Anderson v Salaitoga [1999] FJLawRp 35; [1999] 45 FLR 241 (3 September 1999)

[1999] 45 FLR 241

HIGH COURT OF FIJI ISLANDS

KYLIE-JANE ANDERSON

v

IOWANE SALAITOGA

[HIGH COURT, 1999 (Byrne J) 3 September]

Civil Jurisdiction

Practice: Civil- costs- whether plaintiff entitled to recover costs on an indemnity basis- High Court Rules 1988, Order 62.

The Plaintiff who was a visitor to Fiji sustained very severe injuries in a motor- vehicle accident. She retained an Australian Queen’s Counsel to represent her. The High Court HELD: that the action was straightforward both as to law and as to facts and therefore the retention at the Defendant’s expenses of an overseas Q.C. could not be justified.
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Applon for costs ists in the High Court.

M. Arjun&#16 ther the Plaintiff
R. Krishna for the Defendant
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Byrne J:

e 4th of May afteearingaring of four daur days and comprehensive written submissions made by the parties I awardewarded the Plaintiff the sum of $215,000.0 damas a result of injf injuries which she sustained in a motor otor vehicle accident on Queen’s Road between Sigatoka and Suva on the 3rd of May 1987. I concluded my judgment with this paragraph:

“There we a ve a verdict for the Plaintiff of $215,000.00 and costs and judgment accordingly.”

The Defendant appealed to the Court of Appeal, the heataking place on 15th August 1995 and judgment dismissing thng the appeal being given by the Court on the 17th of October 1995. The orf the Court was expressed in this way:

&#8p>“(60; The appeal on lity aid on d on damages is dismissed.

(2) & ; Thellantllant to pato pay the costs of the respondent of and incidental to appe be tunless less otherwise agreed between the parties.ties.̶”

(1) &#160 Plaintiffeproceed to d to a taxing of costs on an indy basis.

(2)  cost of this aaplication bion be costs in the cause.

The ns waportean avit ovit of t of the Plhe Plaintiff in which she deposed that as a result of the litigation she ishe incurred the following costs:

(1) &##160;; L60al fees totallitalling $11,876.87 to her solicitoicitors Wm Scott Grahame & Co.

2) ҈ d60; due to her counsel Mr. D.E. Curtain of the Victorian (Australia) Bar $32,360.54.<.54.

(3)& ; A0;; Airel to $3,083.00.

(4)&#14) ټ Fyable tble to e to e to her mher mother for attendance at the trial $1,0.(5) &&#160endatendanendance of e of her treating surgeon Mr. JosepJoseph Robh Robin to give evidence $8,755.38.

160;&ـ Accommccommodation and incidental expenses $967.84.

Ad exed to thto the shoe short submission of the Plaintiff&#s solicitors in support of her application that the costs be paid to her on an indemnity baty basis was an affidavit of John Raymond l a Law Clerk employed by t by the Plaintiff’s Melbourne lawyers in which Mr. Ansell gives reasons why the Plaintiff should be awarded costs on an indemnity basis. These are set out in Paragraph 14:

“k an Order tder that the costs incurred by the plaintiff in engaging Mr. Curtain QC be paid by the defendant, for the following reasons:

&#8226 plai issued sued proceedings in Fiji;

• Taintiaintiff received severe, serious and multiple injurieshe transport accident. The defendant did not admit to the extent of the plaintiff’s i7;s injuries. The defendant denied liabilir the occurrence of the trae transport accident and pleaded that the plaintiff was contributoryigent. The plae plaintiff’s claim for damages was vigorously contested by the defendant;

• The plain#8ff’s working capacid been reduced by reason of the injuries sustained in the tthe transport accident;

&# The retention ofon of Seniunsel was necessary for the presentation of the plaintiff&#iff’s case. The skill and experience of a Senior Counsel was reasonaecessary for the presentation of the plaintiff’s case case;

• The prationation of the plaintiff’s case was of particular importance and significance to the plaintiff. She had been injured in a foreign country and sued thro foreign legal system. It presented with complexities on thon the issue of jurisdiction, the law of Fiji and the onus of proof;

• The plaiff’s injuries were devastating and the potential of the claim substantial, both in terms of monetary value in Australia and, more importantly, Fiji. This was evidenced by the ultimate award of damages which the plaintiff received. The complexities of the plaintiff’s case was evidenced by the duration of the Trial. The case involved substantial and complex issues in relation to damages;

#8226; It was the obligobligation of Phillips Fox to Brief Counsel of sufficient competency and experience to ensure that the rights of the plaintiff were adequately protected. Mr. Curtain QC n appropriate Counsel bearibearing in mind his competence and experience. Mr. Curtain was admitted to the Victorian Bar in 1974 and appointed one of Her Majesty’s Queen’s Counsel in 1993. He has practised predomly in personal injurinjury cases throughout his career.”

