HIEN NGOC DUONG v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2019] NZHC 155

HIEN NGOC DUONG v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION ANDEMPLOYMENT [2019] NZHC 155 [14 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-001254[2019] NZHC 155BETWEEN HIEN NGOC DUONGFirst ApplicantMAI THI PHUONG PHAMSecond ApplicantLINH PHAM GIA DUONGThird ApplicantVI PHAM TUONG DUONGFourth ApplicantAND CHIEF EXECUTIVE OF THE MINISTRYOF BUSINESS, INNOVATION ANDEMPLOYMENTRespondentContinued /....Hearing: On the papersJudgment: 14 February 2019COSTS JUDGMENT OF HINTON JThis judgment was delivered by me on 14 February 2019 at 1.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:M K Law, AucklandCrown Law, WellingtonCIV-2018-404-001662BETWEEN HIEN NGOC DUONGFirst ApplicantAND MAI THI PHUONG PHAMSecond ApplicantAND LINH PHAM GIA DUONGThird ApplicantAND VI PHAM TUONG DUONGFourth ApplicantAND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentCIV-2018-404-001663BETWEEN HIEN NGOC DUONGFirst ApplicantAND MAI THI PHUONG PHAMSecond ApplicantAND LINH PHAM GIA DUONGThird ApplicantAND VI PHAM TUONG DUONGFourth ApplicantAND IMMIGRATION AND PROTECTIONTRIBUNALFirst RespondentAND CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTSecond Respondent[1] On 31 October 2018, I delivered a judgment dismissing three applications byMr Duong, being:(a) An application for leave to appeal the decision of the Immigration andProtection Tribunal declining Mr Duong's application for a residencevisa.(b) An application for leave to judicially review the same decision of theTribunal.(c) An application for judicial review of the Immigration New Zealanddecision declining Mr Duong's application for a temporary work visa.[2] I also made an order that 2B costs be paid by Mr Duong to the respondent anddirected filing of submissions, first by the respondent within 20 working days of thedecision and secondly, by Mr Duong within 10 working days thereafter.[3] On 3 December 2018, Mr Auld for the respondent filed a memorandum seekingtotal costs of $29,213.00 and $1,099.30 in disbursements, in accordance with aschedule attached to that memorandum. The disbursements are incorrectly added andshould be $1,077.57.[4] On 19 December 2018, counsel for the applicants advised that he was not in aposition to file a memorandum in response to the respondent's memorandum. Thiswas because he had not received instructions other than advice from the first applicantthat he is currently impecunious and would not be able to pay the costs claimed unlesshe is allowed to earn wages in New Zealand. Counsel for the applicants said he, "seeksa direction from the Court as to the appropriate course of action".[5] The only course of action in those circumstances is for me to proceed to makean order for payment of costs in terms of the respondent's memorandum which, on theface of it, accurately calculates costs on a 2B basis. The disbursements also appearreasonable.[6] Questions of whether the applicants can afford to pay in this context will be amatter for enforcement.[7] I therefore order that category 2B costs of $29,213.00 and disbursements of$1,077.57 are awarded to the Chief Executive of the Ministry of Business, Innovationand Employment as calculated in accordance with the attached schedule.------------------------------------------------Hinton J