NM (Fiji) v Minister of Immigration

[2020] NZHC 2729

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS

MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-000080

[2020] NZHC 2729

UNDER THE

Immigration Act 2009

BETWEEN

NM (Fiji) Applicant

AND

MINISTER OF IMMIGRATION

Respondent

Hearing:	On the papers
Judgment:	16 October 2020

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 16 October 2020 at 12.00 midday Pursuant to r 11.5 of the High Court Rules

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

Solicitors/counsel:

Ronald Gordon Lawyers, Hamilton Crown Law, Wellington

NM (Fiji) v MINISTER OF IMMIGRATION [2020] NZHC 2729 [16 October 2020]

[1]    I refer to my judgment of 17 August 2020.1 I declined NM’s application for leave to appeal to this Court. Further, I declined to allow him to adduce further evidence. I held that the Minister of Immigration was entitled to his reasonable costs and disbursements, noting that they had been sought on a 2B basis. I expressed the preliminary view that that categorisation was appropriate, and invited counsel to try and resolve costs by agreement. I reserved leave to the parties to come back to the Court if they could not reach agreement.

[2]    I have received a memorandum from counsel for the Minister. Counsel advise that they have attempted to agree costs with NM’s counsel, calculated on a 2B basis, and that they provided him with an itemised schedule setting out the costs and disbursements claimed. They advise that NM did not agree with the costs calculated. As a result, counsel filed a memorandum seeking costs in the sum of $9,440.50 and disbursements of $486.32. A costs schedule was annexed to the memorandum. Costs were calculated on a 2B basis in accordance with the relevant High Court Rules.

[3]    There was no initial response for NM. I instructed the Registrar to raise the issue with his counsel.

[4]    As a result, I have now received a response. The response does not take issue with the calculation made for the Minister. Rather, it advises that NM has been served with a deportation order and either has been, or will shortly be, deported back to Fiji. It was noted that he has stopped work and that he does not have any means of supporting his day to day living costs. It is asserted that NM is not in a position to pay any costs and counsel requests that costs should be waived.

[5]    While the Court has a discretion as to the award of costs, the discretion is not unfettered. It is qualified by the specific rules contained in the High Court Rules  –  rr 14.2 to 14.10. The discretion is exercisable only in situations not contemplated by the rules, or which are not fairly recognised by them. The costs regime is of a regulatory character, and it is important that its integrity be maintained. There is a

1      NM (Fiji) v Minister of Immigration [2020] NZHC 2077.

strong implication that the Court is to apply the regime in the absence of some good reason to the contrary.2

[6]    Pursuant to r 14.2(1), a party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds. Here, NM failed in his application.

[7]    Rule 14.7 deals with the situations in which the Court can refuse to make an order for costs or reduce the costs otherwise payable. None of the listed circumstances in 14.7(a) to (f) apply. Rule 14.7(g) is more general. It provides that costs can be refused or reduced if some other reason exists which justifies the Court in making such order despite the principle that the determination of costs should be predictable and expeditious.

[8]    Financial hardship is not an answer to a claim for costs; and when financial hardship is asserted a sworn affidavit of the party’s means is ordinarily required before a request for waiver or reduction will be entertained. The abatement of costs for personal circumstances is not typically justified and is reserved only for exceptional circumstances.3

[9]    While I have some sympathy for NM’s position, I do not consider that costs should be refused to the Minister. There is no proper or principled basis on which to do so, and the application for waiver or exemption from a costs order is not supported by any supporting affidavit. There is no direct challenge to the quantum of costs claimed.

[10]   Accordingly, I award costs against NM and in favour of the Minister in the sum of $9,440.50 together with disbursements of $486.32.

Wylie J

2      See McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR14.1.02].

3      Foni v Foliaki [2018] NZHC 3126; Singh v Immigration and Protection Tribunal [2014] NZHC 2065.