X v Refugee Status Appeals Authority

[2009] NZCA 587

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR PARTICULARS IDENTIFYING X AND Y

IN THE COURT OF APPEAL OF NEW ZEALAND

CA109/2008 [2009] NZCA 587

BETWEEN  X Appellant

ANDREFUGEE STATUS APPEALS AUTHORITY

First Respondent

ANDATTORNEY-GENERAL (MINISTER OF IMMIGRATION)

Second Respondent

AND  Y

Third Respondent

Hearing:         6 and 7 May 2009

Court:            Hammond, Arnold and Baragwanath JJ Appearances: C S Henry for Appellant and Third Respondent

I C Carter and R A Kirkness for First and Second Respondents

Judgment:      14 December 2009         at 11 am

NO. 2 (COSTS) JUDGMENT OF THE COURT

AThe second respondent must pay to X costs for a complex appeal on a band B basis and usual disbursements.

BThe second respondent must pay to Y costs for a complex appeal on a band B basis and usual disbursements.

X V REFUGEE STATUS APPEALS AUTHORITY AND ORS CA CA109/2008  14 December 2009

REASONS OF THE COURT

(Given by Hammond J)

[1] In our judgment of 20 October 2009 we reserved costs: [2009] NZCA 488. The parties have now filed memoranda.

[2]      Both X and Y succeeded in this Court.  Mr Carter responsibly accepts that the general principle – that costs should follow the event – should apply and that both X and Y are entitled to costs in this Court.

[3]      As to who should be responsible for those costs, the first respondent, the Refugee Status Appeals Authority abided the decision of the Court.  The Attorney- General (Minister of Immigration) undertook to participate in the proceeding by resisting X’s appeal and cross-appealing against Y.   The award of costs should therefore be made against the second respondent.

[4]      As to the quantum of costs, we consider that this appeal should be classified as a complex appeal, as defined in r 53B(1)(b) of the Court of Appeal (Civil) Rules

2005.

[5]      Subject to any adjustments the Court is minded to make (as to which more shortly), the order should therefore be that the second respondent must pay to X and Y costs on each of their causes in this Court for a complex appeal on a band B basis and usual disbursements.

[6]      As we apprehend his submissions, Mr Henry is content to abide these orders.

[7]      For  the  Attorney-General,  Mr Carter  sought  a  reduction  in  costs  from whatever order would otherwise have been appropriate.  Mr Carter focused on four factors:

•That   the   appellant/third   respondent’s   case   was   initially  poorly focused, which attracted some judicial concern;

•That at the hearing on 6-7 May 2009 another member of this panel had also endeavoured to get some order to the proceedings;

•That counsel for the second respondent was then required to submit further points in reply to tidy up some legal and factual inaccuracies; and

•That  counsel  for  the  second  respondent  has  had  to  do  a  costs calculation to try and assist the Court on the present application.

[8]      Mr Carter sought a reduction of $10,000 in the costs which would otherwise be payable.  We are not persuaded that the above factors individually, or collectively, justify any reduction in this case.   There is an important principle that costs assessments should be made without recourse to the Court – that is why the rules are cast as they are.  Departures are unusual and require a clear and compelling case.

Conclusion

[9]      In this Court:

•The second respondent must pay to X costs for a complex appeal on a band B basis and usual disbursements.

•The second respondent must pay to Y costs for a complex appeal on a band B basis and usual disbursements.

Solicitors:

Witten-Hannah Howard, Auckland for Appellant

Crown Law Office, Wellington