Kaur v Ministry of Business, Innovation and Employment
[2016] NZHC 1862
•12 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-751 [2016] NZHC 1862
UNDER the Judicature Amendment Act 1972 and
the Immigration Act 2009
IN THE MATTER
an application for judicial review
BETWEEN
GIYAN KAUR Applicant
AND
THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Respondent
AND
THE ASSOCIATE MINISTER OF IMMIGRATION
Second Respondent
On the papers Judgment:
12 August 2016
JUDGMENT AS TO COSTS OF THOMAS J
This judgment was delivered by me on 12 August 2016 at 3pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Meredith Connell, Auckland.
Counsel:
F C Deliu, Auckland.
KAUR v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2016] NZHC 1862 [12
August 2016]
[1] By my decision dated 3 May 2016, I granted an interlocutory application made by Ms Kaur to compel a witness to Court for the purpose of cross-examination in respect of limited matters relevant to Ms Kaur’s application for judicial review.1
[2] On the basis that she was the successful party, even if only partially successful, Ms Kaur applies for costs on a 2B basis. She also applies for an uplift of
50 per cent as well as “costs on costs”.
[3] The respondents in the proceedings, the Ministry of Business, Innovation and Employment and the Associate Minister of Immigration, oppose the application saying that the Court should either decline to award costs or significantly reduce them on the basis that the respondents substantially succeeded in opposing a wide- ranging cross-examination order or, at the very least, both parties had a degree of success. Furthermore, the respondents seek costs on an increased 2B basis in respect of Ms Kaur’s interlocutory application to compel the relevant decision maker to attend the substantive hearing. That application eventually was not pursued and the plaintiffs seek increased costs on the basis the application was unnecessary and the argument lacked merit.
First interlocutory application
[4] The judicial review proceeding was filed on 7 April 2015.
[5] On 3 July 2015 the respondents applied to strike out the plaintiff’s statement
of claim. This application was dismissed by his Honour Justice Muir on
6 November 2015. In that decision, he said:2
[46] Certainly, I do not consider myself able to accept without evidence that the process followed by Mr Hubscher involved sequentially:
(1) a decision to deal with the requests under ss 72 and 76; (2) exercise of the absolute discretion under s 72(3);
1 Kaur v Ministry of Business, Innovation and Employment [2016] NZHC 872.
2 Kaur v The Ministry of Business, Innovation and Employment [2015] NZHC 2741at [46] – [49].
Mr Hubscher was the designated decision maker.
(3) identification of the absence of non-complying documentation for the purposes of the s 76 application;
(4) exercise of his absolute discretion not to waive those requirements by special direction; and
(5) a conclusion therefore that no s 76 decision was necessary. [47] It could well be that what Mr Hubscher in fact did, consistent with the
terms of the application and arguably the response, was simply exercise a
purported power to give or decline a special direction under s 378 which had never been delegated to him.
[48] This is a case where discovery of Mr Hubscher’s notes may be useful in identification of the actual process followed by him and whether it was in fact one he was authorised to undertake. It may also, without prejudging any such application, be a case where cross-examination is ultimately necessary.
…
[49] In my view, it would not be appropriate to consider application of the privative clauses in the factual vacuum that currently applies – a vacuum compounded by the fact that the respondents have yet to plead. …
[6] Muir J made timetabling orders including in respect of the filing and service of an amended statement of claim and statement of defence. Furthermore, he ordered that any interlocutory applications were to be filed and served by
11 December 2015.
[7] Counsel then filed a consent memorandum date 14 December 2015 which recorded that amended statements of claim and defence had been filed. It also recorded that Ms Kaur had sought an extension to the remaining timetabling orders which were not opposed by the respondents. The timetabling orders sought and subsequently made included:
(i) Any interlocutory applications were to be filed and served by
21 December 2015;
(ii)Opposition to any interlocutory applications were to be filed and served by 22 January 2016;
(iii)A half day interlocutory hearing was to be allocated in the week of 25 January 2016, or as soon as possible after that week;
(iv) Timetables in respect of applicant’s and respondents’ evidence.
