IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2016-404-2579
CIV-2017-404-184 [2022] NZHC 1972	

UNDER	The Lawyers and Conveyancers Act 2006	
IN THE MATTER	of s 253 appeals	
BETWEEN	FRANCISC CATALIN DELIU
Appellant	
AND	THE NATIONAL STANDARDS COMMITTEE AND AUCKLAND
STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY
Respondents

Cont:/	

Hearing:	23 February 2022	
Appearances:	Appellant in person
M J Hodge for Respondents	
Judgment:	10 August 2022	

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 10 August 2022 at 2:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

DELIU v THE NATIONAL STANDARDS COMMITTEE AND ANOR [2022] NZHC 1972 [10 August 2022]

Cont:/

AND	

CIV-2017-404-0260	

UNDER

IN THE MATTER	The Judicature Amendment Act 1972 of an application for judicial review	
BETWEEN	FRANCISC CATALIN DELIU
Applicant	
AND	THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY
TRIBUNAL
First Respondent	
AND	THE NATIONAL STANDARDS COMMITTEE AND AUCKLAND
STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY
Second Respondents	

Introduction

[1]	Mr Francisc Deliu (the applicant) was suspended from legal practice for misconduct in 2017. He challenged his suspension in the High Court by way of judicial review and an appeal under s 253 of the Lawyers and Conveyancers Act 2006.1 The challenges were heard and rejected by Hinton J.2 Mr Deliu was ordered to pay costs to the New Zealand Law Society.3 His application for leave to appeal to the Court of Appeal was declined.4

[2]	On 3 October 2021 Mr Deliu applied for various orders including that:

The Honourable Justice Hinton disclose any potential conflict-of-interest she may have to sit in these proceedings including but not limited to full details (i.e., who, what, where, when, how) about any relationship (business or otherwise), be it a friendship, professional association or elseways [sic] that she may have or have had with Mr Rhys Harrison QC, Mr Anthony Penrose Randerson QC, Madames [sic] Mary Scholtens QC, Susan Hughes QC or Jacqui Gray, Messieurs Peter Shaw or William Smith, Mr Nigel Hampton QC or any other members of the standards committee respondents, Mr Philip Morgan QC, Mr Michael Hodge and/or any other member of the firm of Meredith Connell now acting for the Committees; …

[3]	Mr Deliu has applied for the three judgments of Hinton J to be recalled on the grounds of actual or apparent bias and for Hinton J to be recused from acting in any further matters involving himself and/or any body of which she was formerly a member. His application for an order that Hinton J make disclosure of any conflict of interest she may have is brought as a preliminary matter to be determined before further steps are taken in the disposition of Mr Deliu’s other 3 October 2021 applications.

[4]	In his affidavit dated 2 October 2021 Mr Deliu specifies the following matters which he says Hinton J ought to have disclosed before hearing these proceedings and which now warrant the making of the disclosure orders he is seeking:5

1	Deliu v The National Standards Committee and the Auckland Standards Committee No 1 of the New Zealand Law Society [2017] NZHC 2318.
2	At [225].
3	Deliu v National Standards Committee and Auckland Standards Committee 1 of the New Zealand Law Society [2018] NZHC 2171.
4	Deliu v National Standards Committee and Auckland Standards Committee 1 of The New Zealand Law Society [2018] NZHC 2873.
5	I have largely adopted the respondents’ useful summary of the relevant grounds.

(a)	In the years 2003 to 2007, prior to her appointment on 30 January 2015 as a judge of the High Court, Ms Hinton QC (as she then was) was on the panel of practitioner members of the New Zealand Law Practitioners Disciplinary Tribunal (LPDT), the statutory predecessor to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (LCDT):

(i)	in 2003 and 2004, Nigel Hampton QC was the Chairperson of the LPDT;

(ii)	in 2005 to 2007, Mr Hampton was on the panel of practitioner members of the LPDT; and

(iii)	Mr Hampton was subsequently the Chairperson of the New Zealand Law Society’s National Standards Committee, which was one of the two standards committees that acted as prosecutor in the disciplinary proceedings against Mr Deliu, and which was a party to the appeal and judicial review proceedings that were heard by Hinton J.

