Deliu v Attorney-General - [2021] NZHC 2246

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002472

[2021] NZHC 2246

UNDER the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908

IN THE MATTER OF

proceedings moving for an application for judicial review, writs, civil and Bill of Rights Act claims and a petition for declaratory

relief

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff/Applicant

AND

ATTORNEY-GENERAL

Defendant/Respondent

AND

DEPUTY SOLICITOR-GENERAL (CRIMINAL)

Second Respondent

CIV-2021-404-000348

UNDER

the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908

IN THE MATTER OF

proceedings moving for an application for judicial review, writs, Bill of Rights Act claims and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff

AND

SOLICITOR-GENERAL

Defendant

CIV-2021-404-000390

UNDER

the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908

FRANCISC CATALIN DELIU v THE ATTORNEY-GENERAL [2021] NZHC 2246 [30 August 2021]

IN THE MATTER OF proceedings moving for an application for judicial review, writs, Bill of Rights Act claims and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff

AND

DISTRICT COURT OF NEW ZEALAND SITTING AT AUCKLAND

Defendant

AND

ATTORNEY-GENERAL

Second Defendant

Hearing: 23 June 2021

Appearances:

Plaintiff /Applicant– self represented D J Perkins for the Defendants

Judgment:

30 August 2021

Reissued:

29 September 2021

Effective date of Judgment:

30 August 2021

JUDGMENT OF NATION J

The 2472 and 348 proceedings

[1] In these proceedings, Mr Francisc Deliu says that in February 2017 he was charged by the Police with two counts of assault with a weapon. In April 2018, he was charged with two counts of attempting to pervert the course of justice. Mr Deliu says that in October 2020 he requested the Attorney-General to stay the proceedings pursuant to s 176(1) of the Criminal Procedure Act 2011. The Attorney-General transferred his request to the Crown Law office.

[2] Through judicial review, Mr Deliu sought, amongst other orders, an order compelling the Attorney-General to consider his request. Mr Deliu alleged an error that the delegation was to the Crown Law Office was an error of law, that the Attorney-

General had failed to take into account that Mr Deliu had made a complaint against the Crown Law Office with the Office of the Ombudsman and that the Attorney- General’s decision was made in breach of natural justice. Crown Law filed a statement of defence on behalf of the Attorney-General and the Solicitor-General as a proposed second defendant.

[3] In the 348 proceedings, Mr Deliu had originally, in his statement of claim, named the Crown Law Office as first defendant and the Office of the Ombudsman as second defendant. Mr Deliu discontinued his claim against the Office of the Ombudsman. In her minute of 4 June 2021, Walker J substituted the Solicitor-General as the defendant in place of the Crown Law Office.1

[4] Mr Deliu objects to counsel employed in the Crown Law Office acting for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 2246
Decision Date: 30 August 2021

CaseChat Overview and Summary

Francisc Deliu brought judicial review proceedings against the Attorney-General and the Solicitor-General. He also brought other proceedings against the District Court of New Zealand and the Attorney-General. The proceedings relate to Mr Deliu’s attempt to prosecute a retired High Court Judge, Mr Justice Rhys Harrison QC, for a costs decision he made against Mr Deliu. The District Court Judge, Judge Spear, had ruled that the proposed prosecution was an abuse of process. Mr Deliu sought, amongst other orders, that the Attorney-General be joined as a defendant in the judicial review proceedings and that Crown counsel be disqualified from representing the Solicitor-General. The Court held that the Attorney-General should be joined as a defendant in the judicial review proceedings, that it was not necessary to appoint counsel to assist Mr Deliu, and that Crown counsel should not be disqualified from representing the Solicitor-General. The Court also awarded costs to the Attorney-General and the Solicitor-General.

Orders