Veilomani Youth Club v Commissioner of Police [2009] FJHC 359; HBC204D.2008S (9 July 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 204D OF 2008S

BETWEEN:

VEILOMANI YOUTH CLUB a non profit organisation
registered with the Ministry of Youth and Sports.
PLAINTIFF

AND:

COMMISSIONER OF POLICE
FIRST DEFENDANT

AND:

ATTORNEY-GENERAL OF FIJI
SECOND DEFENDANT

Counsel for the Plaintiff: Mr R Chaudhary
Counsel for the Defendants: Mr S Raramasi

DECISION

By a Writ of Summons issued on 25 June 2008 the Plaintiff sought certain relief including an injunction to restrain the (first) Defendant from unlawfully searching and seizing the property of the Plaintiff and its members and patrons and also a claim for damages.

The Statement of Claim alleged that on 24 May 2008 at about 8.20p.m. a number of police officers attended at the Plaintiff’s premises, searched the premises and seized an amount of cash from patrons who were attending an authorised gaming activity. It was also alleged that the police had conducted the search without producing a warrant.

The Statement of Claim also alleged that a second similar event took place on 11 June 2008. It was claimed that the Plaintiff, its members and patrons had received a great deal of adverse media attention as a result of the police activities.

Then by Originating Summons dated 24 June 2008 the Plaintiff sought, inter alia, the following relief (in summarised form):

1. A Declaration that the actions of the 1st Defendant ... in confiscating the property of the patrons of the Plaintiff ... was ultra vires and an abuse of the powers conferred on 1st Defendant by the Penal Code ...

2. A Declaration that the search and seizure of property of the patrons of the Plaintiff ... by the 1st Defendant ... was in breach of the Applicant’s fundamental rights under (the Constitution) ...

3. An Order that all property (including money) seized and confiscated ... be returned forthwith to the Plaintiff for return to the respective members and patrons.

4. An injunction restraining the 1st Defendant ... from unlawfully entering the venue ... and unlawfully searching and seizing property of the Plaintiff, its members and/or its patrons.

5. An order that the 1st Defendant ... be further restrained from approaching within 100 metres of the Plaintiff organised non ticket lottery games at all times.

6. Costs.

The parties filed affidavits and the application came before the Judge on 27 August 2008. Not surprisingly, the Judge did not make the first two declarations sought by the Plaintiff. They were matters that should more appropriately have been the subject of an amendment to the relief sought by the Plaintiff in the Writ.

However, the Judge did make the two orders sought by the Plaintiff. He also granted an injunction the terms of which were similar to the injunction relief claimed in the Writ.

As the Plaintiff’s summons had been dealt with by the Judge in Chambers, in the normal course of events, that should have concluded the interlocutory proceedings. However the matter was adjourned to 11 September 2008. The Order was silent as to the question of costs.

Although there were a number of subsequent hearings in Chambers in relation to matters arising out of the orders made by the Judge on 27 August 2008, no further formal orders were taken out until the hearing on 1 December 2008. On that day His Honour ordered that the funds paid by the police on 24 May 2008 in the sum of $40,230.30 be released from the Plaintiff’s Legal Practitioner’s Trust Account and be disbursed to the individual patrons. The Judge also gave directions concerning an undertaking given by the Plaintiff, directed that the parties file submissions and adjourned the further hearing of the outstanding matters arising from his initial orders to 30 January 2009. Again, the formal Order was silent as to the question of costs.

Although there were further proceedings in Chambers, no further formal orders have been taken out. It would appear from the Judge’s handwritten notes at the last mention of the interlocutory proceedings on 20 March 2009, that directions were given for the parties to file submissions on the question of costs and the matter was to be heard on 15 April 2009. That hearing did not take place and the Plaintiff now seeks its costs for the interlocutory proceedings and relies on its written submissions that were filed on 8 April 2009. The Defendants filed their submissions on 22 April 2009.

The Plaintiff’s submission is that as the successful party in the interlocutory proceedings it is entitled to costs and that those costs should be awarded on an indemnity basis. The Plaintiff’s submission then sets out a detailed list of items for which costs are claimed.

The Defendants submitted that, for a number of reasons, the parties should pay their own costs or alternatively, that the Plaintiff’s costs be reduced and fixed summarily at $1500.

The submissions filed by the Defendants referred to an Order made by His Lordship Mr Justice Hickie. There is, however, no such order in the Court file.

As a result of the orders made by the Judge in the course of the interlocutory proceedings, the Plaintiff has already obtained the injunction relief claimed in the Writ. The outstanding issues relate to the claims for damages.

In view of the length of time that it has taken to complete the interlocutory proceedings it seems appropriate to order that the costs of the interlocutory proceedings be the Plaintiff’s costs in the cause. This means that the Plaintiff will be entitled to the costs of the interlocutory proceedings in the event that it is successful in its claim for damages. The Defendants will not be entitled to the costs of those proceedings even if they are successful on the question of damages. These costs are awarded as party party costs and are to be assessed at the conclusion of the trial of the action.

The reasons for this decision are twofold. First, the interlocutory proceedings were by way of affidavit. The material that was before the Judge and upon which he relied in making the interlocutory orders was not tested by way of cross-examination. The affidavit material does indicate that there are considerable differences between the parties as to the material facts.

Secondly, costs on a party party basis are appropriate as the material did not lead to the conclusion that the Defendants’ case was sufficiently unmeritorious to justify awarding indemnity costs.

In conclusion it should be stated that some of the items claimed by the Plaintiff in its submissions are not costs of the interlocutory proceedings but are more appropriately related to the trial of the action.

W D Calanchini
JUDGE

At Suva

Thursday 9 July 2009