Deliu v Attorney-General

[2024] NZHC 1622

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-108

[2024] NZHC 1622

UNDER

the Judicial Review Procedure Act 2016, Part 30 High Court Rules 2016, 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

FRANCISC CATALIN DELIU

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing:

On the papers

Appearances:

Applicant in person

D Harris for the Respondent

Judgment:

19 June 2024

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 19 June 2024 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors:

The Applicant

Ms D Harris, Crown Law, Wellington

DELIU v ATTORNEY-GENERAL [2024] NZHC 1622 [19 June 2024]

[1]                 My judgment of 14 December 2023 dismissed Mr Deliu’s application for judicial review and indicated that the respondent was entitled to costs.1 I indicated that, if costs could not be agreed, I would receive memoranda not exceeding three pages within 20 working days and determine costs on the papers.

[2]                 The respondent filed its costs memorandum on 4 March 2024, acknowledging its late filing but submitting there was no prejudice to Mr Deliu. Mr Deliu sought a hearing to deal with the preliminary issue of whether the respondent was to be given an extension of time. In my minute of 8 March 2024, I indicated that a hearing on that preliminary issue was unnecessary.2 I directed that Mr Deliu was to file and serve a memorandum on costs, including any opposition to an extension of time, and I would then determine the issues on the papers, likely in a single decision. Mr Deliu filed a response on costs dated 27 March 2024.

[3]The respondent claims costs on a 2B basis plus disbursements, totalling

$12,791.64.

[4]                 Mr Deliu submits that costs must be refused because the Court is functus and any lis ended on 2 February 2024 (the 20th working day from judgment). Alternatively, he submits that costs should be refused as otherwise the administration of justice would be brought into disrepute due to the appearance that the Attorney- General was not minded to seek costs and only did so to retaliate against Mr Deliu’s appeal against the substantive judgment. He also submits that counsel for the respondent is wrong in her assertion that he is not prejudiced on the basis he has a right of appeal. In addition, he submits there are otherwise grounds to refuse or reduce costs, particularly that no actual costs have been incurred, the proceeding was novel and so in the public interest, items claimed were not incurred, and lack of responsible co-operation from a model litigant.

1      Deliu v Attorney-General [2023] NZHC 3695 at [48] and [49].

2      Deliu v Attorney-General HC Auckland CIV-2022-404-108, 8 March 2024 (Minute).

[5]                 The Court is not functus in relation to costs merely because the respondent’s memorandum was filed late. The Court has already determined in the substantive judgment that the respondent is entitled to costs. The direction in that judgment related to the filing of memoranda and determination of the quantum of costs on the papers if costs could not be agreed. The question now is whether an extension of time should be granted to consider the respondent’s memorandum of 4 March 2024.

[6]                 Extensions of time are not uncommon. The respondent’s delay of approximately one month has been explained. It was due to oversight given the Christmas vacation and focus in the new year on preliminary matters for Mr Deliu’s appeal against the substantive judgment. It is also common for costs to be addressed after an appeal has been filed. I do not accept the appearance is that the Attorney- General was not minded to seek costs and only did so to retaliate against Mr Deliu’s appeal.

[7]                 Since Mr Deliu has been granted an extension of time to address the respondent’s memorandum, there is no prejudice in that regard. As for other prejudice, Mr Deliu refers to the minute of the Court of Appeal in Siemer v Legal Complaints Review Officer, indicating there may be a jurisdictional issue as to whether leave to appeal was required in that case.3 In the event, in that case the Court of Appeal confirmed recently that leave to appeal was required.4 However, that case concerned costs arising out of an interlocutory decision. Here, the costs arise out of a substantive decision.

[8]                 Also, the need for an extension of time does not make a costs decision in this case interlocutory (with no right of appeal). As the Court of Appeal’s recent decision in Siemer v Legal Complaints Review Officer indicates, not all costs decisions are interlocutory. Nor do costs need to be claimed in a statement of defence.

[9]Extension of time is granted.

3      Siemer v Legal Complaints Review Officer CA226/2022, 11 February 2023 (Minute).

4      Siemer v Legal Complaints Review Officer [2024] NZCA 219.

[10]              It is common ground that scale costs cannot be awarded above the quantum of costs actually incurred. This claim was defended on behalf of the senior Law Officer, the Attorney-General. Counsel for the respondent has advised that invoices are not issued by Crown Law for this work, but Crown Law has incurred costs nonetheless, and paid disbursements. She advised that Crown Law’s costs and disbursements in relation to this matter are just over $32,000. Full disclosure of Crown Law’s time records is unnecessary. The amount incurred is well above the scale costs claimed. Scale costs may be claimed even though invoices are not issued by Crown Law for this work on behalf of the senior Law Officer.

[11]              I do not consider that costs should lie where they fall or be reduced in the public interest on the basis that the issues raised were novel. The grounds of review lacked merit. The defence was conducted responsibly. The respondent has not claimed for preparation of the affidavit filed.

[12]Mr Deliu also contests particular items claimed:

(a)Mr Deliu submits he is not liable for the aborted December 2022 hearing before Wylie J as the stay issue was raised by the Court. It is true that the Court raised an issue as to whether it was an abuse of process for Mr Deliu to raise what seemed to be substantially the same issues in multiple proceedings, given the separate proceeding that had been heard by Brewer J (as set out in my substantive judgment at [15]). I consider that the amounts claimed for preparation and attendance at the earlier hearing (0.25 days in each case) should be allowed.

(b)Mr Deliu disputes the claim for preparation of the common bundle, which he says was never served although he acknowledges receipt of a draft index. I have not located a common bundle on the Court file. Given that and the modest documentation involved, I disallow this item (0.5 days or $1,195) while acknowledging that some time was no doubt spent preparing the index.

Result

[13]Mr Deliu is to pay the respondent 2B costs and disbursements totalling

$11,596.64.

Gault J