DELIU v DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2022] NZHC 2061

DELIU v DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2022] NZHC 2061 [19 August 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-1756[2022] NZHC 2061UNDER The Judicial Review Procedures Act 2016,Part 30 High Court Rules, New Zealand Billof Rights act 1990 and DeclaratoryJudgments Act 1908IN THE MATTER OF Proceedings moving for an application forjudicial review, writs, bill of rights claimsand a petition for declaratory reliefBETWEEN FRANCISC CATALIN DELIUApplicantAND DEPUTY LEGAL COMPLAINTSREVIEW OFFICERRespondentHearing: 18 May 2022Appearances: The applicant in personNo appearance by respondent (excused)S Jerebine as contradictorJudgment: 19 August 2022JUDGMENT OF POWELL JThis judgment was delivered by me on 19 August 2022 at 11 am pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Crown Law / Te Tari Ture o Te Karauna, Wellington (D Jones / CPC Wrightson)S Jerebine, Bank Chambers, AucklandCopy:Mr Deliu, Millwater, Auckland[1] In these proceedings the applicant, Francisc Deliu, seeks judicial review ofthree related procedural decisions made by a Deputy Legal Complaints Review Officer("DLCRO"), Owen Vaughan.[2] Mr Vaughan had been assigned to hear three applications for review byMr Deliu pursuant to s 193 of the Lawyers and Conveyancers Act 2006 ("LCA").Mr Deliu sought review of three complaints determined against him; one in 2016 bythe Wellington Standards Committee and two in 2017 by the National StandardsCommittee of the New Zealand Law Society ("the reviews").[3] Mr Deliu alleges that in the period leading up to the scheduled hearing of thereviews:(a) Mr Vaughan failed to recuse himself when requested to do so byMr Deliu;(b) Mr Vaughan otherwise failed to disclose his association with membersof the National Standards Committee/Wellington Standards Committeeor with those who were the subject of the complaints of those decisions;and(c) Mr Vaughan had moved to deny Mr Deliu a hearing in person.1[4] As the respondent, the DLCRO, is appropriately abiding the decision of thisCourt, Ms Jerebine was appointed to act as a contradictor on the applications.Factual background[5] The decisions of the Wellington Standards Committee and National StandardsCommittee at issue were released in 2016 and 2017 respectively. The WellingtonStandards Committee decision related to a series of comments made by Mr Deliu abouta number of individuals, none of whom were named in the decision. The NationalStandards Committee decisions related to a specific complaint brought by a1 Actually a hearing by AVL given Mr Deliu is now permanently based out of New Zealand.practitioner for comments made about him by Mr Deliu, and a complaint about thequality of representation provided by Mr Deliu to a former client.[6] Mr Deliu applied to review each of the decisions. The reviews were set downfor hearings before Rex Maidment, the Legal Complaints Review Officer ("LCRO"),but in June and July 2018, after Mr Deliu failed to appear at the hearings set down,they were struck out by Mr Maidment and the decisions of the Standards Committeeswere confirmed.2[7] Mr Deliu applied to the High Court for judicial review of the LCRO decisions.On 3 December 2020 Palmer J issued a minute that recorded a consent decisionfinding that, through no fault of Mr Maidment, there had been a natural justice error.The LCRO decisions of 25 June, 18 July and 19 July 2018 were quashed and thereviews remitted back to the LCRO for reconsideration.[8] Following remission, in April 2021 a LCRO staff member, Carolyn Umali,sought Mr Deliu's consent for the three reviews to be determined on the papers.Mr Deliu declined and confirmed he wished an oral hearing.[9] On 10 May 2021, Ms Umali noted Mr Deliu's request for hearings and soughtto confirm details about Mr Deliu's attendance at the hearings. On 17 May 2021,Mr Deliu responded to confirm that he would attend virtually during New Zealandbusiness hours and sought a hearing date after 28 July 2021.[10] On 3 August 2021, Ms Umali emailed Mr Deliu proposing four alternativedates for the hearings to take place by telephone. On 4 August 2021, Mr Deliuconfirmed his availability for a hearing on 14 September 2021. Ms Umalisubsequently issued Notices of Applicant-Only Hearings for all three hearings to beheld on 14 September 2021 and noted a presiding officer had yet to be assigned to thehearings.2 Deliu v Chambers LCRO 98/2017, 105/2017, 223/2017, 25 June 2018; Deliu v WellingtonStandards Committee 1 LCRO 191/2016, 18 July 2018; Deliu v Chen LCRO 92/2017, 19 July2018.[11] On 12 August 2021 Mr Deliu emailed Ms Umali again and proceeded to gothrough a list of LCRO/DLCRO potentially available to hear the reviews. Mr Deliusought the recusal of four of the six officers he named, including Mr Vaughan on thegrounds Mr Vaughan "used to get red, nervous and stutter in [Mr Deliu's] presence".Mr Deliu then asked who had been assigned to hear his review.