[8] Ms Kaur’s first interlocutory application was dated 16 December 2015. It sought orders compelling the designated decision maker to attend as a witness and give evidence at the substantive hearing of the application for judicial review and that he be compelled to do so on the basis that he produced documents and all materials relating to his decision.
[9] The respondents opposed the application on a number of grounds, including that the respondents intended to file an affidavit of the decision maker explaining his decision-making process. That affidavit would annex all of the written material which was before the decision maker at the time of his decision. Furthermore, the respondents intended to adduce written evidence outlining the delegations the decision maker held at the time of the relevant decision. The respondents, therefore, opposed the application on the basis, inter alia, that the written evidence which would be put before the Court would provide a sufficient basis on which to determine Ms Kaur’s claim.
[10] On 17 December 2015 a half day hearing was allocated for hearing the application.
[11] On 27 January 2016, the respondents contacted Ms Kaur’s counsel proposing revised timetabling directions and suggesting the filing and serving of evidence by Ms Kaur by 15 February 2016 and the respondents by 29 February 2016. Then, “assuming the interlocutory application is not withdrawn”, a half day hearing to be allocated as soon as possible after 21 March 2016.
[12] Counsel for the respondents requested agreement to the suggested timetabling directions for the following reason:
Our issue is that it is premature for the Court to consider the application before any substantive evidence has been filed. So the current timetable directions which require evidence to be filed after the interlocutory hearing are essentially cart before horse. The likely result if we proceed without the evidence is the matter being adjourned with further delay and expense to both parties. Therefore, we are seeking revised timetabling.
[13] When that suggestion was not agreed to, the respondents filed a memorandum with the Court seeking the revised directions saying inter alia:
3.1 Counsel for the respondents respectfully propose revised timetable directions, to require the parties to file evidence prior to the interlocutory hearing. We submit that the Court will need to consider the respondents’ evidence, and particularly the content of Mr Hubscher’s affidavit before it can determine whether the interlocutory application should be granted.
3.2 Absent Mr Hubscher’s affidavit, the Court would be in a position of trying to assess hypothetically what matters relevant to the claim Mr Hubscher will or will not address in his affidavit. It will be impractical for the Court to decide whether cross examination is clearly necessary to enable the case to be disposed of fairly in an evidential vacuum.
[14] Mr Deliu, counsel for Ms Kaur, filed a memorandum noting his vehement opposition. In particular, Mr Deliu noted there was nothing to preclude the respondents from filing affidavit evidence and that he had suggested that to the respondents. Counsel for the respondents filed a memorandum in reply. In that, counsel acknowledged that the directions made by consent were not suitable given the nature of the interlocutory application subsequently filed by the applicant. Counsel noted that the issue was brought to the Court’s attention so that the absence of evidence did not result in the interlocutory matter being adjourned because the substantive fixture evidence was not yet filed.
[15] The matter was called in the judicial review list on 10 February 2016. In his
Minute of the same date his Honour Justice Woodhouse said:
There is a fixture next week on 16 February to determine the plaintiff’s application dated 16 December 2015 for orders that Mr Hubscher attend as a witness to give evidence at the substantive hearing and that he produced documents. …
The respondents filed a memorandum on 27 January recording that it has now been realised the application to be heard on 16 February is premature because the substantive evidence has not been filed. This is put on the basis that the 16 December 2015 application is one to cross-examine Mr Hubscher and, on that basis, it is not unreasonably submitted that until Mr Hubscher’s
evidence is before the Court in an affidavit the question of cross-examination could not be determined. I apprehend that underpinning that is the general rule that cross-examination on affidavits in judicial review proceedings is not so common although there is no fixed rule about that.
I do have reservations as to the practical utility of the 16 December application given Mr Hardy’s advice, in response to questions from me, that Mr Husbcher was the principal decision maker and, although Mr Hardy could not give an unequivocal commitment, it seems almost certain that there will be an affidavit for the substantive proceeding from Mr Hubscher. Nevertheless, given the fact that the parties agreed to the timetable leading through to a fixture which is now set down for next week, and in the face of Mr Deliu’s firm submissions that the plaintiff does wish to proceed with that application, I consider that the appropriate course is to decline the respondents’ application to vacate the fixture … If it is apparent that the application is misconceived, in the usual way that can be reflected in costs…
I am satisfied that costs should be reserved. The reasons were reasonably fully articulated to Mr Deliu in the course of our discussions and are captured in my observation that my first impression is that the application is misconceived or inappropriate. But I may be wrong.
