K CHOPRA & ANOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV 2009-404-000911 [2009] NZHC 1029 (14 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                        CIV 2009-404-000911

                UNDER                          the Judicature Amendment Act 1972

                IN THE MATTER OF             
 an application for judicial review and civil
                                               action

                BETWEEN    
                   KAMAL CHOPRA
                                               First Plaintiff

                AND             
              KERRE CHOPA
                                               Second Plaintiff

                AND                  
         THE CHIEF EXECUTIVE OF THE
                                               DEPARTMENT OF LABOUR
                        
                      Defendant


Hearing:        (On the papers)

Counsel:        F C Deliu for the Plaintiffs
                V
Casey for the Defendant

Judgment:       14 August 2009 at 4:30pm


                        [COSTS] JUDGMENT OF WYLIE J


      
                  This judgment was delivered by Justice Wylie
                                 on 14 August 2009 at 4:30pm
    
                     pursuant to r 11.5 of the High Court Rules


                                  Registrar/Deputy Registrar
 
                                           Date:




Solicitors:

F C Deliu, P O Box 76 899, Manukau City 2241
Crown Law, P O Box
2858, Wellington 6140



K CHOPRA & ANOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV
2009-404-000911 14 August 2009

[1]     Mr and Mrs Chopra sought judicial review of a decision by an Immigration
officer to decline Mr Chopra a returning resident's
visa. I dealt with the matter in
my reserved judgment issued on 30 June 2009. I declined the application.


[2]     The defendant
­ the Chief Executive of the Department of Labour ­ has
applied for costs. That application is opposed by Mr and Mrs Chopra.


[3]
    The Chief Executive seeks costs against both Mr and Mrs Chopra on a joint
and several basis. He seeks costs not only in regard
to the substantive hearing, but
also in regard to an earlier application lodged by the Chopras seeking leave to cross-
examine a
deponent called by the defendant ­ a Mr Willson. The Chopras were
unsuccessful in that application. An order for costs in regard
to it has not been made.


[4]     Costs are sought by the Chief Executive under r 14.2. Costs are sought on a
2B basis in accordance
with the following table:

                                                                     Allocated Days
Commencement of defence
                                                   2.0
Filing memorandum of 20 March 2009 for case management                   
 0.4
conference
Preparation for case management conference                                 0.2
Appearance at case management conference
no 23 March 2009                  0.3
Filing memorandum of 8 April 2009 in response to plaintiffs'               0.4
memorandum dated
3 April 2009
Preparing and filing opposition to interlocutory application               0.6
Preparation for hearing of defended interlocutory
application             0.25
Appearance at hearing of defended interlocutory application               0.25
Filing memorandum of
5 May 2009                                            0.4
Preparation for hearing on 25 June 2009                               
     1
Attendance at hearing on 25 June 2009                                      0.5
                                          
                        6.3 days at $1,600
Total
                                                                   per day = $10,000

[5]    Disbursements of $1,675.67 are also sought. These comprise filing fees of
$90, travel costs for the two hearings of $1,395.89,
and $189.78 by way of
photocopying.


[6]    Mr and Mrs Chopra oppose the application for costs. Through their counsel,
Mr Deliu,
they submit first that this is not an appropriate case for an award of costs,
and secondly, that in any event the Court should exercise its discretion against any
costs order.


[7]    Mr Deliu submits that the Chopras were not seeking to better their financial
position, but rather to ensure that "their due
process rights [were] not violated". He
submits that the Chopras acted as public watchdogs to ensure that the Chief
Executive properly
handled the Mr Chopra's application. He submits that penalising
the Chopras' recourse to the Court would have the unwanted effect
of deterring
access to the judicial system. He referred me to the decision of Duffy J in Wong v
Registrar of the Auckland High Court
 (2008) 19 PRNZ 32, and in particular to the
discussion at [26] to [32] of that judgment. Mr Deliu also submits that a costs order
would be unduly harsh
against the plaintiffs because of their financial circumstances.
He asserted that the Chopras' case had prima facie merit, and that
there were
repeated mistakes by the defendant that lead to the issue occurring in the first place.
Finally, he submits that the matter
was not of such complexity as to merit
classification on a 2B basis.


[8]    The primary rule is of course that costs are in the
discretion of the Court ­
r 14.1. Nevertheless, that discretion is qualified by the specific costs rules, and is
exercisable only
in situations not contemplated by those rules, or which are not fairly
recognised by them ­ Glaister v Amalgamated Dairies Ltd  [2004] 2 NZLR 606.


[9]    One of the general principles applicable in any proceedings is that the party
who fails with respect to the proceeding or
interlocutory application should pay costs
to the party who succeeds ­ r 14.2(a).


[10]   I accept Mr Deliu's argument that the
Court can decline to award costs, or
award reduced costs, against a party unsuccessful with a genuine and legitimate

public law
challenge. I also accept that the application for review here brought by
the Chopras was not for their personal financial gain. It
was however for their
personal benefit. As I explained in my substantive decision, Mr Chopra failed to
declare the existence of a
deportation order made against him. This was in breach of
the Act.   Had he done so, he would not have received an indefinite returning
resident's visa in April 2008. It was Mr Chopra's initial breach which indirectly lead
to the subsequent application for review.


[11]   The matters in issue were raised in a public law context by way of an
application for review, and they did concern the interpretation
of a provision
contained in the Immigration Act. It was not however a public law challenge raised
in the public interest. As I have
noted the application was advanced to secure for
Mr Chopra the right to return to this country.


[12]   I accept that the argument
advanced for the Chopras was not totally devoid of
merit. However that does not mean that a costs award is inappropriate. Further,
as I
noted in the substantive decision, the papers filed on the Chopras' behalf were
unsatisfactory, and the relief sought could
never have been obtained.


[13]   In my view, it is appropriate to award costs to the Chief Executive.
Otherwise the costs of these
proceedings will fall on the Crown.


[14]   The Chopras commenced proceedings against the defendant. They were
unsuccessful and
in my view there is nothing out of the ordinary in these
proceedings which justifies a departure from the general principle contained
in
r 14.2(a). It is appropriate to award costs on a 2B basis. The proceedings were of
average complexity. They necessitated a careful
analysis of the Immigration Act.
They required counsel of average skill and experience in the High Court.


[15]   Insofar as I can
ascertain from the Court file, all of the steps set out in the
above table were taken, and the amounts claimed in respect of each
step are
appropriate. I note that no challenge to the mechanics of the cost calculation has
been made on behalf of the Chopras.


[16]   Accordingly, I award costs of $10,000, together with disbursements of
$1,675.67, against both Mr and Mrs Chopra on a joint
and several basis and in
favour of the Chief Executive of the Department of Labour.




                                        
    Wylie J