(b)	In or around 2009, Ms Hinton was on the panel of practitioner members of the LCDT:

(i)	Mary Scholtens QC, Susan Hughes QC and Jacqui Gray (practitioner members) and Peter Shaw and William Smith (lay members) also served on the LCDT at that same time; and

(ii)	those same five members later heard the disciplinary proceedings against the applicant that were before the LCDT in 2015 and 2016. They made the liability and penalty decisions against  the  applicant,   dated   15   September   2016   and   22 December 2016 respectively, which were the subject of the appeal and judicial review proceedings heard by Hinton J.

(c)	Prior to her appointment as a High Court judge, Hinton J:

(i)	was  appointed  as  Queen’s  Counsel  the  same   year   that Ms Scholtens (in 2002); five years later, Ms Hughes was also appointed as Queen’s Counsel (in 2007); and

(ii)	presented a session at a Continuing Legal Education Family Law Education Conference in 2013 at which Ms Hughes also a presented a session.

(d)	On a date unknown sometime before the April 2017 hearings, Hinton J was photographed standing with Phillip Morgan QC (who was lead counsel for the standards committees in the disciplinary proceedings before the LCDT and in these appeal and judicial review proceedings) while attending a social function held at the Auckland High Court.

[5]	The issue for present purposes is whether these matters provide a sufficient basis to warrant the Court making an order requiring Hinton J to provide disclosure in the terms sought by Mr Deliu.

Mr Deliu’s submissions

[6]	Mr Deliu says that he has been the victim of what he terms “a political prosecution, if not persecution” for having exercised his statutory right to make a complaint against a judge. He submits that he has been denied a fair, impartial, neutral and objective decision maker or certainly the appearance of one. He submits that Hinton J failed to disclose her relationships with members of the LPDT and counsel that may have potentially disqualified her from sitting on his application for judicial review and his appeal under s 253 of the Lawyers and Conveyancers Act 2006, and which in turn denied him access to justice, in that had proper disclosure been made by the Judge he would have considered making an application to recuse her.

[7]	Mr Deliu intends to argue on the substantive recall application that Hinton J’s failure to make proper disclosure is a ground of apparent bias. He also intends to submit that the existence of Hinton J’s relationships that he has since learned about are

grounds for him to challenge the Judge’s decisions on the basis of apparent bias. He also proposes to argue that any other relationships still not disclosed and as yet unknown to him are further evidence of apparent bias. He claims to be entitled to all relevant evidence or information that may only be known to, and in the possession of Hinton J.

[8]	Relying on Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) (Saxmere (No 2)) Mr Deliu submits that if a judge fails to disclose material information that provides a proper basis to seek recall, and if further disclosure is provided that establishes apparent bias, that will justify and result in the recall of the Court’s decision.6 Mr Deliu notes that despite having associations with the members of the LPDT and LCDT, Hinton J did not make any pre-hearing disclosure. He submits that for present purposes all the Court needs to decide is whether or not he was prior to the March/April 2017 hearing, and therefore now is, entitled to disclosure by Hinton J relating to her association and connections with the several persons named in the application.

[9]	Mr Deliu submits that Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (Saxmere (No 1)) confirms that disclosure is required at least after a party has raised the issue.7 Such disclosure, he says, is part of the judicial duty. He refers to and relies on the principles appearing from paragraphs [31]–[34] of Blanchard J’s judgment in Saxmere (No 1) in which his Honour said:

[31]	… It is frequently the position that a judge will think it appropriate to alert counsel and their clients to some circumstance which might at first blush, without sufficient information, attract attention. The judge does so in order that the parties to the case can consider the situation and either indicate a lack of concern or, if thought fit, make a recusal application, upon which full consideration can be given to the validity of the objection to the judge’s sitting in the particular case.

