Yure v Bentley HC Auckland M1530-Pl01

[2002] NZHC 8

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M1530-PL01

IN THE MATTER of the Judicature Amendment Act 1972

BETWEEN T & K M YURE
Plaintiffs

AND T M BENTLEY
First Defendant

AND THE MINISTER OF IMMIGRATION
Second Defendant

Date of hearing: 18 December 2001

Counsel: Mr X for Plaintiffs
Michael Heron for Defendants

Date of judgment: 16 January 2002

JUDGMENT OF CHAMBERS J

SUPPRESSION ORDER AS TO NAME OF PLAINTIFFS’ SOLICITOR AND COUNSEL: para [20]

Lawyers:
Mr Y for Plaintiffs
The Crown Solicitor, DX CP 24063, Auckland, for Defendants

An application for costs

[1] On 8 November last year I dismissed an application for review brought by Taraiti Yure and her husband, Kalix, against Terri Bentley, an immigration officer, and the Minister of Immigration. Mr Yure is a Ghanaian national. He sought to review a decision which the Minister had made under s 130 of the Immigration Act 1987. Mr and Mrs Yure had sought a number of remedies. In particular, they had sought a declaration that the Minister’s decision was ‘illegal and ought to be rescinded’. They had also sought an order ‘quashing the decision’.

[2] The second section of my judgment of 8 November listed the issues which arose on the application for review. I began that section of the judgment as follows:

“A preliminary issue on the application for review is whether Mrs Yure should even be a party. Clearly, she should not be. She is a New Zealand citizen. No one is denying her right to be here. The Minister’s decision was directed solely to Mr Yure’s ability to remain in New Zealand.”

[3] My 8 November judgment concluded with a paragraph on costs:

“I note that Mr Yure is legally aided. Probably therefore the defendants will not be seeking costs. Any applications for costs will be dealt with by way of memorandums.”

[4] In fact, the Minister has sought costs. This judgment is primarily concerned with that application.

[5] The Minister does not seek costs against Mrs Yure, who was legally aided. Accordingly, I do not need to consider whether there are ‘exceptional circumstances’ which dictate that she should lose the protection against a costs order normally accorded by s 40 of the Legal Services Act 2000. But the Minister does seek costs against Mr Yure, who it turns out was not legally aided. Mr Heron, for the Minister, submitted that this was a category 2 case. Clearly that is right. On a band B basis, costs would come to $6240. Because that sum exceeds actual costs incurred, Mr Heron sought only actual costs. In that regard, his claim reflected the principle in r 47(f) of the High Court Rules. There can be no challenge to the reasonableness of Mr Heron’s fee of $4450.50, inclusive of GST. (Indeed, it is at a lower level than Mrs Yure’s grant of legal aid.)

[6] Accordingly, I order Mr Yure to pay costs to the Minister in the sum of $4450.50, plus disbursements. In the absence of agreement, disbursements are to be fixed by the registrar.

Conduct of the Yures’ counsel

[7] I must now, regretfully, turn to another matter, the conduct of the Yures’ counsel. In my 8 November judgment, I referred to the fact that ‘Mr Yure [was] legally aided’ (see para [3] above). And yet it turned out he was not. How did this come about?

[8] My ‘note’ that Mr Yure was legally aided was based on a letter dated 18 October 2001 which Mr Yure’s counsel had written to the registrar of the High Court and had copied to Mr Heron. That letter read:

“M1530-SW01 - YURE & YURE v BENTLEY AND MINISTER OF IMMIGRATION

I write to notify you pursuant to s 21 of the Legal Services Act 2000 that the Applicants are in receipt of grant of legal aid for this matter.”

[9] Following release of my 8 November judgment, Mr Heron wrote to the registrar of the High Court on 30 November:

“Justice Chambers gave judgment on 8 November 2001 and in paragraph [50] of His Honour’s decision stated that Mr Yure was legally aided and therefore the defendants will probably not be seeking costs. That was counsel’s understanding. I am now advised that Mr Yure was ineligible for legal aid, while Mrs Yure was granted legal aid. Justice Chambers held that Mrs Yure should not have been a party.”

[10] Accompanying that letter was Mr Heron’s memorandum seeking costs against Mr Yure.

[11] The Yures’ counsel responded by memorandum dated 6 December. In that memorandum he did not deal with the question of who had legal aid. He submitted that ‘Mrs Yure was a party by virtue of the fact that she is the wife of Mr Yure’. Because she would be affected by Mr Yure’s removal from New Zealand, she was ‘therefore a necessary party and a person entitled to apply under s 4 of the Judicature Amendment Act 1972’.

[12] I was most concerned about the legal aid position. Accordingly, on 10 December, I issued a minute asking counsel to appear on 18 December. In that minute, I indicated that I wanted to know:

[a] Whether Mr Yure had legal aid.

[b] Whether Mrs Yure had legal aid.

[c] What contribution, if any, was required of them.

[d] If Mrs Yure had legal aid, the basis upon which she was granted it.

