DELIU v THE DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2023] NZHC 956

DELIU v THE DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2023] NZHC 956 [27 April 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-2145[2023] NZHC 956UNDER the Judicial Review Procedure Act 2016,High Court Rules 2016 at Part 30, NewZealand Bill of Rights Act 1990 andDeclaratory Judgments 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 THE DEPUTY LEGAL COMPLAINTSREVIEW OFFICERRespondentHearing: 27 April 2023Appearances: Applicant in person (via VMR)No appearance by or on behalf of RespondentJudgment: 27 April 2023JUDGMENT OF WOOLFORD JSolicitors: Crown Law, WellingtonCopy to: Applicant[1] In a judicial review proceeding dated 1 November 2022, Mr Frank Deliuchallenges a decision of the Deputy Legal Complaints Review Officer (ReviewOfficer) dated 20 October 2022 declining to recuse himself from dealing withMr Deliu's case.[2] When the proceeding was called in this Court on 8 February 2023, counselD Jones appeared for the Review Officer and advised the Court that he would abideby the Court's decision. Lang J set the matter down for a formal proof hearing on27 April 2023. In a subsequent minute dated 1 March 2023, Campbell J declined toappoint counsel to assist the Court at the formal proof hearing.[3] Mr Deliu has filed a comprehensive affidavit and extensive submissions andappeared by way of VMR from the United States of America, where he currentlyresides. No affidavit evidence to the contrary has been filed. Nor have anycontradictory submissions been received.Decision under review[4] The decision under review is contained in a minute dated 20 October 2022.The material part of the minute states:[8] Only today has Mr Deliu applied for my recusal. The reasons set forthin the application are not correct, insulting and do not provide any basis forrecusal.[9] Mr Deliu's application for recusal is declined.[5] Mr Deliu complains that the Review Officer dismissed his recusal applicationwithout addressing a single one of the allegations against him, even though it is tritethat reasons are required, and without applying the required test, principles orprocedures set out in the Supreme Court decision of Saxmere Company Ltd v WoolBoard Disestablishment Company Ltd1 when deciding recusal.1 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1NZLR 35.[6] Mr Deliu also complains that the Review Officer completely ignored hisapplication for a hearing by way of VMR or similar, which would be recorded. Theminute dated 20 October 2022 merely states:The hearings will be conducted by telephone during business hours inNew Zealand.Discussion[7] The right to reasons is beyond dispute.2 Where a body is acting in a judicial orquasi-judicial role, the provision of reasons can be seen as an aspect of the principleof open justice. The giving of reasons is important because if reasons are not given itis not possible for a Court on review to know whether there has been an error ormistake by the decision-maker and is instead obliged to guess or infer.[8] In the present case, I am not going to guess or infer why the Review Officerdeclined Mr Deliu's application for his recusal. The Review Officer should haveprovided reasons. That is a reviewable error.[9] In the circumstances, I am not required to consider Mr Deliu's other oralternative submissions or the merits of Mr Deliu's application for recusal.[10] The Review Officer's decision on Mr Deliu's application for recusal isquashed. Mr Deliu's application is remitted back to the Review Officer forreconsideration. The Review Officer should also make a reasoned decision onMr Deliu's application for a hearing by way of VMR or similar, which would berecorded.____________________________Woolford J2 X & Y v Chief Executive Oranga Tamariki [2021] NZHC 2449 at [172]–[181].