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Back Home 5 News 5 Lawyer fails in bid to recall judgments relating to disciplinary proceedings

Lawyer fails in bid to recall judgments relating to disciplinary proceedings

2 Jun 2023

| Author: Heidi Bendikson

Judicature Amendment Act 1972 – application for recall of judgment – whether there was reasonable apprehension judge was biased – issue estoppel – ultra vires

Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2023] NZHC 1184 Campbell J

Francisc Catalin Deliu was found guilty by the Lawyers and Conveyancers Disciplinary Tribunal (LCDT) on charges of misconduct in 2016, resulting in a 15-month suspension. The most serious of those charges related to false accusations against two High Court judges.

In 2017, Deliu brought proceedings appealing the LCDT decisions and applying for judicial review. Hinton J rejected his challenges in judgments delivered in 2017 and 2018.

Some years later, Deliu filed an application for orders that Hinton J disclose any potential conflict of interest in the judgments. Paul Davison J found no further inquiry was warranted.

Deliu now applies for a recall of the judgments, saying there was reasonable apprehension that Hinton J was biased, having been on the panel of the LCDT at the same time as members who found against him, and having been on the predecessor Law Practitioners Disciplinary Tribunal when it was chaired by the judgment’s prosecutor. Deliu also argued the LCDT had acted ultra vires and, while he did not raise this in the 2017 proceedings, he should be able to do so now.

Applicable principles – principles relating to the recall of unsealed judgment – whether there is some special reason justice requires recall of judgments – whether Deliu estopped from arguing there was reasonable apprehension that Hinton J biased due to matter being covered in disclosure application (High Court found he was not estopped) – whether there was reasonable apprehension of bias – High Court found there was nothing to suggest the assignment of Hinton J was anything but random – High Court applied fair-minded lay observer test and noted long passage of time since Hinton J’s connections to LCDT – whether Deliu estopped from raising ultra vires issue –  discussion of principles relating to apparent  judicial bias – High Court found Deliu could and ought to have raised ultra vires grounds in earlier judicial review application.

Held: Application for recall declined.

Catalin v National Standards committee

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