Deliu v R

[2022] NZHC 3268

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000108

[2022] NZHC 3268

BETWEEN

FRANCISC CATALIN DELIU

Plaintiff

AND

THE KING

Defendant

Hearing:

5 December 2022

Appearances:

F C Deliu in person by audio visual link from the United States of America

Z Hamill for the Crown

Judgment:

7 December 2022

Reissued:

1 June 2023

JUDGMENT OF WYLIE J [Redacted]

(Appearance by AVL, Recusal/Stay/Consolidation – Reasons for Rulings)

This judgment was delivered by Justice Wylie On 7 December 2022 at 11.00 am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Crown Law, Wellington

Copy to:
Mr F C Deliu

DELIU v R [2022] NZHC 3268 [7 December 2022]

Introduction

[1]    The plaintiff, Francisc Deliu, is charged with two counts of perverting the course of justice. He has brought a civil proceeding against the Crown. He challenges the actions of the Crown Solicitor at Auckland, his firm (Meredith Connell) and his prosecutors in acting for the Crown following the Crown’s assumption of responsibility for the charges after prosecutors in the firm had already acted for the New Zealand Police in relation to those charges, both before they were laid and at their first call in Court.

[2]    The Crown defends the claim and denies any impropriety. It says that it is not uncommon for a Crown Solicitor or his or her prosecutors to appear on behalf of the Police in the early stages of a prosecution and prior to the Crown’s assumption of responsibility for the prosecution. It says that, in so doing, the Crown Solicitor and his or her prosecutors do not compromise their independence and that no conflict of interest arises when the Crown Solicitor later assumes responsibility for the prosecution.

Factual background

[3]    The full background to the matters underlying the present proceeding is set out in an earlier judgment by Davison J, Deliu v Flanagan.1 I adopt his recital of the facts. Relevantly, I record the following:

Police charges laid against [Mr Deliu]

[15]      As noted, in February 2017, the Police charged [Mr Deliu] with two charges of assault with a weapon relating to an incident which was alleged to have occurred on 20 January 2017 at the premises of the law firm, Amicus Law. The hearing of the charges was initially scheduled to take place in the Auckland District Court during the week commencing 22 January 2018, however that fixture was vacated by the Court because other court matters also scheduled for hearing that day meant that it was unlikely that a judge would be available to hear it. The matter was accordingly placed in a callover list on 22 January 2018. Having recently departed New Zealand, [Mr Deliu] did not appear before the District Court on 22 January and the presiding Judge excused his attendance, and ordered a judicial telephone conference to review progress with the matter on 13 February 2018.

1      Deliu v Flanagan [2022] NZHC 2621.

[16]      Mr Flanagan, who is a partner at the Auckland Crown Solicitor’s law firm, Meredith Connell, was representing the Police in relation to [Mr Deliu’s] matter. … In the period between January 2018 and 13 February 2018, [Mr Deliu] and Mr Flanagan exchanged emails regarding the Police investigation into [Mr Deliu’s] actions including in relation to witnesses the Police wished to interview in connection with suspected criminal offending. Dr Ellis was copied in to the email correspondence.

…

[18]On 26 April 2018 Mr Flanagan sent an email to [Mr Deliu]. He said:

Dear Mr Deliu

We have now considered the assertion of privilege in the document in question. Putting to one side the factual basis for your assertions, we consider that s 67 of the Evidence Act may be engaged. We consider that the email may have been sent to improperly dissuade Mr Wu and [REDACTED] (and other recipients) from speaking to the Police about the incident in question in circumstances where they were free to do so.

The Police will shortly charge you (likely today) with two counts of attempting to pervert the course of justice pursuant to s 117(e) of the Crimes Act 1961, one charge for your course of conduct against Mr Wu (including this email) and one for your course of conduct against [REDACTED] (also including this email). The Police will make an application under s101 of the Criminal Procedure Act (CPA) for directions as to the admissibility of the document in the context of that proceeding, given your claim for privilege. In the meantime, the email will be held separately on our file and that of the Police marked as subject to a claim of privilege, and we will advise Mr Wu’s counsel to do the same. We are not aware of other parties that might hold the email.

