High Court Cases
High Court Auckland CIV-2011-404-001540
20 June 2011
Whata J (on the papers)
Judicial review - costs - application for leave to bring judicial review proceedings out of time - application declined - whether Minister to be awarded costs - High Court Rules, Rule 14.1
In Ly v Minister of Immigration (High Court Auckland, CIV2011-404-1540, 5 May 2011) Whata J declined an application under s 247(1) of the Immigration Act 2009 for further time in which the intending plaintiff could commence review proceedings challenging the decision of the Minister of Immigration. The Minister sought costs on a 2B basis in the sum of $4,324. The intending plaintiff opposed costs on the basis that she faced the prospect of being removed from New Zealand and an award costs would add to her stress and suffering in an already difficult situation.
Held:
1
Ordinarily costs follow the event.
2 The
applicant had been unlawfully resident in New Zealand for some time.
The Court could not be seen to condoning such unlawful activity in any
way. The Crown had been put to the expense of exercising its statutory
function for the purposes of maintenance of immigration law. While
there were public interest considerations and unusual facts, they were
not such as to override the concern that the Court should not be seen
to condone obvious illegality. Nor was there any evidence of undue
hardship that might arise out of a costs order that might militate
against costs being granted (see paras [5] and [6]).
Counsel
T Shah for the
applicant
A Longdill for the
respondent
WHATA J [1] In accordance with my directions, counsel have filed
memoranda in relation to costs.
[2] The respondent, having succeeded in defending the application to file out of time, has sought costs on a 2B basis and in the ordinary way. Those costs total $4,324.
[3] The applicant opposes costs on the basis that she faces the prospect of being removed from the country as she is in New Zealand unlawfully and if costs are awarded against her, they will add to her stress and suffering in an already difficult situation. Her counsel also says that the issues raised in this case concern fundamental human rights and the rights of the child.
Discussion
[4] The Crown is correct
that ordinarily costs follow the event. I have
considered whether the public interest considerations in this case
place it in a different category. Certainly this case was the first, or
one of the first cases dealing with the new Immigration Act and an
application for leave out of time. To that extent it raised public
interest considerations that take it out of the ordinary. I would add
further that, while the applicant was not successful, the facts were
somewhat unusual with notice of the decision falling over the holiday
period and the late notice being given directly to the applicant. The
case did also call for consideration of the relevance of the rights of
the child in this context.
[5] Balanced against this, the applicant was unlawfully resident in New Zealand for some time. This Court cannot be seen to be condoning such unlawful activity in any way. The Crown has been put to the expense of exercising its statutory function for the purposes of maintenance of immigration law.
[6] In these circumstances, while there are public interest considerations and unusual facts, they are not such as to overide the concern that I should not be seen to condone obvious illegality, I propose to grant costs in favour of the Crown. Nor is there any evidence before me of undue hardship that might arise out of a costs order that might militate against costs being granted.
[7] Orders as sought by the Crown
accordingly.
Solicitors for the
applicant: Alastair McLymont (Auckland)
Solicitors for the
respondent:
Meredith Connell, Crown Solicitors (Auckland)