IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2021-404-1714
[2023] NZHC 777	

UNDER THE	Judicial Review Procedure Act 2016, Part 30 of the High Court Rules, New Zealand Bill of Rights Act 1990 and Declaratory Judgments Act 1908	
IN THE MATTER OF	Proceedings moving for an application for judicial review, writs, bill of rights claims and a petition for declaratory relief	
BETWEEN	FRANCISC CATALIN DELIU
Applicant	
AND	NICHOLAS FRASER FLANAGAN
First Respondent

Cont:/	

Hearing:	On the papers	
Counsel/ Representation:	Applicant in person
D Jones and T Li for Second to Sixth Respondents	
Judgment:	17 April 2023	

JUDGMENT OF PAUL DAVISON J
[Re: Application for Recusal and Other Applications]

This judgment was delivered by me on 17 April 2023 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Law Office, Wellington

DELIU v FLANAGAN [2023] NZHC 777 [17 April 2023]

AND	GILLIAN HOLLAND
Second Respondent	
AND	ANTONY McKENZIE
Third Respondent	
AND	JAMES CASSIN
Fourth Respondent	
AND	TONI JORDAN
Fifth Respondent	
AND	THE NEW ZEALAND POLICE
Sixth Respondent	

[1]	On 12 October 2022 I delivered a judgment in this matter in which I dismissed all of the applicant’s causes of action, directed the parties to file costs memoranda, and said that upon receipt of the costs memoranda I would determine costs on the papers.1

[2]	By interlocutory application dated 24 November 2022, Mr Deliu (the applicant) applies for:

(a)	an order that I recuse myself with regard to the determination of costs;

(b)	a direction that a transcript of the hearing on 25 May 2022 be prepared and provided to the parties ahead of an oral hearing of the recall application;

(c)	an order that the judgment be recalled; and

(d)	in the event of the recall application being declined, an order amending the timetable directions in the judgment directing the filing of costs memoranda by the parties.

[3]	By Notice of Opposition the second to sixth respondents (the respondents) oppose the applications for: recall of the judgment; my recusal as the Judge to determine costs; and for a transcript of the hearing. The grounds on which the respondents oppose the applications for recall and recusal are that none of the grounds relied on by the applicant meet the requisite criteria for recall,2 or recusal.3

The application for recusal

[4]	The applicant’s grounds for the application for recusal are that the directions in the judgment requiring the parties to file costs memoranda, amount to a predetermination of costs.4 The relevant paragraphs of the judgment read:

1	Deliu v Flanagan [2022] NZHC 2621.
2	Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
3	Justice G J Venning “High Court recusal guidelines” (12 June 2017) Courts of New Zealand
<courtsofnz.govt.nz>.
4	Deliu, above n 1, at [125].

[125]	The second to sixth respondents having succeeded at the hearing are entitled to an award of costs.

…

[128]	Upon receipt of the parties’ costs memoranda in accordance with the provisions of these directions I shall determine costs on the papers.

[5]	The applicant submits that the contents of para [125] amount to a conclusive finding and predetermination of costs in favour of the respondents, without having heard from him. The applicant says that the paragraph shows that I no longer have an open mind on the issue of costs in circumstances where he intends to oppose an order for costs being made against him, and also intends to seek an award of costs being made in his favour.

[6]	Rule 14.2(1) of the High Court Rules 2016 sets out the general principles applicable to the determination of costs, including that the party who fails with respect to a proceeding should pay costs to the party who succeeds.5

[7]	The contents of para [125], as set out above at [4], do not indicate that I have a concluded view on the question of costs. Paragraph [128] makes it clear that the issue of costs will be determined on the papers following the receipt of the parties’ costs memoranda. The applicant’s submissions regarding costs will be considered before a decision regarding an award of costs is made. None of the criteria set out in the High Court Recusal Guidelines apply here,6 and there has been no predetermination of costs. I accordingly decline to recuse myself from proceeding to decide costs in relation to the matters determined by my judgment.

Recalling the judgment

[8]	The applicant seeks recall of the judgment, and seeks a direction that a copy of the transcript of the hearing on 25 May 2022 be provided to the parties ahead of an oral hearing of his application for recall of the judgment.

5	High Court Rules 2016, r 14.2(1)(a).
6	High Court recusal guidelines, above n 3.

[9]	The applicant says the following matters taken together rendered the trial fundamentally and fatally flawed. He says they amount to special reasons that require that the judgment be recalled, including that the Judge has violated the applicant’s basic and fundamental rights to natural justice. The applicant says that by the judgment:

(a)	I have predetermined the issue of costs;

(b)	I did not adjudicate on one of the pleaded causes of action;

(c)	I dismissed another cause of action that the applicant succeeded in by bringing the proceeding which compelled the “active respondents” to belatedly act on the applicant’s complaints;

(d)	I based my decision on an improper last-minute “ambush” or alternative defence raised by the Crown that had not been pleaded;

(e)	I adjudicated on underlying merits of the dispute in the context of determining a judicial review; and

(f)	I failed to provide reasons for allowing the Crown to introduce an alternative or additional defence.

