FRANCISC CATALIN DELIU v ATTORNEY-GENERAL [2021] NZHC 3185

FRANCISC CATALIN DELIU v ATTORNEY-GENERAL [2021] NZHC 3185 [25 November 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-002472[2021] NZHC 3185UNDER the Judicial Review Procedure Act 2016,New Zealand Bill of Rights Act 1990,Declaratory Judgments Act 1908IN THE MATTER OF proceedings moving for an application forjudicial review, writs, civil and Bill of RightsAct claims and a petition for declaratoryreliefBETWEEN FRANCISC CATALIN DELIUPlaintiff/ApplicantAND ATTORNEY-GENERALDefendant/RespondentAND DEPUTY SOLICITOR-GENERAL(CRIMINAL)Second RespondentCIV-2021-404-000348UNDER the Judicial Review Procedure Act 2016,New Zealand Bill of Rights Act 1990,Declaratory Judgments Act 1908IN THE MATTER OF proceedings moving for an application forjudicial review, writs, Bill of Rights Actclaims and a petition for declaratory reliefBETWEEN FRANCISC CATALIN DELIUPlaintiffAND SOLICITOR-GENERALDefendantCIV-2021-404-000390UNDER the Judicial Review Procedure Act 2016,New Zealand Bill of Rights Act 1990,Declaratory Judgments Act 1908IN THE MATTER OF proceedings moving for an application forjudicial review, writs, Bill of Rights Actclaims and a petition for declaratory reliefBETWEEN FRANCISC CATALIN DELIUPlaintiffAND DISTRICT COURT OF NEW ZEALANDSITTING AT AUCKLANDDefendantAND ATTORNEY-GENERALSecond DefendantHearing: On the papersCounsel: Plaintiff /Applicant– self representedD J Perkins for the DefendantsJudgment: 25 November 2021JUDGMENT OF NATION JAS TO COSTS[1] In these proceedings, and in particular the proceedings ending 348 and 390, theCourt was required to determine three issues. On each of them, the Attorney-Generaland/or Solicitor-General was successful. In my judgment, I held the Attorney-Generaland/or the Solicitor-General were entitled to costs on a category 2B basis.1 Directionswere made for the parties to file memoranda.[2] One of the issues on which the Attorney-General was successful was theAttorney-General's application in the 390 proceedings for the Attorney-General to bejoined as a defendant to the proceedings. The Attorney-General has not sought costsin relation to that application. The issue and the proceedings in respect of which theSolicitor-General seeks costs relate to the 348 proceedings and whether Crown Lawshould be disqualified from acting as counsel in those proceedings.1 Deliu v Attorney-General [2021] NZHC 2246.[3] As to that, the Solicitor-General sought costs on a 2B basis as follows:Item General civil proceedings Days $Case Management11 Filing memorandum for subsequent casemanagement conference or mentions hearing(memorandum dated 28 May 2021)0.40 956.0013 Appearance at subsequent case managementconference (CMC on 3 June 2021)0.30 717.00Interlocutory applications (including applicationsfor summary judgment and for review ofinterlocutory decisions)24 Preparation of written submissions (submissionsdated 16 June 2021)1.50 3,585.0025 Preparation by applicant of bundle for hearing(bundle filed 22 June 2021)0.60 1,434.0026 Appearance at hearing of defended application forsole or principal counsel (23 June 2021)0.25 597.50Total 7,289.50[4] The Solicitor-General had not sought payment of any disbursements.[5] Mr Deliu objected to an award of costs as to the filing of a case managementmemorandum. He said it did not have to be filed and, apart from two paragraphs, itrelated to the underlying substantive proceedings so that determination of costs as tothis memorandum should be reserved pending final determination of the proceedings.Mr Deliu claimed the memorandum was not necessary because a memorandum hadbeen filed at an earlier stage of the proceedings. Mr Deliu submitted that the $956claimed in costs for this step in the proceedings was unreasonable.[6] The memorandum was of assistance to the Court, and indeed to Mr Deliu, inrecording that Crown Law did not object to Mr Deliu raising the debarment issue byway of memorandum rather than a formal interlocutory application. Thememorandum also helpfully proposed a revised timetable. Rule 14.8(1) of the HighCourt Rules 2016 states:(1) Costs on an opposed interlocutory application, unless there are specialreasons to the contrary,—(a) must be fixed in accordance with these rules when the application isdetermined; and(b) become payable when they are fixed.[7] Crown Law claims costs of $717 for 0.3 of a day for appearance at the casemanagement conference on 3 June 2021. Mr Deliu says that conference took no morethan 10 minutes.[8] The actual time of that telephone conference is not necessarily a true reflectionof the time counsel has to set aside to be available for such a conference. The schedulesets out an allowance for attendances which, as a general rule, is appropriate to avoidthe need for parties to address precisely what was involved with the particular step inthe proceedings.