Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal

[2023] NZHC 3089

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1683

[2023] NZHC 3089

UNDER

the Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908, the common law and equity

IN THE MATTER

of proceedings moving for an application for judicial review, writs, bill of rights claims and a petition for declaratory relief

BETWEEN

FRANCIS CATALIN DELIU

Plaintiff/Applicant

AND

THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY

TRIBUNAL
First Defendant/Respondent

Continued over

Hearing:

On the papers

Counsel:

Self-represented Plaintiff/Applicant

M J Hodge for the New Zealand Law Society as Contradictor

Judgment:

2 November 2023

COSTS JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 2 November 2023 at 11 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

DELIU v NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2023] NZHC

3089 [2 November 2023]

AND

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

Second Defendants/Respondents

Solicitors:           Meredith Connell, Auckland Counsel:  M J Hodge, Auckland

Copy for:           Plaintiff/Applicant

[1]                 I issued a judgment in this matter on 9 February 2023.1 In that judgment, I dismissed Mr Deliu’s application for judicial review and concluded by saying:

[76]     The  contradictor  is   entitled  to  costs.    The parties may submit memoranda in the absence of agreement.

[2]The contradictor is the New Zealand Law Society (“NZLS”).

[3]Jagose J appointed NZLS as such by minute of 5 November 2021.

[4]                 Following delivery of my judgment, Mr Hodge, counsel for NZLS, filed a memorandum of 7 March 2023 in which he noted that, in appointing NZLS as contradictor, Jagose J had referred to Shand v Legal Complaints Review Officer, a decision of Palmer J.2 In particular, Mr Hodge referred me to a passage in [15] of Shand in which Palmer J observed that, on such an appointment, he did not consider NZLS would be subject to, or eligible for, an award of costs. That said, Mr Hodge went on to submit that, at the very least, Palmer J’s statement must be subject to the Court’s discretionary power to award costs if a case was truly exceptional. Mr Hodge submits that this is such a case, given the basis on which the application was brought.

[5]                 If I accepted that was so, Mr Hodge said NZLS sought costs totalling $9,799, these being calculated on a 2B basis for attendances it was understood Mr Deliu did not dispute as arising in the proceeding (others were disputed apparently), but noting what he understood to be the latter’s opposition to any award at all, based on Shand.

[6]                 Since then, I have received an application and memorandum in support from Mr Deliu of 24 April 2023; a further memorandum from Mr Hodge of 4 May 2023; and memoranda from Mr Deliu of 11 and 15 May 2023.

[7]                 As it happens, I consider it unnecessary to address the various submissions that have been made and, in particular, the Court’s power or the lack thereof to award costs to a contradictor. That is because, having gone back and reviewed Jagose J’s minute recording NZLS’s appointment, I do not consider it would be proper to award any

1      Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2023] NZHC 160.

2      Shand v Legal Complaints Review Officer [2019] NZHC 3105.

costs against Mr Deliu in this case. That is because I consider Mr Deliu would have been entitled to assume that he would not be at any risk of an award of costs against him on this application, given that Jagose J expressly referred to Shand in his minute.

[8] Given that conclusion, I consider the appropriate course would be for me to recall the judgment, and delete [76]. I ask Mr Deliu and Mr Hodge to file brief memoranda as soon as possible (ideally before 4pm, 6 November 2023) if they have any objection to that course, or wish to suggest another.

Peters J