[32]	… such disclosure is to be encouraged in a small jurisdiction like New Zealand where the limited number of available replacement judges reinforces the general obligation for a judge to sit on all cases to which he or she has been assigned. It is not fairly to be taken as an acknowledgment that the circumstances give rise to a reasonable apprehension of bias. It merely

6	Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 [Saxmere (No 2)] at [4]–[5], [13], [15] and [18]–[19].
7	Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 [Saxmere (No 1)] at [14].

indicates the need for the matter to be considered, on an informed basis, by counsel and client. The practice of giving the parties prior advice about a connection with a party, a witness or a counsel is actually, as Kirby P [has] remarked … a protection of the manifest integrity of the judicial process and also a defence against later applications for disqualification.

[33]	That of course assumes the prior disclosure is properly and adequately made. I should not be taken to be approving the manner in which Wilson J made his disclosure in this case. …

[34]	In this connection I reject the argument made for the respondent that there was an obligation on the appellants, if in doubt, to seek more information from the Judge in response to his disclosure. Quite the reverse; it is for a judge who makes a disclosure to ensure that the parties have enough information, shorn of unnecessary detail, to make up their minds about whether to make a recusal application. They and their counsel should not be placed in the embarrassing position of having to seek further information from the judge.

[10]	Mr Deliu says that Hinton J failed to disclosure any connections she has or had with a body which was a party to the proceeding, namely the LCDT and its committees or its counsel such as Mr Morgan. Mr Deliu submits that the Court should now make an order requiring Hinton J to make disclosure of any information that may reasonably give rise to potential or apparent bias. He says that it is not necessary that the information or materials to be disclosed would be dispositive of bias nor even that it will ultimately be used. He submits that the standard is low and requires disclosure to be made of anything that might attract attention, or give rise to concern such as would enable him to consider it on an informed basis. Referring to the Judicial Conduct Commissioner’s interpretation of Saxmere (No 1), Mr Deliu says that Hinton J had “strict” “obligations” to disclose “whatever might be relevant”.8

The respondents’ submissions

Disclosure orders against a judicial officer

[11]	The respondents refer to several cases in which a recall application was made based on information obtained after the hearing of the proceeding about a judge’s relationship with a participant in the proceeding.9 In each case, the judicial officer

8	David Gascoigne “Decision of the Judicial Conduct Commissioner as to three complaints concerning Justice Wilson” (7 May 2010) Judicial Conduct Commissioner <jcc.govt.nz> at [134(a)].
9	Man O’War Station Ltd v Auckland City Council [2001] 1 NZLR 552 (CA); Man O’War Station Ltd v Auckland City Council (Judgment No 1) [2002] UKPC 28, [2002] 3 NZLR 577; Saxmere (No 1), above n 7; Saxmere (No 2), above n 6; and Craig v Williams [2019] NZSC 60.

concerned provided a written statement about the relationship in question to the court that was deciding the recall application. It appears that in each case the written statements were provided voluntarily. The respondents nevertheless submit that it appears from Saxmere that the court has jurisdiction to make an order requiring a judicial officer to make specific disclosure.10

[12]	The respondents further submit that an order for disclosure should not be made against a judicial officer unless the facts of the particular case require it when applied to the relevant law for recusal for bias. A judge is not to be treated as a party to litigation subject to interlocutory processes such as discovery or interrogatories (or as a non-party who may be subject to certain interlocutory processes such as non-party discovery) as this would cut across judicial independence.

[13]	The respondents say that an order for disclosure should only be made against a judicial officer in a case like the present if the following criteria are met:

(a)	There must be evidence of a relevant relationship between the judicial officer and one of the participants. A disclosure order designed to ascertain whether a relationship exists or not in the absence of a sufficient evidential foundation, would amount to a fishing expedition, and should not be made.

(b)	The evidence in support of an application must disclose reasonable grounds for further inquiry. The evidence does not have to establish a relationship giving rise to a reasonable apprehension of bias (indeed, further disclosure is unnecessary if that threshold is met), but it must be sufficient to justify further inquiry through the making of a disclosure order against the judicial officer concerned.