For completeness, once the charges have been filed we will seek a warrant to arrest in lieu of service under s34 of the CPA, which will lie at the border. That is done given your absence from New Zealand and stated intention not to return.

Yours faithfully Nick Flanagan

[19]      On 2 May 2018 Police laid two charges against [Mr Deliu] of attempting to pervert the course of justice. The charges arose from an investigation being conducted by the Police into an alleged forgery, and from allegations that [Mr Deliu] had applied pressure on a witness not to co-operate with the Police investigation. … Meredith Connell with Mr Flanagan acting, represented the Police. The charges were filed in the Auckland District Court and as [Mr Deliu] was no longer in New Zealand a summons could not be served on him and a warrant to arrest was sought by the Police and obtained. The charges laid on 2 May 2018 remain active.

[20]      On 17 May 2018 a prearranged telephone call took place between [Mr Deliu] and Mr Flanagan. …

…

[28]     The telephone conversation … was recorded and a transcript was prepared and produced as an exhibit. It reads:

Flanagan:On the criminal case, the reason I was anxious to be clear about the basis for which you said that this conversation would be privileged was of course the section applies to a plea deal, I think you’ve [sic] fairly proposing one in relation to the assault and that is something we can reflect on, but you’re not of course proposing anything in relation to the other charges and they’re much more serious charges so I don’t think you can have a realistic expectation that the Crown will accept no proposal in relation to those charges. Is that clear enough?

Deliu:Yes, well I guess the only thing that I would, is that the only thing you have to say?

Flanagan:Well it seems to me that the one constructive conversation we could have is the civil proceeding and whether that can be ended on, a, the basis that there is no costs sought by the Police. I don’t have instructions as to that, but that would seem to me to be a pragmatic outcome that I could probably recommend given that you are offshore and there would be real difficulty in enforcing any costs order and the reality is that it might be impossible to do so.

Deliu:                Okay, well.

Flanagan:So that’s, that’s the proposal I think we should discuss on the civil case, you haven’t made a proposal on the criminal one, but if you’d like to make one I’m happy to discuss it.

Deliu:All right well I guess two points in relation to your three points. You definitely won’t ever get a dollar in costs I, I, assure you of that. You don’t understand how Romania works, you don’t understand how Europe works and clearly you don’t understand how my brain works, you, you will never get a dollar, but go ahead and try, that’s perfectly fine, it’ll, it’ll be a good lesson. And as to the proposal to the other charges I find it quite striking that you’d want me to make a proposal to charges that I haven’t even been served with, it’s yet another indication, I think, that this is all a bit farcical so I don’t really think we need to explore it further because I can’t possibly make a proposal to charges that I don’t even know what they are, and so on that basis …

Flanagan:It’s not true Frank, we’ve told you what you’ve been charged with.

Deliu:Okay, you want me to make a proposal on your e-mail. Yes Flanagan I will plead guilty to your e-mail. Okay, there’s my proposal.

Flanagan:          Okay. So, you will plead guilty to three charges.

