through oversight, did not communicate this to Mr Deliu at the time.Issues[12] The issues for determination are:(a) whether s 33 is a bar to consideration of Mr Deliu's claims;(b) whether Mr Deliu's claims are made out; and(c) whether relief should be granted.[13] Before addressing these issues, I summarise the key aspects of the statutoryscheme.Statutory scheme[14] IPCA is an independent Crown entity. Its core functions are to receivecomplaints and to investigate incidents involving death or serious bodily harm of itsown motion.5 Where it investigates, it forms an opinion which is conveyed to theCommissioner of Police and it may make recommendations.6 Its recommendationsare not enforceable but if no action is taken which seems to IPCA to be adequate and5 Independent Police Conduct Authority Act 1988, s 12(1)(a) and (b).6 Section 27.appropriate, it must send its opinion and recommendations to the Attorney-Generaland Minister of Police (and may transmit a report to the Attorney-General for tablingin Parliament).7 It has no power to provide complainants with a legal remedy nor todeprive complainants of any legal remedy they may have. In that sense, the Act isconcerned with the public interest of police oversight rather than private legalremedies.[15] In relation to complaints, s 17 relevantly provides:17 Action upon receipt of complaint(1) On receiving or being notified of a complaint under this Act, theAuthority may do all or any of the following:(a) investigate the complaint itself, whether or not the Police havecommenced a Police investigation:(ab) refer the complaint to the Police for investigation by thePolice:(b) defer action until the receipt of a report from theCommissioner on a Police investigation of the complaintundertaken on behalf of the Authority:(c) oversee a Police investigation of the complaint:(ca) defer action until the receipt of a report from theCommissioner following a criminal investigation or adisciplinary investigation, or both, initiated and undertaken bythe Police:(d) decide, in accordance with section 18, to take no action on thecomplaint.(2) Subject to subsection (2A), the Authority shall, as soon as practicable,advise the Commissioner and the complainant of the procedure itproposes to adopt under subsection (1).[16] Section 18 sets out the basis for IPCA to exercise its discretion to decide totake no action or no further action on a complaint:18 Authority may decide to take no action on complaint(1) The Authority may in its discretion decide to take no action, or, as thecase may require, no further action, on any complaint if—7 Section 29(2).(a) the complaint relates to a matter of which the person allegedto be aggrieved has had knowledge for more than 12 monthsbefore the complaint was made; or(b) in the opinion of the Authority—(i) the subject matter of the complaint is minor; or(ii) the complaint is frivolous or vexatious or is not madein good faith; or(iii) the person alleged to be aggrieved does not desire thataction be taken or, as the case may be, continued; or(iv) the identity of the complainant is unknown andinvestigation of the complaint would thereby besubstantially impeded; or(v) there is, or was, in all the circumstances an adequateremedy or right of appeal, other than the right topetition the House of Representatives, that it wouldbe reasonable, or would have been reasonable, for theperson alleged to be aggrieved to exercise.(2) The Authority may decide not to take any further action on acomplaint if, in the course of the investigation of the complaint by theAuthority or the Police, or as a result of the Commissioner's report ona Police investigation, it appears to the Authority that, having regardto all the circumstances of the case, any further action is unnecessaryor inappropriate.(3) In any case where the Authority decides to take no action, or no furtheraction, on a complaint, it shall inform the complainant of that decisionand the reasons for it.[17] In relation to investigations, s 30 provides:30 Parties to be informed of progress and result of investigationWhere the Authority investigates a complaint, it shall—(a) conduct the investigation with due expedition; and(b) if it seems appropriate, inform the complainant and theCommissioner of the progress of the investigation; and(c) in every case inform the parties concerned, as soon asreasonably practicable after the conclusion of theinvestigation, and in such manner as it thinks proper, of theresult of the investigation.[18] Section 33(1) relevantly provides:833 Proceedings privileged(1) (a) no proceedings, whether civil or criminal, may lie against theAuthority, any member of the Authority, or any personholding any office or appointment under the Authority, foranything done or said by them in the course of the exercise orintended exercise of their functions under this Act, unless it isshown that they acted in bad faith:(b) the Authority, members of the Authority, and any personholding office or appointment under the Authority must notbe called to give evidence in any court, or in any proceedingsof a judicial nature, in respect of anything coming to theirknowledge in the exercise of their functions under this Act.Effect of s 33[19] As indicated, a preliminary issue arises as to the effect of s 33 on thisproceeding. Given that s 33(1)(a) provides that no proceedings may lie "for anythingdone or said", on the interlocutory application Palmer J left open whether s 33(1)(a)applies to omissions.