Zhao v Chief Executive of the Ministry of Business, Innovation and Employment

[2019] NZHC 326

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2016

[2019] NZHC 326

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of a decision of the Immigration Officer made pursuant to section 177 of the Immigration Act 2009 to cancel the Deportation Order

BETWEEN

CHONGWEI ZHAO

Applicant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

Hearing:

On the papers

Appearances:

R J Hooker for the Applicant

T Fisher and T Witten-Sage for the Respondent

Judgment:

4 March 2019

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me

on 4 March 2019 at 10.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Crown Law, Wellington

Vallant Hooker & Partners, Auckland

ZHAO v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2019] NZHC 326 [4 March 2019]

[1]        This is a claim for costs by the respondent, the Chief Executive of the Ministry of Business, Innovation and Employment (Chief Executive).

[2]        The applicant, Chongwei Zhao (Mr Zhao), brought judicial review proceedings challenging a decision by an Immigration Officer not to cancel a deportation order that had been made previously.

[3]        The application for review was opposed by the Chief Executive and a one-day fixture was set for 4 February 2019.

[4]        On 17 January 2019, Mr Hooker, on behalf of Mr Zhao, advised the Registrar informally by email that Mr Zhao would not be proceeding with his application for review. A notice of discontinuance was filed on 30 January 2019.

[5]        The Chief Executive consented to discontinuance subject to costs. A memorandum setting out the Chief Executive’s claim for costs has now been filed.

[6]        Mr Hooker has advised the Registrar by email that it is not proposed to file a memorandum on behalf of Mr Zhao. Mr Hooker says that Mr Zhao is in China and he has limited instructions. The email also records an objection to what Mr Hooker describes as “without prejudice” communications which are annexed to the memorandum filed on behalf of the Chief Executive. Mr Hooker objects to those communications being filed or referred to.

Costs claimed

[7]        The parties had previously agreed, in a joint memorandum filed for the case management conference, that this was a category 2B proceeding for the purpose of costs.

[8]        The Chief Executive seeks costs in the sum of $14,272 together with disbursements of $235.10 (totalling $14,507.10) as set out in a schedule attached to the Chief Executive’s memorandum. A copy of the costs and disbursements schedule as claimed is attached to this judgment.

Correspondence

[9]        I do not accept Mr Hooker’s submission that the correspondence should not be referred to. The communications from the Crown Law Office to Mr Hooker are marked “without prejudice save as to costs”. They were not referred to the Court until the question of costs was to be decided.1

[10]      The communications are relevant both to costs generally and to the claim for costs on this costs application.2

[11]      On 16 October 2018, before counsel for the Chief Executive had filed a statement of defence, Crown counsel wrote to Mr Hooker inviting Mr Zhao to discontinue the proceeding and to comply with his reporting requirements with Immigration New Zealand (INZ). The letter stated that if Mr Zhao complied with those two requests, the Chief Executive would not seek costs against him.

[12]      On 16 January 2019, there was a telephone discussion between Crown counsel and Mr Hooker.

[13]      On 17 January 2019, Crown counsel emailed Mr Hooker advising that because Mr Zhao had not accepted the offer in the letter of 16 October 2018, the Chief Executive was not willing to agree not to pursue costs. Crown counsel advised that the total costs and disbursements for steps taken as at that date came to $13,615.10. However, Crown counsel further advised that the Chief Executive was willing to accept $10,000 provided that amount was included in the notice of discontinuance.

[14]      On 20 January 2019, Mr Hooker emailed Crown counsel stating that a reasonable compromise would be costs agreed in the sum of $7,500.

1      High Court Rules 2016, r 14.10 provides that written offers expressly stated to be without prejudice except as to costs may be made by a party to a proceeding to another party at any time. The fact that the offer has been made must not be communicated to the Court until the question of costs is to be decided.

2      Rule 14.11(1) provides that the effect (if any) that the making of an offer under r 14.10 has on the question of costs is at the discretion of the Court.

[15]      On 22 January 2019, Crown counsel emailed Mr Hooker advising that the Chief Executive was prepared to accept $7,500 only if Mr Zhao paid the amount immediately as a lump sum. Alternatively, the Chief Executive would agree to the compromised costs of $10,000 as previously offered. In the event that costs were not agreed, the Chief Executive would seek to recover the full costs and disbursements recoverable of $13,615.10.

[16]On 24 January 2019, Mr Hooker emailed Crown counsel rejecting that offer.

Items claimed

[17]      I am satisfied that the steps taken, as referred to in items 2, 9, 10, and 20 in the attached schedule were taken and that the amounts claimed, as set out on the schedule, should be awarded. The two remaining items require a brief discussion.

Step 11 — Costs on costs application

[18]      The Chief Executive has claimed costs of $892 for costs on this costs application. The amount is calculated by analogy with step 11 in Schedule 3 of the High Court Rules 2016.

[19]Costs may be awarded in respect of an application for costs.3

[20]      Here, Mr Zhao refused to agree compromise costs. In the circumstances I consider an award of costs on this application is appropriate. I award $892 as claimed.

Step 30 — Affidavit of Immigration Officer

[21]      The officer who made the decision impugned in these proceedings swore an affidavit dated 15 January 2019. Rather than claiming the full allowance of 2.5 days, the amount has been reduced to half a day to more closely reflect the time taken to prepare the affidavit.

3      See Body Corporate Administration Ltd v Mehta [2013] NZHC 213 at [85].

[22]      The affidavit was filed together with the Chief Executive’s statement of defence (dated 15 January 2019) to Mr Zhao’s amended statement of claim (dated  14 December 2018). The affidavit sets out the process that the officer took when making her decision. It is apparent from the chronology of events, already referred to in this judgment, that the advice from Mr Zhao’s legal representative to the Court that he would be discontinuing the proceeding came two days after the date of this affidavit.

[23]      I consider the claim made for the preparation of this affidavit should be allowed.

Conclusion

[24]I award costs in favour of the Chief Executive against Mr Zhao in the sum of

$14,272 together with disbursements of $235.10 (a total of $14,507.10).

Gordon J

Schedule: Respondent’s costs - Zhao v Chief Executive of ItBIE (CZV-2018-404-2016] Proceeding Category Average  2

Daily Recovery Rate  $  2,230

General civil proceedings

Commencemen I

2     Commencement of defence by defendant

9Pleading in response to a mended pleading (payable regardless of outcome except when formal or consented to)

Case Management

10Preparation for first case management conference

(i ncl uding discussion about discovery)

1I Filing memorandum for first case management conference or mentions hearing (costs on costs application)

Iriterroga tories discovery' and inspection

20    List of documents on discovery

Trial preparation and appearance

30     Plaintiff's or defendant's preparation of briefs or

affidavits

Total Costs

Disbursements

A, B, C*   Days          

B	2.00	4,460.00
B	0.60	1,338.00
0.40	892.00
B	0.40	892.00
B	2.50	5,575.00
B	0.50	1, 115.00
$ 14,272.00

Court filing fees	19i30
Statement of Defence	95.65
Amended Statement of Defence	95.65
Courier fees	23.80
Photocopying	20.00

Subtotal

Total Costs and Disbursements

235.10

$   14,507.10

* Alloca tion of days or part days is based on Bands A D or C as per rules 14. 1 to t4.7, High Court Rules