(c)	An objective assessment is required. Reasonable grounds must exist to justify the disclosure order. This reflects the objective nature of the test of whether the nature of a relationship is such as to create a reasonable apprehension of bias.

10	See Gascoigne, above n 8, at [62].

[14]	The respondents further submit that the High Court recusal guidelines dated 12 June 2017 imply that disclosure must be given only of matters which might give rise to an objection on reasonable grounds.11 The respondents submit that the guidelines are properly to be regarded as providing guidance to judges of the High Court on the approach to be taken to the making of disclosure prior to a hearing proceeding. The guidelines do not purport to be a statement of the law to be applied in determining whether a disclosure order should be made against a judge on the application of one of the parties after a proceeding has been heard and determined. The respondents submit that it must be implied that the reference to an “objection” in the guidelines means an objection based on reasonable grounds, as if any possible objections came within the scope of the guidelines, including those made on grounds which are wholly misconceived, then disclosure would be required in most cases that come before the High Court.

Recusal for bias

[15]	The respondents further submit that subject to waiver or necessity, a judge is disqualified from sitting on a case, if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions they are required to decide.12 The test is an objective one.13 The respondents submit that a realistic approach must be attributed to the fair-minded lay observer, reflecting an informed understanding of the operation of our judicial system and the types of relationships that judges will inevitably have formed over years of professional life. These practical realities must be taken into account when considering whether an order for disclosure should be made against Hinton J here in this case.

Application to the present case

[16]	The respondents say that the evidence relied on by the applicant falls well short of establishing the existence of any relationship of the kind that would give rise to a

11	See Justice G J Venning “High Court recusal guidelines” (12 June 2017) Courts of New Zealand
<courtsofnz.govt.nz>.
12	Saxmere (No 1), above n 7, at [3] per Blanchard J, [37] per Tipping J, [56] per McGrath J and
[127] per Anderson J.
13	At [5]–[10].

reasonable apprehension of bias on the part of a fair-minded lay observer. He therefore fails to establish reasonable grounds warranting further inquiry by means of the making of an order for disclosure against Hinton J.

[17]	With respect to Hinton J’s former membership of the LCDT, approximately five years before being appointed to the High Court bench and seven or eight years before hearing these proceedings, the respondents submit that such membership and association with people who were members of the tribunal which decided Mr Deliu’s disciplinary charges cannot and does not give rise to a reasonable apprehension of bias in relation to Hinton J hearing the proceedings. The same applies as regards her professional relationship with Mr Hampton. It is common for judges to sit on appeals against decisions of lower courts of which they were once a member. There are also judges in our senior courts who have sat on professional disciplinary tribunals or other statutory tribunals while in practice, who may hear appeals in those areas of the law. There is nothing out of the ordinary here or of the character which might give rise to a reasonable apprehension of bias.

[18]	The respondents submit that Mr Deliu’s argument is not strengthened just because the five LCDT members who heard his disciplinary proceedings in the LCDT were members at a time when Hinton J was also a member. Judges frequently hear appeals against the decisions of other judges in the courts below, even though they were formerly colleagues in the lower courts. Were the position otherwise, the respondents submit that all judges of the Court of Appeal and Supreme Court would have to be appointed directly from the profession. Moreover, just because she was a member at the same time does not mean that Hinton J was a good friend of the other members, nor would a friendship in itself provide a basis for disqualification.14

[19]	In contrast to other cases where a recall application was made based on information obtained about a judge’s relationship with a participant in the proceeding after the hearing of the proceeding,15 the respondents submit that Hinton J’s former membership of the practitioner’s panel of the LCDT does not involve relationships of a kind that call for any further inquiry. The respondents say that Hinton J is no more

14	See Saxmere (No 1), above n 7, at [20].
15	See, for example, the decisions in Man O’War, Saxmere and Craig, above n 9.

likely to have had a close business or other relationship with one or more of the five named LCDT members, requiring further disclosure, than she is to have had such a relationship with countless other persons she worked with over the years of her professional life prior to her appointment as a judge.