[20] Mr Smith QC, for IPCA, acknowledged that privative clauses are traditionallyconstrued narrowly on the basis that Parliament is required to express very clearly anintention that judicial scrutiny not apply. But he submitted that a narrow approach isneither necessary nor appropriate where the entity under scrutiny is itself an oversightbody rather than a core part of the Executive. He also submitted that Parliament cannothave intended to create an exclusion that applies differently depending on whetherconduct can be characterised as an act or omission, and the text and purpose of s 33does not support such a distinction.[21] Mr Deliu submitted that s 33 has no application to omissions, nor to judicialreview proceedings. Alternatively, he submitted that IPCA has acted in bad faith.8 Subsection (1) is subject to subsection (2), which provides that nothing in subsection (1) appliesin respect of proceedings for certain specified offences under the Crimes Act 1961. Those offencesare not relevant here.[22] Dealing first with the Court's general approach to ouster or privative clauses,Mr Smith began with a review of the leading case of Anisminic Ltd v ForeignCompensation Commission, in which the House of Lords held that a provision that adetermination by that Commission not be called into question in any court did notpreclude the court from inquiring into whether a purported determination was a nullity.The Commission had misconstrued its jurisdiction. Mr Smith emphasised that it isimportant to appreciate what it meant by "jurisdiction" in this sense, referring to anumber of passages in the speeches. Lord Reid said:9It has sometimes been said that it is only where a tribunal acts withoutjurisdiction that its decision is a nullity. But in such cases the word"jurisdiction" has been used in a very wide sense, and I have come to theconclusion that it is better not to use the term except in the narrow and originalsense of the tribunal being entitled to enter on the inquiry in question. Butthere are many cases where, although the tribunal had jurisdiction to enter onthe inquiry, it has done or failed to do something in the course of the inquirywhich is of such a nature that its decision is a nullity. It may have given itsdecision in bad faith. It may have made a decision which it had no power tomake. It may have failed in the course of the inquiry to comply with therequirements of natural justice. It may in perfect good faith have misconstruedthe provisions giving it power to act so that it failed to deal with the questionremitted to it and decided some question which was not remitted to it. It mayhave refused to take into account something which it was required to take intoaccount. Or it may have based its decision on some matter which, under theprovisions setting it up, it had no right to take into account. I do not intend thislist to be exhaustive. But if it decides a question remitted to it for decisionwithout committing any of these errors it is as much entitled to decide thatquestion wrongly as it is to decide it rightly. I understand that some confusionhas been caused by my having said in Reg. v. Governor of Brixton Prison, Exparte Armah [1968] A.C. 192, 234 that if a tribunal has jurisdiction to go rightit has jurisdiction to go wrong. So it has, if one uses "jurisdiction" in thenarrow original sense. If it is entitled to enter on the inquiry and does not doany of those things which I have mentioned in the course of the proceedings,then its decision is equally valid whether it is right or wrong subject only tothe power of the court in certain circumstances to correct an error of law[23] Lord Pearce said:10Lack of jurisdiction may arise in various ways. There may be an absence ofthose formalities or things which are conditions precedent to the tribunalhaving any jurisdiction to embark on an inquiry. Or the tribunal may at the endmake an order that it has no jurisdiction to make. Or in the intervening stage,while engaged on a proper inquiry, the tribunal may depart from the rules ofnatural justice; or it may ask itself the wrong questions; or it may take intoaccount matters which it was not directed to take into account. Thereby itwould step outside its jurisdiction. It would turn its inquiry into something not9 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL) at 171.10 At 195.directed by Parliament and fail to make the inquiry which Parliament diddirect. Any of these things would cause its purported decision to be a nullity.It is simply an enforcement of Parliament's mandate to the tribunal. If thetribunal is intended on a true construction of the Act to inquire into and finallydecide questions within a certain area, the courts' supervisory duty is to seethat it makes the authorised inquiry according to natural justice and arrives ata decision whether right or wrong. They will intervene if the tribunal asksitself the wrong questions (that is, questions other than those which Parliamentdirected it to ask itself). But if it directs itself to the right inquiry, asking theright questions, they will not intervene merely because it has or may havecome to the wrong answer, provided that this is an answer that lies within itsjurisdiction.[24] Lord Wilberforce said:11In every case, whatever the character of a tribunal, however wide the range ofquestions remitted to it, however great the permissible margin of mistake, theessential point remains that the tribunal has a derived authority, derived, thatis, from statute: at some point, and to be found from a consideration of thelegislation, the field within which it operates is marked out and limited[25] As well as distinguishing between different types of error, these passageshighlight that the scope of an ouster clause is a matter of statutory interpretation.