Deliu v Police
[2021] NZHC 1744
•12 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2016-404-2150
[2021] NZHC 1744
BETWEEN FRANCISC CATALIN DELIU
Plaintiff
AND
NEW ZEALAND POLICE
Defendant
Hearing: 24 February 2021, Final submissions 5 March 2021. Counsel:
Mr F C Deliu the Plaintiff in Person via AVL
D J Perkins and A P Lawson for the Defendant via AVL
Judgment:
12 July 2021
JUDGMENT OF DUFFY J
[on defendant’s application for stay of execution of judgment; and plaintiff’s application for costs and disbursements]
This judgment was delivered by me on 12 July 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Counsel/Solicitors:
F C Deliu, Barrister, Auckland Crown Law Office, Wellington
DELIU v NEW ZEALAND POLICE COSTS [2021] NZHC 1744
[1] The defendant applies for either a stay of execution of this Court’s decision delivered on 24 September 2020 (the substantive judgment) or in the alternative interim relief pending determination of the respondent’s appeal against the substantive judgment.1
[2] The successful plaintiff applies for costs for the period in which he was a practising lawyer in New Zealand and was representing himself in this proceeding under the “lawyer in person exception”.2
Stay
[3] I consider a stay of execution is the appropriate approach to the defendant’s request for this Court to restrain the plaintiff from pursing enforcement of the substantive judgment.
[4]The defendant seeks to have stayed:
(a)A direction the defendant provides the plaintiff with a written apology; and
(b)An order the defendant pays the plaintiff $3,000 in public law compensation.
[5] As to the compensation order, the parties are to be congratulated on the responsible stance each has taken to achieve a measure of agreement. The plaintiff currently owes the defendant approximately $5,000 following a costs award made by Muir J at an interlocutory step in this proceeding (the Muir J costs award).3 The parties agree that, pending appeal, the $3,000 public law compensation awarded to the plaintiff can be set-off against the Muir J costs award. The plaintiff therefore owes the defendant approximately $2,000, as the balance of that award. The parties also agree that if the defendant’s appeal succeeds the set-off will be undone.
1 Deliu v Police [2020] NZHC 2506.
2 Deliu v Chapman [2020] NZHC 2100 at [7].
3 The material available to me puts this figure at $5,001.65.
[6] The direction ordering an apology for the arbitrary detention of the plaintiff is novel. At the stay hearing I asked the parties if they were able to find any analogous case law in relation to defamation or any other proceedings in New Zealand, the United Kingdom, Canada or Australia that addresses the question of whether there should be a stay of an order directing an apology.4 Neither party was able to find any such case law. The defendant’s counsel submits this may be because at least in New Zealand a Court order to apologise is not a remedy available under the Defamation Act 1992. Section 35(2)(a) of that Act refers to the power of a Judge presiding at a conference to make orders giving effect to an agreement between the parties for a voluntary apology.
[7] The plaintiff argues that the apology should not be stayed. The Independent Police Conduct Authority (IPCA) informed the plaintiff, by letter dated 30 October 2020 (the IPCA letter), that it had received the substantive judgment, and noted the award of public law damages and the apology direction. It further stated:
Police will contact you to obtain a bank account for deposit of the funds. Police advise the formal apology and payment of compensation should be completed within six weeks.
This outcome is inconsistent with the notice of appeal the defendant filed a week prior on 22 October 2020 (the NOA). The payment and apology promised by the IPCA letter have not materialised, hence the stay application.
[8] The plaintiff contends that the statements in the letter from the IPCA mean the defendant is now estopped from obtaining a stay and is bound by the statements made in that letter. The plaintiff argues that the defendant must have advised the IPCA of its intentions before the letter was written. Therefore, the defendant is now either bound by those intentions (as expressed in the IPCA letter) or must own to misleading the IPCA.
[9] I acknowledge the two positions stated in the NOA and the IPCA letter are incongruent. However, I am in no position to determine whether the defendant has
4 The plaintiff found a decision from a New South Wales Tribunal responsible for oversight of the conduct of police officers in that Australian state. The Tribunal apologised on behalf of the NSW Police Service. That is quite different from the present case. See Russell v Commissioner of Police New South Wales Police Service [2001] NSWADT 32 (26 February 2001).
taken a different and/or misleading stance before the IPCA. It is understood that the defendant is entitled to appeal decisions of this Court. How it conducts itself before the IPCA is between itself and that authority. Therefore, I am not persuaded that the defendant is estopped from seeking to stay the apology order.
