Mizoguchi v Immigration and Advisers Complaints and Disciplinary Tribunal

[2018] NZHC 211

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001318 [2018] NZHC 211

UNDER

the Judicial Review Procedure Act 2016 and

the Immigration Advisers Licensing Act
2007

IN THE MATTER

of a judicial review of decisions of the Immigration Advisers Complaints and Disciplinary Tribunal and the Registrar of Immigration Advisers

BETWEEN

KOTARO MIZOGUCHI Applicant

AND

THE IMMIGRATION AND ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL

First Respondent

THE REGISTRAR OF IMMIGRATION ADVISERS

Second Respondent

KENTARO SHIHAKU Third Respondent

Hearing:	[On the papers]
Counsel:	AJB Holmes for Applicant IMG Clarke and RDL Garden for Respondents
Judgment:	22 February 2018

COSTS JUDGMENT OF JAGOSE J

This judgment is delivered by me on 22 February 2018 at 12.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

MIZOGUCHI v THE IMMIGRATION AND ADVISERS COMPLAINTS & DISCIPLINARY TRIBUNAL & ORS [2018] NZHC 211 [22 February 2018]

[1]      In this proceeding, Mr Mizoguchi challenged aspects of the Registrar’s and the Tribunal’s handling of an amended complaint against him. He was partially successful on one of five grounds of review,1 which the Registrar conceded in written submission.

[2]      In  my  judgment  of  4  December  2017,  I  took  the  preliminary  view  Mr Mizoguchi was entitled to 2B costs accordingly, but reserved costs if that was not accepted by the parties. Mr Mizoguchi subsequently sought 2B costs in the amount of

$22,969, plus disbursements of $1,989.80.

[3]      The Registrar sought her own 2B costs in the amount of $19,847, plus disbursements of $1,176.26, reduced by 20% (in acknowledgement of Mr Mizoguchi’s partial success) to $16,819. Alternatively,  if she is not the successful  party, the Registrar says costs should lie where they fall.

Discussion

[4]     The Registrar notes the great bulk of Mr Mizoguchi’s written and oral submissions, and of the judgment, related to matters on which Mr Mizoguchi was unsuccessful. She says she was “wholly successful” in defending the Tribunal’s impugned actions.

[5]      That is, however, to overlook the failure of the Registrar’s evidence, on the principal point directed against the Registrar. And the Tribunal abided the Court’s decision. In my preliminary view, Mr Mizoguchi’s success, even by the Registrar’s concession in submissions, was still success entitling him to scale costs and justifying no diversion from them.

[6]      However, it is now apparent – soon after filing and service of the Registrar’s defence, and before the proceeding’s first case management conference – the Registrar

offered to compromise Mr Mizoguchi’s second and third grounds of review by seeking

1      Judgment of 4 December 2017 at [26]: “… if the amended complaint remains on foot, it should not be referred to the Tribunal without Mr Mizoguchi having a reasonable opportunity to respond to it”.

the Tribunal’s remission of the amended complaint to the Registrar. The Registrar would then provide Mr Mizoguchi “an opportunity to make a written statement or explanation in relation to the new grounds”. And the Registrar went further: if the Tribunal did not co-operate, the Registrar would seek such orders from this Court.

[7]      That is, in the end, the relief Mr Mizoguchi obtained in the proceeding. Mr

Mizoguchi bore the risk of failing on his other grounds of review.

[8]      The Registrar’s offer was expressly made “without prejudice, except as to costs”. The effect of such offers on the question of costs is at my discretion.2 Subject to the exercise of that discretion, however:

(a)      under  HCR  14.11(3),  where  the  offer  is  “more  beneficial”  to  its recipient than the judgment obtained, its refusal entitles the offeror to costs on steps taken in the proceeding after the offer is made; and

(b)under HCR 14.11(4), where the offer is close to the judgment’s benefit, the offer may be taken into account.

[9]      In  reply,  Mr  Mizoguchi  says  the  compromise  was  offered  without  any admission of liability, meaning the compromise had no precedent value. By that measure, Mr Mizoguchi also claims success on extracting the Registrar’s concession in submissions. And he says, if the Registrar was entitled to costs after the concession was made in her written submissions, she would still be liable to him for costs on prior steps, meaning his net costs claim would be $18,509.

Analysis

[10]     At a level of principle, I understand HCR 14.11(3)’s entitlement to substitute for, rather than to supplement, the ‘successful’ party’s primary entitlement under HCR 14.2(1)(a).  If  such  offers  are  to  be  effective  in  disciplining  litigation,  the

‘successful’ party must also risk loss of the offeror’s costs contribution.

2      HCR 14.11(1).

[11]     In  my assessment,  the Registrar’s  offer  was  not  ‘more beneficial’ to  Mr Mizoguchi than, but was close to the benefit of, the judgment he obtained. I do not think the precedent value of any admission is material. The real point of my substantive judgment was the Tribunal (not the Registrar) bore the burden of Mr Mizoguchi’s right to be heard.3 The Registrar’s liability was assumed, but not determined to be,4 an outworking of the Act’s s 47.5

Decision

[12]     In terms of HCR 14.11(3) and (4), the Registrar is not entitled to her costs for steps taken in the proceeding after her offer was made, but I take the offer into account in determining the parties should each bear their own costs incurred in the proceeding.

—Jagose J

Counsel/Solicitors:

Antony Holmes, Barrister, Auckland

Crown Law, Wellington

Copy to:

Vincent Carmine, Auckland

3 Judgment at [24].

4 At [23].

5 At [25].