Deliu:	Okay, so I will write you back and I will tell you that I am pleading guilty to your e-mail and you take that further, you take that to the District Court as my plea. Okay, so I am happy to proceed that way.
Flanagan:	The proposal is that you will plead guilty to two counts of attempting to pervert the course of justice because that’s a discussion we can have.
Deliu:	No, no I’ll plead guilty to your e-mail because that’s all I know, so, sure, I’ll absolutely plead guilty to your e- mail.
Flanagan:	No, my question was are you proposing to plead guilty to two counts of attempting to pervert the course of justice because that’s what you’re charged with.
Deliu:	Nick, I don’t know a single fact, I can’t believe, and I’m trying to be courteous here so I’ll restrain myself, but I can’t believe that you seriously think that I would offer to plead guilty to charges where I don’t even know what the facts are, I mean, with respect, even in Stalinist Russia they at least told the person what they were charged with in detail. So if you seriously …
Flanagan:	We have told you what you’re charged with in detail.
Deliu:	Okay, no, okay, then I …
Flanagan:	I am very happy to on a without prejudice basis discuss the basis of the charges with you Frank so you can assess whether or not you want to make a plea, that would fall within the terms of the Evidence Act.
…	Deliu:	And, and you don’t think that I should be entitled to a
Flanagan:	But it has to be expressly on the basis you’re considering a plea.
Deliu:	Well I can’t consider a plea until I know the evidence can I? I would have thought this was basic law school stuff if I’m not mistaken.
Flanagan:	No, you can consider a plea based on what the charges are and what you already know of them and if you are considering that then I am happy to have a further discussion with you about the basis for it.
Deliu:	No, no, that’s, that’s, that’s absolutely not going to happen. So, okay Nick I guess we’ll just [inaudible] with each other for the next decade, so thanks for that.
Flanagan:	No problem, cheers.
Deliu:	Take it easy.
…

Complaint against Mr Flanagan …

[42] On the evening of 1 February 2021 [Mr Deliu] … filed an online complaint with the Police in which he alleged that Mr Flanagan … had committed offences of attempting to pervert the course of justice. [Mr Deliu] alleged that Mr Flanagan … had committed the offence whilst engaged in a telephone conversation with him in May 2018, in which [Mr Flanagan and the Police officer in charge of the prosecution] tried to get him to plead guilty to the charges of attempting to pervert the course of justice which had previously been laid against him, but not served on him.

…

(citations omitted)

[4]    The underlying events have spawned a number of proceedings in this Court. Most recently, Mr Deliu brought an application for judicial review of the Crown’s actions, which was heard by Brewer J.2 A decision has yet to be released on this matter.

The present proceeding

[5]    The present proceeding was allocated to me for hearing last Wednesday. I read the statement of claim and the written submissions filed by both Mr Deliu and by the Crown. The Court lists are published on a daily basis and I was aware that a few days earlier, Mr Deliu had been involved in another proceeding against the Crown. Accordingly, I obtained a copy of the statement of claim in that matter and also read it. It seemed to me that there was a potential overlap between the two proceedings. As a result, on 1 December 2022, I issued a minute seeking submissions from the parties as to whether or not it was an abuse of process for Mr Deliu to raise what seemed to be substantially the same issues in multiple proceedings. I recorded my concern that res judicata/issue estoppel could arise and I sought comment on that possibility. I also noted that it was clear from the file that Mr Deliu proposed to appear by way of audio visual link. I noted that he had neither sought nor obtained leave to appear remotely and that I had concerns about allowing him to do so, given that he is in the United States and the Court has no jurisdiction to enforce any orders it might make against him in that jurisdiction. Again, I sought submissions on this issue.

2      Deliu v Attorney-General HC Auckland CIV-2021-404-1803.

[6]    This minute resulted in Mr Deliu emailing the Registry to protest the matters I had raised.

[7]    On the morning of 5 December 2022, immediately prior to the hearing, I received an application from Mr Deliu together with an affidavit and a number of annexures. In the time available, I skim read the same. Mr Deliu sought, if necessary, permission to appear remotely. Alternatively, he sought that the hearing should be adjourned. Also in the alternative, he sought that the issues raised by the pleadings should be determined on the papers. He sought a number of other orders which are not relevant for present purposes.

[8]    After hearing from Mr Deliu and Ms Hamill for the Crown, I gave four rulings. First, I allowed Mr Deliu to appear remotely. Secondly, I declined to recuse myself. Thirdly, I ordered that the present proceeding be stayed. Finally, I declined an oral application by Mr Deliu to consolidate the present proceedings with the earlier matter heard by Brewer J.