The first comm make make about this affidavit is that it is contrary to tinciple stressed time and again by the Judges of this CourtCourt that affidavits should depose only as to facts in accordance with Or1 Rule 5 of the Rules of thof the High Court and not be in reality as here, a submission on the law and an expression of opinions.

The second comment is that the affidavit does not persuade me that I should grant the Plaintiff’s application for reasons which I shall give shortly.

Counsel for the Dant sunt submits that I should ignore the affidavit as being improper in that presumably it is really a submission on the law and cannot be taken as evidence. If this is what counsel for the Dant means by his use of thef the adjective “improper” then I agree. However I am prepared in this case to allow it to be used because of the comments I must make for rejecting the reasons stated.

Counsel he Defendant sunt submits that I should reject the application for four reasons:

(i); The case was a s moter le r le accident action involving liability, proof of injuries aies and damages, so common in Fiji.

(ii) ;&ـ Inst all cascal bcal barristers and solicitorsitors are are able able and dand do handle such cases efficiently. ҈& &&60;&ـ1600;

iii) &160;< 160r Thes waneed for the the Plaintiff to engage counsel from overseas ah eno costis cl

(iv) < If thentiff chof chose tose tose to engage Mr. Curtain then she should bear the costs.

Whilstvidenced by my jumy judgment I considered that the Plaintiff suffesuffered very severe injuries with a consequent reduction in hrking capacity I do not consider that the retention of overseas counsel was necessary for tfor the proper presentation of her case.

In my experience in fewy few motor vehicle accident claims in this Court are overseas counsel engaged, obviously I consider for the reason that the local legal fraternity, at least those practitioners who appear regularly in the Courts, is fully capable of handling such actions. Indeed the senior partner in the firm Wm Scott Grahame & Co., the Plaintiff’s solicitors in Suva, Mr. N.S. Arjun is in my view a very competent and persuasive advocate who could have represented the Plaintiff perfectly adequately. I say this without in any way meaning to disparage Mr. Curtain.

Mr.ll seeks to justify tify the engagement of overseas counsel because the Plaintiff had been engaged in a foreign country and sued through a foreign legal system presented with complexities on the issue of jurisdiction, ion, the law of Fiji, and the onus of proof.

I disagree.
&
A sr>A simple enquiry to her solicitors in Fiji would have revealed that the law in Fiji governing motor vehicle claims suchhe Plaintiff’s is no different from the law applicable in most Commonwealth countriestries of which I am aware and indeed even that of the United States.

Mr. Ansell does not state what he claims were the complexities on the issue of jurisdiction, the law of Fiji, and the onus of proof. An enquiry of the Plaintiff’s solicitors would have disclosed that there were.

When a CourtCourt makeo an order in the terms of the last paragraph of my judgment and the last paragraph of that of the Court of Appeal judgment the word “costs” is a form of legal shorthand meaning party and party costs. If a Court intends to award costs on an indemnity basis it will say so. I did not intend to award costs on an indemnity basis first because no request had been made to me to do so and secondly because if such a request had been made I would have refused it for the reasons I have just given.

“Iof great imat importance to litigants who are unsuccessful that they should not be oppressed by having to pay an excessive amount of costs. The costs chargeable under a taxation between party arty are all that are necesnecessary to enable the adverse party to conduct the litigation, and no more. Any charges merely for conducting litigation more conveniently may be called luxuries, and must be paid by the party incurring them.”
o summarise my conclusiclusion I consider that the employment of counsel from overseas in this case, let alone Queen’s Cou was, with respect, a luxury for which the Defendant should not have to pay. I therefore dire dismiss the Plaintiff’s Summons for Directions and order her to pay the Defendant’s costs to be taxed if not agreed.

(Application diemissed.)
Editor’s note note: Order 62 of the High Court Rules was amended on 15 May 1990- see LN 72/98)