Deliu v The Office of the Judicial Conduct Commissioner

• Jurisdiction: New Zealand
• Judge: Brewer J
• Judgment Date: 22 December 2011
• Court: High Court
• Date: 22 December 2011
• Docket Number: CIV-2011-404-3055

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2011-404-3055

Between

Francisc Catalin Deliu

Plaintiff

and

The Office of the Judicial Conduct Commissioner

First Defendant

and

The District Court of New Zealand, at Auckland

Second Defendant

Appearances:

Plaintiff in person

G M Illingworth QC — Amicus Curiae

No appearance by First or Second Defendants (who abide the decision)

GM Illingworth QC

JUDGMENT OF Brewer J

Introduction

1 The plaintiff is a barrister and solicitor of this Court.

2 The first defendant is sued in his office of Judicial Conduct Commissioner pursuant to the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“the Act”). The functions of the first defendant under the Act are: 1

• (a) to receive complaints about Judges and to deal with the complaints in the manner required by this Act:

• (b) to conduct preliminary examinations of complaints:

• (c) in appropriate cases, to recommend that a Judicial Conduct Panel be appointed to inquire into any matter or matters concerning the conduct of a Judge.

3 On 14 May 2010, the plaintiff lodged a complaint with the first defendant against a Judge of the District Court. The plaintiff took exception to the way in which the District Court Judge adjourned an application for variation of bail. The complaint has yet to be determined.

4 The plaintiff claims against the first defendant:

• (i) A writ of mandamus compelling the first defendant to process the plaintiff's complaints against the District Court Judge in a timely manner; and

• (ii) A declaration that the first defendant has acted unlawfully in failing to process the plaintiff's complaints against the District Court Judge in a timely manner.

5 Each defendant has filed an affidavit in the proceeding and each abides the decision of the Court.

6 Mr Illingworth QC was, on 5 September 2011, appointed amicus curiae to assist the Court.

7 The case was argued before me on 15 November 2011. In the course of argument the plaintiff withdrew his action against the second defendant. 2 Accordingly, I can put that matter aside.

The facts

8 As previously stated, the plaintiff lodged the complaint with the first defendant on 14 May 2010. By email dated 25 May 2010, the first defendant (through C Wren) acknowledged receipt of the complaint and advised:

This matter will be considered by the Commissioner as soon as possible, and he will be in touch with you in due course.

9 Having heard nothing in the interim, the plaintiff sent the first defendant an email on 24 August 2010:

I have not had any communications from this office to indicate it is doing anything about this file. Indeed, my complaint against [the District Court Judge] has already been languishing for three months – have you even asked his Honour to respond? I have asked the District Court for a copy of the transcript of that day's events where the Judge would not let me even open my mouth and to date the Registry has also ignored my request (attached). I therefore urge your office to acquire the transcript, if you intend on actually conducting a serious investigation of my complaint in furtherance of your statutory obligations. It appears that complaints against judges in New Zealand are really just for show in that the Court does not give a complainant the evidence he needs and then your office will likely conclude there is insufficient evidence to take a matter further and the beat goes on. The process appears to really be just window dressing to give the pretence of judicial accountability when in reality the government wants no such thing – I hope you prove me wrong.

10 On 1 September 2010, having had no reply from the first defendant, the plaintiff sent this email to the first defendant:

Dear Sir,

I intend to judicially review all decisions made by your office, inter alia, non-performance of statutory duties and therefore under the Official Information Act 1992, Privacy Act 1993 and s 27 of the New Zealand Bill of Rights Act 1990 I want copies of all files relating to complaints lodged by me against [four named Judges including the District Court Judge complained about on 14 May 2010].

11 Receipt of this email was acknowledged by C Wren who wrote that she had forwarded it to the first defendant.

12 The first defendant had no further contact with the plaintiff until 19 October 2010 when the plaintiff again wrote to him by email:

Enclosed you will find an amended complaint against [the District Court Judge]. Please note that if your office continues fails to take any action in progressing my complaints I will judicially review your failure. I trust this will not be necessary.

