Legal Research
Cases
Deliu v Flanagan

Deliu v Flanagan

Case [2022] NZHC 2621 12 October 2022

Jurisdiction

Natural Justice & Procedural Fairness

Police Discretion

Proportionality

Reasons for Decision

Statutory Interpretation

Administrative Law

Judicial Review

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1714

[2022] NZHC 2621

UNDER THE Judicial Review Procedure Act 2016, Part 30 of the High Court Rules, New Zealand Bill of Rights Act 1990 and Declaratory Judgments Act 1908

IN THE MATTER OF

Proceedings moving for an application for judicial review, writs, bill of rights claims and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

NICHOLAS FRASER FLANAGAN

First Respondent

Cont:/

Hearing: 25 May 2022

Appearances:

Plaintiff in person

D Jones and T Li for Second to Sixth Defendants

Judgment:

12 October 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 12 October 2022 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Law Office, Wellington

DELIU v FLANAGAN & Ors [2022] NZHC 2621 [11 October 2022]

AND
GILLIAN HOLLAND

Second Respondent

AND

ANTONY McKENZIE

Third Respondent

AND

JAMES CASSIN

Fourth Respondent

AND

TONI JORDAN

Fifth Respondent

AND

THE NEW ZEALAND POLICE

Sixth Respondent

Introduction

[1] In this proceeding Mr Francisc Deliu (the applicant) applies for judicial review of a decision made by Police on 25 February 2021 to dismiss a complaint he had made regarding the actions of Detective Sergeant Antony McKenzie (the third respondent) who had caused a border alert to be put in place to have the applicant detained upon arrival at a New Zealand port of entry. The Police considered the applicant’s complaint and found that Detective Sergeant Antony McKenzie did not commit any criminal offences in relation to the matter, and decided that no further investigation of the applicant’s complaint was required.

[2] The applicant also seeks judicial review of a decision by the Police not to investigate a complaint he made in which he alleged that a solicitor Mr Nicholas Flanagan (the first respondent) and a Police Investigator, former Detective Gillian Holland (the second respondent), had conspired to and/or attempted to defeat the course of justice in the course of a telephone conversation they had with the applicant on 17 May 2018.

Background

[3] On 21 July 2017 the owner of a school holiday camp (the complainant) made a complaint to Police at the Auckland Central Police Station alleging that in the course of an altercation that arose on 19 July 2017 when the applicant went to the camp to pick up his son, the applicant had shoved the complainant in the chest, and had then refused to leave the premises when asked. The complainant told the Police that the applicant’s behaviour gave him reason for concern and that he would like the Police to warn the applicant about his actions.

[4] On 21 July 2017 a police officer stationed at the Ponsonby Police Station forwarded the complaint file to Sergeant James Cassin (the fourth respondent) for “consideration for reassignment to relevant member for Police warning as requested by the victim”. Sergeant Cassin, who was also stationed at the Ponsonby Police…

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 Flanagan

Details

AGLC: Deliu v Flanagan [2022] NZHC 2621
Case: [2022] NZHC 2621
Decision Date: 12 October 2022

CaseChat Overview and Summary

In Deliu v Flanagan, the applicant, Francisc Deliu, sought judicial review of two decisions made by the Police in relation to complaints he had made against police officers. The first complaint was against Detective Sergeant Antony McKenzie, Sergeant James Cassin, and Detective Jordan for their conduct surrounding the placement of a border alert. The second complaint was against Mr Nicholas Flanagan, a solicitor, and Detective Gillian Holland, for their conduct during a telephone conversation in May 2018. The Police had reviewed the complaints and decided not to investigate them further.

The court found that the Police had acted within their discretion in deciding not to investigate the complaints further, and their decisions were reasonably open to them to make. The court held that when investigating alleged criminal offending, the Police were not required to apply the principles of natural justice or provide reasons for their decisions. The applicant had failed to show that the Police decisions were made in bad faith, unreasonable, or unlawful. Therefore, the court dismissed the applicant's claims for judicial review and relief. The second to sixth respondents were entitled to an award of costs, and the parties were directed to file memoranda as to costs.

Orders