DELIU v THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY [2023] NZHC 1184

DELIU v THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1OF THE NEW ZEALAND LAW SOCIETY [2023] NZHC 1184 [17 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2016-404-2579CIV 2017-404-0184[2023] NZHC 1184UNDER The Lawyers and Conveyancers Act 2006BETWEEN FRANCISC CATALIN DELIUAppellantAND THE NATIONAL STANDARDSCOMMITTEE and AUCKLANDSTANDARDS COMMITTEE 1 OF THENEW ZEALAND LAW SOCIETYRespondentsContinuedHearing: 30 March 2023Appearances: The appellant in person (by VMR)M Hodge for the Standards Committee respondentsJudgment: 17 May 2023JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 17 May 2023 at 12.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarCIV 2017-404-0260UNDER The Judicature Amendment Act 1972IN THE MATTER OF An application for judicial reviewBETWEEN FRANCISC CATALIN DELIUApplicantAND THE NEW ZEALAND LAWYERS ANDCONVEYANCERS DISCIPLINARYTRIBUNALFirst RespondentTHE NATIONAL STANDARDSCOMMITTEE and AUCKLANDSTANDARDS COMMITTEE 1 OF NEWZEALAND LAW SOCIETYSecond RespondentsIntroduction[1] In three decisions dated 15 September 2016, the Lawyers and ConveyancersDisciplinary Tribunal (LCDT) found charges of misconduct proved against Mr Deliu.On 22 December 2016, the LCDT suspended Mr Deliu from legal practice for themisconduct. His suspension was for 15 months from 1 February 2017.[2] Mr Deliu brought these three proceedings, two appeals and one judicialreview,1 to challenge the LCDT's decisions on liability and penalty. His appeals andjudicial review were heard together by Hinton J in March and April 2017. Her Honourrejected Mr Deliu's challenges in a judgment dated 25 September 2017.2 In twofurther judgments delivered in 2018,3 her Honour ordered Mr Deliu to pay costs to theNew Zealand Law Society and declined Mr Deliu's application for leave to appeal tothe Court of Appeal.[3] Mr Deliu applies to recall Hinton J's three judgments. He says there was areasonable apprehension her Honour was biased. He also says that the LCDT hadacted ultra vires and that, although he did not raise the ultra vires issue at the time, heshould be able to now.[4] The Standards Committees who prosecuted Mr Deliu oppose the application.They say that the issues raised on the application have already been determined againstMr Deliu in other decisions of this Court, such that he is estopped from ventilatingthem again on this application. They say in any case that neither of Mr Deliu's groundshas any merit.[5] In determining whether to recall the judgments,4 three issues arise:1 The proceedings with CIV numbers ending 2579 and 0184 are Mr Deliu's respective appeals fromthe LCDT's liability and penalty decisions. The proceeding with the CIV number ending 0260 isMr Deliu's application for judicial review of the LCDT's two decisions.2 Deliu v The National Standards Committee and The Auckland Standards Committee No 1 of TheNew Zealand Law Society [2017] NZHC 2318.3 Deliu v The National Standards Committee and The Auckland Standards Committee No 1 of TheNew Zealand Law Society [2018] NZHC 2171; and Deliu v The National Standards Committeeand The Auckland Standards Committee No 1 of The New Zealand Law Society [2018] NZHC2873.4 The hearing proceeded on the assumption that I could exercise a power to recall judgments ofanother Judge. That assumption is unlikely to be correct (see Jessica Gorman and others(a) Is Mr Deliu estopped from arguing that there was a reasonableapprehension that Hinton J was biased?(b) If not, was there a reasonable apprehension of bias?(c) Is Mr Deliu estopped from raising the ultra vires issues?Background[6] The most serious of the charges of which the LCDT found Mr Deliu guiltywere that he had made allegations against two judges, Harrison and Randerson JJ, thatwere false or without any sufficient foundation.[7] After filing his appeal against the LCDT's liability decision, Mr Deliu wrote aletter to the then Chief High Court Judge, Venning J, on 19 January 2017. Mr Deliunoted his understanding that the allocation of a judge to a hearing was anadministrative matter. He said that, although he was not as such seeking to recuse ajudge for bias (given he did not know which judge was to hear his appeal), he raisedseveral issues for the consideration of whomever was to allocate the judge to thehearing. Among other things, he said he had been found guilty of making wrongfulallegations against two judges while they were sitting in the Auckland High Court, andso an out-of-town judge "with absolutely no connection to Justices Harrison orRanderson or the New Zealand Law Society would be most appropriate".