[26] Mr Smith next referred to the Court of Appeal decision in Bulk Gas UsersGroup v Attorney-General,12 which concerned the following privative clause in s 96of the Commerce Act 1975:Proceedings of the Secretary under this Part of this Act shall not be held badfor want of form. Except on the ground of lack of jurisdiction, no order,approval, proceeding, or decision of the Secretary under this Part of this Actshall be liable to be challenged, reviewed, quashed, or called in question inany Court, but there shall be a right of appeal to the Commission in accordancewith section 99 of this Act.11 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL) at 207.12 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA). Zaoui v Attorney-General(No 2) [2005] 1 NZLR 690 (CA) involved a similar privative clause (s 19(9) of the Inspector-General of Intelligence and Security Act 1996). So did New Zealand Rail Ltd v Employment Court[1995] 3 NZLR 179 (CA) except the clause in that case (s 135 of the Employment Contracts Act1991) went on to define lack of jurisdiction.[27] Cooke J stated:13It is generally accepted under our constitutional system that Parliament canempower an administrative tribunal to determine some questions of law,typically questions of statutory interpretation, conclusively. I will assume thatto be so — at least within limits that need not here be explored. Theconsequence must be that such power may be given either expressly or bynecessary implication. But it must at least be given clearly — as Lord Diplocksays, there is a presumption against it. One of the major advantages of hisanalysis is that it enables one to consider whether or not such power has beengiven with attention unclouded by a vague and probably undefinable conceptof "jurisdiction".[28] Against this background, Mr Smith submitted that the IPCA statutory schemedistinguishes this case from those cases where ouster clauses have been construednarrowly. He submitted those cases involved deprivation of a legal remedy, unlikethis case or the Ombudsman cases.[29] Financial Services Complaints Ltd v Wakem was a strike out application basedon privative clauses in the Ombudsmen Act 1975.14 That Act contained both aprivative provision that was similar to the clause in Bulk Gas (in s 25 of theOmbudsmen Act) and one that was similar to s 33 of the Act (in s 26 of theOmbudsmen Act): no proceedings, civil or criminal, shall lie against any Ombudsman, oragainst any person holding any office or appointment under the ChiefOmbudsman, for anything he may do or report or say in the course of theexercise or intended exercise of his functions under this Act or the OfficialInformation Act 1982 or the Local Government Official Information andMeetings Act 1987 or the Protected Disclosures Act 2000, unless it is shownthat he acted in bad faith:[30] Toogood J said:15I see no difficulty in adopting a cautious and narrow interpretative approachto s 26. Although there is no doubt that the Chief Ombudsman is a uniqueactor in New Zealand's constitutional structure, the Chief Ombudsman shouldnot be beyond the reach of the law unless Parliament has expressed so in theclearest possible language.13 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 136.14 Financial Services Complaints Ltd v Wakem [2016] NZHC 634.15 At [38].[31] Toogood J considered that Parliament intended that s 25 would prevent thecourts from reviewing or questioning the exercise of the Ombudsmen's investigativefunctions, and described s 26 as a companion provision limiting the personal civil andcriminal liability of the Ombudsmen, and the officers and employees appointed unders 11, for anything done or said in carrying out those functions.16 However, thecomplaint in that case related to the Chief Ombudsman's decision to refuse the plaintiffconsent to using the term "Ombudsman" in its company name for the purposes ofs 28A, which prohibited use except pursuant to statute or with the prior written consentof the Chief Ombudsman. Toogood J held this was outside the scope of theimmunity.17[32] Taylor v The Social Security Appeal Authority also involved these twinprivative provisions in the Ombudsmen Act.18 On a strike out application, Edwards Jrejected an argument that the Ombudsman's decision not to investigate was outsidejurisdiction or in bad faith.19[33] Mr Smith also relied on a 1982 article by Professor Kenneth Keith (as he was)in relation to judicial control of the Ombudsmen, which stated: 20And yet ... the growing willingness of the courts to reassert and widen theirtraditional authority to control public power has been widely – if notunanimously – welcomed: the insistence on procedural fairness, on allowinglitigants access to official information relevant to their litigation, on the lawfuluse of discretions by Ministers and local authorities, and on lawmakers andtribunals staying within the law. Why should the ombudsmen be seendifferently? It is not really suggested that they should be. If they fail to complywith the fair procedures laid down in their Acts or if they attempt to exercisetheir powers over bodies which are not subject to their authority, the courtshould be able to intervene. But there are several important features of the lawrelating to the ombudsmen that suggest judicial caution. One is that they can,in the end, "do no more than recommend or comment". A second is that theyare control agencies rather than themselves the direct wielders of publicpower. A third is that the statutes confer the powers in broad, non technicalterms, with flexible procedures to match.[34] Mr Smith submitted the same considerations apply to IPCA.16 Financial Services Complaints Ltd v Wakem [2016] NZHC 634 at [42].17 At [43]-[46].18 Taylor v The Social Security Appeal Authority [2019] NZHC 1718.19 At [56]-[66].20 K J Keith "Judicial control of the Ombudsmen" (1982) 12 VUWLR 299 at 322 (footnotesomitted).