ALAM AND BEGUM V COMMISSIONER OF INLAND REVENUE HC TAU CIV 2007-470-267

ALAM AND BEGUM V COMMISSIONER OF INLAND REVENUE HC TAU CIV 2007-470-267 17 September 2008IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CIV 2007-470-267BETWEEN ZAHIRUL ALAM AND PARUL BEGUM Plaintiffs AND COMMISSIONER OF INLAND REVENUE Defendant Hearing: (on papers) Appearances: D Hayes for Plaintiffs C Curran-Tietjens for Defendant Judgment: 17 September 2008 at 10:00 a.m.JUDGMENT OF WOODHOUSE J (costs)This judgment was delivered by me on 17 September 2008 at 10:00 a.m. pursuant to r540(4) of the High Court Rules 1985. Registrar/Deputy Registrar Solicitors / Counsel: Mr D Hayes, Barrister, Hamilton Ms C Curran-Tietjens, Crown Law Office, Wellington Copy to: Mr M Hunwick, Brook Law, Solicitors, Hamilton[1] The plaintiffs succeeded in their application for judicial review. In my judgment dated 17 June 2008 I recorded that I would award costs to the plaintiffs on a 2B basis, subject to any submissions. [2] The plaintiffs seek costs on a 2B basis for all steps in the proceedings. The defendant agrees that costs should be paid on a 2B basis except in relation to discovery, production of documents and inspection. There are two points made for the defendant in that regard, as follows:• A comparatively small amount of time for discovery was reasonably required in this judicial review proceeding.• The plaintiff is not entitled to costs in respect of the 'further discovery notice' served on 27 July 2007.[3] The plaintiffs claim the band B allowances of 1.5 days for discovery, 1 day for production and 1.5 days for inspection. For the Commissioner the following points are made:• Discovery in judicial review cases is limited in scope as compared with ordinary civil proceedings (on which the time allocations in schedule 3 of the High Court Rules are based).• In judicial review the onus of discovery is largely on the Commissioner.• In order to minimise costs the parties agreed to supply copies of relevant documents rather than to formally inspect them.• The number of discoverable documents in this case was relatively small. All documents for this proceeding (that is, the open and discovered documents provided on both sides) were able to fit into one Eastlight folder.• The number of documents relied on in the proceeding was relatively small, it largely being a legal argument as to whether s 89G had been complied with.[4] There was no submission for the plaintiffs in reply to these contentions. Mr Hayes, for the plaintiffs, anticipating the argument about costs on discovery, submitted that a "broad brush" was appropriate – "what is gained on one allowance may be lost on another". The "loss" Mr Hayes referred to was in respect of preparation for hearing where the band B allowance is only one day. The allowancefor preparation in this case under band B is one day, being double the hearing time of a half day. Mr Hayes submitted that if there was not what I would call a "swings and roundabouts" approach, then there should be an increase for preparation. Mr Hayes submitted that preparation "involved at least two and a half days". [5] I accept both submissions for two reasons. Neither party has challenged the propositions for the other party and what is submitted is consistent with the nature of these proceedings. [6] There is the separate point relating to costs claimed by the plaintiffs for "further discovery". On the plaintiffs' request for further discovery the Commissioner responded that the documents were not relevant. Following a r 315 notice the Commissioner then provided copies of the documents under protest and without prejudice as to costs. The documents were not relied on at the hearing. [7] I accept the plaintiffs are not entitled to costs for this "further discovery".Result[8] The time allowance for the plaintiffs' costs for discovery, production of documents and inspection of documents is 1.5 days. [9] The time allowance for plaintiffs' preparation is 2.5 days. [10] The plaintiffs are not entitled to costs for "further discovery notice 27 July 2007". [11] The time allowance for other items is to be as recorded in the plaintiffs' memorandum of 11 August 2008 on a category 2 daily rate. [12] There is no order for costs in respect of the costs application. ______________________________________ Peter Woodhouse J