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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0520 OF 1993
Between:
TEVITA FA
Plaintiff
and
1. RABI ISLAND COUNCIL OF LEADERS
2. BANABAN TRUST FUND BOARD
Defendants
Mr. D. Sharma for Plaintiff
Mr. Q.B. Bale for Defendants
JUDGMENT
By Writ of Summons issued 24 September 1993 the plaintiff claims against the defendants the sum of $76,076.00 being fees for professional services rendered to the defendants during the period 6 September 1991 to March 1992 together with interest. The plaintiff is a barrister and solicitor who was in private practice in 1991 and ran his own firm under the business name of Tevita Fa & Associates.
The long history of the case is set out in considerable detail in Mr. Bale=s written submission. The plaintiff=s action was subjected to dismissal for want of prosecution several times over the years. It appears that the delay in the prosecution of the action with diligence was on the part of the plaintiff.
The defendants deny that they are indebted to the Plaintiff in the amount claimed or any other amount because the professional services rendered were for matters not authorized by the defendants and were matters personal to individual members of the defendants.
There are two defendants in this case. The First Defendant is the Rabi Island Council of Leaders (hereafter referred to as the >Council=). The Council is a statutory entity created under section 3 of the Banaban Settlement Act, Cap 123. Section 3(1) of the Act states that the Council is a body corporate, with permanent succession and a common seal. Section 3(6) of the Act states that subject to the provisions of the Act the Council could determine its own procedure. The Second Defendant is the Banaban Trust Fund Board (hereafter referred to as the >Board=). At the material time in 1991 the Board was a statutory entity created under section 6 of the Banaban Settlement Act, Cap 123.
In the Pre-trial Conference the facts agreed by the parties were:
(a) That the Plaintiff submitted his invoice to the Defendants which refused to pay.
(b) That the Plaintiff=s services were terminated by the Defendants through a duly appointed Interim Administrator.
The facts not agreed or admitted by the parties were:
(a) That the Plaintiff was ever appointed legal Counsel for the Defendants
(b) That the Defendants are indebted to the Plaintiff in the sum of $76,076.00 for professional services rendered.
(c) That the payment of the aforesaid sum is the responsibility of the Defendants.
(d) That the professional work carried out [by the Plaintiff] were personal to the members of the Defendants at that time.
The issues
The issues for determination by the Court as agreed in the pre-trial conference minutes are:
(a) whether the professional work carried out by the plaintiff were at the direction of the defendants.;
(b) If so, could the defendants be allowed to deny liability;
(c) If there were such reasons, what reasons were they.
I have before me useful written submissions from both counsel. The plaintiff gave evidence himself and called a witness Reverend Rogorogo Terubea (hereafter referred to as the >Reverend=). The defendants did not call any witnesses.
Plaintiff=s case
The plaintiff testified that the defendants engaged him to undertake legal work for them and undertook to pay his fees. When they refused to pay he prepared his Bill of Costs for all the work he had undertaken from 6 September 1991 to March 1992 (for 6 months) but this was rejected by Mr. Cruickshank on the basis of the objections raised in his letter of 20 September 1993. Thereafter the plaintiff filed this action in Court.
The plaintiff=s >charges= at the rate of $150.00 per hour was not challenged. In fact the Reverend confirmed that that was the prevalent rate. There never was a request to have the Bill of Costs (>BC=) taxed. The plaintiff says that the dispute does not lie with the quantum of the BC but the objections contained in Mr. Cruickshank=s said letter. The plaintiff=s appointment as Legal Adviser was terminated by the Interim Administration in March 1992 and this fact is not disputed in the Statement of Defence.
The work done by the Plaintiff included criminal defence and advice to Rabi Island Councillors with costs amounting to $34.000.00 and general legal advice and work in the sum of $42,000.00 making a total sum of $76,000.00.
The plaintiff says that at no time he was told or instructed by the Council or the Board that he collect his legal fees directly from the individual councillors. At all times the fee was going to be paid by the defendants and this fact is confirmed by the Reverend.
It is the plaintiff=s contention that the Resolution of 6 September 1991 was never raised before; it is not contained in the pleadings. It was not raised in Mr. Cruickshank=s letter of 20 September 1993. Even the Reverend said that he was not written to at any time stating that the said Resolution was invalid.
The plaintiff says that at the proper meeting of the Council it was unanimously passed to appoint him to act as solicitor on 6 September 1991.
