CF v THE ATTORNEY-GENERAL [2016] NZHC 3187

CF v THE ATTORNEY-GENERAL [2016] NZHC 3187 [21 December 2016]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-000420[2016] NZHC 3187BETWEEN CFApplicantAND THE ATTORNEY-GENERAL SUED ONBEHALF OF THE MINISTER OFIMMIGRATIONRespondentHearing: On the papersCounsel: R J Hooker for ApplicantN Bailey and N Fong for RespondentJudgment: 21 December 2016JUDGMENT OF WHATA JThis judgment was delivered by me on 21 December 2016 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Vallant Hooker & Partners, AucklandCrown Law, Wellington[1] CF has applied for judicial review of a decision of the Minister of Immigration (the Minister) to decline him residency. He claims among other things that the decision was unreasonable having regard to the positive recommendation of the Immigration and Protection Tribunal (the IPT). CF applied for leave to cross-examine the Minister to explore the reasons for departing from the IPT'srecommendation. CF did not comply with a number of timetabling orders and ultimately withdrew the application one day before the hearing. CF is legally aided.[2] The Attorney-General seeks costs in respect of CF's application for leave tocross-examine the decision maker, following the discontinuance of the application.[3] In particular, the Attorney-General seeks:(a) As against CF's counsel/solicitors, an order for costs on a 2A basis (in the sum of $1,115) for preparation of the respondent's draftsubmissions, pursuant to the inherent jurisdiction of the High Court.(b) As against CF:(i) An order for costs on a 2B basis, plus disbursements (in the sum of $1,448) against CF, pursuant to s 45(2) of the Legal Services Act 2011; or(ii) If the Court is not minded to do so, an order specifying what order of costs would have been made against CF with respect to the application if s 45 of the Legal Services Act 2011 hadnot affected CF's liability, pursuant to s 45(5) of the same Act.[4] Reliance is placed upon, among other things, the seminal authority, Harley v McDonald1 and a practice note of the Law Society of England and Wales on awards against solicitors personally in immigration matters.21 Harley v McDonald [2002] 1 NZLR 1 (PC).2 The Law Society of England and Wales "Immigration Judicial Review" at [13.1] and [13.3],[5] Various alleged non-compliances are identified, including:(a) A four month delay in filing an amended statement of claim;(b) A four day delay in filing an application for leave to cross-examine the Associate Minister;(c) The failure to file a synopsis of argument as required by a specified date in advance of an interlocutory hearing on the application;(d) An uncooperative approach to the settling of timetabling and directions as requested by the Court;(e) The late vacating of a fixture to accommodate counsel for CF;(f) The failure to file submissions in accordance with an amended timetable; and(g) Advising, one working day before submissions were due, that the application was to be withdrawn.[6] The Attorney-General also complains about CF's conduct in relatedproceedings (CIV-2016-404-435/437 CF v Immigration and Protection Tribunal). These proceedings were set down to be heard on 5 July, with the submissions timetabled for 14 June 2016. The submissions were not filed by that date but the respondent was advised three days after the filing date that the proceedings might be discontinued. On 1 July 2016, two working days before the hearing, CF filed a notice of discontinuance. CF did not comply with a requirement to file a reply in relation to submissions by CF on costs.[7] Mr Hooker for CF responds:(a) There was a proper basis for the interlocutory application, given that the Minister did not provide reasons for his decision and it is unusual<www.lawsociety.org.uk/support-services/advice/practice-notes/immigration-judicial-review/>.that a Minister would not adopt and follow the recommendation of the judicial body that has the jurisdiction to consider the merits of an application and to make a recommendation to the Minister.(b) The respondent did not foreshadow in its notice of opposition that it intended to file an affidavit in support of its position.(c) Counsel was at the time subject to significant work pressures, including attendances before the Court of Appeal.(d) No objection had been rendered by the respondent to the interlocutory application hearing being vacated, on the basis that it was heard before any substantive fixture.(e) In terms of the related proceedings, CF sought legal aid but legal aid had been declined so the proceedings were discontinued.(f) CF could not actively pursue his proceedings until the grant of legal aid and this impacted on the ability of counsel to complete attendances, including the filing of a synopsis of submissions by the required dates.(g) Costs can only be allocated in respect of the interlocutory application and in relation to the submissions due on 12 August 2016.(h) Those submissions were not able to be filed because of pressure of work arising from an urgent fixture in the Court of Appeal.(i) "Court of Appeal commitments required preference over High Court commitments".(j) In terms of the application for costs against CF per se (who is legally aided), the circumstances are not exceptional, as required.Assessment[8] The failure to comply with timetabling orders in this case, combined with the very late withdrawal of the application to cross-examine, would ordinarily attract a costs order of the scale sought by the Attorney-General against CF. But for s 45 of the Legal Services Act, I would have made a costs order accordingly.