Deliu v Deputy Legal Complaints Review Officer

[2024] NZHC 642

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002063

[2024] NZHC 642

UNDER

the Judicial Review Procedure Act 2016, Part 30 of the High Court Rules 2016, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908 and common law

IN THE MATTER OF

proceedings moving for an application for judicial review, writs, bill of rights claims, and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

THE DEPUTY LEGAL COMPLAINTS REVIEW OFFICER

Respondent

Hearing:	On the papers
Judgment:	22 March 2024

JUDGMENT OF WALKER J

[Application to recall]

This judgment was delivered by me on 22 March 2024 at 11.30 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

DELIU v THE DEPUTY LEGAL COMPLAINTS REVIEW OFFICER [2024] NZHC 642 [22 March 2024]

[1]                 This Court issued judgment upholding Mr Deliu’s application for judicial review against the respondent.1 This was the third judicial review sought by Mr Deliu against the respondent arising from the same disciplinary process. The respondent was excused from attending the hearing after advising that he abided the decision of the Court.

[2]                 The judgment recorded that costs were to  lie  where  they  fall  given  that  Mr Deliu is a self-represented non-lawyer for the purposes of costs and given the position of the respondent to abide the decision of the Court. However, it also held that Mr Deliu is entitled to reasonable disbursements in relation to the filing of the application for review.

[3]                 The respondent seeks recall of the judgment in respect of the issue of reasonable  disbursements.  It  filed  memoranda  dated  28  November  2023  and  20 December 2023 in support of recalling the judgment. The stated grounds for recall are:

(a)Although abiding the decision of the Court, the respondent had earlier filed a notice of appearance dated 2 October 2023 reserving the right to be heard on questions of costs, in reliance on r 5.50 of the High Court Rules 2016 (HCR).

(b)It was not invited to be heard on costs.

(c)Had it been given the chance to be heard on costs, the respondent would have drawn the Court’s attention to an established line of authority which holds that, as a matter of principle, costs and disbursements are only awarded to successful applicants for judicial review of quasi- judicial bodies in exceptional cases.

[4]                 Mr Deliu responded noting that the claim to disbursements amounted to $100; characterising the application as a trivial waste of the Court’s time; submitting that the

1      Deliu v Deputy Legal Complaints Review Officer [2023] NZHC 3340 (re-issued 28 November 2023).

Court was entitled to award disbursements given that costs are discretionary and noting that no formal recall application had been made. He also referred to Lagolago v Judicial Conduct Commissioner, a recent Court of Appeal decision which he submits overturns the authority relied on by the respondent.2 Mr Deliu declined to engage further but submitted that, should the Court wish to engage, it ought to appoint amicus curiae (counsel assisting the Court) to enable full argument from both sides.

Preliminary

[5]                 A hearing is an unnecessary and inefficient use of court resources. I decline to appoint counsel to assist for the same reason. There is also nothing in the argument that the respondent has not made a formal application. Uncomplicated recall requests are commonly dealt with based on a formal memorandum. The respondent has filed a substantive memorandum and reply memorandum, and Mr Deliu has elected not to engage further. I therefore proceed to determine the matter on the papers.

Recall principles

[6]                 Rule 11.9 of the HCR provides that a judge may recall a judgment any time before it is sealed. The rule does not specify what it empowers a judge to do or on what basis a judgment may be recalled but it is well recognised that it is a serious step to be taken in reasonably well identified situations. The overarching objective is reconciliation of the broad ends of justice and the desirability of finality.

[7]                 The leading authority is that of Wild CJ in Horowhenua County v Nash (No 2).3 That case describes three categories of cases in which a judgment not perfected may be recalled. The only potentially apposite ground here is the third ground, namely where there is a special reason that justice requires that the judgment be recalled. This is intended to be a narrow category. The Court of Appeal has said that recall is not an appropriate means of correcting an error but is for “demonstrable, material defects that speak for themselves”.4

2      Lagolago v Judicial Conduct Commissioner [2023] NZCA 423.

3      Horowhenua County v Nash (No 2) [1968] NZLR 632.

4      Erwood v Maxted [2020] NZCA 537 at [8].

[8]                 I accept that overlooking the respondent’s reservation of rights to be heard on costs would constitute a plain mistake entitling recall if costs had been ordered. The respondent would have been entitled to be heard.   But  “costs” were not in issue.   Mr Deliu had no entitlement to costs as a litigant in person as lay litigants are generally not entitled to recover costs. However, a lay litigant is generally entitled to recover disbursements.5 The respondent argues that disbursements are a head of costs and for the same reasons that it had an entitlement to be heard on costs, it was entitled to be heard on any question of disbursements.

[9]                 The Court of Appeal case of Coroner’s Court v Newton held that costs against a judicial officer or judicial institution are awarded only in the rarest of circumstances, such as where the officer acted perversely, oppressively or in bad faith.6 It said:7

The question is not whether the applicant is in some sense “deserving” of costs

– in a large sense, such a person often will be. The critical point is that the order for costs is an expression of disapproval of the conduct of the judicial officer in character. There must be a clear basis for such an order.

[10]              The Court did not address the distinction, if any, between costs and disbursements. In Greendrake v District Court at Invercargill Dunningham J held that the default position of non-recovery of costs extends to an award for disbursements.8

[11]              Since both Newton and Greendrake the United Kingdom (UK) Supreme Court addressed the issue of the protected status of public bodies when unsuccessful in litigation. The UK Supreme Court said that there was not a general starting point that public bodies are protected from costs awards because of a potential chilling effect on their future participation in litigation.9

[12]              The recent Court of Appeal decision of Lagolago concluded that the appellant’s partial success on challenging the extent of the Commissioner’s jurisdiction should have received recognition in the form of a costs order, reflecting the public interest

5      Attorney-General v Taylor [2019] NZSC 18 at [3], citing McGuire v Secretary for Justice [2018] NZSC 116 at [55] and [88].

6      Coroner’s Court v Newton [2006] NZAR 312 at [44].

7 At [46].

8      Greendrake v District Court at Invercargill [2021] NZHC 26 at [20] citing Prescott v District Court at North Shore [2018] NZHC at [12] and [80].

9      Competition and Markets Authority v Flynn Pharma Ltd [2022] UKSC 14.

that exists.10 The Court was not prepared to assume that an award of costs might make the Commissioner reluctant in future to assist the Court with submissions.11

[13]            There is a good argument that if a body has exercised its statutory powers wrongly, the financial burden should not fall on the person who has had to expose the wrongfulness.12 There is also an available argument that there is a distinction between costs and disbursements for the purposes of applying the ‘threshold’ in Newton.

[14]              It is, however, unnecessary to determine whether and to what extent the Court of Appeal has moved away from the strictures of Newton, or indeed whether Newton intended to include out of pocket expenses in its determination as to the incident of costs. I say so because the circumstances of the present case in which Mr Deliu has successfully (or partially successfully) judicially reviewed decisions of the respondent three times in the same proceeding arising out of the same set of facts, takes the case outside the default position, even if Newton remains good law. The unusual circumstances provide a clear basis for making an award of disbursements and the examples set out in Newton are not comprehensive. The underpinning “chilling effect” doctrine is not engaged and further, costs are ultimately a discretionary matter for the Court, subject to the provisions of the Senior Courts Act 2016.

[15]              In sum, I find that the recall application has no substantive merit as, even if granted, it would not change the outcome.

[16]Accordingly, I decline the application.

............................................................

Walker J

10     Lagolago v Judicial Conduct Commissioner, above n 2 at [28].

11 At [28].

12     Sheltering Public Bodies from Costs [2022] NZLJ 237.