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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 His work permit was revoked after the Refugee Status Appeals Authority dismissed his claim to be a refugee.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