DELIU v THE MINISTER OF POLICE – Costs [2021] NZHC 2800

DELIU v THE MINISTER OF POLICE – Costs [2021] NZHC 2800 [20 October 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-2483[2021] NZHC 2800UNDER THE the Judicial Review Procedure Act 2016,Part 30 High Court Rules, New Zealand Billof Rights Act 1990 and DeclaratoryJudgments Act 1908IN THE MATTER of proceedings moving for an application forjudicial review, writs, civil and bill of rightsclaims and a petition for declaratory reliefBETWEEN FRANCISC CATALIN DELIUApplicantAND THE MINISTER OF POLICERespondentHearing: On the papersAppearances: Applicant in personD Jones and C N Tocher for the respondentJudgment: 20 October 2021JUDGMENT OF JAGOSE J[Costs]This judgment was delivered by me on 20 October 2021 at 3.00pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Law, WellingtonCopy to:Applicant[1] My 17 September 2021 judgment — dismissing Mr Deliu's application forreview as founded on claims to the Minister's removal, reallocation andreconsideration by the police "without the scope of the Minister's permissible'oversight'" — reserved costs for determination on the papers.1[2] I noted:2In my preliminary view — as the unsuccessful party in this averagely complexproceeding requiring counsel of average skill and experience, and in which anormal amount of time is considered reasonable for each step in theproceeding (excluding appearance at its hearing, for which no time isconsidered reasonable) — Mr Deliu should pay 2B costs to the Minister oneach step in the proceeding excluding appearance at its hearing.On that basis, the Minister seeks 2B scale costs in the amount of $10,516.00.[3] Mr Deliu responds to say "not all the causes of action in my statement of claimhave been adjudicated", pointing to the Minister's contended errors of law and factand failure to have regard for the Commissioner's responsibility to give effect to theMinister's lawful directions. He therefore seeks recall of my judgment, and says anaward of costs thus is premature. But he says the Minister's claim for costs in anyevent purports to be made for ineligibly claiming police, is excessive in steps for issueof a statement of defence and on admission of facts, and without proof of litigationexpenses incurred is invalid. He adds "[a]s the issue involves prima facie misconductby Jagose J's sister's office", I should recuse myself.[4] As my judgment records,3 Mr Deliu's prior requests for my recusal have beenunsuccessful. Having now determined his claim, his present request is superfluous,and I reject it (but also as I previously dismissed).4[5] So far as Mr Deliu's grounds for recall are concerned, my substantive judgmentfound:51 Deliu v The Minister of Police [2021] NZHC 2458 at [9] and [12].2 At [11].3 At [2].4 Deliu v The Minister of Police HC Auckland CIV-2020-404-2483, 16 September 2021 (Minute ofJagose J) at [3]–[4].5 Deliu v The Minister of Police, above n 1, at [9].Mr Deliu's request for removal, reallocation and reconsideration determinedlyis in relation to s 16(2)'s enforcement of the law in relation to him, theinvestigation and prosecution of those alleged offences, and decisions aboutindividual police officers in doing so.The necessary corollary of that finding is the Minister made no error, as I held. Thereis no ground for recall.[6] Turning then to Mr Deliu's opposition to the Minister's costs claim, none ofthose grounds has substance either. There is no basis on which to separate the Ministerfrom the agency for which he is responsible and in relation to which his decisions weresought to be reviewed. In any event, as Minister, he took the steps for which costs areclaimed. There is no specific step of issue of a statement of defence; it necessarily isincorporated within "[c]ommencement of defence".6 Further, scale costs do not bearsegregated scrutiny of their individual steps' application in fact.7 Rather, theunsuccessful party is liable to contribute to the successful party's litigation expensescalculated in accordance with those applicable steps, subject only to the overridingrequirement the calculation does not exceed actual expenses.8 I am satisfied fromcounsel's assurance the calculation here does not.[7] I order Mr Deliu pay the Minister costs in the amount of $10,516.00.—Jagose J6 High Court Rules 2016, sch 3.7 Rule 14.2(1)(e).8 Rule 14.2(1)(f).