Morris v Tapaitau [1994] CKHC 7; Misc 186.1994 (10 October 1994)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT PENRHYN
(CIVIL DIVISION)
MISC NO. 186/94

IN THE MATTER
of Section 81 of the Electoral Act 1966

AND

IN THE MATTER
of a Petition by ALFRED KAUA TANUPO MORRIS
a Candidate for the Penrhyn Constituency
and 5 electors of that Constituency
Petitioners

AND

TEPURE TAPAITAU
of Rarotonga, Commissioner of Police
First Respondent

Counsel: Mr George for the Petitioner
Mr Giles and Mr Nicholas for the Respondent
The Solicitor-General for the Chief Electoral Officer

Date of Judgment: 10 October 1994

DECISION OF DILLON J

Alfred Kaua Tanupo Morris and five other electors of the Penrhyn Constituency lodged in this Court an Electoral Petition challenging the results of the election held on Thursday the 24th day of March 1994. Mr Morris was the unsuccessful candidate. The Respondent was the successful candidate.

The Court part heard this Petition at Penrhyn on 5 and 6 May 1994 at which stage the Petition was then abandoned only part heard. The Petitioner was represented by Mr George while the Respondent was represented by Mr Giles and Mr Nicholas. The Solicitor - General did not appear.

Security had originally been fixed by the Court at $5,000. Mr Giles made application in Penrhyn that this amount be paid to the Respondent as a contribution towards the legal costs and substantial travelling expenses that the Respondent had incurred, Mr. George claimed that recognition should be accorded to the responsible attitude adopted by the Petitioners in saving the Court both time and expense in abandoning the Petition at the earliest possible opportunity. He suggested that $2,500 be paid towards the Respondent's costs and the remaining $2,500 of the deposit be refunded to the Petitioners who had paid it into Court.

The parties were asked to make formal submissions. The Solicitor General was also asked to make submissions if he felt such were justified. All submissions have now been filed. I have deferred making a decision until now for three reasons - firstly a similar decision is required on the Electoral Petition that was heard in New Zealand dealing with the overseas constituency; secondly a similar decision is required on the Electoral Petition that was heard in Rakahanga dealing with that Island's constituency; and thirdly the Rakahanga Petition has only now been determined by the Court of Appeal, a by - election held, and no Petitions objecting to that result filed in Court. I therefore propose to proceed to consider the question of costs in respect of the three Petitions.

The requirement for security in such cases is provided for by Section 74A of the Electoral Act 1966 as follows:

"74A - Security for costs (1) Notwithstanding anything contained in any other Act , in any proceedings where an election petition is filed and at any stage after filing thereof, the Court shall order security to be given by the petitioner personally for the costs of the hearing of the petition and shall order the hearing of the petition to be stayed until such security has been given.

(2) Every order made pursuant to this section shall fix a day not later than the last day for the commencement of the hearing of the petition by which security shall be given and may fix such other terms and conditions as the Court thinks just.

(3) In fixing the amount of security for costs the Court shall have regard to the costs which the respondent or any other party to the petition will probably incur, provided that any amount so fixed shall not be less than $5,000.

(4) If any petitioner fails to comply with any order for security for costs the Court shall dismiss the petition for want of prosecution.

(5) The provisions of this section shall apply notwithstanding that any respondent may have previously taken any step in the action."

I shall first consider the submissions of the Solicitor-General. He claimed that Section 74A(3) provided that any security fixed by the Court was "... to take into account the costs that a respondent or any other party will probably incur. This is a clear indication that actual costs are to be taken into consideration when awarding costs." He emphasised that "any other party" included the Chief Electoral Officer.

However the Solicitor-General conceded that the Chief Electoral Officer was not named in the Petition. Is that officer therefore then "a party". The Petition alleged against the Respondent, bribery; treating; undue influence; and improperly nominated. The Chief Electoral Officer, on the other hand, was not ".. any other party to the Petition ... "; was not included in the allegations; and was not required to give evidence at the trial. He was not therefore a party to the Petition.

