Vailagilala v Minister of Immigration

[2021] NZHC 1946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-507

[2021] NZHC 1946

UNDER

the Immigration Act 2009

IN THE MATTER OF

an application for leave to appeal a decision of the Immigration and Protection Tribunal

BETWEEN

ESAU VAILAGILALA

Applicant

AND

MINISTER OF IMMIGRATION

Respondent

On the papers
Judgment:	29 July 2021

JUDGMENT OF GORDON J

[Costs]

This judgment was delivered by me on 29 July 2021 at 3.30pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Crown Law, Wellington

CFL Godinet, Auckland

VAILAGILALA v MINISTER OF IMMIGRATION [2021] NZHC 1946 [29 July 2021]

Introduction

[1]    This is an application by the respondent, the Minister of Immigration (the Minister), for a costs award against the applicant, Esau Vailagilala. On 4 June 2021, I dismissed Mr Vailagilala’s application for leave to appeal the decision of the Immigration Protection Tribunal (the Tribunal) under s 245 of the Immigration Act 2009 (the Act).1

[2]    The Minister seeks a total of $9,091.21 in 2B standard costs (including disbursements of $128.71).

[3]    Mr Godinet, on behalf of Mr Vailagilala, says there is no issue as to the items claimed by the Minister. But he says that Mr Vailagilala is impecunious and will never be in a position to pay costs.

Background

[4]    On 8 March 2013, Mr Vailagilala was convicted of murder. The offending occurred on 14 October 2011, which was within two years after Mr Vailagilala first held a New Zealand residence class visa. He was thus liable for deportation pursuant to s 161(1)(a)(iii) of the Act. Mr Vailagilala appealed against his liability for deportation to the Tribunal, claiming exceptional humanitarian circumstances that would make it unjust or unduly harsh to deport him from New Zealand.2

[5]    The Tribunal refused Mr Vailagilala’s appeal. The Tribunal found that exceptional circumstances existed, but that it was not unjust or unduly harsh to deport Mr Vailagilala to Samoa.3

[6]    Mr Vailagilala then applied to this Court for leave to appeal the Tribunal’s decision under s 245 of the Act on questions of law. The proposed grounds of appeal were:

1      Vailagilala v Minister of Immigration [2021] NZHC 1310 at [59].

2      Vailagilala v Minister of Immigration [2021] NZIPT 600380 at [1]–[3].

3      At [75] and [82].

(a)the Tribunal erred in failing to consider or have proper regard to the fact Mr Vailagilala had not received rehabilitative intervention treatment during the term of imprisonment and will not receive such treatment for the rest of his sentence;

(b)the failure by the Department of Corrections to provide Mr Vailagilala with such treatment prevents him from receiving education towards his reintegration into society so as not to pose a risk to the safety of the community; and

(c)the ability for Mr Vailagilala to integrate into society has been hindered by the failure in (b) above.

[7]In this Court, I found:

(a)Mr Vailagilala had not established that the Tribunal did not consider the availability of rehabilitation;

(b)the challenge to the Tribunal’s weighing exercise was an alleged error of fact and not law;

(c)the proposed grounds raised no seriously arguable error of law; and

(d)the proposed appeal did not raise an issue of general or public importance and it was not an appeal which for any other reason ought to be submitted to the High Court.4

[8]I dismissed Mr Vailagilala’s application for leave to appeal.5

4      Vailagilala v Minister of Immigration, above n 1, at [51]–[58].

5 At [59].

Submissions

Counsel for the Minister

[9]    Mr Niven for the Minister notes that the proceeding has previously been categorised as costs category 2. He claims 2B standard costs totalling $9,091.21, including $128.71 in disbursements. He submits the Court should apply the usual costs principle that costs follow the event. Financial hardship is not an answer to a claim of costs. An abatement of costs for personal circumstances will not typically be justified. Mr Niven submits that abatement of costs should be reserved for exceptional circumstances, with evidence of financial hardship to be provided in a sworn affidavit.