[35] Mr Smith further relied on JDP v Crown Health Funding Agency, whichinvolved an issue as to whether the immunity for civil and criminal liability in mentalhealth legislation in respect of "acts" also applied to "omissions".21 Simon France Jconcluded that the word "act" in the immunity provision in s 124(1) of the MentalHealth Act 1969 and its predecessor includes omissions.22 At least in part, thisconclusion was based on the express inclusion of "omission" in s 124(2) but SimonFrance J also considered that to interpret "act" in s 124(1) as including omissionswould be consistent with the policy of the immunity.[36] Mr Deliu submitted that JDP is distinguishable given the reference to"omission" in s 124(2) and there was nothing to suggest the wording in s 124(2) wasintended to effect a substantive change from the preceding provision.[37] In JDP, Simon France J also referred to the Law Commission's report, stating:[35] In its Report 37, Crown Liability and Judicial Immunity (1997),the Law Commission notes the extensive use of these immunities. Its researchsuggested about 200 statutes contained them. Table Four of that Report setsout the words used in each statute to achieve the protection. It is plain thatthere are variations in drafting technique that are not explicable by anyobvious intention to draw a distinction. The Commission notes the difficultiesin interpreting immunities because of these drafting variances. Someimmunities, if read literally, would protect only lawful acts which would makethe immunity otiose. It is specifically noted in the Report that the inconsistentinclusion of omissions raises doubts about whether they are covered when notincluded (the plaintiffs' present submission).[36] The invaluable survey by the Commission serves to illustrate thatcaution is needed before placing too much reliance on the specific form ofwording. Consistency in drafting is not there, and it tells against a conclusionthat a variation was specifically used to indicate a different degree ofprotection[38] I turn to the scope of s 33 of the Act and make the following points. First,on its face, s 33(1)(a) provides IPCA (and its members and officers etc) civil andcriminal immunity for anything done or said in the course of the exercise or intendedexercise of functions under the Act, unless it is shown that they acted in bad faith.21 JDP v Crown Health Funding Agency HC Wellington CIV 2003-485-1625, 19 December 2006,which concerned s 6 of the Mental Health Amendment Act 1935 and s 124 of the Mental HealthAct 1969.22 At [32]-[36].[39] Secondly, I accept that IPCA does not determine private legal rights. Rather,it forms opinions and may make recommendations. IPCA's role is more like that ofthe Ombudsmen. As (then) Professor Keith said, that suggests judicial caution – in theexercise of judicial review. The IPCA statutory scheme is also key to the properinterpretation of the privative provision in s 33, but I do not consider it requires adifferent approach to statutory interpretation. The cautious approach to interpretationof privative provisions is appropriate where, as here, it is suggested that it precludesapplications to the High Court for judicial review (unless bad faith is shown). As theSupreme Court said in H (SC52/2018) v Refugee and Protection Officer:23Given the constitutional importance of judicial review, reinforced as it is by s27(2) of the Bill of Rights Act, the courts approach privative clausescautiously and in particular will give anxious consideration to theirinterpretation and application. As noted in the reasons of the majority inTannadyce Investments Ltd v Commissioner of Inland Revenue, judges shouldbe slow to conclude that an ouster provision precludes applications to the HighCourt for judicial review alleging unlawfulness of any kind.[40] Thirdly, in relation to whether the immunity in s 33 extends to omissions to dosomething required by the Act, I accept Mr Deliu's submission that JDP isdistinguishable given the different statutory wording. As Simon France J said in thatcase, caution is needed before placing too much reliance on the specific form ofwording – consistency in drafting is not there, and it tells against a conclusion that avariation was specifically used to indicate a different degree of protection. The focusin s 33(1)(a) on what is "done or said" might simply reflect the fact that pure omissionswere not considered to give rise to liability; they would only give rise to civil liabilitywhere there is a duty to act enforceable by private action. I doubt that s 33 wasintended to provide immunity for anything done or said in the course of the exerciseor intended exercise of functions under the Act but no immunity for a failure to dosomething required by the Act. I consider that interpreting s 33(1)(a) as including suchan omission is consistent with the policy of the immunity. In each case, the immunitydoes not apply if bad faith is shown.[41] Fourthly, turning to applications for judicial review, I do not accept Mr Deliu'ssubmission that IPCA is estopped from contending that s 33 precludes judicial review23 H (SC52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [63].given IPCA's position in Wright v Darvill.24 In that interlocutory decision, Keane Jrecorded that IPCA accepted that it is amenable to judicial review, reserving foranother day if need be whether it may be immune under s 33(1)(a).