Deliu v Chapman
[2020] NZHC 2100
•19 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1091
[2020] NZHC 2100
BETWEEN FRANK DELIU
Plaintiff
AND
IAIN CHAPMAN and MATTHEW GRANICH
First and Second Defendants
THE NEW ZEALAND POLICE
Third DefendantContinued overleaf
Hearing: 19 March 2020 with supplementary submissions 24 July 2020 Appearances:
The applicant in person (via Jabber)
D Jones for the Police, Police officers and the Independent Police Conduct Authority
N F Flanagan in person and members of Meredith Connell Appearance excused for the District Court in 1095 proceeding
Judgment:
19 August 2020
JUDGMENT OF PALMER J (Corrected)
This judgment was delivered by me on Wednesday 19 August 2020 at 4.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Party/Solicitors:
Applicant in person, Europe Meredith Connell, Auckland Crown Law, Wellington
DELIU v CHAPMAN [2020] NZHC 2100 [19 August 2020]
CIV-2019-404-1092
BETWEEN FRANK DELIU
Plaintiff
ANDJOHNS DOE 1, 2 & 3, PAUL WIGHTMAN, GILLIAN HOLLAND,
STEPHEN PEAT and IAIN CHAPMAN
First to Seventh DefendantsTHE NEW ZEALAND POLICE
Eighth Defendant
THE INDEPENDENT POLICE CONDUCT AUTHORITY
Ninth Defendant
CIV-2019-404-1095
BETWEEN FRANK DELIU
Plaintiff
ANDTHE DISTRICT COURT OF NEW ZEALAND AT AUCKLAND
First Defendant
THE NEW ZEALAND POLICE
Second DefendantCIV-2019-404-1098
BETWEEN FRANK DELIU
Plaintiff
ANDDAVID JOHNSTONE, MARK HARBOROW, NICK FLANAGAN
First to Third Defendants
THOM CLARK
Fourth DefendantTHE NEW ZEALAND POLICE
Fifth DefendantMIKE BUSH, STEPHEN PEAT, GILLIAN HOLLAND and TONI JORDAN
Sixth to 10th Defendants
Summary
[1] Mr Frank Deliu applies for judicial review and pursues other causes of action in four sets of legal proceedings regarding a variety of decisions by the Police, the Independent Police Conduct Authority (IPCA), the Auckland District Court, and partners at the Crown Solicitor firm Meredith Connell. The defendants, other than the District Court, apply for orders that he pay $10,000 security for costs in total, in relation to all proceedings. Mr Deliu now resides in Europe and accepts he cannot pay security. Where ordering security would have the effect of terminating a proceeding, I accept the threshold, like the outcome, is similar to the threshold for striking out a proceeding. I find there are reasonably arguable causes of action against the Police in two sets of proceedings in which security is sought, but not against the members of Meredith Connell in the second of those, nor against the IPCA in the third set of proceedings. I order Mr Deliu to pay security for costs of $5,000 where an application is successful.
[2] This version of the judgment has been amended since it was originally issued, to make two corrections under r 11.10 of the High Court Rules 2016.
Law of security for costs
[3] Rule 5.45 of the High Court Rules 2016 (the Rules) provides that a judge may order a plaintiff to give security for costs if a judge is satisfied a plaintiff is resident outside of New Zealand, or unable to pay the defendant’s costs if unsuccessful, and “the Judge thinks it is just in all the circumstances”.
[4] The interests of the plaintiff in pursuing justice must be balanced against the interests of the defendant in being able to claim costs for exposure to an unsuccessful claim. The Court of Appeal said in AS McLachlan Ltd v MEL Network Ltd that an order for security preventing pursuit of a claim “should be made only after careful consideration and in a case in which the claim has little chance of success” and “[a]ccess to the Courts for a genuine plaintiff is not lightly to be denied”.1 Wylie J observed in Highgate on Broadway Ltd v Devine that the right of a successful defendant to costs in
1 AS McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [15].
the event the proceeding fails “is arguably subordinate to the plaintiff’s right to be heard” and: 2
Only where a clear impression can be formed that the plaintiff’s claim is altogether without merit – so that in the alternative it would be amenable to being struck out – so would it be right for security to be ordered where to do so would bring the plaintiff’s claim to a dead halt.