Evidence of Rev. Rogorogo Terubea (PW2)
The Reverend was the Chairman of both the Council and the Board. The plaintiff called him to testify on his behalf.
The Reverend=s evidence, inter alia, in so far as it is relevant to the issue, is as set out in the plaintiff's written submission thus and this is in line with the evidence he (PW2) gave before me:
PW2 spent some length of time explaining the structures of the two bodies and how they operated in 1991/1992. PW2 said that the Council contained 8 members. Two members from four villages were nominated and they became the Council Members. The term of the members was for 3 years but this could be renewed. PW2 said that before 1997 the Council and the Board comprised of the same members. In 1991 the 8 Council members were also the Board Members. PW2 was appointed as Chairman of the Council and the Board in January 1991.
PW2 said that the Council and Board would hold meetings and pass resolutions, which were then implemented. The resolutions were firstly tabled as Motions and moved and seconded like one would do in any corporate Board meeting. The Resolution would then be put to the vote.
The Council and the Board were given powers to enter into contracts as they deemed necessary and incidental to the powers under the Act or any other Act, which they believed, was for the benefit of the Banaban community.
PW2 said that the Board members were protected from any personal liability if they acted in good faith in discharging their duties. He pointed to Section 6F of the Act which section protected the individual members of the Board from personal liability.
PW2 said that the Board could incur and pay legal fees. He said that under section 6H the Board was entitled to incur and pay from income derived from the Trust Fund, legal fees.
Section 7(4) of the Act states that the Council has control over the income from the Trust Fund. The Council was empowered under section 10 of the Act to incur such expenditure as it deemed necessary. PW2 confirmed that the Council was the sole beneficiary of the Trust Fund income.
The council had to make some tough policy decisions; they decided to use income monies to educate their young people in tertiary institutions like University of the South Pacific (USP) and Fiji Institute of Technology (FIT). PW2 had a vision of educating the young people of Rabi Island. These decisions did not go down well with certain Elders on the Island who were used to handouts. Attempts were made to overthrow the Council and allegations were being levelled against the Council and Board members. The allegations became of a political nature and even the Director of Public Prosecutions and the Fiji Government got involved.
The plaintiff=s appointment is evidenced in two documents (Exhibits P1 and P2) containing resolutions appointing him to act for the defendants. The plaintiff was informed of his appointment and he commenced his work from 6 September 1991 as confirmed by the Reverend.
The terms of appointment stated that the plaintiff was to act to protect the integrity of the Council of Leaders. It also allowed for the plaintiff to act to protect the Council of Leaders against the >overthrow= and to advise the Council on matters of benefit to the Banaban community.
In his evidence the Reverend confirmed that all the work the plaintiff undertook was authorised by the defendants and as far as the Bill of Costs is concerned he confirmed that the plaintiff had undertaken the work set out in the BC.
The Reverend said that on 20 September 1991 the Board met and passed a unanimous resolution whereby the plaintiff was given authority to act for the Board in consultation with him. The plaintiff was present at this meeting and the Minutes of this meeting were confirmed the same day in the afternoon.
Defendants= submission
At the close of the case for the plaintiff the defendants did not call any witnesses as according to learned counsel for the defendants, >since no non-member of the defendant bodies at the material times had sufficient personal knowledge of the transactions which the Plaintiff and the then members of the defendant bodies were engaged in to be able to help=. Mr. Bale says that they are therefore compelled to rely on the evidence of the plaintiff, his witness and the legislative provisions which govern the Banaban community at Rabi Island in order to show that the plaintiff failed to establish his claims which the defendants insist should be dismissed with costs.
The defendants= arguments are contained in Mr. Bale=s written submissions particularly on law in the absence of any oral evidence adduced by the defendants.
Mr. Bale summarises the defendants= case as follows:
(a) That the Defendants were appointed under the Banaban Settlement Act, Cap. 123, and the performance of their functions and powers has to be in accordance with relevant provisions of that Act and the Regulations made under it.
(b) That the then members of the Defendant bodies, RICOL and BTFB, had not exercised their functions and powers properly and/or validly under the Act and Regulations in purporting to appoint the Plaintiff to provide services to them.
(c) Alternatively, if the then members of the Defendant bodies had exercised their statutory powers and functions properly, the authorizations they purported to give in their meetings on 6.9.91 and 20.9.91 were invalid on the grounds that they were ambiguous and/or not perfected administratively or in law and/or impossible to perform.