[8] Mr Deliu said that he also had specific issues about certain Auckland Judgessitting, but that they would have to be dealt with on a case-by-case basis at or beforethe hearing. Mr Deliu therefore asked "to be advised at the earliest opportunity whomhas been allocated so that I may consider my position". Mr Deliu also identifiedseveral Judges (sitting both in Auckland and elsewhere) whose sitting on the appeal,he said, would be contrary to the appearance of justice.[9] Venning J responded in a minute issued on 3 February 2017. His Honourtreated Mr Deliu's letter as a memorandum of counsel, and said:McGechan on Procedure (online ed, Thomson Reuters) at [HR11.9.01(8)]). Given the view I havetaken on the merits of the recall application, it is not necessary for me to determine this point.Mr Deliu's appeal is scheduled to be heard on 27, 28 and 29 March 2017.Hinton J is the Judge scheduled to hear the appeal. Any further preliminaryissues should be referred to the allocated trial Judge.[10] Hinton J heard Mr Deliu's appeals and judicial review in March and April2017. Mr Deliu did not raise any concern with Hinton J sitting.[11] Hinton J dismissed Mr Deliu's appeals and judicial review in a judgment dated25 September 2017. A subsequent judgment awarded costs against Mr Deliu.[12] Mr Deliu applied for leave to appeal Hinton J's substantive decision to theCourt of Appeal. Her Honour dealt with that application on the papers, declining leavein a judgment dated 6 November 2018.Mr Deliu's recall application and the opposition to it[13] Almost three years later, on 3 October 2021, Mr Deliu filed an application forvarious orders, including:(a) Orders that Hinton J disclose any potential conflict of interest she mayhave to sit in these proceedings, including but not limited to full detailsabout any relationship that her Honour may have or have had withcertain persons associated with the LCDT (the disclosureapplication).(b) Orders that Hinton J's three judgments be recalled (the recallapplication).[14] Mr Deliu's disclosure application was determined by Paul Davison J in ajudgment delivered on 10 August 2022.5 His Honour found that none of theassociations or events on which Mr Deliu relied warranted further inquiry by way ofinviting Hinton J to provide disclosure in the terms sought by Mr Deliu.5 Deliu v The National Standards Committee and The Auckland Standards Committee No 1 of TheNew Zealand Law Society [2022] NZHC 1972.[15] In the recall application, as originally filed, Mr Deliu said Hinton J's judgmentsshould be recalled because there was a reasonable apprehension her Honour had beenbiased (the apparent bias ground). The appearance of bias was said to arise fromher Honour having been, prior to her appointment to the Bench, a member of theLCDT (or its predecessor) and from her Honour's resultant connections to the LCDTmembers that sat on Mr Deliu's disciplinary proceedings and to one of the prosecutorsin those proceedings. In an affidavit in support, Mr Deliu said he became aware ofthese matters only in August 2021.[16] On 10 March 2023, Mr Deliu filed an amended application for recall togetherwith a further affidavit of the same date. His further affidavit raised an additionalground for recall, namely that the LCDT had acted ultra vires in three ways (the ultravires grounds). First, Mr Deliu said the members of the LCDT that sat on hisdisciplinary proceedings were not lawfully appointed. Alternatively, Mr Deliu saidthe members that sat were not lawfully assigned to sit on those proceedings. Thirdly,Mr Deliu said the LCDT did not meet quorum requirements in voting for his guilt andsuspension.[17] In his submissions, Mr Deliu clarified that he relied on the apparent bias groundin seeking recall of Hinton J's decisions on his two appeals, and on the ultra viresgrounds in seeking recall of Hinton J's decisions on his application for judicial review.[18] The LCDT, which is the first respondent in Mr Deliu's judicial review, abidesthe decision of the Court.[19] The Standards Committees that brought the charges against Mr Deliu in theLCDT, and which are the respondents to the appeals and the second respondents in thejudicial review, oppose the recall application. In relation to Hinton J's decisions onthe appeals, the Standards Committees say the apparent bias ground turns on issuesthat were decided against Mr Deliu by Paul Davison J in his decision on the disclosureapplication. The Standards Committees say that an issue estoppel is therefore raised,preventing Mr Deliu from advancing this ground of recall. Alternatively, theStandards Committees say there was no appearance of bias.