[5] Where ordering security would have the effect of terminating a proceeding, I accept that the threshold, like the outcome, is similar to the threshold for striking out a proceeding under r 15.1 of the Rules. Mr Deliu made that submission and Mr Jones indicated he did not disagree. The pleadings must disclose no reasonably arguable cause of action, be likely to cause prejudice or delay or be frivolous or vexatious or otherwise an abuse of the process of the court. I proceed on the basis of the principles for strike- out summarised in the Court of Appeal in Attorney-General v Prince and Gardner and a minority of the Supreme Court in Couch v Attorney-General:3
(a)the facts pleaded are assumed to be true;
(b)the causes of action must be so untenable the court is certain they cannot possibly succeed;
(c)the jurisdiction is to be exercised sparingly and only in a clear case;
(d)the jurisdiction is not excluded by the need to decide difficult questions of law; and
(e)particular care is required in areas where the law is confused or developing.
[6] I also take into account the evidence Mr Deliu has filed and the fact he is able to amend his pleadings. I note the judicial power to order security, like the power to strike out a proceeding, must be exercised consistently with the New Zealand Bill of Rights Act 1990 (Bill of Rights Act). That reinforces that it must be clear the threshold is met if ordering security would terminate a proceeding invoking rights and freedoms protected under that Act, including the right to seek judicial review under s 27(2) of the Bill of Rights Act.
2 Highgate on Broadway Ltd v Devine [2012] NZHC 2288 at [23](b).
3 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267 (cited approvingly by Elias CJ and Anderson J in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]).
Overall submissions and assessment
[7] Mr Jones, for the Police, Police officers and IPCA, acknowledges the applicants face a high bar but submits the claims lack merit and it would be unjust to require public bodies to respond to them when there is no basis for recovering their costs. He submits the following considerations are relevant:
(a)Mr Deliu “has filed a series of wide ranging, ill-founded, confusing and often insufficiently particularised pleadings against a number of public bodies” and has provided “unfocussed and often tendentious” evidence, which imposes an unnecessary burden of cost and time on the defendants.
(b)Mr Deliu, a barrister and solicitor of the High Court of New Zealand, has demonstrated he does not abide by orders of the Court in that he was charged with assault with a weapon, failed to answer a summons, left the country, indicated his intention never to return, there is an active warrant for his arrest, he is a “fugitive from justice” and he failed to pay costs in other cases.
(c)In all the circumstances it is in the interests of justice that orders for security for costs be made and the defendants not be required to take further steps until security has been paid.
[8] Mr Flanagan, for himself and other members of Meredith Connell in the 1098 proceeding, submits Mr Deliu brings a fundamentally weak claim from outside the jurisdiction and advances allegations that have been found to be without merit in other forums. He submits Mr Deliu has not met other recent costs orders and now seeks to embark on more litigation without costs consequences. He submits these proceedings are part of the same pattern of Mr Deliu’s repetitive allegations of wrongdoing that border on an abuse of process. Mr Flanagan submits, correctly, that he and his colleagues are still entitled to costs as lawyers acting in person.4
4 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.
[9] Mr Deliu resides in Europe, accepts he cannot pay security for costs and accepts the threshold under r 5.45 is met. He submits:
(a)It is not illegitimate to plead a multitude of grounds of judicial review. If the pleadings are deficient, the remedy is not ordering security for costs which would be disproportionate if it means the proceedings cannot proceed.
(b)There is no doctrine in New Zealand law disentitling someone who has fled the jurisdiction from taking steps in legal proceedings. If he is correct that a prosecution against him was “political”, and he feared for his life because of death threats, it would be absurd to say he had to remain in New Zealand. At worst, he breached one bail direction. He submits the prosecution was “political” in the sense that it was an attempt to prevent him from returning from overseas in order to sue the Police in a separate proceeding in December 2019. He had arranged for counsel to represent him, the District Court Judge excused his appearance in January 2018 and it was agreed the assault with a weapon case would proceed against him in absentia. However, issues raised by his own counsel about his mental health meant that the Judge required his presence after all so the trial could not proceed.
(c)He acknowledges he did not pay costs ordered in another case, because he could not. Mr Deliu says he gave an undertaking any damages he received in the other case would be set off against the Police costs and the same applies here. He says he has been very wronged, he wants a judgment saying so and he is pursuing these proceedings in order to vindicate his rights.
[10] Mr Deliu notes that he attempted to file these proceedings in April 2018. He has now applied to have outstanding criminal charges against him dismissed or stayed. He submits it would be contrary to the public interest to order security for costs, which would be the death knell for these cases, would allow a plethora of injustices to go unaddressed and would signify there is no real access to justice in New Zealand. He
relies on Deliu v Tenancy Tribunal where Whata J declined to make an order for security for costs which would interfere with Mr Deliu’s ability to pursue a claim that had merit.5 He has filed an affidavit regarding aspects of the statements of claim in the proceedings. He is willing to replead the statements of claim once the security applications have been determined. He submits I can infer that the state is trying to avoid its officials answering for their deeds, so the application for security is brought more as a sword than as a shield for the purse of the innocent taxpayer. He submits the figure of $10,000 sought is arbitrary anyway. He submits the collateral public interest in ensuring public authorities act legally is an additional consideration in relation to the applications for security.
