Deliu v Minister of Police
[2021] NZHC 2800
•20 October 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2483
[2021] NZHC 2800
UNDER THE the Judicial Review Procedure Act 2016, Part 30 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, civil and bill of rights claims and a petition for declaratory relief
BETWEEN
FRANCISC CATALIN DELIU
Applicant
AND
THE MINISTER OF POLICE
Respondent
Hearing: On the papers Appearances:
Applicant in person
D Jones and C N Tocher for the respondent
Judgment:
20 October 2021
JUDGMENT OF JAGOSE J
[Costs]
This judgment was delivered by me on 20 October 2021 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Solicitors:
Crown Law, Wellington
Copy to: Applicant
DELIU v THE MINISTER OF POLICE – Costs [2021] NZHC 2800 [20 October 2021]
[1] My 17 September 2021 judgment — dismissing Mr Deliu’s application for review as founded on claims to the Minister’s removal, reallocation and reconsideration by the police “without the scope of the Minister’s permissible ‘oversight’” — reserved costs for determination on the papers.1
[2]I noted:2
In my preliminary view — as the unsuccessful party in this averagely complex proceeding requiring counsel of average skill and experience, and in which a normal amount of time is considered reasonable for each step in the proceeding (excluding appearance at its hearing, for which no time is considered reasonable) — Mr Deliu should pay 2B costs to the Minister on each step in the proceeding excluding appearance at its hearing.
On that basis, the Minister seeks 2B scale costs in the amount of $10,516.00.
[3] Mr Deliu responds to say “not all the causes of action in my statement of claim have been adjudicated”, pointing to the Minister’s contended errors of law and fact and failure to have regard for the Commissioner’s responsibility to give effect to the Minister’s lawful directions. He therefore seeks recall of my judgment, and says an award of costs thus is premature. But he says the Minister’s claim for costs in any event purports to be made for ineligibly claiming police, is excessive in steps for issue of a statement of defence and on admission of facts, and without proof of litigation expenses incurred is invalid. He adds “[a]s the issue involves prima facie misconduct by Jagose J’s sister’s office”, I should recuse myself.
[4] As my judgment records,3 Mr Deliu’s prior requests for my recusal have been unsuccessful. Having now determined his claim, his present request is superfluous, and I reject it (but also as I previously dismissed).4
[5] So far as Mr Deliu’s grounds for recall are concerned, my substantive judgment found:5
1 Deliu v The Minister of Police [2021] NZHC 2458 at [9] and [12].
2 At [11].
3 At [2].
4 Deliu v The Minister of Police HC Auckland CIV-2020-404-2483, 16 September 2021 (Minute of Jagose J) at [3]–[4].
5 Deliu v The Minister of Police, above n 1, at [9].
Mr Deliu’s request for removal, reallocation and reconsideration determinedly is in relation to s 16(2)’s enforcement of the law in relation to him, the investigation and prosecution of those alleged offences, and decisions about individual police officers in doing so.
The necessary corollary of that finding is the Minister made no error, as I held. There is no ground for recall.
[6] Turning then to Mr Deliu’s opposition to the Minister’s costs claim, none of those grounds has substance either. There is no basis on which to separate the Minister from the agency for which he is responsible and in relation to which his decisions were sought to be reviewed. In any event, as Minister, he took the steps for which costs are claimed. There is no specific step of issue of a statement of defence; it necessarily is incorporated within “[c]ommencement of defence”.6 Further, scale costs do not bear segregated scrutiny of their individual steps’ application in fact.7 Rather, the unsuccessful party is liable to contribute to the successful party’s litigation expenses calculated in accordance with those applicable steps, subject only to the overriding requirement the calculation does not exceed actual expenses.8 I am satisfied from counsel’s assurance the calculation here does not.
[7]I order Mr Deliu pay the Minister costs in the amount of $10,516.00.
—Jagose J
6 High Court Rules 2016, sch 3.
7 Rule 14.2(1)(e).
8 Rule 14.2(1)(f).