Deliu v Johnstone

[2022] NZHC 1557

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1098

[2022] NZHC 1557

UNDER

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

IN THE MATTER OF

Bill of Rights claims and civil causes of action, proceedings moving for an

application for judicial review, writs of prohibition and injunctive relief and a petition for declaratory remedies

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff

AND

DAVID JOHNSTONE, MARK

HARBOROW and NICK FLANAGAN
First to Third Defendants

THOM CLARK
Fourth Defendant

NEW ZEALAND POLICE
Fifth Defendant

MIKE BUSH, STEPHEN PEAT, GILLIAN HOLLAND and TONI JORDAN

Sixth to Ninth Defendants

Judgment:

(On the papers)

1 July 2022

COSTS JUDGMENT OF HARLAND J

This judgment was delivered by me on 1 July 2022 at 3 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

DELIU v JOHNSTONE [2022] NZHC 1557 [1 July 2022]

Introduction

[1]        By my judgment dated 15 March 2022, I dismissed an application by the first, second and third defendants (the Meredith Connell parties) for orders under r 7.48 of the High Court Rules 2016 (HCR).1 The application sought that the sum of

$10,958.50, currently held on trust at the High Court in a separate proceeding involving Mr Deliu, be paid to the Meredith Connell parties in partial satisfaction of the costs awards made against Mr Deliu in their favour in this proceeding and in relation to three unsuccessful appeals to the Court of Appeal arising from it.

[2]        Mr Deliu, a litigant in person, now seeks costs. Costs are opposed by the Meredith Connell parties.

Legal Principles

[3]        In McGuire v Secretary for Justice, the Supreme Court confirmed that a successful litigant in person is entitled to recover disbursements, but not costs (the primary rule). An exception to this rule is that a litigant in person, who is also a lawyer, may recover costs (the lawyer in person exception).2

Submissions

Mr Deliu

[4]Mr Deliu advances his application for costs on four grounds.3

[5]        First, Mr Deliu submits that as an admitted barrister and solicitor of the High Court of New Zealand he is eligible for costs under the lawyer in person exception. While Mr Deliu does not hold a practising certificate, he says there is nothing in McGuire v Secretary of Justice that limits the lawyer in person exception to those holding practising certificates.

1      Deliu v Johnstone [2022] NZHC 467.

2      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55] and [88].

3      A fifth ground, that courts cannot by way of the common law deny Mr Deliu costs, was withdrawn.

[6]        Second, Mr Deliu submits that nothing in the HCR prohibits him from a costs award.

[7]        Third, Mr Deliu submits that the Rules Committee has voted in favour of a preliminary decision that litigants in person should be eligible for costs awards.

[8]        Finally, Mr Deliu submits that costs are ultimately discretionary, and that discretion should be exercised in his favour. Mr Deliu lists factors that he says support a costs award in his favour:

(a)he has practised law in New Zealand for about a decade and conducted this proceeding to the same level of competence as licenced counsel;

(b)the paramount reason he does not hold a practising certificate is because of “illegal” and “outright corrupt” actions by various state actors;

(c)he holds several academic qualifications in the field of law;

(d)this proceeding was in the interests of justice;

(e)this proceeding involved specialist legal knowledge; and

(f)he is the successful party.

The Meredith Connell parties

[9]        The Meredith Connell parties oppose costs on the basis that Mr Deliu does not fall within the lawyer in person exception as he does not hold a practising certificate.

[10]      The Meredith Connell parties rely on Deliu v Independent Police Conduct Authority, another costs decision involving Mr Deliu.4 In that case, Mr Deliu unsuccessfully argued that he fell within the lawyer in person exception and was

4      Deliu v Independent Police Conduct Authority [2022] NZHC 1411.

entitled to a costs award. Gault J found that the exception applies only to a lawyer entitled to practise.5

Discussion

[11]      I see no reason to depart from the finding by Gault J in Deliu v Independent Police Conduct Authority. That decision is consistent with Deliu v New Zealand Police, in which Duffy J held that Mr Deliu was not entitled to costs incurred after the date of his suspension from legal practice.6

[12]      In regard to Mr Deliu’s submission on the Rules Committee, I simply note that until the HCR are formally amended the position in McGuire stands.

[13]      Finally, while the Supreme Court in McGuire left open whether “exceptional circumstances” could warrant an exception to the operation of the primary rule,7 in these circumstances I am not persuaded this Court’s discretion should be exercised to depart from that rule.

Result

[14]Mr Deliu is not entitled to an award of costs.

[15]Mr Deliu is entitled to the disbursements of $50 as sought.

Harland J

Solicitors:

Meredith Connell (Auckland) for First to Third Defendants (Copy to Plaintiff in person)

5      At [7]–[8].

6      Deliu v New Zealand Police [2021] NZHC 1744 at [12].

7      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55].