[11] My primary consideration is whether the proceedings have such limited chances of success that security for costs orders should be made when that will cause the proceedings to be discontinued. I observe, in general:
(a)Mr Deliu’s proceedings are generally not well-pleaded, exhibit hyperbole and are unduly complex. But they can be amended. And I consider they are genuinely brought rather than frivolous or vexatious or an abuse of process. The primary consideration in relation to each of the proceedings is whether they disclose reasonably arguable causes of action.
(b)The Crown and Meredith’s Connell’s characterisation of Mr Deliu as a “fugitive from justice” is also exaggerated. A District Court minute supports his submission that the Crown was prepared to proceed with the hearing in Mr Deliu’s absence, though it does not indicate the Court had agreed to that in advance.6
[12]I examine each set of proceedings in turn.
Alleged failures by the Police to investigate threats (1091 proceeding)
[13] The 1091 proceeding concerns how the Police handled Mr Deliu’s complaints about alleged threats to him and his family. Mr Deliu seeks judicial review of decisions of the Police on the grounds of breach of statutory duties, acting disproportionately and
5 Deliu v Tenancy Tribunal [2020] NZHC 1220.
6 R v Deliu CRI-2017-004-1442, 16 April 2018, (Minute No 2 of Judge P J Sinclair).
unreasonably and abusing power. Mr Deliu also sues the Police for misfeasance in public office, negligence, breach of the Bill of Rights Act and defamation.
[14] Mr Jones, for the Police, submits the claim indicates no more than that the defendants concluded there was insufficient evidence to justify the actions Mr Deliu wished them to take. He submits none of the facts support the allegations and that the matter was the subject of complaint by the IPCA which declined to take any action. He initially submitted there was no evidence the threats against Mr Deliu were provided to the Police but withdrew that after Mr Deliu pointed to his evidence. Mr Jones then invited me to conclude that the evidence was insufficient to support criminal charges of threatening to kill or threatening behaviour or to provide protection. He submits there must be real evidence of a failure by the Police to act on a complaint and there is not. He submits the defamation claim rests on a hearsay statement by someone Mr Deliu accuses of trying to kill him, who he claims is mentally ill. He also submits Mr Deliu acknowledges the Police did investigate. He submits Mr Deliu has had the opportunity to replead his case and his allegations are still too vague. He submits the claims lack merit on their face and are pleaded in a confusing, vague way.
[15] Mr Deliu submits there is ample evidence he was a victim of multiple crimes which the Police did not take seriously and their conclusion there was insufficient evidence is patently absurd. He points to evidence that the threats against him were provided to the Police. He submits there are five documents consistent with the Police officer he was suing telling those he alleges were threatening Mr Deliu’s life that the Police would love to catch Mr Deliu. He submits there is evidence a Police officer conspired with one or both alleged offenders to harm him. He submits, on the evidence available to him, that the Police did not properly investigate his complaints.
[16] I do not accept Mr Jones’ submission that the alleged threats were simply strange and persistent attempts to proselytise. There is one, or possibly two, confused communication(s) with a threatening tone which could arguably be taken implicitly to threaten Mr Deliu’s life.7 The dead fish in Mr Deliu’s driveway on an anniversary of one of his encounters with those he alleges threatened him may or may not add to that.
7 Joint Hearing Bundle (JHB) volume 3/tab 55 at 583, 4/58 at 1463.
I have no doubt Mr Deliu’s complaint and fear was genuine. On the basis of the evidence currently available to me, I can understand how the Police could have reasonably concluded no action was required regarding the complaint. The judicial review case is currently weak. But I am not certain, at this early stage and on the assumption the allegations of fact in the statement of claim are true, that it could not possibly succeed. There is, just, a reasonably arguable cause of action in judicial review. Although it is a finely balanced decision, I consider I should err on the side of access to justice. I decline to order security for costs in this proceeding.
[17] However, I consider Mr Deliu’s claims of negligence, misfeasance and defamation do not have merit and are not reasonably arguable:
(a)His evidence of malice by the Police post-dates these complaints. Otherwise, he relies on hearsay statements by those he alleges threatened him, who were his bitter opponents in legal proceedings. The elements of misfeasance are not pleaded and the evidence to which Mr Deliu points does not credibly sustain them.