[20] In relation to Hinton J's decisions on his application for judicial review, theStandards Committees say that the ultra vires grounds were decided against Mr Deliuby Peters J in a separate proceeding brought by Mr Deliu against the same respondentsto judicially review the same decisions of the LCDT.6 The Standards Committees saythat these grounds of recall are therefore also barred by an issue estoppel.Alternatively, they say the ultra vires grounds do not justify recalling Hinton J'sdecisions on the judicial review application.Mr Deliu's other proceeding to judicially review the same LCDT decisions[21] As just noted, the Standards Committees say that Mr Deliu is barred fromadvancing the ultra vires grounds by a decision of Peters J in another proceeding thatMr Deliu brought to judicially review the same LCDT decisions.[22] Mr Deliu filed that judicial review proceeding in August 2021. He advancedit on the basis the LCDT had acted ultra vires in determining liability and penalty (thatis, the ultra vires grounds that he now pursues in his recall application). Mr Deliu hadnot advanced those grounds in his first judicial review before Hinton J.[23] Peters J dismissed Mr Deliu's application for judicial review in a judgmentdated 9 February 2023.7 Her Honour considered that Mr Deliu could and ought tohave raised each of the ultra vires grounds in his first judicial review.8 It was aHenderson v Henderson9 abuse of process for Mr Deliu to pursue those grounds in asecond judicial review proceeding.10 Her Honour was also satisfied that the membersof the LCDT who heard and determined the charges and penalty were lawfullyappointed.116 Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2023] NZHC 160.7 Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2023] NZHC 160.8 At [39] and [46].9 Henderson v Henderson (1843) 3 Hare 100, 67 ER 313.10 Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2023] NZHC 160 at[51].11 At [74].Legal principles as to recall[24] An unsealed judgment may be recalled in three categories of case:12(a) where since the hearing there has been an amendment to a relevantstatute or regulation or a new judicial decision of relevance and highauthority;(b) where counsel have failed to direct the Court's attention to a legislativeprovision or authoritative decision of plain relevance; and(c) where for some other very special reason justice requires that thejudgment be recalled.[25] Mr Deliu relies on the third category. Two broad issues arise:(a) Is there some very special reason justice requires recall of Hinton J'sdecisions on the appeals?(b) Is there some very special reason justice requires recall of Hinton J'sdecisions on the judicial review?Is there some very special reason justice requires recall of Hinton J's decisions onthe appeals?Mr Deliu's apparent bias ground in more detail[26] Mr Deliu says the very special reason that justice requires recall of Hinton J'sdecisions on his appeals is, as noted, that there was a reasonable apprehension herHonour was biased. He says this reasonable apprehension of bias arises from twomatters.[27] First, Mr Deliu complains about Venning J's minute of 3 February 2017advising that Hinton J was scheduled to hear Mr Deliu's appeals in late March 2017.12 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; and Saxmere Co Ltd v WoolBoard Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].Mr Deliu points to the Supreme Court's observation, when addressing the test forapparent judicial bias in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd,13 thatcases are randomly allocated to judges. Mr Deliu also says the usual practice is thatJudges are allocated to cases only the week before hearings. He says that rather thanHinton J being randomly allocated "as required by Saxmere" and in accordance withthat usual practice, her Honour was "specially assigned" well in advance of the hearingby or with "the Chief High Court Judge's assent who ought not have been involved".14[28] Secondly, Mr Deliu points to her Honour's connections to one of theprosecutors of the disciplinary charges against him and to the members of the LCDTthat heard the charges:(a) From 2003 to 2007, prior to her appointment on 30 January 2015 as ajudge of the High Court, Ms Hinton QC (as she then was) was on thepanel of practitioner members of the New Zealand Law PractitionersDisciplinary Tribunal (LPDT), the statutory predecessor to the LCDT.During Ms Hinton's time on that panel, Nigel Hampton QC was eitherthe chairperson of the LPDT or was on the LPDT's panel of practitionermembers. Mr Hampton was the Chairperson of the New Zealand LawSociety's National Standards Committee, which was one of the twostandards committees that acted as prosecutor in the disciplinaryproceedings against Mr Deliu, and which was a party to the appeal andjudicial review proceedings that were heard by Hinton J.