[10] In my view, issuing a written apology is an irretrievable act. Once the written apology is given, the plaintiff would be free to publish it. Should the Court of Appeal find that this Court erred in directing the defendant to make an apology, it is difficult to see how the defendant could enjoy the full benefit of its success on appeal if the contested apology was out in the public domain. I accept the defendant’s submission that the appeal would be nugatory if the defendant were required to make the apology now. If the apology order is upheld on appeal it can be made following delivery of the appeal judgment. While the plaintiff may suffer some harm if the apology is delayed, the potential harm to the defendant if the apology is made now but the order is quashed on appeal would, in my view, be greater. The plaintiff relies on Keung v GBR Investment Ltd in which a stay was sought to prevent enforcement of a costs award.5 The Court of Appeal upheld French J’s refusal to grant a stay and in doing so approved the Judge’s comment that the fact an appeal is rendered nugatory is not determinative.6 However, that case is distinguishable on the facts.7
[11] Accordingly, I direct that the order to provide the plaintiff with a written apology is to be stayed until the Court of Appeal delivers its judgment on the defendant’s appeal.
Costs
[12] The plaintiff was successful in the substantive judgment and I see no reason to depart from the general principle that costs should follow the event. The plaintiff’s ability to recover costs is, however, delimited by his suspension from legal practice by the New Zealand Law Society (NZLS) on 31 January 2017. Accordingly, he does not qualify for an award of costs from that date onwards.
5 Keung v GBR Investment Ltd [2010] NZCA 396.
6 At [20].
7 The appellant argued if he was required to pay the costs award he would become bankrupt which would render the appeal nugatory.
[13] Peters J categorised costs in this proceeding as category 2 in consent orders made on 16 November 2016.
Defendant’s submissions on costs
[14] The defendant is now represented by Crown counsel, who addressed the Court orally on the costs argument at the hearing. The written submissions on costs were filed earlier by the defendant’s former solicitors, Meredith Connell.
[15] In the written submissions, the defendant submitted that all steps should be categorised as Band A, because the claim as properly formulated (arbitrary detention) was straightforward and simple. I disagree. While not especially complex, the proceeding had the level of complexity that generally places civil proceedings in Band B. Counsel for the defendant responsibly accepted at the hearing that category 2B is the default presumption, and only exceptional circumstances displace this presumption.
[16] The defendant submits that Downs J has already ruled on costs for the defendant’s strike out application, and therefore these costs cannot be revisited. I agree.
[17] In the written submissions the defendant also submits the plaintiff cannot claim costs relating to repleading the statement of claim (including filing fees). It says this was only necessary because the original claim was improperly pleaded. I regard this argument as overly simplistic. I shall return to this later when I deal with the costs the plaintiff claims for preparing the notice of proceeding and statement of claim.
[18] The defendant initially sought proof the plaintiff held a practising certificate up to the date of suspension. However, the defendant, now represented by different counsel, responsibly abandoned this stance at the hearing.
Plaintiff ’s submissions on costs
[19] The plaintiff’s claim is limited to costs incurred before 31 January 2017, as noted above.
[20] The claim for costs begins with the steps the plaintiff took on 31 August 2016 when he brought an urgent oral application before Edwards J at this Court for an injunction to restrain the police search being conducted that day at level 7, 175 Queen Street, Auckland CBD. The plaintiff says he commenced research and preparation for the claim around 11.15 am. At around 1 pm he appeared before Edwards J who was Duty Judge on an urgent oral application for an injunction to stop the police search. Taking prompt legal action in response to suspected unlawful conduct by the defendant, purportedly exercising police powers, would have required considerable thought, effort, and presence of mind. The plaintiff’s presentation at the first appearance (on a without notice basis) caused Edwards J to order a further appearance on a Pickwick basis at 3.00 pm when counsel for the defendant was required to appear. Edwards J issued a detailed minute dated 1 September 2016 (the Edwards J minute), following the second appearance. It covers complex issues relating to the management of legally privileged material that may have come into possession of the defendant on an allegedly unlawful basis.
[21] For 31 August 2016, the plaintiff claims for his initial attendance, preliminary research, contacting the High Court, arranging to appear, the first (without notice) appearance and the second (Pickwick basis) appearance. In all, the plaintiff claims for
¾ of a day at the then rate of $2,230 per day (category 2B) which comes to $1,672.50. I consider a claim for ¾ of a day at category 2B is reasonable in the circumstances; it reflects the need for an urgent response, and the time and trouble involved in acting under such pressure.
[22] For a memorandum dated 5 September 2016 the plaintiff seeks Band A, which as per the scale rate at the time comes to $296.8 I can find no record of this memorandum on the court file. However, I note that the Edwards J minute at [9](b) and (c) directs the plaintiff to file further documents to court on or before 5.00 pm, Monday 5 September 2016.9 These documents were to be delivered in a sealed envelope to the registry. It may be therefore that the reference to the memorandum of 5 September 2016 is in compliance with the direction made in the Edwards J minute.
8 This works out per schedules 2 and 3 as 0.2 of $1,480.
9 The Court file available to me only records documents filed from 22 September 2016, although it does contain the Minute Edwards J issued on 1 September 2016. The urgent character of the first steps taken may have led to an earlier file being opened.
