DELIU v THE DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2023] NZHC 3340

DELIU v THE DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2023] NZHC 3340 [24 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-002063[2023] NZHC 3340UNDER the Judicial Review Procedure Act 2016,Part 30 of the High Court Rules 2016, NewZealand Bill of Rights Act 1990, DeclaratoryJudgments Act 1908 and common lawIN THE MATTER OF proceedings moving for an application forjudicial review, writs, bill of rights claims,and a petition for declaratory reliefBETWEEN FRANCISC CATALIN DELIUApplicantAND THE DEPUTY LEGAL COMPLAINTSREVIEW OFFICERRespondentHearing: 2 November 2023Appearances: Applicant in Person (by VMR)Respondent – Appearance excused (Abiding decision of Court)Judgment: 24 November 2023Reissued: 28 November 2023JUDGMENT OF WALKER J[Re-issued to correct typographical errors at paras 27 and 47]This judgment was delivered by me on 24 November 2023 at 4 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] The applicant, Francisc Deliu, seeks judicial review of procedural decisionsmade by the respondent, a Deputy Legal Complaints Review Officer (Deputy LCRO).This is not the first judicial review arising from the same disciplinary process. MrDeliu has succeeded in each of the earlier judicial reviews, in part or in whole.[2] The genesis is determinations by the Wellington Standards Committee andNational Standards Committee of complaints against Mr Deliu. One determinationwas by the Wellington Standards Committee in 2016. Two determinations were bythe National Standards Committee in 2017. The background stretches back evenfurther.[3] Mr Deliu applied to review each of those decisions pursuant to s 193 of theLawyers and Conveyancers Act 2006 (the Act). His reviews remain unresolvedsix years after the last of the three determinations.[4] Central to the judicial review now before this Court are two earlier judgments.In the first Powell J directed, among other things, that the Deputy LCRO providedisclosure in response to Mr Deliu's requests.1 In the second, Woolford J quashed theDeputy LCRO's decision declining to recuse himself, for failure to give reasons. Heremitted Mr Deliu's application for recusal back to the Deputy LCRO forreconsideration. He also directed that the Deputy LCRO make a reasoned decision onMr Deliu's application for a recorded hearing by way of Virtual Meeting Room (VMR)or similar.2[5] Mr Deliu contends that the Deputy LCRO has not complied with eitherPowell J's or Woolford J's directions, rendering the review process manifestly unfair.He makes this challenge on orthodox judicial review grounds including breach ofnatural justice, mistake of law and unreasonableness. Less orthodox is the primaryremedy which Mr Deliu seeks.[6] The Deputy LCRO is appropriately abiding the decision of this Court and sodid not participate in the hearing. At a pre-trial case management conference,1 Deliu v Deputy Legal Complaints Review Officer [2022] NZHC 2061 [Judgment of Powell J].2 Deliu v Deputy Legal Complaints Review Officer [2023] NZHC 956 [Judgment of Woolford J].Campbell J directed that the "record" could be produced to the Court as a bundle ratherthan in affidavit form in view of Mr Deliu's description of the nature of the proposedmaterial. He also directed that, once Mr Deliu narrowed his challenge by removingone of his pleaded allegations, it was not necessary to appoint counsel to assist theCourt.[7] Consequently, there was no material contradicting Mr Deliu's statement ofclaim and no opposition at the hearing. Mr Deliu appeared in person by VMR froman overseas jurisdiction.Decisions under review[8] The first 'decision' before this Court comprises the series of disclosureresponses from or on behalf of the Deputy LCRO. The issue is whether Mr Deliu'sright to natural justice has been breached by a failure to comply. Disclosure wasdirected in the first place to enable Mr Deliu to make an informed assessment ofwhether there are grounds to seek the Deputy LCRO's recusal.[9] The second 'decision' before this Court is the Deputy LCRO's reconsiderationof recusal, delivered on 6 July 2023.3 At the same time, the Deputy LCRO alsodetermined that the substantive hearing on all three review applications are to beconducted by telephone. This is notwithstanding Mr Deliu's request that there be ahearing by audio-visual link.[10] The thrust of Mr Deliu's case is that the process associated with his substantivereviews under the Act have become farcical with no substantive progress since 3December 2020. He contends that failures by the Deputy LCRO show that the reviewprocess is such that he has no hope of fair treatment in the substantive review. He asksthis Court to direct that his extant reviews now be decided by another Deputy LCRO.In essence, while challenging the process by which the Deputy LCRO has dealt withhis applications for recusal, he effectively seeks that officer's recusal. He submits thatthis Court is entitled to do so without necessarily making any finding of bias againstthat officer.3 That decision is erroneously dated 6 July 2022.