(b) In 2009, Ms Hinton was on the panel of practitioner members of theLCDT. Mary Scholtens QC, Susan Hughes QC and Jacqui Gray(practitioner members) and Peter Shaw and William Smith (laymembers) served on the LCDT with Ms Hinton that year. Those fivemembers heard the disciplinary charges against Mr Deliu in the LCDT.13 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at[8].14 This point was not identified in Mr Deliu's application (initial or amended) or in his affidavits insupport. It was first raised in the written submissions Mr Deliu filed for the hearing. No issuearises from this, as Mr Deliu relied on Venning J's minute of 3 February 2017 and Mr Hodge wascontent (and able) to respond to this point at the hearing.They made the liability and penalty decisions that were the subject ofMr Deliu's appeals and judicial review heard by Hinton J.[29] The Standards Committees say that Paul Davison J's decision on Mr Deliu'sdisclosure application raises an issue estoppel, preventing Mr Deliu from arguing thatthese circumstances gave rise to a reasonable apprehension that Hinton J was biased.In any event, they say that the circumstances do not give rise to a reasonableapprehension of bias.[30] Two issues arise:(a) Does the decision of Paul Davison J raise an issue estoppel preventingMr Deliu from arguing that these circumstances gave rise to areasonable apprehension of bias?(b) If not, do these circumstances give rise to a reasonable apprehension ofbias?[31] Before addressing these issues, I outline the legal principles relating toapparent judicial bias and summarise the decision of Paul Davison J.Apparent judicial bias[32] The test for apparent judicial bias was settled in the Saxmere litigation. Thegeneral principle is that a judge is disqualified "if a fair-minded lay observer mightreasonably apprehend that the judge might not bring an impartial mind to theresolution of the question the judge is required to decide".15 The question is one ofreal and not remote possibility.16[33] There are two steps in assessing a claim of apparent bias:1715 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at[3]; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010]1 NZLR 76 at [4].16 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at[4] citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7].17 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1NZLR 35 at [4], [85] and [127].(a) First, it is necessary to identify the matter that is said might lead a judgeto decide a case other than on its factual and legal merits.(b) Secondly, there must be an articulation of the logical connectionbetween that matter and the feared deviation from the course ofdeciding the case on its merits, to determine whether the matter mightlead a fair-minded lay observer to reasonably apprehend that the judgemight not bring an impartial mind to the resolution of the case.[34] In Saxmere, Blanchard J said it is presumed that the fair-minded lay observeris intelligent and views matters objectively.18 The lay observer must be taken to bereasonably informed about the workings of our judicial system. However, courts mustbe careful not to ascribe too much legal knowledge to the lay observer, lest that meanthat justice is not both done and seen to be done by a notional representative of thepublic.19[35] Blanchard J also said the lay observer must be taken to understand furthermatters relating to judicial conduct.20 Relevantly for this case:(a) Judges are expected to be independent in decision making and havetaken a judicial oath to do so.(b) Judges have an obligation to sit on any cases allocated to them unlessthere are grounds for recusal. Judges are not entitled to pick and choosetheir cases, which are randomly allocated.Paul Davison J's decision on Mr Deliu's disclosure application[36] In his disclosure application, Mr Deliu sought orders that Hinton J disclose anypotential conflict of interest she may have to sit in these proceedings, including butnot limited to full details about any relationship that her Honour may have or have hadwith certain persons associated with the LCDT. Mr Deliu said these orders were18 At [5].19 At [5] and [6].20 At [8].warranted because Hinton J had failed to disclose her connections to one of theprosecutors and to the members of the LCDT that heard the charges. Those allegedconnections included all the connections that Mr Deliu relies on in his recallapplication.21 But Mr Deliu did not rely, in his disclosure application, on Hinton Jhaving been allegedly "specially assigned" to hear the appeals and judicial review.