Peterson v Director of the Department of Town & Country Planning [2022] FJHC 119; HBJ06.2020 (15 March 2022)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

HBJ 06 of 2020

BETWEEN:
THE DIRECTOR of the DEPARTMENT OF TOWN & COUNTRY PLANNING 4 Gladstone Road, Government Buildings, Suva
1^ST RESPONDENT

CHRISTINE BADIA NKANKA aka CHRISTINE SILVIE BADIA of Maui Bay Estates, Baravi, Korolevu. 2ND RESPONDENT AND: DAVID CONRAD PETERSON and RUTH ANNE PETERSON as Trustees of the David Conrad Petersen and Ruth Anne Petersen Trust, both of Maui Bay Estates, Baravi, Korolevu. APPLICANTS Counsel Appearing: Mr. Roopesh Singh & Ms. A. Swamy for the Applicants : Mr. J. Mainavolau and Ms. Mary Motufaga for the 1st Respondent : Ms. A. Ali for the 2nd Respondent Date of Hearing: 11 March 2022 Date of Ruling: 15 March 2022

R U L I N G

(Security For Costs)

1. Before me is an application for Security For Costs by the 2^nd Respondent against the Applicants. It is filed pursuant to Order 23 Rule 1 of the High Court Rules 1988.
   
2. Order 23, Rule 1 provides as follows:
   

1(1) Where, on the application of a defendant to an action or other proceeding in the High Court, it appears to the Court –

(a) that the Plaintiff is ordinarily resident out of the jurisdiction; or
(b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so; or
(c) subject to paragraph (2), that the plaintiff’s address during the course of the proceedings with a view to evading the consequences of the litigation; or
(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,

then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant’s costs of the action or other proceeding as it thinks just.

3. The applicant in the main judicial review proceedings against whom the order for security for costs is sought, are the Peterson’s in their capacity as trustees of the David Conrad Peterson and Ruth Anne Peterson Trust (“Peterson Trust”). The said trust is registered in the Washington in the US. There is no evidence that it is registered with the Registrar of Deeds here in Fiji. The Petersons currently reside in Fiji on an Assured Income Permit.
   
4. I am satisfied that the plaintiffs are ordinarily resident out of jurisdiction of Fiji.
   
5. Once it is established that a plaintiff is not ordinarily resident in Fiji, the onus shifts to him or her to convince the court that - having regard to all the circumstances of the case – an order for security for costs should not be granted.
   
6. The plaintiff may succeed in this regard by showing that he or she has property within the jurisdiction which can be made subject to the process of the court (as per Fatiaki J in Babu Bhai Patel –v- Manohan Aluminium Glass Fiji Ltd Suva High Court Civil Action No. HBC 0019/19).
   
7. The Peterson Trust has two substantive properties in the Maui Bay Estate along the Coral Coast. Both properties are unencumbered. But can these properties be made subject to the process of the Court?
   
8. Ms. Ali however highlights that the Petersons in their capacity as trustees of the Peterson Trust, are actually the applicant in the substantive Judicial Review matter. She highlights that Article VII of the trust provides that the interest of the beneficiaries cannot be subject to claims of creditors or others, nor to any legal process and may not be voluntarily or involuntarily encumbered, assigned, alienated or transferred which means that the properties owned by the trust in Fiji cannot be pledged as security for the proceedings.
   
9. There is also another clause in the Peterson Trust that forbids the trustees from encumbering the assets of the trust.
   
10. Furthermore, Ms. Ali highlights that the Petersons have instituted many other legal proceedings against Nkanka. (HBJ 02 of 2013, HBC 224 of 2020 and the current one HBJ 06 of 2020). For these, her client has incurred considerable costs already.
    
11. I accept the argument that the Peterson’s Trust, at Article VII, prima facie, is intended to insulate the trust assets from any form of legal execution. This must include any process of the court.
    
12. Having said that, I also accept as good argument the submission of Mr. Singh that once the Peterson’s have submitted the trust to the jurisdiction of this Court by instituting the Judicial Review matter in question, they are therefore exposing the trust assets to the processes of this Court.
    