[11] In the alternative, Mr Deliu asks for a writ of certiorari requiring the respondentto reconsider the decisions in accordance with the two prior judgments and thejudgment of this Court along with a declaration as to breach of natural justice and anorder quashing the second decision.Background[12] It is unnecessary to traverse the history of this and Mr Deliu's previous judicialreview applications in any detail. The background is helpfully set out in Powell J'sjudgment.4 In short, each of the judicial review applications to date have challengedprocedural decisions leading up to the scheduled hearing of the reviews. Theprocedural decisions fall into one of the following interrelated categories:(a) Recusal applications which the respondent has consistently declined.(b) Requests for disclosure of, among other things, the Deputy CLRO'sprior association with members of the National Standards Committeeand Wellington Standards Committee or individuals who have been thesubject of complaints made against Mr Deliu; and(c) Mode of hearing. As developed, this is whether the substantive hearingis to be conducted by telephone or by some audio-visual platform andrecorded.5Judgment of Powell J[13] Three issues were determined by Powell J:(a) Whether the Deputy LCRO should have recused himself at the requestof Mr Deliu. Those requests were made on 12 August 2021(before anyDeputy LCRO was allocated to the matter) and 31 August 2021.4 Judgment of Powell J, above n 1, at [5]–[27].5 Counsel for the respondent filed a memorandum dated 19 October 2023 advising, among otherthings, that substantive hearings before the LCRO are recorded as a matter of usual practice,similar to court and tribunal hearings. She confirmed that the same would apply to any futurehearing of the underlying review at issue in this case.(b) Whether the respondent ought to have addressed various requests fordisclosure of information pertaining to the Deputy LCRO's associationwith identified persons.(c) Whether Mr Deliu was entitled to a hearing in person.[14] Powell J held that the Deputy LCRO had responded appropriately to both ofthe specific recusal requests made and neither 'application' provided any basis forrecusal in the circumstances.6 Thus the first issue was decided against Mr Deliu.[15] He determined that Mr Deliu's ability to make an informed decision on whetherto pursue recusal required appropriate disclosure of all relevant information but therespondent had not at any point addressed those requests.7 He said:[48] Leaving aside the abrasive, often inappropriate, and indeedbelittling tone of both the requests and the wider submissions focused uponrecusal, Mr Deliu's request of 31 August 2021 could not just be ignored. Thisdid not mean that [the Deputy LCRO] had to outline "all dealings" asrequested by Mr Deliu. On the contrary, and as Mr Deliu accepted, theresponse could have been very brief, or otherwise confirmed, as before, therewas nothing to disclose "where it was possible that [an] observer mightreasonably think the [decision maker] could be biased because of it" in termsof the judgment of Tipping J in Saxmere noted above. The request could not,however, simply be ignored, still less when there appears to have been somematerial provided by Mr Deliu sufficient to provide at least some foundationfor the existence of a previous relationship between [the Deputy LCRO] andthe subjects of one of the decisions and/or the decision makers. It wastherefore important for disclosure to occur with regard to the nature of thoserelationships so as to ensure "protection of the manifest integrity of thejudicial process". It likewise follows that until such disclosure had been madeMr Deliu could not make an informed decision as to whether to make a furtherrecusal application or not.(Emphasis added)[16] The second limb of Mr Deliu's review was therefore made out.[17] On the third issue, Powell J was satisfied that the circumstances represented anexceptional situation justifying review in respect of a preliminary rather than a final6 At [39].7 At [41].decision.8 The determination to make a decision on the papers was unreasonable, tookinto account irrelevant matters and breached Mr Deliu's legitimate expectations. Hetherefore directed an oral hearing either before the same Deputy LCRO (if he did notrecuse himself following provisional disclosure) or before another LCRO/DeputyLCRO as appropriate.9 Mr Deliu therefore also succeeded in his third ground ofreview.