Husein v Minister of Immigration HC Auckland CIV 2010-404-4337

[2011] NZHC 536

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-4337

UNDER  Section 177 Immigration Act 1987

BETWEEN  HUSEIN SALEH HUSEIN HUSEIN Appellant

ANDMINISTER OF IMMIGRATION Respondent

CIV 2010-404-3900

AND UNDER                 the Judicature Amendment Act 1972

BETWEEN  HUSEIN SALEH HUSEIN HUSEIN Plaintiff

ANDDEPORTATION REVIEW TRIBUNAL First Defendant

ANDMINISTER OF IMMIGRATION Second Defendant

Hearing:         On the papers

Counsel:         SEK Reeves for appellant/plaintiff

AR Longdill for respondent/defendants

Judgment:      3 June 2011 at 2:00 PM

JUDGMENT OF FAIRE J

Solicitors:           SEK Reeves, PO Box 90 150, Auckland 1142

Meredith Connell, PO Box 2213, Auckland 1140

HUSEIN V MINISTER OF IMMIGRATION HC AK CIV 2010-404-4337 3 June 2011

[1]      In my judgment delivered on 2 May 2011 I:

(a)       Dismissed the appellant’s appeal in respect of the Deportation Review

Tribunal’s decision delivered on 29 May 2010; and

(b)Declined  to  judicially  review  the  decision  to  refer  it  back  for reconsideration.

[2]      I reserved costs at the request of both counsel to give them the opportunity of agreeing.   In default, I ordered the filing on a sequential basis of memorandum in support, opposition and reply.

[3]      Counsel have not agreed.  Memoranda have been filed.

[4]      The  respondent/defendants,  being  the  successful  parties,  seek  costs  as incurred in the sum of $13,100 plus disbursements of $92.  That sum is less than the amount that they would be entitled to on a Category 2 Band B analysis.   Such analysis produces an entitlement to costs of $18,988 plus disbursements.  The reason that the full costs, pursuant to Category 2 Band B are not sought is as prescribed by r 14.2(f).

[5]      Mr Reeves,  who  has  throughout  acted  on  a  pro  bono  basis  for  the appellant/plaintiff, has invited the Court to exercise its general discretion and not award costs on two specific grounds.   The first is the mental health of the appellant/plaintiff and the second is his inability to pay.

[6]      There can, in fact, be no quarrel with the quantum of costs sought of $13,100 plus disbursements of $92.

[7]      Ms Longdill referred to me the Court of Appeal decision on costs in Chief Executive of Department of Labour v Taito.[1]   In that case the Court awarded costs on an immigration appeal.   Opposing counsel had no instructions from the client and

had advised an inability to pay.   On the question of inability to pay, the Court

confirmed the position that inability to pay does not affect entitlement to costs, but is relevant to its enforcement.   I accept that that is the position and that it must be applied in this case. That answers one of the grounds advanced by Mr Reeves.

[1] Chief Executive of Department of Labour v Taito CA 225/04, 19 September 2006.

[8]      I am indebted to Mr Reeves for his full and careful memorandum setting out the circumstances of the appellant/plaintiff.  However, there can be no criticism of the respondent/defendants in the approach they have taken in resisting the appeal and the application for judicial review.  They are the successful parties.  I am satisfied that an order for costs should be made against the appellant/plaintiff in the sum of

$13,100 together with disbursements of $92 as sought by the second defendant.

[9]      I order accordingly.

JA Faire J