TEITIOTA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 3401

TEITIOTA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 3401 [16 December 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-3528[2013] NZHC 3401BETWEEN IOANE TEITIOTAApplicantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentHearing: On the papersCounsel: M J Kidd for the ApplicantR E Savage for the RespondentJudgment: 16 December 2013COSTS JUDGMENT OF PRIESTLEY JThis judgment was delivered by me on Monday 16 December 2013 at 4.00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.Counsel/Solicitors:M J Kidd, Barrister and Solicitor, HendersonR E Savage, Crown Solicitors, AucklandIntroduction[1] The appellant challenged, pursuant to the provisions of s 245(1) of the Immigration Act 2009, a decision of the Immigration and Protection Tribunal. In my judgment of 29 November 2013 I dismissed the appeal. The appellant's claim to be a "climate change refugee" entitled to refugee status under the 1951 Convention relating to the Status of Refugees (incorporated into New Zealand law by s 129(1) of the Act) was novel but hopeless.[2] On the issue of costs I stated:[65] Since the respondent has been successful it is entitled to costs on the 2B scale. I did not understand Mr Kidd to argue to the contrary.[3] The respondent, as the successful party seeks costs. These have been calculated in accordance with the 2B basis at $5,970. The appellant does not dispute the quantum of the calculations.[4] In a very short memorandum counsel for the appellant suggests costs should be reserved. Counsel submitted the case had been funded on a pro bono basis andwas "expected to proceed up the appeal process as the question is of world-wideinterest".[5] Because there were aspects of the costs issue I wanted to explore with counsel a telephone conference was convened on 10 December 2013. Ms Savage confirmed that the Ministry for whom she acts sought costs. Mr Kidd for his part advised he had been instructed to seek leave from the Court of Appeal to appeal myjudgment. He also submitted that, because of the appellant's financial situation, theHigh Court Registrar had waived the filing fee. It was not clear from the Court records whether an application to waive the hearing fee had also been filed. However, Mr Kidd informed me such an application had been lodged.[6] The impecuniosity of a party to an appeal (particularly an appellant) is not ashield against a costs award. A party's financial situation may be relevant to whether or not a costs order is enforced. In the administration of this Court's costs regime itis important to ensure impecunious parties, particularly self-represented litigants(which the appellant was not in this case), are not exempt from costs awards when filing appeals which are bound to fail. Otherwise the door would be open to parties filing appeals with impunity without having to take stock of the merits and consider the financial implications of an appeal being dismissed.[7] Thus, the appellant's eligibility to have Court fees waived is not a ground forrefusing costs. Nor, with respect, is the fact that my judgment for some reason received world-wide coverage in the news media. The appeal, despite its news interest, was a heroic attempt which was bound to fail.[8] Accordingly I order that the appellant is to pay costs to the respondent of $5,970........................................Priestley J