Kury v University of Auckland

[2021] NZHC 724

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-0209

[2021] NZHC 724

BETWEEN

MARIA BESSA MANUELLA KURY

Applicant

AND

THE UNIVERSITY OF AUCKLAND

Respondent

Hearing:

On the papers

Counsel:

J M Matheson for Applicant

A N Birkinshaw and J L Schwarcz for Respondent

Judgment:

1 April 2021

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 1 April 2021 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Wilson McKay, Auckland

Buddle Findlay, Auckland

KURY v THE UNIVERSITY OF AUCKLAND [2021] NZHC 724 [1 April 2021]

[1]    I have an application by the University for costs including increased or indemnity costs. Ms Birkinshaw and Mr Schwarcz, counsel for the University, claim increased or indemnity costs are appropriate because Ms Kury is said to have acted unnecessarily in commencing and continuing the proceeding. The basis for this submission is set out in a schedule.   But, in short, the primary complaint is that     Ms Kury should have and failed to avail herself of the entry admission appeal procedures and the University’s resolution of student academic complaints and disputes provisions. It is also said that her claim was, in short, without merit, there being a major insurmountable issue: admission to the MBChB programme must follow two pathways – domestic or international.

[2]    Ms Birkinshaw and Mr Schwarcz also note the University repeatedly explained to Ms Matheson, counsel for Ms Kury, the fundamental flaws in her case and, rather than accept the application could not succeed, Ms Kury added to the already unnecessary time and costs of the proceeding by amending the claim to add a further, equally unmeritorious, cause of action which was unlikely to succeed for exactly the same reasons. It is further submitted that Ms Kury’s case had been prepared and presented with serious misapprehensions as to the law and a shifting grasp of the facts. The total costs claimed are $75,827.25.

[3]    Ms Matheson responds that costs should lie where they fall because Ms Kury’s application was essentially public interest litigation and the University, as I had noted in my judgment at [36],1 had not come out of the process unscathed. It is also submitted, contrary to the submissions made by the University, that this was not a clear case: while the “binary” pathway may have always been obvious to the University, such a pathway was not obvious and is not obvious to students and, in particular, international students. Ms Matheson also points out that I found Ms Kury had detrimentally relied on two representations and compromised her position and that her position on those claims was arguable. She also noted that while I found against her on the merits overall, I left open the prospect that on a final hearing, together with fresh or other evidence, a different result might eventuate.

1      Kury v The University of Auckland [2021] NZHC 225.

[4]    Ms Kury also submits that it is open for me to depart from the general rule and that I should, in fact, award costs in favour of Ms Kury on a 2B basis.

Assessment

[5]    While this was clearly a matter of importance to Ms Kury, I do not consider it was public interest litigation. Ms Kury stood to gain significantly from her application for injunction had it succeeded. Having said that, I do not accept that her case was so without merit as to warrant an indemnity award. In light of my observations at [36] of my judgment,2 the University’s submission in that regard is somewhat ambitious.

[6]    In any event, the University being successful in defending the application, is entitled to its costs on a 2B basis, together with disbursements, to be fixed by the registrar. I caution against any attempt to engage in a fine-grained debate of steps taken. The schedule provides for the steps that may be claimed.

2      Above n 1.