[16] Woodhouse J therefore declined the respondents’ application to vacate the fixture, which came before her Honour Justice Katz on 16 February 2016. In her Minute of 16 February 2016, Katz J recorded the background and in particular referred to the respondents’ memorandum dated 27 January 2016 and Woodhouse J’s Minute. She then said:
I expressed concern that if the subpoena application was dismissed (either on its merits, or for being premature) Mr Deliu has foreshadowed that he intends to file a subsequent application to cross-examine Mr Hubscher on his affidavit. That would potentially involve two interlocutory hearings on very similar issues, albeit the second hearing would be informed by Mr Hubscher’s actual evidence.
There appears to be no previous New Zealand case in which a decision maker has been issued with a subpoena in judicial review proceedings. Although there is limited direct authority on the issue of subpoenas in a judicial review context, Mr Deliu has cited extensive authority in his submissions on related topics.
…
In the circumstances, I queried if the more efficient course might be to set the substantive matter down for hearing forthwith and timetable the exchange of evidence. Once Mr Deliu has seen Mr Hubscher’s affidavit he can then apply, if he still so wishes, to cross-examine him. If there is some remaining utility in the subpoena application it can be heard and determined at the same time. The Judge determining the application(s) will then have Mr Hubscher’s proposed evidence before him or her, which is likely to be substantially helpful in determining the application(s).
[17] Katz J therefore suggested the better course might be for Ms Kaur to apply to cross-examine the decision maker once she had received his affidavit and, if there were still some “utility” in the application for a subpoena, it could be considered at the same time as the application to cross-examine. Katz J decided it was appropriate, in the circumstances, that costs in respect of the first application be reserved pending determination of its substantive merits.
The second interlocutory application
[18] The second interlocutory application was made on 1 April 2016, following the filing of an affidavit from the decision maker. Ms Kaur applied for orders compelling the decision maker to attend as a witness for the purpose of being cross- examined on his affidavit of 18 March 2016 and/or the issues raised by the amended statement of claim dated 20 November 2015.
[19] The grounds of the application were that the affidavit provided was self- serving, formulated to defend the decision under review from attack and that he had opened the door to having his reasons scrutinised, and that it was in the interests of justice.
[20] My decision began by outlining the following background:
[2] The applicant initiated judicial review proceedings in May 2015. The applicant applied to subpoena Mr Hubscher and for leave to cross examine him.
[3] The application to subpoena Mr Hubscher was made before any affidavit evidence had been filed. Since the date of that application, an affidavit of Mr Hubscher has been filed. In those circumstances, Mr Deliu, appearing for Ms Kaur, confirmed there was no longer need to subpoena Mr Hubscher. The application for leave to cross examine him, however, remains.
[21] One of the major planks of the second application centred on the way in which the respondents were arguing their case. This related to the procedural steps the respondents submitted applied to Ms Kaur’s request. This was summarised in Muir J’s decision on the strike out application as follows:
[40] They [the respondents] start by assuming that they are entitled to all the protections associated with the exercise of an absolute discretion and identified in s 11. They rely in that respect on s 378(8). But faced with the
argument that Mr Hubscher never had a generalised delegated authority to issue special directions, they say that he was not in fact acting under s 378 because the jurisdiction under that section of the Act was never appropriately invoked for the reasons identified by Whata J in Zhang. What they say Mr Hubscher was in reality doing was exercising the absolute discretion which had been delegated to him under s 72 to make a decision in relation to a residence class visa application and the further “standard” discretion invested in him as an immigration officer under s 76 to make such a decision in relation to a temporary entry class visa.
[41] They say further that insofar as the application was processed under s 72 it was dismissed in Mr Hubscher’s absolute and essentially unreviewable discretion.
[42] Insofar as it was processed as an application under s 76, the position ultimately advanced by the respondents in argument was that no decision had effectively been made in relation to the application because Ms Kaur had not submitted, with her s 378 request, the necessary documents (prescribed in reg 10) to support such an application. The respondents further argued, that although Mr Hubscher had been delegated the power conferred by reg 34(1)(a) to waive (by special direction), the requirements in reg 10(2)(e) for particular documents to be tendered, he had not exercised that power.