[10]	The principles to be applied to determining an application for recall of a judgment were explained by Wild CJ in Horowhenua County v Nash (No 2):7

Generally speaking, a judgment once delivered must stand for better or worse, subject of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

7	Horowhenua County, above n 2.

[11]	In Erwood v Maxted the Court of Appeal set out guidelines for recall of judgments in civil proceedings before the Court of Appeal.8 It said:

[23]	This Court is concerned with the proliferation of unjustified applications to recall judgments and has agreed upon the following guidelines to deal with such applications.

(a)	Accidental slips or omissions

(i)	Any accidental slip or omission may be corrected under r 8 of the Court of Appeal (Civil) Rules 2005.

(ii)	Where the parties are agreed that an error or omission which falls within r 8 should be remedied, a joint memorandum may be filed for consideration by the Court.

(iii)	Where there is no agreement, or where the Court directs, a formal application is required in accordance with the process set out in (c) below.

(b)	Applications to recall judgments not falling within r 8

(i)	Where a party seeks to recall a judgment not falling within r 8, the criteria set out in Horowhenua County v Nash (No 2)[1968] NZLR 632 at p 633 (as confirmed by this Court in Unison Networks Limited v Commerce Commission [2007] NZCA 49) are to be followed and will be strictly applied.

(ii)	Applications which merely seek to relitigate matters already considered, or to challenge substantive findings of fact and law, will not be entertained. Reference may usefully be made to Ngahuia Reihana Whanau Trust v Flight CA23/02 26 July 2004; and Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832.

(c)	Process

(i)	Where a formal application is required in terms of these guidelines:

(a)	it must be made on notice to all other parties;

(b)	any party served with an application need not respond unless directed to do so by the Court;

(c)	the Court will deal with the application on the papers or by oral hearing in terms of r 51(6);

8	Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466.

(d)	the Court will usually give only brief reasons for its decision on any application;

(e)	any further application seeking to recall a decision refusing an application to recall will usually be dealt with summarily; and

(f)	the Court will consider ordering increased or indemnity costs against parties and/or
counsel bringing unmeritorious applications.

[12]	While the Court of Appeal’s guidelines relate to matters before that Court, those guidelines where relevant will also inform this Court’s approach to consideration of an application for the recall of a judgment. I note that it is not unusual for recall applications to be considered on the papers, even where a party requests an oral hearing.9

[13]	Here the applicant has sought that a written transcript of the hearing be provided to the parties “ahead of the hearing of the recall motion infra”, from which it appears that the applicant is seeking an oral hearing of the application for recall, recusal and other orders. However, I am not persuaded that an oral hearing is required in the circumstances of this case. The application for recall is seeking to relitigate matters which have been considered and determined by my judgment, and is clearly an application of the kind described by the Court of Appeal in Erwood that will not be entertained.10

[14]	I also consider that none of the matters identified and relied on by the applicant amount to special reasons requiring the judgment to be recalled, or have merit. All the causes of action are addressed and dealt with in the judgment. At the commencement of the trial the applicant was given an opportunity for the matter to be adjourned to enable him time to consider and respond to the issues raised by the affidavit of Detective Inspector Beard sworn on 19 May 2022. The affidavit was admitted as evidence after I granted an application made by the respondents for an extension of time for the filing of the affidavit, having considered Detective Inspector Beard’s evidence to be relevant to the issues arising in the proceeding. When considering the

9	Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR11.9.01(1)]; and Nottingham v Ardern [2020] NZHC 1013 at [3].
10	Erwood, above n 8, at [23(b)(ii)].

respondents’ application for an extension of time, I advised the applicant that to ensure that there was no unfairness to him arising from the late filing of this further evidence, I would adjourn the hearing in order to give him further time to consider and respond to Detective Beard’s evidence. However, the applicant elected to proceed.

[15]	The applicant has not shown that for any very special reasons justice requires recall of the judgment, and I accordingly decline the application to recall the judgment.

The transcript

[16]	As I have concluded that this matter is appropriately determined on the papers and an oral hearing is not necessary, there is no utility in the preparation and distribution of a transcript of the hearing which Mr Deliu has sought to be made available ahead of an oral hearing of his recall application. Mr Deliu submits the transcript is necessary to have a record of my decision to grant the extension of time for filing Detective Inspector Beard’s affidavit. Mr Deliu says that he has “absolutely no recollection” that the Court gave reasons regarding the admission of this evidence. As this judgment, at [14], confirms my reasons for admitting Detective Inspector Beard’s affidavit were because of the relevance of his evidence to the issues arising in the proceeding, a transcript of the hearing can have no effect on the proceeding. In these circumstances I consider that a direction for the preparation of a transcript of the hearing, is not necessary in the interests of justice and would not be an appropriate or efficient use of the Ministry of Justice’s resources. I accordingly decline to direct the preparation of a transcript of the hearing held on 25 May 2022.

Amendment of the timetable direction for the filing of costs memoranda

[17]	In the event of the recall application being declined, Mr Deliu seeks an order amending the timetable directions in the judgment directing the filing of costs memoranda. The respondent does not oppose the application, and I am satisfied that it is appropriate to amend the timetable to enable the parties to file and serve costs memoranda, following which I shall determine costs on the papers.

[18]	I accordingly direct the parties to file their costs memoranda in accordance with paragraphs [126] and [127] of my judgment of 12 October 2022,11 with the time for filing to commence on the date of the issuing of this judgment. In all other respects the provisions of paragraphs [126] and [127] of that judgment shall continue to apply.

Paul Davison J

11	Deliu, above n 1.