E AND ANOR V THE REFUGEE STATUS APPEALS AUTHORITY AND ANOR HC AK CIV 2007-404-4841 [2008] NZHC 465 (9 April 2008)

    ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING
               PARTICULARS OF THE PLAINTIFFS
I


 N THE HIGH COURT OF NEW
ZEALAND
AUCKLAND REGISTRY
                                                                CIV 2007-404-4841



              BETWEEN
                    E
                                          First Plaintiff

              AND                         W
   
                                      Second Plaintiff

              AND                         THE REFUGEE STATUS APPEALS
   
                                      AUTHORITY
                                          First Defendant

              AND    
                    THE ATTORNEY-GENERAL
                                          Second Defendant


Hearing:      9 April 2008

Appearances: C Curtis for Plaintiffs
             M A Woolford for First and Second Defendants

Judgment:     9 April 2008


  
            JUDGMENT OF RANDERSON J AS TO COSTS




Solicitors:   Meredith Connell, PO Box 2213, Auckland
              Marshall
Bird & Curtis, PO Box 105045, Auckland



E AND ANOR V THE REFUGEE STATUS APPEALS AUTHORITY AND ANOR HC AK CIV 2007-404-
4841 9 April
2008

[1]    This is an application for judicial review of a decision by the Refugee Status
Appeals Authority refusing refugee status
to the plaintiffs, who arrived in New
Zealand from Ethiopia in 2005.


[2]    The essential issue before the Appeals Authority related
to the credibility of
the plaintiffs. The Appeals Authority found, after an extensive review of evidence
and hearings which occupied
some 5 days, that the plaintiffs' account of their
circumstances prior to leaving Ethiopia and on their journey to New Zealand was
not credible. Their account was rejected in its entirety. The Appeals Authority
referred to a significant number of discrepancies
in the evidence as between the
plaintiffs and to a lack of plausibility in relation to much of the evidence.


[3]    In the circumstances,
a challenge on judicial review was always going to be
difficult. The Crown has gone to a good deal of trouble. In particular, it
has
prepared a significant bundle of documents covering two volumes and has also made
available to the Court an extensive transcript
of evidence before the Appeals
Authority.


[4]    Yesterday, the plaintiffs' counsel advised the defendants' counsel that the
application
would be withdrawn. It seems the Court was also notified late yesterday
although I did not become aware of this until this morning.


[5]    Plaintiffs' counsel advises that the proceeding is to be discontinued but the
defendants seek costs. Ms Curtis advises that
the plaintiffs are legally aided so that
no order for costs may be made against them unless the Court is satisfied that there
are
exceptional circumstances: s 40(2) Legal Services Act 2001. However, an order
is sought in terms of s 40(5) Legal Services Act specifying
the order for costs which
would have been made but for the provisions of s 40(2).


[6]    Given the circumstances of this particular
case and the last minute advice that
the proceedings would be withdrawn, it seems to me inevitable that an award of
costs against
the plaintiffs on a 2B basis would have been made covering all
attendances up until today. At this stage, Mr Woolford for the defendant
does not
have the actual figures but has agreed to provide the Court with a memorandum later

today which stipulates the amount
which would have been payable under the Rules
along with any relevant disbursements. This amount will be included in the record
of
this decision.


[7]    I make it clear that the order indicating an award of costs which would
otherwise have been made is not to
be taken as a precedent necessarily applicable to
all judicial review proceedings of this nature. In each case the Court will be
required
to exercise its discretion. It is recognised that in cases of this kind the plaintiffs in
judicial review proceedings, whether
for immigration status or refugee status, will
themselves be impecunious or in difficult circumstances and legal aid may not be
available to them.


[8]    In
the circumstances, I make an order in terms of s 40(5) that the costs which
would otherwise be payable to the defendants by the plaintiffs
but for s 40(2) are
$8,670.80 (inclusive of disbursements of $545.49). The scale costs would have been
$11,360 plus disbursements
but the award is limited to the actual legal costs incurred
by the defendants: Rule 47(f).


[9]    To save the additional cost to
the plaintiffs of filing a discontinuance, the
proceeding is struck out.




                                                 ______________________________
                                                           A P Randerson, J
                                                    
   Chief High Court Judge