[12] Later that same day Mr Deliu was advised that Mr Vaughan had been assignedto the reviews. Mr Deliu responded:Under the Official Information Act 1982 I want a copy of his entire HR file,including but not limited to his CV and especially previous employment in theregulatory system. He is about as classic a good old boy as I have seen in thesystem and is the antithesis of a non-lawyer as required by the Act. He ismates with NZLS club members and so I want to inquire into conflicts.[13] On 16 August 2021, Mr Deliu requested that the 14 September hearings beadjourned on the basis that he would not receive a response to his Official InformationAct request in time for him to consider whether the information received wouldsupport a recusal application.[14] In response, on 17 August 2021 Mr Vaughan issued three identical minutes oneach of Mr Deliu's review files recording:3[1] This file has been assigned to myself. Mr Deliu seeks that I recusemyself. He has provided no reasonable grounds to support hisapplication.[2] He has applied under the Official Information Act (OIA) for personaldetails and information.[3] Notwithstanding any response to the OIA request, there is no reasonfor recusal.[4] By email, 4 August 2021, Mr Deliu advised that the 14th Septemberwas a suitable date for the hearing to proceed. Mr Deliu now seeksan adjournment of the date.[5] No adjournment is granted.[6] This decision is final and no further correspondence in relation to therequest for an adjournment and/or the OIA application will beacknowledged or responded to.3 Deliu v Wellington Standards Committee 1 LCRO 46/2021, 17 August 2021; Deliu v Chen LCRO47/2021, 17 August 2021; Deliu v Chambers LCRO 48/2021, 17 August 2021.[7] If Mr Deliu does not provide his submissions no less than 2 weeks priorto the hearing as directed, and does not appear as directed, this reviewwill be completed on the papers.[15] Mr Deliu filed submissions on 31 August 2021. These remained focused onthe issue of recusal. The structure of the submissions is at times difficult to followbut it is clear that overall Mr Deliu concentrated on a particular issue: that since theenactment of the LCA those appointed as LCRO and DLCRO (including Mr Vaughan)were not "real lay people" and as a result provided a basis for Mr Vaughan's recusal.As Mr Deliu explained:... Preliminarily, I move to recuse Mr Vaughan and have a new LCROappointed by the government to hear these reviews, and that it be an actual layperson at that. These are my grounds.The first reason for this is because he is part of what I will colloquially referto as the "good old boys club" meaning he is the antithesis of an independentnon-lawyer to oversee standards committees of the New Zealand Law Society.According to the government's own press release, Mr Vaughan practiced as alawyer for 33 years and further served 10 years on the Law PractitionersDisciplinary Tribunal and on the current New Zealand Lawyers andConveyancers Disciplinary Tribunal:[16] Developing this argument Mr Deliu spent some time delineating Mr Vaughan'slegal experience before stating:Mr Vaughan thus continued to consider himself a lawyer. This defeats thewhole purpose of [s] 190(1) which is to provide for a non-lawyer toindependently conduct reviews of decisions of the standards committees ofthe New Zealand Law Society, but more importantly shows that he does notconsider himself detached from the profession despite his appointment.The a priori Law Practitioners Act 1982 similarly had an office known as the"Lay Observer", [ss] 96-97. The main difference is that those individuals werereal lay people. Since the 2006 Act came into force the system has stoppedappointing actual lay people and instead selected those who are well-entrenched in the system and who thus could not realistically be expected toact truly independently.(footnote omitted)[17] Mr Deliu then detailed four examples of LCRO appointees whoseappointments in his view were thereby flawed.44 The four examples named were Duncan Webb, Hanneke Bouchier, Dorothy Thresher and RobertHesketh. At the hearing it was suggested that it was Mr Vaughan's relationship with the fournamed examples that provided a basis for recusal, but the structure of the submissions instead[18] The thrust of Mr Deliu's submissions was captured in the followingparagraphs:Because of my history of conflict with various actors in this Office, andbecause the two features they all seem to have in common is they: A) arelawyers in disguise as lay people, B) seem to have real difficulties with basicethical issues that often do not even require legal training but basic commonsense, but most crucially C) all seem to somehow do wrong by me, then Idemand that a new, fresh and truly "lay" LCRO be appointed to conductthese reviews. I have three adverse disciplinary findings against me and thisis my one and only opportunity for a de novo review. I will not accept anythingless than a fully fair process.I thank the Deputy Legal Complaints Review Officer in advance for hisserious consideration of these issues I have raised, including a request to theMinister of Justice for my reviews to be heard by an actual lay person who istruly (and not for show) independent from the legal profession, [s] 190 of theLawyers and Conveyancers Act 2006.