Ochibulu v Immigration and Protection Tribunal

[2020] NZHC 1612

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001102

[2020] NZHC 1612

UNDER

Judicial Review Procedure Act 2016 and ss 247 249 of the Immigration Act 2009

IN THE MATTER

of an application for leave to commence

judicial review and an application for leave out of time to commence judicial review of a decision of the Minister of Immigration

BETWEEN

HYACINTH DEMUS OCHIBULU

Applicant

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

MINISTER OF IMMIGRATION

Second Respondent

Hearing:

On the papers

Counsel:

RJ Hooker for Applicant

SP Jerebine and EGR Dowse for Second Respondent

Judgment:

8 July 2020

JUDGMENT OF FITZGERALD J

[As to costs]

This judgment was delivered by me on 8 July 2020 at 10am, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:           Vallant Hooker & Partners, Auckland

Crown Law, Wellington

To:  S Jerebine, Auckland

Ochibulu v Immigration and Protection Tribunal [2020] NZHC 1612 [8 July 2020]

Introduction

[1]        In my substantive judgment in these proceedings delivered on 23 April 2020,1 I dismissed the applicant’s applications for:

(a)leave to judicially review (out of time) the second respondent’s decision to reactivate the applicant’s deportation liability; and

(b)leave to judicially review the first respondent’s decision declining a humanitarian appeal against deportation.

[2]        At the conclusion of my substantive judgment, I encouraged the parties to seek to agree costs.

[3]        The second respondent seeks costs on a 2B basis. Given the applicant is currently a serving prisoner, his counsel advises that although he has had a telephone discussion with the applicant, he has not been able to take instructions. Counsel nevertheless advises “the schedule of costs attached to the [second respondent’s memorandum] sets out the costs according to scale”. I therefore proceed on the basis that the scale costs calculation by the second respondent is accepted. I proceed for present purposes, however, on the basis that the application for costs is opposed.

[4]The first respondent abides the Court’s decision on costs.

Background to the application

[5]        I gratefully adopt the following background summarised in the second respondent’s costs memorandum:

[6]        The applicant is a Nigerian citizen living in New Zealand since 2008. In 2010 he was convicted and sentenced for driving a motor vehicle while disqualified for the third or subsequent time. As a result, he became liable for deportation. The Minister suspended his deportation liability for a period on condition he not be convicted of further offending during that period.

[7]        In 2015 he was convicted on two counts of importation of methamphetamine and two counts of possession of methamphetamine for

1      Ochibulu v Immigration and Protection Tribunal [2020] NZHC 792.

supply. As a result, the Minister decided in 2016 to reactivate the applicant’s liability for deportation.

[8]        Subsequent to this reactivation, the applicant pursued his humanitarian appeal against deportation liability in the Tribunal. This was dismissed in May 2019. Shortly thereafter, the applicant filed the s 249 application on 14 June 2019.

[9]        A hearing for the s 249 application was scheduled for 1 November 2019, but was vacated at the applicant’s request as he had decided to lodge the s 247 application approximately 3.5 years out of time. A new fixture was allocated for 14 February 2020 for the hearing of both the s 247 and s 279 applications at the same time.

Analysis

[6]                 The starting point is that costs follow the event. This means the successful party overall ought to receive a scale costs award in their favour. This may be then adjusted upwards or downwards, or in exceptional cases, indemnity costs awarded.

[7]                 In some public interest cases, costs are ordered to lie where they fall. But as the Supreme Court observed in Prebble v Awatere Huata (No 2), “[i]n public law cases as well as in other civil litigation the rule that costs follow result will generally be just between the parties”.2

[8]                 I am satisfied there is no basis in this case to depart from the ordinary approach that costs follow the event. The applications did not give rise to matters of broader or wider public importance, or to the extent they did in some relatively minor respects, I did not find those aspects of the applicant’s case to be seriously arguable in any event. Further, my decision on each of the applications was not a finely balanced or marginal one.

[9]                 If financial hardship as a result of a costs award is a concern, that is relevant to enforcement of a costs award, rather than the making of the costs award itself. In this context, the applicant has filed a notice of appeal against my substantive judgment. Rather than deferring determination and quantification of costs at this stage, the proper course would be for a stay application to be brought in relation to enforcement of the

2      Prebble v Awatere Huata (No 2) [2005] NZSC 18, [2005] 2 NZLR 467 at [5].

costs award, should an agreed position not be able to be reached.3 I note that counsel for the second respondent have confirmed that the second respondent would agree not to enforce any costs order made by this Court if the applicant is successful in obtaining leave under s 247 and/or s 249 of the Immigration Act 2009.

[10]              I have reviewed the schedule of costs attached to the second respondent’s memorandum, and am satisfied that the steps for which costs are claimed are the proper and appropriate steps to be included in an award in this case. As noted at the outset, the applicant’s position appears to be that the quantification of the scale costs award is in order.

Result

[11]              There is accordingly a costs award against the applicant and in the second respondent’s favour in the amount of $20,443.65, for those costs and disbursements set out in the schedule to the second respondent’s costs memorandum dated 15 May 2020.

Fitzgerald J

3      See generally, Young v Television New Zealand Ltd [2012] NZHC 3460 at [12]; and Gerritsen v Gerritsen [2018] NZHC 1324 at [9], [16], and [29].