Deliu v District Court of New Zealand sitting at Auckland

[2021] NZHC 3185

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002472

[2021] NZHC 3185

UNDER

the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908

IN THE MATTER OF

proceedings moving for an application for judicial review, writs, civil and Bill of Rights Act claims and a petition for declaratory

relief

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff/Applicant

AND

ATTORNEY-GENERAL

Defendant/Respondent

AND

DEPUTY SOLICITOR-GENERAL (CRIMINAL)

Second Respondent

CIV-2021-404-000348

UNDER

the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908

IN THE MATTER OF

proceedings moving for an application for judicial review, writs, Bill of Rights Act claims and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff

AND

SOLICITOR-GENERAL

Defendant

CIV-2021-404-000390
UNDER	the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908

FRANCISC CATALIN DELIU v ATTORNEY-GENERAL [2021] NZHC 3185 [25 November 2021]

IN THE MATTER OF

proceedings moving for an application for judicial review, writs, Bill of Rights Act claims and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff

AND

DISTRICT COURT OF NEW ZEALAND SITTING AT AUCKLAND

Defendant

AND

ATTORNEY-GENERAL

Second Defendant

Hearing:	On the papers
Counsel:	Plaintiff /Applicant– self represented D J Perkins for the Defendants
Judgment:	25 November 2021

JUDGMENT OF NATION J AS TO COSTS

[1]    In these proceedings, and in particular the proceedings ending 348 and 390, the Court was required to determine three issues. On each of them, the Attorney-General and/or Solicitor-General was successful. In my judgment, I held the Attorney-General and/or the Solicitor-General were entitled to costs on a category 2B basis.1 Directions were made for the parties to file memoranda.

[2]    One of the issues on which the Attorney-General was successful was the Attorney-General’s application in the 390 proceedings for the Attorney-General to be joined as a defendant to the proceedings. The Attorney-General has not sought costs in relation to that application. The issue and the proceedings in respect of which the Solicitor-General seeks costs relate to the 348 proceedings and whether Crown Law should be disqualified from acting as counsel in those proceedings.

1      Deliu v Attorney-General [2021] NZHC 2246.

[3]As to that, the Solicitor-General sought costs on a 2B basis as follows:

Item	General civil proceedings	Days	$
Case Management
11	Filing     memorandum     for     subsequent     case management    conference    or    mentions    hearing (memorandum dated 28 May 2021)	0.40	956.00
13	Appearance    at    subsequent    case    management conference (CMC on 3 June 2021)	0.30	717.00
Interlocutory applications (including applications for summary judgment and for review of interlocutory decisions)
24	Preparation of written submissions (submissions dated 16 June 2021)	1.50	3,585.00
25	Preparation by applicant of bundle for hearing (bundle filed 22 June 2021)	0.60	1,434.00
26	Appearance at hearing of defended application for sole or principal counsel (23 June 2021)	0.25	597.50
Total	7,289.50

[4]The Solicitor-General had not sought payment of any disbursements.

[5]    Mr Deliu objected to an award of costs as to the filing of a case management memorandum. He said it did not have to be filed and, apart from two paragraphs, it related to the underlying substantive proceedings so that determination of costs as to this memorandum should be reserved pending final determination of the proceedings. Mr Deliu claimed the memorandum was not necessary because a memorandum had been filed at an earlier stage of the proceedings. Mr Deliu submitted that the $956 claimed in costs for this step in the proceedings was unreasonable.

[6]    The memorandum was of assistance to the Court, and indeed to Mr Deliu, in recording that Crown Law did not object to Mr Deliu raising the debarment issue by way of memorandum rather than a formal interlocutory application. The memorandum also helpfully proposed a revised timetable. Rule 14.8(1) of the High Court Rules 2016 states:

(1)   Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—

(a)must be fixed in accordance with these rules when the application is determined; and

(b)become payable when they are fixed.

[7]    Crown Law claims costs of $717 for 0.3 of a day for appearance at the case management conference on 3 June 2021. Mr Deliu says that conference took no more than 10 minutes.