[18] Powell J directed disclosure in accordance with Mr Deliu's requests which heset out in full in the judgment as follows:[19] Interspersed within the submissions were two requests for disclosure.The first provided:I also demand that [the Deputy LCRO] disclose any and alldealings he has had with any of the "victims" of my supposedlyuntoward communications in file 12902. Frankly, this should havebeen done at the same time as the advice that he had been appointedto this file so that I would have adequate time to consider my positionand prepare a recusal application that dealt with other possibleconflicts. 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 nowformally seek disclosure.(emphasis in original)[20] While the second stated:I thus demand that [the Deputy LCRO] disclose any and alldealings he has had with any of the standards committee membersthat sat on either the National Standards Committee for the period of11.09.2014 – 28.03.2017 in the file number 11979 (review file number47/2021), 11.09.2014 – 19.04.2017 in file number 11982 (review filenumber 48/2021) or the Wellington Standards Committee 1 for theperiod of 12.01.2015 – 26.05.2017 (being the time from when an ownmotion investigation was first considered up until the determinationon publication after which the file was closed) in file number 12902(review file number 46/2021).(emphasis in original)[25] Four days later, on 11 September 2021, Mr Deliu made a further andfinal request for disclosure from [the Deputy LCRO] of the followinginformation with regard to the members of the Standards Committee whose8 Referring to Marlborough Aquaculture Limited v Chief Executive, Ministry of Fisheries [2003]NZAR 362 (HC) at [15] cited in Singh v Chief Executive of the Ministry of Business, Innovationand Employment [2014] NZCA 220, [2014] 3 NZLR 23 at [36].9 At [59].decisions are under review and the "'Victims' of [Mr Deliu's] UnsatisfactoryConduct Electronic-Mails", naming all of those in both classes:I write to [the Deputy LCRO] and demand that he disclose any andall connections, be they in the nature of business, pecuniary,professional or personal relationships or associations, including butnot limited to any friendships, acquaintances, partnerships,memberships in the same organizations (including but not limited tocorporations, companies, societies, body corporates, boards, trusts orotherwise) and especially any mutual sittings on public bodies orprivate bodies performing public or quasi-public functions orotherwise, for the following individuals or relatives including but notlimited to spouses, partners, parents, children et cetera)[19] The required disclosures all relate to members of the Standards Committeewhose decisions are under review and the persons subject to the "unsatisfactoryconduct electronic-mails".The disclosures by the Deputy LCRO[20] On 29 August 2022, the Deputy LCRO wrote referencing the judgment andadvising:As directed by Powell J at [62(1)] of the judgment, dated 19 August 2022, Iadvise:1. Nigel Hampton QC was a member of the Law PractitionersDisciplinary Tribunal and the New Zealand Lawyers andConveyancers Disciplinary Tribunal during the time I was amember of those Tribunals.2. Ms Styants is known professional [sic] to me throughcommon membership of Law Society committees.3. Ms Ollivier is known to me by virtue of her role as GeneralManager Regulatory of the New Zealand Law Society.4. Ms Bouchier was the Legal Complaints Review Officerduring a period of time when I was a Deputy LegalComplaints Review Officer.[21] Mr Deliu considered that this response did not address dealings, connectionsor relationships or the extent of the respondent's relationship. He emailed the Officeof the LCRO on 13 September 2022 alleging non-compliance and signalling anapplication for recusal on that basis. He followed up on 27 September 2022 pointingout perceived inadequacies with the response. He wrote:Proper disclosure would have required you to give details of the following:including but not limited to full details (i.e who, what, where, when, how)about any relationship (business or otherwise), be it friendship, professionalassociation or elseways that you may have or have had with Mr Hampton QC,Ms Styants, Ms Ollivier and/or Ms Bouchier. You have given no informationother than conceding that you knew them, which in the case of Ms Bouchier Ialready knew. That is not sufficient. I want to know how well you knew them,i.e were you mates? When did you first meet? Did you socialize? If so, howoften and in what form and how recently? Have you discussed me/my cases(complaints or litigation) with any of them? If so, please give full particulars.[22] Mr Deliu reiterated that the scarcity of disclosure information prejudiced hisability to advance an application to recuse the respondent on the basis of conflicts,thereby denying him a fair process.