(d) Alternatively, if the then members of the Defendant bodies had exercised their statutory powers and functions properly, and the authorizations they purported to give in their meetings on 6.9.91 and 20.9.91 were valid, then the Defendants assert that the genuineness of the Plaintiff=s Invoice has not been established and the amount claimed in it do not therefore create a legitimate debt against the Defendants.
Mr. Bale sets out in some detail in so far as it is relevant, the relevant provisions of the Banaban Settlement Act (the >Act=) and the Banaban Council Regulations (the ARegulations@) particularly referring to section 3 of the Act under which the Council is established and the establishment of the Board under section 6A and its powers under sections 6B(3), 6C, 6F, 6G and Regulations 9, 10, 19(c), 11(2) and 19(2).
In answer to the plaintiff=s appointment under clause 2 of exhibit P1 and the English translation (from Banaban language) of exhibit P2, Mr. Bale submits that it is for the plaintiff to establish that the decisions of the then members of the defendant bodies (which purported to approve not his engagement but also the incurring of expenditure from the accounts of the Council and the Board) were made in the proper exercise of their powers and functions under the Act and the Regulations made thereunder and referred to hereabove. He said that this the plaintiff failed to do so let alone prove that the decisions to award the contracts which the then members of the defendant bodies purported to award to the plaintiff were in the proper exercise of their powers and functions under the Act and the Regulations.
Counsel further submitted that there was no evidence whatsoever that the expenditure from the accounts of the defendants arising from the decision had been approved in the budget or especially approved by the Minister as required under Regulations 11(2) and 19(2). He said because of the activities of the then members of the defendant bodies that many of them including PW2 were charged with criminal offences involving dishonesty. The PW2 was discharged but not acquitted of these charges. He said that the activities of these members under the chairmanship of PW2 also resulted in the dissolution and replacement of the defendant bodies by the Interim Administration (IA) with effect from February 1992.
Mr. Bale further submits that the activities for which the then members of the defendant bodies had purported to recruit the services of the plaintiff were not for the benefit of the Banaban community as envisaged under section 4 of the Act, thereafter the purported exercise of this power by the then members of the defendant bodies was not in accordance with the Act.
Counsel finally submits that the plaintiff=s Bill of Costs needs careful perusal and taxing in order to save the Banaban community Fund under the statutory control provided under the Act and the Regulations and asks the Court to exercise its inherent discretion to Aother orders the Court may deem just@ as prayed by the plaintiff. Counsel further submits that if the plaintiff=s claim succeeds he is not entitled to interest for periods of delay caused by his own inaction.
Determination of the issues
The First issue is >whether the professional work carried out by the plaintiff was at the direction of the defendants=.
I have hereabove set out in considerable detail the case for both the plaintiff and the defendants. The plaintiff called the Reverend to testify on his behalf but no evidence was proffered for the defendants. The result was that the plaintiff=s evidence and that of the witness have to a large extent went unchallenged and not rebutted by other evidence apart from legal submissions by the learned counsel for the defendants.
In his submission in writing Mr. Bale relied heavily on the Act and the provisions relating to the setting up of the Council and the Board. He submits, inter alia, that whatever the Reverend did was not for the benefit of the Banabans as required under the Act and hence his actions were ultra vires. Therefore in allegedly appointing the plaintiff for professional work it was not for the benefit and in the interest of the Banaban Community.
On the evidence before me, I find as a fact that the Reverend was properly appointed under the Act and had the complete authority to engage counsel for professional work. Armed with authority under the Act and the Regulations he engaged the plaintiff who is a legal practitioner to render professional services of the nature outlined in the evidence and as set out in the Bill of Costs produced in this Court. There is no other evidence to dispute or contradict the Reverend=s evidence. There is no evidence of any kind or anything in writing to prove that the plaintiff was not at any time required to do the work which he said he did. No one had at any time disputed his Bill of Costs. They watched Mr. Fa do all the work and now when he makes a claim for professional services rendered by him they through their counsel completely deny being responsible for payment of costs to Mr. Fa.
I accept and find that it was after the plaintiff became aware that the defendants will not pay his Bill of Costs that he prepared a consolidated Bill of costs (ABC@) for all the work he had undertaken from 6 September 1991 to March 1992 when the plaintiff=s appointment as legal adviser was terminated by the Interim Administration. (Mr. Cruickshank), he rejected the BC on the basis of the objections in his letter of 20 September 1993. That led to this action.
