NM (Fiji) v MINISTER OF IMMIGRATION [2020] NZHC 2729

NM (Fiji) v MINISTER OF IMMIGRATION [2020] NZHC 2729 [16 October 2020]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 IMMIGRATION ACT2009. SEEhttp://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1440836.htmlIN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2020-419-000080[2020] NZHC 2729UNDER THE Immigration Act 2009BETWEEN NM (Fiji)ApplicantAND MINISTER OF IMMIGRATIONRespondentHearing: On the papersJudgment: 16 October 2020JUDGMENT OF WYLIE J[Costs]This judgment was delivered by Justice WylieOn 16 October 2020 at 12.00 middayPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:Ronald Gordon Lawyers, HamiltonCrown Law, Wellington[1] I refer to my judgment of 17 August 2020.1 I declined NM's application forleave to appeal to this Court. Further, I declined to allow him to adduce furtherevidence. I held that the Minister of Immigration was entitled to his reasonable costsand disbursements, noting that they had been sought on a 2B basis. I expressed thepreliminary view that that categorisation was appropriate, and invited counsel to tryand resolve costs by agreement. I reserved leave to the parties to come back to theCourt if they could not reach agreement.[2] I have received a memorandum from counsel for the Minister. Counsel advisethat they have attempted to agree costs with NM's counsel, calculated on a 2B basis,and that they provided him with an itemised schedule setting out the costs anddisbursements claimed. They advise that NM did not agree with the costs calculated.As a result, counsel filed a memorandum seeking costs in the sum of $9,440.50 anddisbursements of $486.32. A costs schedule was annexed to the memorandum. Costswere calculated on a 2B basis in accordance with the relevant High Court Rules.[3] There was no initial response for NM. I instructed the Registrar to raise theissue with his counsel.[4] As a result, I have now received a response. The response does not take issuewith the calculation made for the Minister. Rather, it advises that NM has been servedwith a deportation order and either has been, or will shortly be, deported back to Fiji.It was noted that he has stopped work and that he does not have any means ofsupporting his day to day living costs. It is asserted that NM is not in a position to payany costs and counsel requests that costs should be waived.[5] While the Court has a discretion as to the award of costs, the discretion is notunfettered. It is qualified by the specific rules contained in the High Court Rules –rr 14.2 to 14.10. The discretion is exercisable only in situations not contemplated bythe rules, or which are not fairly recognised by them. The costs regime is of aregulatory character, and it is important that its integrity be maintained. There is a1 NM (Fiji) v Minister of Immigration [2020] NZHC 2077.strong implication that the Court is to apply the regime in the absence of some goodreason to the contrary.2[6] Pursuant to r 14.2(1), a party who fails with respect to a proceeding or aninterlocutory application should pay costs to the party who succeeds. Here, NM failedin his application.[7] Rule 14.7 deals with the situations in which the Court can refuse to make anorder for costs or reduce the costs otherwise payable. None of the listed circumstancesin 14.7(a) to (f) apply. Rule 14.7(g) is more general. It provides that costs can berefused or reduced if some other reason exists which justifies the Court in making suchorder despite the principle that the determination of costs should be predictable andexpeditious.[8] Financial hardship is not an answer to a claim for costs; and when financialhardship is asserted a sworn affidavit of the party's means is ordinarily required beforea request for waiver or reduction will be entertained. The abatement of costs forpersonal circumstances is not typically justified and is reserved only for exceptionalcircumstances.3[9] While I have some sympathy for NM's position, I do not consider that costsshould be refused to the Minister. There is no proper or principled basis on which todo so, and the application for waiver or exemption from a costs order is not supportedby any supporting affidavit. There is no direct challenge to the quantum of costsclaimed.[10] Accordingly, I award costs against NM and in favour of the Minister in the sumof $9,440.50 together with disbursements of $486.32._______________________________Wylie J2 See McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR14.1.02].3 Foni v Foliaki [2018] NZHC 3126; Singh v Immigration and Protection Tribunal [2014] NZHC2065.