[9] However, I am not satisfied the exceptional circumstances threshold at s 45(2) has been triggered or that Mr Hooker's conduct warrants an award againstcounsel.[10] First, while indirectly relevant, Mr Hooker's conduct in related proceedingsor in relation to other aspects of the present proceeding is not causally related to the wasted costs in respect of the application on which costs are sought.[11] Second, the present application should not be approached through the lens of well funded litigants in commercial proceedings. Rather:(a) The proceedings are public law proceedings;(b) Involving a refugee applicant for residency of very limited means;(c) The application was not without merit – CF had a supportive recommendation from the IPT; and(d) This Court is assisted by the presence of Counsel who are prepared to offer their services at legal aid rates and/or, as in this case, in the hope of legal aid being granted.[12] Third, I accept Mr Hooker's approach to timetabling is amenable to criticism.But he was working in trying circumstances – his refugee applicant did not have legal aid at the time of the application or at the time of filing a consent memorandum dealing with timetabling and he had commitments to the Court of Appeal running in tandem with the timetabling requirements of this Court. While these factors do not provide an excuse for failing to comply with timetabling orders, or an undulydelayed withdrawal of the application, the imposition of costs against counsel would be unduly punitive in the particular circumstances of the present application.[13] Fourth, I do not consider that the application to cross-examine was improperly made and/or completely without merit (and I do not understand the Attorney-General to be saying so).[14] Fifth, this case is not similar to the authorities cited by the Attorney-General as giving rise to wasted costs: they were plainly hopeless cases.3[15] Sixth, I am not minded to adopt the practice note of the Law Society of England and Wales on immigration matters.4 There are contextual factors which may make such a practice both necessary and appropriate, including the scale of the immigration work in that jurisdiction. Conversely, for the reasons already specified at [11]-[12], the combination of funding constraints on and other Court commitments in this case militate against the generalised application of the English and Welsh practice in the present case.[16] Accordingly:(a) I declare that but for the legal aid status of CF I would have made a costs order in favour of the Attorney-General in the sum of $1,448.00 (including a filing fee disbursement of $110);(b) I decline to make an order pursuant to s 45(2);(c) I decline to make an order for costs against Mr Hooker personally.3 Body Corporate No 192964 v Auckland City Council HC Auckland CIV-2004-404-7207, 20 February 2006; ANZA Distributing New Zealand Ltd (in liq) v USG Interiors Pacific Ltd HC Auckland CIV-2007-404-3474, 18 September 2009; F v M [2015] EWHC 3259. Counsel for the Attorney-General also cited to me the decision in L v Chief Executive of the Ministry of Social Development (2008) 19 PRNZ 116 (HC) but that decision to award costs against counsel was overturned by the Court of Appeal in Deliu v Chief Executive of the Ministry of Social Development [2012] NZCA 406.4 The key part of the Practice Note states: "In immigration matters, the Upper Tribunal and HighCourt have been highly critical of solicitors in some instances and have made orders for wasted costs to be paid by solicitors themselves rather than their clients. In light of the reported decisions, the court may treat any and all firms as being on notice of these issues and may more readily make such orders against solicitors in immigration matters than would be the case inother jurisdictions."[17] In saying this, I accept the Attorney-General's application for costs was properly made. Mr Hooker's failure to adhere to timetabling orders and the belatedwithdrawal of the application led to wasted costs being incurred. Solicitors acting in a similar fashion in future cases do so at their peril.Addendum[18] Mr Hooker suggested that his "Court of Appeal commitments required preference over High Court commitments". It may be that Mr Hooker did not mean to be taken literally. But if so, that presumption is plainly discourteous to this Court. Solicitors of the High Court are expected to comply with timetabling orders unless leave is granted to depart from them. It is no excuse to raise appellate court commitments well after non-compliance. Scarce resources are allocated on the basis of timetabling commitments. It is not for Counsel to unilaterally ignore those commitments. A different judge may have weighed this disregard of duty to this Court more heavily in the assessment of costs. But I simply prefer to record that solicitors should not expect immunity from costs awards for timetabling breaches based on a so-called preference for appellate commitments. Counsel will in every case need to seek the leave of this Court to depart from pre-existing timetabling orders. It may be that leave will be granted or that Counsel will need to make other arrangements either in this Court or in the superior Court.