Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 2100 (31 August 2017)

Last Updated: 15 September 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-3158 [2017] NZHC 2100

UNDER THE	Judicature Amendment Act 1972
IN THE MATTER OF	Sections 207(1) and 249(6) of the Immigration Act 2009
BETWEEN	NADEZDA KARTSEVA Applicant
AND	THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Respondent THE IMMIGRATION PROTECTION TRIBUNAL Second Respondent

Hearing:	On the papers
Judgment:	31 August 2017

_{COSTS JUDGMENT OF DUFFY J}

This judgment was delivered by me on 31 August 2017 at 12 midday pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel: Crown Law, Wellington Amicus Law, Auckland

KARTSEVA v MBIE & IMMIGRATION PROTECTION TRIBUNAL [2017] NZHC 2100 [31 August 2017]

Introduction

[1] On 8 February 2017, I dismissed Ms Kartseva’s application for leave to bring judicial review proceedings.¹ I found that the proposed grounds of review did not disclose any seriously arguable issue that should be heard in the interests of justice. I reserved leave to the parties to file memoranda on costs.

[2] The parties have agreed that the proceeding is to be categorised as 2B for the purposes of costs.² The respondent now seeks costs and disbursements of $8,478.76. The applicant opposes the respondent’s application for costs, arguing that there is a public interest exception to the usual costs regime and that it applies in this case.

Analysis

[3] Costs in the High Court are discretionary,³ but governed by the fundamental principle that the party who fails should pay costs to the party who succeeds.⁴

However, the Court may refuse to make an order for costs or to reduce costs if the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding.⁵

[4] The applicant argues that no costs award should be made against her in relation to the present proceedings, or that the costs award should be reduced. She relies primarily on Wong v Registrar of the Auckland High Court.⁶

[5] Wong was a costs decision following an unsuccessful civil application by Mr Wong seeking identification details of the panel of jurors who sat on his criminal trial. The respondent sought costs on a category 2B basis. I reduced the

_{respondent’s award of costs by 50 per cent to reflect the fact that Mr Wong’s}

1. Kartseva v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 97.

² _{Pursuant to a consent memorandum dated 18 July 2016.}

³ _{High Court Rules 2016, r 14.1.}

⁴ High Court Rules, r 14.2(a); see also Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC

_{109[2012] NZSC 109; , [2013] 1 NZLR 305 at [8].}

⁵ _{High Court Rules, r 14.7(e).}

⁶ Wong v Registrar of the Auckland High Court [2008] NZHC 231; (2008) 19 PRNZ 32 (HC).

application was made bona fide and raised novel and untested points that were worthy of consideration.

[6] In doing so, I observed that there was a public interest exception to the normal regime of costs in judicial review cases. After reviewing the case law I concluded that:⁷

... the following principles emerge. First, the fact a claim raises public law issues will not of itself justify a departure from the usual approach to costs awards. Secondly, a departure from the usual approach will be justified in cases where the claim results in clarifying an important area of public law, and is one where the litigant has no personal interest at stake. Thirdly, BORA claims are somewhat different from other public law claims when it comes to costs awards in that a departure from the usual approach to costs awards may occur even though the claimant will usually have a personal interest at stake. The broad discretionary power in r 48D(f) provides the authority to implement an award of costs that follows these principles.

[7] Applying those principles to the facts of Wong, I noted that the conclusion I had reached on the availability of juror information was not one that was plainly apparent. The point Mr Wong raised was a point that was worthy of consideration. Mr Wong relied on the New Zealand Bill of Rights Act 1990 (NZBORA) in making the application, and although I ultimately concluded that his NZBORA rights were guaranteed and preserved by maintaining the confidentiality of juror information, I only reached this conclusion after careful consideration of the case law. I considered that the point was novel and untested, in that there was no New Zealand case law directly on point and there was some support for Mr Wong’s position in other jurisdictions. The proceeding accordingly helped to clarify the scope of juror confidentiality, which was of general public benefit. For those reasons, I considered that a departure from the general approach to costs was justified. At the same time, however, the respondent was entitled to some award of costs to reflect its success and the cost it incurred in defending the application. Accordingly I reduced the scale

2B costs by 50 per cent.

[8] Wong has frequently been cited by unsuccessful judicial review applicants in an attempt to reduce costs awards against them. That argument does not often

⁷ At [24].

succeed,⁸ demonstrating the high threshold that must be met for the public interest exception to be engaged.

[9] The applicant cites Devi v Immigration and Protection Tribunal (No 2) as an example of a case where that argument did succeed.⁹ There, Heath J held that costs should lie where they fall in respect of an application for leave to appeal and to judicially review a decision of the Immigration and Protection Tribunal. Heath J had dismissed the leave applications. However, he considered that there was merit in obtaining a judgment of the High Court to resolve the apparent conflict between two

earlier judgments as to when an appellant is properly notified of the Tribunal’s

decision for the purpose of bringing an appeal in time.

