Deliu v National Standards Committee (no 1)

[2013] NZCA 287

IN THE COURT OF APPEAL OF NEW ZEALAND

CA51/2013
[2013] NZCA 287

BETWEEN	FRANCISC CATALIN DELIU Appellant
AND	NATIONAL STANDARDS COMMITTEE (NO 1) First Respondent
AND	NEW ZEALAND LAW SOCIETY Second Respondent

Hearing:	22 May 2013
Court:	Ellen France, Wild and Ronald Young JJ
Counsel:	Appellant in person W C Pyke for Respondents
Judgment:	5 July 2013 at 2.30 pm

JUDGMENT OF THE COURT

No order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

1. The respondents have initiated disciplinary action against Mr Deliu, a legal practitioner.   In that context, the respondents made an originating application to the High Court for access to court documents.  The documents sought include pleadings and other materials drafted by Mr Deliu as counsel in a number of proceedings.

2. Mr Deliu opposed the application for access to these records.  He raised a number of interlocutory issues in the High Court in relation to the application, including discovery.  It was a critical plank of Mr Deliu’s argument on these issues that the respondents were acting in bad faith in taking disciplinary action against him.

3. In a judgment delivered on 13 December 2012, Toogood J dealt with the interlocutory issues.[1]  For these purposes, it is important to record that the Judge considered questions of the respondents’ motives were properly addressed in other, judicial review, proceedings Mr Deliu has filed in relation to the disciplinary action.   Mr Deliu appealed against Toogood J’s decision.  He also sought an interim stay of Toogood J’s decision pending the determination of his appeal.

   [1]National Standards Committee (No 1) v Deliu [2012] NZHC 3378.

4. We decided to hear the appeal in advance of the substantive hearing and did so on 22 May 2013.  The next day, 23 May, Toogood J delivered a further judgment.[2]  In that decision, the Judge said that he had since been assigned to hear the judicial review proceedings and so would be required to address Mr Deliu’s argument about the respondents’ motives in that context.  Toogood J considered there would be “no substantial further delay prejudicing the [respondents] … if the … judgment in the judicial review proceedings is delivered prior to or contemporaneously with the judgment on the application for access”.[3]  The Registrar was directed to convene a telephone conference to address whether the application for access should be heard with the judicial review proceedings.  The latter had a hearing date of 10–12 June 2013.  (We understand that the High Court hearing proceeded on 10 June 2013 and the application for access to court documents was heard contemporaneously.)

   [2]National Standards Committee (No 1) v Deliu (No 2) [2013] NZHC 1184.

   [3]At [19].

5. From Mr Deliu’s perspective, the approach reflected in the second judgment of Toogood J meant events had effectively overtaken the need for the appeal to this Court.  The appeal was accordingly abandoned.

6. The only remaining issue is costs and we now deal with that issue. 

An award of costs?

1. The respondents seek costs.  They say they have been put to cost in an appeal that was brought on with urgency, because Mr Deliu wanted interim relief.  Mr Pyke for the respondents says they would have agreed to have the appeal heard after the final judgment of the High Court was delivered.

2. Mr Deliu seeks costs against the respondents, or, in the alternative that costs lie where they fall.  If costs are ordered against him, he says that should be on a reduced scale.  He says essentially that the course ultimately followed in the High Court was the course he sought to achieve via the appeal.  The costs of the appeal could have been avoided if the respondents had not argued the point and instead consented, as they ultimately did, to that course.

3. We have decided that costs should lie where they fall.  We mean no disservice to the arguments set out in the parties’ memoranda on costs when we say we think the relevant factors can be shortly stated.  On the one hand, aspects of Mr Deliu’s appeal were not without merit.  On the other hand, the respondents have been put to cost in circumstances where that very shortly proved unnecessary.[4]  In these circumstances, it seems appropriate for each party to bear their own costs.  We accordingly make no order as to costs.

   [4]This illustrates the practical difficulties that may arise from hearing interlocutory appeals in advance of the substantive determination in the High Court.

Solicitors:
New Zealand Law Society, Wellington for Respondents