Deliu v Attorney-General [2023] NZCA 524 (31 October 2023)

Last Updated: 15 April 2024

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

CA197/2023 [2023] NZCA 524

	BETWEEN	FRANCISC CATALIN DELIU Appellant
	AND	ATTORNEY-GENERAL First Respondent
	AND	NEW ZEALAND POLICE Second Respondent

Court:	Courtney and Katz JJ
Counsel:	Appellant in person TGH Smith for First and Second Respondents
Judgment: (On the papers)	31 October 2023 at 2.30 pm
Reissued:	9 April 2024 at 11.30 am

JUDGMENT OF THE COURT

1. The application for review is declined.
2. There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

• [1] When a notice of appeal is filed and served, r 33A(1) of the Court of Appeal (Civil) Rules 2005 requires a respondent to file a notice of appearance either within 10 days after the date on which the notice of appeal was served or within any extended time permitted under the Rules. If the respondent fails to do so the appellant is required to promptly notify the Registrar and to file an affidavit of service of the notice of appeal.^[1] A respondent who does not comply with r 33A(1) is not entitled to be served with notice of any step in the appeal or with copies of any further documents filed.^[2]
• [2] On 14 April 2023 Mr Deliu filed and served a notice of appeal.^[3] The respondents did not file a notice of appearance within the 10-day period specified in r 33A(2) but subsequently applied for an extension of time to do so. Miller J granted the application. Mr Deliu has applied for a review of Miller J’s decision.

Background

• [3] Mr Deliu’s appeal is brought against Brewer J’s decision dismissing an application for judicial review in which Mr Deliu challenged the decision to lay charges against him for assault with a weapon and attempting to pervert the course of justice.^[4]
• [4] Mr Deliu served the notice of appeal on a lawyer at Crown Law, Mr Gunn, who was the solicitor on the record for the respondents in the High Court. He also sent a copy to Mr Smith, who had appeared as counsel for the respondents in the High Court.
• [5] On 18 April 2023, four days after the notice of appeal had been filed and served, and in accordance with its usual practice, the Registry emailed Mr Deliu and Crown Law drawing their attention to (1) the requirement under r 33A(1) for the respondents to file and serve a notice of appearance and the effect of not doing so; (2) Mr Deliu’s obligation to pay security for costs within 20 working days; and (3) the requirement for the case on appeal and application for a hearing date to be filed within three months. However, the email to Crown Law was addressed to Mr Smith (who had been with Crown Law some years ago) at his old Crown Law email address. The address no longer worked. Neither Mr Smith, nor anyone at Crown Law, received the email.
• [6] By 3 May 2023, the respondents had not filed a notice of appearance. A Court Registry Officer emailed the parties. She noted that no notice of appearance had been filed and asked Mr Deliu to provide an affidavit of service in accordance with r 33A(3)(b). Mr Deliu promptly did so. He also requested a hearing date and added:

Please note that per the Rules the respondents in default are NOT to be served with either, so please do not forward either to them ...

• [7] On 3 May 2023, Mr Deliu filed an application to dispense with security for costs on the ground that since the respondents had taken no steps they must have elected not to defend the appeal and there was, therefore, no need for security for costs.^[5]
• [8] On 4 May 2023, the Court Registry Officer emailed both Mr Deliu and Mr Smith again (using the out-of-date email address), noting that no notice of appearance had been filed and advising that the respondents were no longer entitled to be notified of any step in the proceeding or to be served with copies of any further documents filed in the appeal.
• [9] The next day Mr Deliu wrote to the Registry in the following terms:

... I take the position that Mr Smith or any other counsel ought not be further communicated with, including e-mails.

Can [the Deputy Registrar] therefore make a summary decision dispensing security (as if the respondents will not be served, then patently they cannot participate in the appeal, rendering the need for security moot) and thereafter a hearing be set down as I have applied for?

I would appreciate if both could occur ASAP as the appeal can now be fast-tracked.