(emphasis in original)[19] Interspersed within the submissions were two requests for disclosure. The firstprovided:I also demand that Mr Vaughan disclose any and all dealings he has hadwith any of the "victims" of my supposedly untoward communications infile 12902. Frankly, this should have been done at the same time as the advicethat he had been appointed to this file so that I would have adequate time toconsider my position and prepare a recusal application that dealt with otherpossible conflicts. It is not for me to have to ask for these things, but ratherthose in authority should be fully transparent. Be that as it may, I now formallyseek disclosure.(emphasis in original)[20] While the second stated:I thus demand that Mr Vaughan disclose any and all dealings he has hadwith any of the standards committee members that sat on either theNational Standards Committee for the period of 11.09.2014 – 28.03.2017 infile number 11979 (review file number 47/2021), 11.09.2014 – 19.04.2017 infile number 11982 (review file number 48/2021) or the Wellington StandardsCommittee 1 for the period of 12.01.2015 – 26.05.2017 (being the time fromwhen an own motion investigation was first considered up until thedetermination on publication after which the file was closed) in file number12902 (review file number 46/2021).makes clear that they were each included as examples of non-lay people appointed asLCRO/DLCRO.(emphasis in original)[21] On 6 September 2021 Mr Vaughan responded by once again issuing threeidentical minutes on each of the three review files:5[1] Dr Deliu has filed submissions in which, primarily, he moves that Irecuse myself from this review.[2] In earlier correspondence, Dr Deliu has also sought that I recusemyself.[3] In [3] of a Minute dated 17 August 2021, I recorded that there was noreason for me to recuse, and declined to do so.[4] In his present submissions, Dr Deliu questions the independence ofmembers of this Office. He requests that these reviews be heard byan 'actual lay person who is truly independent from the legalprofession'.[5] None of the Review Officers appointed by the Minister of Justice fallunder the category of what Dr Deliu considers to be an 'actual layperson'. This review must be conducted by a presently appointedReview Officer.[6] Over the years since the creation of this Office by the Lawyers andConveyancers Act 2006, Dr Deliu has moved numerous times forrecusal of Review Officers assigned to reviews involving himself.One of the earliest was made in Deliu v Godinet LCRO 218/09. Someof the reasons discussed there are equally as relevant to the currentapplication by Dr Deliu.[7] Dr Deliu's present submissions do not present any cogent reason forme to recuse myself. I decline (again) to do so.[8] Para [7] of the Minute of 17 August reads:If Dr Deliu does not provide his submissions no less than 2 weeksprior to the hearing as directed, and does not appear as directed, thisreview will be completed on the papers.The date by which submissions were to be filed was therefore31 August 2021. No substantive submissions have been received.[9] I infer from this that Dr Deliu no longer wishes to presentsubmissions. Oral submissions alone will not assist this review.[10] With Dr Deliu's consent, I can retrieve any submissions made by himpreviously and complete this review on the papers.[11] Dr Deliu is requested to respond to this suggestion by 5 pm NewZealand time on Wednesday, 8 September 2021.5 Deliu v Wellington Standards Committee 1 LCRO 46/2021, 6 September 2021; Deliu v ChenLCRO 47/2021, 6 September 2021; Deliu v Chambers LCRO 48/2021, 6 September 2021.[22] Mr Deliu responded the next day, 7 September 2021, by filing submissionsaddressing the merits of the reviews. These were acknowledged by Mr Vaughan infurther minutes issued later the same day on each of the review files, which minutesthen went on to record:6[3] Auckland is presently locked down under COVID level 4. Under thislevel, Review Officers and Ministry staff are unable to attend theworkplace. The hearing scheduled for 14 September cannot nowproceed on that date and it is likely to be some months before an oralhearing can be rescheduled.[4] The right of the respondent to have this review completed must beacknowledged whether or not they are actively participating in thereview.[5] The current circumstances present a need to reconsider whether or notan oral hearing is necessary. Dr Deliu is well qualified to be able toexpress his submissions in writing. He has been provided with everyopportunity to do so but is now provided with a final opportunity togive reasons why an oral hearing is required.