BR (Bangladesh) v Chief Executive, Ministry of Business, Innovation and Employment

[2018] NZHC 902

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-001998

[2018] NZHC 902

UNDER

the Immigration Act 2009

IN THE MATTER

of an application for leave to appeal

BETWEEN

BR (BANGLADESH)

Applicants

AND

CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT

Respondent

CIV 2017-404-002001

UNDER

the Judicial Review Procedure 2016

IN THE MATTER

of an application for leave to bring judicial review proceedings

BETWEEN

BR (BANGLADESH)

Applicants

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND
EMPLOYMENT

Second Respondent

Hearing:	On the papers
Judgment:	2 May 2018

BR (BANGLADESH) v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 902 [2 May 2018]

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 2 May 2018 at 12.30 pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/parties:

BR Applicants, supported by McKenzie friend, Mr Bryan Johnson Meredith Connell, Auckland

[1]                The second respondent, who successfully opposed the applicants’ application for leave to appeal and judicially review a decision of the first respondent now seeks costs.

[2]                The costs sought are calculated on a 2B basis. In terms of the allocation schedule the costs total $7,136.00. The respondent also seeks payment of disbursements of $270.00 (filing fees for notices of opposition $220.00 and sealing the costs order $50.00).

[3]                The applicants acknowledge the second respondent was successful. They seek a reduction in costs and time to pay, relying on r 14.7(g) of the High Court Rules, which recognises the existence of some other reasons which justify the Court refusing costs or reducing costs, despite the general principle that determination of costs shall be predictable and expeditious.

[4]This rule has been described by this Court as a “catch-all” exception:1

[10] The “catch-all” exception in rule 14.7(g) is broad, but requires identification of a good reason for departing from the general rule that costs should follow the event. Examples may include habeas corpus applications and claims under the New Zealand Bill of Rights Act 1990…

[5]                The applicants acknowledge there were no public interest reasons advanced in their application, and that such matters as they did advance were specific to them as a family. They say they are not in a position to pay costs in one lump sum. They suggest a realistic costs award would be in the sum of $2,500 to be paid at $50 per week.

[6]                The general principle is that costs follow the event. I understand the difficult circumstances the applicants face and the adverse impact a costs order would have on them. Nonetheless, the reasons they advance do not provide a basis for departing from the general principle regarding costs.

[7]                In Singh v Immigration and Protection Tribunal Cooper J canvassed the perils of accepting such an argument:2

1      Taylor v District Court at North Shore HC Auckland CIV-2009-404-2350, 13 October 2010.

2      Singh v Immigration and Protection Tribunal [2014] NZHC 2065.

[6]        Mr Singh has not engaged with the calculation of costs, and the only points he raises are essentially based on his inability to pay. While I have some sympathy with the position that he is in, it is not possible to articulate a proper reason for declining an award of costs having regard to the relevant provisions of the High Court Rules.

[7]        … the only vehicle by which there could be a reduction of costs would be paragraph (g), under which the Court has the broad power to reduce costs if “some other reason exists” justifying the Court taking that step.

[8]        Acting under that paragraph in the circumstances of this case would create a precedent of potentially very wide application and ultimately would not be justified having regard to the other, more specific provisions of the relevant rules.

[8]                In addition, no evidence affidavit or other evidence has been brought before me as to the applicants’ financial position.3

[9]                I have carefully considered the matter and am satisfied that the second respondent is entitled to category 2B costs. I am also satisfied that the quantum of those costs as calculated by the second respondent is correct.

[10]Accordingly, I award the second respondent the sum of $7,136.00.

[11]            Regarding disbursements, the second respondent filed notices of opposition in each proceeding. I am satisfied the second respondent is entitled to the $220.00 for the filing fees for the notices of opposition and the $50.00 for sealing the costs order. The total sum being $270.00.

Duffy J

3      See AX (Afghanistan) v Immigration and Protection Tribunal [2018] NZHC 52 at [26].