[42] Finally, I accept that, procedurally, applications for judicial review are civilproceedings. As indicated, s 25 of the Ombudsmen Act has been considered to preventthe courts from reviewing or questioning the exercise of the Ombudsmen'sinvestigative functions and s 26 as a companion provision limiting personal civil andcriminal liability. Here, while s 33 is similar to s 26 of the Ombudsmen Act, the Actcontains no equivalent of s 25 of the Ombudsmen Act. That is not determinative sincecaution is needed before placing too much reliance on the specific form of wording,but I do not consider that s 33(1)(a) precludes applications for judicial review on allgrounds except bad faith. While Mr Smith accepted the Court also retains jurisdictionto intervene where IPCA has acted outside of its functions, this did not appear toextend to a situation where IPCA has unlawfully failed to act (unless in bad faith) orfailed to comply with the requirements of natural justice (unless in bad faith). In theabsence of a clear ouster such as that in s 25 of the Ombudsmen Act 1975, whichacknowledges an exception for lack of jurisdiction, I consider that s 33(1)(a) is aimedat precluding civil and criminal liability (unless bad faith is shown). I do not considerthat s 33 precludes applications to the High Court for judicial review.[43] Accordingly, s 33 is not a bar to consideration of Mr Deliu's judicial reviewclaims. It is therefore unnecessary, at least for the purposes of the preliminary issue,to address Mr Deliu's alternative submission that IPCA has acted in bad faith.Consideration of the claimsMr Deliu's causes of action[44] In essence, in relation to each complaint, Mr Deliu claims that IPCA has:(a) unjustifiably delayed in breach of s 30(a) of the Act and contrary to itsown core values of accountability, timeliness and vigilance;24 Wright v Darvill [2015] NZHC 1821 at [37].(b) breached its statutory duty under s 17(1) of the Act and Mr Deliu's rightto natural justice under s 27 of the New Zealand Bill of Rights Act 1990;and(c) acted illegally in not processing the complaints.[45] As Mr Deliu appreciated, in this application for judicial review I focus onwhether the complaints were lawfully processed by IPCA, not on their merits.First complaint[46] The first complaint in issue is one that Mr Deliu sent to IPCA by email dated21 January 2018 alleging that Police had violated his privacy rights by investigatinghis financial affairs in 2015.[47] IPCA admits that it received the first complaint on 22 January 2018 and saysthat, through oversight, it did not determine the complaint. IPCA says this was one ofseven complaints Mr Deliu made to IPCA between 19 and 23 January 2018. It saysthat on 27 April 2021, in the course of preparing its statement of defence, it discoveredMr Deliu's email, identified it as a complaint that had not been actioned, opened a casefile and commenced an investigation. On 17 May 2021, IPCA advised Mr Deliu thatit had not found anything of concern in relation to the conduct of Police, did notidentify anything warranting further investigation and that pursuant to s 18(2) of theAct IPCA would not be taking any further action and the matter would be closed.[48] Thus, IPCA acknowledges that it did not address this complaint in 2018 andmake any decision, even a decision to take no action on the complaint. It does notsuggest the delay until 2021 was reasonable even though the "due expedition"requirement in s 30(a) applies specifically to investigations, which IPCA made nodecision to commence.[49] The primary issue is whether IPCA breached its duty under s 17(1) as alleged.Section 17(1) envisages initial consideration of a complaint before deciding on theprocedure IPCA proposes to adopt. Clearly, s 17(1) does not require IPCA toinvestigate every complaint. But I consider that s 17(1) requires IPCA to decide on atleast one of the procedures referred to even though the introductory words state thatIPCA "may" do all or any of them. That interpretation of s 17(1) is supported bysubsection (2) which states that IPCA shall advise the Commissioner and thecomplainant "of the procedure it proposes to adopt under subsection (1)". I do notaccept Mr Smith's submission that s 17(2) only applies if IPCA decides to take action.Deciding to take no action is one of the procedures it is required to advise about.This interpretation of s 17(1) is also consistent with the statutory scheme and purpose.[50] Therefore, failing to decide on at least one of the procedures within areasonable time is a breach of s 17. I do not consider it is also a breach of naturaljustice. The principles of natural justice focus on the opportunity to be heard before adecision rather than the requirement to make a decision. Also, given my approach tos 17, it is unnecessary to consider whether IPCA's stated core values give rise to anyprocedural legitimate expectation.[51] Finally, Mr Deliu's complaint that IPCA acted illegally also subsumes hisallegation of bad faith. As this requires assessment of IPCA's overall handling of thefive complaints, I will address this separately below.Second complaint[52] The second complaint is one Mr Deliu sent to IPCA by email also dated21 January 2018 alleging that a Police detective had perjured herself and/or misled theAuckland District Court in a search warrant application in August 2016.The allegation was that the detective had represented that she would comply with herobligations relating to privileged material when she had no intention of doing so andnever took any steps to do so.[53] IPCA says the second complaint was connected to a previous complaint lodgedby Mr Deliu in 2016 and constituted supplementary information rather than a discretecomplaint. It says it reviewed the Police records, found no misconduct and advisedMr Deliu on 23 March 2018 of its decision and that it would be taking no furtheraction.