[e] If only one of the Yures was granted legal aid, Mr [X’s] explanation as to why the court and the defendants were advised that ‘the Applicants’ were in receipt of legal aid.

[13] Counsel duly appeared on 18 December. I asked the Yures’ counsel why he had informed the court and the Crown that ‘the applicants’ were legally aided if only Mrs Yure was legally aided. He replied that he regarded both Mr and Mrs Yure as effectively in receipt of a grant of legal aid and produced to me a letter which he said supported that. The letter did not in fact support such an inference. At best, it was equivocal. I then asked to see the letter granting legal aid. The letter I was given was dated 16 October 2001 and was addressed to the Yures’ counsel. The letter began as follows:

“LEGAL AID RE: 01W060668 TARAITI YURE

I wish to advise that in relation to the following matter(s), Administrative - Judicial Review, the following decision has been made:

Legal aid has been granted. You are reminded that under Section 21 of the Legal Services Act 2000 you are required to give all other parties, and to the Registrar of the Court in which the proceedings are taken, written notification of the grant of aid.”

[14] That letter appeared to make it clear that only Mrs Yure had been granted legal aid.

[15] I then asked to see the actual application for legal aid. I was given a letter the Yures’ counsel had written to the Legal Services Agency dated 9 October 2001, together with the actual application form. The letter opens:

“I enclose the application by Mrs Yure for civil legal aid for a proceeding for judicial review now in the High Court.”

[16] The application form was solely in the name of Mrs Yure. Mr Yure’s involvement was solely in the context of ‘partner’. Under the Legal Services Act, the Legal Services Agency is required to take into account a partner’s income and assets in determining an application for legal aid. It was also noted on the form, in answer to a question ‘Does any other person(s) have a similar interest in these proceedings similar to yours’, that Mr Yure had such an interest. His interest was described as being ‘substantially similar to [Mrs Yure’s] in that the decision being challenged affects us both prejudicially’.

[17] In light of that application form prepared with the assistance of the Yures’ counsel and in light of the grant of aid, I asked the Yures’ counsel how he could possibly have formed the view that both Mr and Mrs Yure were in receipt of legal aid. I received no satisfactory answer.

[18] There is the possibility that the Yures’ counsel, who is well versed in immigration law, knew full well that Mr Yure would not be eligible for legal aid because of the prohibition under s 10(1) of the Legal Services Act. Section 10(1) prohibits a grant of legal aid ‘in respect of proceedings involving a decision or matter under the Immigration Act 1987 to a person who . . . is unlawfully in New Zealand’, as Mr Yure was. On any view of the matter, Mr Yure, who was the person subject to removal from New Zealand, must have had a better ‘claim’ than Mrs Yure, who was and is a New Zealander not subject to removal and not directly affected by the decision under challenge. The explanation as to why Mr Yure did not apply for legal aid either in his own right or jointly with his wife may be that his counsel knew that he was not eligible for legal aid in light of the provisions of s 10(1). It may be that Mrs Yure became a party solely as a means of circumventing s 10(1).

[19] I am also concerned that the Yures’ counsel may have deliberately misled the court and the Crown as to the legal aid position. The purpose of the s 21 notice is to inform the judge and the other parties of the legal aid position because of the effect of legal aid on costs. For that effect, see s 40. Every court lawyer knows that. The view could be taken that the court was told that Mr and Mrs Yure were both in receipt of legal aid so that, if they lost, they would not be held liable for costs because of s 40. The Yures’ counsel’s letter to the court almost did lead to that result. Because of it, I noted in my judgment of 8 November that Mr Yure was legally aided and that probably therefore the defendants would not be seeking costs. Mr Heron confessed that that too had been his understanding. Somehow or other, however, he found out the true position. Perhaps someone in the Crown Solicitor’s office pointed out to him that persons unlawfully in New Zealand are not eligible for legal aid ‘in respect of proceedings involving a decision or matter under the Immigration Act 1987’. Certainly following release of my judgment of 8 November, the Yures’ counsel made no attempt to correct my misapprehension that ‘Mr Yure [was] legally aided’.

[20] I have purposely made no definitive findings on the Yures’ counsel’s conduct. That is because I believe that the concerns I have raised would be more properly determined in another forum. I am referring the matter to the Yures’ counsel’s district law society for investigation by it under s 98 of the Law Practitioners Act 1982. Parliament has ordered that complaints under that Act should be dealt with confidentially, at least until disposed of. For that reason, this judgment will be released without the Yures’ counsel’s name. Nor do I think at this stage it is appropriate for the Yures’ solicitor’s name to be released. Both suppression orders can be reviewed once disciplinary proceedings, if any, are concluded.

[21] I am also referring this judgment to the Legal Services Agency for its information and consideration.

[22] I have written this section of the judgment for 2 reasons. First, it was necessary to give the explanation for the erroneous statement in my 8 November judgment as to Mr Yure’s being legally aided. Secondly, it is important for practitioners to realise the importance the court places on their being completely honest in what they tell the court and the consequences of any failure in that regard.