Deliu v Flanagan - [2023] NZHC 1066

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1714

[2023] NZHC 1066

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

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

NICHOLAS FRASER FLANAGAN

First Respondent

Cont:/

Hearing: On the papers

Counsel/ Representation:

Applicant in person

D Jones and T Li for Second to Sixth Respondents

Judgment:

5 May 2023

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 5 May 2023 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Law Office, Wellington

DELIU v FLANAGAN [2023] NZHC 1066 [5 May 2023]

AND
GILLIAN HOLLAND

Second Respondent

AND

ANTONY McKENZIE

Third Respondent

AND

JAMES CASSIN

Fourth Respondent

AND

TONI JORDAN

Fifth Respondent

AND

THE NEW ZEALAND POLICE

Sixth Respondent

[1] At the conclusion of my judgment dated 12 October 2022 in which I dismissed all of the applicant’s causes of action, I directed the parties to file memoranda regarding costs, set a timetable for the parties to file and serve their memoranda, and said that upon receipt of the costs memoranda I would determine costs on the papers.1

[2] On 24 November 2022 the applicant by interlocutory application, applied for orders: that I recuse myself from determining costs; that I recall my judgment; and that I direct the preparation of a transcript of the hearing on 25 May 2022 to be provided to the parties ahead of an oral hearing of the application for recall of my judgment. By Judgment dated 17 April 2023 I dismissed the applicant’s interlocutory application, and made an order amending the timetable direction for the filing of costs memoranda contained in my Judgment of 12 October 2022.2

[3] The parties having now filed costs memoranda, this judgment determines the issue of costs.

[4] In his interlocutory application of 24 November 2022, the applicant said that he disputes having any liability to pay costs to the respondents, and said he would seek an award of costs in his favour on the grounds that he had achieved success in relation to a significant part of his judicial review claim in which he sought mandamus relief even though his application for judicial review was dismissed.

[5] The applicant filed a costs memorandum dated 1 May 2023 in which he opposed an award of costs being made against him and sought an award of costs in his favour on the grounds that he is the party who had been substantially successful.

[6] By memorandum dated 3 May 2023, counsel for the second to sixth respondents oppose the applicant’s application for costs, but say that the respondents themselves do not seek an award of costs in respect of the substantive hearing or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deliu v Flanagan

Details

AGLC: Deliu v Flanagan [2023] NZHC 1066
Case: [2023] NZHC 1066
Decision Date: 5 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Deliu v Flanagan involved the applicant, Francisc Catalin Deliu, who sought judicial review, writs, bill of rights claims, and declaratory relief against the first respondent, Nicholas Fraser Flanagan, and several other respondents. The proceedings began with a substantive application for judicial review which was dismissed by the court. Following this, the applicant made an interlocutory application seeking recusal of the judge, recall of the judgment, and preparation of a hearing transcript. This interlocutory application was also dismissed.

The central legal issue the court had to decide was the allocation of costs between the applicant and the respondents. The applicant argued that he should not be liable for costs and that he should be awarded costs as he had achieved partial success in his judicial review claim. The respondents, on the other hand, opposed the applicant's costs application but did not seek costs for the substantive hearing. They did, however, seek costs for responding to the interlocutory application. The court considered the history of the proceeding, the conduct of the parties, and the nature of the interlocutory application in determining the costs.

The court reasoned that both the applicant and the respondents had abandoned their respective applications for costs in relation to the substantive hearing, rendering any order for those costs unnecessary. As for the interlocutory application, the court determined that it was appropriate to decline making an order for costs in favour of the respondents, allowing costs to lie where they fell. The court's decision was influenced by the overall history of the litigation and a desire to bring the proceeding to a close. Consequently, the court made no order for costs either in respect of the substantive proceeding or the interlocutory application.

Orders