By Anna Longdill
Application for recusal of judicial review list judge at a case management conference – in timetabling discussions, judge referred to applications for security for costs when none had been raised and then told the applicant to “knock yourself out” when recusal was mentioned – High Court Recusal Guidelines – is there a real possibility a fair-minded, fully informed observer would reasonably apprehend that the judge might not impartially decide the issue on its merits?
Deliu v Legal Complaints Review Officer [2025] NZHC 1730 per Jagose J
Francisc Deliu has filed judicial review proceedings, a claim under the New Zealand Bill of Rights Act 1990 and a petition for declaratory relief against the Legal Complaints Review Officer and Anthony Ellis.
On 25 June 2025, there was a case management conference before Jagose J, who is the judicial review list judge at the Auckland High Court. During timetabling discussions at that conference, the judge stated:
What I want to signal is that any preliminary applications ought to be made now, with whatever timetable we end up with. So, if that is for better particulars, that needs to be specified at this point. And we will hear that in that half-day as well. Similarly, if there’s any other applications for security for costs or anything else preliminary, they ought to be brought all at the same time. I do not want to have these preliminary applications being drip-fed.
Neither respondent had made an application for better particulars or an application for security for costs.
Deliu raised an issue with this, stating that it was ‘disgraceful’ that the bench was telling the other parties to seek security against him. He indicated he could make a recusal application. The judge’s response to this was “knock yourself out”.
After completing the timetable discussions, the judge permitted Deliu to advance his recusal application. In his application, Deliu focused on the judge mentioning security for costs and the “knock yourself out” comment, stating:
So, why you would raise the spectre of security of costs is not only inexplicable as a matter of basic evidence but indeed is impermissible because effectively you know that a security for costs application could cause the termination of my ability to pursue this proceeding. So, therefore you are potentially perverting the course of justice by seeking to have my access to it stopped through irregular measures that a party has not sought. When I then said to you that I would make a recusal application and this is where your behaviour flows into clear judicial misconduct, objectively speaking, you said that I should knock myself out. Not only was that a facetious, sarcastic and inappropriate comment to make in open court, it is not one befitting a judicial officer but more importantly getting us to the Saxmere test, it raises the spectre of apparent bias, i.e. you think this proceeding is a joke, you think I’m a joke. In any event, it is most peculiar language for a respected senior High Court judicial officer to make to a party in what should be serious litigation, in what should be a serious court. And so, your mockery of me and of my recusal application indicates further that you are a partisan and are not here to be a independent, neutral arbiter of justice but rather to vex and frustrate my ability to pursue this proceeding.
The judge immediately declined the application and indicated that his reasons would follow in writing.
Applicable principles: High Court Recusal Guidelines – Is there a real possibility a fair-minded, fully informed observer would reasonably apprehend that the judge might not impartially decide the issue on its meris? (No. Given represented or abiding parties were not seeking security for costs, the absence of any such application might possibly lead to an apprehension that the judge directed the filing of any such application other than on the merits. This would not however be a reasonable apprehension to a fair-minded, fully informed observer who would comprehend that as judicial review list judge, the judge is expected to actively manage judicial review proceedings and early identification of interlocutory applications including security for costs – which, if unmet, may result in the proceeding being stayed, is desirable) – Is there a logical and sufficient connection between the judge’s role as judicial review list judge and any apprehension that he might make timetable orders other than on the merits? (No).
Held: The application for recusal is declined.
Note: The full transcript of the case management conference is annexed to the judgment.
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