• [10] The Registry did not respond to this email. Instead, on 10 May 2023, a Deputy Registrar wrote to Mr Smith, using his current email address (to which Mr Deliu had referred in his affidavit of service) and drawing his attention to the fact that no reply had been received the Court’s previous emails. The email was copied to Mr Deliu, who responded with a reminder that the respondents were not to be served with any further materials and asking whether a decision had been made on his application to dispense with security for costs.
• [11] On 11 May 2023, Mr Smith filed a notice of appearance on behalf of the respondents with an accompanying memorandum seeking an extension of time for filing the notice of appearance. In his memorandum, he noted that the Registry had initially communicated with him using an out-of-date email address, but expressly (and properly) took responsibility for the failure to file a notice of appearance within the prescribed time.
• [12] Mr Deliu immediately asked to know details of the communications between the Registry and Mr Smith. He was advised that Mr Smith had been provided with information about the provisions in the rules for seeking an extension of time to file a notice of appearance. He was also asked whether he consented to the respondents’ application. Mr Deliu’s response expressed his strong dissatisfaction with the Registry’s steps in contacting Mr Smith. He did not consent to the respondents’ application to extend time.
• [13] On 14 May 2023, the Deputy Registrar advised that Mr Deliu’s application for security for costs would not be determined until a judge had first determined the respondents’ application for an extension of time. Mr Deliu responded expressing his unhappiness and concern that his security for costs application was not being determined immediately. However, no further steps were taken to advance his application to dispense with security for costs.
• [14] On 24 May 2023 Miller J made the following direction:

The time for filing an appearance under r 33A is extended to 11 May 2023. The default is due to Registry error.

Application for review

• [15] Mr Deliu seeks an oral hearing of his application for review. He argues that an oral hearing is required to both satisfy his right to natural justice and to preserve the appearance of justice in this case.
• [16] We do not accept that an oral hearing is either necessary or appropriate. Miller J made his decision pursuant to the power conferred by s 49(3) of the Senior Courts Act 2016. Mr Deliu’s right to seek a review of that decision arises under s 49(4). Under s 49(7)(b), unless this Court otherwise directs, the review must be conducted on the papers. The issues arising on Mr Deliu’s application for review are within a narrow scope and Mr Deliu has fully addressed the arguments in favour of the review. It would be an inappropriate use of scarce court resources to direct an oral hearing.
• [17] We therefore turn to the substance of Mr Deliu’s application for review. Mr Deliu asserts that:

(a) Miller J did not grant Mr Deliu an oral hearing and did not take into account the matters raised by Mr Deliu in his memorandum to the Court dated 23 May 2023.

(b) Miller J made an error of fact in saying that the respondents’ failure to file a notice of appearance was due to Registry error.

(c) The Registry’s error was, in any event, an irrelevant consideration because the Registry had no obligation to remind the respondents of the requirements of r 33A. Mr Deliu separately criticises the Registry’s conduct as partisan.

(d) The decision was unreasonable in that it appears that the reason why “Miller J whitewashed the Crown’s own acceptance of liability” was because Mr Deliu had argued that “even if [the respondents] were to be given an extension it ought to be on the basis that their entitlement to security for costs is waived due to the prejudice their delay has caused [him]”.

• [18] Mr Deliu seeks to have Miller J’s decision varied and suggests this be done by upholding the order for extension of time but balancing his interests by making the extension conditional on a dispensation of security for costs.
• [19] We accept that Miller J erred in taking the view that the respondents’ failure to file the notice of appearance was due to Registry error. The respondents’ counsel expressly acknowledged that the omission was his. He did not seek to place any responsibility on the Registry and nor could he have. We therefore turn to consider the respondents’ application for extension of time afresh.

