CF v Attorney-General sued on behalf of the Minister of Immigration

[2016] NZHC 3187

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS 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-2016-404-000420 [2016] NZHC 3187

BETWEEN

CF

Applicant

AND

THE ATTORNEY-GENERAL SUED ON BEHALF OF THE MINISTER OF IMMIGRATION

Respondent

Hearing:	On the papers
Counsel:	R J Hooker for Applicant N Bailey and N Fong for Respondent
Judgment:	21 December 2016

JUDGMENT OF WHATA J

This judgment was delivered by me on 21 December 2016 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Vallant Hooker & Partners, Auckland

Crown Law, Wellington

CF v THE ATTORNEY-GENERAL [2016] NZHC 3187 [21 December 2016]

[1]      CF  has  applied  for  judicial  review  of  a  decision  of  the  Minister  of Immigration (the Minister) to decline him residency. He claims among other things that the decision was unreasonable having regard to the positive recommendation of the Immigration and Protection Tribunal (the IPT). CF applied for leave to cross- examine the Minister to explore the reasons for departing from the IPT’s recommendation. CF did not comply with a number of timetabling orders and ultimately withdrew the application one day before the hearing. CF is legally aided.

[2]      The Attorney-General seeks costs in respect of CF’s application for leave to

cross-examine the decision maker, following the discontinuance of the application. [3]       In particular, the Attorney-General seeks:

(a)      As against CF’s counsel/solicitors, an order for costs on a 2A basis (in the sum of $1,115) for preparation of the respondent’s draft submissions, pursuant to the inherent jurisdiction of the High Court.

(b)      As against CF:

(i)An order for costs on a 2B basis, plus disbursements (in the sum of $1,448) against CF, pursuant to s 45(2) of the Legal Services Act 2011; or

(ii)If the Court is not minded to do so, an order specifying what order of costs would have been made against CF with respect to the application if s 45 of the Legal Services Act 2011 had not affected CF’s liability, pursuant to s 45(5) of the same Act.

[4]      Reliance is placed upon, among other things, the seminal authority, Harley v

McDonald1 and a practice note of the Law Society of England and Wales on awards against solicitors personally in immigration matters.2

1      Harley v McDonald [2002] 1 NZLR 1 (PC).

2      The Law Society of England and Wales “Immigration Judicial Review” at [13.1] and [13.3],

(a) (b)	A four month delay in filing an amended statement of claim; A four day delay in filing an application for leave to cross-examine
the Associate Minister;
(c)	The failure to file a synopsis of argument as required by a specified date in advance of an interlocutory hearing on the application;
(d)	An  uncooperative  approach  to  the  settling  of  timetabling  and directions as requested by the Court;
(e)	The late vacating of a fixture to accommodate counsel for CF;
(f)	The  failure  to  file  submissions  in  accordance  with  an  amended
timetable; and
(g)	Advising, one working day before submissions were due, that the
application was to be withdrawn.
[6]	The	Attorney-General   also   complains   about   CF’s   conduct   in   related

proceedings (CIV-2016-404-435/437 CF v Immigration and Protection Tribunal). These proceedings  were  set  down to  be heard  on  5 July,  with  the submissions timetabled for 14 June 2016.  The submissions were not filed by that date but the respondent was advised three days after the filing date that the proceedings might be discontinued.   On 1 July 2016, two working days before the hearing, CF filed a notice of discontinuance.  CF did not comply with a requirement to file a reply in relation to submissions by CF on costs.

[7]      Mr Hooker for CF responds:

(a)       There was a proper basis for the interlocutory application, given that the Minister did not provide reasons for his decision and it is unusual

< a Minister would not adopt and follow the recommendation of the judicial body that has the jurisdiction to consider the merits of an application and to make a recommendation to the Minister.

(b)The respondent did not foreshadow in its notice of opposition that it intended to file an affidavit in support of its position.

(c)      Counsel  was  at  the  time  subject  to  significant  work  pressures, including attendances before the Court of Appeal.

(d)No objection had been rendered by the respondent to the interlocutory application  hearing  being  vacated,  on  the  basis  that  it  was  heard before any substantive fixture.

(e)      In terms of the related proceedings, CF sought legal aid but legal aid had been declined so the proceedings were discontinued.

(f)      CF could not actively pursue his proceedings until the grant of legal aid  and  this  impacted  on  the  ability  of  counsel  to  complete attendances, including the filing of a synopsis of submissions by the required dates.

(g)Costs can only be allocated in respect of the interlocutory application and in relation to the submissions due on 12 August 2016.

(h)Those submissions were not able to be filed because of pressure of work arising from an urgent fixture in the Court of Appeal.

(i)“Court of Appeal commitments required preference over High Court commitments”.

(j)In terms of the application for costs against CF per se (who is legally aided), the circumstances are not exceptional, as required.