[43] But Ms Kaur was never told of any of this. She was simply advised, in respect of her s 378 application, that Mr Hubscher had declined to “intervene”. That word tends to suggest to me that Mr Hubscher was exercising a s 378 discretion. If he was in fact declining a residence class visa under s 72(3) or a temporary entry class visa under s 76(1) words to that effect might have been expected. I accept, however, that the proposition cannot be elevated beyond that.
[44] Significantly none of the alleged process, whereby an apparently non- compliant s 378 request was in fact dealt with pursuant to the discretions (in one case ‘absolute’ but in the other not) in ss 72 and 76, was the subject of any evidence before the Court. There was no affidavit from Mr Hubscher and the Court was simply invited to rely on counsel’s summary of how the application was dealt with, all premised on the proposition that the respondents had “magnanimously” chosen not to dismiss the s 378 request outright but rather to process it as an application under ss 72 and 76.
[22] Subsequent to that decision, the decision maker’s affidavit was filed wherein he said that he did not “take an overly legalistic approach to decision making”. He understood the power he exercised gave him absolute discretion.
[23] At the hearing on the application to cross-examine, Mr Hardy for the respondents responsibly made the following concessions on the basis of the decision maker’s affidavit:
(i) the decision maker did not turn his mind to any deficiencies
there may have been in the applicant’s request;
(ii)therefore, he did not turn his mind to whether, in his absolute discretion, the request should nevertheless be considered;
(iii)he did consider the applicant’s request for a temporary entry class visa. He did so on the assumption that the request involved the exercise of absolute discretion.
[24] The concession disposed of the need for cross-examination on that issue. That left five areas in respect of which Ms Kaur sought to have the decision maker cross-examined:
(i) Delegation;
(ii) Compliance with the relevant policy; (iii) The options considered;
(iv)The distinction between whether Ms Kaur had a character issue and whether she should be granted a character waiver; and
(v) The decision maker’s conclusions as to his certainty about
what he did when considering the request.
[25] For the reasons given in my judgment, I concluded that the affidavit provided did not adequately explain the decision maker’s position on the character issue and the resulting uncertainty was unsatisfactory. I held that cross-examination was consequently necessary in the interests of justice.
Submissions
[26] In the respondents’ submission, the first interlocutory application was not successful and was misconceived from the outset. The first application did not seek leave to cross-examine the decision maker, and so the partial success of the second interlocutory application cannot be attributed to the first, in counsel’s submission.
[27] The respondents seek costs on the first interlocutory application. Counsel then say that Ms Kaur contributed unnecessarily to the time or expense of the proceeding or a step in it by taking or pursuing unnecessarily a step or an argument which lacked merit. If uplifted by 50 per cent as sought, the scale costs on the first application would increase from $7,136 to $10,704, plus $110 disbursements for filing of the notice of opposition.
[28] In relation to the second interlocutory application, the respondents submit that the Court should either decline to award any costs, or significantly reduce them in accordance with r 14.7(d) on the basis the respondents substantially succeeded in opposing the wide ranging cross-examination sought.
[29] Ms Kaur opposes both applications on five grounds. The first relates to the way in which the costs applications were dealt with. Mr Deliu takes exception to a submission made by counsel for the respondents, which effectively suggested Ms Kaur should not have the opportunity to respond to their application for costs. This, in Mr Deliu’s submission, was yet another example of the respondents’ “arguably irresponsible” approach to this litigation.
[30] Mr Deliu says that Ms Kaur was the successful party and therefore, entitled to costs, and absolute success on each and every ground was not a prerequisite. This is closely allied to his third ground of opposition which is that it is improper for the respondents to assert that there is any material difference between the original application and the one ultimately determined. In his submission, they were virtually identical.
[31] The fourth ground of opposition is that, in Mr Deliu’s submission, the fault for the “whole convoluted” process rests entirely with the respondents who agreed to
the joint timetabling whereby the application would be decided ahead of the respondents’ evidence being lodged, but then altered its position. Mr Deliu said he agreed to an adjournment of the application before Katz J only when she indicated potential difficulty in timing of delivery of the judgment.