[20]	As to Hinton J’s relationship with Ms Scholtens, the respondents say that the fact that they were both appointed Queen’s Counsel the same year does not assist the applicant. Nor does it assist the applicant that Ms Hughes was also appointed Queen’s Counsel some five years later, or that Hinton J and Ms Hughes both spoke at the same family law conference in 2013. If the threshold for disclosure and recusal were to be set this low, it is difficult to see how the New Zealand judicial system could function.

[21]	Finally,  regarding Hinton J being photographed at a social function with    Mr Morgan, the respondents submit that social functions at which judges and members of the profession attend are common. As noted in Saxmere (No 1), far from being a basis for recusal, the presence of the judiciary and counsel at such functions is beneficial.16

[22]	The respondents say that it is a matter for judges to decide whether they will make voluntary disclosure in the circumstances of a case they are involved in. The respondents accordingly submit that the Court should decline to make an order requiring Hinton J to make disclosure in the terms sought by Mr Deliu.

Mr Deliu’s reply submissions

[23]	Replying to the respondents’ submissions Mr Deliu repeats his submission that the threshold for requiring disclosure is “not high at all” and a judge may alert counsel of a circumstance that “might at first blush … attract attention”.17 Whether or not the information reveals an entirely innocent relationship is beside the point. Moreover, as to the respondents’ submission that judges frequently sit on appeals against decisions of lower courts of which they were once a member, Mr Deliu submits that just because such a practice is common does not make it right.

16	Saxmere (No 1), above n 7, at [106], citing Wellesley Lake Trophy Lodge Inc v BLD Silviculture Ltd [2006] 10 WWR 82 at [18].
17	At [31].

Discussion

[24]	The central question on this application is whether the matters identified by Mr Deliu provide a sufficient basis to warrant this Court making an order requiring Hinton J to provide disclosure in the terms sought. However I will first consider the Court’s jurisdiction to make an order requiring disclosure by a judicial officer, before turning to address the matters raised by My Deliu.

Jurisdiction to make disclosure orders against a judicial officer

[25]	It is well-established that a judge may voluntarily disclose any matter which might give rise to an objection on behalf of a party to the proceeding to the judge hearing the case:18
[31] … It is frequently the position that a judge will think it appropriate to alert counsel and their clients to some circumstance which might at first blush, without sufficient information, attract attention. The judge does so in order that the parties to the case can consider the situation and either indicate a lack of concern or, if thought fit, make a recusal application, upon which full consideration can be given to the validity of the objection to the judge’s sitting in the particular case.

[26]	This undoubtedly prudent practice is reflected in the High Court recusal guidelines dated 12 June 2017:19

6.	Disclosure of conflict of interest: principles

6.1	Adequate disclosure protects the integrity of the judicial process and is also a defence against later challenges to the decision.

6.2	Disclosure does not constitute an acknowledgement that the circumstances give rise to a reasonable apprehension of bias.

6.3	Disclosure of any matter which might give rise to objection should be undertaken even if the judge has formed the view that there is no basis for recusal. There may be circumstances not known to the judge which may be raised by the parties consequentially upon such disclosure.

18	Saxmere (No 1), above n 7.
19	See Venning, above n 11. These guidelines were issued following consultation with the Chief Justice pursuant to s 171 of the Senior Courts Act 2016.

[27]	Both parties also agree that the Court may make an order requiring disclosure by a judicial officer.20     They rely on a minute issued by the Supreme Court on       30 September 2009 in the course of the Saxmere litigation in which the Court sought further disclosure from Wilson J regarding the actual amount of the financial differential in dollar terms between the contributions made by him and those made by Mr Alan Galbraith QC (counsel for one of the parties) to the company they jointly held. Justice Wilson had previously disclosed the difference expressed in percentage terms.

[28]	The sequence of events was described by the Judicial Conduct Commissioner in his decision “as to three complaints concerning Justice Wilson”, to which both parties refer, as follows:21
58.	On 28 July 2009, an application for the recall of the Supreme Court’s No. 1 decision (dated 3 July 2009) was filed on behalf of the Saxmere interests. The grounds included a claim that the Justice Wilson was beholden to Mr Galbraith because of their financial interdependence and resulting obligations.