[8]      The failure to comply with timetabling orders in this case, combined with the very late withdrawal of the application to cross-examine, would ordinarily attract a costs order of the scale sought by the Attorney-General against CF. But for s 45 of the Legal Services Act, I would have made a costs order accordingly.

[9]      However, I am not satisfied the exceptional circumstances threshold at s

45(2) has been triggered or that Mr Hooker’s conduct warrants an award against

counsel.

[10]     First, while indirectly relevant, Mr Hooker’s conduct in related proceedings or in relation to other aspects of the present proceeding is not causally related to the wasted costs in respect of the application on which costs are sought.

[11]     Second, the present application should not be approached through the lens of well funded litigants in commercial proceedings. Rather:

(a)       The proceedings are public law proceedings;

(b)       Involving a refugee applicant for residency of very limited means;

(c)     The application was not without merit – CF had a supportive recommendation from the IPT;  and

(d)This Court is assisted by the presence of Counsel who are prepared to offer their services at legal aid rates and/or, as in this case, in the hope of legal aid being granted.

[12]     Third, I accept Mr Hooker’s approach to timetabling is amenable to criticism. But he was working in trying circumstances – his refugee applicant did not have legal aid at the time of the application or at the time of filing a consent memorandum dealing with timetabling and he had commitments to the Court of Appeal running in tandem with the timetabling requirements of this Court. While these factors do not provide  an  excuse  for  failing  to  comply  with  timetabling  orders,  or  an  unduly

delayed withdrawal of the application, the imposition of costs against counsel would be unduly punitive in the particular circumstances of the present application.

[13]     Fourth,  I  do  not  consider  that  the  application  to  cross-examine  was improperly made and/or completely without merit (and  I do not understand the Attorney-General to be saying so).

[14]     Fifth, this case is not similar to the authorities cited by the Attorney-General as giving rise to wasted costs: they were plainly hopeless cases.3

[15]     Sixth, I am not minded to adopt the practice note of the Law Society of England and Wales on immigration matters.4 There are contextual factors which may make such a practice both necessary and appropriate, including the scale of the immigration work in that jurisdiction. Conversely, for the reasons already specified at [11]-[12], the combination of funding constraints on and other Court commitments in this case militate against the generalised application of the English and Welsh practice in the present case.

[16]     Accordingly:

(a)      I declare that but for the legal aid status of CF I would have made a costs order in favour of the Attorney-General in the sum of $1,448.00 (including a filing fee disbursement of $110);

(b)      I decline to make an order pursuant to s 45(2);

(c)       I decline to make an order for costs against Mr Hooker personally.

3      Body Corporate No 192964 v Auckland City Council HC Auckland CIV-2004-404-7207, 20

February 2006; ANZA Distributing New Zealand Ltd (in liq) v USG Interiors Pacific Ltd HC Auckland CIV-2007-404-3474, 18 September 2009; F v M [2015] EWHC 3259. Counsel for the Attorney-General also cited to me the decision in L v Chief Executive of the Ministry of Social Development (2008) 19 PRNZ 116 (HC) but that decision to award costs against counsel was overturned  by  the  Court  of Appeal  in  Deliu  v  Chief  Executive  of  the  Ministry  of  Social Development [2012] NZCA 406.

4      The key part of the Practice Note states: “In immigration matters, the Upper Tribunal and High Court have been highly critical of solicitors in some instances and have made orders for wasted costs to be paid by solicitors themselves rather than their clients. In light of the reported decisions, the court may treat any and all firms as being on notice of these issues and may more readily make such orders against solicitors in immigration matters than would be the case in other jurisdictions.”

[17]     In  saying  this,  I  accept  the Attorney-General’s  application  for  costs  was properly made. Mr Hooker’s failure to adhere to timetabling orders and the belated withdrawal of the application led to wasted costs being incurred. Solicitors acting in a similar fashion in future cases do so at their peril.

Addendum

[18]    Mr Hooker suggested that his “Court of Appeal commitments required preference over High Court commitments”. It may be that Mr Hooker did not mean to be taken literally. But if so, that presumption is plainly discourteous to this Court. Solicitors of the High Court are expected to comply with timetabling orders unless leave is granted to depart from them. It is no excuse to raise appellate court commitments well after non-compliance. Scarce resources are allocated on the basis of timetabling commitments. It is not for Counsel to unilaterally ignore those commitments.   A different judge may have weighed this disregard of duty to this Court more heavily in the assessment of costs. But I simply prefer to record that solicitors should not expect immunity from costs awards for timetabling breaches based on a so-called preference for appellate commitments. Counsel will in every case need to seek the leave of this Court to depart from pre-existing timetabling orders. It may be that leave will be granted or that Counsel will need to make other arrangements either in this Court or in the superior Court.