Vukomanovic v Chief Executive of the Department of Labour HC Wellington Civ-2010-485-497

[2011] NZHC 1311

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-497

BETWEEN  GORDANA VUKOMANOVIC Applicant

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR First Respondent

ANDRESIDENCE REVIEW BOARD Second Respondent

Counsel:         Gordana Vukomanovic in Person

J Foster for Respondents

Judgment:      15 July 2011

JUDGMENT OF J WILLIAMS (ON COSTS)

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2.30pm on the 15th July 2011.

Solicitors:

G Vukomanovic, 2/19 Waiwhetu Road, Lower Hutt

Crown Law, Wellington

GORDANA VUKOMANOVIC V CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV-

2010-485-497 15 July 2011

[1]      On 17 November 2010 I dismissed Ms Vukomanovic’s application for recall of   my   4   August   2010   judgment.      The   4   August   judgment   dismissed Ms Vukomanovic’s application for judicial review of the Residential Review Board’s decision concerning her application for residency.

[2]      Ms Vukomanovic argued that the hearing before me was flawed because the Residence Review Board did not appear in its own right to support its decision.  She said this amounted to a miscarriage of justice against her in terms of rr 10.9 and

15.13 of the High Court Rules.

[3]      I  agreed  with  the  respondent  that  there  was  no  basis  whatever  for  the judgment to be set aside on that ground.  It is well established that tribunals (such as the Residence Review Board) do not appear in the High Court on judicial review to defend their decisions.  There are exceptions to that principle, but those exceptions had no application in this case.

[4]      I reserved the question of costs for memoranda.  Memoranda have since been received.

[5]      The respondent seeks costs of $3,572.00 plus disbursements of $63.47, based on the 2B scale, for the following steps in the proceedings:

4.11     Appearing for timetabling orders on 6/9/10	0.3	564.00
4.13     Preparing and filing opposition on 25/8/10	0.6	1,128.00
4.14     Preparing for half day hearing on 17/11/10	0.5	940.00
4.15     Appearing at half day hearing on 17/11/10	0.5	940.00
$3,572.00

[6]      The disbursements were incurred for courier and photocopying.

[7]      Ms Vukomanovic seeks “$600,000”, and does not otherwise respond.

[8]      The award of costs is a discretionary exercise.  Rule 14.2 of the High Court

Rules lists certain principles to be applied.  Relevantly, r 14.2 provides that:

(a)       the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:

(b)       an award of costs should reflect the complexity and significance of the proceeding:

(c)       costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:

...

[9]      Principle (a) means that Ms Vukomanovic is not entitled to an award of costs. As the unsuccessful applicant for recall, she is liable for the reasonable costs of the respondent. There are no circumstances that warrant a different result.

[10]     Principles (b) and (c), however, lead me to conclude that costs should be awarded on a scale 2A, rather than 2B, basis.  While category two is appropriate for the proceeding as a whole,1 I am satisfied that this step - the application for recall – warrants costs according to band A, as a comparatively small amount of time is reasonable.2    The application for recall was straightforward, and turned on a well- established, well-known principle of law.

[11]     Accordingly,   the   respondent   is   entitled   to   the   following   costs   from

Ms Vukomanovic, plus disbursements:

4.11     Appearing for timetabling orders on 6/9/10	0.3	564.00
4.13     Preparing and filing opposition on 25/8/10	0.3	564.00
4.14     Preparing for half day hearing on 17/11/10	0.5	940.00
4.15     Appearing at half day hearing on 17/11/10	0.5	940.00
$3,008.00

1 High Court Rules, r 4.13

2 High Court Rules, r 4.15.

[12]     Since 17 November 2010, Ms Vukomanovic has filed a number of other applications and memoranda.

[13]     First,  on  23  November  2010,  Ms  Vukomanovic  filed  an  interlocutory application for review of a Registrar’s decision under r 2.11 of the High Court Rules. Ms Vukomanovic seems to allege that the Registrar – in this case Deputy Registrar Michaela Stack – refused to file a document tendered for filing or otherwise refused to perform a duty placed on her under the High Court Rules, by not placing an email attachment before me.   The email attachment was an Emergency Department Discharge Summary relating to Ms Vukomanovic’s mother.  That document, and the email to which it was apparently attached, are exhibits to her affidavit in support. Regardless of whether the document was attached – and the email does not establish that - the email was sent on 18 November 2010, months after the conclusion of the substantive  proceedings  before  me.    The  attachment  is  not  at  all  relevant  to Ms Vukomanovic’s application for recall, determined on 17 November 2010 (the previous day).  There is no evidence of any failure to place documents before me. Accordingly, no order is warranted under r 2.11(2).

[14]     Second,  on  24  November  2010,  Ms  Vukomanovic  filed  a  memorandum claiming that an order was fraudulently or improperly obtained, and seeking relief under r 7.51 of the High Court Rules. The grounds for that application were that:

(a)       she  is  repeating  her  request  as  per  her  submitted  interlocutory application on 23 November 2010; and

(b)the second respondent, that is the Chief Executive of the Department of Labour, was not properly party to the hearing on 17 November

2010, and accordingly any order obtained by the second respondent was fraudulently or improperly obtained.

[15]     The affidavit in support exhibits emails communications with doctors on

23 November 2010 about her mother’s health.

[16]     The issues raised by this memorandum are dealt with by my dismissal of her

23 November application above, and of her application for recall on 17 November

2010.  At [7] of my 17 November 2010 judgment, I state that “the appropriate active respondent is the Chief Executive of the Department of Labour.”  Accordingly, no order has been fraudulently or improperly obtained.

[17]     Thirdly, on 6 December 2010, Ms Vukomanovic filed memorandum seeking transfer of civil proceedings from the High Court to the Court of Appeal.   That application seems to rely on s 64 of the Judicature Act 1908, which provides the High Court with discretion to transfer proceedings to the Court of Appeal where the circumstances of the proceeding are “exceptional”.  Ms Vukomanovic’s affidavit in support exhibits various documents of questionable relevance to that application. The only proceedings that were live before the Court on 6 December 2010 were the question of costs and Ms Vukomanovic’s applications of 23 and 24 November.  For the reasons given above, none of those matters can be considered “exceptional” for the purposes of s 64 of the Judicature Act.

[18]     Ms Vukomanovic’s applications are dismissed accordingly.

Williams J