[6] Reasons are required no later than two weeks following the date ofthis Minute. The copies of the authorities required are to be providedby the same date.[23] The indication that Mr Deliu may lose his oral hearings received an immediateemail response. First, Mr Deliu advised:If Mr Vaughan denies me a hearing I will go to the High Court, I have alreadybeen granted a hearing (twice) so it is unlawful to rescind it and it is not forme to maintain something I already have. I do not aver to the delay. Pleaseconfirm the new hearing date, ta.[24] Two hours later Mr Deliu elaborated further:If I do not get confirmation that my hearings will not be unlawfully taken awayfrom me forthwith I will sue the next working day. Mr Vaughan knows he hasimproperly not dealt with my recusal application, i.e., he has ignored theBouchier issue, as well as him claiming to be a lawyer to the High Court atthe same time as being a ["]lay["] person, and he has totally ignored myrequest for disclosure of his connections with standards committeemembers/the ["]victims["] of my offending and he knows I will raise this atthe hearing where he will no longer be able to not address these issues, hencehis sudden desire to vacate the hearing for improper purposes. Mr Maidmentgave me a hearing and the High Court ordered a reconsideration. Mr Vaughanconfirmed the Applicant-only hearing. The flu cannot change that as MrVaughan's sudden concern about delay is inexplicable for matters that date6 Deliu v Wellington Standards Committee 1 LCRO 46/2021, 7 September 2021; Deliu v ChenLCRO 47/2021, 7 September 2021; Deliu v Chambers LCRO 48/2021, 7 September 2021.back almost a decade, i.e., what difference will a couple of more months make,especially if I do not aver and the respondents could care less? It is also notablethat the power he relies on came into force after my review applications werelodged and so he is illegally applying it retroactively to my detriment. Pleaseadvise the Deputy's position, ta.[25] Four days later, on 11 September 2021,7 Mr Deliu made a further and finalrequest for disclosure from Mr Vaughan of the following information with regard tothe members of the Standards Committee whose decisions are under review and the"'Victims' of [Mr Deliu's] Unsatisfactory Conduct Electronic-Mails", naming all ofthose in both classes:I write to Mr Vaughan and demand that he disclose any and all connections,be they in the nature of business, pecuniary, professional or personalrelationships or associations, including but not limited to any friendships,acquaintances, partnerships, memberships in the same organizations(including but not limited to corporations, companies, societies, bodycorporates, boards, trusts or otherwise) and especially any mutual sittings onpublic bodies or private bodies performing public or quasi-public functions orotherwise, for the following individuals or relatives (including but not limitedto spouses, partners, parents, children, etcetera):[26] Although no formal minute appears to have been issued there is no dispute thatMr Vaughan has not yet heard nor determined the reviews pending the outcome ofthese present proceedings.[27] The final matter of significance to date was that on 8 October 2021, Jeff Orr,the Chief Legal Counsel for the Ministry of Justice, wrote to Mr Deliu regarding his13 August 2021 request under the Official Information Act for a copy of Mr Vaughan's"entire HR file, including but not limited to his CV". Mr Orr confirmed that there wasno HR file as such for Mr Vaughan but certain documents, including a CV, relating tohis appointment were held by the Ministry but that the information was withheld toprotect Mr Vaughan's privacy.7 It is noted in agreed facts regarding the memorandum it was filed on 11 September 2021 althoughon the actual email itself it is dated 10 September 2021.Issue 1 – should Mr Vaughan have recused himself?[28] The legal principles as to recusal are not in dispute. The legal test for recusalon the basis of bias is well established, as set out by the Supreme Court in Saxmere.8The question of apparent bias is whether a fair-minded lay observer might reasonablyapprehend that the decision-maker might not bring an impartial mind to the resolutionof the question the decision-maker is required to decide.[29] The Supreme Court confirmed that the question is one of possibility "real andnot remote", not probability. Two steps are required:9(a) First, the identification of what it is said might lead the decision-makerto decide a case other than on its legal and factual merits; and(b) Secondly, there must be an articulation of the logical connectionbetween the matter and the feared deviation from the course of decidingthe case on its merits.