AThe appeal is allowed and the costs order made in the High Court is quashed.
BThe appellant is instead to pay costs in the substantive judicial review of 50 per cent of both category 2 band B costs and the disbursements fixed by the Registrar.

C No costs order in this Court is made.

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REASONS OF THE COURT

(Given by Kós J)

The question in this appeal is when and to what extent costs may be ordered on a judicial review against a defendant who abides the decision of the High Court.

Background

Mr Deliu and Mr Hong are both solicitors practising in Auckland. There is some animosity between them. This resulted in Mr Deliu issuing legal proceedings in defamation against Mr Hong.[1] Mr Hong then wrote a letter to Mr Deliu’s counsel threatening to complain about them to the Law Society. Mr Deliu objected to the terms of that letter. The complaint to the Law Society ended up being made by Mr Deliu.
[1]See for example Deliu v Hong HC Auckland CIV-2010-404-6349, 21 December 2011; Deliu v Hong [2013] NZHC 735; and Deliu v Hong [2013] NZHC 736.
The circumstances are laid out in the substantive judgment of Andrews J underlying this appeal.[2] After a tortuous process, the Lawyers and Conveyancers Disciplinary Tribunal concluded that Mr Hong had used a threat to complain to the Law Society for an improper purpose. But it did not amount to obstructing, preventing or defeating the course of justice for the purposes of r 2.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. It concluded also that Mr Hong had acted unprofessionally in respect of some correspondence. But it did not find that the breaches had sufficient seriousness to amount to misconduct for the purpose of s 7(1)(b)(ii) of the Lawyers and Conveyancers Act 2006. It dismissed the charges.
[2]Deliu v Hong [2015] NZHC 492 at [3]–[9].
Mr Deliu then applied for judicial review of the Tribunal’s decision to dismiss the charges. The Tribunal was first defendant; Mr Hong the second. Both defendants abided the High Court’s decision. Neither appeared.
Mr Deliu’s first ground was that the Tribunal had proceeded on a mistake of fact because Mr Hong had misled it as to his previous disciplinary history. Alternatively, that the Tribunal had failed to take his previous disciplinary history into account. It is convenient to set out [17] of Andrews J’s substantive judgment:
This submission was based on a statement made by Mr Hong in his affidavit in response to the charges against him, sworn 22 January 2013, and repeated in his written and oral submissions to the Tribunal:
Since 1992 when I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hong v Deliu

Details

AGLC: Hong v Deliu [2016] NZCA 75
Case: [2016] NZCA 75
Decision Date: 16 March 2016 at 3.00 pm

CaseChat Overview and Summary

The case of Hong v Deliu involved a legal dispute between two solicitors, Boon Gunn Hong and Francis Catalin Deliu. The background to the case was one of animosity between the two parties, which resulted in Deliu initiating defamation proceedings against Hong. Hong subsequently wrote a threatening letter to Deliu's counsel, which led to a complaint being made to the Law Society. Deliu objected to the terms of the letter and sought judicial review of the Lawyers and Conveyancers Disciplinary Tribunal's decision to dismiss charges against Hong. Both defendants in the review proceedings, the Tribunal and Hong, abided the High Court's decision. The key legal issue in the appeal was whether costs could be ordered against a defendant who abided the decision of the High Court. The Court of Appeal held that the threshold for the awarding of costs against an abiding party is not as high as suggested by Hong, and that in this case, it was appropriate for Hong to contribute to Deliu's costs in vindicating his rights as the complainant in the judicial review proceeding. The Court of Appeal allowed the appeal, quashed the costs order made in the High Court, and ordered Hong to pay 50 per cent of both category 2 band B costs and the disbursements fixed by the Registrar in the substantive judicial review. No costs order in this Court was made.

The Court of Appeal considered the principles of costs in judicial review proceedings and concluded that a defendant who abides the outcome may indeed be liable for costs where it is just that they bear some share of the plaintiff's costs. The extent of contribution required will depend on the extent of the original error and the reasonableness of the defendant's conduct thereafter. In this case, Hong's error before the Tribunal was limited, and his conduct thereafter in abiding the outcome in the High Court was reasonable. Therefore, the Court of Appeal considered that a contribution of 50 per cent of category 2 band B costs and the disbursements fixed by the Registrar would have been appropriate. The Court also noted that Hong must take some responsibility for the way in which matters concerning costs developed before the trial Judge, and therefore costs in this Court would lie where they fall. The Court of Appeal's decision provides guidance on the principles of costs in judicial review proceedings and the extent to which an abiding defendant may be liable for costs.

Orders