Duong v Chief Executive of the Ministry of Business, Innovation and Employment

[2019] NZHC 155

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001254

[2019] NZHC 155

BETWEEN

HIEN NGOC DUONG

First Applicant

MAI THI PHUONG PHAM
Second Applicant

LINH PHAM GIA DUONG
Third Applicant

VI PHAM TUONG DUONG
Fourth Applicant

AND

CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND

EMPLOYMENT
Respondent

Continued /....

Hearing:	On the papers
Judgment:	14 February 2019

COSTS JUDGMENT OF HINTON J

This judgment was delivered by me on 14 February 2019 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules

Solicitors:

M K Law, Auckland

…………………………………………………………………… Registrar/Deputy Registrar

Crown Law, Wellington

HIEN NGOC DUONG v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2019] NZHC 155 [14 February 2019]

CIV-2018-404-001662

BETWEEN  HIEN NGOC DUONG

First Applicant

AND  MAI THI PHUONG PHAM

Second Applicant

AND  LINH PHAM GIA DUONG

Third Applicant

AND  VI PHAM TUONG DUONG

Fourth Applicant

ANDCHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

CIV-2018-404-001663

BETWEEN  HIEN NGOC DUONG

First Applicant

AND  MAI THI PHUONG PHAM

Second Applicant

AND  LINH PHAM GIA DUONG

Third Applicant

AND  VI PHAM TUONG DUONG

Fourth Applicant

ANDIMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

ANDCHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Second Respondent

[1]        On 31 October 2018, I delivered a judgment dismissing three applications by Mr Duong, being:

(a)An application for leave to appeal the decision of the Immigration and Protection Tribunal declining Mr Duong’s application for a residence visa.

(b)An application for leave to judicially review the same decision of the Tribunal.

(c)An application for judicial review of the Immigration New Zealand decision declining Mr Duong’s application for a temporary work visa.

[2]        I also made an order that 2B costs be paid by Mr Duong to the respondent and directed filing of submissions, first by the respondent within 20 working days of the decision and secondly, by Mr Duong within 10 working days thereafter.

[3]        On 3 December 2018, Mr Auld for the respondent filed a memorandum seeking total costs of $29,213.00 and $1,099.30 in disbursements, in accordance with a schedule attached to that memorandum. The disbursements are incorrectly added and should be $1,077.57.

[4]        On 19 December 2018, counsel for the applicants advised that he was not in a position to file a memorandum in response to the respondent’s memorandum. This was because he had not received instructions other than advice from the first applicant that he is currently impecunious and would not be able to pay the costs claimed unless he is allowed to earn wages in New Zealand. Counsel for the applicants said he, “seeks a direction from the Court as to the appropriate course of action”.

[5]        The only course of action in those circumstances is for me to proceed to make an order for payment of costs in terms of the respondent’s memorandum which, on the face of it, accurately calculates costs on a 2B basis. The disbursements also appear reasonable.

[6]        Questions of whether the applicants can afford to pay in this context will be a matter for enforcement.

[7]I therefore order that category 2B costs of $29,213.00 and disbursements of

$1,077.57 are awarded to the Chief Executive of the Ministry of Business, Innovation and Employment as calculated in accordance with the attached schedule.

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Hinton J