Deliu v Police - [2022] NZHC 1744

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2016-404-2150

[2021] NZHC 1744

BETWEEN
FRANCISC CATALIN DELIU

Plaintiff

AND

NEW ZEALAND POLICE

Defendant

Hearing: 24 February 2021, Final submissions 5 March 2021.

Counsel:

Mr F C Deliu the Plaintiff in Person via AVL

D J Perkins and A P Lawson for the Defendant via AVL

Judgment:

12 July 2021

JUDGMENT OF DUFFY J

[on defendant’s application for stay of execution of judgment; and plaintiff’s application for costs and disbursements]

This judgment was delivered by me on 12 July 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Counsel/Solicitors:
F C Deliu, Barrister, Auckland Crown Law Office, Wellington

DELIU v NEW ZEALAND POLICE COSTS [2021] NZHC 1744

[1] The defendant applies for either a stay of execution of this Court’s decision delivered on 24 September 2020 (the substantive judgment) or in the alternative interim relief pending determination of the respondent’s appeal against the substantive judgment.1

[2] The successful plaintiff applies for costs for the period in which he was a practising lawyer in New Zealand and was representing himself in this proceeding under the “lawyer in person exception”.2

Stay

[3] I consider a stay of execution is the appropriate approach to the defendant’s request for this Court to restrain the plaintiff from pursing enforcement of the substantive judgment.

[4]The defendant seeks to have stayed:

(a)A direction the defendant provides the plaintiff with a written apology; and

(b)An order the defendant pays the plaintiff $3,000 in public law compensation.

[5] As to the compensation order, the parties are to be congratulated on the responsible stance each has taken to achieve a measure of agreement. The plaintiff currently owes the defendant approximately $5,000 following a costs award made by Muir J at an interlocutory step in this proceeding (the Muir J costs award).3 The parties agree that, pending appeal, the $3,000 public law compensation awarded to the plaintiff can be set-off against the Muir J costs award. The plaintiff therefore owes the defendant approximately $2,000, as the balance of that award. The parties also agree that if the defendant’s appeal succeeds the set-off will be undone.

1      Deliu v Police [2020] NZHC 2506.
2      Deliu v Chapman [2020] NZHC 2100 at [7].
3      The material available to me puts this figure at $5,001.65.

[6] The direction ordering an apology for the arbitrary detention of the plaintiff is novel. At the stay hearing I asked the parties if they were able to find any analogous case law in relation to defamation or any other proceedings in New Zealand, the United Kingdom, Canada or Australia that addresses the question of whether there should be a stay of an order directing an apology.4 Neither party was able to find any such case law. The defendant’s counsel submits this may be because at least in New Zealand a Court order to apologise is not a remedy available under…

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 Police

Details

AGLC: Deliu v Police [2021] NZHC 1744
Case: [2022] NZHC 1744
Decision Date: 12 July 2021

CaseChat Overview and Summary

The case of Deliu v Police, which was heard in the High Court of New Zealand, involved a dispute between Francis Catalin Deliu, the plaintiff, and the New Zealand Police, the defendant. The plaintiff, who was representing himself as a practising lawyer in New Zealand, sought relief for an arbitrary detention and was awarded damages and an apology. The defendant sought a stay of execution of the judgment and interim relief pending the determination of the appeal against the substantive judgment. The plaintiff, in turn, sought costs for the period he was a practising lawyer in New Zealand and was representing himself in the proceeding under the "lawyer in person exception."

The court had to decide on whether to grant a stay of execution of the substantive judgment, which included an order for the defendant to provide a written apology and an order for the defendant to pay $3,000 in public law compensation to the plaintiff. The court also had to decide on the appropriate costs and disbursements to be awarded to the plaintiff under the "lawyer in person exception."

The court found that the direction ordering an apology for the arbitrary detention of the plaintiff was novel and that no analogous case law could be found in New Zealand, the United Kingdom, Canada, or Australia. The court acknowledged that the Independent Police Conduct Authority (IPCA) had informed the plaintiff that the payment and apology should be completed within six weeks, but noted that this was inconsistent with the notice of appeal filed by the defendant. The court concluded that the order to provide the plaintiff with a written apology should be stayed until the Court of Appeal delivered its judgment on the defendant's appeal.

The court also found that the plaintiff was successful in the substantive judgment and that costs should follow the event. However, the plaintiff's ability to recover costs was limited by his suspension from legal practice by the New Zealand Law Society on 31 January 2017. The court awarded the plaintiff category 2 costs in the total sum of $9,398.50 and disbursements in the total sum of $1,560.00.

In summary, the court granted a stay of execution of the order for the defendant to provide a written apology, awarded the plaintiff costs and disbursements, and encouraged the parties to take a responsible attitude to the resolution of the matter.

Orders