AR v Immigration and Protection Officer

[2017] NZHC 978

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF HIS OR HER CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-3142 [2017] NZHC 978

UNDER

Section 249 of the Immigration Act 2009

and the Judicature Amendment Act 1972

IN THE MATTER

of the 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol

BETWEEN

AR Applicant

AND

IMMIGRATION AND PROTECTION OFFICER

First Respondent

REFUGEE AND PROTECTION OFFICER

Second Respondent

CIV 2015-404-3143

UNDER  Section 245 of the Immigration Act 2009

IN THE MATTER             of the 1951 Convention Relating to the

Status of Refugees and its 1967 Protocol

BETWEEN  AR Applicant

ANDREFUGEE AND PROTECTION OFFICER

Respondent

Hearing:	On the papers
Judgment:	15 May 2017

AR v IMMIGRATION AND PROTECTION OFFICER COSTS [2017] NZHC 978 [15 May 2017]

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 15 May 2017 at 11 am pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Meredith Connell, Auckland

Background

[1]      Mr AR is an Indian citizen whose claim for refugee status was declined.  His appeal  to  the  Immigration  and  Protection Tribunal  was  dismissed  in  November

2015.1     He sought leave to appeal and  to judicially review the decision of the

Tribunal, which I granted on 10 February 2017.2

[2]      Mr AR was self-represented, but supported by a McKenzie friend.   In my decision as to leave, I noted that self-represented persons are generally not entitled to awards of costs.3    I expressed the preliminary view that there was nothing in the proceedings that warranted treating Mr AR as an exception to the general rule, but reserved leave to him to address that topic if he wished to do so.4

[3]      Mr AR now seeks costs on a 2B basis, reduced to take into account the fact that he is a lay litigant.   The Immigration and  Protection Tribunal opposes the application for costs.

Mr AR’s submissions

[4]      Mr AR accepts that there is an established rule that a litigant in person is not normally  entitled  to  an  award  of  costs.    However,  he  submits  that  there  are exceptions to that rule.  To support this argument he cites Re Collier (A Bankrupt),5 and submits that his case is analogous to the exceptional example in that case.  In particular,  he  emphasises  that  leave  was  granted  in  his  case  because  it  was considered to be “of general and public importance”.

[5]      Mr AR also submits that the human rights and refugee law context of his case makes it exceptional: he is seeking to vindicate fundamental human rights, which do not affect only the individual claimant.  In bona fide but failed claims under the New Zealand Bill of Rights Act 1990 (NZBORA), the successful party has sometimes

been  granted  lower  costs  awards  on  the  principle  that  claimants  should  not  be

1      Re BY (India) [2015] NZIPT 800819.

2      AR v Immigration and Protection Officer [2017] NZHC 132.

3 At [39].

4 At [39].

5      Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA).

discouraged from pursuing claims under the NZBORA.  To support this argument, he refers to my decision in Wong v Registrar of the Auckland High Court.6

[6]      Mr AR also refers to RM v Immigration and Protection Tribunal, a costs judgment in which Palmer J stated that bona fide refugee claimants should not be discouraged  from making leave applications by the threat of an award of costs against them.7    Palmer J stated that this problem was remedied by successful applicants being awarded costs.   Mr AR points out that for the self-represented litigant, however, this form of encouragement does not exist.

[7]      Finally,  Mr AR  submits  that  the difficulty of  calculating  costs  for a  lay litigant should not be a barrier to an award of costs.  Costs should be awarded on a

2B basis, and then reduced at the Court’s discretion to the level of a lay litigant.

Respondent’s submissions

[8]      The respondent submits that there is no reason to depart from the general rule that self-represented persons are not entitled to an award of costs.

[9]      The respondent contends that Mr AR’s claim is not within the category of “exceptional case” contemplated in Collier: it is no different from that of other refugee claimants who successfully apply for leave to appeal or commence judicial review proceedings.   Both those proceedings are fundamentally self-interested, in that they seek for the Tribunal’s decision to be quashed and Mr AR’s claim to be reheard.

[10]     If the Court is in any doubt on the question of costs, the respondent submits that it should be left until the substantive proceedings have been determined.