The total expenses incurred by the Chief Electoral Officer for the hearings of both the Penrhyn and Rakahanga Petitions is stated to be $9,690.00. If an apportionment was required between the two hearing i.e. in Penrhyn and Rakahanga, I would allocate $2,896 and $5,794 respectively.

However, Section 74A (3) does not provide security for costs incurred by the Chief Electoral Officer when he is not a party to the pleadings and has not been required to contribute to the determination of the Petition. His claim is therefore disallowed.

The Chief Electoral Officer should, however, consider whether in future similar circumstances a Petitioner should be put on notice when, security is being fixed by the Court to ensure adequate protection at that stage is secured to him, and that the Court records his entitlement, if any, to part of the security when being fixed.

I turn now to Mr George's claim for a refund of half of the security. This claim is based on the following:

1. The Government has a constitutional responsibility for elections and this includes electoral petitions as part of that process. Therefore all costs incurred are the responsibility of the State.

2. Section 74A(3) was not intended to cover Electoral Office costs, Rather it was to provide security in defending vexatious Petitions by aggrieved defeated candidates.

3. An award of costs against a Petitioner would create injustice and unfairness and inhibit people from their day in Court.

4. The petition was not frivolous or vexatious; and was filed in good faith.

5. Costs should be based on local rates and any offshore Counsel engaged should be at the Respondent's cost.

6. The Petition was withdrawn in good faith and to save the Court and the Respondent time and expense.

I have already dealt with the application by the Solicitor-General, referred to by Mr George. He is quite correct when he refers to security as a provision against vexatious or unfounded petitions which are, not substantiated, The reasons given at Penrhyn by Mr George for withdrawing the Petition, referred to the very real difficulties he had in briefing witnesses and obtaining evidence to support the allegations contained in the Petition. He described chasing one unwilling witness he wanted to interview through the bush. I accept these difficulties; that the distance to Penrhyn alone is a logistical disadvantage; and that the problems of briefing evidence are almost insurmountable, But those problems should not be imposed on the Respondent who had to overcome the same logistical difficulties in preparing his defence.

Having conceded those problems and difficulties which Mr George had to overcome, the facts are however that most serious allegations were made against the Respondent, the previous Commissioner of Police for the Cook Islands. It was alleged the Respondent was guilty of bribery, treating and undue influence - most serious allegations against one of the most senior administrators in the Government service. Those serious allegations were not sustained by the evidence produced or the witnesses examined. There was in effect no other alternative left to the Petitioners than the responsible decision taken by Mr George to withdraw the Petition.

Because there was no evidence to support the serious allegations levelled against the Respondent there can be no justification for a refund to the Petitioners of any part of the security.

I turn now to the application by Mr Giles for the Respondent. His original application in Penrhyn was for $5,000. He now says that his application was unduly modest and suggests that I make a higher award in his favour without quantifying what he considers as a higher award.

I deal firstly with the submission made by Mr George that legal costs on proceedings in the Cook islands should be based on local rates, whatever they happen to be. He put his argument this way:

"10. The petitioners repeat the argument that the legal costs of each party should be based on local rates, no Respondent is more important than others, all Cook Islanders who stood for the elections should be treated the same and it would be wrong for the Court to treat TAPAITAU as former Police Commissioner to require additional protection by seeking offshore Counsel.

11. If the parties should seek offshore Counsels, and Queens Counsels for that matter, then they should meet the additional costs."

I cannot accept those submissions. The Respondent as the former Commissioner of Police was accused of most serious offences under the Electoral Act. There is no question that he was entitled to protect his honour and reputation as well as his position as the successful candidate with the Counsel of his choice, be that person an offshore Counsel or a Queens Counsel. This right has been recognised on many occasions by this Court and by the Court of Appeal.

For reasons I have stated, but especially because of the serious allegations made by the Petitioners which could not be substantiated at the hearing. I have seriously considered the submissions for an award of costs in excess of the security lodged. In at the circumstances I order that costs of $5,000 as originally applied for be awarded to the Respondent to be paid out forthwith by the Registrar.

DILLON J.