[54] IPCA says that Mr Deliu requested the matter be reopened on 1 October 2020.It became aware of the judgment of Duffy J in Deliu v New Zealand Police findingthat the August 2016 search did not meet the requirements of s 143 of the Search andSurveillance Act 2012 and that Police had arbitrarily detained Mr Deliu.25Upon further review, IPCA agreed with Duffy J that the failings were due to ignoranceof the law rather than malice or deliberate flouting and found no other misconduct orneglect. It determined that no further action was necessary. On 30 October 2020, itwrote to Mr Deliu setting out its findings and advising that no further action would betaken.[55] Subsequently, however, IPCA learned that Duffy J's judgment had beenappealed. On 4 December 2020, it apologised to Mr Deliu for the confusion andadvised that it would be in touch with him once the appeal process was finalised.[56] Mr Deliu submitted that this complaint has nothing to do with the ongoing civilproceedings and that IPCA's response indicates bad faith. He accepted it wasreasonable to await the outcome of the strike out application in the civil proceeding,which was determined by Downs J on 19 May 2017.26 The strike out application wasdismissed in respect of Mr Deliu's claim but he was required to replead, confining hisclaim to arbitrary detention. Mr Deliu submitted that the effect was that a wider claimwas struck out (albeit he also pursued claims in false imprisonment and misfeasancein public office). At trial before Duffy J, his claim for arbitrary detention by Policesucceeded but his other claims were dismissed. Mr Deliu submitted the search issueis no longer before the Court. He relied on an agreed list of issues prepared for theCourt of Appeal dated 12 October 2021. He seeks an order that IPCA determine thiscomplaint.[57] I accept that this complaint was connected to the 2016 complaint which wasproperly deferred at least pending determination of the strike out. The complaint wasdealt with in March 2018. In October 2020, following Mr Deliu's request that it bereopened, it was further reviewed taking into account Duffy J's judgment. Again,25 Deliu v New Zealand Police [2020] NZHC 2506.26 S v Police [2017] NZHC 1060.IPCA advised Mr Deliu that no further action would be taken, albeit it appears fromIPCA's 4 December 2020 email that it reopened the complaint again due to the appeal.[58] I consider the scope of the Police appeal, confirmed by the agreed list of issues,indicates that the appeal does not concern the subject matter of this complaint and doesnot provide a basis for deferring consideration of it. Insofar as this complaint wasreopened again due to the appeal, IPCA should now consider whether to take anyfurther action.Third complaint[59] This complaint comprises two emails Mr Deliu sent to IPCA dated 22 January2018 alleging that a Police sergeant had refused to charge a (retired) judge with fraud.The supporting documents indicated that this complaint related to Mr Deliu's October2016 complaint to Police concerning earlier legal proceedings in which the judge hadmade a costs order against Mr Deliu personally as counsel. On 30 September 2020,Mr Deliu emailed IPCA asking it to acknowledge this complaint.[60] IPCA says it considered the relevant material, found no evidence of policemisconduct and made a decision not to investigate further. It also says that due to anoversight it did not open a separate case file and did not communicate that decision toMr Deliu at the time. IPCA says it became aware of this oversight when preparing itsstatement of defence in April 2021, investigated the complaint afresh andcommunicated its decision to Mr Deliu on 17 May 2021.[61] As indicated, s 30 applies specifically to investigations. If IPCA "investigated"this complaint before deciding not to investigate further, s 30(c) required it to informMr Deliu, as soon as reasonably practicable after the conclusion of the investigation,and in such manner as it thought proper, of the result of the investigation. If, instead,IPCA decided to take no action or no further action, s 18(3) required it to informMr Deliu of that decision and the reasons for it. IPCA failed to do either until May2021. My reasons above in relation to natural justice and IPCA's core values applyequally to this complaint, and I will address bad faith separately below.Fourth complaint[62] Mr Deliu complained to IPCA by email dated 23 January 2018 that Police hadconducted an ultra vires/mala fides investigation into him. This complaint alleged thatPolice had been "trying to get" Mr Deliu for eight years and that during an interviewwith a (former) client of his Police had indicated to her that they were investigatingwhether Mr Deliu had practised law whilst suspended. This complaint also referredto the background of Mr Deliu's conflict with the judge referred to above, anotherjudge, the New Zealand Law Society (NZLS) and the Police.[63] IPCA says that it erroneously categorised the fourth complaint as being relatedto a previous complaint rather than as a discrete new complaint due to the number ofemails Mr Deliu had sent in the surrounding days. IPCA says it investigated thecomplaint as part of the wider complaint and found no evidence that Police had actedoutside the scope of their authority or in bad faith, so no further action was taken.It admits that as part of preparing for this proceeding it discovered that its decision hadnot been communicated to Mr Deliu. It says that it considered it afresh and issued anew decision on 17 May 2021 reaching the same conclusion.