[23] On 29 September 2022, the office of the LCRO emailed stating:In response to your email 28 September, [the Deputy LCRO] advises:"I have had no dealings with Mr Hampton or Ms Styants since at least 2010.My contact with Ms Ollivier was by reason of her role with the New ZealandLaw Society. I do not recall discussing anything relating to Mr Deliu withher."[24] Mr Deliu responded on 3 October 2022 asking the respondent to advise whythis still did not address his earlier points.[25] On 5 October 2022, the office of the LCRO responded stating that the DeputyLCRO advises that he has had no dealings with either of the "respondents". It furtheradvised that the substantive reviews would be set down for an oral hearing bytelephone after the time specified in the judgment elapses.[26] On 20 October 2022, Mr Deliu reapplied for the Deputy LCRO's recusal. TheDeputy LCRO issued a Minute that same day in which he declined to recuse himself.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.[27] That outcome prompted Mr Deliu to commence judicial review proceedingson 1 November 2022.Woolford J decision[28] Mr Deliu argued before Woolford J that his recusal application was dismissedwithout addressing a single one of the grounds that he had advanced against theDeputy LCRO. Further, that his application for hearing by way of recorded VMR orsimilar had been ignored.[29] Woolford J held that the omission to provide reasons was a reviewable error.10He remitted the application for recusal back to the Deputy LCRO for reconsideration.He made no comment on the grounds advanced for recusal. He also stated that "[t]heReview Officer should also make a reasoned decision on Mr Deliu's application for ahearing by way of recorded VMR or similar.11The second decision under review[30] On 6 July 2023, the Deputy LCRO issued his "reconsideration" of theapplication for recusal, with reasons. Mr Deliu argues that this is not a"reconsideration" as directed as it does not address the correct application.Discussion[31] The context of this judicial challenge is an important consideration. Thepurpose of the Act includes maintenance of public confidence in the provision of legalservices and conveyancing services.12 One of the means of achieving those purposesis to provide a more responsive regulatory regime in relation to lawyers. There arenumerous references to the requirement that the process of investigation of complaintsbe consistent with natural justice. 1310 Judgment of Woolford J, above n 2.11 At [8] and [10].12 Lawyers and Conveyancers Act, s 3(2)(b).13 Section 142 in relating to the procedure of standards committees.[32] Every determination of a standards committee is subject to the right of reviewto the LCRO under s 193 which reads:193 Right of reviewA person who is specified in any provision of sections 194 to 197 asa person who may apply under this section for a review may apply tothe Legal Complaints Review Officer for that review.[33] A review by the LCRO has been described in the following way:14A review by the LCRO is neither a judicial review nor an appeal. Thoseseeking a review of a Committee determination are entitled to a review basedon the LCRO's own opinion rather than on deference to the view of theCommittee. A review by the LCRO is informal, inquisitorial and robust. Itinvolves the LCRO coming to his or her own view of the fairness of thesubstance and process of a Committee's determination.[34] Clearly, natural justice is no less important at this stage of the process.The disclosure[35] I accept the submission that disclosure has not to date fully complied with thedirections. There has been an attempt by the Deputy LCRO. The responses have gonesome way to fulfilling the purpose of the directions but they have not gone far enough.The directions have been construed too narrowly without sufficient regard to theirintrinsic purpose which was to inform Mr Deliu of the nature of those relationships soas to ensure "protection of the manifest integrity of the judicial process". Theimportance of natural justice in the framework of a disciplinary process provided bythe Act requires that the directions be fairly, purposively and objectively interpretedby the decision maker. The disclosures provided are not sufficiently informative.While it could arguably be inferred that the slimness of the information is byapplication of the test in Saxmere, more detail clarifying the nature of the connectionwith the four named persons is required so that informed decisions about potentialconflicts can be made.14 Deliu v Connell [2016] NZHC 361, [2016] NZAR 475 at [2].[36] Although I find that there has not been sufficient compliance, I do not acceptMr Deliu's overly expansive interpretation requiring details of matters such as whenthey first met, whether they socialised or whether they had discussed Mr Deliu's case.I also accept that disclosure is only required of any dealings from which an observermight reasonably think the decision maker could be biased because of it, a point whichMr Deliu accepted in his oral submissions. It may well be that the disjunct betweenthe respective interpretations has led to the current impasse.