[9]I now set out my reasons for these rulings.

Mr Deliu’s appearance

[10]   I dealt first with Mr Deliu’s application for permission to appear by audio visual link.

[11]   Large parts of Mr Deliu’s supporting affidavit were inadmissible and/or contemptuous. Relevantly, he asserted that he had already been given permission in the proceeding to appear by VMR. He annexed a number of exhibits in this regard. One of those exhibits was impossible to read; the others were emails from the Registry informing him that the proceeding would be conducted using VMR and advising how the link would be set up.

[12]   I referred Mr Deliu to the Courts (Remote Participation) Act 2010 and noted that the Act permits the use of audio visual links in civil proceedings if a judicial officer or the Registrar determines to allow their use. I noted that insofar as I could see, there had been no application on the file and no formal determination either by a Judge or

by the Registrar. Nevertheless, I acknowledged that Mr Deliu may have apprehended that permission had been granted to him given the emails from the Registry.

[13]The Crown had no opposition to Mr Deliu appearing by way of VMR.

[14]   Accordingly, I allowed Mr Deliu to do so for the purposes of the hearing before me.

Recusal application

[15]   Mr Deliu then asked me to recuse myself. He suggested that my minute disclosed predetermination and either actual or apparent bias or both. He put it to me that the fact that I had raised the remote participation issue was of itself improper, particularly given the timeframe. He argued that I had raised the issue simply as a vehicle to deny him access to justice. He went so far as to submit that the minute was a “malicious endeavour” to justify a finding against him. He particularly took umbrage at [6] of the minute, arguing first that any orders that might be made against him could be enforced in the United States, and secondly, that in any event, it was wrong to assume that orders would be made against him or that he would not comply with those orders. He argued that I had no alternative but to disqualify myself on the basis that the issues raised in the minute should not have been raised at all. He also referred to the fact that some time ago, he had lodged a complaint with the Judicial Conduct Commissioner about a decision I had issued. He suggested that this complaint of itself meant that it was not open to me to adjudicate on his issues.

[16]   Ms Hamill responded by referring to the decision of the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.3 She also referred to the Guidelines for Judicial Conduct published online.4 She argued that no fair-minded, fully informed observer would reasonably apprehend that I might not bring an impartial mind to the resolution of the substantive dispute between Mr Deliu and the Crown.

3      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35; Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76.

4      “About the Judiciary — Judicial conduct” Courts of New Zealand < First, I observe that a Judge has an obligation to sit on any case allocated to him or her unless proper grounds for recusal exist. The test for apparent bias is relatively straightforward. A Judge should recuse him or herself if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.5 The standard for recusal is one of real and not remote possibility, rather than probability. It requires a two-stage analysis. The Judge must consider first what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the Judge might decide the case other than on its merits, and secondly, whether there is a logical and sufficient connection between those circumstances and that apprehension.6

[18]   Here, I do not consider that there is anything in my minute which suggests actual bias or which would lead a fair-minded and fully informed observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the dispute.

(a)The minute did no more than record that, having read the statement of claim in one of the earlier proceedings, I was concerned that there might be some overlap between the matters raised in those proceedings and the matters which Mr Deliu wished to raise in the current proceedings. I asked for comment on that possibility. I cannot see that there is anything in my request to suggest predetermination.

(b)Nor is there anything in [6] of my minute seeking submissions on whether or not Mr Deliu should be given permission to appear by way of audio visual link. Mr Deliu asserted that in numerous other proceedings, he has been allowed to appear by way of audio visual link. That may be the case but the provisions of the Courts (Remote Participation) Act are clear. A determination either by a Judge or the Registrar is required. Here, there was no dispute that Mr Deliu had not

5      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 3 at [3]; Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2), above n 3 at [4].