[8]    The actual time of that telephone conference is not necessarily a true reflection of the time counsel has to set aside to be available for such a conference. The schedule sets out an allowance for attendances which, as a general rule, is appropriate to avoid the need for parties to address precisely what was involved with the particular step in the proceedings.

[9]    There was nothing unreasonable in Crown Law seeking costs in accordance with the schedule but, in the particular circumstances, the amount I allow for costs at step 11 is $478 and for step 13 is $358.

[10]   Mr Deliu did not make any specific criticism of the amount claimed for preparation of written submissions of $3,585 and I allow costs for that step accordingly.

[11]   Mr Deliu opposed any order of costs for preparation of a bundle of authorities for the hearing on the basis both parties had input into it and counsel had not referred to the bundle at the hearing.

[12]   Mr Deliu acknowledges that Crown Law were involved in preparation of the bundle. Counsel says Crown Law prepared the bundle. There were a substantial number of cases in the bundle. Preparation required Crown Law to consider all authorities that were in it. However, in the particular circumstances of this case, I consider half the normal allowance for this step is appropriate, being $717.00.

[13]   Crown Law seek costs for the actual hearing on the basis an allowance for 0.25 of a day is appropriate. The hearing on all matters began at 11.45 am. There was a break at 1.00 pm and the hearing reconvened after that break. An allowance for 0.25

of a day for the argument over this particular issue is reasonable. I allow costs for that appearance of $597.50.

[14]   Mr Deliu submitted there were three further grounds as to why the quantum of costs should be refused or rejected.

[15]   Firstly, he submitted, with reference to r 14.7, the proceeding concerned a matter of public interest and the party opposing costs acted reasonably in the proceeding.

[16]   I do not accept Mr Deliu’s submission that Walker J accepted this in her minute of 4 June 2021. In it, she said the three issues the Court had to consider raised constitutional issues of importance. I am concerned only with costs on the disbarment issue. In light of the submissions that were subsequently presented on this issue, I do not consider the issue as to whether the Solicitor-General could be represented by counsel from Crown Law was a matter of constitutional importance. I do not consider Mr Deliu’s objection as to that was reasonable. Walker J’s comment was not made when considering r 14.7 and was simply her reason for setting down all issues for a short hearing, rather than trying to determine the issues in the course of a list.

[17]   Secondly, with reference to r 14.7(f)(ii), Mr Deliu submitted this was an instance of a party “taking or pursuing an unnecessary step or an argument that lacks merit”. The step he referred to was the claim for costs in excess of the time actually spent on that step in connection with the costs application.

[18]   The steps for which Crown Law sought costs were not as to the costs the Solicitor-General was seeking. Crown Law were entitled to claim costs as per the schedule. The purpose of the schedule is to avoid parties having to justify costs on a time-spent basis. On occasions, this works to the disadvantage of the party claiming costs, sometimes to the advantage. The Court is left with a discretion as to whether costs should be awarded for a particular step as asked for. Where the amount awarded is less than those sought, that can appropriately be recognised by the Court not awarding costs for making the costs application. That is what I am doing here.

[19]   Thirdly, Mr Deliu says Crown Law has not actually incurred costs here. He suggested costs should be based on the rate of remuneration for counsel employed by Crown Law. In the absence of evidence as to the actual remuneration paid to Crown counsel, Mr Deliu suggested this should be based on the minimum wage for an eight hour work day (or $160) rather than the scheduled rate of $2,390 per day.

[20]   In McGuire v Secretary for Justice, the Supreme Court held that “the employed lawyer rule” recognised in Henderson Borough Council v Auckland Regional Authority is to be applied.2 That rule permits an employer to obtain an award of costs on a party and party basis where it is an employed barrister who has appeared and acted as counsel for his employer in the proceedings. That was effectively the situation with counsel from Crown Law appearing for the Solicitor-General in the proceedings that are before the Court.

Conclusion

[21]   I accordingly make an order in the 348 proceedings that Mr Deliu pay to the Solicitor-General costs in the total sum of $5,735.50

Solicitors:

D J Perkins, Crown Law, Wellington.

Copy to:
F C Deliu, Plaintiff/Applicant.

2      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55]; Henderson Borough Council v Auckland Regional Authority [1984] 1 NZLR 16 (CA).