[37] To illustrate, the Deputy LCRO says that Ms Bouchier was the LCRO duringa period of time when the Deputy was in his role. It is clear that there is a relevantrelationship or connection. No specific period of time is mentioned. There is noconfirmation as to whether that connection is a working relationship only, and noexplanation of how closely they worked together, if at all. A fair interpretation of thedisclosure directions against the backdrop of their purpose requires that furtherinformation.15[38] A second example is the disclosure that Ms Styants is known to the DeputyLCRO professionally through common membership of Law Society committees. Verylittle can be fairly gauged from this information. There is no period of time, noindication of how many committees nor any sense of whether the only interaction wasat committee meetings.[39] The same can be said in respect of all four persons identified by the DeputyLCRO. The further drip fed disclosures did not take the matter much further. As MrDeliu argued, each further response paradoxically raises more questions than answers.[40] To recap, I agree that the disclosure has not been sufficient to comply with thedirections made by Powell J. However, the extent of information Mr Deliu presses forgoes beyond that which is required on any objective interpretation of the directions.Mr Deliu therefore succeeds in his first challenge on the basis of breach of naturaljustice and error of law.15 Further information was disclosed in the second decision but I put this to one side for presentpurposes to focus on the "disclosure" correspondence.The recusal decision[41] I accept there has been an error of law if Mr Deliu is correct that the decisiondated 6 July 2023 does not address the October recusal application but earlierapplications. This turns on whether the decision is in substance a reconsideration ofthe later application. It is necessary then to look more closely at the October recusalgrounds compared to the earlier applications.16[42] The material Mr Deliu sent to the LCRO on 20 October 2022 wasapproximately 15 pages. Interspersed with submissions supporting the grounds areextracts from Powell J's judgment and submissions made before Powell J (identifiedin coloured font) which Mr Deliu described before me as "rehashing old argumentsthat have never been resolved". It began:I move to recuse [the Deputy LCRO] and these are my reasons.[43] Although the structure is not completely clear, in part because of the inclusionof old arguments, four grounds are enumerated. The first ground is advanced insupport of a request that the recusal application itself be argued via VMR rather thanin support of the substantive recusal application. (This was not pursued by Mr Deliuas part of this review).[44] The grounds raised were:(a) Previous dealings with the Deputy LCRO in reviews.(b) Lack of candidness about dealings with relevant individuals andmisconduct by ignoring initial requests for disclosure and subsequentlynot complying with the directions to disclose.(c) Manner of dealing with issues of recusal and mode of hearing,including:16 There was initial confusion at the hearing as to which document was the October 20 'application'given it was not dated and incorporated earlier submissions. This may have contributed to anyerror.(i) Breaching the legitimate expectation that a hearing would beafforded;(ii) Requiring that Mr Deliu justify why a hearing in person isrequired;(iii) Applying amended provisions of the Act relating to mode ofhearing retrospectively;(iv) Avoidance of a hearing without justification and for ulteriormotive.(d) Admitted nexus with "victims".[45] The Deputy LCRO's decision begins by referencing the judgment ofWoolford J and his direction to reconsider. It sets out the established test for recusalin Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1).17[46] Relevantly, the decision does not identify the particular application until thenext paragraph and then only refers to Mr Deliu's application dated 31 August 2021.There is no explicit reference anywhere in the decision to the application of 20 October2022.[47] It is incontrovertible that the direction was to reconsider the application dated20 October 2022. That must mean on the grounds set out in that particular application.The recusal application dated 31 August 2021 had already been the subject of thehearing before Powell J although Mr Deliu himself submits there remained 'live'issues from that hearing.[48] The decision then refers to various reasons advanced by Mr Deliu and his"demands" for disclosure. These are all matters set out in the August submission.17 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1) [2009] NZSC 72;[2010] 1 NZLR 35.Curiously, while Powell J's judgment is referred to, there is no reference to thedirections he made.