FRANCISC CATALIN DELIU AND INDEPENDENT POLICE CONDUCT AUTHORITY

[2024] NZHC 2751

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-224

[2024] NZHC 2751

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

INDEPENDENT POLICE CONDUCT AUTHORITY

Respondent

Hearing:

On the papers

Appearances:

Applicant in Person

S C McCusker for Respondent

Judgment:

24 September 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 24/09/2024 at 10 am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Luke Cunningham Clere, Wellington

Copy to: F C Deliu

DELIU v INDEPENDENT POLICE CONDUCT AUTHORITY [2024] NZHC 2751 [24 September 2024]

Introduction

[1]                 On 20 August 2024, I delivered a judgment in this matter in which I dismissed all of the applicant’s causes of action and directed that the Independent Police Conduct Authority (IPCA) is entitled to reasonable costs which, if not agreed, should be the subject of memoranda to be filed by the parties within 15 working days.1 I said I would then determine costs on the papers. Dr Deliu has now filed an application, dated 5 September 2024, seeking the following orders:

(a)that I recuse myself from deciding the issue of costs;

(b)that the judgment dated 20 August 2024 be recalled; and

(c)in the event the judgment is not recalled that Dr Deliu be directed to file his opposition to costs within 10 working days of the decision on recall.

Recusal

[2]                 The grounds for the application for recusal are that I predetermined the issue of costs without hearing from him and may not now bring an impartial mind to the question of costs. Dr Deliu says that the statement in the judgment that the IPCA is entitled to reasonable costs amounts to a conclusive finding and predetermination of liability for costs in favour of the respondent.

[3]                 Dr Deliu says he is entitled to oppose costs and has good cause to do so because the respondent has admitted that “its actual costs do not exceed those claimed”.

[4]                 I note that the respondent has filed a memorandum stating that the initial statement that actual costs do not exceed those claimed was a typographical error. It should have read actual costs do exceed those claimed.

1      Deliu v Independent Police Conduct Authority [2024] NZHC 2334.

[5]                 The relevant principals for recusal are well settled and now set out in the High Court recusal guidelines.2 The test for recusal is whether a fair minded and properly informed lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question to be decided.3

[6]There is a two-stage test:4

(a)first, the identification of what it is said might lead a judge  to  decide a case other than on its legal and factual merits; and

(b)secondly, there must be “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.

[7]                 Where there is a real and not remote possibility that a Judge may lack impartiality, recusal is appropriate. It is not necessary to show that a lack of impartiality is probable.5

[8]                 In the present case, I do not accept that there is any predetermination of the issue of costs. The final paragraph of my judgment does not indicate that I have predetermined the issue of costs. The wording of the paragraph makes it clear that the issue of costs will be determined on the papers following receipt of the parties’ costs memoranda.6 The wording simply reflects r 14.2(1) of the High Court Rules 2016, which contains general principles applicable to the determination of costs, including that the party who fails with respect to a proceeding should pay costs to the party who succeeds.

[9]  None of the criteria set out in the High Court recusal guidelines apply. I decline to recuse myself from proceeding to decide costs in relation to the matters determined in my judgment.

2      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72; [2010] 1 NZLR 35; and Justice G J Venning “High Court recusal guidelines” (12 June 2017) Courts of New Zealand

<courtsofnz.govt.nz>.

3      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 2, at [89]; and High Court recusal guidelines, above n 3, at [1.2].

4      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 2, at [4].

5      At [4], citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [7].

6      Deliu v Independent Police Conduct Authority, above n 1, at [48].

Recall

[10]              Dr Deliu also seeks recall of the judgment. The only basis articulated for recall is that the costs matter was predetermined.

[11]In Horowhenua County v Nash (No 2), Wild CJ said:7

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled—first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[12]              Given that the issue raised by Dr Deliu relates only to costs, it is unclear whether he is seeking recall of the entire judgment.

[13]              Rule 11.9 of the High Court Rules provides that a Judge may recall a judgment at any time before the formal record is drawn up and sealed. Recall will only occur in well identified situations and is not a substitute for an appeal or an opportunity to reopen substantive matters already decided.8 It is not unusual for recall applications to be considered on the papers, even when the parties request an oral hearing.9

[14]              There are no grounds raised for recall of the judgment as a whole and the only ground raised in respect of the costs matter, namely that I predetermined the issue, has no merit, as discussed above. This is a case where I consider the application for recall can properly be determined on the papers. There are no very special reasons shown by the applicant which establish that justice requires recall of the judgment. Accordingly, I decline the application to recall the judgment.

7      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

8      Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [11].

9      HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2701 at [32], citing Nottingham v Ardern [2020] NZHC 1013 at [3].

Amendment of timetable direction for filing of costs memoranda

[15]              In the event of the recall application being declined, Dr Deliu seeks an order amending the timetable directions in the judgment directing the filing of costs memoranda.

[16]              I grant the extension of time requested and order that Dr Deliu file any memorandum in relation to costs within 10 working days of this decision being issued.

Wilkinson-Smith J