K CHOPRA & ANOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV 2009-404-000911

K CHOPRA & ANOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC AK CIV 2009-404-000911 14 August 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-000911UNDER the Judicature Amendment Act 1972 IN THE MATTER OF an application for judicial review and civil action BETWEEN KAMAL CHOPRA First Plaintiff AND KERRE CHOPA Second Plaintiff AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Defendant Hearing: (On the papers) Counsel: F C Deliu for the Plaintiffs V Casey for the Defendant Judgment: 14 August 2009 at 4:30pm[COSTS] JUDGMENT OF WYLIE JThis judgment was delivered by Justice Wylie on 14 August 2009 at 4:30pm pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: F C Deliu, P O Box 76 899, Manukau City 2241 Crown Law, P O Box 2858, Wellington 6140[1] Mr and Mrs Chopra sought judicial review of a decision by an Immigration officer to decline Mr Chopra a returning resident's visa. I dealt with the matter in my reserved judgment issued on 30 June 2009. I declined the application. [2] The defendant – the Chief Executive of the Department of Labour – has applied for costs. That application is opposed by Mr and Mrs Chopra. [3] The Chief Executive seeks costs against both Mr and Mrs Chopra on a joint and several basis. He seeks costs not only in regard to the substantive hearing, but also in regard to an earlier application lodged by the Chopras seeking leave to cross- examine a deponent called by the defendant – a Mr Willson. The Chopras were unsuccessful in that application. An order for costs in regard to it has not been made. [4] Costs are sought by the Chief Executive under r 14.2. Costs are sought on a 2B basis in accordance with the following table:Allocated DaysCommencement of defence 2.0 Filing memorandum of 20 March 2009 for case management conference 0.4 Preparation for case management conference 0.2 Appearance at case management conference no 23 March 2009 0.3 Filing memorandum of 8 April 2009 in response to plaintiffs' memorandum dated 3 April 2009 0.4 Preparing and filing opposition to interlocutory application 0.6 Preparation for hearing of defended interlocutory application 0.25 Appearance at hearing of defended interlocutory application 0.25 Filing memorandum of 5 May 2009 0.4 Preparation for hearing on 25 June 2009 1 Attendance at hearing on 25 June 2009 0.5Total 6.3 days at $1,600 per day = $10,000[5] Disbursements of $1,675.67 are also sought. These comprise filing fees of $90, travel costs for the two hearings of $1,395.89, and $189.78 by way of photocopying. [6] Mr and Mrs Chopra oppose the application for costs. Through their counsel, Mr Deliu, they submit first that this is not an appropriate case for an award of costs, and secondly, that in any event the Court should exercise its discretion against any costs order. [7] Mr Deliu submits that the Chopras were not seeking to better their financial position, but rather to ensure that "their due process rights [were] not violated". He submits that the Chopras acted as public watchdogs to ensure that the Chief Executive properly handled the Mr Chopra's application. He submits that penalising the Chopras' recourse to the Court would have the unwanted effect of deterring access to the judicial system. He referred me to the decision of Duffy J in Wong v Registrar of the Auckland High Court (2008) 19 PRNZ 32, and in particular to the discussion at [26] to [32] of that judgment. Mr Deliu also submits that a costs order would be unduly harsh against the plaintiffs because of their financial circumstances. He asserted that the Chopras' case had prima facie merit, and that there were repeated mistakes by the defendant that lead to the issue occurring in the first place. Finally, he submits that the matter was not of such complexity as to merit classification on a 2B basis. [8] The primary rule is of course that costs are in the discretion of the Court – r 14.1. Nevertheless, that discretion is qualified by the specific costs rules, and is exercisable only in situations not contemplated by those rules, or which are not fairly recognised by them – Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606. [9] One of the general principles applicable in any proceedings is that the party who fails with respect to the proceeding or interlocutory application should pay costs to the party who succeeds – r 14.2(a). [10] I accept Mr Deliu's argument that the Court can decline to award costs, or award reduced costs, against a party unsuccessful with a genuine and legitimatepublic law challenge. I also accept that the application for review here brought by the Chopras was not for their personal financial gain. It was however for their personal benefit. As I explained in my substantive decision, Mr Chopra failed to declare the existence of a deportation order made against him. This was in breach of the Act. Had he done so, he would not have received an indefinite returning resident's visa in April 2008. It was Mr Chopra's initial breach which indirectly lead to the subsequent application for review. [11] The matters in issue were raised in a public law context by way of an application for review, and they did concern the interpretation of a provision contained in the Immigration Act. It was not however a public law challenge raised in the public interest. As I have noted the application was advanced to secure for Mr Chopra the right to return to this country. [12] I accept that the argument advanced for the Chopras was not totally devoid of merit. However that does not mean that a costs award is inappropriate. Further, as I noted in the substantive decision, the papers filed on the Chopras' behalf were unsatisfactory, and the relief sought could never have been obtained. [13] In my view, it is appropriate to award costs to the Chief Executive. Otherwise the costs of these proceedings will fall on the Crown. [14] The Chopras commenced proceedings against the defendant. They were unsuccessful and in my view there is nothing out of the ordinary in these proceedings which justifies a departure from the general principle contained in r 14.2(a). It is appropriate to award costs on a 2B basis. The proceedings were of average complexity. They necessitated a careful analysis of the Immigration Act. They required counsel of average skill and experience in the High Court. [15] Insofar as I can ascertain from the Court file, all of the steps set out in the above table were taken, and the amounts claimed in respect of each step are appropriate. I note that no challenge to the mechanics of the cost calculation has been made on behalf of the Chopras.[16] Accordingly, I award costs of $10,000, together with disbursements of $1,675.67, against both Mr and Mrs Chopra on a joint and several basis and in favour of the Chief Executive of the Department of Labour. Wylie J