Deliu v Johnstone
[2021] NZHC 25
•27 January 2021
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 DefendantNEW ZEALAND POLICE
Fifth DefendantMIKE 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 out to justify the claims, but it does provide them with an evidential foundation. I do not consider I can infer they are without merit. I decline to order security for costs in Mr Deliu’s proceeding against the Police.
[3] Mr Deliu applies for leave to appeal the decision that he be required to pay security for costs for proceeding against Meredith Connell. The Police apply for leave to appeal the decision that Mr Deliu not be required to pay security for costs for proceeding against them. Each opposes the other’s application.
1 Deliu v Chapman [2020] NZHC 2100.
Law of leave to appeal
[4] Deliu v Independent Police Conduct Authority was a recent judgment regarding leave to appeal my security for costs decision in one of Mr Deliu’s other four proceedings.2 There, I canvassed the case law about leave to appeal, based on s 20 of the Judicial Review Procedure Act 2016 and s 56 of the Senior Courts Act 2016. I referred to Li v Chief Executive, Ministry of Business, Innovation and Employment, which said in summary:3
[22] More pithily, perhaps, an application to appeal an interlocutory decision under s 56(3) is likely to be granted where: (a) there is good reason to consider it before, or separately to, the substantive appeal; and (b) it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal.
[5] I also referred to the Court of Appeal’s judgment in Ngai Te Hapu Incorporated v Bay of Plenty Regional Council.4 It said that s 56(3) acts as a “filtering mechanism” to prevent unnecessary delay caused by unmeritorious or insignificant appeals and referred to the following considerations from A v Minister of Internal Affairs, as stated in Finewood Upholstery Ltd v Vaughan:5
(a)A high threshold exists for the granting of leave. An allegation of error of law or fact is generally insufficient. An applicant should raise an arguable error.
(b)Leave should only be granted where the circumstances warrant incurring further delay.
(c)The alleged error should be of general or public importance that requires determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.
[6] These factors were largely re-stated by the Court of Appeal in Moir v IHC New Zealand Incorporated.6 The Court held that leave should only be granted if the appeal raises issues “capable of bona fide and serious argument” that are of “interest, public or private” and are “of sufficient importance to outweigh the cost and delay of
2 Deliu v Independent Police Conduct Authority [2021] NZHC 10.
3 Li v Chief Executive, Ministry of Business, Innovation and Employment (No 2) [2018] NZHC 1171, [2018] NZAR 1134.
4 Ngai Te Hapu Incorporated v Bay of Plenty Regional Council [2018] NZCA 291.
5 At [12], quoting Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [8]–[9], referring to
A v Minister of Internal Affairs [2017] NZHC 887.
6 Moir v IHC New Zealand Incorporated [2018] NZCA 130.
the appeal”.7 The Court added that the appeal should have a reasonable prospect of success for leave to be granted.8
[7] In Deliu v Independent Police Conduct Authority, as he has done here, Mr Deliu submitted that Parliament made an unintentional oversight in not excepting security for costs decisions against plaintiffs from the leave hurdle. In response to Mr Deliu’s submission, I said there, and repeat now:9
As the Court of Appeal endorsed in Ngai Te Hapu Incorporated v Bay of Plenty Regional Council, “impecuniosity is not usually sufficient” to justify waiving security for costs.10 But the final nature of a decision to require security for costs of an impecunious plaintiff militates in favour of leave to appeal being granted in terms of the first three of the considerations identified in the longer form of the test formulated above and the first of the two considerations in the shorter form of the test. So, to that extent, applications for leave to appeal such applications are inherently likely to have more prospects of success than applications in respect of other interlocutory applications without such a final effect. But the other considerations, the merits of the arguments, significance of the issues, and any other relevant considerations, must also be weighed in applying the test. I do that in relation to each of the relevant proceedings here. The parties agreed I may determine the issues on the papers.
[8]The parties agreed I should consider the application on the papers.
1 Should leave to appeal be granted to Mr Deliu?
Submissions
[9]Mr Deliu submits:
(a)There are six matters which constitute an evidential foundation for his claim that Meredith Connell wrongly accused him of fraud. There is a deposition that the Police obtained copies of his bank records which supports his claim for breach of privacy. There are two exhibits proving the Police wrongfully investigated whether he practised law while suspended. There is also a ruling and a judgment of Duffy J
7 At [6].
8 At [6].
9 Deliu v Independent Police Conduct Authority, above n 2, at [10].
10 Ngai Te Hapu Inc v Bay of Plenty Regional Council, above n 4, at [6].
exonerating him. The test for leave to appeal encompasses issues of fact. The causes of action are far from hopeless.
(b)The matter of general or significant importance here is that there was an error made as to the strength of this case and, absent leave to appeal, that would be the end of his case which denies him justice.
