Deliu v Hong - [2013] NZHC 1119

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-006349 [2013] NZHC 1119

BETWEEN FRANCISC CATALIN DELIU Plaintiff

ANDBOON GUNN HONG Defendant

Hearing: 4 & 5 October 2012
(with submissions on costs filed 23 April 2013 and 2 May 2013) (Heard at Auckland)

Appearances: F C Deliu (Plaintiff/Applicant) in person
A D Banbrook for Defendant/Respondent at hearing but B G Hong in person on costs issues

Judgment: 16 May 2013

INTERIM JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to costs]

Introduction

[1] On 12 April 2013 I delivered two judgments in this proceeding, one in relation to the defendant’s application to strike out the claim and the other in relation to the plaintiff’s application for a strike out order or further particulars.1

[2] The defendant’s strike out application was unsuccessful. The plaintiff’s strike out application was also unsuccessful, but his application for an order as to further and better particulars was successful. Costs were reserved.

1 Deliu v Hong [2013] NZHC 735; Deliu v Hong [2013] NZHC 736.

The entitlement to costs

Lawyers acting for themselves

[3] Mr Deliu is a practising barrister.

[4] He invites me to apply the approach which has been taken by courts in relation to costs in numerous cases in which he has been a litigant. In addition to the cases cited by Mr Deliu, Mr Deliu’s application for costs is supported by the judgment of the Court of Appeal in Brownie Wills v Shrimpton.2 In the judgment of
Gault and Blanchard JJ, it is stated:3

The long-established rule is that, as an exception to the general rule denying costs to a litigant in person, a practising barrister and solicitor who brings or defends a proceeding in person or by a partner or employee of the firm is entitled to the same costs as when acting on behalf of a client.

[5] Their Honours referred to English and New Zealand cases which had upheld that rule. They then referred to a decision of the High Court of Australia in which the majority had demurred from the exception, viewing the old English authority which the New Zealand Court of Appeal had adopted as being “somewhat anomalous”.4 Gault and Blanchard JJ said in relation to that:5

The High Court of Australia has cast some doubt on this exception (Cachia v Haynes (1994) 179 CLR 403 at p 412) but, not having been asked to reconsider the question, we do not depart from the practice of allowing costs to a solicitor/litigant.

[6] The observations in the Court of Appeal indicate that that Court may be open to reconsidering the costs position in a later case, upon full argument.

[7] There may also be argument as to the scope of the self-represented lawyer rule. The references in Brownie Wills v Shrimpton are to a “practising barrister and solicitor” and to a “solicitor/litigant”. The references do not directly refer to the
position of a barrister sole. A policy distinction may exist between barristers sole

2 Brownie Wills…

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 Hong

Details

AGLC: Deliu v Hong [2013] NZHC 1119
Case: [2013] NZHC 1119
Decision Date: 16 May 2013

CaseChat Overview and Summary

The case of Deliu v Hong was heard in the High Court of New Zealand in Auckland. The plaintiff, Francis Catalin Deliu, represented himself and sought a variety of remedies against the defendant, Boon Gunn Hong. The plaintiff's claims included defamation, malicious prosecution, and abuse of process. The court had to decide on the defendant's application to strike out the plaintiff's claim and the plaintiff's application for a strike out order or further particulars. Both applications were unsuccessful, but the plaintiff's application for further and better particulars was successful.

The primary legal issues before the court were whether the plaintiff, a practising barrister, was entitled to costs and if so, to what extent. The court considered whether the plaintiff was entitled to the same costs as if he had been represented by another lawyer. The court also considered the specific costs provisions of the Defamation Act 1992 and the High Court Rules. The court found that the plaintiff, as a self-represented lawyer, was entitled to costs in accordance with the established rule, which allows a practising barrister to be awarded costs when acting in person. The court also found that the specific provisions of the Defamation Act, which override the general rules of the High Court Rules, meant that the court must award the defendant's costs if the plaintiff's claim was deemed grossly excessive and the plaintiff was awarded a lesser amount. The court concluded that the usual rule of costs following the event should apply.

The court ordered that the plaintiff would receive the costs of both the plaintiff’s application for a strike out order and further particulars and the defendant’s application for an order striking out the plaintiff’s claim. The costs would be awarded on a 2B basis, meaning the plaintiff would receive costs for both sides of the case where he was successful and one side where he was unsuccessful. The plaintiff was also to receive his disbursements under rule 14.12 of the High Court Rules, subject to rule 14.12(3). The court reserved its decision on the specific items of costs and disbursements to be allowed, pending further submissions from the parties. The plaintiff was required to file a schedule of the items claimed and the quantums within 10 working days, with the defendant having five working days to respond if disagreeing with any element of the plaintiff's costs or disbursements calculations. Upon receipt of the parties' submissions, the court would fix the costs and disbursements on the papers.

Orders