Deliu v Johnstone - [2021] NZHC 25

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1098

[2021] NZHC 25

BETWEEN
FRANK DELIU

Plaintiff

AND

DAVID JOHNSTONE, MARK HARBOROW, NICK FLANAGAN

First to Third Defendants

THOM CLARK
Fourth Defendant

NEW ZEALAND POLICE
Fifth Defendant

MIKE BUSH, STEPHEN PEAT, GILLIAN HOLLAND and TONI JORDAN

Sixth to Ninth Defendants

Hearing: On the Papers

Appearances:

The plaintiff in person

N F Flanagan for the first to third defendants Appearance excused for the fourth defendant D Jones for the fifth to ninth respondents

Date of Judgment:

27 January 2021

JUDGMENT OF PALMER J

(Leave to Appeal)

This judgment was delivered by me on Wednesday 27 January 2021 at 11.00 am.
Pursuant to Rule 11.5 of the High Court Rules.

Party/Solicitors:
Plaintiff in person Crown Law, Wellington
Meredith Connell, Auckland

………………………… Registrar/Deputy Registrar

DELIU v JOHNSTONE [2021] NZHC 25 [27 January 2021]

Judgment

[1] On 19 August 2020, I issued judgment on applications for security for costs in four sets of proceedings brought by Mr Frank Deliu in relation to a variety of respondents.1 In summary, I said:
[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]In relation to these proceedings against Meredith Connell and the Police, I said:

[29] I consider Mr Deliu’s claim against the members of Meredith Connell is insufficiently pleaded and lacks the evidential foundation he says it has. It cannot succeed. The conclusions of the various NZLS committees regarding similar claims are instructive. I consider the claims against the members of Meredith Connell are not reasonably arguable. If Mr Deliu wishes to pursue them I order that he provide security for costs of $5,000 (separately to the security ordered above).

[30] However, I consider the judicial review, misfeasance in public office and abuse of process claims against the Police are reasonably arguable, given the evidence of the intention of one Police officer to arrest Mr Deliu because he was taking complaints to IPCA and taking private prosecutions against the Police. That may not turn…

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] NZHC 25
Case: [2021] NZHC 25
Decision Date: 27 January 2021

CaseChat Overview and Summary

In Deliu v Johnstone, the plaintiff Frank Deliu sought judicial review and other causes of action against various respondents, including Meredith Connell and the New Zealand Police. The respondents applied for security for costs, and the court previously ruled that Deliu must pay security to proceed against Meredith Connell but not against the Police. Deliu sought leave to appeal the security for costs requirement against Meredith Connell, and the Police sought leave to appeal the lack of such a requirement against them. The central issue for the court was whether there were sufficient grounds to grant leave to appeal the security for costs decisions.

The court considered the established criteria for granting leave to appeal, emphasizing that a high threshold must be met, and the appeal must be meritorious and of sufficient importance to justify the delay and costs involved. The court evaluated Deliu's submissions that the case against Meredith Connell was sufficiently arguable and that the costs order should be stayed until the appeal was determined. The court also considered the Police's arguments that the appeal was without merit and that there was no distinction between their position and that of Meredith Connell.

Ultimately, the court dismissed both applications for leave to appeal. Regarding Meredith Connell, the court found that although Deliu's case might have some evidential support, it was not sufficiently meritorious to warrant an appeal. The court emphasized that the lack of evidence of unlawfulness or malice on Meredith Connell's part meant that the case against them did not meet the necessary threshold. Concerning the Police, the court found that the appeal was not sufficiently meritorious, especially given the court's previous findings that the claims against the Police were reasonably arguable. The court concluded that neither appeal met the criteria for leave and dismissed both applications.

Orders