It is important to note the part played by the Interim Administrator of the Rabi Council of Leaders. It was by Government of Fiji Decree No. 16 of 1992 which was passed on 26 February 1992 that the existing Council was dissolved and in its place an Interim Administration Council was appointed when Mr. Cruickshank became the Interim Administrator.
By his letter of 20 September 1993 Mr. Cruickshank rejected the plaintiff=s bill of costs which was forwarded to him on 12 August 1993. The grounds on which he rejected the BC were because there were no minutes confirming the >plaintiff=s appointment as power of attorney=; >there was doubt about the plaintiff=s power of attorney in that the Minutes written in the Gilbertese language had not been signed; the work undertaken was of a personal nature to the Council Members and the work related to unconfirmed minutes=.
On the evidence before me including the exhibits tendered to Court, Mr. Cruickshank=s grounds do not have merit. There is no evidence from the defendants to prove that whatever work Mr. Fa did was to be paid for by individual Councillors personally.
The Reverend agreed with the fees charged, namely, at the rate of $150 per hour at that time in 1991. This rate had not been challenged. No one had asked for the taxation of the BC. He also agreed that Mr. Fa was properly appointed and that he rendered professional services as set out in his Bill of Costs.
I find as a fact that at no time the plaintiff was told by the Council or the Board that he had to collect his legal fees directly from individual Councillors. In this regard I accept the Reverend=s evidence that there was no such arrangement at any time.
I find as a fact that it was the defendants who instructed the plaintiff to act for them.
In the outcome, therefore Mr. Fa is entitled to be paid his fees. In view of this finding the answer to the first issue is in the affirmative.
It therefore follows that the second issue >could the defendants be allowed to deny liability= should be answered by saying >No=.
Conclusion
Summing up
On the whole of the evidence before me, there being no evidence adduced by the defendants, and applying the standard of proof required in civil proceedings, namely, on a balance of probabilities, the answer to the main issue is in the affirmative.
The plaintiff I find as fact was properly engaged as the professional adviser to the defendants in accordance with the Act in question governing the interests of the Banaban community. The Reverend who was the duly appointed Chairman of both the Council and the Board testified in no uncertain terms that the plaintiff was validly appointed in accordance with the powers vested in him. He further confirmed in his evidence that the plaintiff rendered professional service in accordance with the instructions given him for which he rendered his said Bill of Costs with which he agrees.
The Reverend=s evidence has not been challenged by other evidence apart from certain matters put to him to the effect that if the Resolution of 6 September 1991 was invalid then he had no valid authority to appoint the plaintiff to act. This is not borne out by evidence before me. The Council and the Board were duly constituted bodies and they can sue and be sued. They had their own procedures and were required to make decisions. When threats and attempts were made to destabilize the Council it had to seek legal advice to ensure that the Council and Board performed their function properly. This advice the Reverend sought from the plaintiff and appointed him to act for them.
I accept the evidence of the Reverend in regard to the matters referred to hereabove and accept them as facts to prove what actually happened. However, if there are any deviation from any procedure by the Reverend then that is a matter between the Council and Board of which he was the Chairman. The plaintiff=s appointment should not be affected thereby. It is a matter of comment that it could only be because the plaintiff was appointed legal adviser that his appointment was terminated in March 1992 when Mr. Cruickshank, the newly appointed Administrator took over the reins.
I find as fact that both Council and Board as corporate bodies in exercise of the powers vested in them appointed the plaintiff to act for them as their legal adviser.
In the light of my findings of facts as outlined hereabove, the plaintiff is entitled to fee for work done by him on the defendants= instructions.
Mr. Sharma, the learned counsel for the plaintiff has argued that the defendant=s contention, which is refuted, that the Resolutions that appointed the plaintiff to act was not properly implemented, cannot be a defence and he referred the Court to the Australian case of David Sasson & Partners Pty. Limited v Fahervu Pty Limited & Anor (1999) NSW CA 400 where a similar argument was raised and rejected by the Court. The New South Wales Court of Appeal struck down that defence and said at page 10:
AThe law is clear that a party to a contract responsible for performance of a particular condition of a contract, cannot rely on its own non-performance to resist either rescission as the suit of the other party or a claim in damages for breach of a condition to which the non-fulfilled condition was subject.@
In this case I find as a fact that there was no non-compliance with the provisions of the Act and the procedure of the Council and the Board. The Resolutions were passed at duly constituted Board meetings and the Councillors were fully aware that the plaintiff was being appointed to provide legal services.