Counsel for Mr Vailagilala

[10]   Mr Godinet does not dispute any of the items claimed by Mr Niven. He does not specifically address whether band B is appropriate.

[11]   Mr Godinet notes that Mr Vailagilala was not legally aided. The hearing before the Tribunal and this Court were conducted pro bono.

[12]   Mr Godinet says Mr Vailagilala is impecunious. He submits that is apparent on the material before the Court. Mr Vailagilala has been incarcerated since 2013. He is currently a deportation resident at Paremoremo Prison.

[13]   Mr Godinet submits Mr Vailagilala is not in a position and will never be in a position to pay costs. He will be deported to Samoa at the end of his prison sentence.

Law

[14]   The awarding of costs involves the exercise of a discretion,6 which is to be exercised in accordance with the principles in the High Court Rules 2016 (HCR). Generally, the unsuccessful party should pay costs to the party who succeeds.7 The costs award should be assessed by applying the appropriate daily recovery rate to the

6      High Court Rules 2016, r 14.1.

7      Rule 14.2(1)(a).

time considered reasonable for each step reasonably required in respect of the proceeding.8 The determination of costs should be predictable and expeditious.9

[15]   However, the HCR provide for circumstances where the Court may refuse to make an order for costs or may reduce the costs award under r 14.7.

[16]   While the existing authorities on hardship or impecuniosity in costs awards are not consistent,10 a key principle emerging from the cases is that financial hardship is not usually an answer to a claim for costs.11 Even an impecunious party should have to pay meaningful costs.12 The courts should apply the HCR regime, unless there is good reason to depart from it.13 The personal circumstances of the unsuccessful party need to be exceptional to depart from the general principle that the successful party is awarded costs.14

[17]   The courts have been cautious about expanding the scope of r 14.7(g) to cover impecunious parties because it may undermine the expediency and predictability of the HCR costs regime.15 It also may have the effect of encouraging hopeless cases through the courts if parties may be able to claim impecuniosity to avoid paying costs.16

Analysis

[18]   Although there is no sworn evidence as to Mr Vailagilala’s financial means, having regard to the material before the Court, I accept it is likely he is impecunious. However,  applying  the  principles  referred  to  above,  I  do  not   consider  that   Mr Vailagilala’s financial circumstances fall within the r 14.7(g) exception. His

8      Rule 14.2(1)(c).

9      Rule 14.2(1)(g).

10     Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR14.7.01(e)].

11     Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7]; and

NM (Fiji) v Minister of Immigration [2020] NZHC 2729 at [8].

12     Te Whare o Kaitiaki Ngahere Incorporated Society v West Coast Regional Council [2014] NZHC 2969 at [16].

13 At [9].

14     Foni v Foliaki [2018] NZHC 3126 at [11].

15     At [9]–[11].

16     Te Whare o Kaitiaki Ngahere Incorporated Society v West Coast Regional Council, above n 12, at [4(d)].

personal circumstances are not exceptional. He simply says he cannot pay a costs award.

[19]   While the proceeding raised issues regarding humanitarian concerns, on the facts I found the proposed appeal did not raise matters of general or public importance nor was it one which for any other reason ought to be submitted to the High Court.17 As Mr Vailagilala is the unsuccessful party in this proceeding, he is liable to pay costs.

[20]   I accept that 2B is the correct categorisation/banding. I also accept that the items claimed in the costs schedule are appropriate under sch 3 of the HCR. The disbursements claimed fall within either r 14.12(1)(b) (Court filing fees and photocopying) or r 14.12(2)(c) (courier fees).

Result

[21]   I award costs of $9,091.21 against Mr Vailagilala (being $8,962.50 in 2B scale costs and $128.71 in disbursements) to the Minister of Immigration.

Gordon J

17     Vailagilala v Minister of Immigration, above n 1, at [58].