[32] Fifthly, and finally, in Mr Deliu’s submission it was disingenuous for the respondents to claim any success in relation to the original application which was never adjudicated but rather subsumed by the “amended application” which was the only one which was determined.
Principles
[33] The principles applying to the award of costs are well settled. These are set out at rules 14.1-14.7 of the High Court Rules. The starting point in an award of costs is contained in r 14.2(a), which provides that in any proceeding, the unsuccessful party should generally pay costs to the successful party. In accordance with r 14.2, the determination of costs should be predictable and expeditious.
[34] 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 the circumstances in r
14.7 are met.
[35] Increased costs and indemnity costs may be justified under r 14.6 in identified circumstances where the court is justified in making those orders, despite the principle that the determination of costs should be predictable and expeditious. Specifically, increased costs can be awarded if, under r 14.6(3)(b):
(b) the party opposing 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 with a direction of the court;
or
(ii) taking or pursuing an unnecessary step or an argument that lacks merit;
(iii) failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
…
[36] Rule 14.7 of the High Court Rules provides:
14.7 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
(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.
Analysis
First interlocutory application
[37] Mr Deliu submits that the two applications were virtually identical and it was completely inappropriate to distinguish between them because there was “no way substantially more work was done as a result of the amended application”.
[38] Mr Deliu says that the chronology agreed by the Crown meant the first application would be decided ahead of the evidence. He maintains that Ms Kaur incurred wasted costs by the respondents’ agreement to a timetable whereby the application would be dealt with prior to filing of evidence, and then challenging that. I accept Mr Deliu’s submission that there was nothing to stop the respondents filing affidavit evidence from the decision maker earlier in the process, and it was unnecessary to wait until the final timetabled date which in any event was directed as a result of consent.
[39] While in the normal course, respondents in proceedings of this type file affidavit evidence and therefore the first interlocutory application might not have been required, in the circumstances when that evidence was not before Ms Kaur, there was perhaps some justification for the first interlocutory application. However, the respondents’ opposition to the application was on the basis that an affidavit of the decision maker explaining his decision-making process would be filed, annexing all the written material which was before the decision maker at the time of his decision. The respondents also intended to adduce written evidence outlining the delegations the decision maker held at the time.
[40] In those circumstances, it is difficult to see why the orders sought by the respondents and addressed by Woodhouse J were not consented to and the hearing adjourned. Once the matter came before Katz J, timetabling orders as to the exchange of evidence were made and the fixture adjourned. I am not aware of any change in circumstances between the call before Woodhouse J and the February hearing date.
[41] By her Minute, Katz J anticipated that an application to cross-examine the decision maker might follow the provision of affidavit evidence from him, and, if so, there would then be the issue of whether there were any utility in proceeding with the application to subpoena. That issue was never addressed by Ms Kaur before the hearing on 20 April 2016.
[42] I am somewhat mystified by Mr Deliu describing the first application as “subsumed by the amended application”. It certainly was not clear that the application dated 1 April 2016 replaced or amended the first application. The first application should formally have been discontinued once the affidavit evidence was available, and it should have been made clear that the second interlocutory application was the only one which needed to be dealt with. There would have been
an opportunity to address the question of costs on a discontinuance,3 and perhaps to
reach an accommodation. However, it was made plain that the application to subpoena the decision maker was not to be advanced only at the start of the interlocutory hearing. The respondents’ submissions included a section on the question of whether the decision maker should be subpoenaed and these had obviously been prepared for the February hearing before Katz J, which is when the respondents expected to have to argue the application.
[43] Katz J had reserved costs pending determination of the substantive merits of the first application. The substantive merits of the application were, however, never dealt with as the application was effectively withdrawn.
[44] In those circumstances, the respondents are entitled to costs. I am not satisfied any uplift is warranted given the confused position which arose, in part at least, by the agreement on timetabling orders as to the timing and hearing of
interlocutory applications and filing of evidence.
3 Under r 15.23, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance. This rule has been applied by analogy to interlocutory applications: MV Celebre Ltd v Airwork Flight Operations Ltd [2015] NZHC 1400 at [9] and Rocket Surgery Ltd v Goodwin [2013] NZHC
2667 at [27] and [28].
