Police v Deliu [2021] NZCA 631 (29 November 2021)

Last Updated: 7 December 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA80/2021 [2021] NZCA 631

	BETWEEN	NEW ZEALAND POLICE First Applicant
	AND	MIKE BUSH, STEPHEN PEAT, GILLIAN HOLLAND AND TONI JORDAN Second to Fifth Applicants
	AND	DAVID JOHNSTONE, MARK HARBOROW AND NICK FLANAGAN Sixth to Eighth Applicants
	AND	THOM CLARK Ninth Applicant
	AND	FRANCISC CATALIN DELIU Respondent

Court:	Miller and Collins JJ
Counsel:	D Jones and C N Tocher for First to Fifth Applicants No appearance for Sixth to Ninth Applicants Respondent in person
Judgment: (On the papers)	29 November 2021 at 11.00 am

JUDGMENT OF THE COURT

A The application for leave to appeal is declined.

B We make no order as to costs.
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REASONS OF THE COURT

(Given by Miller J)

• [1] The New Zealand Police seek leave to appeal a judgment of the High Court dismissing an application for an order that Mr Deliu pay $5,000 security for costs in a civil proceeding he has brought challenging a variety of decisions by the Police and members of Meredith Connell in connection with alleged investigations of him.^[1] The application is brought under s 56(5) of the Senior Courts Act 2016, following a High Court decision to decline leave.^[2]
• [2] Palmer J found that Mr Deliu has reasonably arguable claims against the Police in judicial review and for misfeasance in public office and abuse of process, having regard to what is said to be evidence that one police officer intended to arrest Mr Deliu because he was taking complaints to the Independent Police Conduct Authority and taking private prosecutions against the Police.^[3] The Judge indicated that he would order security for costs should Mr Deliu continue to prosecute other causes of action which he found not reasonably arguable.^[4] It is evident that he accepted Mr Deliu’s conduct is in some respects vexatious. The Judge also accepted that Mr Deliu is unable to pay, meaning that an order for security would bring the proceeding to an end.^[5]
• [3] The proposed appeal would contend that the Judge was wrong to find Mr Deliu’s case reasonably arguable and failed to give weight to the fact that Mr Deliu is absent from the jurisdiction as a fugitive from justice,^[6] is conducting proceedings in a vexatious manner, and has failed to meet costs awards in other proceedings. It is said that the appeal meets the test for leave because there is a need for guidance from the Court of Appeal as to the relevance of these circumstances to the jurisdiction to order security for costs.
• [4] We are prepared to accept that the proposed appeal is capable of genuine and serious argument and has reasonable prospects of success. In particular, it is arguable that the Judge placed too much weight on the existence of an arguable claim, and not enough on the likelihood that it will end in a remedy justifying the litigation or the apparently oppressive manner in which the litigation is being conducted.
• [5] The question is whether the proposed appeal raises a matter of sufficient importance to warrant an interlocutory appeal.^[7]
• [6] As to that, our view is that the appeal does not require revisiting of settled law regarding the approach to be taken to security for costs where a plaintiff resides overseas.^[8] The trial Court has a discretion which is to be exercised by taking into account all the circumstances of the case, including the circumstances of the plaintiff’s absence from the jurisdiction, in arriving at a conclusion which does justice between the parties.^[9] A plaintiff’s vexatious conduct of a reasonably arguable proceeding may warrant security for costs on the ground that it puts the other party to unnecessary expense, but that too is a case-specific question.^[10] The Judge did not specifically take into account the failure to pay costs in other proceedings, but he did recognise that Mr Deliu is unable to pay security in this one; put another way, there is a high likelihood that any award of costs made in favour of the Police following trial will not be met. The circumstances of this case are uncommon.
• [7] We note the Police complain that Mr Deliu has continued, since the judgment under appeal, to conduct the proceeding in an oppressive and unreasonable manner. It is also not clear from the material before us whether he has persisted in claims which the Judge found were not reasonably arguable. These are not questions, however, for the present appeal. They are matters for the Judge managing the proceeding below. They may justify revisiting the decision to decline to order security, or a stay.
• [8] For these reasons we are not persuaded that the proposed appeal meets the test for leave, which is accordingly declined. We make no order as to costs.

Solicitors:
Crown Law Office, Wellington for First to Fifth Applicants

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^[1] Deliu v Chapman [2020] NZHC 2100.

^[2] Deliu v Johnstone [2021] NZHC 25.

^[3] Deliu v Chapman, above n 1, at [30].

^[4] At [17]–[18], [22] and [29].

^[5] At [5], [9] and [11].

^[6] Having been charged with assault with a weapon, he left the jurisdiction shortly before trial.

^[7] Lendlease Capital Services Pty Ltd v Arena Living Holdings Ltd [2020] NZCA 471 at [4], citing Moir v IHC New Zealand Inc [2018] NZCA 130, (2018) 24 PRNZ 45 at [6]; and Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

^[8] Aquaculture Corp v McFarlane Laboratories (1984) Ltd (1987) 1 PRNZ 467 (HC).

^[9] At 470.

^[10] A S McLachlan Ltd v MEL Network Ltd [2002] NZCA 215; (2002) 16 PRNZ 747 at [13] and [16].