59.	For his part, Justice Wilson sought leave from the Supreme Court to make a written response to the application. The Court granted him leave to make a statement. In this second statement (dated 28 August 2009) Justice Wilson referred to each allegation. …

…

62.	On 30 September 2009, the Supreme Court issued a Minute. It drew attention to the passage in Justice Wilson’s statement to the effect that his contributions to Rich Hill Ltd were approximately 6% less than those of Mr Galbraith. It sought disclosure of the dollar amount of that differential.

63.	On 22 October 2009, Justice Wilson provided a statement in answer to that Minute. …

(emphasis added)

[29]	However, I note the wording used by the Judicial Conduct Commissioner is that the minute issued by the Supreme Court, “sought” disclosure from Wilson J, not

20 It appears that the respondents initially did not accept that the jurisdiction to make such an order existed, stating in their notice of opposition to Mr Deliu’s applications (18 October 2021) that the matters raised in Mr Deliu’s affidavit do not justify the making of orders for discovery “even assuming there is jurisdiction for such orders”.
21 Gascoigne, above n 8 (emphasis added).

that it “required” him, “ordered” or “directed” him to provide it. This distinction is supported by the Supreme Court’s own description of the events in Saxmere (No 2):22

[6]	After the recall application was made and no doubt having in mind certain comments made in our earlier judgment, to which reference will be made hereafter, Wilson J, in a memorandum to the Court, sought leave to provide a statement in reply to the application for recall, in which it was suggested that he had not made a full disclosure before the earlier hearing.

[7]	With the leave of the Court the Judge furnished a further statement and thereafter, at the invitation of the Court, supplemented it with further factual information.

(emphasis added)

[30]	This wording implies that the Supreme Court’s minute of 30 September 2009 did not “require” or “order” Wilson J to provide further disclosure, but that it merely “invited” him to do so. An invitation he voluntarily responded to when he supplemented his intial statement by providing further information about the precise details of his and Mr Galbraith’s respective financial contributions to the company they jointly held. In my view, the fact that the Supreme Court sought — and duly received — further disclosure from a judicial officer in the Saxmere litigation does not establish that this Court has jurisdiction to compel a judicial officer to provide disclosure. I have not been referred to any authorities where such jurisdiction has been found to exist let alone authorities in which it has been exercised.

[31]	Indeed, there are sound reasons why the courts would be slow to recognise a jurisdiction to compel judicial officers to provide disclosure. As the respondents’ submissions noted, a judge is not to be treated as a party to litigation subject to interlocutory processes such as discovery or interrogatories (or as a non-party who may be subject to certain interlocutory processes such as non-party discovery). The High Court recusal guidelines promulgated by the Chief High Court Judge on 12 June 2017, following consultation with the Chief Justice pursuant to s 171 of the Senior Courts Act 2016, will also be sufficient in most cases to ensure that parties are furnished with the information necessary to mount any reasonably based objections they may have to a particular judge hearing a proceeding.

22	Saxmere (No 2), above n 6 (emphasis added).

[32]	I however accept that if a judge were to decide not to disclose relevant information about their relationship with participants in a proceeding, and thereafter refused to disclose such information when specifically requested or invited by the court to do so after finding that reasonable grounds for the objection existed, the resulting ambiguity would complicate the court’s task of determining whether an order for recall of their judgment was appropriate on the basis of actual or apparent bias. If clear evidence existed to support a party’s claim that grounds for an objection existed and the judge nevertheless declined to provide the requested information so as to resolve the matter, I consider that the court could have recourse to its inherent jurisdiction to do justice between the parties and to conduct the proceedings in a manner which maintained public confidence in the courts, as the source of its jurisdiction to make a disclosure order.

[33]	However that is not the situation here, and it is unnecessary for me to finally determine whether the court has jurisdiction to require a judge to provide disclosure in these circumstances where Hinton J has not been invited or requested — nor has she refused — to do so voluntarily.

