Deliu v National Standards Committee

[2018] NZHC 2171

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002579 CIV-2017-404-000184

CIV-2017-404-000260 [2018] NZHC 2171

BETWEEN

FRANCISC CATALIN DELIU

Appellant

AND

NATIONAL STANDARDS COMMITTEE AND AUCKLAND STANDARDS

COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY

Respondents

On the papers
Judgment:	23 August 2018

COSTS JUDGMENT OF HINTON J

This judgment was delivered by me on 23 August 2018 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel:

Philip Morgan QC, Hamilton

Party:
The Appellant in Person

FRANCISC CATALIN DELIU v NATIONAL STANDARDS COMMITTEE AND AUCKLAND STANDARDS COMMITTEE 1 OF THE NEW ZEALAND LAW SOCIETY [2018] NZHC 2171 [23 August 2018]

Introduction

[1]                 This judgment deals with costs orders in respect of Mr Deliu’s unsuccessful appeal against decisions of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal and his similarly unsuccessful application for judicial review in respect of those decisions.

[2]                 On 25 September 2017, subject to a minor modification, I dismissed Mr Deliu’s appeals against the Tribunal’s decisions regarding liability, penalty and costs, and his application for judicial review. I also dismissed the Law Society’s cross-appeal regarding the appropriate penalty.

[3]I reserved costs and directed filing of memoranda.

[4]                 A number of memoranda were filed at the end of last year. The last of these was filed by Mr Deliu, which was outside my directions, but I accept there were points not addressed in Mr Morgan’s original submission.

[5]                 In his memoranda, Mr Deliu sought to be heard briefly as to costs. However, on the basis of subsequent memoranda to which I refer in a separate Minute, I take it he accepts costs should be dealt with on the papers and in any event, that is what I consider appropriate.

Law Society costs claim

[6]In a very succinct memorandum, Mr Morgan seeks:

(a)	The whole of the costs payable on CIV-2016-404-2579 (Schedule 1)	$26,314.00
(b)	One half of the costs on CIV-2017-404-184, to take into account Mr Deliu’s success in opposing the cross-appeal (Schedule 2)	$4,348.50
(c)	One half of the costs on Mr Deliu’s unsuccessful application for judicial review CIV-2017-404-260 (Schedule 4)	$3,456.50

(d)	Disbursements (Schedule 5)	$1,955.19
TOTAL	$36,074.19

Costs on the appeal against liability – CIV-2016-404-2579

[7]                 This is Mr Deliu’s appeal against liability. Mr Deliu was the unsuccessful party and is liable for costs. Mr Deliu objects to the claims in respect of case management, saying there never was any case management conference and the memoranda were drafted jointly. He also objects to allowance for second counsel, saying the case is not complex and it cannot be justified on the basis of document organisation.

[8]                 Mr Morgan says that there was a scheduled case management conference, preparation for it, and a memorandum filed, albeit joint. With regard to second counsel, he says this was required due to the sheer volume of the case on appeal, which was not in good order. He said that second counsel’s part was to assist senior counsel managing the disorganised paperwork.

[9]                 The Law Society is entitled to claim for the case management conference attendances and it is not a significant amount.

[10]              As Mr Deliu submits, certification for second counsel is based on the complexity of the proceeding. A consideration of the complexity of a case extends to include factual complexity. While I do not consider the appeal was legally complex, it was factually complex, particularly in terms of the procedural background. This is illustrated by the fact that the hearing ran for five days. There was a significant burden of managing a very large number of documents, which I am satisfied required the assistance of a second counsel who had detailed experience with them.1 I am prepared to certify for second counsel.

1      See Specialised Structures New Zealand Ltd v Findlater Construction [2016] NZHC 1752 at [8].

[11]              On CIV-2016-404-2579, I therefore order that Mr Deliu is to pay costs to the Law Society, in accordance with Schedule 1 attached to the Law Society’s submissions, of $26,314.

Costs on the appeal against penalty – CIV-2017-404-184

[12]              This is Mr Deliu’s appeal against penalty, in respect of which the Law Society cross-appealed. Although the Law Society cross-appealed, the appeal was fundamentally the same, with each party just seeking a different outcome. The Law Society’s cross-appeal involved little in the way of extra submissions or time. I therefore consider the Law Society’s approach of dividing the costs in relation to the penalty appeal in half, and making an order against Mr Deliu as to 50 per cent is reasonable. Standing back and looking at the costs then sought of $4,348.50, I certainly consider that fair. The costs calculation in the first place allows only for the additional time that resulted from the appeal against penalty, and therefore no allowance for appearance time.

[13]              I reject Mr Deliu’s submission that no time should be allowed in respect of the penalty appeal for preparation of written submissions because three days had already been allowed for submissions with regard to the liability appeal. (I suspect, looking at his submissions, that Mr Deliu is actually referring to the liability and the judicial review proceedings which, I agree, would not merit a double-time award). There were completely separate and lengthy submissions prepared (and required) for each of the liability and penalty appeals. I consider there is no question that each appeal should be allowed three days’ preparation time, as each would have involved materially more time to prepare than that.

[14]              On CIV-2017-404-184, I therefore order that Mr Deliu is to pay costs to the Law Society, in accordance with Schedule 2 attached to the Law Society’s submissions, of $4,348.50.

Costs on judicial review – CIV-2017-404-260

[15]              The Law Society was successful in this judicial review proceeding, except as to a relatively minor modification.

[16]              The Law Society has taken the approach of claiming time for commencement of the defence, preparation for the first case management conference, filing memorandum for the first case management conference, appearance at mentions hearing or call-over and no other time, that other time being effectively already captured in the appeal against the decision of the Standards Committee.

[17]I agree with that approach and consider the costs claimed to be reasonable.

[18]              On CIV-2017-404-260, I therefore order that Mr Deliu is to pay costs to the Law Society, in accordance with Schedule 4 attached to the Law Society’s submissions, of $3,456.50.

Disbursements

[19]              The disbursements sought of $1,955.19 were not contested and appear fair and reasonable. I make an order accordingly requiring Mr Deliu to pay such an amount to the Law Society.

Conclusion

[20]              In total, therefore, there is an order for costs and disbursements to be paid by Mr Deliu to the New Zealand Law Society in the sum of $36,074.19.

[21]              An order is also made permitting the respondents in CIV 2016-404-2579 and CIV-2017-404-184 to uplift the security for costs.

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Hinton J