[49] The decision then turns to the disclosures to Mr Deliu and cites the emailcorrespondence on 29 August 2022 and 30 September 2022: The decision records:18[11] Mr Deliu has been advised of my association with four of the personsreferred to by him. That association, and with members of the DisciplinaryTribunal, has not extended beyond a professional relationship.[12] Mr Deliu says that it is not sufficient that I acknowledge a professionalrelationship with these persons. He wants to know:... how well you knew them, i.e. were you mates? When did you first meet? Didyou socialise? If so, how often and in what form and how recently? Have youdiscussed me/my cases (complaints or litigation) with any of them? If so, pleasegive particulars.[13] I do not consider that it is appropriate for a Judicial Officer to besubjected to cross examination such as this, and I do not intend to respond. Ican only repeat that my association with those persons with whom I amacquainted was nothing other than a professional relationship, which mayhave involved a certain degree of what Mr Deliu may consider to be'socialising'. That is not a reason for me to recuse myself from completingthese reviews.[14] Mr Deliu has emphasised the fact that I was appointed to my role asDeputy LCRO when Ms Bouchier was the LCRO, and that, as Ms Bouchierwas one of his "victims" then I am, ipso facto, biased against him.[15] The question is, does my professional relationship working as aDeputy LCRO, alongside Ms Boucher for a number of years, compromise myability to bring a fair and independent approach to a consideration of MrDeliu's review applications?[16] I do not consider that to be the case.[17] If Mr Deliu's submission were to be accepted, it would mean that if aperson chooses to 'say bad things' about any Review Officer, then all ReviewOfficers at the time would then be disqualified from conducting any futurereviews involving that person.[18] That would be an illogical outcome that can not be accepted.(Emphasis added)18 No email dated 30 September 2022 was produced to the Court. I anticipate there is an error in thedate and it intended to refer to 29 September 2022.[50] The propositions in paragraphs [14]-[18] in the decision are not controversialbut, as I apprehend it, the statement that his association has not extended beyond aprofessional relationship is the first time that this has been expressly stated.[51] The reasons given for declining to recuse himself are:(a) His professional relationship with the former LCRO after appointmentto the role of Deputy LCRO does not compromise his ability to bring afair and independent approach to a consideration of Mr Deliu's case.19(b) His association with persons with whom he is acquainted is nothingother than a professional relationship, which may have involved acertain degree of what Mr Deliu may consider to be socialising (mealsduring Tribunal hearings).(c) The allegation that he has reacted in a negative manner towards MrDeliu in previous hearings has already been addressed by Powell J whodetermined it was spurious.(d) The submission that the Act requires an actual 'layperson' was alsorejected by Powell J.[52] The decision then turns to the background and circumstances surrounding themode of hearing issue:[25] Mr Deliu requires the hearing to be conducted by audio/visual means,and has stated that he intends to record the hearing. The reasons advanced byhim is to record my reactions to him. Powell J has described that reason as"spurious". There is consequently no need for a visual hearing and manyhearings by this Office are conducted by telephone.[26] Mr Deliu previously agreed to the hearings being conducted bytelephone and has not advised why that is no longer acceptable to him.[27] Section 206(5) of the Act provides that Review Officers may regulatehis or her procedure in such manner as he or she thinks fit. Mr Deliu will havethe opportunity to provide written submissions prior to the hearing, and willhave the opportunity to speak on those submissions at the hearing. He willnot be disadvantaged in any way by the hearing being conducted by telephone.19 At [15]–[16].[28] If Mr Deliu advises why he would prefer a hearing by VMR (otherthan for reasons described by Powell J as 'spurious') the hearing can proceedin that manner (or similar).[53] The Deputy LCRO directed Mr Deliu not to record the hearing. Mr Deliusubmits that this part of the decision is a mischaracterisation as he never indicateddirectly or indirectly that he intended (or indeed wished) to record the hearing himselfas opposed to requesting that the officer record it.