FRANCISCO CATALIN DELIU AND THE DISTRICT COURT AT AUCKLAND THE CROWN
[2024] NZHC 3605
•29 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-001659
[2024] NZHC 3605
UNDER the Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of Rights Act 1990 and Declaratory Judgments Act 1908 IN THE MATTER
of proceedings moving for an application for judicial review, a writ, a bill of rights claim and a petition for declaratory relief
BETWEEN
FRANCISCO CATALIN DELIU
Applicant
AND
THE DISTRICT COURT AT AUCKLAND
First Respondent
THE CROWN
Second Respondent
Hearing: 27 November 2024 Counsel:
Applicant in person
K Whiting for First Respondent (abides decision of Court) G Taylor and R Fistonich for Second Respondent
Judgment:
29 November 2024
JUDGMENT OF LANG J
[on application for judicial review]
This judgment was delivered by Justice Lang
On 29 November 2024 at 10.00 am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:………………………
Solicitors/counsel: Crown Law, Wellington
Copy to: F Deliu
DELIU v THE DISTRICT COURT AT AUCKLAND [2024] NZHC 3605 [29 November 2024]
[1] In this proceeding Mr Deliu seeks judicial review of a decision made by a registry officer in the District Court at Auckland to vacate a fixture allocated to hear his application for a stay of criminal proceedings.
Background
[2] Mr Deliu faced two sets of criminal charges in the District Court. They were laid in 2017 and 2018 respectively. The proceedings had a tortuous procedural path and led to applications for judicial review to this Court and a subsequent appeal to the Court of Appeal.
[3] Included in the interlocutory applications that Mr Deliu filed in the District Court was an application for discharge under s 147 of the Criminal Procedure Act 2011 (the Act). He filed this application in 2020 but it has apparently never been determined. Mr Deliu filed a further application for stay of the charges on 31 October 2023. After an earlier hearing date was adjourned for administrative reasons, Mr Deliu’s 2023 application for stay was allocated a firm fixture on 23 July 2024.
[4] Five days before the allocated fixture, on 18 July 2024, the Deputy Solicitor- General (Criminal) filed a notice in the District Court advising that she had stayed both sets of charges under s 176(1) of the Act. Upon receipt of the notice of stay, Mr Deliu filed an application (referred to by both parties as the “omnibus application”) in which he sought orders dismissing the charges, withdrawing warrants that had earlier been issued for his arrest and awarding costs against the New Zealand Police as well as individual police officers and partners in Meredith Connell, the law firm of which the Crown Solicitor at Auckland is a partner.
[5] On 19 July 2024 the District Court registry sent an email to Mr Deliu and the Crown attaching the Deputy Solicitor-General’s notice of stay. The email advised the parties that the hearing date on 23 July 2024 was no longer required. It appears that the warrants were withdrawn on the same date, although it seems Mr Deliu did not become aware of this until he attended a conference in the present proceeding on 18 September 2024.
[6] On 20 July 2024 Mr Deliu filed a memorandum in which he objected to the fixture being vacated. The Deputy Solicitor-General filed a memorandum in response
on 22 July 2024 in which she noted that the only issue still requiring determination was Mr Deliu’s application for costs. The Deputy Solicitor-General’s memorandum contained the following submissions in relation to this issue:
Costs in Criminal Cases Act 1967
7.The defendant does not meet the statutory criteria for an award of costs under the Costs in Criminal Cases Act 1967. The proceedings are stayed; but the defendant has not been acquitted, nor have the charges been dismissed or withdrawn.1 Nor has the defendant been convicted.2
Remaining applications
8.The only remaining substantive application appears to be for a costs order under s 364 of the CPA. The “significant procedural failures” under the CPA, Criminal Procedure Rules 2012, or Criminal Disclosure Act 2008 which might justify such an order have not been particularised. The defendant ought not be permitted to embark upon a “fishing expedition”—seeking subpoenas, summonses, or to cross- examine witnesses—in an attempt to establish them. If such applications are pursued, the Crown will at that time identify the appropriate Crown respondent to them.
