Deliu v Attorney-General - [2024] NZCA 169

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA197/2023
CA553/2023
[2024] NZCA 169

BETWEEN	FRANCISC CATALIN DELIU Appellant
AND	ATTORNEY-GENERAL First Respondent
AND	NEW ZEALAND POLICE Second Respondent

Counsel:	Appellant in person T G H Smith for First and Second Respondents
Judgment: (On the papers)	21 May 2024 at 3 pm

JUDGMENT OF WYLIE J
(Stay Application)

A The application for a stay is declined.
BThe respondents are entitled to one set of costs for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS

Introduction

Mr Deliu has appealed two judgments, both given by Brewer J.[1] The appeals have been consolidated and they are due to be heard together on 6 August 2024.
[1]Deliu v Attorney-General [2023] NZHC 512; and Deliu v Attorney-General [2023] NZHC 2375.
Security for costs on one of the appeals has been dispensed with. Mr Deliu applied for security for costs to be dispensed with on the other appeal. That application was granted by the Deputy Registrar on 20 November 2023. The respondents sought a review of that decision pursuant to r 5A(3) of the Court of Appeal (Civil) Rules 2005 (the Rules). Ellis J and I granted that application in a judgment released on 9 April 2024.[2] We set aside the Deputy Registrar’s decision and ordered that security be provided in the sum of $7,060, pursuant to r 35 of the Rules, within 20 working days from the date of our decision.[3]
[2]Deliu v Attorney-General [2024] NZCA 93.
[3]At [45]–[47].
On the same day, Mr Deliu filed an application for a stay of the security ordered and in addition, a stay of any requirement that he file and serve a case on appeal. In his application, he indicated that he was seeking leave from the Supreme Court to appeal the decision of 9 April 2024.
I issued a minute on 17 April 2024, recording that I would deal with the application sitting as a single Judge, pursuant to s 49(3) of the Senior Courts Act 2016, and putting in a place a timetable for the exchange of submissions.
I have now received those submissions.

Analysis

It transpires that Mr Deliu has now filed in the Supreme Court his application for leave to appeal the judgment delivered on 9 April 2024. As a result, r 37 of the Rules applies. Relevantly, r 37 provides that Mr Deliu is not in default of any obligation to pay security for costs, because he is seeking leave to appeal to the Supreme Court against the judgment and his application for leave has not yet been determined.[4]
[4]Court of Appeal (Civil) Rules 2005, r 37(3)(c).
Mr Deliu acknowledges this rule, but nevertheless, he still seeks a stay from this Court. He gives two reasons for this stance:
(a)He points to the difference in terminology between r 37(1) and 37(3). The former provides that the Court may make an order striking out an appeal “if…

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.

Continue reading Deliu v Attorney-General

Details

AGLC: Deliu v Attorney-General [2024] NZCA 169
Case: [2024] NZCA 169
Decision Date: 21 May 2024 at 3 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Francisc Catalin Deliu has appealed against two judgments issued by Brewer J. These appeals have been consolidated and are scheduled to be heard on 6 August 2024. The primary legal issues before the Court involved whether Mr. Deliu should be required to provide security for costs on one of the appeals, and whether the decision to dispense with such security on another appeal should be reviewed. The respondents sought a review of the decision to dispense with security for costs, which was initially granted by the Deputy Registrar. The Court of Appeal, comprising Ellis J and Wylie J, set aside the Deputy Registrar’s decision and ordered Mr. Deliu to provide security for costs in the sum of $7,060. Mr. Deliu subsequently applied for a stay of this security requirement and any requirement to file and serve a case on appeal. He argued that he was not in default of paying security for costs as he was seeking leave to appeal to the Supreme Court, and he also intended to pursue the matter with the United Nations Human Rights Committee.

The Court of Appeal found that Mr. Deliu’s application for a stay was unnecessary. It was determined that under rule 37 of the Court of Appeal (Civil) Rules 2005, Mr. Deliu was not in default of paying security for costs until the Supreme Court determined his application for leave to appeal or the appeal itself. The Court emphasized that Mr. Deliu’s position was protected until the Supreme Court made its decision. The Court also found that Mr. Deliu’s intention to appeal to the United Nations Human Rights Committee did not warrant a pre-emptive stay from this Court. Additionally, the Court noted that Mr. Deliu had already agreed with the respondents and the Registrar that he would not be required to file his case on appeal until after the security for costs issues were resolved. Consequently, the application for a stay was declined.

The Court of Appeal declined Mr. Deliu’s application for a stay and ruled that the respondents were entitled to one set of costs for the standard application, on a band A basis, together with usual disbursements.

Orders