Deliu v Solicitor-General - [2024] NZCA 37

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA654/2023
[2024] NZCA 37

BETWEEN	FRANCISC CATALIN DELIU Appellant
AND	SOLICITOR-GENERAL Respondent

Counsel:	Appellant in person D Harris for Respondent
Judgment: (On the papers)	1 March 2024 at 9.30 am

JUDGMENT OF GILBERT J
[Review of Deputy Registrar’s decision]

AThe application for review of the Deputy Registrar’s decision declining to dispense with security for costs is declined.
BThe date for payment of security for costs in the sum of $7,060 is deferred until 29 March 2024.

____________________________________________________________________

REASONS

Dr Deliu has appealed a judgment of Harvey J, delivered on 3 October 2023, declining his application for judicial review of Crown Law’s decision to reject his complaint against the then Crown Solicitor for Auckland and one of his partners.[1] Security for costs on the appeal was set in the usual way at $7,060.
[1]Deliu v Solicitor-General [2023] NZHC 2769.
Dr Deliu applied for security for costs to be dispensed with. That application was declined by the Deputy Registrar for detailed reasons given in a decision dated 13 December 2023. The Deputy Registrar accepted that Dr Deliu was impecunious based on the information he had provided. She was also satisfied that Dr Deliu had provided genuine reasons why he had not sought legal aid for the appeal. However, she declined the application to dispense with security for costs for reasons that may be summarised as follows:
(a)The appeal lacked merit.
(b)There was little utility in the appeal.
(c)The potential benefits did not clearly outweigh the potential costs.
(d)A reasonable and solvent litigant would not pursue the appeal.
(e)The appeal raised no issue of public interest.
(f)If unsuccessful on the appeal, costs were likely to be awarded against Dr Deliu in the usual way.
(g)The respondent should not be required to defend the decision under appeal without the usual protection of security for costs.
Dr Deliu has exercised his right of review of this decision. The matter has been referred to me.

Relevant principles

The principles relevant to dispensation of security for costs were reviewed in Reekie v Attorney General.[2] An application to dispense with security is “likely to be

based on one of two broad grounds”:[3]

(a)costs are unlikely to be ordered against an appellant, and for this reason, security should not be required; or
(b)the appellant either cannot pay or will suffer severe hardship if payment is required.
[2]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[3]At [19].

Under the second ground, the Court stated that security costs should only be dispensed with if the Registrar is “of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security”.[4]
[4]At [31].
The Court further considered that “the discretion to dispense with security should be exercised so as to”:[5]
(a)preserve access to the Court of Appeal by an impecunious appellant in the case of an…

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] NZCA 37
Case: [2024] NZCA 37
Decision Date: 1 March 2024 at 9.30 am

CaseChat Overview and Summary

Dr Francisc Catalin Deliu has appealed against the Deputy Registrar’s decision to deny his application to dispense with security for costs in relation to his appeal against the High Court’s decision to decline his application for judicial review of the Solicitor-General’s decision to reject his complaint against the then Crown Solicitor for Auckland and one of his partners. Dr Deliu argues that the Deputy Registrar erred in declining to dispense with security for costs and that the appeal has a reasonable prospect of success. The court has considered the appeal on the papers and has found the appeal to lack merit and utility. The potential benefits of the appeal do not clearly outweigh the potential costs, and a reasonable and solvent litigant would not pursue the appeal. The appeal raises no issue of public interest, and if unsuccessful on the appeal, costs are likely to be awarded against Dr Deliu in the usual way. The respondent should not be required to defend the decision under appeal without the usual protection of security for costs. The application for review of the Deputy Registrar’s decision declining to dispense with security for costs is declined. The date for payment of security for costs in the sum of $7,060 is deferred until 29 March 2024.
The court has exercised its discretion to decline the application to dispense with security for costs. The court considers that the appeal lacks merit and utility, and the potential benefits do not clearly outweigh the potential costs. The appeal raises no issue of public interest, and if unsuccessful on the appeal, costs are likely to be awarded against Dr Deliu in the usual way. The court considers that the respondent should not be required to defend the decision under appeal without the usual protection of security for costs. The court has deferred the date for payment of security for costs in the sum of $7,060 until 29 March 2024.

Orders