Deliu v Johnstone

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA70/2021
[2021] NZCA 646

BETWEEN	FRANCISC CATALIN DELIU Applicant
AND	DAVID JOHNSTONE, MARK HARBOROW AND NICK FLANAGAN First to Third Respondents THOM CLARK Fourth Respondent NEW ZEALAND POLICE Fifth Respondent MIKE BUSH, STEPHEN PEAT, GILLIAN HOLLAND AND TONI JORDAN Sixth to Ninth Respondents

Court:	French and Cooper JJ
Counsel:	Applicant in person N F Flanagan for First to Third Respondents No appearance for Fourth to Ninth Respondents
Judgment: (On the papers)	2 December 2021 at 9 am

JUDGMENT OF THE COURT

AThe application for recusal is declined.
BThe application dated 28 October 2021 for recall of this Court’s judgments of 26 July 2021 (Deliu v Johnstone [2021] NZCA 337) and 24 September 2021 (Deliu v Johnstone [2021] NZCA 488) is declined.
CThe applicant must pay one set of costs to the first to third respondents for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

On 26 July 2021 we delivered a judgment declining Mr Deliu’s application for leave to appeal a High Court decision ordering him to pay security for costs.[1]
[1]Deliu v Johnstone [2021] NZCA 337.
Mr Deliu then applied unsuccessfully for our judgment to be recalled. The judgment declining the recall application was issued on 24 September 2021.[2] The judgment recorded that Mr Deliu had requested a different panel consider his recall application. He made that request on the grounds that having issued the judgment which he was seeking to recall, we should not be judges in our own cause. That request was declined, it being pointed out that for good reasons the generally accepted practice is that the panel who issued the judgment should determine the recall application.[3]
[2]Deliu v Johnstone [2021] NZCA 488 [First recall judgment].
[3]At [3].
On 28 October 2021 Mr Deliu filed a second application for recall of both judgments together with an application that we recuse ourselves.
We decline the application for recusal. The grounds of the application for recusal mainly relate to Mr Deliu’s dissatisfaction with our judgment of 26 July 2021. That is not a ground for recusal. The second is a mistaken assumption by him that because the composition of a panel for another appeal changed following his objection to our being on that panel, there must have been a recusal decision. There was in fact no recusal decision.
The application for recall is also declined. It does not raise anything new. We repeat what we said in our first recall judgment, that a recall is not an opportunity to re-litigate issues.[4] None of the grounds for recall are made out.[5]
[4]At [6].
[5]Saxmere Co 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 (SC) at 633.
The first to third respondents seek costs on these applications. There is no reason why costs should not follow the event. We accordingly order the applicant to pay one set of costs to the first to third respondents for a standard application on a band A basis together with usual disbursements.
The repeated applications filed by Mr Deliu are an abuse of process. We direct the Registry not to accept for filing any further applications for recall of this judgment, our judgment of 24 September 2021 and our judgment of 26 July 2021.[6]
[6]Court of Appeal (Civil) Rules 2005, r 5(1).

Solicitors:
Meredith Connell, Auckland for First to Third Respondents

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the applicant, Francisc Catalin Deliu, sought to appeal against a High Court decision that required him to pay security for costs. He was opposed by multiple respondents, including David Johnstone, Mark Harborow, Nick Flanagan, and several other individuals and entities. The applicant was unrepresented, while the first to third respondents were represented by N F Flanagan. The Court of Appeal, consisting of French and Cooper JJ, issued its judgment on 2 December 2021, declining the applicant's application for recusal and recall of previous judgments.

The primary legal issues before the Court of Appeal were whether the judges should recuse themselves from hearing the applicant's application for recall and whether the Court should recall its earlier judgments. The Court found that the applicant's dissatisfaction with the earlier judgments did not constitute a valid ground for recusal. Furthermore, the Court held that the application for recall did not raise any new issues or arguments, and it was not an opportunity to re-litigate the case. The Court emphasised that recall is only granted in exceptional circumstances, and the applicant's grounds for recall did not meet the required standard.

In declining the application for recusal and the application for recall, the Court of Appeal reiterated its previous reasoning and held that the applicant's repeated applications were an abuse of process. The Court ordered the applicant to pay one set of costs to the first to third respondents for a standard application on a band A basis, together with usual disbursements. The Court also directed the Registry not to accept any further applications for recall of the previous judgments.

This case demonstrates the Court of Appeal's firm stance on the abuse of process and the importance of adhering to the rules and principles governing recall applications. It serves as a reminder to litigants that the Court will not tolerate repeated or frivolous applications and that such conduct may result in adverse consequences, including the imposition of costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established