Application for extension of time

• [20] The respondents’ application to extend time falls to be determined in accordance with the principles explained by the Supreme Court in Almond v Read.^[6] Where an error by counsel has led to non-compliance by a small margin and an extension of time is sought promptly on learning of the error, the application for extension of time will usually be dealt with as being a “minor slip-up” that would generally be granted.^[7] The ultimate question is what the interests of justice require. The factors to be taken into account are the length of the delay and the reasons for it, the conduct of the parties, any prejudice and the significance of the issues raised by the proposed appeal.^[8]
• [21] The length of time between the expiry of the time for filing and the application to extend time was eight days, which is properly viewed as a minor omission. The explanation given for the delay is oversight by counsel. Mr Deliu rejects this explanation on the basis that oversight by experienced counsel is implausible. There is, however, no reason to reject counsel’s explanation, which we do not find implausible.
• [22] We have no knowledge of what the conduct of the parties has been in this matter and treat that factor as neutral.
• [23] Mr Deliu asserts that he will be significantly prejudiced if an extension of time is granted on the basis that, had the Registry not drawn the respondents’ omission to counsel’s attention as it did, he would have been in a position to have his application for a dispensation of the security for costs determined on an unopposed basis. Whether the application for security for costs is opposed or not, it must be determined in accordance with the recognised principles that apply to a dispensation of security for costs.^[9] The Registrar should only dispense with security if they consider it is right to require the respondent to defend the appeal without the usual protection of security for costs.^[10] The discretion to dispense with security for costs should be exercised in a way which preserves access to this Court by an impecunious appellant in the case of an appeal that a solvent appellant would reasonably wish to prosecute; and prevents the use of impecuniosity to obtain the advantage of being able to prosecute an appeal that would not be sensibly pursued by a solvent litigant.^[11] However, if the respondent does not intend to defend the appeal then the issue of costs is arguably moot.
• [24] The final factor to consider is the significance of the issues arising on the appeal. In his application for judicial review Mr Deliu made allegations of bias by the police and bad faith on the part of both the police and the then Crown Solicitor. Brewer J began his decision with the observation that Mr Deliu had brought the judicial review application as a means of avoiding having to stand trial on the charges against him.^[12] He held that the alleged conduct of the police fell short of wrongdoing that would justify charges being struck out on a judicial review.^[13] The Judge also considered that there was no evidence to support the allegation of bad faith and that the pleading was improper and should not have been made.^[14] Mr Deliu’s grounds of appeal include that the Judge failed to consider his evidence and submissions, either properly or at all, and that the decision was irrational.
• [25] Allegations of bad faith against the police and a Crown Solicitor are serious matters. This is all the more so when they are found by the Judge to have been improperly made — and by an officer of the High Court, albeit one who is no longer practising in New Zealand.^[15] We accept that the Registry’s actions meant that Mr Deliu lost the opportunity to press his advantage. However, the overriding concern of this Court must be the interests of justice and in this case, we do not see the interests of justice would be served by precluding the respondents from participating in the appeal by reason of a minor delay caused by their lawyer’s oversight.
• [26] We therefore decline to set aside Miller J’s order granting the extension of time. We do not accept that the extension should be subject to any condition regarding security of costs. It is open to Mr Deliu to advance his application for dispensation in the usual ways.

Result

• [27] The application for review is declined.
• [28] The issue of costs was not raised and given the oversight of the respondents’ lawyer in complying with the Rules, costs would not be appropriate in any event. We make no order as to costs.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondents

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^[1] Court of Appeal (Civil) Rules 2005, r 33A(3).

^[2] Rule 33A(4).

^[3] Mr Deliu is living in the United States of America. All references herein to dates are by reference to the date documents were received in New Zealand.

^[4] Deliu v Attorney-General [2023] NZHC 512.

^[5] Rule 35(6).

^[6] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [37]–[38]. See Steinbauer v Steinbauer [2022] NZCA 297 where it was held that the principles stated in Almond v Read equally applied to applications for an extension of time to file a notice of appearance under r 33A.

^[7] At [37].

^[8] At [38].

^[9] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [21].

^[10] At [31].

^[11] At [35].

^[12] Deliu v Attorney-General, above n 4, at [1].

^[13] At [6].

^[14] At [24].

^[15] As the Judge noted at n 2 of Deliu v Attorney-General, above n 4, Mr Deliu previously held a practising certificate and practised as a barrister and solicitor. However, he remains on the roll of barristers and solicitors.