Privileges Standing Committee v Robati [1994] CKCA 8; CA 156.1993 (7 July 1994)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
(REMOVED FROM THE HIGH COURT OF THE COOK ISLANDS)
CA 156/93

BETWEEN

PRIVILEGES STANDING COMMITTEE
First Appellants
(First Defendants in the High Court)

AND

THE SPEAKER OF THE PARLIAMENT
OF THE COOK ISLANDS
Second Appellant
(Second Defendant in the High Court)

AND

PUPUKE ROBATI
Respondent
(Plaintiff in the High Court)

Coram: Sir Ian Barker (Presiding)
Hillyer J.A.
Henry J.A.

Counsel: Solicitor-General, J. McFadzien for Appellants in support
M.C. Mitchell for Respondent to oppose

Hearing: 7 July 1994
Date of Judgment: 7 July 1994

(ORAL) JUDGMENT OF THE COURT DELIVERED BY SIR IAN BARKER

The judgment that I now give is a judgment of the Court.

On 7 February 1994, a judgment of this Court was delivered refusing to strike out the Respondent’s statement of claim. The members of the Court were Justices Dillon, Quilliam and myself. The case had been removed into the Court of Appeal because of its constitutional importance. It required a determination of the jurisdiction of the Courts to review the proceedings of Parliament. It is not necessary to go into the details of the reasons for judgment to which all members of the Court agreed. Suffice to say that the Court was satisfied that it has both jurisdiction to allow the respondent’s action to proceed. Costs were awarded to the Plaintiff (now the Respondent) but there has been no determination as to quantum.

The Solicitor - General, on behalf of the Privileges Standing Committee, the Speaker of the Parliament of the Cook Islands and the Attorney - General seeks leave to appeal to the Privy Council against that decision of this Court. The application made under the Privy Council (Judicial Committee) Act 1984 and the New Zealand (Appeals to the Privy Council) Order 1910 (as modified by the said Act). The grounds of the appeal are that although the decision was interlocutory that the question involved in the appeal is one which by reason of its great general or public importance or otherwise ought to be submitted to Her Majesty in Council for decision.

The Parliament of which the Respondent was a member, has now been dissolved: any ruling as to how the respondent should be treated by that Parliament is now spent. Accordingly, the respondent as plaintiff now wishes to discontinue his action. If he does so, there is nothing on which to base an appeal to the Privy Council because any appeal to the Privy Council has to relate to a subsisting action. Once a discontinuance is filed, the case is completely at an end subject only to questions of costs.

Mr Mitchell has undertaken to file a discontinuance: he asks us to fix the one outstanding matter namely the amount of costs that should be awarded to his client for his success in the appeal and also for today’s appearance.

Speaking as a member of the Court which heard the appeal, I can say that the appeal did involve difficult constitutional matters. It was heard at short notice in Auckland, but that short notice did not diminish in any way the quality of both the submissions from both sides and the necessary preparation of those submissions. It was quite reasonable in our view for the Plaintiff (now the respondent) to have been represented by Senior Counsel in Auckland and by Senior Counsel from Rarotonga. The presence of Rarotonga counsel was important in a case concerned with Cook Islands constitutional matters as this appeal was.

The Solicitor - General have no instructions as to costs but acknowledges the desirability of senior and Rarotonga counsel being involved, the urgency of the hearing and the complexity of the case.

Accordingly, we consider that the appropriate amount to award for costs is $15,000 together with reasonable disbursements which includes filing fees, travelling and accommodation expenses for Rarotonga counsel, photocopying, telephone and fax: these disbursements are to be fixed by the Registrar, if agreement cannot be reached.

The application for leave to appeal to the Privy Council is therefore dismissed for the reason that there will be no case to which it can relate. This order is to lie in Court until the Plaintiff has filed notice of discontinuance which Mr Mitchell undertakes to file without delay.

IAN BARKER