ZHAO v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2019] NZHC 326

ZHAO v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT[2019] NZHC 326 [4 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-2016[2019] NZHC 326UNDER the Judicial Review Procedure Act 2016IN THE MATTER of a decision of the Immigration Officermade pursuant to section 177 of theImmigration Act 2009 to cancel theDeportation OrderBETWEEN CHONGWEI ZHAOApplicantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS, INNOVATIONAND EMPLOYMENTRespondentHearing: On the papersAppearances: R J Hooker for the ApplicantT Fisher and T Witten-Sage for the RespondentJudgment: 4 March 2019JUDGMENT OF GORDON J[As to costs]This judgment was delivered by meon 4 March 2019 at 10.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Crown Law, WellingtonVallant Hooker & Partners, Auckland[1] This is a claim for costs by the respondent, the Chief Executive of the Ministryof Business, Innovation and Employment (Chief Executive).[2] The applicant, Chongwei Zhao (Mr Zhao), brought judicial review proceedingschallenging a decision by an Immigration Officer not to cancel a deportation order thathad been made previously.[3] The application for review was opposed by the Chief Executive and a one-dayfixture was set for 4 February 2019.[4] On 17 January 2019, Mr Hooker, on behalf of Mr Zhao, advised the Registrarinformally by email that Mr Zhao would not be proceeding with his application forreview. A notice of discontinuance was filed on 30 January 2019.[5] The Chief Executive consented to discontinuance subject to costs. Amemorandum setting out the Chief Executive's claim for costs has now been filed.[6] Mr Hooker has advised the Registrar by email that it is not proposed to file amemorandum on behalf of Mr Zhao. Mr Hooker says that Mr Zhao is in China andhe has limited instructions. The email also records an objection to what Mr Hookerdescribes as "without prejudice" communications which are annexed to thememorandum filed on behalf of the Chief Executive. Mr Hooker objects to thosecommunications being filed or referred to.Costs claimed[7] The parties had previously agreed, in a joint memorandum filed for the casemanagement conference, that this was a category 2B proceeding for the purpose ofcosts.[8] The Chief Executive seeks costs in the sum of $14,272 together withdisbursements of $235.10 (totalling $14,507.10) as set out in a schedule attached tothe Chief Executive's memorandum. A copy of the costs and disbursements scheduleas claimed is attached to this judgment.Correspondence[9] I do not accept Mr Hooker's submission that the correspondence should not bereferred to. The communications from the Crown Law Office to Mr Hooker aremarked "without prejudice save as to costs". They were not referred to the Court untilthe question of costs was to be decided.1[10] The communications are relevant both to costs generally and to the claim forcosts on this costs application.2[11] On 16 October 2018, before counsel for the Chief Executive had filed astatement of defence, Crown counsel wrote to Mr Hooker inviting Mr Zhao todiscontinue the proceeding and to comply with his reporting requirements withImmigration New Zealand (INZ). The letter stated that if Mr Zhao complied withthose two requests, the Chief Executive would not seek costs against him.[12] On 16 January 2019, there was a telephone discussion between Crown counseland Mr Hooker.[13] On 17 January 2019, Crown counsel emailed Mr Hooker advising that becauseMr Zhao had not accepted the offer in the letter of 16 October 2018, the ChiefExecutive was not willing to agree not to pursue costs. Crown counsel advised thatthe total costs and disbursements for steps taken as at that date came to $13,615.10.However, Crown counsel further advised that the Chief Executive was willing toaccept $10,000 provided that amount was included in the notice of discontinuance.[14] On 20 January 2019, Mr Hooker emailed Crown counsel stating that areasonable compromise would be costs agreed in the sum of $7,500.1 High Court Rules 2016, r 14.10 provides that written offers expressly stated to be withoutprejudice except as to costs may be made by a party to a proceeding to another party at any time.The fact that the offer has been made must not be communicated to the Court until the question ofcosts is to be decided.2 Rule 14.11(1) provides that the effect (if any) that the making of an offer under r 14.10 has on thequestion of costs is at the discretion of the Court.[15] On 22 January 2019, Crown counsel emailed Mr Hooker advising that theChief Executive was prepared to accept $7,500 only if Mr Zhao paid the amountimmediately as a lump sum. Alternatively, the Chief Executive would agree to thecompromised costs of $10,000 as previously offered. In the event that costs were notagreed, the Chief Executive would seek to recover the full costs and disbursementsrecoverable of $13,615.10.[16] On 24 January 2019, Mr Hooker emailed Crown counsel rejecting that offer.Items claimed[17] I am satisfied that the steps taken, as referred to in items 2, 9, 10, and 20 in theattached schedule were taken and that the amounts claimed, as set out on the schedule,should be awarded. The two remaining items require a brief discussion.Step 11 — Costs on costs application[18] The Chief Executive has claimed costs of $892 for costs on this costsapplication. The amount is calculated by analogy with step 11 in Schedule 3 of theHigh Court Rules 2016.[19] Costs may be awarded in respect of an application for costs.3[20] Here, Mr Zhao refused to agree compromise costs. In the circumstances Iconsider an award of costs on this application is appropriate. I award $892 as claimed.Step 30 — Affidavit of Immigration Officer[21] The officer who made the decision impugned in these proceedings swore anaffidavit dated 15 January 2019. Rather than claiming the full allowance of 2.5 days,the amount has been reduced to half a day to more closely reflect the time taken toprepare the affidavit.3 See Body Corporate Administration Ltd v Mehta [2013] NZHC 213 at [85].[22] The affidavit was filed together with the Chief Executive's statement ofdefence (dated 15 January 2019) to Mr Zhao's amended statement of claim (dated14 December 2018). The affidavit sets out the process that the officer took whenmaking her decision. It is apparent from the chronology of events, already referred toin this judgment, that the advice from Mr Zhao's legal representative to the Court thathe would be discontinuing the proceeding came two days after the date of thisaffidavit.[23] I consider the claim made for the preparation of this affidavit should beallowed.Conclusion[24] I award costs in favour of the Chief Executive against Mr Zhao in the sum of$14,272 together with disbursements of $235.10 (a total of $14,507.10).___________________________________Gordon J