13 The amended complaint brought into the picture a second hearing before the District Court Judge which had occurred on 21 May 2010. The final paragraph of the amended complaint reads:

I am concerned that since my original May 2010 complaint your office has failed to take any action whatsoever, including at least requiring [the District Court Judge] to answer the complaint, and so I look forward to hearing from you as to progressing these matters with some expediency as is your duty under the Act which governs you.

14 On 27 October 2010, the plaintiff again wrote by email to the first defendant:

It has now been over a week and I have not even received confirmation that my amended further complaints are being considered. Have you taken any steps to obtain the audio recordings or transcripts in the District Court? These are very serious allegations which you do not at all appear to be taking seriously and this would indicate you are not fulfilling your statutory duties. I look forward to hearing from you.

15 Later that day the plaintiff telephoned the first defendant's office and spoke to his secretary. As a result the plaintiff wrote by email to the first defendant on 28 October 2010:

I have been advised by your office that [the District Court Judge] responded to my initial complaint. I was not aware of this and it is unfortunate that I have to call your secretary and this is the process by which information is imparted to me as a complainant. I demand a copy of [the District Court Judge's] response under natural justice principles, e.g., perhaps there are inaccuracies or other matters that I want or need to reply to.

Additionally, you have ignored my repeated queries as to whether or not you received the audio recordings and/or transcripts. This causes me concerns that your office is not having a serious investigation and is instead engaging in a window dressing exercise where you simply have adopted a process whereby you accept the judge's word over any complainant's and thus there is the appearance of judicial accountability in New Zealand when the reality is that there is none.

Lastly, this is a Judge who in my submission, inter alia, abused his powers by threatening counsel with imprisonment for lodging a complaint against him. This is something that would be expected in a third world country not New Zealand which just yesterday was hailed by Transparency International as being the least corrupt country in the world. Of course, if offices such as yours cover up corruption that would explain those high marks – see no evil, hear no evil. I intend to sue the government for various breaches by the judicial branch and intend to join the JCC in the proceedings because your processes I believe simply protect judicial wrongdoing.

16 The plaintiff had a number of dealings with the second defendant in an effort to obtain the transcripts he wanted. On 5 November 2010, he forwarded to the first defendant an email from the second defendant. He wrote:

It would appear to me that the District Court is denying me evidence in support of my complaints, but no doubt you as an impartial arbiter of the issues can contact them and get a copy as part of your investigation. I trust you will attend to this as surely a judge who is wrongfully threatening to put individuals in jail because they had the audacity to complain against said judge would be something that is bad for democracy. I look forward to hearing from you.

17 By letter dated 9 November 2010 the first defendant replied to the email of 5 November 2010. The first defendant interpreted the plaintiff's email as being a request for the first defendant to assist the plaintiff in obtaining the transcripts from the second defendant. He declined to do so:

But it is a different thing for me to act as an agent for a complainant, to obtain and pass on materials, to assist someone in the compilation of a complaint. I do not consider that is within the scope of my authority. Moreover, I think that it is important, as a matter of principle, that the Commissioner stand at some distance from both complainants and Judges, in order to be able to carry out his or her duties in an evidently impartial manner.

18 The first defendant finished his letter to the plaintiff as follows:

As to the substantive complaint that you lodged on 14 May, as augmented by your letter of 19 October, I am still considering what course I should properly take. I do have a large workload, but I will seek to give your complaint its due measure of priority.

19 The next time the first defendant corresponded with the plaintiff appears to have been by letter sent on 2 February 2011 (which I infer related principally to other complaints) in which the first defendant said that he would be writing to the plaintiff about his complaint about the District Court Judge. He did so by letter dated 4 February 2011. The relevant part of that letter reads:

I know that you wish to see the reply that this Office has received from [the District Court Judge] to the complaint that you submitted on 14 May last year. I...