[30] The test for bias has been summarised in Siemer v Heron:10It is well-established that apparent bias arises only if a fair-minded andinformed lay observer might reasonably apprehend that there is a real and notremote possibility that the judge might not bring an impartial mind to theresolution of the question the judge is required to decide. The observer willnot adopt the perspective of a party seeking recusal unless objectively it is ajustified one. It is necessary for those making decisions on whether there isapparent bias in a particular situation first to identify what is said that mightlead a judge to decide the case other than on its merits and, secondly, toevaluate the connection between that matter and the feared deviation.[31] The fair-minded lay observer is presumed to be intelligent and to view mattersobjectively. They are neither unduly sensitive or suspicious, nor complacent.11 Theymust be taken to be a non-lawyer but reasonably informed about the workings of our8 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1NZLR 35.9 At [4], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.10 Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293 at [11].11 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 8, at [5].judicial system and the facts and issues relevant to the case. It has also been notedthat judges should not recuse themselves without sufficient cause.12[32] Though Saxmere and the legal principles of recusal were developed in thecontext of the recusal of judges, it has been noted that the principles apply with equalforce to tribunals and to their members.13Discussion – Issue 1[33] As the factual background makes clear there were two specific recusalapplications made by Mr Deliu in the course of the review proceedings:(a) On 12 August 2021, prior to Mr Vaughan having been assigned to thethree reviews;14 and(b) On 31 August 2021, for the reasons detailed in those submissions.15[34] It is beyond any dispute that the first of Mr Deliu's applications for recusal isbest described as spurious. Leaving aside the issue about whether an application forrecusal can properly be made before the decision-maker has even been appointed, inno circumstances can an allegation that a decision-maker "used to get red, nervous andstutter in [the litigant's] presence" could possibly be regarded as a basis for recusal.Mr Vaughan's response accordingly did not warrant any more detail than was given inhis minutes of 17 August 2021.[35] With regard to the application to recuse contained in the 31 August 2021submissions, it is equally clear that there was no merit in the grounds advanced byMr Deliu, specifically, that Mr Vaughan had to recuse himself because he was not an"actual lay person", and that an actual lay person needed to be appointed in order todetermine his review.12 A (SC 106/2015) v R [2016] NZSC 31 at [16].13 Brown v New Zealand Post Ltd [2016] NZHRRT 37 at [23].14 See [11] above.15 See [15]–[20] above.[36] As I discussed with Mr Deliu at the hearing there is nothing in the LCA thatrequires an actual lay person to hold the office of LCRO/DLCRO. Instead, s 190specifies:190 Legal Complaints Review Officer(1) A person who is not a lawyer or a conveyancing practitioner is to beappointed to be the Legal Complaints Review Officer.(2) The Legal Complaints Review Officer is to be appointed by theMinister, after consultation with the New Zealand Law Society and theNew Zealand Society of Conveyancers.(3) No person is deemed to be appointed in the service of the Crown for thepurposes of the Public Service Act 2020 or the GovernmentSuperannuation Fund Act 1956 by reason of the person's appointmentas the Legal Complaints Review Officer.[37] Far from requiring an actual lay person, it can be seen that the definition oflawyer contained in the LCA makes it clear that lawyer "means a person who holds acurrent practising certificate as a barrister or as a barrister and solicitor".16 It followsthat admission as a barrister and solicitor is no obstacle, nor is previous practice as alawyer as long as the candidate no longer holds a practicing certificate. The criteriafor appointment set out in s 191 of the LCA moreover are likely to render actual laypersons entirely unqualified for such a role:191 Criteria for appointmentIn appointing any person as the Legal Complaints Review Officer, theMinister must have regard, among other things to—(a) the person's personal attributes:(b) the person's knowledge of, and experience in, matters relevant tothe functions of the Legal Complaints Review Officer, such as—(i) the law of New Zealand:(ii) the provision of legal services:(iii) the issues related to professional conduct:(c) the person's ability, by reason of his or her skills or experience orboth, to deal with the resolution and management of disputes.16 Lawyers and Conveyancers Act 2006, s 6 definition of "lawyer".[38] It follows that Mr Deliu's objection detailed in the 31 August 2021 submissionsas a basis for Mr Vaughan's recusal was entirely misconceived, and Mr Vaughan'sresponse rejecting that approach was therefore entirely justified and consistent withthe statutory framework.