13. I note that the parties in this case are immediate neighbours in Maui Bay with a long standing animosity between them. Given that fact, and considered together with the fact that by all accounts and purposes, the intention behind the Peterson’s Trust is to insulate its assets as much as possible from any process, there is no guarantee that the Peterson’s will make these properties readily available for execution in the event the need arises. I am inclined to think that, in the event there should be an order for costs against the Petersons, the applicant will most likely be put to great costs in pursuing execution against these properties.
    
14. For the record, I did pose the question to all counsel as to the appropriateness of seeking security for costs in a judicial review case which may have the effect of stifling this public law exercise to the detriment of the underlying public interest.
    

15. In Fiji, the Court’s jurisdiction to review the exercise of administrative discretion is founded both in the 2013 Constitution^[1] and also in common law^[2]. As Professor Clark^[3] has noted, the common law power of review was created and developed by the courts through their judicial decisions.

16. Michael Fordham QC^[4] has said that:
    

[Judicial Review] constitutes a safeguard which is essential to the rule of law: promoting the public interest; policing the parameters and duties imposed by Parliament; guiding public authorities and securing that they act lawfully; ensuring that they are accountable to law and not above it; and protecting the rights and interests of those affected by the exercise of public authority power.

17. The law books are abound with case authorities which reiterate over and again the point that the availability of judicial review as a procedure to challenge the acts or omissions of the executive branch of government, is a necessary check to ensure that executive authority is exercised responsibly as Parliament intended.
    
18. Ms. Ali refers me to the New Zealand High Court case of Official Bay Heritage Protection Society Incorporated v Auckland City Council and Perron Central Limited – CIV 2006-404-005947 where Rodney Hansen J adopted a summary of the relevant principles to take into account in a security for costs application
    

a) The Court must be satisfied that the threshold has been reached of the plaintiff being unable to pay the costs of the defendant if the plaintiff is unsuccessful.

b) There is no burden or predisposition one way or the other. The discretion is to be exercised in all of the circumstances of the case.

c) The interests of both the plaintiff and defendant should be considered. The Court should not allow the rule to shut out a genuine claim. On the other hand, an impecunious plaintiff must not be allowed to use its inability to pay costs to put unfair pressure on a defendant.

d) The merits and bona fides of the plaintiff’s case should be considered, even though it is acknowledged that it is often difficult to assess merits at the interlocutory stage.

e) In considering the circumstances, the public interest in the litigation is relevant, although it will not be determinative as to whether an order is made for security for costs.

f) Delay in issuing proceedings is relevant, as is delay in making an application for security.

g) The plaintiff’s circumstances, including whether its impecuniosity has been caused by the acts of the defendant, is relevant.

h) Ultimately, the question of whether to grant security and the amount is a matter to be determined having regard to the interests of justice.

19. In his reasoning, Rodney Hansen J said as follows at paragraphs [19] to [24]
    

[19] I am satisfied that the challenge has been mounted bona fide and there is at least a tenable argument that the Council has misdirected itself in relation to the granting of the consent. In the context of this hearing, however, it simply is not possible for me to make any realistic assessment of the merits of the argument and the likely outcome of the litigation.

[20] I accept that there is a public interest element in the litigation deriving both from the laudable goal of preserving (or at least not detracting from) heritage buildings and localities in Auckland and in ensuring that the Council correctly applies its District Plan and discharges its obligations under the Resource Management Act.

[21] On the other hand, there are also private interests served by the litigation. The Society’s membership comprises property owners or residents who have a pecuniary or other personal interest in the outcome of the litigation. They see the proposed development as detrimental to their neighbourhood and their ultimate goal, I infer, is to achieve something which is more sympathetic to the built environment in the area. This weighs in favour of requiring members to contribute more than a nominal amount to the costs of Perron if their challenge is successful.

[22] I am satisfied, however, that the Society has been unfairly disadvantaged by the late application for security for costs. It should have been apparent to Perron at the outset that an application for security would be prudent. It could at least have foreshadowed the possibility of an application when evidence had been filed and a final assessment of the merits of the application made.