(b)If the legal requirements of a duty of care in negligence are satisfied, there is nothing to indicate there was a breach of that duty or that it caused damage.
(c)If there was defamation (which is not at all clear) the claims of the police officers to qualified privilege would be compelling.
[18] Accordingly, if these were the only elements of the proceeding, I would have ordered security for costs. Mr Deliu would be well advised to revise these causes of action if he wishes to avoid an application for strike-out.
Alleged failures by the IPCA regarding complaints (1092 proceeding)
[19] The 1092 proceeding concerns various complaints made by Mr Deliu to the IPCA about the Police involving wrongful detention, illegal search and seizure, negligent prosecution, making a false allegation, failing to protect his family, failing to protect the Queen, improperly threatening to arrest him, interfering with his privacy,
failing to prosecute, conducting an illegal investigation, conspiring to harm him, and perjury. Mr Deliu sues the IPCA for its handling of the complaints, with four causes of action alleging breach of the Bill of Rights Act and 12 causes of action seeking judicial review on the grounds of error of fact, unreasonableness, bad faith, error of law, breach of statutory duty, taking into account irrelevant considerations, delay, breach of legitimate expectation and others.
[20] Mr Jones submits the claim against the IPCA is barred by s 33(1)(a) of the Independent Police Conduct Authority Act 1988 (the Act). It provides “no proceedings
. . may lie against the Authority . . for anything done or said by them in the course of the exercise or intended exercise of their functions under this Act, unless it is shown that they acted in bad faith”. He submits the Court should examine whether the pleadings, on their face, establish a case of bad faith. He submits bad faith has not only to be alleged in an amended statement of claim but “shown”, based on good evidence, in order not to lightly displace Parliament’s determination that the ICPA should not generally be subject to litigation. He submits the only pleading of bad faith is that the IPCA failed to take action in less than 24 hours of receiving the complaint, that Mr Deliu’s affidavit containing a bald allegation of bad faith is not the same as credible evidence and that there is no support for the existence of bad faith in any of the IPCA’s decisions. He submits the only point which has some potential merit, that the IPCA told Mr Deliu the Police had investigated a complaint when they were still investigating it, is not evidence of bad faith.
[21] Mr Deliu submits the IPCA has failed for four years to take steps upon receipt of his complaints, which it is required to take under s 17 of the Act. He submits there is a pattern of the IPCA ignoring his complaints and the IPCA has shut its doors to him. He submits that arguably constitutes acting in bad faith. He submits that is sufficient to dispose of the s 33 issue which can be argued at a substantive hearing. In one instance he submits the IPCA decided, in less than a day, to take no further action on a complaint about an alleged assassination attempt against Queen Elizabeth, upon blatantly false premises that the Police did not have files and Mr Deliu could have raised the issue earlier.8 He points to his complaint as sufficiently particularised and to the fact he
8 JBH 4/95 at 1805.
obtained 73 pages of documents from the Police under the Official Information Act 1982. He submits these are indicia of bad faith.
[22] I agree that the pattern of Mr Deliu not receiving responses to his complaints is troubling. But I do not agree that constitutes bad faith. Bad faith is not pleaded other than in relation to failure to take action in 24 hours, which cannot be bad faith in itself. I can see no basis for impugning the ICPA’s decision not to investigate the complaint involving Queen Elizabeth under s 18(1)(a) of the Act. In the face of s 33, I do not consider these proceedings are reasonably arguable. If he wishes to proceed with them, I order that he provide $5,000 security for costs.
Alleged failure by the District Court to hear Mr Deliu (1095 proceeding)
[23] The 1095 proceeding concerns District Court proceedings by Mr Deliu against the Police. Mr Deliu applies for judicial review of decisions of the Auckland District Court in relation to a judicial teleconference proceeding without him and a decision not to hold a substantive hearing by telephone, on the grounds of breach of natural justice, breach of legitimate expectation, failure to take into account relevant considerations, error of law and unreasonableness.
[24] The District Court abides the decision of the Court and does not apply for security for costs. Mr Deliu explains that he named the Police as defendants because they are affected by the proceeding but he does not challenge their decisions in this proceeding and is content to abandon his claims against them as parties. Given that, the Police do not pursue an application. Accordingly, there is no application to consider in relation to this proceeding.
Alleged misfeasance by Meredith Connell and the Police (1098 proceeding)
[25] In the 1098 proceeding, Mr Deliu seeks judicial review and sues for misfeasance in public office in relation to an alleged investigation of him by the Police and members of Meredith Connell, the firm of the Auckland Crown Solicitor. He also sues for abuse of process in reactivating an investigation against him for assault.