Second interlocutory application
[45] Counsel for the respondents refer to the need for applications to cross- examination a deponent in judicial review proceedings to be sufficiently particularised. They note that one of the grounds of the application sought to cross- examine the decision maker on his reasons, and that the respondents were successful in their opposition on this ground.
[46] They therefore say that the application to cross-examine the decision maker on an unrestricted basis was largely unsuccessful and that a realistic appraisal of the end result shows the respondents achieved a significant measure of success. Therefore, in the respondents’ submission, costs should lie or be significantly reduced.
[47] The respondents rely on 14.7(d) and (g) and the dicta in Packing In Ltd (in Liquidation) v Chilcott where the Court of Appeal observed that, in a case where in broad terms each party has had similar success, costs should be based on that premise, the Court having to endeavour to do justice to both sides.4 The Court recommended a realistic appraisal of the end result rather than a focus on who initiated what step and the extent to which that step succeeded or failed.5
[48] Mr Deliu refers to the starting point under r 14.2(a) and says that, as Ms Kaur brought a motion which succeeded, she should received costs. He cites a number of decisions as authority for the proposition that costs must follow the event without getting bogged down in the meaning of “success”, as even partial success suffices.
[49] A party is not only considered successful if he or she succeeds on each and every ground of an application. A number of High Court decisions have dealt with this and observed that it is a matter of considering the specific circumstances and the
time spent on unsuccessful causes of action.6
4 Packing In Ltd (in Liquidation) v Chilcott (2003) 16 PRNZ 869 (CA) at [5].
5 At [6].
6 Shotter v Westpac Bank Corporation [1988] 2 NZLR 316 (HC); see also New Zealand Law
Society v Deliu [2015] NZHC 652 at [5]-[7]; Zhao v New Zealand Law Society [2012] NZHC
3112 at [6](a) ; Commissioner of Police v Burgess [2016] NZHC 267 at [18] – [22]; and
Solicitor-General v Burak [2013] NZHC 800 at [26].
[50] The extent of Ms Kaur’s success needs to factor in the concession given by the respondents at the hearing, referred to above. In the respondents’ submission, they behaved responsibly in making the concession, saying it would have been made regardless of the application to cross-examine the decision maker. The issue was a point of some debate at the hearing before Muir J and I do not accept the respondents’ contention that the concession would have been made regardless. That was clearly was not obvious to Mr Deliu and neither was it to me.
[51] In addition, the extent of the concession was moderated somewhat by the respondents’ memorandum filed subsequent to the hearing which sought to reduce the scope of the concession. This situation is relied on by Ms Kaur in the application for uplifted costs. In addition, in Mr Deliu’s submission, the respondents flouted my judgment by filing a supplementary affidavit when I had determined it was not appropriate to deal with the character issue, in the circumstances, by such an affidavit. However this behaviour occurred after my decision and therefore cannot have impacted on Ms Kaur’s costs in respect of the second interlocutory application, which is the subject of this decision. I am not satisfied it is a ground on which to increase costs.
[52] I will, however, observe that, had there been a different approach to both applications, on both sides, the extent of hearing time and cost might have been reduced.
[53] I am satisfied that Ms Kaur is entitled to costs on a 2B basis in respect of the second interlocutory application. When the concession made by the respondents is taken into account, she was successful. For the reasons given, I am not satisfied that increased costs should be awarded.
[54] The costs sought include .2 of a day in respect of the appearance before
Woodhouse J on 10 March 2016.7 That can only relate to the first application and is
not to be included in Ms Kaur’s costs award.
7 I assume this should refer to February 10, as I can find no record of an appearance on March 10.
In any event, both dates predate the second application.
[55] Finally, Ms Kaur seeks costs on this costs proceeding. Mr Deliu says that he sought to resolve the question of costs amicably but this was not able to be achieved. Given the result of this decision, with some success to both sides, costs on costs are not awarded.
Result
[56] The respondents are entitled to costs on a 2B basis in respect of the first interlocutory application and Ms Kaur is entitled to costs on a 2B basis in respect of the second interlocutory application. Neither increased costs nor costs on costs are
awarded.
Thomas J
2
6
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