Singh v Chief Executive of the Ministry of Business, Innovation and Employment

[2014] NZHC 268

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2013-404-003105 [2014] NZHC 268

BETWEEN  MANJINDER SINGH Plaintiff

ANDCHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Defendant

Hearing:                   On the papers. Counsel:   F C Deliu for Plaintiff

R E Savage for Defendant

Judgment:                25 February 2014 at 12:00pm

COSTS JUDGMENT OF GILBERT J

SINGH v CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT [2014] NZHC 268 [25 February 2014]

[1]      Mr Singh applied in this proceeding for judicial review in respect of two letters written by the Ministry in the course of an investigation into whether he had obtained  a  residence  visa  by  concealing  relevant  information.    In  a  judgment delivered  on  29  November  20131   I  determined  the  preliminary  question  as  to whether these letters involved the exercise of a statutory power and were therefore amenable  to  review.    I found  that  they did  not  and  accordingly struck  out  the

proceeding. This judgment deals with the issue of costs.

[2]      There is no dispute that the defendant is entitled to costs calculated on a 2B basis.  The only issue is whether these costs should include the costs of filing the statement of defence and the filing fee payable for this.  Mr Deliu argues that the application for determination of the preliminary issue was analogous to a strike-out application which is traditionally decided before a statement of defence is filed.  He submits that no statement of defence was required and costs should not be allowed for this step because it was unnecessary.

[3]      The general principle set out in r 14.2 of the High Court Rules is that the successful party is entitled to costs for each step reasonably required in relation to a proceeding or interlocutory application.   Rule 14.7 provides that the Court may refuse to make an order for costs and may reduce the costs otherwise payable if a party has taken an unnecessary step in the proceeding.

[4]      I do not accept Mr Deliu’s submission that costs should not be allowed for filing and serving the statement of defence.   The defendant was obliged to file a defence if he wished to contest the proceeding.  The defence was filed on 15 July

2013.   That  step  was  reasonably required.    It  was  not  until  24  July  2013  that

Andrews J directed the determination of the preliminary issue as to whether the letters were amenable to review.

1      Singh v Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC

3181.

[5]      It  follows  that  the defendant  is  entitled  to  costs  assessed  on  a 2B basis

calculated in accordance with the memorandum filed on behalf of the defendant.

M A Gilbert  J