Deliu v New Zealand Law Socirty

IN THE SUPREME COURT OF NEW ZEALAND

SC 59/2012
[2012] NZSC 90

BETWEEN FRANCISC CATALIN DELIU
Applicant

AND NEW ZEALAND LAW SOCIETY
Respondent

Court: McGrath, William Young and Chambers JJ

Counsel: Applicant in Person
P J Morgan QC for Respondent

Judgment: 30 October 2012

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

BThe applicant is to pay to the respondent costs of $2,500 plus all reasonable disbursements, to be fixed if necessary by the Registrar.

REASONS

Mr Deliu in his statement of claim against the New Zealand Law Society pleads 11 causes of action. Four seek judicial review of decisions made by the Society. The other seven causes of action are common law claims for damages and other relief.
In the High Court, Peters J, pursuant to r 10.4 of the High Court Rules, ordered that the four judicial review causes of action were to be tried separately from the other causes of action.[1] The Court of Appeal has affirmed that decision.[2]
[1] Deliu v New Zealand Law Society HC Auckland CIV-2010-404-6182, 4 November 2011.
[2] Deliu v New Zealand Law Society [2012] NZCA 359.
Mr Deliu seeks leave to appeal from that decision. In their submissions, the parties approached the question of leave on the basis that s 13(2) of the Supreme Court Act 2003 is the controlling provision. In fact, given Peters J’s decision was made “on an interlocutory application”, Mr Deliu was required to meet the more exacting standard imposed by s 13(4).[3] Notwithstanding that, we shall test the application against s 13(2) criteria.
[3] See Hamed v R [Leave] [2011] NZSC 27, [2011] 3 NZLR 725.
We are quite satisfied we should not grant leave. No substantive rights will be affected by the decision to split the claims. A r 10.4 decision is purely procedural; it is really just an aspect of case management. The proposed appeal does not raise a matter of general or public importance. There is no risk of a miscarriage of justice if the trials have to proceed as the High Court and the Court of Appeal have determined. We emphasise what this Court has previously said about the “proper reluctance of final courts of appeal to supplant the responsibility of the intermediate court of appeal in supervising trial practice, a responsibility that must be exercised with some expedition”.[4]
[4] Hamed, above n 3, at [13].
Mr Deliu also seeks leave to appeal against the costs order in the Court of Appeal. All parties in the Court of Appeal are potentially subject to costs orders if they lose. The fundamental principle of costs in the Court of Appeal’s civil jurisdiction is set out in r 53A(a) in the Court of Appeal (Civil) Rules 2005:
the party who fails with respect to an appeal should pay costs to the party who succeeds
If Mr Deliu wished to submit that, if he lost, he should not have to pay costs, he was required so to submit in his substantive submissions filed in advance of the appeal.[5] He made no such submission. The Court of Appeal was fully entitled to make a standard costs order in favour of the winner. The costs argument Mr Deliu now seeks to run does not raise a matter of general or public importance. There has been no miscarriage of justice.
[5] Court of Appeal (Civil) Rules, r 41(1)(c).
We dismiss the application for leave to appeal. Mr Deliu having failed on this application, he must pay costs to the Society, which we fix in the sum of $2,500.

Solicitors:
Glaister Ennor, Auckland, for Respondent

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mr. Francisc Catalin Deliu filed an application for leave to appeal against decisions made by the New Zealand Law Society. The Society sought judicial review of certain decisions, which led to a series of legal proceedings involving both judicial review claims and common law claims for damages. The case was initially heard in the High Court, where the judge ordered that the judicial review claims be tried separately from the other claims. This decision was later affirmed by the Court of Appeal. Mr. Deliu sought leave to appeal this procedural decision to the Supreme Court, as well as the costs order made by the Court of Appeal.

The legal issues before the Supreme Court were whether the application for leave to appeal should be granted under section 13(2) or section 13(4) of the Supreme Court Act 2003, and whether the costs order in the Court of Appeal was appropriate. The Court noted that the decision to split the claims was procedural and did not affect any substantive rights. The Court also found that the proposed appeal did not raise a matter of general or public importance, and that there was no risk of a miscarriage of justice if the trials proceeded as determined by the lower courts. Furthermore, the Court found that Mr. Deliu's argument regarding the costs order did not raise a matter of general or public importance, as he had not made the necessary submissions in his substantive appeal.

The Supreme Court dismissed the application for leave to appeal and ruled that Mr. Deliu must pay costs to the New Zealand Law Society. The Court fixed the costs at $2,500 plus all reasonable disbursements, to be determined by the Registrar if necessary. The Court emphasised the importance of the intermediate court of appeal supervising trial practice and the final courts of appeal exercising restraint in supplanting this responsibility. The Court also highlighted the fundamental principle of costs in the Court of Appeal’s civil jurisdiction, which states that the party who fails with respect to an appeal should pay costs to the party who succeeds.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established