Dahiya v Chief Executive of the Ministry of Business Innovation and Employment [2016] NZHC 1835 (9 August 2016)

Last Updated: 14 December 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-191 [2016] NZHC 1835

BETWEEN	RAM CHANDER DAHIYA Applicant
AND	CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT Respondent

Hearing:	On the papers
Appearances:	Applicant in person N Copeland for Respondent
Judgment:	9 August 2016

JUDGMENT OF LANG J [on costs]

This judgment was delivered by me on 9 August 2016 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

DAHIYA v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2016] NZHC 1835 [9 August 2016]

[1] On 8 June 2016 I dismissed an application by Mr Dahiya for leave to appeal against a decision of the Immigration and Protection Tribunal.¹ As the successful party, the Chief Executive of the Ministry of Business Immigration and Employment (the Chief Executive) now seeks an award of costs against Mr Dahiya. The Chief Executive seeks an award of costs on a category 2 Band B basis, together with disbursements as fixed by the Registrar.

[2] Mr Dahiya opposes an award of costs being made against him. He contends that he and his wife became the victims of the Chief Executive’s inefficiency when the Ministry of Business Innovation and Employment failed to provide them with advice in 2012 regarding the terms upon which their visas had been issued. Mr Dahiya says that he and his wife have suffered greatly as a result of this, and that they should receive a significant award of compensation from the Chief Executive.

[3] The principles to be applied when fixing costs in civil proceedings in the High Court are contained in Part 14 of the High Court Rules. Rule 14.2 provides that the party who fails with respect to a proceeding should pay costs to the party who succeeds. In the present case the Chief Executive was clearly the successful party, and on that basis would ordinarily be entitled to an award of costs.

[4] Mr Dahiya relied upon the same argument in relation to his application for leave to appeal as he now relies on in relation to the issue of costs. In my substantive judgment I dealt with that argument in the following way:

[21] The starting point is the correctness of the premise upon which Mr Dahiya’s argument is based. Although the Tribunal said it was “regrettable” that Immigration New Zealand did not advise Mr Dahiya and his wife of the true position, there is no statutory provision requiring Immigration New Zealand to provide visa holders with separate advice regarding the nature of their visas and the terms and conditions upon which they have been issued. The holder of a resident’s visa should obtain that information from the terms of the visa as entered in the holder’s passport. Any residual uncertainty should be resolved by making enquiries with the immigration authorities to ascertain the correct position. In the present case the visas stated they were

1. Dahiya v Chief Executive of the Ministry of Business Immigration and Employment [2016] NZHC 1217.

issued for an indefinite term, but would be cancelled if Mr Dahiya and/or his wife were outside New Zealand on 11 September 2013 when the travel conditions expired. Mr Dahiya and his wife bore the onus of ensuring that they were aware of those facts.

(Footnotes omitted)

[5] I see no reason to take a different view when considering the issue of costs. I consider that the usual principles should apply, and that Mr Dahiya as the unsuccessful party should be required to contribute to the costs incurred by the Chief Executive as the successful party.

[6] The Chief Executive is therefore to receive an award of costs on a category 2

_{Band B basis together with disbursements as fixed by the Registrar.}

Lang J

Solicitors:

Meredith Connell, Auckland