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Deliu v Chapman

Deliu v Chapman

Case [2020] NZHC 2100 19 August 2020

Jurisdiction

Security for Costs

Abuse of Process

Misfeasance in Public Office

Breach of Statutory Duty

Breach of the Bill of Rights Act

Administrative Law

Civil Litigation & Procedure

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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 Defendant

Continued 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 Defendants
THE 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 Defendant
CIV-2019-404-1098

BETWEEN FRANK DELIU
Plaintiff

ANDDAVID JOHNSTONE, MARK HARBOROW, NICK FLANAGAN
First to Third Defendants
THOM CLARK
Fourth Defendant
THE NEW ZEALAND POLICE
Fifth Defendant
MIKE 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…

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 Chapman

Details

AGLC: Deliu v Chapman [2020] NZHC 2100
Case: [2020] NZHC 2100
Decision Date: 19 August 2020

CaseChat Overview and Summary

In the case of Deliu v Chapman, the High Court of New Zealand, Auckland Registry, considered Mr Frank Deliu's application for judicial review and various other claims against the Police, the Independent Police Conduct Authority, the Auckland District Court, and others. Mr Deliu sought to challenge several decisions made by these entities and individuals. The defendants, excluding the District Court, applied for orders requiring Mr Deliu to pay security for costs amounting to $10,000 in total. Mr Deliu, who resides in Europe, acknowledged that he could not pay the security for costs.

The court had to determine whether ordering security for costs would have the effect of terminating the proceedings, which would be akin to the threshold for striking out a proceeding. The court found that there were reasonably arguable causes of action against the Police in two sets of proceedings, but not against the members of Meredith Connell in the second set, nor against the IPCA in the third set of proceedings. The court ordered Mr Deliu to pay security for costs of $5,000 where an application was successful.

The court examined the law of security for costs, which allows a judge to order a plaintiff to provide security for costs if the plaintiff is resident outside of New Zealand or unable to pay the defendant's costs if unsuccessful, and if the judge thinks it is just in all the circumstances. The court also considered the principles for striking out a proceeding and the New Zealand Bill of Rights Act 1990. The court balanced the plaintiff's right to pursue justice against the defendant's right to claim costs if the proceeding fails.

In conclusion, the court ordered Mr Deliu to provide security for costs of $5,000 in two of the proceedings, dismissed the applications for security for costs against the Police in two other proceedings, and awarded costs on a 2B basis. The court also listed the proceedings for further case management in the Judicial Review List.

Orders