MISIUK V CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV 2008-404-3642

MISIUK V CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV 2008-404-3642 16 July 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-3642UNDER the Judicature Amendment Act 1972 IN THE MATTER OF the Immigration Act 1987 BETWEEN PAWEL MARIAN MISIUK Appellant AND CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent Hearing: 16 July 2008 Appearances: I Chorao for Appellant F Sinclair for Respondent Judgment: 16 July 2008ORAL JUDGMENT OF ASHER JSolicitors: Ryken and Associates, PO Box 501, Auckland Crown Law, PO Box 2858, Wellington 6140[1] This is an appeal against a decision of the Removal Review Authority ordering the appellant's removal from New Zealand. It has been called in the Appeals List in Auckland. [2] The point of law raised in the appeal is that the Authority failed to consider the appellant's particular family circumstances. The appellant asserts that this is a point of law, although it is a little difficult to see from the papers filed that such a point in fact arises. However, that is not to be determined at this stage. [3] The parties seek a ruling on the question whether the proceedings should be transferred to the High Court at Wellington. Rule 708 of the High Court Rules governs where appeals should be filed. It provides:708 Filing of notice of appeal(1) A notice of appeal must be filed in— (a) the office of the Court nearest to the place where the decision appealed against was given; or (b) any other office of the Court in which the parties agree that the notice of appeal may be filed. (2) If subclause (1)(b) applies, the parties must endorse on, or file with, the notice of appeal a memorandum recording their agreement to the filing of the notice of appeal in the office of the Court in which it is filed. (3) If it appears to the Court, on application, that a notice of appeal has been filed in the wrong office of the Court or that another office of the Court would be more convenient to the parties, the Court may direct that— (a) the notice of appeal be filed in another office of the Court; or (b) the documents relating to the appeal be transferred to another office of the Court. (4) The filing of a notice of appeal in the wrong office of the Court does not invalidate an appeal.[4] The decision appealed against was given in Wellington. The notice of appeal was filed in Auckland. Under r 708(1) the notice of appeal "must" be filed in theoffice of the Court nearest to the place where the decision appealed against was given. That is Wellington. [5] However, r 708(3) provides that if it appears to the Court that "another office of the Court would be more convenient to the parties, the Court may direct that the notice of appeal be filed in another office of the Court". Under r 708(4) the filing of a notice of appeal in the wrong office of the Court does not invalidate an appeal. [6] Rule 708(3) appears to envisage that the application to file in a different Court will be lodged prior to the notice of appeal being filed. That has not happened here. However, I accept that the Court's discretion under r 708(3) can be invoked after a wrongful filing, as was the case in Hampson v Accident Compensation Corporation (2001) 16 PRNZ 7. The issue is therefore whether a hearing in Auckland would be "more convenient to the parties" than a hearing in Wellington. [7] In support of her "more convenient" submission, Ms Chorao points out that the appellant is at present in prison in Auckland where his family lives. She says it is more convenient for his lawyers to be able to visit him here. She submits that if an appeal is to be heard in Wellington this may be fatal to the appeal due to the cost of instructing Wellington-based counsel or flying existing counsel down to Wellington. She also makes the general submission that the expertise in relation to appeals of this sort is in Auckland. [8] The wording of r 708(3) indicates that it is for an appellant to establish that the proposed Court is more convenient than the Court nearest to where the decision appealed against was given. The balance of convenience must be clearly in the applicant's favour before the usual rule will be departed from. Minor advantages will not be enough. In assessing convenience, relevant factors will include matters of cost and the whereabouts of those who will need to attend the appeal. [9] This appeal is an appeal on a point of law. There is no need to call evidence and there should be no need for a detailed briefing of the appellant. In any event it is clear that there has already been a good deal of discussion between the appellant andhis counsel. The appellant need not attend the hearing. Thus I do not consider that the appellant has shown personal inconvenience if the appeal is heard in Wellington. [10] The appellant's lawyer is in Auckland, and the respondent's lawyer is in Wellington. There will undoubtedly be notice of some months of a fixture in Wellington. It should be possible for the present counsel briefed in Auckland to organise budget travel to Wellington. The briefing of Wellington counsel does not appear to be necessary. Undoubtedly there will be further expenses involved in such travel, but I am not persuaded that these will be of such moment as to constitute real inconvenience. Such expenses do not warrant a departure from the usual rule that the Court closest to the place where the decision appealed against is the appropriate Court. They do not substantially tilt convenience factors in the appellant's favour. The respondent would face the same hurdle of briefing further counsel or sending existing counsel to Wellington if the hearing were transferred, although I note that it is not under any financial constraints in relation to funding. [11] I have nothing before me to support a suggestion made in submissions that the appeal may have to be abandoned if it is heard in Wellington. I find that submission most difficult to accept. The appellant has clearly been able to support a significant degree of legal attendances to date. The additional costs involved for the appellant in paying for counsel to go to Wellington, if properly planned, should not be so great as to rationally lead to the complete abandonment of the appeal. [12] I conclude that the appellant has not made out a case for a venue different from that required by r 708(1). The appeal will be heard in Wellington. [13] Given that this file will now go from Auckland to Wellington, I direct that it should be placed on the list for the next hearing of appeals in Wellington. [14] Both parties ask me to make timetable orders in any event, which I propose to do, although it may be that the practices in the High Court at Wellington will require some changes to these orders.[15] I make the following orders by consent: a) The appellant is to file and serve points on appeal not later than 10 working days after the conference. b) The appellant is to file and serve not later than 20 working days after the conference a common bundle of paginated and indexed copies of all relevant documents, including all statements, exhibits, documents and submissions filed by the Authority and the respondent and submissions and supporting evidence and documents filed by the parties that were in the possession of the Authority at the time of its decision. Documents in the bundle, whether or not they are exhibits, will be put in date order. The respondent will within 10 working days after this conference have provided to the appellant a set of all documents that it considers should be included in the bundle. c) The appellant must file and serve no later than 30 working days after the conference: i) The appellant's submissions; and ii) A chronology. d) The respondent must file and serve not later than 40 working days after the conference: i) The respondent's submissions; and ii) If the respondent disagrees with the appellant's chronology, a separate chronology, noting areas of disagreement. e) The appellant must prepare a bundle of any authorities referred to in the submissions that the appellant or the respondent considers ought to be produced to the Court. The bundle must be produced and filed 5 working days before the appeal is heard.f) The parties have agreed that security for costs of $800.00 is to be paid by the appellant within 10 working days of this conference.. Asher J