McKelvey v Minister of Immigration

[2017] NZHC 1341

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-510 [2017] NZHC 1341

BETWEEN

LEONORA ATETEO McKELVEY

Plaintiff

AND

MINISTER OF IMMIGRATION Defendant

Hearing:	19 June 2017 (On the papers)
Appearances:	A Toohey for Plaintiff M Conway for Defendant
Judgment:	19 June 2017

JUDGMENT OF DUNNINGHAM J RE:  COSTS DECISION

[1]      On 6 April 2016 I dismissed Ms McKelvey’s application for judicial review of the Minister of Immigration’s decision not to grant her a special direction under s 17, and a visa under s 61, of the Immigration Act 2009.1

[2]      At the conclusion of my decision I reserved the issue of costs.  I also noted that the parties had agreed prior to hearing that the appropriate costs categorisation for this proceeding was 2B and I expected costs would likely be agreed on that basis. However, I also allowed memoranda to be filed if costs could not be agreed.  An application for costs was subsequently filed by the defendant in early May.

[3]      Although Registry enquiries of the solicitor for the plaintiff indicated that a memorandum in response would be filed, more than a month later no such memorandum has been received.  In the circumstances, I consider it appropriate to

proceed to determine costs on the materials before me.

1      McKelvey v Minister of Immigration [2017] NZHC 659.

McKELVEY v MINISTER OF IMMIGRATION [2017] NZHC 1341 [19 June 2017]

[4]      As the successful party, the Minister of Immigration is prima facie entitled to costs.   The Minister submits that the proceeding is appropriately categorised as a category 2B  proceeding,  as  was  agreed  by the  parties  prior  to  the  hearing.   A calculation of 2B costs is attached to his memorandum on costs.  Those costs total

$26,537 plus disbursements of $1,027.03.

[5]      In absence of any factor being brought to my attention that would either: (a) displace the usual presumption that costs follow the event; and

(b)displace the parties’ agreement (and my indication) that 2B costs are appropriate.

I consider costs calculated on this basis should be ordered. [6]           Accordingly, I order:

(a)      the plaintiff is to pay the defendant’s costs and disbursements (as set out in the schedule annexed to the Minister of Immigration’s memorandum on costs dated 9 May 2017) in the sum of $27,564.03 for steps taken in these proceedings.

Dunningham J

Solicitors:

Anne Toohey, Barrister, Christchurch

Crown Law, Wellington