Deliu v National Standards Committee - [2023] NZHC 1606

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2016-404-2579

CIV 2017-404-0184

[2023] NZHC 1606

UNDER The Lawyers and Conveyancers Act 2006

BETWEEN

FRANCISC CATALIN DELIU

Appellant

AND

THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY

Respondents

Continued…

On the papers

Counsel:

The appellant in person

M Hodge for the Standards Committee respondents

Judgment:

27 June 2023

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 27 June 2023 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

DELIU v THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY [2023] NZHC 1606 [27 June 2023]

CIV 2017-404-0260

UNDER

The Judicature Amendment Act 1972

IN THE MATTER OF

An application for judicial review

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY

TRIBUNAL
First Respondent

THE NATIONAL STANDARDS COMMITTEE and AUCKLAND STANDARDS COMMITTEE 1 OF NEW ZEALAND LAW SOCIETY

Second Respondents

[1] In my judgment dated 17 May 2023,1 I declined Mr Deliu’s application to recall three judgments of Hinton J: a judgment rejecting his appeal and judicial review of decisions by the Lawyers and Conveyancers Disciplinary Tribunal, a judgment ordering Mr Deliu to pay costs, and a judgment declining Mr Deliu’s application for leave to appeal to the Court of Appeal. I held that the Standards Committees were entitled to costs.

[2] Earlier, in a judgment delivered on 10 August 2022,2 Paul Davison J had declined a related disclosure application filed by Mr Deliu. His Honour held the Standards Committees were entitled to costs on that application, but reserved costs until determination of the recall application.

[3]The parties have been unable to agree costs and have filed memoranda.

[4] Mr Deliu’s starting point is to oppose any order for costs on the basis that this Court is functus officio and so has no jurisdiction to award costs. He says that he has “unearthed” that he had filed a substantive appeal against the first of Hinton J’s decisions and his appeal was abandoned. He refers me to several authorities to the effect that once an appeal has been filed against a Court’s decision, that Court becomes functus officio and is unable to consider an application to recall the decision.

[5] I do not accept Mr Deliu’s submission. The question currently before the Court is whether to order Mr Deliu to pay costs, and if so how much, on two applications on which he was the unsuccessful party. Even if the Court was functus officio on one of those applications,3 the Standards Committees opposed both applications and each application was the subject of a hearing. That there may have been a further obstacle to Mr Deliu’s recall application does not mean that the Court is unable to exercise its ordinary costs jurisdiction.

1 Deliu v The National Standards Committee and Auckland Standards Committee No 1 of The…

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.

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Details

Case: [2023] NZHC 1606
Decision Date: 27 June 2023

CaseChat Overview and Summary

The case of Deliu v National Standards Committee and Auckland Standards Committee No 1 of the New Zealand Law Society involved the determination of costs incurred by the respondents in relation to various applications filed by the appellant, Francisc Catalin Deliu. The High Court of New Zealand was tasked with deciding the appropriate quantum of costs to be awarded to the respondents after Mr Deliu was unsuccessful in his attempts to recall certain judgments and seek disclosure of documents. The central issue for the court was whether the New Zealand High Court retained jurisdiction to order costs against Mr Deliu despite his contention that the court was functus officio due to a previously filed but subsequently abandoned appeal.

The court rejected Mr Deliu's argument that the court was functus officio and thus lacked jurisdiction to award costs. The court held that the mere existence of a prior appeal did not divest it of the authority to exercise its ordinary costs jurisdiction over the specific applications at hand. The court found that even if the appeal had rendered the court functus officio on one application, the fact that the respondents opposed both applications and that each application was the subject of a separate hearing meant that the court could still consider the costs issue. The court further reasoned that the presence of a potential obstacle to the recall application did not preclude it from exercising its jurisdiction to order costs.

In determining the quantum of costs, the court allowed two sets of costs for preparation of written submissions, despite Mr Deliu's argument that the submissions were substantially similar. The court found that the submissions were in fact different and thus justified separate costs. However, the court reduced the claimed time for appearances at the hearings from one full day to three-quarters of a day, due to the respondents' counsel acknowledging uncertainty over the duration of one of the hearings. Consequently, the court ordered Mr Deliu to pay $13,503.50 to the respondents.

Orders