[7] The District Court registry declined to reinstate the fixture as requested by Mr Deliu and it did not proceed.
[8] Mr Deliu now seeks judicial review of the action taken by the registry when it vacated the fixture on 23 July 2024. He also seeks judicial review of the failure of the District Court to progress his application for costs. Mr Deliu no longer seeks to pursue his application for dismissal of the charges or for orders that the warrants be set aside or cancelled. He seeks several forms of relief, including declarations and the extraordinary remedy of a writ of mandamus to compel the District Court to deal with any outstanding issues raised in his omnibus application.
[9] The District Court abides the decision of this Court, but the Crown opposes the application for review.
1 Costs in Criminal Cases Act 1967, s 5(1).
2 Section 6.
Decision
Vacation of the fixture on 23 July 2024
[10] The fixture on 23 July 2024 had been allocated to hear Mr Deliu’s 2023 application for a stay of the charges. He says he also expected his earlier application for discharge to be determined at that hearing.
[11] Ms Taylor argues on behalf of the Crown that the Registrar’s decision was of an administrative nature that is not amenable to review. That may well be the case, but I propose in any event to determine the issue on its merits.
[12] The 2023 application for stay was effectively rendered redundant as soon as the Deputy Solicitor-General filed her notice of stay. Thereafter, the District Court had no jurisdiction to determine Mr Deliu’s application to dismiss the charges as Mr Deliu sought in his omnibus application.3 The Deputy Solicitor-General also invited the District Court to grant leave to withdraw the warrants in her memorandum filed in response to Mr Deliu’s omnibus application. As I have already noted, this had already occurred on 19 July 2023. This left only the issue of costs to be determined by the District Court.
[13] Mr Deliu was clearly under the impression that he was entitled to require the registry to maintain the fixture on 23 July 2024 to deal with the issues raised by his omnibus application. If so, he was mistaken. His memorandum and omnibus application were filed after the Deputy Solicitor-General had filed the notice of stay. Given that the charges had already been stayed, it was for the District Court to determine how it should deal with the application for costs.
[14] That application could obviously not be determined on 23 July 2024 because it had only just been filed and the Crown would need time to respond to it. Nor was it necessary for the District Court to hold a hearing to enable the costs application to be timetabled to a fixture. The registry could have referred Mr Deliu’s memorandum and application to a Judge for the appropriate timetabling directions to be made. Alternatively, the registry could have set the application down for first call in a criminal callover. I am satisfied that, once the Deputy Solicitor-General filed the
3 Henderson v Attorney-General [2024] NZCA 9, [2024] 2 NZLR 399 at [39].
notice of stay, the registry was entitled to vacate the fixture on 23 July 2024 and re-allocate the hearing time to other matters.
[15] Mr Deliu submits the registry erred in failing to give him an opportunity to be heard and in failing to give reasons for its decision to vacate the fixture. However, I do not accept either of these submissions. As counsel for the Crown points out, s 63 of the District Court Act 2016 provides registrars of the District Court with all powers “necessary or desirable to ensure the efficient and effective administration of the operations of the court”.4 I accept the Crown’s submission that this must include the power to vacate fixtures that are no longer required. It would impose an intolerable burden on the administrative resources of the District Court if registry staff were required to seek the views of counsel in each case before doing so. They would not in any event be bound to act in accordance with those views.
[16] Similarly, the registry was not bound to provide reasons for vacating the fixture. The case officer who sent out the email on 19 July 2024 attached a copy of the notice of stay to the email advising the parties that the fixture was no longer required. Both Mr Deliu and the Crown would have understood that the fixture was being vacated because the notice of stay had been filed. This obviously meant the application for stay could no longer proceed.
