Deliu v Flanagan - [2023] NZHC 777

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1714

[2023] NZHC 777

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:

17 April 2023

JUDGMENT OF PAUL DAVISON J

[Re: Application for Recusal and Other Applications]

This judgment was delivered by me on 17 April 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 777 [17 April 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] On 12 October 2022 I delivered a judgment in this matter in which I dismissed all of the applicant’s causes of action, directed the parties to file costs memoranda, and said that upon receipt of the costs memoranda I would determine costs on the papers.1

[2] By interlocutory application dated 24 November 2022, Mr Deliu (the applicant) applies for:

(a)an order that I recuse myself with regard to the determination of costs;

(b)a direction that a transcript of the hearing on 25 May 2022 be prepared and provided to the parties ahead of an oral hearing of the recall application;

(c)an order that the judgment be recalled; and

(d)in the event of the recall application being declined, an order amending the timetable directions in the judgment directing the filing of costs memoranda by the parties.

[3] By Notice of Opposition the second to sixth respondents (the respondents) oppose the applications for: recall of the judgment; my recusal as the Judge to determine costs; and for a transcript of the hearing. The grounds on which the respondents oppose the applications for recall and recusal are that none of the grounds relied on by the applicant meet the requisite criteria for recall,2 or recusal.3

The application for recusal

[4] The applicant’s grounds for the application for recusal are that the directions in the judgment requiring the parties to file costs memoranda, amount to a predetermination of costs.4 The relevant paragraphs of the judgment read:

1      Deliu v Flanagan [2022] NZHC 2621.
2      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
3      Justice G J Venning “High Court recusal guidelines” (12 June 2017) Courts of New Zealand
<courtsofnz.govt.nz>.
4      Deliu, above n 1, at [125].

[125] The second to sixth respondents having succeeded at the hearing are entitled to an award of costs.

…

[128] Upon receipt of the parties’ costs memoranda in accordance with…

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 777
Case: [2023] NZHC 777
Decision Date: 17 April 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Deliu v Flanagan involved an applicant, Francis Catalin Deliu, who sought judicial review, writs, bill of rights claims, and declaratory relief against several respondents, including Nicholas Fraser Flanagan and others. The proceedings were heard on the papers, with the applicant representing himself and the respondents represented by counsel. The case was decided by Justice Paul Davison on April 17, 2023. The applicant sought several orders, including recusal of the judge from determining costs, a transcript of the hearing, recall of the judgment, and an amendment to the timetable for filing costs memoranda.

The legal issues before the court were whether the judge should recuse himself from determining costs, whether the judgment should be recalled, and whether a transcript of the hearing should be provided. The applicant argued that the directions in the judgment requiring the parties to file costs memoranda amounted to a predetermination of costs and that the trial was fundamentally and fatally flawed, requiring recall of the judgment. The respondents opposed the applications, arguing that none of the grounds met the requisite criteria for recall or recusal.

The court found that the directions in the judgment did not indicate a predetermination of costs and that none of the criteria for recusal applied. The court also determined that the applicant's grounds for recalling the judgment did not meet the criteria for recall, as the issues had already been considered and determined. The court held that an oral hearing was not necessary, and declined to direct the preparation of a transcript of the hearing. The court did, however, amend the timetable for filing costs memoranda to enable the parties to file and serve their costs memoranda, following which the court would determine costs on the papers.

In conclusion, the High Court dismissed all of the applicant's applications and directed the parties to file their costs memoranda in accordance with the amended timetable. The court emphasized the importance of adhering to the principles of natural justice and the criteria for recall and recusal, and highlighted the need to avoid unnecessary litigation and the misuse of court resources.

Orders