[34]	Accordingly, the question here is whether the Court should invite or request Hinton J to provide disclosure for the reasons outlined in Mr Deliu’s application. It is not necessary in this respect for Mr Deliu to adduce evidence of a relationship giving rise to a reasonable apprehension of bias (further disclosure would be unnecessary if that threshold were met), but he must demonstrate the existence of reasonable grounds that would warrant the Court making further inquiries of the Judge. This distinction is well illustrated by reference to the Saxmere litigation: the fact that Wilson J and counsel owned a company together was not in itself disqualifying, but their joint interest provided reasonable grounds for further inquiry and raised the question of whether there were any imbalances in their respective contributions to the company which, when disclosed, led to the conclusion that Wilson J ought to have recused himself from hearing the case.

[35]	I consider, by reference to the matters identified by Mr Deliu, that it is unnecessary in the circumstances of this case for the Court to invite Hinton J to provide disclosure in the terms sought. My reasons follow.

Former membership of the LPDT and LCDT

[36]	First, as regards Hinton J’s former membership of the LCDT, there is nothing in this association which warrants further inquiry by way of inviting the Judge to provide disclosure in the terms sought. The same applies with respect to her membership of the LPDT and her professional relationship with Mr Hampton. Some degree of familiarity and association between judges and other lawyers is to be expected in New Zealand’s “relatively small” legal community.23 These collegial connections and associations serve, rather than frustrate, the administration of justice.24

[37]	The fact that Hinton J had been a member of the LPDT practitioners panel during the years 2003 to 2007 and a member of the LCDT practitioners panel around 2009 well prior to her appointment to the High Court in January 2015 was a matter of public record. In the course of making his oral submissions Mr Deliu acknowledged that at the time of the hearing before Hinton J in March/April 2017 he knew that she had been a member of the previous Tribunal,25 however he did not become aware that she had been a member of the LCDT until after the hearing. Having regard to that publicly available information and Mr Deliu’s knowledge gained as a member of the legal profession, the fact that the Judge previously had a professional association with other members of the tribunals she was a member of, including some members of the tribunal that heard and determined the professional charges against Mr Deliu, could be reliably and reasonably inferred. That Hinton J would also have had professional associations and friendships with colleagues within the legal profession generally was equally obvious at the time of the hearing. Moreover, by the time of the hearing of Mr Deliu’s judicial review and appeal in March/April 2017, Hinton J had been sitting as a High Court judge for well over two years, and approximately seven years had elapsed since she had been on the LCDT.

[38]	The mere fact that Hinton J was formerly on the panel of practitioner members of the LCDT and had professional and personal associations with members of the tribunal that heard and determined the professional charges brought against Mr Deliu,

23	Saxmere (No 1), above n 7, at [101] per McGrath J.
24	At [102].
25	New Zealand Law Practitioners Disciplinary Tribunal.

is no reason to suppose that she could not later bring an impartial mind to the issues presented on an appeal against (or judicial review of) decisions of that tribunal. The Judge’s membership of the LCDT did not lead to her having any specific involvement with Mr Deliu in her role as a member of the tribunal, and although she was a member of the LCDT at the same time as the five members who later heard the disciplinary proceedings against Mr Deliu, having regard to the total number of practitioner members of the tribunal that coincidence is not in my view of such significance as would lead an independent and informed observer to consider that Hinton J should not, some seven years since her membership of the tribunal, hear and determine a proceeding involving him.26 It is entirely unremarkable for judges to sit on appeals against decisions of their former colleagues in lower courts of which they were once a member.

[39]	While it is self-evidently correct that just because a practice is “common” does not mean it is “right”, I am satisfied there is nothing pernicious in the practice of judges hearing appeals against decisions of their former colleagues. As McGrath J observed in Saxmere (No 1):27
A judge, through training, professional experience and commitment to proper exercise of the judicial function, will decide a case, at all stages, impartially according to the merits of what is put to the court as the judge sees it.

