Deliu v Johnstone - [2021] NZCA 337

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA70/2021
[2021] NZCA 337

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, 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)	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…

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 Johnstone

Details

AGLC: Deliu v Johnstone [2021] NZCA 337
Case: [2021] NZCA 337
Decision Date: 26 July 2021 at 9 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the applicant, Francis Catalin Deliu, sought leave to appeal against a decision made by Palmer J in the High Court. The decision ordered Mr Deliu to pay security for costs in favour of the first to third respondents, David Johnstone, Mark Harborow, and Nick Flanagan. The appeal was dismissed by French and Cooper JJ. The first to third respondents were represented by N F Flanagan, while the remaining respondents did not appear. The Court declined Mr Deliu's application for leave to appeal, and ordered him to pay one set of costs to the first to third respondents on a band A basis.
Mr Deliu filed four sets of proceedings in the High Court concerning various decisions made by the Police, the Independent Police Conduct Authority, the Auckland District Court, and the partners of the Auckland Crown Solicitor's firm Meredith Connell. The Court ordered Mr Deliu to pay security for costs in favour of the first to third respondents as they were unable to pay the security, which would have resulted in the termination of the proceedings. The Court held that there were reasonably arguable causes of action against the Police in two of the proceedings, but not against the IPCA or Meredith Connell in the other two proceedings. Therefore, the Court 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.
The Court held that the application for leave to appeal failed to meet the high threshold required for granting leave. The Court found that the Judge was entitled to place weight on the findings of the Law Society and that the proposed appeal was devoid of merit. The Court ordered Mr Deliu 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.

Orders