IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2019-404-1092 [2022] NZHC 1411	

UNDER	the Judicial Review Procedure Act 2015; Part 30 High Court Rules 2016; New Zealand Bill of Rights Act 1990; and Declaratory Judgments Act 1908	
IN THE MATTER	of proceedings moving for an application for judicial review, a writ of mandamus, bill of rights claims and a petition for declaratory relief	
BETWEEN	DOCTOR FRANCISC CATALIN alias
dictus FRANK DELIU Applicant	
AND	THE INDEPENDENT POLICE CONDUCT AUTHORITY
Respondent	

Hearing:	On the papers	
Counsel / Parties:	Applicant in person
JBM Smith QC and R S May for the Respondent	
Judgment:	16 June 2022	

JUDGMENT OF GAULT J
(Costs)

This judgment was delivered by me on 16 June 2022 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Parties / Solicitors / Counsel:
The Applicant
Mr JBM Smith QC and Ms KOM Fitzgibbon, Barristers, Wellington Mr R S May, Luke Cunningham Clere, Wellington

DELIU v THE INDEPENDENT POLICE CONDUCT AUTHORITY [2022] NZHC 1411 [16 June 2022]

[1]	In my judgment granting Mr Deliu relief in this judicial review proceeding against 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 filed if costs could not be agreed.1

[2]	The parties have been unable to agree. Mr Deliu seeks costs. IPCA opposes costs on the basis that Mr Deliu is a self-represented litigant and not a practising lawyer. The parties’ memoranda focused on the issue of eligibility. IPCA accepts that Mr Deliu is entitled to recover disbursements.

Background

[3]	It is unnecessary to set out the background in any detail. Mr Deliu’s judicial review proceeding claimed that IPCA had failed to make a decision on five complaints he 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 an order that IPCA consider one complaint.

Costs for litigants in person

[4]	In McGuire v Secretary for Justice,2 the Supreme Court confirmed that the primary rule is that a successful litigant in person is entitled to recover disbursements but not costs. As an exception to the primary rule, a litigant in person who is also a lawyer could recover costs (the lawyer in person exception).

[5]	Mr Deliu submits that he is an admitted barrister and solicitor of this Court and so is eligible for costs under the lawyer in person exception, and that nothing in the High Court Rules 2016 prohibits him from a costs award.3 It is not suggested that he currently holds a practising certificate or held one during the proceeding.

[6]	As Mr Deliu submits, there is nothing in the High Court Rules that prohibits him from a costs award. But the issue is whether the case law provides that the lawyer

1	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 an entitlement to costs.

in person exception applies only to lawyers who are entitled to practise, that is hold a practising certificate, as Mr Smith QC submits for IPCA.

[7]	Mr Smith acknowledges that the issue did not arise specifically in McGuire but he submits that it is evident from the Supreme Court’s judgment and the cited cases that those subject to the lawyer in person exception are those who are entitled to practise, that is,  lawyers as  defined  in  the  Lawyers and  Conveyancers Act  2006. I accept that submission, particularly since the Supreme Court in McGuire quoted two Court of Appeal cases: Brownie Wills v Shrimpton,4 which referred to a “practising” barrister and solicitor, and Henderson Borough Council v Auckland Regional Authority,5 concerning the parallel employed lawyer exception, which referred to an employed solicitor “duly enrolled and with a current practising certificate”. Also, when stating that the primary rule has been consistently applied in New Zealand, the Supreme Court cited Re Cameron (deceased).6 In Cameron, Williamson J stated:

In this case the Defendant did not hold a current practising certificate and accordingly  must be considered as  a lay litigant for  the purpose of costs.  In New Zealand only a practising barrister or solicitor acting in person is entitled to costs.

[8]	Accordingly, I conclude that the lawyer in person exception applies only to a lawyer entitled to practise.

[9]	This is consistent with the approach adopted in respect of other proceedings by Mr Deliu:

(a)	In Deliu v Office of Judicial Conduct Commissioner in 2011, Brewer J said that Mr Deliu, “although self-represented, is a practising lawyer and he is entitled to an award of costs”.7

4	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, quoted in 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:8

The plaintiff was successful in the substantive judgment and I see no reason to depart from the general principle that costs should follow the event. The plaintiff's ability to recover costs is, however, delimited by his suspension from legal practice by the New Zealand Law Society (NZLS) on 31 January 2017. Accordingly, he does not qualify for an award of costs from that date onwards.

[10]	Mr Deliu also relies on the Rules Committee’s Second Consultation Paper on Costs for Self-Represented Litigants dated 16 September 2021. That paper states that the Committee has made a number of preliminary decisions, including a preliminary decision that self-represented litigants should be eligible for a costs award if they succeed with the litigation.

[11]	However, the High Court Rules have not yet been amended. One issue raised for consultation is the level of compensation a successful self-represented litigant should be paid for their time and effort. Unless and until the Rules are amended, the position is as stated in McGuire and the other cases cited.

[12]	Finally, Mr Deliu submitted that costs ultimately follow the event and are discretionary. He claimed there are exceptional circumstances here. While the Supreme Court in McGuire left open whether there is an exceptional circumstances exception,9 it did so in referring to Re Collier (A Bankrupt)10 where the Court of Appeal had noted that there may be exceptional circumstances which justify departing from the application of the primary rule. The Court was not addressing whether the lawyer in person exception could apply to non-practising lawyers. In any event, I do not consider that the factors raised by Mr Deliu justify an exceptional circumstances exception in this case. Accepting that Mr Deliu is legally qualified and has previously practised in New Zealand, I am in no position to conclude on this costs application whether, as he submits, the “paramount reason he is no longer practising here – and therefore does not hold a practising certificate – is because of illegal, if not outright corrupt, practices by various state actors”. Nor are exceptional circumstances made out 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