[9] There was nothing unreasonable in Crown Law seeking costs in accordancewith the schedule but, in the particular circumstances, the amount I allow for costs atstep 11 is $478 and for step 13 is $358.[10] Mr Deliu did not make any specific criticism of the amount claimed forpreparation of written submissions of $3,585 and I allow costs for that stepaccordingly.[11] Mr Deliu opposed any order of costs for preparation of a bundle of authoritiesfor the hearing on the basis both parties had input into it and counsel had not referredto the bundle at the hearing.[12] Mr Deliu acknowledges that Crown Law were involved in preparation of thebundle. Counsel says Crown Law prepared the bundle. There were a substantialnumber of cases in the bundle. Preparation required Crown Law to consider allauthorities that were in it. However, in the particular circumstances of this case, Iconsider half the normal allowance for this step is appropriate, being $717.00.[13] Crown Law seek costs for the actual hearing on the basis an allowance for 0.25of a day is appropriate. The hearing on all matters began at 11.45 am. There was abreak at 1.00 pm and the hearing reconvened after that break. An allowance for 0.25of a day for the argument over this particular issue is reasonable. I allow costs for thatappearance of $597.50.[14] Mr Deliu submitted there were three further grounds as to why the quantum ofcosts should be refused or rejected.[15] Firstly, he submitted, with reference to r 14.7, the proceeding concerned amatter of public interest and the party opposing costs acted reasonably in theproceeding.[16] I do not accept Mr Deliu's submission that Walker J accepted this in her minuteof 4 June 2021. In it, she said the three issues the Court had to consider raisedconstitutional issues of importance. I am concerned only with costs on the disbarmentissue. In light of the submissions that were subsequently presented on this issue, I donot consider the issue as to whether the Solicitor-General could be represented bycounsel from Crown Law was a matter of constitutional importance. I do not considerMr Deliu's objection as to that was reasonable. Walker J's comment was not madewhen considering r 14.7 and was simply her reason for setting down all issues for ashort hearing, rather than trying to determine the issues in the course of a list.[17] Secondly, with reference to r 14.7(f)(ii), Mr Deliu submitted this was aninstance of a party "taking or pursuing an unnecessary step or an argument that lacksmerit". The step he referred to was the claim for costs in excess of the time actuallyspent on that step in connection with the costs application.[18] The steps for which Crown Law sought costs were not as to the costs theSolicitor-General was seeking. Crown Law were entitled to claim costs as per theschedule. The purpose of the schedule is to avoid parties having to justify costs on atime-spent basis. On occasions, this works to the disadvantage of the party claimingcosts, sometimes to the advantage. The Court is left with a discretion as to whethercosts should be awarded for a particular step as asked for. Where the amount awardedis less than those sought, that can appropriately be recognised by the Court notawarding costs for making the costs application. That is what I am doing here.[19] Thirdly, Mr Deliu says Crown Law has not actually incurred costs here. Hesuggested costs should be based on the rate of remuneration for counsel employed byCrown Law. In the absence of evidence as to the actual remuneration paid to Crowncounsel, Mr Deliu suggested this should be based on the minimum wage for an eighthour work day (or $160) rather than the scheduled rate of $2,390 per day.[20] In McGuire v Secretary for Justice, the Supreme Court held that "the employedlawyer rule" recognised in Henderson Borough Council v Auckland RegionalAuthority is to be applied.2 That rule permits an employer to obtain an award of costson a party and party basis where it is an employed barrister who has appeared andacted as counsel for his employer in the proceedings. That was effectively the situationwith counsel from Crown Law appearing for the Solicitor-General in the proceedingsthat are before the Court.Conclusion[21] I accordingly make an order in the 348 proceedings that Mr Deliu pay to theSolicitor-General costs in the total sum of $5,735.50Solicitors:D J Perkins, Crown Law, Wellington.Copy to:F C Deliu, Plaintiff/Applicant.2 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55]; HendersonBorough Council v Auckland Regional Authority [1984] 1 NZLR 16 (CA).