[39] I am therefore satisfied that with regard to the first limb of Mr Deliu's reviewin this Court, Mr Vaughan responded appropriately to both of the specific recusalrequests made by Mr Deliu and that neither provided any basis for recusal in thecircumstances.Issue 2 – was there any failure to disclose on the part of Mr Vaughan?[40] Both Mr Deliu and Ms Jerebine also relied on the decision of the SupremeCourt in Saxmere17 in identifying the relevant principles with regard to the obligationon a decision-maker to disclose interests to a party.[41] While Saxmere was focused on the circumstances in which recusal isappropriate, a decision whether to seek recusal cannot be made unless there has beenappropriate disclosure of all relevant information, a proposition neatly illustrated bythe Supreme Court's own subsequent recall of Saxmere when further informationbecame available.18[42] With regard to the nature of the obligation Blanchard J observed:19 It is frequently the position that a judge will think it appropriate to alertcounsel and their clients to some circumstance which might at first blush,without sufficient information, attract attention. The judge does so in orderthat the parties to the case can consider the situation and either indicate alack of concern or, if thought fit, make a recusal application, upon whichfull consideration can be given to the validity of the objection to the judge'ssitting in the particular case.Notwithstanding what is said in Taylor v Lawrence about English practice,such disclosure is to be encouraged in a small jurisdiction like NewZealand where the limited number of available replacement judgesreinforces the general obligation for a judge to sit on all cases to which he17 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 8.18 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 122, [2010] 1NZLR 76.19 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 8, at [31]–[34].or she has been assigned. It is not fairly to be taken as an acknowledgementthat the circumstances give rise to a reasonable apprehension of bias. Itmerely indicates the need for the matter to be considered, on an informedbasis, by counsel and client. The practice of giving the parties prior adviceabout a connection with a party, a witness or a counsel is actually, as KirbyP remarked in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) PtyLtd, a protection of the manifest integrity of the judicial process and also adefence against later applications for disqualification.That of course assumes the prior disclosure is properly and adequatelymade. it is for a judge who makes a disclosure to ensure that the parties haveenough information, shorn of unnecessary detail, to make up their mindsabout whether to make a recusal application. They and their counsel shouldnot be placed in the embarrassing position of having to seek furtherinformation from the judge.[footnotes omitted][43] Likewise Tipping J stated:20 A matter should be disclosed in any case where it is possible that theobserver might reasonably think the judge could be biased as aconsequence of it. The judge or the court can then consider the responsesof all the parties to the disclosure and assess what course to take on thatfully informed basis.Discussion – Issue 2[44] Against that background it is clear Mr Vaughan did not at any point address therequest for disclosure made by Mr Deliu.[45] As the factual background section notes, Mr Deliu made an OIA request on12 August 2021 in respect of Mr Vaughan, and then requested specific disclosure fromMr Vaughan on both 31 August 2021 and 11 September 2021 with regard toMr Vaughan's dealings with:(a) The subjects of the complaints that formed the basis for the WellingtonStandards Committee decision; and20 At [48].(b) Members of the National Standards Committee and/or WellingtonStandards Committee 1 during defined periods while those Committeeswere considering the matters that formed the basis of the decisionsunder review.[46] There is no doubt Mr Vaughan did specifically address the OIA request "forpersonal details and information" in his minutes of 17 August 2021 and ultimately, asnoted, a formal response to the OIA request was provided by the Ministry of Justice.The minutes could also be seen as an implied assertion that Mr Vaughan had nothingto disclose of relevance to recusal at that time.[47] Despite that, the requests for disclosure contained in Mr Deliu's submissionsfiled on 31 August 2021 and 11 September 2021 were never responded to byMr Vaughan. With regard to the latter request it is clear that by then the reviews wereon hold pending the outcome of the present proceedings. With regard to the 31 August2021 request however, in the minutes of 6 September 2021 Mr Vaughan respondedonly to the request he recuse himself, noting that he had previously been requested torecuse himself and that he had previously determined "there was no reason for me torecuse, and declined to do so".