Deliu v Attorney-General - [2023] NZCA 524

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA197/2023
[2023] NZCA 524

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

Court:	Courtney and Katz JJ
Counsel:	Appellant in person TGH Smith for First and Second Respondents
Judgment: (On the papers)	31 October 2023 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for review is declined.
BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

When a notice of appeal is filed and served, r 33A(1) of the Court of Appeal (Civil) Rules 2005 requires a respondent to file a notice of appearance either within 10 days after the date on which the notice of appeal was served or within any extended time permitted under the Rules. If the respondent fails to do so the appellant is required to promptly notify the Registrar and to file an affidavit of service of the notice of appeal.[1] A respondent who does not comply with r 33A(1) is not entitled to be served with notice of any step in the appeal or with copies of any further documents filed.[2]
[1]Court of Appeal (Civil) Rules 2005, r 33A(3).
[2]Rule 33A(4).
On 14 April 2023 Mr Deliu filed and served a notice of appeal.[3] The respondents did not file a notice of appearance within the 10-day period specified in r 33A(2) but subsequently applied for an extension of time to do so. Miller J granted the application. Mr Deliu has applied for a review of Miller J’s decision.

Background

[3]Mr Deliu is living in the United States of America. All references herein to dates are by reference to the date documents were received in New Zealand.

Mr Deliu’s appeal is brought against Brewer J’s decision dismissing an application for judicial review in which Mr Deliu challenged the decision to lay charges against him for assault with a weapon and attempting to pervert the course of justice.[4]
[4]Deliu v Attorney-General [2023] NZHC 512.
Mr Deliu served the notice of appeal on a lawyer at Crown Law, Mr Gunn, who was the solicitor on the record for the respondents in the High Court. He also sent a copy to Mr Smith, who had appeared as counsel for the respondents in the High Court.
On 18 April 2023, four days after the notice of appeal had been filed and served, and in accordance with its usual practice, the Registry emailed Mr Deliu and Crown Law drawing their attention to (1) the requirement under r 33A(1) for the respondents to file and serve a notice of appearance and the effect of not doing so; (2) Mr Deliu’s obligation to pay security for costs within 20 working days; and (3) the requirement for the case on appeal and application for a hearing date to be filed within three months. However, the email to Crown Law was addressed to Mr Smith (who had been with Crown Law some years…

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 [2023] NZCA 524
Case: [2023] NZCA 524
Decision Date: 31 October 2023 at 2.30 pm

CaseChat Overview and Summary

In the case of Deliu v Attorney-General, the appellant, Francis Catalin Deliu, sought a review of a decision by Miller J that extended the time for the respondents to file a notice of appearance. Deliu's appeal arose from a previous High Court decision dismissing his application for judicial review of the decision to lay charges against him for assault with a weapon and attempting to pervert the course of justice. The primary issue before the Court of Appeal was whether the decision to grant the extension of time was correct and whether the extension should be conditional upon dispensing with the requirement for security of costs.

The Court of Appeal found that while Miller J erred in attributing the delay in filing the notice of appearance to the Registry's error, this did not affect the outcome. The delay was minor, amounting to only eight days, and the respondents promptly sought an extension of time. The Court considered the principles established in Almond v Read and determined that the application for extension of time should be treated as a minor oversight. The Court concluded that the interests of justice would not be served by precluding the respondents from participating in the appeal, despite the minor delay. Therefore, the Court declined to set aside Miller J's order granting the extension of time and did not impose any conditions regarding security of costs.

The Court of Appeal declined Deliu's application for review, resulting in the appeal proceeding as scheduled. The Court made no order as to costs, considering the minor oversight by the respondents' lawyer and the nature of the issues in the appeal.

Orders