Deliu v New Zealand District Court

[2024] NZHC 2276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2934

[2024] NZHC 2276

UNDER

the Judicial Review Procedure Act 2016, Part 30 of the High Court Rules 2016, 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, bill of rights claims and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

NEW ZEALAND DISTRICT COURT

First Respondent

THE CROWN

Second Respondent

Hearing:

On the papers

Counsel:

Applicant in person

D P Neild for Second Respondent

Judgment:

14 August 2024

JUDGMENT OF O’GORMAN J

[as to costs]

This judgment was delivered by me on 14 August 2024 at 12 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/counsel:

Crown Law, Wellington

Copy to:
Mr F C Deliu

DELIU v NEW ZEALAND DISTRICT COURT [2024] NZHC 2276 [14 August 2024]

[1]    On 25 June 2024, I issued a judgment declining Mr Deliu’s application for my recusal, and his application for relief1 in  respect  of  decisions  made  by  the  District Court about recusal applications and the procedure for determining Mr Deliu’s stay application dated 31 October 2023.2

[2]    I gave directions that if the parties could not agree costs, then the respondents could file memoranda within 15 working days and Mr Deliu could file his memorandum 15 working days later. I also noted that I would determine cost issues arising from Mr Deliu’s withdrawn injunction application, on which memoranda had already been filed.3

[3]    The second respondent has filed a memorandum dated 9 July 2024 seeking actual costs and disbursements incurred of $11,094.18, which are substantially less than the costs that otherwise would have been awarded on a 2B basis (calculated at

$16,730 for steps plus disbursements of $391.18). The memorandum records that the parties were unable to agree costs because Mr Deliu takes the position that the determination of costs should be deferred until the Court of Appeal has adjudicated his appeal of my recusal decision and/or the substantive decision. Mr Deliu did not file any memorandum himself.

[4]    The fact that an appeal has been filed is not, by itself, a reason to delay a costs decision which should still generally be determined promptly by the hearing judge.4  I do not accept there are any special grounds justifying any delay in this case.

[5]    The second respondent has sought actual costs in accordance with r 14.2(1)(f) of the High Court Rules 2016, in circumstances where those are less than scale costs. The second respondent was the successful party and is entitled to such costs in accordance with the principles set out in r 14.2.

1      Under s 11 of the Judicial Review Procedure Act 2016, proceedings for mandamus, prohibition or certiorari must be treated and disposed of as if they were an application for judicial review.

2      Deliu v New Zealand District Court [2024] NZHC 1693.

3 At [85].

4      See Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR14.2.01(7)]; and Tairua Marine Ltd v Waikato Regional Council [2006] NZRMA 485 (HC) at [14].

[6]I reject Mr Deliu’s claim against the first respondent for disbursement costs of

$19.90 on the withdrawal of his injunction application:5

(a)By analogy with r 15.23, the default position is that the applicant who withdraws an application is required to pay costs unless the court orders otherwise.6 Exceptions are based on an assessment of who was the successful party.7

(b)I accept the first respondent’s submissions that there is no proper basis for concluding that Mr Deliu was the successful party (i.e., that the District Court would have failed to set down a hearing if this proceeding had not been commenced). As I recorded in my judgment, in addition to the Court holiday period, the delay in timetabling for the stay application was mostly caused by Mr Deliu seeking an undefended fixture, and there is logic in the stay application being determined first (a permanent stay would make admissibility issues moot).

(c)Furthermore, costs (including disbursements) will usually only be awarded against a judicial officer or body in rare circumstances where the judicial officer/body acted perversely, oppressively, or in bad faith, calling for strong disapproval.8 I accept the second respondent’s submissions that such a threshold is not met on the facts, and this is not a case where a different result is required as matter of discretion.

5      These were sought in his memoranda dated 22 February 2024 and 8 March 2024.

6      Ip v Ip [2016] NZHC 528 at [16] and [19].

7      Obrecht v Earthquake Commission [2015] NZHC 555 at [25].

8      Coroner’s Court v Newton [2006] NZAR 312 (CA) at [44]; Xu v Manukau District Court [2013] NZHC 2312 at [10]–[12]; Prescott v District Court at North Shore [2018] NZHC 485 at [27]; and Greendrake v District Court at Invercargill [2021] NZHC 26 at [14] and [22]. Lagolago v Judicial Conduct Commissioner [2023] NZCA 423 is distinguishable on the facts (concerning the Judicial Conduct Commissioner, who is not a judicial officer) and did not overrule Coroner’s Court v Newton. In Deliu v Deputy Legal Complaints Review Officer [2024] NZHC 642 at [14], the Court noted that costs are ultimately a discretionary matter for the Court; such a discretion was exercised in Dunstan v North Shore District Court [2024] NZHC 1706 at [15]–[16].

Result

[7]    I award costs in favour of the second respondent against the applicant in the sum of $11,094.18.

O’Gorman J