[48] Mr Vaughan's response effectively relied upon the decision in the earlierminute and ignored the fact that the request for disclosure contained in the 31 August2021 submissions clearly covered different information than the OIA. Leaving asidethe abrasive, often inappropriate, and indeed belittling tone of both the requests andthe wider submissions focused upon recusal, Mr Deliu's request of 31 August 2021could not just be ignored. This did not mean that Mr Vaughan had to outline "alldealings" as requested by Mr Deliu. On the contrary, and as Mr Deliu accepted, theresponse could have been very brief, or otherwise confirmed, as before, there wasnothing to disclose "where it was possible that [an] observer might reasonably thinkthe [decision-maker] could be biased because of it" in terms of the judgment ofTipping J in Saxmere noted above. The request could not, however, simply be ignored,still less when there appears to have been some material provided by Mr Deliusufficient to provide at least some foundation for the existence of a previousrelationship between Mr Vaughan and the subjects of one of the decisions and/or thedecision-makers. It was therefore important for disclosure to occur with regard to thenature of those relationships so as to ensure "protection of the manifest integrity of thejudicial process". It likewise follows that until such disclosure had been made MrDeliu could not make an informed decision as to whether to make a further recusalapplication or not.[49] I therefore conclude that the second limb of Mr Deliu's review is made out.Issue 3 – was Mr Deliu entitled to a hearing in person and was that entitlementbreached?[50] At the time Mr Deliu first sought a review s 206(2) of the Lawyers andConveyancers Act provided:206 Proceedings of Legal Complaints Review Officer(2) If—(a) it appears to the Legal Complaints Review Officer that a reviewcan be adequately determined in the absence of the parties, theirrepresentatives, and witnesses; and(b) the parties consent to the review being determined in the absenceof the parties, their representatives, and witnesses,—the Legal Complaints Review Officer may conduct the review on the basis ofsuch information, records, reports, or documents as are available to the LegalComplaints Review Officer (including any obtained by the Legal ComplaintsReview Officer as a result of a request made under section 204(b)).(emphasis added)[51] In November 2018 after the initial dismissal of the reviews before thereinstatement s 206(2) was amended as follows:206 Proceedings of Legal Complaints Review Officer(2) Despite anything in this Act to the contrary, if it appears to the LegalComplaints Review Officer that a review can be adequately determinedon the papers, he or she may, without the consent of the parties, do soon the basis of the information available, including any informationobtained under section 204(b).(2A) Before doing so, he or she must give the parties a reasonableopportunity to comment on whether the review should be dealt with inthat manner.(2B) The hearing of a matter or any part of it may be conducted by telephone,audiovisual link, or other remote access facility if the Legal ComplaintsReview Officer considers it appropriate and the necessary facilities areavailable.Discussion – Issue 3[52] As the factual background section of this judgment makes clear, Mr Deliu hasconsistently emphasised the importance of an oral hearing (albeit with him attendingvirtually) on the reviews, and one was scheduled for 14 September 2021. As noted,the scheduled hearing was referred to as "Applicant-Only" which I understand to meanthat only Mr Deliu would be attending.[53] Despite the reviews having been set down for hearing and the subsequentassignment of Mr Vaughan, as the factual background section details:(a) Mr Vaughan's minutes of 17 August 2021 advised Mr Deliu ifsubmissions were not filed on time "this review will be completed onthe papers".(b) After no substantive submissions were received on 31 August 2021Mr Vaughan advised in the 6 September minutes:I infer from this that Dr Deliu no longer wishes to presentsubmissions. Oral submissions alone will not assist thisreview.With Dr Deliu's consent, I can retrieve any submissions madeby him previously and complete this review on the papers.Dr Deliu is requested to respond to this suggestion by 5 pmNew Zealand time on Wednesday, 8 September 2021.[54] Mr Vaughan makes it quite clear by his comments that he would prefer to dealwith the reviews on the papers, but equally made it clear that at that point at least heconsidered that the previous version of s 206(2) of the LCA applied, noting that "withMr Deliu's consent" Mr Vaughan could "complete [the] review on the papers".[55] Although Mr Deliu subsequently filed his substantive submissions as directed,Mr Vaughan chose to revisit the issue of the oral hearing once again in his 7 Septemberminutes, this time against the backdrop of the August 2021 lockdown in Auckland.