(c)The conclusions of the Standards Committee of the New Zealand Law Society in dismissing related complaints by Mr Deliu were absurd, their reasons irrational, and their report hearsay. There was an investigation of him by the Police and there is an evidential basis that Mr Flanagan was involved.
(d)His pleadings were legally sufficient and that, if he has a case against the Police then logically he must also have a case against their lawyers, Meredith Connell.
(e)The costs order should be stayed and he seeks costs for the application.
[10]Mr Flanagan, for Meredith Connell, submits:
(a)Mr Deliu seeks to relitigate points I already considered and decided.
(b)The appeal discloses no question of law or question of general importance.
(c)The claims are hopeless, with no foundation in the pleadings or evidence and have no realistic prospect of success.
(d)The respondents should not be put to further unrecoverable costs on an unmeritorious appeal.
Leave to appeal
[11] Mr Deliu has not persuaded me that my conclusion, that he should pay security for costs if he wishes to pursue his claim against Meredith Connell, is wrong. There may be evidence that Meredith Connell wrongly accused him of fraud and assisted the Police to investigate him. But I cannot see any basis on which Meredith Connell’s contribution to the investigation could be characterised as unlawful, misfeasance or an abuse of process. Although the decision ends the prospect of Mr Deliu pursuing the proceedings, I consider the case is not sufficiently meritorious in substance to outweigh the cost and inconvenience of appeal. This is an appeal which should be filtered out. I dismiss the application for leave to appeal and to stay the costs order.
2 Should leave to appeal be granted to the Police?
Submissions
[12]Mr Jones, for the Police, submits:
(a)I erred in failing to give weight to Mr Deliu’s absence from New Zealand, the manner in which he is conducting the proceedings and his failure to pay costs in another recent case.
(b)The email that is evidence of the intention of one Police officer to arrest Mr Deliu because he was pursuing complaints and private prosecutions is relevant only to the abuse of process aspect of the proceedings. But the email could not found that cause of action because it did not lead to any action being taken. The email is not relevant to the other three aspects of the proceedings: allegations of fraud/misfeasance, breach of privacy/misfeasance, and ultra vires/misfeasance.
(c)Accordingly, there is no justification for distinguishing the positions of the Police and Meredith Connell. The claims cannot succeed because essential elements of the causes of action have not been pleaded.
[13]Mr Deliu submits:
(a)I did not err in fact or law or otherwise and there is no error of general or public importance. Mr Deliu put forward a proper evidential basis for the claims which is not analysed in great detail on a security for costs application. He has provided evidence that he was wrongly accused of fraud, that the Police obtained his personal and business records without a proper basis, and that the Police investigated him. The Police did not file any rebutting evidence and did not deny the allegations in his amended statement of claim, including that they lacked authority to investigate (though that is not my reading of the pleadings).
(b)The email did lead to action by the Police because a border alert was put out for him to be arrested. It was the Police who raised the email. The fact it was specifically identified in the judgment but does not mean I did not otherwise accept the evidence in support of his other claims. I was able to, and did, consider the “overall” case.
(c)The Police’s disagreement with my conclusion about the circumstances of Mr Deliu’s absence from New Zealand is not a basis for leave to appeal. The reasons for his absence are irrelevant to the issue of security for costs. No particulars are given of the alleged problems with the manner he is conducting the case (though that is not my understanding). His failure to pay costs in another case reflects his inability to pay.
(d)He agrees there is no material difference in the evidence regarding the Police and Meredith Connell but there is ample evidence to make out a prima facie case against both. In any case, the merits should be approached on the basis of the pleadings not the evidence. He has pleaded the elements of the causes of action.
Leave to appeal
[14] I do not accept Mr Jones’ submission that the weight I gave to Mr Deliu’s absence from New Zealand, the manner in which he was conducting proceedings or
his failure to pay costs in another case are a basis for granting leave to appeal. My decision considered the Police submissions about those points but did not accept they justified requiring security for costs when I considered the substantive case was reasonably arguable.
[15] The distinction between my conclusion that these proceedings were arguable against the Police but not against Meredith Connell rests on the lack of any evidence of unlawfulness or malice on the part of Meredith Connell. But the email pointed to suggests there may be evidence of malice on the part of the Police. That is reinforced generally by Duffy J’s recent judgment about how the Police dealt with Mr Deliu.11 I do not consider the Police’s proposed appeal is sufficiently meritorious and relates to a sufficiently important issue as to outweigh the cost and delay of appeal. I do not consider there is good reason to consider it before, or separately to, the substantive appeal. I dismiss the application for leave to appeal.
Result
[16]I dismiss:
(a)Mr Deliu’s application for leave to appeal my decision to require he pay security for costs to pursue the proceedings against Meredith Connell and to stay the costs order.
(b)The Police’s application for leave to appeal my decision not to require Mr Deliu to pay security for costs to pursue proceedings against them.
Palmer J
11 Deliu v New Zealand Police [2020] NZHC 2506.
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