Fazly v Minister of Immigration

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001631 [2017] NZHC 1146

BETWEEN
MOHAMMED TASLIM FAZLY

Plaintiff

AND

MINISTER OF IMMIGRATION Defendant

Hearing: On the papers

Counsel:

M S S Khan for Applicant
M J R Conway for Respondent

Judgment:

30 May 2017

JUDGMENT No 2 OF PALMER J (COSTS)

This judgment is delivered by me on 30 May 2017 at 12.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors/Counsel:
Singhs Solicitors, Auckland
Crown Law, Wellington

FAZLY v MINISTER OF IMMIGRATION [2017] NZHC 1146 [30 May 2017]

[1] On 7 February 2017 I issued judgment in Fazly v Minister of Immigration.1

I awarded costs to the Crown on a 1B basis.2

[2] Ms Conway, for the Crown, submits costs should be awarded on a 2B basis, which is what the parties had previously categorised it as, by joint memorandum. The Crown also seeks disbursements.

[3] Mr Singh, for Mr Fazly, submits the Crown should have appealed the judgment if it was not satisfied with the costs award. It did not. I note, though, that Mr Fazly effectively did, unsuccessfully.3 The Court of Appeal awarded costs on the
equivalent of a 2A basis with disbursements.4 The Court of Appeal has no

equivalent to category 1.

[4] For the purposes of costs in the High Court, category 1 proceedings are “of a straightforward nature able to be conducted by counsel considered junior in the High Court”. Category 2 proceedings are “of average complexity requiring counsel of skill and experience considered average in the High Court”.

[5] Even if I have jurisdiction to revisit the judgment I would not change my assessment of these proceedings as being of a straightforward nature. I confirm the award of costs on a 1B basis. But I do direct the payment of the usual disbursements sought by the Crown, amounting to $1,278.76.

..................................................................

Palmer J

1 Fazly v Minister of Immigration [2017] NZHC 89. I regret that Mr Fazly’s name was inaccurately spelt as “Fazley” in that judgment.
2 At [30].
3 Fazly v Minister of Immigration [2017] NZCA 218.
4 At [15].

CaseChat Overview and Summary

The case of Fazly v Minister of Immigration involves an appeal regarding the costs awarded in a prior decision. The plaintiff, Mohammed Taslim Fazly, sought judicial review of a decision by the Minister of Immigration to cancel his visa. The case was initially heard and decided by Palmer J on 7 February 2017, awarding costs to the Crown on a 1B basis. The defendant, the Minister of Immigration, now appeals the costs award, seeking a reclassification of the costs to a 2B basis, along with disbursements.

The primary legal issue before the court was whether the initial costs award should be upheld or if it should be reclassified to a more complex category. The Crown argued that the proceedings were more complex than initially assessed, warranting a 2B costs award. In contrast, the plaintiff contended that the Crown should have appealed the original judgment if dissatisfied with the costs award, which it did not. The Court of Appeal had previously awarded costs on what was described as the equivalent of a 2A basis with disbursements.

The court considered its jurisdiction to revisit the initial judgment and reaffirmed its assessment of the proceedings as being of a straightforward nature. Despite this, the court found that the usual disbursements sought by the Crown should be paid. Consequently, the court upheld the original award of costs on a 1B basis but directed the payment of the usual disbursements amounting to $1,278.76.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	On the papers
Counsel:	M S S Khan for Applicant M J R Conway for Respondent
Judgment:	30 May 2017