High Court Issues Landmark Judgment Against Judicial Conduct Commissioner

In a groundbreaking decision issued earlier today, Justice Brewer ruled that the Office of the Judicial Conduct Commissioner was not properly giving effect to the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 in the way in which the Parliament of New Zealand intended.

Dr Frank Deliu, an Auckland lawyer, had made a complaint against a District Court Judge in May 2009.

This was lodged with the Office of the Judicial Conduct Commissioner who has statutory obligations to consider such complaints pursuant to the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

By May 2011, Dr Deliu alleged that no real action had been taken on his complaint so he instituted High Court proceedings against the Commissioner alleging breach of a legal duty to progress complaints against Judges promptly.

Dr Deliu at the same time filed a claim against the New Zealand District Court at Auckland for refusing him a copy of an audio recording or transcript of a hearing before the Judge. After the District Court provided him with the transcripts, and explained itself, he withdraw this cause of action as it was no longer necessary to pursue it.

After a hearing in November 2011, where the Court appointed amicus curiae Mr Grant Illingworth QC to provide an opposing argument to Dr Deliu's assertions, Justice Brewer reserved his decision.

On 22 December 2011 Justice Brewer issued his Judgment, as extracted (ed. - plaintiff = Deliu, first defendant = JCC):

"The first defendant’s position

[42] The first defendant’s explanation for his failure to deal with the plaintiff’s complaints centres around a lack of resources. He has made his views on resourcing apparent in his annual report. I am not in a position to assess whether or not he is properly resourced for his task or whether he might make better use of the resources he has. But I am left with the image of an official who is willing to carry out his functions, who regrets not having answered the plaintiff’s complaints, but who feels that he has been unable to do so because of the resourcing situation.

[43] The plaintiff submits that this is not his problem. Parliament has enacted a statute, it provides him with an avenue for making complaints, and there is an official with the function of dealing with it as soon as practicable after receiving it. He submits that the first defendant has failed in his duty to the plaintiff and he seeks a remedy from this Court accordingly.

Decision

[44] It is clear to me that the Act is not working as Parliament intended. Indeed, it could be having the opposite effect. The purpose of the Act is, in part, to enhance public confidence in the judicial system by establishing an office for the receipt and assessment of complaints about the conduct of Judges. Parliament recognised that this purpose would not be achieved unless complaints were assessed promptly.

[52] I summarise the situation I am faced with as follows:

(a) There is an Act of Parliament, the Act, which is not being given effect as Parliament intended.

(b) The application brought by the plaintiff, coupled with the affidavit of the first defendant, demonstrates that there is both a backlog of complaints and that delays are systemic and constitute a failure by the first defendant to fulfil his functions.

(c) Although the first defendant acknowledges his failure promptly to deal with the plaintiff’s complaints, the plaintiff is not entirely without fault. His response to the first defendant’s letter dated 4 February 2011 was to issue these proceedings; he did not, however, respond to the first defendant’s invitation to comment on the contents of the District Court Judge’s letter.

[53] In my view, the application brought by the plaintiff has revealed a problem which needs to be addressed by the Executive. While I will decline the plaintiff formal relief, I will ensure that this judgment is brought to its attention.

[56] I direct that a copy of this judgment be sent to the Attorney-General and the Minister of Justice."

Says Deliu, "As a lawyer, I believe the rule of law must apply to everyone. I am grateful that the High Court has issued a decision that reinforces a need for judicial accountability in New Zealand. It is paradoxical that the very judiciary that is supposed to be held accountable by the Commissioner has to issue a decision to hopefully press Parliament into action to ensure the judicial branch of government is held to account. I hope this decision leads to real reform because the current system is in a poor state."