High Court Cases 

High Court Auckland CIV 2007-404-4841
9 April 2008; 9 April 2008
Randerson J

Judicial review - costs - whether costs should be awarded against legally aided plaintiffs who discontinued judicial review proceedings day before substantive hearing - Legal Services Act 2000, s 40(5)
 

Following a five day hearing the Refugee Status Appeals Authority concluded that the account given by the plaintiffs, citizens of Ethiopia, was to be rejected in its entirety. The plaintiffs commenced judicial review proceedings challenging the decision of the Authority. The Crown was put to a good deal of trouble and in particular, prepared a significant bundle of documents covering two volumes and made available to the Court an extensive transcript of the evidence before the Authority. The day before the substantive hearing in the High Court counsel for the plaintiffs advised counsel for the Attorney-General that the application for judicial review would be withdrawn. The plaintiffs being legally aided the Attorney-General sought an order in terms of s 40(5) of the Legal Services Act 2000 specifying the order for costs which would have been made but for the provisions of s 40(2) of that Act.

Held:

1    Given the circumstances of the particular case and the last minute advice that the proceedings would be withdrawn, it was inevitable that an award of costs against the plaintiffs on a 2B basis would have been made covering all attendances up to the date of the substantive hearing (see para [6]).

2   An order would be made in terms of s 40(5) of the Legal Services Act 2000 that the costs which would otherwise be payable to the defendants by the plaintiffs but for s 40(2) of that Act were $8,670.80 (inclusive of disbursements of $545.49). The scale costs would have been $11,360 plus disbursements but the award was limited to the actual legal costs incurred by the defendants: Rule 47(f) (see para [8]).

Observation:

The order indicating an award of costs which would otherwise have been made is not to be taken as a precedent necessarily applicable to all judicial review proceedings of this nature. In each case the Court will be required to exercise its discretion. It is recognised that in cases of this kind the plaintiffs in judicial review proceedings, whether for immigration status or refugee status, will themselves be impecunious or in difficult circumstances and legal aid may not be available to them.

Order specifying what order for costs would have been made against the plaintiffs.  Proceedings struck out.

Counsel
C Curtis for the plaintiff
MA Woolford for the first and second defendants

[1] This is an application for judicial review of a decision by the Refugee Status Appeals Authority refusing refugee status to the plaintiffs, who arrived in New Zealand from Ethiopia in 2005.

[2] The essential issue before the Appeals Authority related to the credibility of the plaintiffs. The Appeals Authority found, after an extensive review of evidence and hearings which occupied some 5 days, that the plaintiffs’ account of their circumstances prior to leaving Ethiopia and on their journey to New Zealand was not credible. Their account was rejected in its entirety. The Appeals Authority referred to a significant number of discrepancies in the evidence as between the plaintiffs and to a lack of plausibility in relation to much of the evidence.

[3] In the circumstances, a challenge on judicial review was always going to be difficult. The Crown has gone to a good deal of trouble. In particular, it has prepared a significant bundle of documents covering two volumes and has also made available to the Court an extensive transcript of evidence before the Appeals Authority.

[4] Yesterday, the plaintiffs’ counsel advised the defendants’ counsel that the application would be withdrawn. It seems the Court was also notified late yesterday although I did not become aware of this until this morning.

[5] Plaintiffs’ counsel advises that the proceeding is to be discontinued but the defendants seek costs. Ms Curtis advises that the plaintiffs are legally aided so that no order for costs may be made against them unless the Court is satisfied that there are exceptional circumstances: s 40(2) Legal Services Act 2001. However, an order is sought in terms of s 40(5) Legal Services Act specifying the order for costs which would have been made but for the provisions of s 40(2).

[6] Given the circumstances of this particular case and the last minute advice that the proceedings would be withdrawn, it seems to me inevitable that an award of costs against the plaintiffs on a 2B basis would have been made covering all attendances up until today. At this stage, Mr Woolford for the defendant does not have the actual figures but has agreed to provide the Court with a memorandum later today which stipulates the amount which would have been payable under the Rules along with any relevant disbursements. This amount will be included in the record of this decision.

[7] I make it clear that the order indicating an award of costs which would otherwise have been made is not to be taken as a precedent necessarily applicable to all judicial review proceedings of this nature. In each case the Court will be required to exercise its discretion. It is recognised that in cases of this kind the plaintiffs in judicial review proceedings, whether for immigration status or refugee status, will themselves be impecunious or in difficult circumstances and legal aid may not be available to them.

[8] In the circumstances, I make an order in terms of s 40(5) that the costs which would otherwise be payable to the defendants by the plaintiffs but for s 40(2) are $8,670.80 (inclusive of disbursements of $545.49). The scale costs would have been $11,360 plus disbursements but the award is limited to the actual legal costs incurred by the defendants: Rule 47(f).

[9] To save the additional cost to the plaintiffs of filing a discontinuance, the proceeding is struck out.

Solicitors for the plaintiff: Marshall Bird & Curtis (Auckland)
Solicitors for the defendants/respondent: Meredith Connell (Auckland)