BP (South Africa) v Refugee and Protection Officer

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001607 [2018] NZHC 1679

BETWEEN
BP (SOUTH AFRICA)

Applicants

AND

REFUGEE AND PROTECTION OFFICER Respondent

CIV-2017-404-001659

BETWEEN BP (SOUTH AFRICA) Applicants

ANDIMMIGRATION AND PROTECTION TRIBUNAL
First Respondent

ANDREFUGEE AND PROTECTION OFFICER Second Respondent

Hearing: (On the papers)

Counsel:

Tonderai Mukusha for the Applicants
Matthew Mortimer for the Respondents

Judgment:

10 July 2018

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 10 July 2018 at 1:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

BP (SOUTH AFRICA) v REFUGEE AND PROTECTION OFFICER [2018] NZHC 1679 [10 July 2018]

[1] In a decision of 20 December 2017 I declined applications by a father and son for leave to appeal against, and judicially review, a decision of the Immigration and Protection Tribunal, which dismissed their appeals against the decision of the Refugee and Protection Officer (“RPO”) refusing to recognise them as refugees or protected persons.1

[2] At the conclusion of my judgment I indicated the RPO, as the successful parties, were entitled to costs. My preliminary view was costs should be awarded on a 2B basis, and I asked that counsel confer with a view to filing a joint memorandum.

[3] Counsel did confer and no resolution was reached. The RPO consequently filed a memorandum on 5 February 2018 seeking costs on a 2B basis and disbursements, totalling $11,420.00.

[4] That appears to have prompted a change of course; on 29 March 2018, counsel for the applicants filed a memorandum advising they were in agreement with the costs sought by the RPO.

[5] In that context all that remains is for me to determine whether the costs sought are reasonable. Having reviewed the memorandum of the RPO, I am satisfied they are, with the exception of one minor matter. Costs are sought for the step taken to seal this costs award, and a disbursement for that step is also sought prospectively.

[6] This Court is generally reluctant to award costs on costs matters.2 In this case, where costs were ultimately not opposed and the RPO’s costs memorandum was
succinct, I do not consider it would appropriate from depart from that position.

1 BP (South Africa) v Refugee and Protection Officer [2017] NZHC 3259.
2 Jeffreys v Morgenstern [2013] NZHC 1361 at [40].

Result

[7] I award costs on a 2B basis totalling $10,704.00 and disbursements of $220.

Moore J

Solicitors/Counsel:
Mr Mukusha, Auckland
Mr Mortimer, Auckland

CaseChat Overview and Summary

In the case of BP (South Africa) v Refugee and Protection Officer, the applicants, a father and son from South Africa, sought leave to appeal against, and judicially review, a decision by the Immigration and Protection Tribunal, which dismissed their appeals against the decision of the Refugee and Protection Officer ("RPO") refusing to recognise them as refugees or protected persons. The applicants had previously sought to appeal against the RPO's decision, which was dismissed by the High Court of New Zealand on 20 December 2017. The court indicated that the RPO, as the successful party, was entitled to costs.

The primary legal issue before the court was whether the costs sought by the RPO were reasonable, given that the applicants had not opposed the costs in their final submission. The RPO had initially sought costs on a 2B basis and disbursements, totalling $11,420.00. However, after the applicants agreed to the costs sought by the RPO, the only remaining issue was the reasonableness of these costs. The court noted that it is generally reluctant to award costs for costs matters, but in this case, where costs were not opposed and the RPO's costs memorandum was succinct, the court did not consider it appropriate to depart from this position.

After reviewing the RPO's costs memorandum, the court determined that the costs sought were reasonable, with the exception of one minor matter. The court found that costs should not be awarded for the step taken to seal the costs award, nor should a disbursement for that step be sought prospectively. The court awarded costs on a 2B basis, totalling $10,704.00, and disbursements of $220.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	(On the papers)
Counsel:	Tonderai Mukusha for the Applicants Matthew Mortimer for the Respondents
Judgment:	10 July 2018