Panchal v Minister of Immigration

[2017] NZHC 2839

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-718 [2017] NZHC 2839

IN THE MATTER OF

an application for leave to appeal under

s 245 of the Immigration Act 2009

BETWEEN

MAHESHKUMAR BAHECHARLAL PANCHAL

Applicant

AND

MINISTER OF IMMIGRATION Respondent

Cont…

Hearing:	On the papers
Appearances:	P Finau for the Applicant J Cassie for the Respondents
Judgment:	22 November 2017

JUDGMENT OF WOODHOUSE J (Costs)

This judgment was delivered by me on 22 November 2017 at 3.30 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms P Finau, Richard Zhao Lawyers Limited t/a Amicus, Solicitors, Auckland

Ms J Cassie, Ministry of Business, Innovation and Employment, Wellington

PANCHAL v MINISTER OF IMMIGRATION [2017] NZHC 2839 [22 November 2017]

Cont…

IN THE MATTER OF

an application for leave to judicially

review under s 249 of the Immigration Act
2009

BETWEEN

MAHESHKUMAR BAHECHARLAL PANCHAL

Applicant

AND

IMMIGRATION AND PROTECTION TRIBUNAL

First Respondent

MINISTER OF IMMIGRATION Second Respondent

[1]      The applicant, Mr Panchal, applied for leave to appeal against, and to bring judicial  review  proceedings  in  respect  of,  a  decision  of  the  Immigration  and Protection Tribunal.  By judgment dated 29 August 2017 I dismissed Mr Panchal’s applications.1

[2]      On the question of costs I said:

[59]     The Minister sought costs. Having succeeded, an order for costs in favour of the Minister would normally follow, and I would allow them on a

2B   basis,   together   with   reasonable   disbursements.   There   were   no submissions for Mr Panchal on costs. In consequence, I will reserve leave

for Mr Panchal to make submissions.

There were consequential directions for memoranda to be filed.

[3]      The Minister seeks costs pursuant to the usual rule that costs follow the event.   Costs, on a 2B basis, and disbursements, in a total sum of $7,195.51, are sought.

[4]      Mr Panchal opposes an order for costs.  On his behalf, Ms Finau submits that I should exercise the Court’s ultimate discretion on questions of costs by declining an order.  This is on the grounds that there would be no purpose in making such an order  because,  unless  there  is  a  successful  appeal  by  Mr  Panchal,  he  will  be deported.  As Ms Finau put it: “There will be no point in him departing with a costs award as proverbial baggage.”

[5]      Ms Finau also referred to another decision of mine in which an application was dismissed, but in which I concluded the judgment by saying that I assumed there would be no application for costs by the respondent.2    That decision has no application.

[6]      I  had  already  indicated  that  I  would  allow  costs  on  a  2B  basis,  with reasonable disbursements, although given the absence of any submissions for Mr Panchal I do not regard that as binding on me.  I am nevertheless satisfied that the

normal rule should apply.  It appears to be implicit in the submissions for Mr Panchal

1      Panchal v Minister of Immigration [2017] NZHC 2080.

2      Nair v Chief Executive of the Department of Labour [2013] NZHC 358.

that the general rule might not apply in immigration cases.  The principles in relation to costs apply in all civil litigation, including public law cases.3    In consequence, costs have been awarded against applicants in immigration cases.4

[7]      I am satisfied that there should be an order for costs on a 2B basis.

[8]      There was a further submission for Mr Panchal that, if I concluded that there should be a costs order, it should be deferred pending determination by the Court of Appeal of an application for further leave to appeal.  That is not a basis for declining a costs order in this Court.

[9]      The   respondent   provided   a   schedule   of   costs   on   a   2B   basis   and disbursements.  I am satisfied they are reasonable.

[10]     There is an order that the applicant pay costs to the second respondent in a sum of $7,195.51.

Woodhouse J

3      Prebble v Huata [2005] NZSC 18, [2005] 2 NZLR 467 at [5]; Fowler & Roderique Ltd v Attorney-General [1987] 2 NZLR 56 (CA) at 75; Auckland Gas Co Ltd v Commissioner of Inland Revenue [1999] 2 NZLR 409 (CA).

4      Recent examples, referred to  in  the  respondent’s submissions, are:  AH  v  Immigration and Protection Tribunal and Immigration New Zealand [2017] NZHC 1880 at [60]; Kumadan v Immigration and Protection Tribunal [2017] NZAR 731 at [34]; Hai v Minister of Immigration [2017] NZHC 2028 at [45].