[54] Although the Deputy LCRO has left open the question of a VMR hearing, Iaccept that the reconsideration as a whole has gone awry. Grounds formerly advancedfor recusal but no longer advanced by Mr Deliu are addressed. Grounds which areactually advanced in the October submission are not squarely addressed but avoided.The decision does not explicitly address the issue of compliance with Powell J'sdirections for disclosure. On the contrary, the Deputy LCRO states that it is notappropriate to "cross-examine" a judicial officer. This statement is correct but, withrespect, misses the essential point.20[55] In addition, it appears there has been a misunderstanding about Mr Deliu'srequest that there be a hearing by VMR or similar which is recorded.[56] The cumulative effect is that I am satisfied that the decision of 6 July 2023proceeded on the wrong basis. This constitutes an error of law.Outcome[57] The orthodox course is to direct that the decision maker reconsider. As theCourt of Appeal explained in Financial Services Complaints Ltd v ChiefOmbudsman:21[6] In judicial review proceedings, the court is concerned with thelawfulness of the decision under review. Whether the decision was one thecourt itself might have made, had it been the decision-maker, is not relevant.20 Also correct is his point that it would be an illogical outcome if all Review Officers at the timewould be disqualified from conducting any future reviews involving someone who makes adverseremarks about any Review Officer.21 Financial Services Complaints Ltd v Chief Ombudsman [2022] NZCA 248; [2022] 2 NZLR 740at [6].As a result, it is generally not for the court to substitute its decision for that ofthe statutory decision-maker; the appropriate relief will be a direction that thedecision-maker reconsider. Nonetheless, there are cases in which the courtmight legitimately substitute its own decision. This includes when the court issatisfied that only one lawful decision was available to the decision-maker.[58] Mr Deliu was not able to cite any authority but forcefully argued that the Courtshould direct that a new Deputy LCRO be appointed. He submitted that a fresh startis required to avoid further delay and in the interests of justice being seen to be done.In doing so he expressly stepped away from arguing bias on the part of the decisionmaker and maintained that recusal can arise in instances other than establishment ofbias. Mr Deliu submitted that, in the absence of a direction removing the DeputyLCRO from this case, there are two stages before the substantive case can take place;disclosure complying with Powell J's directions and then a reasoned decision onrecusal based on the grounds advanced by Mr Deliu on 20 October 2023 and newgrounds (if any) arising from the disclosure.[59] I have sympathy for Mr Deliu's argument because of the difficult history. Iaccept that Mr Deliu's review has gone off the rails procedurally. I also acknowledgethat the Court of Appeal in the passage cited above did not close the door to otherreasons for substituting the decision-maker's decision. However, after carefulconsideration, I decline to make the order he seeks. That order would essentially grantrecusal in substitution for the decision without a reasoned jurisprudential basis fordoing so.22[60] In conclusion, Mr Deliu's judicial review succeeds.[61] I make a declaration that Mr Deliu's right to natural justice has been breached.[62] The 'decision' of 6 July 2023 is quashed.[63] The respondent is to provide the disclosure directed by Powell J within 14 days.This includes describing not only the nature of each of the relationships with the fouridentified individuals and the period of time of the association but is to indicate in ageneral way the frequency of association. For the avoidance of doubt this does not22 Arguably there has been no reconsideration decision to substitute.mean providing all of the details which Mr Deliu requested in the exchange ofcorrespondence after Powell J's judgement. I have found that goes beyond both theletter and spirit of Powell J's directions.[64] Mr Deliu is to make any amendment adding grounds to his October 20 2022recusal application in relation to the disclosure provided within 7 days of thedisclosure.[65] The respondent is then to determine whether or not to recuse himself havingregard to the grounds in the 20 October 2022 application (as amended).[66] I direct the respondent to consider Mr Deliu's request for hearing by VMRgiving due weight to the desirability and advantages of such over telephone hearingsand to issue a reasoned decision without delay.[67] I further direct that the substantive hearing is to be recorded, as confirmed bycounsel for the respondent.Costs[68] Costs are to lie where they fall given that Mr Deliu is a self-representednon-lawyer for the purposes of costs and given the lack of opposition to the applicationfor review. Mr Deliu is however entitled to any reasonable disbursements in relationto the filing of the application for review.............................................................Walker J