6      Citing Wong v Registrar of the Auckland High Court (2008) 19 PRNZ 32 (HC).

7      RM v Immigration and Protection Tribunal [2016] NZHC 1701.

Discussion

[11]     Costs are at the discretion of the court.8   The fundamental principle is that the party who fails with respect to a proceeding should pay costs to the party who succeeds.9

[12]     However, it is well established that self-represented litigants are not normally entitled to recover costs.10   The self-represented litigant is typically entitled only to reasonable disbursements at the court’s discretion, such as photocopying expenses and court fees.11   This is because the lay litigant has not incurred legal fees, but has spent his or her own time preparing the case.  The Court of Appeal in Re Collier (A Bankrupt) observed:12

… if a litigant in person were to be given a costs award to recompense him for his time and trouble in preparing his case, then there would be no logical reason for not making a similar award to a litigant who was legally represented but who would also have spent his own time and taken his own trouble in preparing his side of the litigation.

[13]     The Court also referred to the practical difficulty of determining the basis on which costs for the lay litigant should be calculated.13

[14]     However, the principle against awarding costs to lay litigants is a rule of practice and not a rule of law.  The Court in Re Collier (A Bankrupt) has stated that an exception would apply in the following circumstances:14

For example, it could happen that a litigant might involve himself in an action without hope of any personal gain or advantage, but purely out of the concern for the welfare of the general public. Such cases have occurred in the past, as in Simpson v Attorney-General [1955] NZLR 271 in which the plaintiff challenged the validity of the general election of 1946 because of certain irregularities in the formalities that preceded it. Another case was Fitzgerald v Muldoon [1976] 2 NZLR 615 in which the plaintiff successfully challenged the validity of a policy announced by the then Prime Minister

8      High Court Rules 2016, r 14.1.

9      High Court Rules 2016, r 14.2(a), described as a “fundamental principle” in Manukau Golf Club

Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

10     Re Collier (A Bankrupt), above n 5; see also Commissioner of Inland Revenue v Chesterfields

Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [162].

11     Re Collier (A Bankrupt), above n 5, at 440.

12     At 440.

13     At 441.

14     At 441.

concerning superannuation scheme payments laid down by statute without first convening Parliament to pass enabling legislation.

[15]     I do not consider that  Mr AR’s case falls into this exceptional category. Although I found that there was a question of law of general or public importance at stake, this was simply a finding that the criteria for leave to appeal and/or to commence judicial review proceedings were met.15   That question of law arose in the wider context of Mr AR challenging the Tribunal’s refusal to grant him refugee status.   As Palmer J commented in RM v Immigration and Protection Tribunal,

which was a costs judgment in the refugee context, an application for leave to appeal and to judicially review a refusal to grant refugee status is a claim that is essentially pursued in the applicant’s private interests.16    While the outcome may have wider implications beyond the individual claimant, it cannot be characterised as an action brought “without hope of any personal gain or advantage, but purely out of the concern for the welfare of the general public”.  Mr AR’s own welfare and interests are clearly at stake.

[16]     Mr AR also referred to Palmer J’s comments in RM that refugee claimants should not be discouraged from bringing claims, and that this is achieved by successful applicants being awarded costs.  Mr AR says that there would be no such encouragement for self-represented refugee claimants if there is no possibility for costs awards to be made in their favour.  I do not consider that Palmer J’s statements can properly be extended to establish a special exception for refugee claimants to the general principle that self-represented litigants are not entitled to costs.   Palmer J simply stated that successful applicants in the refugee context should be entitled to costs, just as successful applicants are in any other context, without addressing self- represented applicants at all.

[17]     Similarly, I do not consider that my comments in Wong v Registrar of the Auckland High Court are strictly relevant to the present case.  It may be that in some cases costs awards against unsuccessful NZBORA applicants are reduced to reflect the fact that they should be encouraged in bringing NZBORA claims.  However, it

would be a significant extension of that principle to say that all successful self-

15     See ss 245 and 249 of the Immigration Act 2009.

16 At [5].

represented  litigants  bringing  human  rights-related  claims  are  entitled  to  costs awards.  I consider that goes too far.

[18]     I therefore conclude that there is no reason in Mr AR’s case to depart from the general principle stated in Collier that self-represented litigants cannot recover costs.

Result

[19]     Mr AR’s application for costs is declined.

[20]     Mr AR is entitled to reasonable disbursements to be fixed by the Registrar.