[23] Instead the Society faces an eleventh-hour application for a substantial sum. Time is short. The hearing is likely to take place towards the end of March. Most of the preparation work has been done. The costs of expert witnesses has been incurred. All that remains is to finalise submissions and the hearing itself. In my view, it would be contrary to the interests of justice if I were to make an order which could deny the Society its day in Court or which would place an unfair burden on its members to meet an order in time for the hearing.

[24] In the circumstances, I consider it appropriate to make an order for costs but to limit the award to a sum which is within the resources of the Society and its members to provide at short notice. Mr. Kirkpatrick urged me to bear in mind that the resources of the Society would be depleted by the need to meet disbursements, such as the costs of experts and Court hearing fees. However, in the absence of updated information, I am not prepared to assume that the Society has been or will be unable to generate some modest further funding. I consider that it should be required to provide some substantial security for the scale costs and disbursements to which it would be liable if unsuccessful. In the circumstances, I consider that sum should be $10,000

20. One of the factors in the summary of relevant principles adopted by Rodney Hansen J is – that while the public interest in the litigation is relevant, it will not be determinative as to whether an order is made for security for costs. Notably, he did not go into detail as to the test to apply to determine what constitutes a “public interest in the litigation”. While I do not wish to attempt a lengthy discussion of what constitutes a “public interest in the litigation” in this case, suffice it to say that, from the submissions raised, I now accept that while there is a public interest inherent in every judicial review proceeding filed in so far as they all involve a check on the exercise of administrative decision making, not every review may entail a public interest proceeding (as opposed to a public interest in the litigation).
    
21. Clearly, where leave has been granted in a judicial review matter, an order for security for costs may result in the public interest litigation or the public interest in the litigation being stifled and abandoned if the applicant is impecunious. That may seem harsh especially when one considers that the arguable public interest at stake will be stifled as a result.
    
22. I accept that this case before me now involves a review of specific decisions in a particular locality in Maui Bay and while this is essentially a public law matter, it does not involve issues which will immediately impact a great number of people other than those in the Maui Bay area.
    
23. Nonetheless, I must still balance the prejudice to the applicant whose claim may be stifled against the prejudice to the respondent who may not be able to recover his costs.
    
24. There is no suggestion that the Petersons are impecunious and will therefore not pursue this claim should an Order for Security for Costs be made now. Mr. Singh has already said in Court that in the event that this court should so order, the Petersons are ready and willing to comply.
    
25. The substantive hearing for this matter is marked for tomorrow.
    
26. Because of time constraints, I have decided to circulate this ruling today to give the Peterson’s ample time to arrange for the payment of the sum into court before the hearing tomorrow.
    
27. I am of the view that the modest sum of $10,000-00 (ten thousand dollars) should be sufficient in the circumstances. This sum must be posted into Court immediately before the substantive hearing commences tomorrow.
    

....................................

Anare Tuilevuka’

JUDGE

Lautoka

---

^[1] Section 16 of the Constitution provides:

16.—(1) Subject to the provisions of this Constitution and such other limitations as may be prescribed by law—

(a) every person has the right to executive or administrative action that is lawful, rational, proportionate, procedurally fair, and reasonably prompt;

(b) every person who has been adversely affected by any executive or administrative action has the right to be given written reasons for the action; and

(c) any executive or administrative action may be reviewed by a court, or if appropriate, another independent and impartial tribunal, in accordance with law.

(2) The rights mentioned in subsection (1) shall not be exercised against any company registered under a law governing companies.

(3) This section shall not have retrospective effect, and shall only apply to executive and administrative actions taken after the first sitting of the first Parliament elected under this Constitution
^[2] access to judicial review has its origins at common law. This can be traced to the seventeenth century when the prerogative writs of certiorari, prohibition and mandamus were extended to certain administrative bodies. These writs were previously only available against inferior courts.
^[3] David Clark, Introduction to Australian Public Law (Lexis Nexis Butterworths, 4th ed, 2013) 247.
^[4] see Judicial Review Handbook Sixth Edition (2012) at paragraph 1.1.