[37] Paul Davison J said that the question for him was whether the court shouldinvite Hinton J to provide disclosure for the reason outlined in Mr Deliu's application.His Honour said:22It is not necessary in this respect for Mr Deliu to adduce evidence ofa relationship giving rise to a reasonable apprehension of bias (furtherdisclosure would be unnecessary if that threshold were met), but he mustdemonstrate the existence of reasonable grounds that would warrant the Courtmaking further enquiries of the Judge.[38] The threshold that Mr Deliu had to meet in his disclosure application was, asPaul Davison J recognised,23 therefore lower than the threshold required to give riseto a reasonable apprehension of bias.[39] Paul Davison J held that Hinton J's former membership of the LCDT (and itspredecessor tribunal) and her professional relationship with Mr Hampton fell wellshort of reaching the threshold.24 His Honour therefore found that Mr Deliu had notmet a threshold that is lower than the threshold that Mr Deliu has to meet in applyingto recall Hinton J's decisions on the ground of apparent bias.Does the decision of Paul Davison J raise an issue estoppel preventing Mr Deliu fromarguing that the circumstances gave rise to a reasonable apprehension of bias?[40] An issue estoppel arises when there has been a final judicial decision of thesame issue (of fact or law) that a party wishes to raise in a later dispute between thesame parties to the prior judicial decision.25 An issue estoppel is usually raised where21 In his disclosure application, Mr Deliu also relied on some other alleged connections betweenHinton J and either members of the LCDT or counsel for the prosecutors. Before me, Mr Deliuabandoned any reliance on those matters in his recall application.22 Deliu v The National Standards Committee [2022] NZHC 1972 at [34].23 At [42].24 At [36] and [42].25 Shiels v Blakely [1986] 2 NZLR 262 (CA) at 266.parties are involved in successive proceedings, but it can also be raised where theparties are involved in successive disputes within the same proceeding.26[41] A necessary element of an issue estoppel is that the issue raised in the laterdispute is the same as the issue decided in the earlier judicial decision. That elementis absent here. Paul Davison J had to decide whether Hinton J's connections to one ofthe prosecutors and to the members of the LCDT that heard the charges warrantedinviting her Honour to make the disclosure sought by Mr Deliu. I have to decidewhether those connections together with the manner in which Hinton J was assignedto hear Mr Deliu's appeals and judicial review gave rise to a reasonable apprehensionof bias. These are not the same issues.Do these circumstances give rise to a reasonable apprehension of bias?[42] I deal first with Mr Deliu's concerns about the manner in which Hinton J wasassigned to hear his appeals and judicial review. His first concern is that her Honourwas assigned earlier than usual. Mr Deliu says, relying on an article by Dr Butlerpublished in 2003,27 that the usual practice of the court is to assign cases to judgesonly the week before hearings. He submits that Hinton J was instead assigned "monthsin advance" to his case. His second concern is that Hinton J was "specially" assigned,by or with the Chief High Court Judge's assent, rather than randomly assigned. MrDeliu relies on the minute of Venning J dated 3 February 2017 advising that Hinton Jwas scheduled to hear Mr Deliu's appeals.[43] These points do not give rise to a reasonable apprehension of bias. While it iscommon for cases to be assigned to judges the week before hearings, it is not auniversal practice, particularly for (as here) a three-day hearing. There is nothing tosuggest that Hinton J's assignment to that hearing was anything but random. VenningJ's minute, issued six weeks (not "months") prior to the hearing, was in response toMr Deliu's request (addressed to Venning J, and in which Mr Deliu referred to andrelied on Dr Butler's article) that he be advised of the assigned judge "at the earliestopportunity so that I may consider my position". I consider a fair-minded lay26 Johnson v Felton [2006] 3 NZLR 475 (CA) at [56].27 Petra Butler "The Assignment of Cases to Judges" (2003) 1 NZJPIL 83.observer would not, in these circumstances, reasonably apprehend that the assignedjudge would not bring an impartial mind to the hearing. Even Mr Deliu, whose letterto Venning J shows that he was alert to any appearance of bias, did not at the timeraise any concern at being told by Venning J, six weeks in advance, who had beenassigned to the hearing.[44] I now turn to the connections between Hinton J and one of the prosecutors ofthe disciplinary charges and to the members of the LCDT that heard the charges. Theconnection to the prosecutor was through Mr Hampton. That connection was from2003 to 2007 – more than nine years before Hinton J heard Mr Deliu's appeals andreviews. The connection to the LCDT members was from 2009 – more than sevenyears before the hearing.