Deliu v Solicitor-General - [2024] NZSC 81

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 23/2024
[2024] NZSC 81

BETWEEN	FRANCISC CATALIN DELIU Applicant
AND	SOLICITOR-GENERAL Respondent

Court:	Glazebrook, Kós and Miller JJ
Counsel:	Applicant in person D L Harris for Respondent
Judgment:	26 July 2024

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
B The applicant must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

The present application stems from proceedings brought by the applicant, Mr Deliu, against the Solicitor-General in the wake of his being charged with assault with a weapon and attempting to pervert the course of justice, in 2017 and 2018 respectively.[1]
[1]See Deliu v Flanagan [2022] NZHC 2621 (Davison J) at [15] and [19].
The applicant sought judicial review of Crown Law’s decision to reject a complaint against the then-Auckland Crown Solicitor and one of his partners. That application failed before Harvey J in the High Court.[2] An appeal to the Court of Appeal was filed, alleging inter alia that the High Court had breached his right to judicial review under s 27(2) of the New Zealand Bill of Rights Act 1990 (NZBORA). That appeal is yet to be determined. A Deputy Registrar declined to dispense with security for costs, which was then set in the usual amount of $7,060. That decision was confirmed on review by Gilbert J.[3] The applicant now seeks leave to appeal the review decision of Gilbert J.
[2]Deliu v Solicitor-General [2023] NZHC 2769 [HC judgment].
[3]Deliu v Solicitor-General [2024] NZCA 37 [CA judgment].
In line with this Court’s judgment in Reekie v Attorney-General,[4] the decision on review was based principally on whether a reasonable and solvent litigant in the applicant’s position would pursue the appeal,[5] it having been accepted that he was impecunious.[6] The Judge concluded that such a litigant would not bring the appeal. The benefit sought by the applicant—an increase in the probability of his charges being dropped if the complaint against the Crown Solicitor were upheld—was “vanishingly small and plainly outweighed by the likely cost”.[7] The appeal itself “face[d] serious challenges and ha[d] little chance of succeeding”, and the Judge considered the respondent should not be required to defend it without the usual protection of security for costs.[8]
[4]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [35].
[5]CA judgment, above n 3, at [12].
[6]At [2].
[7]At [11]–[12].
[8]At [14]–[15].
In reaching that decision, the Judge agreed with the Deputy Registrar’s findings that costs were likely to be ordered in the usual way in the applicant’s appeal;[9] the costs outweighed the likely benefits of the appeal;[10] and the appeal lacked apparent merit.[11]

The present application

[9]At [10].

[10]At [12].

[11]At [14].

The applicant’s proposed grounds of appeal are that Gilbert J failed to give reasons on the merits of the appeal and that the applicant is unable to pay, so that his appeal will be deemed abandoned by operation of law without a determination…

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 Solicitor-General

Details

AGLC: Deliu v Solicitor-General [2024] NZSC 81
Case: [2024] NZSC 81
Decision Date: 26 July 2024

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of Deliu v Solicitor-General involved an application by Francisc Catalin Deliu seeking leave to appeal the decision of Gilbert J regarding security for costs. Deliu had previously been charged with assault with a weapon and attempting to pervert the course of justice in 2017 and 2018, respectively. He sought judicial review of the Crown Law's decision to reject his complaint against the then-Auckland Crown Solicitor and one of his partners. This application followed the High Court's dismissal of his initial judicial review application and an unsuccessful appeal to the Court of Appeal. The primary legal issue before the Supreme Court was whether the proposed appeal raised a matter of general or public importance or risked a substantial miscarriage of justice.

The Supreme Court found that the proposed appeal did not raise any matter of general or public importance. It was noted that both the Senior Courts Act 2016 and the Court of Appeal (Civil) Rules 2005 required the Court of Appeal to give reasons briefly and in general terms only in the context of leave to appeal. By extension, the Court held that no more was required in the review of a registrar's decision concerning security for costs. Additionally, the Court found no evident error in the Judge's decision on review, and the appeal faced serious challenges with little chance of success. Thus, it was not necessary in the interests of justice for the Court to hear and determine the proposed appeal.

As a result, the application for leave to appeal was dismissed. The applicant was also ordered to pay the respondent's costs of $2,500. This decision underscores the Court's view that the proposed appeal did not meet the necessary criteria for leave and that the applicant's impecuniosity and the lack of merit in the appeal were significant factors in the Court's reasoning.

Orders