DECISION
The appellants file filed an appeal to the Supreme Court in 1994 and on 13 July 1994, the Deputy Registrar ordered security for costs
of 900.00 dollars to be paid into court.
The appeal was heard and, on 24 November 1995, the Supreme Court dismissed it "with costs to the respondent". The respondent
had the order sealed on 8 December 1995.
There followed an application to the Supreme Court to set aside its judgment which was refused in October 1996. Those proceedings
have no bearing on this application save that it may explain why it was not until February 1997 that the first appellant, having
heard nothing further about the costs ordered in November 1995, wrote to the court seeking a refund of his security.
On 20 February 1997, the Deputy Registrar replied:
"You are hereby advised that the security of $900.00 has been paid out to Suva City Council on 1 May 1996.
As the judgment dated 24/11/95 stated to the Respondent."
On 27 February 1997 the appellant took out a summons seeking to discharge the order for payment of security and release of the sum
to him.
On 8 May 1997, the Deputy Registrar delivered a Decision which states:-
"Upon Suva City Council’s request, the initial security for costs was paid out to the Suva City Council on 01/03/96. There
was no order for taxation.
The payment was made under Rule 8(1) of the Supreme Court Rules 1992.
Rule 8(1) "... and the payment of any costs that may become payable to the respondent in the event of the appeal or petition
being dismissed for non presentation, or the Supreme Court ordering the appellant or petitioner to pay the respondent’s costs
of the appeal, as case may be."
The long-standing practice of the Registry is that upon an order made as to costs the security for costs which is deposited in the
Registry is paid to the successful party to the action upon written request by that party and when no Bill of Cost for taxation is
filed within the time required. Bill of cost for taxation is an option but not mandatory to claim deposit of security placed in the
registry.
Therefore, the Registry was correct in paying out the sum of $900.00 to Suva City Council."
On 28 May 1997, the appellant filed notice of motion in this court in similar terms to the summons before the Deputy Registrar but
including a claim for interest at 13.5% p.a. "from the date of deposit until refund".
This is not an appeal from the Deputy Registrar but a fresh application to discharge the order for security. The passage of the Deputy
Registrar’s decision is quoted above because it is also the basis of the respondent’s submission to me. Counsel for the
respondent tells me it has indeed been normal practice to write to the Registry asking that the security for costs be paid out. The
appellant disputes this is the usual practice and contends that, even if it is, it is wrong. I agree.
By s.14 of the Supreme Court Decree, 1991, where the Supreme Court directs a party to bear the costs and no agreement is reached by
the parties, such costs shall be taxed by the proper officer of the Court of Appeal in accordance with rules for the time being regulating
taxation in the Court of Appeal.
The Court of Appeal Rules provide only that costs shall be levied according to the High Court scales (Rule 32) and give no further
directions on costs. However, by Rule 6, the High Court Rules shall otherwise apply to proceedings in and before the Court of Appeal
in civil causes or matters.
Under O.62 r.20 of the High Court Rules, the respondent should have begun proceedings for taxation of its costs within three months
after the judgment was entered. That gave the respondent until 9 March 1996. To date, no such step has been taken and the respondent
now seeks leave to lodge its bill of costs out of time should I find taxation ought to have taken place.
The position is clear. S.14 of the Supreme Court Decree requires taxation in the absence of agreement. No attempt was made to seek
the agreement of the appellant. The last part of Rule 8(1) simply sets out the purposes for which security for costs may be ordered.
It does not remove the requirement of s.14 for taxation.
The security is fixed before the appeal process is set in motion. To suggest, as counsel for the respondent does, that the figure
is always set at a very conservative level may be correct but no one can, at that stage, predict the actual course of the appeal
or the resulting costs.
When the Supreme Court ordered payment of the respondent’s costs, it ordered just that. The sum the respondent was entitled to
was the total costs actually incurred and taxed by the proper officer. It may be those costs were considerably above or below the
sum paid as security but simply to pay out the sum without any evidence of the true costs and without any notification to the appellants
or opportunity to make representations was entirely wrong. The respondent should not have requested such a payment out.
The situation must be corrected and I order the respondent to repay the sum of 900.00 dollars into the court within 14 days.
In those circumstances, Mr Gopal seeks leave to lodge his bill of costs out of time.
Well over a year has elapsed since the end of the period of three months. This was not a case where the security was simply paid out
to the respondent in error by the court. It was paid as a result of the respondent’s incorrect request and failure to follow
the rules. The power to enlarge time is discretionary but I do not feel this is a case where I should exercise it in the respondent’s
favour. He initiated the wrong procedure and has, until now, done nothing to remedy it.
The respondent’s application to commence proceedings out of time for the taxation of the costs ordered by the Supreme Court on
24 November 1995 is refused.
In these circumstances the security must be repaid to the appellant. He seeks interest at 13.5%. I can find little guidance on this.
Where money is paid into the court fund, it should, after 21 days, be placed in an interest bearing deposit account. Had this security
been paid to the respondent as part of its costs, the appellants would have had no right to the interest. However, I consider, that
the appellant is entitled to any interest that has accrued since the date for commencement of proceedings for taxation passed.
I order the sum of 900.00 dollars be refunded to the appellant together with interest at the normal rate for a short term deposit
account from 9 March 1996 until the date of payment.
Mr. Justiceon Ward
Jbr> Judge of the Supreme Court (Ex-Officio)
CBV0006D.94S
