ROSEVELT V THE ATTORNEY-GENERAL OF NEW ZEALAND HC AK CIV 2005-404-002561

ROSEVELT V THE ATTORNEY-GENERAL OF NEW ZEALAND HC AK CIV 2005-404-002561 14 July 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-002561BETWEEN JOSEPH ROSEVELT Plaintiff AND THE ATTORNEY-GENERAL OF NEW ZEALAND Defendant Hearing: On the Papers Counsel: T J Darby for Plaintiff G A D Neil for Defendant Judgment: 14 July 2009JUDGMENT (No.2) OF COOPER J ON COSTSThis judgment was delivered by Justice Cooper on 14 July 2009 at 11.00 a.m., pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date: Solicitors:Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140Copy to: T J Darby, PO Box 90 959, Auckland[1] In a judgment that I delivered on 21 July 2008 I dismissed the plaintiff's claim for damages for false imprisonment. I reserved the question of costs, providing for memoranda to be filed if agreement could not be reached between the parties. [2] By a memorandum dated 7 December 2008 counsel for the Crown sought costs in the sum of $25,600 and disbursements of $130. By a subsequent memorandum, dated 7 July 2009, counsel accepted that there had been an error in calculating the costs under the Second Schedule to the High Court Rules. As a result, the sum sought for costs was reduced to $24,000, disbursements remaining at the level of $130. [3] The error had been pointed out by the plaintiff's solicitor, Mr Darby. He had not filed a memorandum until 26 June 2009. In that memorandum, he recorded his understanding that he remained the solicitor on the record for the plaintiff. Mr Dorbu had been counsel instructed. In his memorandum, Mr Darby recorded that the Registry's attempts to make contact with Mr Dorbu had been unsuccessful. It was from the Court that Mr Darby had had to obtain a copy of the judgment dated 21 July 2008. Mr Darby's own efforts to contact Mr Dorbu had been unsuccessful. [4] Mr Darby also recorded his understanding that the plaintiff had left New Zealand to go to Africa "some time ago". He then mentioned his own very limited involvement in the matter and recorded his reluctance to take further steps to obtain instructions. Apart from pointing out the calculation error, to which I have already referred, and noting that his instructions to Mr Dorbu were such that Mr Dorbu would be responsible for recovering his own costs direct, the only submission that Mr Darby felt able to make was that the Court, in its discretion, should allow costs to lie where they fall. That submission was advanced on the basis that the plaintiff had been disadvantaged in the presentation of his case to the Court by virtue of having been removed or deported from New Zealand at the time of the trial, and he maintained in any event, that it was most unlikely that any award of costs would in fact be paid.[5] In his memorandum in reply, Mr Neil noted that the plaintiff's removal had been effected as a consequence of his unlawfully remaining in New Zealand having exhausted all remedies available to him under the Immigration Act 1987. The circumstances of his removal were recorded in my judgment of 21 July. Mr Neil noted however that there is a possibility that the plaintiff will seek to return to New Zealand following the expiration of the statutory prohibition upon him doing so. His wife and daughter reside in New Zealand. In the case of his return, a costs award could be enforced against him. [6] The issues raised by Mr Darby are not such as to deprive the defendant of his entitlement to an award of costs. Rule 14.2(a) applies. The plaintiff can hardly rely on his own breaches of the immigration laws to shield him from the consequences of advancing an unmeritorious claim. [7] I therefore order that the plaintiff is to pay the defendant's costs and disbursements in the respective sums of $24,000 and $130.