[26] Mr Flanagan, for the members of Meredith Connell, submits Mr Deliu makes a serious claim of misfeasance without pleading a factual foundation for those allegations to the requisite standard, so the claim cannot succeed. He submits Mr Deliu has previously made these allegations in complaints which were dismissed by the National Standards Committee of the New Zealand Law Society (NZLS) on the basis they were vexatious, not made in good faith, motivated by ill-will, lacked substance and were improbable, based on pure speculation and not established.9 He submits the lack of a pleaded factual foundation, the extravagance of the allegations and their improper motivation limits the public interest component in the proceedings. He submits security for costs is the only meaningful way to impose discipline and responsibility on Mr Deliu. Otherwise the defendants risk not being able to recoup their costs at all, which can be expected to be high as the High Court has previously observed of Mr Deliu’s proceedings.10 He submits the taxpayer will not foot the bill for Meredith Connell’s costs and some small measure of security is required to ensure Mr Deliu cannot bring these proceedings without discipline.
[27] Mr Jones, for the Police and police officers (the fifth to ninth defendants) submits the allegations are vague, not properly pleaded and without merit. He submits the statement of claim does not disclose any basis for the claim of misfeasance which the National Standards Committee, and other standards committees, of the NZLS found insufficient evidence to substantiate. He submits the Court can infer the claim of unreasonable search is without merit because it is not made with sufficient particularity to enable the defendants to respond to it and it was not made until four years after the event. He submits the threat of being exposed to these sort of proceedings has implications for how the Police carry out their investigations. He submits the claim of breach of statutory duty does not plead that the Police searched potentially legally privileged material, and the IPCA investigated the allegation and decided to take no action. He adopts Mr Flanagan’s submissions in so far as the allegations against the Police are based on Meredith Connell’s actions. Mr Jones submits the high point of Mr Deliu’s case is an email from one Police officer to another indicating a matter should
9 Notice of Decision by the National Standards Committee, 1 No 19180, 19219, 19220, 30 October 2019 at [19]-[24].
10 Deliu v National Standards Committee [2017] NZHC 2318 at [219].
be progressed so Mr Deliu could be arrested, but there is no evidence it was dealt with any differently than it would otherwise have been because the file was inactive.
[28] Mr Deliu submits Meredith Connell falsely accused him of committing fraud on the Court, in submissions to the High Court in which he was an opposing counsel.11 Mr Deliu has provided a deposition as to the alleged secret search conducted into his finances and he submits the co-conspirators are current or former police officers. He submits, on the face of it, he has one or more causes of action that are more than tenable. If the particulars are insufficient, he submits the proper remedy is a notice seeking further and better particulars, not security for costs.
[29] I consider Mr Deliu’s claim against the members of Meredith Connell is insufficiently pleaded and lacks the evidential foundation he says it has. It cannot succeed. The conclusions of the various NZLS committees regarding similar claims are instructive. I consider the claims against the members of Meredith Connell are not reasonably arguable. If Mr Deliu wishes to pursue them I order that he provide security for costs of $5,000 (separately to the security ordered above).
[30] However, I consider the judicial review, misfeasance in public office and abuse of process claims against the Police are reasonably arguable, given the evidence of the intention of one Police officer to arrest Mr Deliu because he was taking complaints to IPCA and taking private prosecutions against the Police.12 That may not turn out to justify the claims, but it does provide them with an evidential foundation. I do not consider I can infer they are without merit. I decline to order security for costs in Mr Deliu’s proceeding against the Police.
Result
[31]I order:
(a)Mr Deliu will provide security for costs of $5,000 in the 1092 proceeding against IPCA and also $5,000 in the 1098 proceeding against members (including former members) of Meredith Connell.
11 Commissioner of Police v Burgess [2015] NZHC 2026 at [46].
12 JHB 2/30 at 585.
(b)The applications for security for costs against the Police in the 1091 proceeding and the 1098 proceeding are dismissed.
(c)Costs are awarded on a 2B basis:
(i)to Mr Deliu for the unsuccessful application by the Police in the 1091 proceeding;
(ii)against Mr Deliu for the successful application by the IPCA in the 1092 proceeding;
(iii)to Mr Deliu for the unsuccessful application by the Police in the 1098 proceeding;
(iv)against Mr Deliu for the successful application by the members of Meredith Connell in the 1098 proceeding.
(d)The proceedings will be listed in the Judicial Review List in two weeks’ time, for further case management. The parties should file and serve memoranda beforehand.
Palmer J
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