[64] Since IPCA acknowledges that its categorisation was erroneous, this complaintwas not considered as a discrete complaint in accordance with s 17 until 2021. Insofaras IPCA relied on its earlier investigation of the wider complaint, s 30(c) would havebeen engaged. IPCA failed to inform Mr Deliu of the result until 2021. My reasonsabove in relation to natural justice and IPCA's core values apply equally to thiscomplaint also, and I will address bad faith separately below.Fifth complaint[65] Mr Deliu complained to IPCA by email dated 5 March 2018 in relation to thesame Police sergeant referred to in the third complaint. This complaint alleged that hehad conspired with two criminals to harm Mr Deliu by telling them that he would loveto catch Mr Deliu and/or that they should complain to NZLS. The complaint attacheda statement from one of them. Mr Deliu sent further information regarding thiscomplaint to IPCA on 27 March 2018 and 10 April 2018.[66] IPCA says the fifth complaint is substantially the same as a complaint lodgedon 16 December 2017, which IPCA dealt with on 19 January 2018. It says that itreceived follow up correspondence from Mr Deliu but advised the matter was closedon 1 February 2018. It says that it continued to receive correspondence from Mr Deliubut having said its file was closed did not correspond further. It says it did not receiveMr Deliu's email of 10 April 2018.[67] Mr Deliu submitted this complaint is not substantially similar to the earliercomplaint. He says the earlier complaint concerned the refusal of Police to investigatedeath threats against him. That complaint made no mention of the Police sergeantdefaming him. Mr Deliu submitted that while the death threats involve the sameindividuals, the complaint is not the same. He submitted this complaint has not beenproperly determined and seeks an order that IPCA determine it.[68] I consider this complaint is not substantially the same as the complaint dealtwith on 19 January 2018. That earlier complaint alleged Police had refused toinvestigate alleged harassment (Mr Deliu says death threats) against Mr Deliu and hisfamily. The 5 March 2018 complaint alleged that the Police sergeant had conspiredwith two criminals to harm Mr Deliu by telling them that the officer would love tocatch Mr Deliu and/or that they should complain to NZLS. IPCA's letter of 19 January2018 stating that no further action would be taken in relation to the harassmentcomplaint does not address the Police sergeant's alleged conversation. I consider itdoes not inform Mr Deliu of a decision that no action be taken in relation to the fifthcomplaint. Therefore, this complaint still needs to be considered in accordance withs 17.Bad faith[69] Mr Deliu submitted that IPCA has acted in bad faith on the basis that there ismore than a single instance of oversight and that IPCA lost the benefit of the doubt inrelation to its claimed oversights following service of the amended statement of claimin October 2019 and its application for security for costs in 2020.[70] While it was unnecessary to address alleged bad faith given my conclusion onthe preliminary issue, I do so now as it may be relevant to the issue of relief.[71] I accept that IPCA faced challenges given the total number of complaints andthe nature of some of Mr Deliu's correspondence. In total, it received more than 2,500complaints in the 2017/2018 year. IPCA's database held 17 email exchanges withMr Deliu in January 2018. Particular challenges with Mr Deliu's correspondenceincluded emails sent to different IPCA addresses, emails sent to other recipients andonly copied to IPCA, and emails relating to the same underlying incident or issuemaking it unclear whether they were restating an existing complaint, providing furtherinformation, expressing dissatisfaction with a decision or making a new complaint.[72] Even so, IPCA's explanation does not sit well with the stance it took in 2020when (together with other defendants) it applied for security for costs on groundsincluding that Mr Deliu's claims lack merit, albeit Palmer J's judgment indicates thefocus of IPCA's application was on s 33. I do not doubt that IPCA believed thatMr Deliu's claims lacked merit. But the circumstances indicate that IPCA had notreviewed its files in any detail when it applied for security on grounds including thathis claims lack merit, since it had not ascertained that it had:(a) received the first complaint but failed to take any steps to consider it;(b) failed to open a separate case file for the third complaint and failed tocommunicate its decision to Mr Deliu; and(c) erroneously categorised the fourth complaint as being related to aprevious complaint rather than a discrete new complaint and had failedto communicate any decision to Mr Deliu.[73] Further, even when Mr Deliu asked IPCA to acknowledge the third complainton 30 September 2020, it did not do so.[74] Taken together, these circumstances indicate that IPCA failed to consider thesecomplaints properly until it identified its shortcomings when preparing its statementof defence in April 2021. That is relevant to the issue of relief, but I do not concludethat IPCA's failures in relation to the first, third and fourth complaints involved badfaith. I consider the more likely explanation is that the shortcomings were the resultof a lack of adequate consideration due to a combination of IPCA's previous dealingswith Mr Deliu dating back to 2007 and the challenges created by his correspondence.I consider the same applies to the fifth complaint even though IPCA did not respondto the emails it received or seek clarification from Mr Deliu as to perceived overlapwith the earlier complaint.[75] I also do not consider that IPCA's handling of the second complaint indicatesbad faith. The complaint was dealt with in March 2018, reopened at Mr Deliu'srequest in October 2020 and dealt with again, albeit it appears that IPCA then reopenedthe complaint a further time due to the appeal. There is no evidence indicating thatIPCA knew then that the appeal did not concern the subject matter of this complaint.If it did, it would have had no reason to tell Mr Deliu it would be in touch with himonce the appeal process was finalised.Relief[76] In relation to the first, third and fourth complaints, Mr Deliu seeks a declarationeven though IPCA has now made a decision.27 In relation to the second and fifthcomplaints Mr Deliu seeks orders (mandamus) that IPCA process the complaints.He also seeks a letter of apology. IPCA opposes relief.