[17] Nor, given the breadth of the wording used in s 63, do I accept Mr Deliu’s submission that the registry’s decision to vacate the fixture was made unlawfully or outside the registrar’s power on the basis that the fixture had originally been allocated by a Judge. The fact that the fixture had originally been allocated by a Judge is immaterial. It would have been a waste of judicial resources to refer the matter to a Judge rather than have the registrar vacate the fixture once the Deputy Solicitor-General filed the notice of stay.
[18]This ground of review cannot succeed.
4 District Court Act 2016, s 63(1)(b).
Failure to progress the application for costs
[19] I accept that this Court has the power to intervene when a tribunal such as the District Court fails to progress a proceeding within its jurisdiction in an expeditious manner. It may do so in several ways, including the use of declaratory relief and, in cases of significant or deliberate delay, the writ of mandamus. By way of example, whilst the criminal proceedings were on foot Mr Deliu succeeded in an application for judicial review when the District Court failed to process an application he made for access to documents on the criminal file for a period of 19 months.5 In that case Campbell J made a declaration that the delay breached Mr Deliu’s right to natural justice in s 27 of the New Zealand Bill of Rights Act 1990. The issue for present purposes is therefore whether any failure by the District Court to advance Mr Deliu’s application for costs justifies this Court intervening in a similar way.
[20] By the time Mr Deliu filed his application for review in this Court, the Crown had indicated it intended to oppose both the application for costs and the ancillary orders Mr Deliu sought regarding cross-examination of the persons against whom he sought costs. However, the Crown did not subsequently file a formal notice of opposition or take any other steps in relation to the application. Nor did the District Court take any further steps to progress it.
[21] Mr Deliu contends that this failure by the District Court must be viewed against a background of egregious delays for which that Court was responsible in relation to the progression of the criminal charges. I disagree. The issue of costs arose for the first time in the criminal proceedings on 19 July 2024 when Mr Deliu filed his application. In the absence of evidence of deliberate inaction by the registry or Judges of the District Court, any allegation of delay in progressing that application must be judged having regard to when it was filed.
[22] Mr Deliu also contends that in failing to progress the application for costs the District Court has effectively denied his ability to gain access to justice. He also says this is symptomatic of the way it has acted towards him in the past. Again, I disagree, at least so far as the application for costs is concerned. There is no evidence to suggest that the District Court registry or Judges made a conscious decision not to progress the
5 Deliu v District Court at Auckland [2022] NZHC 3389.
application for costs between 19 July and 8 August 2024, being the date on which Mr Deliu filed his application for review.
[23] The most likely explanation for any inaction by the registry during this three week period is that the Crown took no steps to file a notice of opposition to the application, and neither Mr Deliu nor the Crown sought timetable directions to progress the application to a hearing. However, I regard the delay that occurred during that period as being inconsequential given that the application does not raise issues that affect or jeopardise Mr Deliu’s welfare or liberty in any meaningful way. His right to obtain access to justice has never been denied and it was only marginally delayed during the period before he issued the present proceeding. I take the same view of the delay that has occurred since 8 August 2024. I am therefore satisfied there has been no undue delay and that such delay as has occurred would not justify this Court intervening in the manner Mr Deliu suggests.
[24] It will now be for the Crown to file its notice of opposition in the District Court responding as best it can to the matters alleged in Mr Deliu’s application. Mr Deliu and the Crown should then co-operate to reach agreement regarding the timetable required for evidence to be filed so that the application can be allocated a fixture as soon as the priorities of the District Court permit.
[25] I direct that the Registrar of this Court is to forward a copy of this judgment to the Criminal List Judge at the Auckland District Court so that he or she is aware what has occurred to date, and what now needs to be done.
Result
[26]The application for judicial review is dismissed.
Costs
[27] If the parties cannot reach agreement on the issue of costs, I will determine that issue on the basis of concise memoranda to be filed and served by both parties.
Lang J
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