Deliu v Johnstone [2021] NZCA 646 (2 December 2021)

Last Updated: 7 December 2021

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

CA70/2021 [2021] NZCA 646

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

Court:	French and Cooper JJ
Counsel:	Applicant in person N F Flanagan for First to Third Respondents No appearance for Fourth to Ninth Respondents
Judgment: (On the papers)	2 December 2021 at 9 am

JUDGMENT OF THE COURT

1. The application for recusal is declined.
2. The application dated 28 October 2021 for recall of this Court’s judgments of 26 July 2021 (Deliu v Johnstone [2021] NZCA 337) and 24 September 2021 (Deliu v Johnstone [2021] NZCA 488) is declined.

100. The applicant must pay one set of costs to the first to third respondents for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

• [1] On 26 July 2021 we delivered a judgment declining Mr Deliu’s application for leave to appeal a High Court decision ordering him to pay security for costs.^[1]
• [2] Mr Deliu then applied unsuccessfully for our judgment to be recalled. The judgment declining the recall application was issued on 24 September 2021.^[2] The judgment recorded that Mr Deliu had requested a different panel consider his recall application. He made that request on the grounds that having issued the judgment which he was seeking to recall, we should not be judges in our own cause. That request was declined, it being pointed out that for good reasons the generally accepted practice is that the panel who issued the judgment should determine the recall application.^[3]
• [3] On 28 October 2021 Mr Deliu filed a second application for recall of both judgments together with an application that we recuse ourselves.
• [4] We decline the application for recusal. The grounds of the application for recusal mainly relate to Mr Deliu’s dissatisfaction with our judgment of 26 July 2021. That is not a ground for recusal. The second is a mistaken assumption by him that because the composition of a panel for another appeal changed following his objection to our being on that panel, there must have been a recusal decision. There was in fact no recusal decision.
• [5] The application for recall is also declined. It does not raise anything new. We repeat what we said in our first recall judgment, that a recall is not an opportunity to re-litigate issues.^[4] None of the grounds for recall are made out.^[5]
• [6] The first to third respondents seek costs on these applications. There is no reason why costs should not follow the event. We accordingly order the applicant to pay one set of costs to the first to third respondents for a standard application on a band A basis together with usual disbursements.
• [7] The repeated applications filed by Mr Deliu are an abuse of process. We direct the Registry not to accept for filing any further applications for recall of this judgment, our judgment of 24 September 2021 and our judgment of 26 July 2021.^[6]

Solicitors:
Meredith Connell, Auckland for First to Third Respondents

---

^[1] Deliu v Johnstone [2021] NZCA 337.

^[2] Deliu v Johnstone [2021] NZCA 488 [First recall judgment].

^[3] At [3].

^[4] At [6].

^[5] Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

^[6] Court of Appeal (Civil) Rules 2005, r 5(1).