[56] While it is acknowledged that the lockdown may have led to difficulties inproceeding with the scheduled hearing, it is noted that any Covid protocol applying toLCRO hearings at that time has not been placed before me. In any event any suchissues were minimised by the fact that the hearing was not taking place in person, itwas always intended to take place by telephone with only Mr Vaughan, Mr Deliu andRegistry staff present. Likewise, it is difficult to see why Mr Vaughan was concernedwith the effect of an adjournment on the respondents to the reviews, given that theyhad not participated in the reviews to that point and were not attending the hearing,while any such adjournment was likely to be minor in the overall scheme of things,where five years had already passed since the reviews were originally filed.[57] Instead, given the context and noting also that the lockdown was already inplace at the time the 6 September minutes were issued, I am satisfied that none of thematters set out by Mr Vaughan in his minutes of 7 September provided a basis forrequiring Mr Deliu to justify "why an oral hearing is required" when the reviews hadalready been set down for the hearing to proceed and it was quite clear that Mr Deliudid not consent to Mr Vaughan determining the reviews on the papers.[58] Inevitably the approach taken by Mr Vaughan acted as a red rag to Mr Deliuand resulted in the prompt issue of the present proceedings.[59] While I recognise that Mr Vaughan had not yet made a final decision aboutwhether an oral hearing would go ahead, and that there is a high bar for the availabilityof judicial review in preliminary decisions,21 the circumstances here represent an21 A Lawyer v New Zealand Law Society [2019] NZHC 1961 at [117].exceptional situation where the process in question has "seriously gone off the rails"22before a final decision is made. Requiring Mr Deliu to justify the need for an oralhearing was a step in the decision-making process capable of altering his rights,interests or liabilities,23 thereby making it amenable to review.[60] Having considered the issue I am satisfied that it was, as well as beingunreasonable and taking into account irrelevant matters, in breach of Mr Deliu'slegitimate expectations for Mr Vaughan to attempt to use the August 2021 lockdownand the effect of delay on respondents as a basis for reconsidering whether the oralhearing that had previously been allocated should be adjourned or potentiallydetermined on the papers when Mr Vaughan was clearly predisposed againstproceeding with a hearing.24 I am therefore satisfied that the third limb of Mr Deliu'sapplication for review has been made out.Decision[61] For the reasons set out above I have concluded:(a) Mr Vaughan did not err in declining to recuse himself in response toMr Deliu's requests of 12 August 2021 and 31 August 2021.(b) Mr Vaughan erred in law by not making disclosure in response to therequests by Mr Deliu on 31 August 2021 (subsequently elaborated uponon) 11 September 2021.(c) Mr Vaughan unreasonably and in breach of Mr Deliu's legitimateexpectations attempted to prevent an oral hearing of the reviews thathad previously been set down for hearing on 14 September 2021.22 Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 (HC) at[15]; cited in Singh v Chief Executive of the Ministry of Business, Innovation and Employment[2014] NZCA 220, [2014] 3 NZLR 23 at [36].23 Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries, above n 22, at [14].24 Legitimate expectation is a subset of natural justice, arising as a ground of review where a personlegitimately relies on a commitment made by a public authority, whether by some promise orsettled practice or policy: Ngāti Paoa Trust Board v Auckland Council [2022] NZHC 893 at [131].The principle is that a public authority is bound by its undertakings as to the procedure it willfollow: Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 351.[62] Given this position I direct:(a) Mr Vaughan is directed to provide disclosure on Mr Deliu's requests setout at paragraphs [19], [20] and [25] and informed by the list of namesin Mr Deliu's email of 11 September 2021 within three weeks of thedate of this judgment.(b) Mr Deliu will have a further two weeks to make a recusal applicationin relation to the disclosure provided. If no recusal application is madeMr Deliu's reviews are to be set down for an oral hearing before MrVaughan.(c) If Mr Deliu makes a recusal application Mr Vaughan is to determinewhether or not to recuse himself. In the event that he does not recusehimself the reviews are to be set down before Mr Vaughan but ifMr Vaughan recuses himself the reviews are to be set down for an oralhearing before another LCRO/DLCRO as appropriate.[63] For the reasons set out in other recent decisions involving Mr Deliu, Mr Deliuis a self-represented non-lawyer for the purposes of costs.25 Costs are therefore to liewhere they fall, but Mr Deliu is entitled to any reasonable disbursements in relation tohis application for review._______________________________Powell J25 Catalin v Independent Police Conduct Authority [2022] NZHC 1411 and Deliu v Johnstone [2022]NZHC 1557.