6 At [81].

sought permission. Nor, insofar as I can glean, had permission been granted. A Judge has a duty to decide cases in accordance with the law and compliance with that duty cannot give rise to a reasonable apprehension of bias. The notional fair-minded lay observer must be assumed to know that much about the role of a Judge.7

(c)Mr Deliu was concerned about my comment that the Court has no jurisdiction to enforce any orders it might make against him in the United States. This is simply a recital of the relevant law as I understand it. The Reciprocal Enforcement of Judgments Act 1934 does not extend to the United States. Mr Deliu assumed that I was referring to the possibility of a costs award against him. There was no justification for that assumption. The Court’s power to deal with any contempt of Court is significantly constrained if not negated where the party in contempt is not only not before the Court but is in a foreign jurisdiction.

(d)In any event, I allowed Mr Deliu to appear remotely. While Mr Deliu asserted that this was only because of the submissions he had raised, with respect, that is not the position. By my minute I invited submissions on the issue. I heard those submissions and I ruled on the issue.

I do not consider that any fair-minded, fully informed observer would reasonably apprehend that there was anything in my minute to suggest that I was either actually biased or that I was apparently biased such that I might not bring an impartial mind to resolution of the dispute.

[19]   Mr Deliu referred to the fact that he lodged a complaint about a decision I gave to the Judicial Conduct Commissioner. The decision was issued on 9 August 2011.8

7      Russell v Taxation Review Authority HC Auckland CIV-2005-404-5203, 19 December 2008 at [101]; Russell v Taxation Review Authority [2011] NZCA 158 (appeal against the High Court decision dismissed); Russell v Taxation Review Authority [2011] NZSC 96 (leave to appeal the Court of Appeal decision declined).

8      R v Tyniec HC Auckland CRI-2011-092-006373, 9 August 2011.

It did not involve Mr Deliu. He was not a party; nor was he involved as counsel. Nevertheless, on 24 January 2012, Mr Deliu sent an email to the Judicial Conduct Commissioner questioning the legality of a direction I made. The Judicial Conduct Commissioner did not refer the complaint to me for comment. Rather, in a decision dated 5 June 2012, he dismissed the complaint as being beyond his jurisdiction. He considered that the complaint challenged the legality or correctness of a decision made by me and that, in accordance with s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, it was outside his jurisdiction. A copy of the decision was sent to me on the same day.

[20]   Again, that a complaint was made by Mr Deliu against me does not mean that I have to recuse myself. It is trite law that the making of a complaint to the Judicial Conduct Commissioner against a Judge does not of itself serve to disqualify the Judge from hearing cases involving the complainant.9

[21]   Looking at the matters raised by Mr Deliu in the round, I did not see that there was anything which would lead a fair-minded, fully informed observer to reasonably apprehend that I would not bring an impartial mind to the resolution of the dispute between Mr Deliu and the Crown.

[22]   For these reasons, I concluded that I was not required to recuse myself and I declined to do so.

Stay

[23]I turn to the issue of a stay.

[24]   As noted, I read the third amended statement of claim in the matter that was recently before Brewer J. It is not well drafted and the link between the pleadings and the relief sought is not altogether clear, at least to me.

9      Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337; Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753, See also Grant Hammond Judicial Recusal: Principles, Process and Problems (Hart Publishing, Oxford, 2009); and see Slavich v Attorney- General [2013] NZSC 130 at [6].

(a)Under the heading “Prosecutorial and further Police misconduct”, the conduct of a Crown prosecutor, Nicholas Flanagan, is put in issue. Mr Deliu refers to the two charges of attempting to pervert the course of justice (which I have referred to above) as “the second decision under review, the perversion charges”. The telephone discussion which Mr Flanagan had with Mr Deliu on 17 May 2018 is also referred to as “the third decision under review, the perversion negotiation”.

