Deliu v Auckland District Court

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA129/2023
[2024] NZCA 257

BETWEEN	FRANCISC CATALIN DELIU Appellant
AND	AUCKLAND DISTRICT COURT First Respondent
AND	NEW ZEALAND POLICE Second Respondent
AND	ATTORNEY-GENERAL Third Respondent

Court:	Wylie, Mander and Muir JJ
Counsel:	Appellant in person H M Carrad for First Respondent No appearance for Second Respondent J E L Carruthers for Third Respondent
Judgment: (On the papers)	21 June 2024 at 11 am

JUDGMENT OF THE COURT

AThe application for recall is declined.
BMr Deliu must pay the third respondent costs for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

On 4 March 2024, this Court issued a judgment allowing, in part, an appeal brought by Mr Deliu against a judgment of Harvey J given in the High Court at Auckland.[1] In that judgment, this Court quashed certain directions given by the District Court and remitted the matters the subject of those directions back to that Court for reassessment.[2] The appeal was otherwise dismissed.[3]
[1]Deliu v Auckland District Court [2024] NZCA 39 [judgment at issue].
[2]At [58].
[3]At [59].
Mr Deliu has applied for an order that one aspect of the Court’s decision be recalled. He takes issue with a sentence contained in [43] of the judgment. That sentence reads as follows:
We are also mindful that Mr Deliu’s oft-repeated demand that Judges recuse themselves has little prospect of success.
The first respondent abides the decision of this Court in relation to Mr Deliu’s recall application. The second respondent has taken no steps. The third respondent opposes Mr Deliu’s application.

The application for recall

Mr Deliu contends that the sentence noted above was “improperly made”. Mr Deliu asserts that the sentence: is factually incorrect, was made without notice to him, was made without allowing him opportunity to comment, and leaves the impression that his “applications to recuse lack merit”. He accepts that he has “recused judicial officers dozens of times”, stating “[he] know[s] of no litigant who has ever obtained more disqualifications of judicial officers”. He says that the impugned sentence leaves “a wrong impression that [he] pursue[s] baseless applications to recuse” and that this could cause him prejudice.
The third respondent opposes the application on the basis that none of the three established grounds for recall is met.[4]

The judgment

[4]Saxmere Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (HC) at 633.

In the High Court, Mr Deliu had sought judicial review of a number of procedural rulings made by the District Court in the course of criminal proceedings he faces.[5] Inter alia, Mr Deliu sought review of a decision made by Judge Collins in the District Court declining to recuse himself,[6] and of a subsequent decision made by Judge M B Sharp, also in the District Court, declining other recusal applications that Mr Deliu had made.[7]
[5]Deliu v Auckland District Court [2023] NZHC 164, [2023] NZAR 33.
[6]R v Deliu DC Auckland CRI-2017-004-1442, 5 July 2017.
[7]R v Deliu [2018] NZDC 522.
In the judgment which is the subject of this application, this Court concluded that the High Court had erred in its analysis of the key decision under review — namely the District Court’s decision to indefinitely adjourn Mr Deliu’s extant applications and thus effectively suspend the criminal proceedings.[8] The other grounds of appeal became largely redundant, including Mr Deliu’s challenge to the decisions made by Judge Collins and Judge M B Sharp. As a result, the Court did not deal with them in any great detail. The sentence which Mr Deliu takes exception to was in this context. It was followed by a subsequent sentence which very briefly set out the Court’s reasoning:[9]
A Judge exercising his or her judicial functions does not thereby become ineligible to hear the matter.

Analysis

[8]Judgment at issue, above n 1, at [56].

[9]At [43] (footnote omitted).

As discussed above, Mr Deliu accepts that he has often requested that judges should recuse themselves. He annexes to his application a number of minutes where judges have done so.[10] Equally, as Mr Carruthers for the third respondent points out, there have been a number of applications for recusal brought by Mr Deliu which judges have declined.[11]
[10]Harborow v Deliu CA422/2022, 29 February 2024; Deliu v Attorney‑General Group HC Auckland CIV‑2020-404-1439, 11 January 2024; Deliu v District Court at Auckland HC Auckland CIV‑2021-404-0390, 16 June 2022; Deliu v Attorney-General HC Auckland CIV‑2021‑404‑1803, 22 February 2022; and Deliu v Attorney‑General HC Auckland CIV‑2021‑404‑1803, 22 February 2022.
[11]See Deliu v Johnstone [2021] NZCA 646; Deliu v New Zealand Law Society [2013] NZHC 1871; Deliu v National Standards Committee [2015] NZHC 67; Deliu v Auckland District Court [2021] NZHC 213; Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2021] NZHC 2990; Deliu v R [2022] NZHC 3268; and Deliu v Flanagan [2023] NZHC 777.
We consider Mr Deliu’s concern falls well short of the recognised criteria for the recall of a judgment.[12] Accordingly his application cannot succeed.

Costs

[12]Saxmere Company Ltd v World Board Disestablishment Company Ltd, above n 4, at [2], citing Horowhenua County v Nash, above n 4, at 633; affirmed in Craig v Williams [2019] NZSC 60 at [10].

Although Mr Carruthers did not seek costs, he was required to file a memorandum in opposition to Mr Deliu’s recall application. It is appropriate that costs should follow the judgment.

Result

The application for recall is declined.
Mr Deliu must pay the third respondent 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 First and Third Respondents

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application by Francis Catalin Deliu for the recall of a portion of a previous judgment issued in his appeal against a decision of the Auckland District Court. The appeal pertained to procedural rulings in criminal proceedings against Mr Deliu, including decisions by judges declining his applications for recusal. The Court of Appeal had previously allowed part of Mr Deliu's appeal, quashing certain directions by the District Court and remitting the matter for reassessment. Mr Deliu sought to recall a specific sentence from the judgment which suggested that his repeated demands for judges to recuse themselves had little prospect of success. He argued this was factually incorrect, made without his input, and prejudicial. The Attorney-General opposed the recall application, asserting that none of the established grounds for recall were met.

The Court of Appeal examined whether Mr Deliu's concerns met the criteria for recall, which include the presence of an error of law, a material irregularity, or a serious miscarriage of justice. The Court noted that while Mr Deliu had frequently made applications for judicial recusal, many had been declined. The sentence in question was made in the context of the Court’s broader analysis of the District Court’s decision to indefinitely adjourn the criminal proceedings. The Court concluded that Mr Deliu's dissatisfaction with the characterisation of his recusal applications did not meet the threshold for recalling the judgment.

Consequently, the Court of Appeal declined Mr Deliu's application for recall. It ordered that Mr Deliu pay costs to the Attorney-General for the standard application on a band A basis, along with usual disbursements. The Court's decision underscored the limited grounds upon which a judgment may be recalled, emphasizing the importance of meeting established criteria.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established