Deliu v Johnstone
[2021] NZCA 337
•26 July 2021 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA70/2021 [2021] NZCA 337 |
| BETWEEN | FRANCISC CATALIN DELIU |
| AND | DAVID JOHNSTONE, MARK HARBOROW AND NICK FLANAGAN |
| Court: | French and Cooper JJ |
Counsel: | Applicant in person |
Judgment: | 26 July 2021 at 9 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined.
BThe 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.
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REASONS OF THE COURT
(Given by French J)
Introduction
Mr Deliu applies for leave to appeal part of a decision of Palmer J in the High Court ordering him to pay security for costs in favour of the first to third respondents.[1] Leave to appeal is required from this Court under s 56 of the Senior Courts Act 2016 because the decision is an interlocutory one[2] and the High Court has declined to grant leave.[3]
[1]Deliu v Chapman [2020] NZHC 2100 [Security for costs decision].
[2]Mr Deliu suggested that where a decision ordering payment of security for costs has the effect of preventing an impecunious claimant from proceeding with their claim, the decision should not be treated as interlocutory. However, that submission is untenable.
[3]Deliu v Johnstone [2021] NZHC 25 [Leave decision].
The application is opposed by the first to third respondents.
Background
Mr Deliu has filed four sets of proceedings in the High Court regarding a variety of decisions by the Police, the Independent Police Conduct Authority (IPCA), the Auckland District Court and partners of the Auckland Crown Solicitor’s firm Meredith Connell. The latter are the first to third respondents. Throughout the remainder of this judgment, we refer to them collectively as Meredith Connell.
The four sets of proceedings are most conveniently described by reference to their respective High Court file number:
(a)Proceeding 1091 concerns the alleged failure by the Police to investigate threats made against Mr Deliu. The statement of claim seeks judicial review and also pleads causes of action in negligence, misfeasance and defamation.
(b)Proceeding 1092 concerns alleged failures by the IPCA regarding complaints made to it by Mr Deliu about the Police. The statement of claim pleads a cause of action under the New Zealand Bill of Rights Act 1990 and eight grounds of judicial review.
(c)Proceeding 1095 relates to alleged failures by the District Court to give Mr Deliu an opportunity to be heard. The statement of claim also named the Police as defendants but Mr Deliu advised Palmer J any claim against the Police in this proceeding was abandoned.
(d)Proceeding 1098 relates to an alleged investigation of Mr Deliu by the Police and Meredith Connell. The statement of claim pleads misfeasance in a public office, breach of privacy and seeks judicial review. The proceeding also includes a claim of abuse of process regarding the reactivation of an investigation against him for assault.
Mr Deliu lives overseas and the defendants other than the District Court sought security for costs in relation to proceedings 1091, 1092 and 1098. As Palmer J accepted, Mr Deliu lacks the means to pay security which meant an order to pay security would have the effect of terminating the proceedings. Because of that, the Judge adopted an approach to the issue of security similar to that taken to strike out applications.[4]
[4]Security for costs decision, above n 1, at [1].
Applying strike out principles, the Judge found there were reasonably arguable causes of action against the Police in proceedings 1091 and 1098 but not against the IPCA in proceeding 1092 nor against Meredith Connell in proceeding 1098. The Judge accordingly declined the applications made by the Police for security for costs but ordered security for costs in the sum of $5,000 in favour of the IPCA and in favour of Meredith Connell for the same amount.[5]
[5]At [31].
In holding that the claim against Meredith Connell was not reasonably arguable, the Judge held that the claim was insufficiently pleaded and lacked the necessary evidential foundation. In this regard, the Judge noted that the responses of New Zealand Law Society Standards Committees regarding similar claims made by Mr Deliu to the Law Society were “instructive”.[6] The Committees had found the claims were vexatious, made in bad faith, motivated by ill will, devoid of substance, and improbable based on pure speculation.
The application for leave to appeal to this Court
[6]At [28].
The application for leave to appeal is limited to the decision ordering security for costs for the benefit of Meredith Connell.
In support of his application for leave to appeal, Mr Deliu submits that the Judge erred in law and in fact. Mr Deliu contends that contrary to the Judge’s finding there was an evidential foundation for the claims against Meredith Connell, that he should have been given the opportunity to amend his pleadings before security was ordered and that the Judge should not have relied on the findings of the Law Society because those were confidential proceedings and in any event related to different issues.
Analysis
As has been said on previous occasions, the leave requirement is a filtering mechanism designed to prevent the unnecessary delay and costs caused by unmeritorious or insignificant appeals.[7] The threshold for granting leave is a high one. It is not enough to make an allegation of error. The applicant must be able to point to some arguable error that is of sufficient importance to outweigh the cost and delay of an appeal.[8]
[7]Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
[8]Lendlease Capital Services Pty Ltd v Arena Living Holdings Ltd [2020] NZCA 471 at [4], citing Moir v IHC New Zealand Inc [2018] NZCA 130, (2018) 24 PRNZ 45 at [6]; and Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
In our view, the application for leave in this case fails to meet that threshold and is a proposed appeal which in the interests of justice should be filtered out.
The various matters which Mr Deliu relies on as constituting the necessary evidential foundation may, as the Judge pointed out in his leave decision, be evidence that Meredith Connell wrongly accused him of fraud and assisted the Police to investigate him but they do not provide any basis for asserting that the firm’s contribution to the investigation was unlawful, misfeasance or an abuse of process.[9] There is no reason to consider that a re-pleading would resolve that problem. We also consider the Judge was fully entitled to place weight on the findings of the Law Society. While the issues may not have been identical they are substantially similar.
[9]Leave decision, above n 3, at [11].
In an attempt to suggest his claim may have general importance, Mr Deliu also submitted it would be of precedential value for this Court to consider the agency liability of Crown solicitors acting on Police instructions when those instructions are arguably illegal. Mr Deliu does not however identify the nature of this tortious action or its relationship with established agency principles. It lacks any substance.
The proposed appeal is devoid of merit. The application for leave to appeal is accordingly declined.
As regards the costs of this application, there is no reason why they should not follow the event. We therefore 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.
Solicitors:
Meredith Connell, Auckland for First to Third Respondents
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