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

[2013] NZHC 3401

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3528 [2013] NZHC 3401

BETWEEN  IOANE TEITIOTA Applicant

ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

Hearing:                   On the papers

Counsel:                  M J Kidd for the Applicant

R E Savage for the Respondent

Judgment:                16 December 2013

COSTS JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Monday 16 December 2013 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

M J Kidd, Barrister and Solicitor, Henderson

R E Savage, Crown Solicitors, Auckland

TEITIOTA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 3401 [16 December 2013]

Introduction

[1]      The  appellant  challenged,  pursuant  to  the  provisions  of  s 245(1)  of  the Immigration Act 2009, a decision of the Immigration and Protection Tribunal.  In my judgment of 29 November 2013 I dismissed the appeal.  The appellant’s claim to be a “climate change refugee” entitled to refugee status under the 1951 Convention relating to the Status of Refugees (incorporated into New Zealand law by s 129(1) of the Act) was novel but hopeless.

[2]      On the issue of costs I stated:

[65]     Since the respondent has been successful it is entitled to costs on the

2B scale.  I did not understand Mr Kidd to argue to the contrary.

[3]      The  respondent,  as  the  successful  party  seeks  costs.    These  have  been calculated in accordance with the 2B basis at $5,970.  The appellant does not dispute the quantum of the calculations.

[4]      In a very short memorandum counsel for the appellant suggests costs should be reserved.  Counsel submitted the case had been funded on a pro bono basis and was “expected to proceed up the appeal process as the question is of world-wide interest”.

[5]      Because  there  were  aspects  of  the  costs  issue  I  wanted  to  explore  with counsel a telephone conference was convened on 10 December 2013.   Ms Savage confirmed that the Ministry for whom she acts sought costs.  Mr Kidd for his part advised he had been instructed to seek leave from the Court of Appeal to appeal my judgment.  He also submitted that, because of the appellant’s financial situation, the High Court Registrar had waived the filing fee.   It was not clear from the Court records  whether  an  application  to  waive  the  hearing  fee  had  also  been  filed. However, Mr Kidd informed me such an application had been lodged.

[6]      The impecuniosity of a party to an appeal (particularly an appellant) is not a shield against a costs award. A party’s financial situation may be relevant to whether or not a costs order is enforced.  In the administration of this Court’s costs regime it is  important  to ensure impecunious  parties, particularly self-represented  litigants

(which the appellant was not in this case), are not exempt from costs awards when filing appeals which are bound to fail.  Otherwise the door would be open to parties filing appeals with impunity without having to take stock of the merits and consider the financial implications of an appeal being dismissed.

[7]      Thus, the appellant’s eligibility to have Court fees waived is not a ground for refusing costs.   Nor, with respect, is the fact that my judgment for some reason received world-wide coverage in the news media.   The appeal, despite its news interest, was a heroic attempt which was bound to fail.

[8]      Accordingly I order that the appellant is to pay costs to the respondent of

$5,970.

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Priestley J