Sparks v Immigration Advisers Complaints and Disciplinary Tribunal

[2017] NZHC 797

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-589 [2017] NZHC 797

UNDER

the Judicature Amendment Act 1972, Part

20 of the High Court Rules and the New
Zealand Bill of Rights Act 1990

IN THE MATTER OF

an Application for Judicial Review

BETWEEN

LINDSAY CHARLES SPARKS Applicant

AND

IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL

First Respondent

AND

IMMIGRATION ADVISERS AUTHORITY

Second Respondent

Hearing:	On the Papers
Appearances:	M S Smith for applicant No appearance for first respondent C A Griffin and M F Clark for second respondent
Judgment:	27 April 2017

COSTS JUDGMENT OF DOBSON J

[1]      My substantive judgment in this application for judicial review recorded my provisional  view  that  the  modest  extent  of  Mr  Sparks’ success  did  not  justify variation from the usual rule that the Authority had prevailed and was entitled to its

costs.1   I invited memoranda and these have subsequently been received.

1      Sparks v Immigration Advisers Complaints and Disciplinary Tribunal [2017] NZHC 376.

SPARKS v IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL [2017] NZHC

797 [27 April 2017]

[2]      For Mr Sparks, Mr Smith has argued that the extent of his success ought to entitle him to an award of costs.  Alternatively, the extent to which Mr Sparks was successful would justify a discount on any costs order in favour of the Authority. The arguments raised by Mr Smith included:

(a)      The Tribunal was found to have acted in breach of natural justice in relation to Mr Sparks’ liability for Sacred Heart’s fees.  Natural justice is coextensive with s 27(1) of NZBORA,2 and costs awards should not be made in a way that discourages litigation to vindicate NZBORA rights.3   In addition, the Authority did not concede these errors.

(b)Mr Sparks’ position on “personal obligations” was characterised in the judgment as “arguable”, the matter was a novel one for the High Court, it was a test case, and the findings are important for the wider profession.   Despite the point ultimately being resolved against Mr

Sparks, these considerations may point to costs lying where they fall.4

(c)      Several aspects of the judgment have materially improved Mr Sparks’ position with respect to the Tribunal’s next phases, such as procedural clarifications and the Authority’s concession at the hearing that motivations of complainants would be relevant to sanctions.

[3]      However much these points increase the relative importance of the finding in Mr Sparks’ favour from his own perspective, they do not alter the objective analysis of the overall extent to which the Authority’s position in defending the Tribunal’s decision was vindicated.  The public interest element in the arguments claimed by Mr Smith is not sufficient to alter my evaluation of the overall costs entitlement.

[4]      Having reviewed the issues relevant to costs, I remain of the view that the

Authority, rather than Mr Sparks, is the party entitled to an award.   My analysis includes the prospect that costs ought to be left to lie where they fall.

2      Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009]

2 NZLR 56 at [50].

3      Wong v Registrar of the Auckland High Court (2008) 19 PRNZ 32 (HC) at [24]–[25].

4      Dental Council of New Zealand v Bell [1992] 1 NZLR 438 (HC) at 448 per Tipping J.

[5]      As to the extent of costs entitlement, the parties were agreed that 2B was the appropriate scale.   Ms Griffin conceded that a 10 percent reduction would be appropriate for the small extent to which Mr Sparks had succeeded on a point that might arguably have been conceded to obviate the need for argument about it.

[6]      The costs claimed for the Authority included an allowance for second counsel which I do not consider is warranted in the circumstances of this case.   In other respects, the 2B scale proposed for the Authority in respect of steps 2, 10, 30, 32, 33,

34 and 36 were appropriate.  Costs on a full 2B basis would accordingly be $22,077. A 10 percent reduction reduces that to $19,870 and that is the extent of the costs order in favour of the authority.   The disbursements claimed are reasonable, amounting to a further $352.86.

[7]      Accordingly, I order costs against the applicant and in favour of the second respondent in the sum of $19,870, together with disbursements of $352.86.

Dobson J

Solicitors:

Lane Neave, Christchurch for applicant

Crown Law, Wellington for second respondent