(b)Various causes of action are raised. Inter alia, Mr Deliu asserts that the Crown and/or Police acted in bad faith against him, that the prosecutions were exercised for a collateral motive unrelated to the objectives of the penal laws or any prosecutorial prerogative, and that they were brought for improper purposes.

(c)One of the further particulars alleges that Mr Flanagan (and therefore the other defendants) acted mala fides in seeking to obtain guilty pleas from Mr Deliu in relation to the perversion charges. Mr Deliu also alleges that the “selective prosecution” of the perversion charges against him contravened “the parity principle”.

(d)There is a direct challenge to a decision alleged to have been made by the Crown Solicitor. Mr Deliu alleges that the Crown Solicitor did not have the power to reconsider the perversion charges, as the Crown had never been lawfully seized of the prosecution and that accordingly, the Crown Solicitor acted without authority. It is also alleged that the Crown Solicitor failed to recuse himself and therefore acted with actual or apparent bias against Mr Deliu or that he had one or more conflicts of interest.

[25]   Mr Deliu was seeking a declaration that the defendants (the Attorney-General for the Crown and the Police) breached his rights under s 27 of the New Zealand Bill of Rights Act 1990 and that he has been denied a fair and impartial investigation into his alleged criminality and/or the prosecution of the charges. Along with orders quashing the decisions and processes under review (including the laying of the

charges), he sought an order prohibiting or alternatively an injunction restraining the prosecutors from proceeding with the charges and a direction that, inter alia, the Crown Solicitor in Auckland and/or Mr Flanagan apologise to him for their misconduct.

[26]In the present proceedings, the written submissions filed by Mr Deliu argued:

(a)that Crown counsel breached duties they owed under s 193 of the Criminal Procedure Act 2011 to act independently. He asserted that he has been denied an independent prosecutor and that Mr Flanagan was already compromised when the Crown took over the prosecution on 24 May 2018 because he had previously acted as counsel for the Police, both pre and post charge. He argued that s 193 is clear and that the obligation to act independently precluded the Crown from taking over the prosecution. He submitted that there is no statutory provision that permitted Crown counsel to act prior to assuming responsibility for and the conduct  of the prosecution.  He suggested  that  the actions  of  Mr Flanagan (and another prosecutor) prior to 24 May 2018 compromised them to such an extent that Meredith Connell and the Crown Solicitor for Auckland could not fulfil the role of an independent Crown prosecutor;

(b)that the Crown acted ultra vires in acting in the criminal proceedings, in particular in amending the charges, which he submitted were in themselves ultra vires. He submitted that s 187 of the Criminal Procedure Act was not properly engaged and that the Crown had no jurisdiction to file the Crown prosecution notice or to assume responsibility for the prosecution. He argued that all steps taken post 24 May 2018 are nullities. As a consequence, he also argued that there was no Crown prosecutor to file an amendment to the charges under s 189 of the Act and that accordingly, amended charges could not be laid;

(c)that the involvement of Meredith Connell, the Crown Solicitor in Auckland and two of his prosecutors, initially for the Police and then for the Crown, breached his right to natural justice.

[27]   Mr Deliu is seeking judgment against the Crown, an order prohibiting the Crown Solicitor, his firm and his prosecutors from continuing to act in the prosecution, a direction that the matter be referred to the Solicitor-General, a declaration that the Crown Prosecutor and his prosecutors have breached his rights under s 27 of the New Zealand Bill of Rights Act, an order quashing amendments made to the charges, costs and such other relief as the Court considers appropriate.

[28]   It seemed to me that there was a potential overlap, at least in part, between the two proceedings.

[29]   In the course of oral discussions before me, Mr Deliu denied that there was any overlap, although he did acknowledge that he had “cut and pasted” between his respective submissions in both sets of proceedings and that the same “actors” were involved. Ms Hamill submitted that there was the potential for an overlap between the two sets of proceedings. She favoured a stay until Brewer J’s decision is issued.