[40]	It is the very essence of the judicial function that judges are required to put aside extraneous factors and decide all issues before the court in accordance with the legal and factual merits of the case. Professional connections and even friendships with former colleagues is not a reason why judges should, as a matter of course, be prevented from hearing appeals in this manner. As the respondents observe, if this were the case, all judges of the Court of Appeal and Supreme Court would have to be

26 This is perhaps less of a coincidence than it may initially appear: in the year ended 30 June 2009 there were 32 individuals on the LCDT (a Chairperson and Deputy Chairperson, 12 lay members, 14 practitioner members and 4 conveyancer practitioner members); 7/13 of the practitioner members of the LCDT in the year ended 30 June 2009 (excluding Hinton J) were still serving as practitioner members in the year ended 30 June 2016; and 6/12 of the lay members in the year ended 30 June 2009 were still serving as lay members in the year ended 30 June 2016.
27 Saxmere (No 1), above n 7, at [104].

appointed directly from the profession. The proper approach to judicial recusal is instead one which takes into account the particular factual matrix of the case at hand.28

[41]	I am satisfied in the circumstances of this case that Hinton J’s former membership of the LCDT and LPDT does not of itself provide a sufficient basis to warrant the Court making further inquiries. That is particularly so given the passage of time:29
The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

[42]	Justice Hinton’s former membership of the LCDT, approximately five years prior to her appointment to the High Court and some seven or eight years before hearing these proceedings, does not provide reasonable grounds warranting the Court to invite the Judge to provide disclosure in the terms sought. While the threshold for making further inquiries is necessarily lower than the evidential basis required to give rise to a reasonable apprehension of bias, I consider that this ground of Mr Deliu’s application falls well short of reaching that threshold.

Appointment as Queen’s Counsel, a speaking engagement, and a photograph taken at a social function

[43]	The remaining matters identified in Mr Deliu’s application may be dealt with rather briefly. He points out that Hinton J was appointed Queen’s Counsel in the same year as Ms Scholtens (in 2002) and five years before Ms Hughes (in 2007); that Hinton J presented a session at a Continuing Legal Education conference in 2013, at which Ms Hughes also a presented a session; and that at some unknown time before March/April 2017, Hinton J was photographed standing with Mr Morgan while attending a social function at the Auckland High Court.30

28	See President Stephen Kós “Court of Appeal recusal guidelines” (22 November 2021) Courts of New Zealand <courtsofnz.govt.nz> at [1].
29	Man O’War Station Ltd v Auckland City Council, above n 9, at [17], citing Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA) at [25].
30	Mr Morgan was lead counsel for the standards committees in the disciplinary proceedings before the LCDT and in the appeal and judicial review proceedings.

[44]	There is quite plainly nothing in these events to warrant making inquiries of the Judge. Mr Deliu describes these “admittedly more minor” connections, such as Hinton J being appointed Queen’s Counsel around the same time as Ms Scholtens and Ms Hughes, as providing a “further potential nexus” between Hinton J and members of the LCDT who had heard the disciplinary proceedings against him. However, there are likely to be numerous professional connections (or coincidences) of this nature in many if not most of the proceedings that come before the courts. I agree with the respondents that if the threshold for disclosure, or inviting a judge to provide disclosure, was set at that impractical level the New Zealand judicial system would not function effectively.

[45]	I accordingly find that the applicant has not shown the existence of reasonable grounds for warranting the Court to invite Hinton J to provide disclosure of the matters sought in the application.

Mr Deliu’s proposed timetable for an application for leave to appeal

[46]	In his written submissions dated 28 January 2022, Mr Deliu states that in the event his application for disclosure from Hinton J is declined, he proposes a timetable for an application for leave to appeal the Court’s ruling pursuant to s 56 of the Senior Courts Act. However, I consider that pre-emptively requesting a timetable for an application for leave to appeal this Court’s decision should the Court decline his application is inappropriate prior to the Court delivering its decision. The Court will not consider an application of this kind unless and until an appeal is actually filed.

Result

[47]	The application for disclosure is declined.

[48]	The respondents are entitled to an award of costs on this application. However I reserve costs until after the determination of Mr Deliu’s substantive recall application.

Paul Davison J