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

1. 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.

2. 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].

3. 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.    

4. 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. 

5. I have now received those submissions.

Analysis

1. 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).

2. 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 security for costs is not paid by the time payment is due”, while r 37(3) uses the words “in default of an obligation to pay security for costs”.  Mr Deliu also refers to r 44A, which provides that this Court can strike out an appeal in whole or in part if the appellant “is in continuing default in complying with any of these rules or with any procedural direction or order made by a Judge”.[5] 

   (b)He intends to take the matter to the United Nations Human Rights Committee under art 2 of the Optional Protocol to the International Covenant of Civil and Political Rights, in the event that he is denied leave by the Supreme Court.  

   [5]Rule 44A(1)(a).

3. In my judgement, Mr Deliu’s application for a stay of the 9 April 2024 judgment is otiose. 

4. Despite the differences in wording, it is clear from r 37 of the Rules that until such time as the Supreme Court determines Mr Deliu’s application for leave to appeal, or appeal in the event that leave is granted, Mr Deliu is not in default of the obligation to pay the security for costs directed in the judgment of 9 April 2024.  Given r 37(3), payment of security is not due and the Court, either on interlocutory application or on its own initiative, could not make an order striking out the appeal under r 37(1).  Nor is there any continuing default by Mr Deliu that would provide this Court with jurisdiction for a strike‑out under r 44A, because Mr Deliu is not obliged to pay security pending disposal of his leave application and any resulting appeal. 

5. In my clear view, Mr Deliu’s position is protected, until such time as his leave application (and any resulting appeal) is determined. 

6. As for Mr Deliu’s stated intention to take the matter to the United Nations Human Rights Committee, assuming that course is open to him (and I express no view on that), it is not for this Court to pre-empt any decision that might be made by the Supreme Court.  If the Supreme Court’s determination is adverse to Mr Deliu, he can seek a stay from that Court.[6] 

   [6]Supreme Court Rules 2004, r 30.

7. Mr Deliu also sought a stay from any requirement that he file and serve a case on appeal.  This was not ordered in the judgment on 9 April 2024.  There is no order to stay.  Further, Mr Deliu and counsel for the respondents agreed that Mr Deliu should not be required to file his case on appeal until 20 working days after all issues relating to security for costs have been dealt with.  The Registrar was so advised and he in turn recorded this in an email sent to the parties on 13 December 2023.  Accordingly, a stay in the terms sought by Mr Deliu is not required. 

8. For these reasons, Mr Deliu’s application for a stay is declined. 

Result

1. The application for a stay is declined. 

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

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent