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M v Department of Labour
High Court Auckland
CIV-2010-404-004360
21 December 2010
Courtney J
Judicial review -
costs - whether plaintiff in person in modest circumstances justified
departure from principle that costs should follow the event - whether
reduction in costs appropriate - High Court Rules, Rule 14.7
The plaintiff was
citizen of Romania. His work permit was revoked after the Refugee
Status Appeals Authority dismissed his claim to be a refugee. He then
sought judicial review of the refugee decision and of the revocation of
the work permit. Both proceedings were heard together but the plaintiff
made no submissions in relation to the work permit issue and called no
evidence in those proceedings.
On 17 September 2010 the challenge to the refugee decision was
dismissed. See M v Refugee Status
Appeals Authority (High Court Auckland, CIV-2010-404-003298, 17
September 2010, Courtney J). In a judgment given on 21 December 2010 in
M v Department of Labour (High
Court Auckland, CIV-2010-404-004360) Courtney J dismissed the challenge
to the work permit revocation.
In relation to the work permit proceedings the Department of Labour
sought costs in the sum of $3,840 but Courtney J held that the
appropriate scale costs should be $1,970. This case is reported only in
relation to the ruling whether the plaintiff should pay costs to the
Department of Labour.
Held:
1 The
plaintiff requested that the Court not make any award of costs because
of his modest circumstances. However, although the costs award in the
refugee proceedings were reduced, they would not be reduced in relation
to the work permit proceedings. As a general rule costs should follow
the event. The costs to which the defendant was entitled to were not
substantial. Further, the plaintiff had caused the defendant additional
cost which was not included in the award through continuing to resist
judgment on the substantive issue without providing any basis for his
assertions (see para [12]).
M v Refugee Status Appeals Authority
(High Court Auckland, CIV-2010-404-003298, 17 September 2010, Courtney
J) referred to.
Application for review
declined and application by defendant for costs approved
Other cases
mentioned
in judgment
Refugee Appeal No. 76339 23 April
2010
Counsel
Plaintiff in person
P
McCarthy for
defendant
COURTNEY J
Introduction
[1] In this proceeding
the plaintiff, M, seeks judicial review of the defendant's decision to
revoke his temporary work permit. In separate proceedings under
CIV-2010-404-003298 the plaintiff sought judicial review of the Refugee
Status Appeals Authority's decision that he did not satisfy the
requirements of Article 1A(2) of the 1951 Convention on the Status of
Refugees.1 The proceedings were directed to be heard
together and came
before me on 9 August 2010. I refused the application for judicial
review of the RSAA's decision.2 I omitted, however, to
deliver a
separate decision in this proceeding, which I now do.
[2] I note that this judgment
replaces an earlier judgment that I recalled because I had made a costs
award without referring to the memorandum filed by M, being unaware of
it at the time. Since then, the plaintiff has also filed a memorandum
in relation to the substantive application. I have considered this, as
well as the defendant's memorandum in reply.
Application for judicial review
[3] The plaintiff was granted several temporary work permits
after arriving in New Zealand. However, following the RSAA's decision
in April 2009 declining refugee status, his temporary work permit was
revoked. The notice issued pursuant to s 33 Immigration Act 1987 gave
as the reason for revocation that the permit had been granted solely to
allow M to remain in New Zealand pending a decision by the Refugee
Status branch and then the appeal to the RSAA. With the declinature of
his appeal by the RSAA the basis on which the permit had been granted
no longer existed. The notice, however, advised that the revocation
would be effective:
Unless you can,
before 14 June 2010, show good cause why your permit should not be
revoked ...
[4] The plaintiff made
representations as to why his permit should not be revoked, including
the fact that he had commenced judicial review proceedings in respect
of the RSAA's decision. However, the reasons he advanced were rejected
by the respondent.
[5] The plaintiff commenced the
present proceeding seeking judicial review of the decision to revoke
his work permit and sought interim relief pending determination of the
RSAA proceeding. Subsequently, the respondent undertook not to remove M
from New Zealand until that judicial review application had been
determined. On 19 July 2010, in light of the undertaking and the very
limited relief sought by the applicant, Brewer J made an interim order
that M's work permit would continue until the determination of the
proceeding under CIV-2010-404-003298 (if it was adverse to him) or
until the expiry of the permit (24 October 2010) whichever was earlier
which the Judge described as amounting:
... to a permission to work for a period which will end
either with an adverse decision of the Court in the substantive
proceeding or the date that the temporary work permit was due to expire
(24 October 2010).
[6] In the hearing before me
counsel for the defendant submitted that the challenge to the decision
to revoke the work permit must stand or fall on the outcome of the
judicial review of the RSAA's decision; if that challenge was
unsuccessful there was no proper basis for M to remain in New Zealand.
Technically that is not necessarily so, though in practical terms there
has been no suggestion of any other basis for the substantive relief
sought.
[7] In the statement of claim
the relief sought was a declaration that the decision revoking the
permit was invalid. This, of course, is considerably wider than the
interim relief sought which was solely that his work permit "continue
until the final determination of the application for judicial review".
However, the way in which the application for interim relief was
advanced was clearly on the basis that the judicial review proceeding
in respect of the RSAA decision was the only real basis on which
revocation of the work permit could be challenged. This is plainly the
basis on which Brewer J gave the interim relief and the plaintiff has
not signalled that he had any ground on which to resist revocation of
the work permit if his challenge to the RSAA decision failed.
[8] Brewer J's direction that
both matters be heard together made it clear that if M had arguments to
advance in relation to the judicial review of revocation of the work
permit he had to do so at the hearing before me. The plaintiff did not,
however, address this issue at all at the hearing. He did not make
submissions and did not call evidence on the point. When the plaintiff
sought to have my earlier judgment recalled he filed a memorandum in
which he submitted that, even if he had not addressed these issues at
the hearing, the claim as pleaded in his statement of claim still had
to be considered. When I recalled my earlier judgement I expressly
invited the plaintiff to make any submissions that he wished on this
issue. Notwithstanding this invitation, the plaintiff has still not
advanced any other basis on which judicial review of the decision to
revoke could be granted.
[9] In his memorandum 15
December 2010 the plaintiff simply refers to paragraph 14 of the
statement of claim as setting out the specific grounds for the
assertion that the defendant's decision was invalid. These were that
the decision was illegal, procedurally unfair and inconsistent with the
New Zealand Bill of Rights Act 1990/ New Zealand's international
obligations/ international laws. There is nothing to support these
general assertions. There are no particulars of the alleged illegality
and procedural unfairness. The plaintiff seeks to have his application
"judged according to the merits of the case". However, the plaintiff
has now had two opportunities to
identify the basis for his claim that the decision to revoke the work
permit was invalid and has not done so.
[10] I find that my decision to
refuse M's judicial review application in respect of the RSAA decision
means that there is no longer any basis on which a challenge to the
decision revoking the work permit. The application for judicial review
under CIV-2010-404-004360 is therefore dismissed.
Costs
[11] The defendant seeks costs in respect of this matter.
Counsel's memorandum 23 September 2010 sought costs in this proceeding
of $3,840, being costs on a 2A basis. However, the appropriate scale
costs should be $1,970, being costs excluding the interim relief, which
was successful.
[12] The plaintiff has asked
that I not make any award of costs because of his modest circumstances.
However, although I did reduce the costs award in the RSAA proceeding
on this basis I do not intend to do so in relation to this matter. As a
general rule costs should follow the event. The costs to which the
defendant is entitled to are not substantial. Further, the plaintiff
has caused the defendant additional cost which is not included in the
award through continuing to resist judgement on the substantive issue
without providing any basis for his assertions.
Solicitor for the
defendant: Crown Law Office (Wellington)
1 Refugee Appeal No. 76339 23 April
2010
2 CIV-2010-404-003298,
17 September 2010, Courtney J