[30]   It is an abuse of process to bring proceedings which are duplicitous.10 It is also an abuse of process to attempt to relitigate matters already determined.11

[31]Relevantly, r 15.1 of the High Court Rules 2016 provides as follows:

15.1     Dismissing or staying all or part of proceeding

(1)       The court may strike out all or part of a pleading if it—

…

(d)is otherwise an abuse of the process of the court.

…

(3)Instead of striking out all or part of a pleading under subclause (1),    the court may stay all or part of the proceeding on such conditions as are considered just.

…

10     Otis Elevator Co Ltd v Linnel Builders Ltd (1991) 5 PRNZ 72 (HC); Cowley v Shortland Publications Ltd (1991) 5 PRNZ 76 (HC).

11     Hunter v Chief Constable of West Midlands Police [1982] AC 529 (HL); Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC).

[32]   I could not be satisfied, on the limited materials available to me, that there had been an abuse of process. It did however seem that there was a risk of overlap between the proceeding already heard by Brewer J and awaiting decision and the matters which Mr Deliu is asking the Court to consider in the present proceedings. There was the potential for conflicting decisions. In my view, the most appropriate course was to stay the present proceedings until 21 working days have elapsed after Brewer J releases his decision in proceeding CIV-2021-404-1803. The 21 days was to allow the parties to consider their respective positions following the release of the Judge’s decision.

[33]Accordingly, I stayed the present proceeding.

[34]   I direct that the Registrar is to allocate a call in the Mentions List on the first available date after 21 days from the release of Brewer J’s decision in proceeding CIV- 2021-404-1803 have elapsed. This is to deal with any applications that may be made or, in the event that there are no applications, to set the present proceeding down for a hearing.

Consolidation

[35]   Mr Deliu submitted that an alternative to a stay was to order that the two proceedings be consolidated. He submitted that it was not too late to order consolidation because no judgment in the earlier proceeding has yet issued. He made an oral application seeking consolidation.

[36]Consolidation can be ordered under r 10.12. It provides as follows:

10.12When order may be made

The court may order that 2 or more proceedings be consolidated on terms it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them, if the court is satisfied—

(a)that some common question of law or fact arises in both or all of them; or

(b)that the rights to relief claimed therein are in respect of or arise out of—

(i)the same event; or

(ii)the same transaction; or

(iii)the same event and the same transaction; or

(iv)the same series of events; or

(v)the same series of transactions; or

(vi)the same series of events and the same series of transactions; or

(c)that for some other reason it is desirable to make an order under this rule.

[37]   The court’s discretion to order consolidation is wide. It must be exercised in the interests of justice.12

[38]   Here, in my judgment, an order for consolidation was now inappropriate. The proceeding before Brewer J had already been heard. But for that, consolidation might well have been the preferred course. However, if the proceeding were to be consolidated now, Brewer J would have to delay issuing a judgment in proceeding CIV-2021-404-1803, hear the present proceeding and then issue a judgment or judgments on both. That did not seem to me to be in the interests of justice nor conducive to reaching an expeditious result. It was inconsistent with r 1.12 of the High Court Rules.

[39]Accordingly, I declined Mr Deliu’s application for consolidation.

Costs

[40]   I did not call for submissions on costs and neither Ms Hamill nor Mr Deliu sought to address the issue.

[41]   The effect of the stay I granted is simply to put Mr Deliu’s present proceeding on hold. It is my preliminary view that a costs order is inappropriate at this stage.

[42]However, if either party disagrees, then I direct as follows:

12     Fairway Holdings Ltd v McCullagh [2019] NZCA 353 at [6].

(a)any application for costs and disbursements is to be filed by way of memorandum within 10 working days of the date of this judgment;

(b)any memorandum in response is to be filed within a further 10 working days;

(c)memoranda are not to exceed three pages.

I will then deal with the issue of costs and disbursements on the papers unless I require the assistance of counsel and/or Mr Deliu.

Wylie J