[77] Public law remedies are discretionary.28 In Air Nelson Ltd v The Minister ofTransport,29 the Court of Appeal said that in considering whether to exercise itsdiscretion not to grant a remedy, the Court can take into account the needs of goodadministration, any delay or other disentitling conduct of the claimant, the effect onthird parties and the utility of granting a remedy. It then said that nevertheless theremust be extremely strong reasons to decline to grant relief.30 Since then, the Court ofAppeal has observed that Air Nelson was directed towards situations where theclaimant had suffered substantial prejudice and that a more nuanced approach mightbe necessary in the generality of cases.31 That Court also noted that it is27 The declaration sought in the pleading for each complaint, that IPCA has breached one or more ofits core values and/or violated Mr Deliu's human right to natural justice, is inapt and supersededby the declaration now sought in relation to the first, third and fourth complaints.28 Judicial Review Procedure Act 2016, s 18(1).29 Air Nelson Ltd v The Minister of Transport [2008] NZCA 26 at [59].30 At [60].31 Secretary for Justice v Simes [2012] NZCA 459 at [117].well-established that irregularities and unfairness in a hearing process may be "cured"if there is a further process of appeal or review that involves a complete rehearing.32[78] In relation to the first, third and fourth complaints, the failures have since beenaddressed and IPCA has apologised to Mr Deliu. Mr Smith reiterated that the absenceof prompt disposal and communication is regretted, but submitted that a declarationwould serve no purpose as the delay did not cause prejudice.33 While IPCA does notconfer legal remedies and there is no right to have a complaint investigated, I considerits failure to consider a complaint or advise of the outcome may nevertheless give riseto prejudice. Given the delay in this case, including after judicial review proceedingswere filed, I would not decline relief on the basis that Mr Deliu has not beenprejudiced.[79] As the failures have since been addressed, the question is whether a declarationwould serve a useful purpose. If some form of relief could have a practical value thenit ought to be granted, as the Court of Appeal said in Just One Life Ltd v QueenstownLakes District Council.34 In that case, the Court noted that declarations that theoriginal consents were invalid were not sought on appeal because the granting of newconsents meant that any declaration would have no practical effect.35 Here, thedeclaration would not concern the validity of superseded decisions but the failure toaddress the complaints.[80] Mr Smith relied on Deliu v The Office of the Judicial Conduct Commissionerwhere relief was declined. However, that case is distinguishable as relief was declinedon the basis that the delay was caused by a lack of resources and the issue was betterremedied by bringing the Court's judgment to the attention of the Executive.36 Here,IPCA's resource constraints were not the overriding issue.32 At [109].33 Citing Huia Resorts Ltd v Ashburton District Council [2005] NZRMA 449.34 Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA) at [39].35 At [4]. See generally Matthew Smith The New Zealand Judicial Review Handbook (2nd ed,Thomson Reuters, Wellington) at [19.6.1] and [19.7].36 Deliu v The Office of the Judicial Conduct Commissioner [2012] NZHC 356.[81] This judgment addresses IPCA's statutory obligations and concludes that itfailed to address the first, third and fourth complaints in accordance with therequirements of the Act irrespective of whether a declaration is granted. But I considera declaration to that effect will have some practical value for the parties and in thepublic interest, and there is no good reason to decline to grant relief.[82] In relation to the second complaint, I have concluded that it was dealt with inMarch 2018, again in October 2020 and, insofar as it was subsequently reopened dueto the appeal, IPCA should now consider whether to take any further action since theappeal does not concern the subject matter of the complaint. But in thosecircumstances an order (mandamus) is neither necessary nor appropriate.[83] In relation to the fifth complaint, I have concluded that it is not substantiallythe same as the earlier complaint and still needs to be considered in accordance withs 17. In the circumstances, I consider that an order that IPCA consider the fifthcomplaint in accordance with s 17 is the appropriate relief.[84] While I accept that the apology in IPCA's letter to Mr Deliu dated 17 May 2021has no application to the second and fifth complaints, it is not part of the Court'sfunction on this application for judicial review to order an apology.Result[85] Mr Deliu is entitled to the following relief:(a) a declaration that IPCA failed to address Mr Deliu's first, third andfourth complaints (emails dated 21, 22 and 23 January 2018) inaccordance with the requirements of the Act; and(b) an order that IPCA consider the fifth complaint in accordance with s 17of the Act.Costs[86] Mr Deliu is entitled to costs. If they cannot be agreed, the parties are to filememoranda not exceeding three pages within 15 working days, and I will determinecosts on the papers.________________________________Gault J