There is nothing on the court file to suggest there was non-compliance with this direction. Accordingly, I am prepared to accept that a 5 September 2016 memorandum was provided in compliance with Edwards J’s direction, and therefore grant $296 costs.
[23] For a memorandum dated 22 September 2016, the plaintiff seeks costs at Band B. The document is on the file and I agree that costs can be claimed. I consider Band A is more appropriate for this memorandum, which brings the costs to $296.
[24] For the preparation of a statement of claim and notice of proceedings dated 29 September 2016, the plaintiff seeks costs at Band B ($6,690). I am satisfied the plaintiff is entitled to those costs for the reasons set out below.
[25] As noted above at [17], the defendant’s written costs submissions argued that the plaintiff should not be awarded costs for the original statement of claim because it was ultimately struck out by Downs J.10 I reject that submission. Here the plaintiff claims costs for preparing and filing a notice of proceeding and the original statement of claim as part of the commencement of the proceeding. This step requires something more than simply drafting a statement of claim. Moreover, the statement of claim that Downs J only partially struck out was the amended statement of claim dated 30 November 2016.11 Downs J never considered, and therefore passed no comment on, the original statement of claim.
[26] I do not find the original statement of claim objectionable. It is a cleaner and more concise pleading than the amended statement of claim which was struck out by Downs J. The original statement of claim pleads arbitrary detention and false imprisonment in relation to the plaintiff (at the time he was the third plaintiff).12 Enough is said in that pleading to put the defendant on notice as to the case it had to meet. I acknowledge that the plaintiff failed to prove the element of “total restraint”13 for the false imprisonment claim at trial. This outcome turned in part on the Court’s assessment of the evidence. Moreover, whether his detention was a total restraint for
10 S v New Zealand Police [2017] NZHC 1060.
11 S v New Zealand Police, above n 9, at [11].
12 Mr Deliu was the third plaintiff in this proceeding.
13 Deliu v New Zealand Police [2020] NZHC 2506 at [232].
the purpose of a claim in false imprisonment was a mixed question of fact and law, and could not have been predicted by the plaintiff. The third claim that went to trial, misfeasance in public office, was not pleaded earlier on and is therefore irrelevant to the present consideration.
[27] Downs J criticised the amended statement of claim as “poorly pleaded and partially buried by scatter gun pleading”.14 That pleading is more verbose than the original statement of claim .15 I do not consider the Judge’s criticisms can readily be applied to the original statement of claim, which while not perfect was not as bad as many other statements of claim that come before this Court. Further, despite the criticisms that the Judge made of the amended statement of claim he did not strike out the plaintiff’s claim for arbitrary detention. The defendant received costs for its success on the strike out application, which provided some compensation it for the trouble of responding to the amended statement of claim. Thus, I see no basis for using the strike out judgment to deny the plaintiff the usual costs for commencing a proceeding.
[28] I am satisfied that what is an orthodox claim for category 2B costs for the commencement of this proceeding warrants an orthodox response. There is nothing about this step in the proceeding that warrants departure from the usual approach. I therefore award costs as sought of $6,690.
[29] The file shows a joint memorandum dated 3 November 2016. A minute of Peters J dated 7 November 2016 refers to counsels’ memoranda of 19 October and 3 November 2016. The Judge records an afternoon telephone conference attended by the plaintiff and counsel for the defendant. I cannot find the 19 October 2016 memorandum to which the Judge refers. The 3 November 2016 memorandum is a consent memorandum prepared by counsel for the defendant. Although this cost is not sought in the plaintiff’s written submissions, I consider the plaintiff is entitled to a single allocation of Band A costs for the appearance at the telephone conference and
14 S v New Zealand Police, above n 9, at [47]
15 The amended statement of claim dated 30 November 2016 was filed in response to an application from the defendant for further and better particulars. As sometimes happens, the response was a statement of claim that included evidence and argument rather than particulars.
his contribution to the 3 November 2016 consent memorandum, which comes to a total of $296.16
[30] For a draft memorandum dated 11 November 2016, the plaintiff seeks Band B costs. He says this draft eventually became a consent memorandum. Unfortunately, the only relevant memorandum I can find on the court file is a consent memorandum dated 15 November 2016 prepared by the defendant. However, the plaintiff may well have contributed to some extent to the material included in that joint memorandum. Pursuant to the joint memorandum, Peters J issued a minute dated 16 November 2016 which made orders sought on the papers and excused the parties from appearing at the conference scheduled for 17 November 2016. In such circumstances, rather than give the plaintiff costs at Band B for his draft memorandum dated 11 November 2016, I award costs at Band A for his contribution to the consent memorandum dated 15 November 2016, reduced by 50 per cent to recognise his partial contribution. This reduces the costs allocation to $148.
