Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal

[2018] NZCA 145

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA601/2017
 [2018] NZCA 145

BETWEEN	FRANCISC CATALIN DELIU Appellant
AND	THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL First Respondent
THE NATIONAL STANDARDS COMMITTEE AND AUCKLAND STANDARDS COMMITTEE 1 Second Respondents

Counsel:	Appellant in person K Laurenson for First Respondent P J Morgan QC for Second Respondents
Judgment: (On the papers)	9 May 2018 at 11.00 am

JUDGMENT OF FRENCH J
(Review of Registrar’s decision)

AThe application for review of the Registrar’s decision refusing to dispense with security is declined.

BSecurity for costs in the sum of $6,600 must be paid by 25 May 2018.

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REASONS

1. Mr Deliu has filed a notice of appeal against a judgment of Hinton J.[1] In her judgment, Hinton J addressed and rejected various challenges made by Mr Deliu to the first respondent’s decision suspending him from legal practice for misconduct. The challenges were made in the High Court under the auspices of both a judicial review proceeding and an appeal proceeding under s 253 of the Lawyers and Conveyancers Act 2006. It is common ground that the appeal filed in this Court is only against that part of Hinton J’s decision in which she dismissed the judicial review proceeding.

   [1]Deliu v National Standards Committee [2017] NZHC 2318.

2. In this Court, security for costs on the appeal was set at $6,600.  Mr Deliu then applied for security to be dispensed with or reduced under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005.  The Registrar declined that application in a letter dated 25 January 2018 and Mr Deliu now seeks a review of that decision.

3. The grounds of review are a combination of alleged Registrar error and a change of circumstances.

4. Mr Deliu says since his application for dispensation was made in November 2017 he has become impecunious.  He has sworn an affidavit to the effect he now has no assets other than a foreign bank account containing $255 and no income and is wholly dependent on someone else for living expenses.  He says he is living overseas.  For security reasons, he does not intend to ever return to New Zealand and would be prepared to agree to the appeal being determined on the papers.

5. As regards error, Mr Deliu submits the Registrar erred in her assessment of the merits of the appeal by:

   (a)failing to take into account the benefit to Mr Deliu if he succeeded in the appeal;

   (b)placing excessive weight on the reasoning of Hinton J; and

   (c)underestimating the public interest in the appeal and its general importance.

6. The second respondent does not accept that Mr Deliu is impecunious.  There is reason for some scepticism.  It is noteworthy for example that Mr Deliu has not provided any explanation for the rapid decline in his financial position.  But even assuming that Mr Deliu is impecunious (as I am prepared to do), impecuniosity while relevant does not of itself mean that a dispensation or reduction should automatically be granted.

7. Turning to other relevant factors, I am satisfied that the proposed appeal does not raise a matter of public interest.  Mr Deliu is effectively seeking to re-argue legal issues that have already been the subject of recent authority in this Court on similar facts.[2]  Further, the prospects of success are very low.  I acknowledge that deciding an appeal on the papers would usually reduce costs.  However, I cannot be confident there would be any significant saving in this case in light of the voluminous papers Mr Deliu has already filed in this Court and in the High Court.

   [2]Orlov v National Standards Committee No 1 [Security] [2014] NZCA 182, (2014) 22 PRNZ 120.

8. As the second respondent points out, Mr Deliu has removed himself from the jurisdiction.  He has no assets in this jurisdiction and by his own admission has no funds against which the respondents could recover were he to lose the appeal which viewed objectively is of dubious merit.

9. In those circumstances, I consider it would not be in the interests of justice to dispense with security for costs or to reduce the amount of the security.  I accordingly uphold the Registrar’s decision.

10. The application for review of the Registrar’s decision refusing to dispense with security is declined. Security for costs in the sum of $6,600 must be paid by 25 May 2018.

Solicitors:
Crown Law Office, Wellington for First Respondent
Glaister Ennor, Auckland for Second Respondents