Taxation of Bill of Costs
For these reasons the plaintiff succeeds in establishing that he has a claim against the defendants for professional services rendered by him.
The amount claimed as per his Bill of Costs (exhibit P4) is $76,076.00. On this aspect in his submission Mr. Bale urges the court to exercise its discretion in considering the plaintiffs prayer in his Statement of Claim seeking Aany other relief this Honourable Court may deem just@ by Ordering taxation of the Bill of Costs.
Bearing in mind all the facts and circumstances of this case and carefully considering the useful and helpful submissions made by both counsel, I consider that the only proper way of arriving at the final figure for costs to be paid to Mr. Fa, is to order that costs be taxed by the Taxing Officer (the Acting Deputy Registrar of the High Court). It is directed that the taxation take into consideration my findings of fact and, inter alia, the agreed rate for fees. The plaintiff is to commence the proceeding by filing the necessary documents and obtaining an appointment to tax from the Registry of the High Court.
The Taxing Officer=s attention is also drawn to Mr. Bale=s following submission in writing in respects of Bill of costs which should be given due consideration.
The Defendants submit that the testimonies of both witnesses for the Plaintiff should be treated with caution as they are interested parties. The Plaintiff himself made it clear that he did not expect to provide his legal services for free, but he claims that he did not charge or receive any payment for his services for about 7 months on end. This is difficult to believe. Moreover, the Plaintiff did not actually compile his charges until 12.8.93, almost 2 years from the point of his alleged appointment and almost 18 months after he believed, erroneously, that he had been unfairly terminated by the Interim Administration under Mr. Cruickshank.
The Defendants submit that PW2 was a witness of convenience for the Plaintiff. He was almost in the position of a co-conspirator not only with the other members but also with the Plaintiff in these matters, including the appointment of the Plaintiff and the services they were all undertaking. PW2 was very quick to answer to a question in cross-examination that he had carefully considered the Plaintiff=s Invoice and he honestly believed that it was a proper reflection of his instructions and a proper charge on the Banban community funds for which he was the principal custodian at the time. How can an honest and truthful witness make this kind of statement on oath given the charges in the first two items for 20.9.91? The first item charges for 2 hours at the Police Station, including the time he is recorded in P1 to be at a BTFB meeting from 12.30 pm to 1.30 pm. Then the second item charges for 3 hours at a Board meeting from 2 pm to 5 pm at a BTFB meeting when even the third meeting only lasted 30 minutes.
In fact, the Defendants submit that the Plaintiff=s Invoice needs careful perusal and taxing in order to save the Banaban community funds under the statutory controls provided under the Act and the Regulations.
Mr. Sharma=s remarks in his submission are that the items in the Bill of Costs were done by the plaintiff as a result of the time he spent on the clients= files. He submits that if he was asked to be on stand by he has every right to charge his fees for time.
As I have found as a fact that the agreed rate was $150 per hour, the Taxing Officer will have to look at the items in that light and satisfy himself what period or periods of time was spent by the plaintiff as the legal adviser.
The plaintiff is ordered to file in the Registry of the High Court his Bill of Costs for taxation within 28 days and obtain the date and time for taxing. The Notice of Taxation should be served on the defendants.
Interest
The plaintiff claims interest on costs of $76,076.00 made up as follows (as per his claim on page 19 of his submission):
Interest at 12.5% per annum from 23rd September 1993
12.5% on $76,076.00 = $9,509.50 per annum
Daily Interest = $9,509.50/365 days = $26.05 per day
23rd September 1993 to 23rd September 2000 = 7 years
7 x $9,509.50 = $66,566.50.
Interest from 24th September 2000 to 8th June 2001 = 258 days
258 days x $26.05 = $6,720.90.
Total Interest payable until 7th June 2001
$66,566.50 + $6,720.90 = $73,287.40 $73,287.40
Mr. Fa seeks an award of interest from 23 September 1993 to date of judgment at the rate of 12.5% per annum and post judgment interest at 4% from the date of judgment until payment of the debt together with costs to be taxed if not agreed.