[31] For preparation for the initial case management conference before Peters J on 17 November 2016, the plaintiff seeks Band B costs. However, as noted above, Peters J excused that parties from appearing and made orders on the papers and pursuant to the joint memorandum. No further award of costs is appropriate for this event.
[32] For filing an amended statement of claim dated 30 November 2016, the plaintiff seeks a half day at Band A. He also seeks costs at Band B for a notice of opposition dated 19 January 2017. Both these matters are connected with the strike out application heard by Downs J. I do not consider the plaintiff should be entitled to costs for this statement of claim, given its fate. Nor do I consider the plaintiff is entitled to costs for filing a notice of opposition to the strike out application. That latter action comes within the umbrella of the costs award made by Downs J against the plaintiff.
[33]The above findings result in an award of total costs of $9,398.50.
16 This is 0.2 of $1,480.
Disbursements
[34] The plaintiff claims disbursements for filing fees paid pursuant to the High Court Fees Regulations 2013, and other reasonable disbursements. These amounts are broken down as follows.
[35] The plaintiff seeks $540 for the commencement of the proceeding, which includes filing the notice of proceeding and the original statement of claim dated 29 September 2016 at the concessionary rate for judicial review proceedings. He is entitled to this disbursement.
[36] The plaintiff seeks $110 for filing the amended statement of claim dated 30 November 2016. For the same reasons as I declined to award costs for this amended statement of claim I also decline the claim for its filing fee.17
[37] The plaintiff claims the filing fee for a notice of opposition dated 19 January 2017 to oppose the strike out application. For the same reason I refused costs for the preparation of this notice I refuse to allow the claim for the filing fee.18 Nor do I consider the plaintiff is entitled to the $50 sought for sealing the order made by Downs J on the strike out application on 1 August 2017. I do not see the necessity of the plaintiff taking this step.
[38] The plaintiff seeks disbursements of $110 each for filing fees for an amended statement of claim dated 18 July 2017, and a further amended statement of claim dated 14 November 2017. I consider he is entitled to those disbursements. They post-date the judgment of Downs J which partially struck out the 30 November 2016 amended statement of claim. I see no reason why the plaintiff should not be entitled to recover those fees.
[39] The plaintiff also seeks $1,000 to cover general disbursements, including photocopying, preparing bundles of authorities and documents, and other miscellaneous costs, at a rate of $250 for every year the litigation was on foot. The defendant in the written costs submissions objected to this approach and sought
17 See [29] herein.
18 See [29] herein.
evidence of the plaintiff’s actual incurred costs. The plaintiff no longer has access to this material as he is now resident overseas.
[40] In, in my view a sum of $250 per annum is a very reasonable estimate of the typical disbursement costs that litigation of this type would incur. Nonetheless, I propose to reduce the sum to $800 because I consider that a large proportion of the disbursement costs for the year 2017 could be attributed to the unsuccessful opposition to the strike out application before Downs J.
[41]The result is a disbursement total of $1,560.
General
[42] The parties indicated at the stay hearing on 24 February 2021 that no further costs would be sought in relation to that hearing.
[43] The plaintiff has also filed an application to hold the defendant in contempt, and for ancillary orders, in response to the defendant’s failure to pay the compensation I ordered in the substantive judgment. The defendant responded by seeking the stay of execution. The focus at the hearing was on the stay of execution. The plaintiff did not advance his application for contempt and ancillary orders, which was largely overtaken by the stay application. The parties need to address whether the Court can now treat the application for contempt and ancillary orders as discontinued.
[44] The total costs and disbursements ($10,958.50) that I have awarded the plaintiff exceed the balance of the Muir J costs award that he owes to the defendant. This potential outcome was not addressed at the hearing.
[45] The plaintiff’s written submissions refer to an undertaking he has given to the defendant that any costs he is awarded would be set off against the costs he owes them.19 As matters now stand, there will be a surplus owing to the plaintiff.
19 Plaintiff’s written submissions dated 30 September 2020, at [8].
[46] I do not know what stage the appeal against the substantive judgment has reached. I can understand the plaintiff will be keen to receive the monetary awards I made in his favour. I can also understand that the defendant will be reluctant to pay those awards before the appeal is determined. The plaintiff’s overseas location will make it difficult to retrieve the payment should the defendant be successful in the appeal. I encourage the parties to take a responsible attitude to the resolution of this matter.
Result
[47] The direction in the substantive judgment that the defendant is to provide the plaintiff with a written apology is stayed until the appeal against the substantive judgment is determined.
[48] The order the defendant pay the plaintiff $3,000 in compensation is stayed on the terms set out at [5] herein.
[49]The plaintiff is awarded category 2 costs in the total sum of $9,398.50.
[50]The plaintiff is awarded disbursements in the total sum of $1,560.00.
Duffy J
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