[10] The applicant submits that the proceeding raised bona fide issues that were novel and untested, or were not entirely decided against her. In particular, she emphasises that she argued:

(a) that “exceptional circumstances of a humanitarian nature” could

include negligent advice;

(b) that she was able to commence judicial review proceedings despite also being able to bring an appeal;

(c) that the phrase “any other reason” in s 249(6)(b) should bear a more expansive interpretation as it imposed a limit on the right to judicial review; and

(d) that leave applications should be determined by assuming the relevant facts to be proven, analogous to the approach taken in a strike-out

_application.

⁸ See the following decisions, where the Court dismissed arguments for the reduction of costs based on Wong: RM v Immigration and Protection Tribunal [2016] NZHC 1701; Sparks v Immigration Advisers Complaints and Disciplinary Tribunal [2017] NZHC 797; Verschaffelt v Employment Relations Authority HC Auckland CIV-2007-404-6818, 6 March 2008; Wang v Minister of Immigration [2013] NZHC 2563; Clubs New Zealand Inc v Minister of Internal Affairs [2015] NZHC 287.

⁹ Devi v Immigration and Protection Tribunal (No 2) [2015] NZHC 2830.

^{[11] The applicant submits that the judgment will serve as a valuable precedent in}

the future. Because of this, the applicant’s costs should lie where they fall, or at least

a substantial reduction should be granted.

[12] I do not consider that this is a case where the usual rule, namely that costs follow the event, should be displaced. It was not a decision that determined novel and untested questions of law, or resolved significant conflicts in the case law:

(a) the brief discussion about negligent advice constituting exceptional circumstances of a humanitarian nature was ultimately obiter, as the applicant had not put her case in that way before the Tribunal;

(b) the fact that the applicant could commence judicial review proceedings despite also being able to bring an appeal was apparent from two earlier decisions, namely Hu v Minister of Immigration and Allada v Immigration and Protection Tribunal;¹⁰

(c) the argument that the phrase “any other reason” in s 249(6)(b) should bear a more expansive interpretation was also not without precedent in the case law, namely the decisions in RM v Immigration and Protection Tribunal and Hu v Minister of Immigration;¹¹

(d) the applicant’s argument that the Tribunal’s factual findings were unsubstantiated was found to be without merit, as there were proven facts to support the inferences that the Tribunal drew;

(e) the applicant’s argument that there was an error of law in applying

Nikoo v Removal Review Authority or Minister of Immigration v

_{Jooste to the present facts was also without merit;}¹² _and

¹⁰ Hu v Minister of Immigration [2016] NZHC 1661; Allada v Immigration and Protection

_{Tribunal [2014] NZHC 953, [2014] NZAR 880.}

11. RM v Immigration and Protection Tribunal [2016] NZHC 735; Hu v Minister of Immigration, above n 10.

¹² Nikoo v Removal Review Authority [1994] NZAR 509 (HC); Minister of Immigration v Jooste

[2014] NZHC 2882, [2015] 1 NZLR 765.

(f) the Tribunal did not fail to give reasons for its decision.

[13] I ultimately concluded that the leave application raised no seriously arguable question to be determined on judicial review. In my view, while the applicant acted reasonably in the conduct of the proceedings, the proceeding was essentially one pursued in the applicant’s private interests. Accordingly the respondent is entitled to costs on a 2B basis.

[14] The applicant takes issue with the respondent’s itemising of costs. In particular, the applicant objects to Items 11 and 26. She says that the respondent should not be entitled to claim for a joint memorandum of the parties (item 11), and that the hearing (item 26) only took half a day rather than three quarters of a day. I accept these arguments. No claim can be made for item 11 and the hearing should be reduced to half a day.

[15] Finally, the applicant says that the costs claimed by the respondent should be offset by the respondent’s protest to jurisdiction that I set aside. Item 8 allows 0.6 days for this, which the applicant says should be credited to it. I agree. The respondent’s protest to jurisdiction was misconceived. Item 8 should be credited to the applicant.

[16] The respondent is therefore entitled to total costs of $5,575, calculated on the following basis:

Item	Days	Sum
Item 23 Item 24 Item 24 Item 26	0.6 1.5 0.5 0.5	$1,338 $3,345 $1,115 $1,115
Total: $6,913 - Item 8 (0.6 days = $1,338) = $5,575

^{[17] The respondent is also entitled to reasonable disbursements. Any issue}

regarding the reasonableness of disbursements is to be resolved by the Registrar.