On interest, Mr. Sharma submits that this item has been pleaded. He further submits as follows:
His claim has had to come to litigation not because he wanted it to, but because the Defendants refused to pay his Bill of Costs. He even tried to settle the matter out of Court but the Defendants refused to change their position.
There is no question of unjust enrichment in this case since the Plaintiff has been out of pocket for such a long time. It is a risk that debtors take when they don=t pay bills on time. If the Court finds against a debtor then he will be ordered to pay interest for all the time the creditor has been kept out of funds.
As for the Defence contention that the Plaintiff is guilty of delay one must ask, what has the Defendants done to move the case along. At no stage did the Defendants ever take steps to move the case along. A Defendant is equally obliged to move cases to finality.
On rate of interest on >post judgment= he said that the current award for post judgment interest is no longer 4% per annum but is 8% and this is set out in the Imperial Judgments Act 1838; and since 1993 the rate has been 8% per annum for post judgment rate as set out in Order 6 r.2 of the White Book.
In regard to interest Mr. Bale submits as follows:
The Defendants also submit that the Plaintiff, if his claim succeeds, is not entitled to interest for periods of delay caused by his own inaction as detailed in Paragraph 1. Moreover, the Plaintiff=s plea to the Court surrounding the hardship he claims he suffered is not supported by the lethargic attitude displayed through his inaction. He cannot be allowed to enrich himself from the savings of the funds of a community like the Banaban through the gross negligence or wrongful conduct of people like PW2.
Having found in favour of the plaintiff in regard to his Bill of Costs, the questions arise as to: (a) the date from which interest is to commence; (b) the rate of interest and (c) on what amount of costs.
Mr. Bale submitted that the >Plaintiff, if his claim succeeds is not entitled to interest for periods of delay caused by his own inaction as detailed in Paragraphs I= of his submission. With this I agree.
I have no doubt that there was delay on the part of the plaintiff in proceeding with due diligence in the prosecution of this action as can be seen from the following account of the chronology of events as so clearly set out in Mr. Bale=s written submissions and I can do no better than set it out in his own words which are as follows:
In his Writ issued on 24.9.93 the Plaintiff, a solicitor, is claiming against the Defendants, the Rabi Council of Leaders and the Banaban Trust Fund Board, the sum of $76,076 for professional services rendered for the period 6.9.91 to March 1992. The Plaintiff is also claiming interest on the judgment sum plus costs.
The Defendants filed their joint Statement of Defence on 15.10.93. The Plaintiff did not file any Reply to Defence. No further action having been taken by the Plaintiff, the Defendants filed a Motion on 10.5.94 to strike out the Plaintiff=s Action for want of prosecution. The Plaintiff did not reply to the affidavit in support of the Defendants= Motion. Instead, on 20.5.94, the Plaintiff filed its Summons for directions. On 1.6.94, the Court made an AOrder In Terms@ on the Plaintiff=s Summons for Directions.
The Plaintiff did not file his List of Documents within the 14 days directed by the Court on his own request. Instead the Plaintiff did not file his List of Documents until 7.3.95, almost a year later. The Defendants were still awaiting a hearing on their Motion to Strike Out. On 12.5.95, the Plaintiff filed a Notice for Pre-trial Conference, and continued to pursue avenues for settlement. No order for pre-trial conference was ordered and none was done by the parties.
On 16.1.97, the Plaintiff (confirmed in Mr. Fa=s testimony) wrote to Defendants= solicitors inviting settlement for a lesser amount. The Defendants= solicitors replied on 23.1.97 confirming that the Defendants continued to deny the Plaintiff=s claims.
On 20.3.97 the Defendants made another application to dismiss the Plaintiff=s Action for want of prosecution. On 17.6.97 the Plaintiff filed his reply to the Defendants= application. On 29.8.97 the Plaintiff filed another Notice requesting pre-trial conference. On 3.9.97 both parties held a pre-trial conference, at which the parties agreed that the Defendants would abandon their Motions to strike out and should instead file their List of Documents within 14 days. This the Defendants did on 18.9.97. No Minutes of pre-trial conference was filed until 16.12.99.
Nothing happened again until 4.5.99 when the Plaintiff filed his Notice of Intention to Proceed. The minutes of pre-trial conference was filed on 16.12.99.
On 17.11.00 the Plaintiff filed a Summons to Enter Action for Trial, and on 20.12.00 the Plaintiff filed another Notice to Proceed. The hearing dates of 29-30.5.01 were then set by the Court on 8.2.01.
