Chan v Minister of Immigration

[2015] NZHC 2450

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2015-442-5 [2015] NZHC 2450

UNDER	the Immigration Act 2009
IN THE MATTER	of an application for leave to appeal a decision of the Immigration and Protection Tribunal pursuant to s 245 of the Immigration Act 2009
BETWEEN	SEYLA CHAN Applicant
AND	MINISTER OF IMMIGRATION Respondent

Hearing:	(On the papers)
Counsel:	S J Zindel for Applicant I M G Clarke for Respondent
Judgment:	7 October 2015

COSTS JUDGMENT OF BREWER J

This judgment was delivered by me on 7 October 2015 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:      Zindels (Nelson) for Applicant

Crown Law (Wellington) for Respondent

CHAN v MINISTER OF IMMIGRATION [2015] NZHC 2450 [7 October 2015]

Introduction

[1]      In  a  judgment  delivered  on  27 August  2015,  I  dismissed  Mr Chan’s application  for  leave  to  appeal  the  decision  of  the  Immigration  and  Protection Tribunal that he be deported.1    The Crown seeks costs and disbursements against Mr Chan.

[2]      Rule  14.1  of  the  High  Court  Rules  confers  upon  the  Court  a  general discretion to award costs.  That discretion is not unfettered and should be exercised judicially in accordance with the general scheme of Part 14, and in particular rr 14.2 to 14.10.2     The general principle is that costs follow the event:3  the losing party should make a reasonable contribution to the costs of the successful party.   This principle applies in public law cases as in other civil litigation.4    There are many recent immigration cases in which costs have been awarded to the Crown.5   There is nothing singular about the immigration context that suggests the Crown should not be entitled to costs.

[3]      Notwithstanding the general principle, r 14.7 provides:

Refusal of, or reduction in, costs

Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

(a)       the nature of the proceeding or the step in a proceeding is such that the time required by the party claiming costs would be substantially less than the time allocated under band A; or

(b)       the  property  or  interests  at  stake  in  the  proceeding  were  of exceptionally low value; or

(c)       the issues at stake were of little significance; or

(d)       although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; or

1      Chan v Minister of Immigration [2015] NZHC 2036.

2      Nabou v Minister of Immigration [2013] NZHC 2112 at [6] citing Glaister v Amalgamated

Dairies Ltd [2004] 2 NZLR 606 at [24] (CA).

3      High Court Rules, r 14.2(a). See also Manukau Golf Club Inc v Shore Venture Ltd [2013] 1

NZLR 305 (SC).

4      Prebble v Huata [2005] NZSC 18, [2005] 2 NZLR 467 at [5].

5      See, for example, Guo v Immigration and Protection Tribunal [2014] NZHC 804 and Nabou v

Minister of Immigration, above n 2.

(e)       the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or

(f)       the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i)       failing to comply with these rules or a direction of the court;

or

(ii)      taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)     failing,  without  reasonable  justification,  to  admit  facts,

evidence, or documents, or accept a legal argument; or

(iv)     failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice

for interrogatories, or other similar requirement under these rules; or

(v)      failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10

or some other offer to settle or dispose of the proceeding; or

(g)       some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

[4]      I note that financial hardship is not a ground for declining to make a costs order6 and that impecuniosity of the applicant is not a shield against a costs award.7

[5]      Mr Zindel for Mr Chan submits that the Court should consider awarding reduced or no costs under r 14.7 for the following reasons:

(a)       Mr Chan has few resources.

(b)      Mr Chan returned to Cambodia on 24 September 2015.

(c)      This was a situation where there was a public interest and Mr Chan acted reasonably.   This appeal was his last chance to preserve his ability to support his family in Cambodia.

(d)There are efficiency gains for the costs actually incurred by the Crown in Mr Chan bringing the appeal.

6      Bruns v Gay HC Auckland CIV 2004-404-0297, 28 October 2004.

7      Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3401 at [6].

[6]      I am satisfied that the features of the Mr Chan’s case do not justify departing

from the general principle:

(a)      The Crown was wholly successful and was put to the expense of having to defend the proceeding.

(b)No  public  interest  or  other  countervailing  considerations  weigh against an award of costs being made in favour of the Crown.

(c)      This was not a test case that clarified the law nor was it a case of particular public importance.  On the first issue of the relevance of the gravity  of  Mr Chan’s  offending  to  the  analysis  of  exceptional circumstances the applicable law was clear and had been settled by the Supreme Court.8    On the second issue of whether there was an error of fact, I held that there was no question of law that by reason of general or public importance ought to be heard even if factual errors had been established.9

(d)      The Crown did not act unlawfully or in error.

[7]      Accordingly, I award costs on a 2B basis.    Mr Chan is liable to pay the

Crown the costs set out in the table below:

Description	Time allocation	Amount
Steps taken from 11 October 2013 to 30 June 2015 (Daily Recovery Rate $1,990)
Preparation for first case management conference (including discussion about discovery)	0.4	$796.00
Filing memorandum for first case management conference or mentions hearing	0.4	$796.00
Steps taken from 1 July 2015 onwards (Daily Recovery Rate $2,230)
Filing opposition to interlocutory application	0.6	$1,194.00
Preparation of written submissions	1.5	$3,345.00
Appearance at hearing of defended application for sole or principal counsel	0.5	$1,115.00
Total		$7246.00

8      Chan v Minister of Immigration, above n 1, at [10], [14]–[22] and [23]–[25] discussing Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 and Helu v Immigration and Protection Tribunal [2015] NZSC 28.

9      Chan v Minister of Immigration, above n 1, at [35].

[8]      Mr Chan is also liable for disbursements to the value of $115.20 which represents the Court filing fee for the Notice of Opposition and courier fees.

Order

[9]      Mr Chan must pay to the Crown $7,361.20 in costs and disbursements.

Brewer J