Deliu v Police

[2018] NZHC 2004

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002150

[2018] NZHC 2004

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff

AND

NEW ZEALAND POLICE

Defendant

Hearing:

On the papers

Counsel:

Plaintiff in person

S M Hunter for Defendant

Judgment:

8 August 2018

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 8 August 2018 at 11.00 am Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Solicitors:

S MHunter, Barrister, Auckland

N T Flanagan and T C Clark, Meredith Connell, Auckland Copy to: The Plaintiff

DELIU v NEW ZEALAND POLICE [2018] NZHC 2004 [8 August 2018]

[1]    In my judgment dated 9 July 20181 I dismissed Mr Deliu’s application to debar Mr N Flanagan and his firm Meredith Connell from representing the defendant, the New Zealand Police (the Police) in proceedings in which Mr Deliu alleges arbitrary detention. I indicated (provisionally) that I considered costs on a 2B basis to be appropriate.

[2]The defendant now seeks the following costs and disbursements:

Step	Description	Days	Rate	No.	Amount
23	Filing     opposition    to    interlocutory application	0.6	$2,230	1	$1,338
24	Preparation of written submissions	1.5	$2,230	1	$3,345
26	Appearance at hearing of defended application for sole counsel	0.5	$2,230	1	$1,115
Total (2B scale costs)					$5,798
No	Disbursements				Amount (excl. GST)
3	Filing fee: opposition to debarment				$95.65
Total					$95.65
Total (2B scale costs and disbursements)					$5,893.65

[3]    Mr Deliu says that costs should either be refused altogether or that they should be reduced. He makes four submissions.

[4]    Firstly, he says I should appropriately recognise that the Police failed in relation to what he calls the “interim debarment” issue. This is a reference to the fact that Mr Flanagan initially sought to appear as counsel on the substantive application. Detailed memoranda were filed in this respect. In a Minute dated 24 April 2018 Fitzgerald J directed that external counsel appear on the debarment application and in my own judgment I described Mr Flanagan’s argument to the contrary as “ill advised”. I agree with Mr Deliu that to do overall justice between the parties on the debarment application I should recognise a deduction for what was in effect a “preliminary loss”

1 Deliu v New Zealand Police [2018] NZHC 1669.

by the defendant. I consider the appropriate course is to make a deduction from costs of 0.4 of a day corresponding to item 11 in Schedule 3 calculated on a 2B basis.

[5]    Secondly, Mr Deliu argues that he acted “wholly responsibly” in progressing his substantive application for debarment and he refers to the fact that, again, I described as “probably ill advised” what I referred to as Mr Flanagan’s “slightly off joke” about forfeiture of Mr Deliu’s McLaren super car. However, that description does not detract from my overall conclusion that, whether what was said was light- hearted banter, as Mr Flanagan deposed, or “more sinister” as Mr Deliu suggested, the Court’s ability to adjudicate fairly and impartially on the question of whether Mr Deliu was arbitrarily detained was in no way imperilled by Mr Flanagan’s continued representation of the Police. For that reason the application failed. Costs follow that event  unless  the  provisions  of  r 14.7  apply.   My  observations  in  respect  of    Mr Flanagan’s comment do not elevate the application to one which can necessarily be described as “wholly responsible” and even if they did, the failure of many responsible but nevertheless ultimately incorrect positions routinely sounds in costs.2

[6]    Thirdly, Mr Deliu says that in relation to the Police’s former application to strike out the proceedings (which was heard by Downs J), his Honour “omitted to award me costs e.g. for my disbursement in filing a notice of opposition”. Mr Deliu therefore says that in the interests of overall justice the same disbursement now claimed by the police should be offset.

[7]    In his substantive judgment Downs J struck out all bar one of Mr Deliu’s claims. In the subsequent costs judgment he declined to award costs in favour of the police on the grounds that its application had in fact failed. However, nor did his Honour order costs in favour of Mr Deliu, no doubt for the reasons identified in his Minute of 28 August 2017, namely that the original statement of claim was “bedevilled by prolix pleading and other causes of action that could not possibly succeed”.

[8]    Any alleged omission in the costs judgment of Downs J should, in my view, be dealt with by way of application to his Honour. It is not appropriate that I should

2      The position may be different in cases of genuine public interest (which this case is not (Rule 14.7(e)).

effectively “second guess” his Honour’s judgment by making allowances in the context of the current application.

[9]    Finally, Mr Deliu submits that he made bona fide attempts to settle the matter of costs and that this should be taken into account. He refers to an email in which he suggested that costs should either lie where they fall or that there should, at a minimum, be an offset or reduced costs.

[10]   I have agreed to a partial offset. The inability of the parties to reach a settlement on costs cannot be regarded as a bar to the defendant’s claim.

Result

[11]   I award the defendant costs on the application of $4,906.00, plus disbursements (filing fee) of $95.65.

Muir J