It is quite evident that the delay is considerable from the date of the issue of Writ of Summons on 24 September 1993 to 20 December 2000. It is my considered view that the plaintiff is not entitled to interest for that period, that is, a period of 7 years. This is particularly because of the plaintiff=s own inaction in pursuing his claim with due diligence. If he had filed the pleadings according to time table laid down in the High Court Rules 1988 this situation would not have arisen.
The Court has the power to award interest from the date when, as in this case, the writ was filed on 23 September 1993 and that is the date from which the plaintiff is claiming interest. But what is of great concern to me is that after >instituting the proceedings the plaintiff slept on it and then moved at a snail=s pace and in a stop and start fashion for almost seven years.
In these circumstances on the facts the plaintiff will be entitled to interest on the Bill of Costs from 20 December 2000 i.e. when the Plaintiff filed the second Notice to Proceed (when on 8 February 2001 the hearing dates of 29 to 30 May 2001 were set) until this judgment on16 July 2002. He has been kept out of this sum for sometime. The awarding of interest will put the plaintiff in the same financial position he would have been if he had been paid at the appropriate time.
The question now arises as to what rate of interest the Court ought to fix.
This is a case in which section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap.27 applies to fix the rate of interest to be awarded. This provision gives the Court the discretion in awarding interest at such rate as it thinks fit, on the whole or any part of a judgment for any debt or damages, for the whole or any part of the period between the date when the cause of action arose and the date of judgment.
In Harry Todd and Lilly Gene Todd v Bayside (South Pacific) Limited and John Wright (Civil Action No. 405 of 1994S) interest at the rate of $12 was awarded In this case I award interest at the rate of 12.5% per annum.
In Fiji the >post judgment= interest is governed by section 17 of the Imperial Judgments Act 1838. This section of the Act is in force in Fiji by virtue of section 22(1) of the High Court Act, Cap. 13. It provides:
Aevery judgment debt shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment until the same shall be satisfied.@ (emphasis added)
In this regard in John Edward Byrne, June Kim Byrne v J.S. Hill & Associates Ltd (FCA Civ. Appeal No. 33/93, judgment 18.8.94) the Court of Appeal at p.26 said:
Section 22(1) of the High Court Act (Cap. 13) provides for the statutes of general application which were in force in England on 2 January 1875 to be in force in Fiji. The Judgments Act 1838 was such an Act. Its application to Fiji has not been repealed or varied by legislation. Section 3 of the Law Reform (Miscellaneous Provisions)(Death and Interest) Act (Cap.27) gives the Courts a discretion as to the rate of interest to be awarded in respect of the period between when the cause of action arose and the date of judgment; but it contains no provision in respect of interest after judgment. Section 17 of the English Act is still the only one that does so. Its provisions are mandatory; interest is payable at the rate of 4%. That is unrealistic in the current economic climate: no doubt the enactment of legislation to remedy the situation would be desirable. However, unless and until there is such legislation, the Courts have no power to award interest after judgment at any rate other than 4%. Accordingly, on this point the respondent succeeds.
Further on Imperial Judgments Act 1838 (s.17) it has been stated that subsequent revisions of that rate (4% p.a) have no application to Fiji [Suresh Sushil Chandra Charan & Anuradha Charan v Suva City Council (Civil Appeal No. 12 of 1989 p.4 - judgment 27.10.89)].
Since I am awarding costs against the defendants, interest on >costs also runs from date of judgment= (Suresh Charan (supra p.4) and Hunt v R.M. Douglas (Roofing) Ltd 1988 3 All E.R. 823). Lord Ackner at p.833 in Hunt (supra) on this aspect said:
A.......... a judgment for costs to be taxed is to be treated in the same say as a judgment for damages to be assessed, where the amount ultimately ascertained is treated as if it was mentioned in the judgment, no further order being required. A judgment debt can therefore in my judgment be construed for the purpose of s.17 as covering an order for costs to be taxed.@
This interest of 4% p.a. accrues automatically and there is no need for an order to be made to this effect by the Court and it runs from the date of pronouncement by the Court. An order for costs will also bear interest.
Therefore the post judgment interest to which the plaintiff will be entitled is 4% p.a. until satisfaction.
Order
It is ordered:
D. Pathik
Judge
At Suva
16 July 2002
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