[45] The fair-minded lay observer is intelligent and views matters objectively.Further, the lay observer is taken to be reasonably informed about the workings ofNew Zealand's judicial system. These include that judges of appellate courts regularlysit on appeals against decisions of their former colleagues in lower courts and do sosoon after their elevation to the appellate court. Further, the intelligent lay observerwould understand that this is the norm in common law jurisdictions.[46] That an appellate judge is hearing an appeal from a decision of formercolleagues does not give rise to a reasonable apprehension of bias. This is becausejudges are trained (and take a judicial oath) to decide cases impartially and on themerits.[47] Similarly, Hinton J's connections that arose from her former membership ofthe LCDT and its predecessor do not give rise to a reasonable apprehension of bias.This is reinforced by the long passage of time that elapsed between her membershipof those bodies and the hearing of Mr Deliu's appeals and judicial review.Conclusion[48] There was no reasonable apprehension of Hinton J being biased. Accordingly,there is no basis for recalling Hinton J's decisions on the appeals.Is there some very special reason justice requires recall of Hinton J's decisions onthe judicial review?Scope of hearing[49] Mr Deliu seeks recall of Hinton J's decisions on his judicial review on theground that the LCDT acted ultra vires in three ways. The Standards Committees sayan issue estoppel arises from Peters J's decision in Mr Deliu's separate judicial reviewproceeding. Alternatively, they say the ultra vires grounds do not justify recallingHinton J's decisions on the judicial review application.[50] The parties agreed that the hearing would address only whether an issueestoppel arises from Peters J's judgment. They agreed that if I were to find there wasno issue estoppel, a further hearing would be necessary to address the merits of theultra vires grounds.The recall jurisdiction: a limit on the "very special reason" category[51] Mr Deliu relies on the third category of the Court's recall jurisdiction: that forsome very special reason justice requires that the judgment be recalled. The Court ofAppeal in Nottingham v Real Estate Agents Authority said of this category:28[I]t is quite clear that the discretion to recall must be exercised withcircumspection, and it must not in any way be seen as a substitute for appeal. It does not extend to putting forward further arguments that could havebeen raised at the earlier hearing but were not.[52] It follows that if Mr Deliu could have put forward the ultra vires grounds at theearlier hearing before Hinton J, he is not entitled to have her Honour's decisionsrecalled merely so that he can have the opportunity to advance arguments based onthose grounds. The issue that then arises is whether Mr Deliu could have advancedthose grounds at the hearing before Hinton J.[53] This is an issue that Peters J determined when dismissing Mr Deliu's furtherapplication for judicial review of the same LCDT decisions. In deciding whether thatapplication was a Henderson v Henderson abuse of process, Peters J had to decide28 Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [9] (footnotes omitted).whether the ultra vires grounds were matters that Mr Deliu could and ought to haveraised in his earlier judicial review application before Hinton J.29 Her Honouranswered that issue in the affirmative.30[54] Peters J's decision on this issue creates an issue estoppel against Mr Deliu. Itwas a final judicial decision on that issue, made on the merits, between the sameparties. The decision on the issue was one of the matters that it was necessary for herHonour to decide in order to reach her ultimate conclusion that the proceeding beforeher was an abuse of process.[55] In this proceeding, then, I must proceed on the basis that Mr Deliu could andought to have raised the ultra vires grounds in his earlier judicial review applicationbefore Hinton J. It follows that his desire to raise these arguments many years laterdoes not provide some very special reason that justice requires recall.Result[56] I decline the recall application.[57] The Standards Committees are entitled to costs. If the parties cannot agree thequantum of costs by 2 June 2023, costs memoranda may be filed, and I will resolvecosts on the papers. The Standards Committees' memorandum is to be filed and servedby 9 June 2023, Mr Deliu's by 16 June 2023. Each memorandum is not to exceedthree pages (excluding relevant annexures and schedules).______________________Campbell J29 Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2023] NZHC 160 at[38].30 At [39] and [46].