DELIU v THE INDEPENDENT POLICE CONDUCT AUTHORITY [2022] NZHC 1411

DELIU v THE INDEPENDENT POLICE CONDUCT AUTHORITY [2022] NZHC 1411 [16 June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-1092[2022] NZHC 1411UNDER the Judicial Review Procedure Act 2015;Part 30 High Court Rules 2016; NewZealand Bill of Rights Act 1990; andDeclaratory Judgments Act 1908IN THE MATTER of proceedings moving for an application forjudicial review, a writ of mandamus, bill ofrights claims and a petition for declaratoryreliefBETWEEN DOCTOR FRANCISC CATALIN aliasdictus FRANK DELIUApplicantAND THE INDEPENDENT POLICE CONDUCTAUTHORITYRespondentHearing: On the papersCounsel / Parties: Applicant in personJBM Smith QC and R S May for the RespondentJudgment: 16 June 2022JUDGMENT OF GAULT J(Costs)This judgment was delivered by me on 16 June 2022 at 10:00 ampursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarParties / Solicitors / Counsel:The ApplicantMr JBM Smith QC and Ms KOM Fitzgibbon, Barristers, WellingtonMr R S May, Luke Cunningham Clere, Wellington[1] In my judgment granting Mr Deliu relief in this judicial review proceedingagainst the Independent Police Conduct Authority (IPCA) dated 10 March 2022,I indicated that Mr Deliu was entitled to costs and provided for memoranda to be filedif costs could not be agreed.1[2] The parties have been unable to agree. Mr Deliu seeks costs. IPCA opposescosts on the basis that Mr Deliu is a self-represented litigant and not a practisinglawyer. The parties' memoranda focused on the issue of eligibility. IPCA accepts thatMr Deliu is entitled to recover disbursements.Background[3] It is unnecessary to set out the background in any detail. Mr Deliu's judicialreview proceeding claimed that IPCA had failed to make a decision on five complaintshe had lodged, albeit that decisions were made during the course of the proceeding.My judgment granted a declaration in respect of three of the complaints and made anorder that IPCA consider one complaint.Costs for litigants in person[4] In McGuire v Secretary for Justice,2 the Supreme Court confirmed that theprimary rule is that a successful litigant in person is entitled to recover disbursementsbut not costs. As an exception to the primary rule, a litigant in person who is also alawyer could recover costs (the lawyer in person exception).[5] Mr Deliu submits that he is an admitted barrister and solicitor of this Court andso is eligible for costs under the lawyer in person exception, and that nothing in theHigh Court Rules 2016 prohibits him from a costs award.3 It is not suggested that hecurrently holds a practising certificate or held one during the proceeding.[6] As Mr Deliu submits, there is nothing in the High Court Rules that prohibitshim from a costs award. But the issue is whether the case law provides that the lawyer1 Deliu v The Independent Police Conduct Authority [2022] NZHC 413 at [86].2 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55] and [88].3 Mr Deliu did not pursue a further argument that there is no lawful authority that may deny him anentitlement to costs.in person exception applies only to lawyers who are entitled to practise, that is hold apractising certificate, as Mr Smith QC submits for IPCA.[7] Mr Smith acknowledges that the issue did not arise specifically in McGuirebut he submits that it is evident from the Supreme Court's judgment and the cited casesthat those subject to the lawyer in person exception are those who are entitled topractise, that is, lawyers as defined in the Lawyers and Conveyancers Act 2006.I accept that submission, particularly since the Supreme Court in McGuire quoted twoCourt of Appeal cases: Brownie Wills v Shrimpton,4 which referred to a "practising"barrister and solicitor, and Henderson Borough Council v Auckland RegionalAuthority,5 concerning the parallel employed lawyer exception, which referred to anemployed solicitor "duly enrolled and with a current practising certificate". Also,when stating that the primary rule has been consistently applied in New Zealand, theSupreme Court cited Re Cameron (deceased).6 In Cameron, Williamson J stated:In this case the Defendant did not hold a current practising certificate andaccordingly must be considered as a lay litigant for the purpose of costs.In New Zealand only a practising barrister or solicitor acting in person isentitled to costs.[8] Accordingly, I conclude that the lawyer in person exception applies only to alawyer entitled to practise.[9] This is consistent with the approach adopted in respect of other proceedings byMr Deliu:(a) In Deliu v Office of Judicial Conduct Commissioner in 2011, Brewer Jsaid that Mr Deliu, "although self-represented, is a practising lawyerand he is entitled to an award of costs".74 Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA) at 327, quoted in McGuire at [59].5 Henderson Borough Council v Auckland Regional Authority [1984] 1 NZLR 16 (CA) at 23, quotedin McGuire at [61].6 Re Cameron (deceased) HC Dunedin A56/84, 8 March 1995, footnoted in McGuire at [56], n 44.7 Deliu v Office of Judicial Conduct Commissioner HC Auckland CIV-2011-404-3055,22 December 2011 at [57].(b) In Deliu v Police in 2021, Duffy J stated:8The plaintiff was successful in the substantive judgment and I see noreason to depart from the general principle that costs should followthe event. The plaintiff's ability to recover costs is, however,delimited by his suspension from legal practice by the New ZealandLaw Society (NZLS) on 31 January 2017. Accordingly, he does notqualify for an award of costs from that date onwards.[10] Mr Deliu also relies on the Rules Committee's Second Consultation Paper onCosts for Self-Represented Litigants dated 16 September 2021. That paper states thatthe Committee has made a number of preliminary decisions, including a preliminarydecision that self-represented litigants should be eligible for a costs award if theysucceed with the litigation.[11] However, the High Court Rules have not yet been amended. One issue raisedfor consultation is the level of compensation a successful self-represented litigantshould be paid for their time and effort. Unless and until the Rules are amended, theposition is as stated in McGuire and the other cases cited.[12] Finally, Mr Deliu submitted that costs ultimately follow the event and arediscretionary. He claimed there are exceptional circumstances here. While theSupreme Court in McGuire left open whether there is an exceptional circumstancesexception,9 it did so in referring to Re Collier (A Bankrupt)10 where the Court ofAppeal had noted that there may be exceptional circumstances which justify departingfrom the application of the primary rule. The Court was not addressing whether thelawyer in person exception could apply to non-practising lawyers. In any event, I donot consider that the factors raised by Mr Deliu justify an exceptional circumstancesexception in this case. Accepting that Mr Deliu is legally qualified and has previouslypractised in New Zealand, I am in no position to conclude on this costs applicationwhether, as he submits, the "paramount reason he is no longer practising here – andtherefore does not hold a practising certificate – is because of illegal, if not outrightcorrupt, practices by various state actors". Nor are exceptional circumstances madeout because his proceeding had merit.8 Deliu v Police [2021] NZHC 1744 at [12].9 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55], n 42.10 Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 441-442.[13] For these reasons, Mr Deliu is not entitled to an award of costs.[14] Mr Deliu is entitled to disbursements of $100 as sought.________________________________Gault J