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 work undertaken in preparation for the substantive hearing. The respondents do however seek costs and disbursements totalling $2,246.65 for responding to the applicant’s 24 November 2022 interlocutory application.

1      Deliu v Flanagan & Ors [2022] NZHC 2621.

2      Deliu v Flanagan & Ors [2023] NZHC 777.

[7]                 In a further memorandum dated 3 May 2023, the applicant opposes the respondents’ application for costs on the interlocutory application. He says that while he could in theory apply for an order for costs in respect of the respondents’ withdrawn application for costs, as a gesture of good faith he abandons his costs application in relation to the substantive hearing and submits that costs on his interlocutory application should lie where they fall.

[8]                 As both the applicant and the respondents have abandoned their respective applications for costs in relation to the substantive hearing, no order for costs is necessary, and I accordingly make no order for costs in respect of the proceeding determined by my Judgment of 12 October 2022.

[9]                 In his memorandum of 3 May 2023, the applicant comments that “there has to be an end to this litigation”, and he seeks a resolution of the issue of costs on the interlocutory application so as to bring the proceeding to a conclusion and so that the Court file can be closed.

[10]             Having regard to the history of this proceeding, I agree with the applicant that the appropriate resolution of the issue of costs in respect of his unsuccessful interlocutory application determined by my judgment of 17 April 2023 is that there be no order for costs. I accordingly decline to make an order for costs in favour of the respondents in respect of the applicant’s unsuccessful interlocutory application, and in respect of that application costs will lie where they fall.

[11]             In the result I make no order for costs either in respect of the substantive proceeding or in respect of the applicant’s interlocutory application dated 24 November 2022.

Paul Davison J