New Zealand Pacific Training Centre Ltd v Training & Productivity Authority of Fiji [2011] FJSC 3; CBV0016.2008 (8 April 2011)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

Civil Appeal No. CBV 0016 OF 2008
Fiji Court of Appeal No. ABU 0009 of 2006S

BETWEEN:

NEW ZEALAND PACIFIC TRAINING CENTRE LIMITED
a limited liability company having its registered office at Lautoka trading as "NEW ZEALAND PACIFIC TRAINING CENTRE"
Appellant

AND:

TRAINING & PRODUCTIVITY AUTHORITY OF FIJI
previously known as FIJI NATIONAL TRAINING COUNCIL A body Corporate Established pursuant to the Fiji National Training Act (Cap.93).
Respondent

Coram: The Hon. Justice Sathyaa Hettige, PC, Judge of the Supreme Court.
The Hon. Justice William Calanchini, Judge of the Supreme Court.
The Hon. Justice Anjala Wati, Judge of the Supreme Court.

Date of Hearing: Tuesday 29th of March, 2011

Counsel: Mr. Chen B. Young for the Petitioner
Ms Heilala Tabete for the Respondent

Date of Judgment: Friday 8th of April, 2011

JUDGMENT OF THE COURT

1.1 This is a Special Leave To Appeal application made by the appellant in respect of the Order for Costs in a sum of F$ 12000.00 awarded by the Fiji Court of Appeal in favor of the respondent.

1.2 The appellant, the New Zealand Pacific Training Centre Limited had been engaged in the business of providing in Fiji Business training and various educational courses to the public .

1.3 In the Civil High Court of Lautoka the appellant's action in Case No.0262 of 2001 was dismissed on 19th December 2005 and the High Court also awarded costs in a sum of F$ 4500.00 to be paid by 3 p.m. on 13th January 2006 in favor of defendant.

1.4 The appellant appealed against the High Court Order to the Fiji Court of Appeal and the appellant's appeal was dismissed and the Court of Appeal confirmed the Orders made by the learned High Court Judge on 19th December 2005 and awarded costs of the Appeal in a sum of F$ 12000.00 in favor of the respondent. The rest of the judgment of the Court of Appeal is unchallenged in these proceedings.

1.5 The appellant complains that the Court of Appeal heard the appeal and without asking the petitioner's counsel to address on the issue of costs and or enhanced the quantum of costs and awarded the respondent F$ 12000.00 as costs of the Appeal and no reasoning was given in arriving at the quantum of costs.

1.6 The counsel for the respondent was not of much assistance to the court. However, she submitted that the Court of Appeal record consisted of 5 (five) volumes of court documents and exhibits. Further more it was submitted that the respondents obtained the services of a senior Counsel from Melbourne who was flown in for the appeal hearing.

1.7 The respondent drew the attention of this court to the provisions contained in section 13 of the Court of Appeal Act ( cap 12 ) which provides as follows:

"For all the purposes of and incidental to the hearing and determination of any appeal under this Part and the amendment, execution and enforcement of any Order, judgment or decision made thereon, the Court of Appeal shall have all the power, authority and jurisdiction of the High Court and such power authority as may be prescribed by the Rules of the Court."

Rule 6 of the Court of Appeal Rules provides as follows:

"Subject to these Rules the High Court Rules shall apply to proceedings in and before the Court of Appeal in Civil causes or matters"

In the case of South Pacific Recording Ltd. v. John Yates & another Fiji Full Court of Appeal 1997 Civil Appeal No. ABU 0023 of 1997S (High Court Civil Action No. 90 of 1992) decided on 14th November 1997 held that after much comprehensive discussions on costs " we think that the jurisdiction under Order 62 Rule 9 (4) (a) should have been invoked by the judge".

On perusal of the judgments cited by the appellant and the respondent in the written submissions it appears that the Court of Appeal in those cases has granted costs having gone into the question of costs whether it should be on indemnity basis or party and party basis.

1.8 It must be stated that the Order for costs by courts is one which is in the discretion of the court. The Court of Appeal in a number of cases in Fiji has awarded costs in favor of the parties in the Appeal proceedings. However, the appellant contends that when granting Order of costs the Court of Appeal did not exercise the judicial discretion in a fair manner and the said Order of costs was unlawful on the ground of procedural unfairness and in violation of the principles of natural justice. Further the appellant submits that no reasonable opportunity was granted to the petitioner or his counsel to address the court on the issue of costs.

1.9 Under section 7 (3) of the Supreme Court Act of 1998 the appellant has to satisfy the requirements contained in that section in a Special Leave To Appeal application. It provides

"In relation to a civil matter (including a matter involving a constitutional question ) the Supreme Court must not grant Special Leave To Appeal unless the case raises

(a) a far reaching question of law;

(b) a matter of great general or public importance

(c) a matter that is otherwise of substantial general interest to the administration of civil justice".

2.0 It was contended that the Order for costs only affects the appellant and no far reaching question of law has been raised. However, it is necessary to consider whether the petitioner's case falls within any of the limbs of the above section for the purpose granting of leave and thereafter to consider the petitioner's case on merits.

2. 1 The main grounds of Appeal of the petitioner are as follows:

a) That the Court of Appeal erred in law as there was a breach of natural justice that the petitioner 's counsel was not given the opportunity to address the court on the issue of costs or the quantum of costs.

b) That the decision of Court of Appeal was perverse in that no proper reasoning was given by the court as the basis of its conclusion that the court was satisfied that the petitioner "was discussed or argued".

The petitioner in this application for Special Leave to Appeal seeks an Order to vacate that part of judgment of the Court of Appeal ordering the petitioner to pay F$ 12000.00 dated 19/11/2008.

2.2 The question before this court to be determined is as to whether the court of Appeal acted unfairly without giving the petitioner's counsel a hearing before the awarding of F$12000.00 as costs in favour of the respondent. The question also arises as to whether the Court of Appeal erroneously acted for failing to give reasons for its conclusion when exercising its judicial discretion enhancing the quantum of costs.

2.3 We shall first, deal with the first ground of Appeal.

Is the decision of the Court of Appeal unreasonable regarding awarding high costs as alleged by the petitioner. It is being argued that the issue of costs in the Court of Appeal should have been considered reasonably as the order of costs affected the petitioner personally and it is important to the petitioner. In fact if we take in to account the petitioner's grievance we think that the correct standard of review of the issue of costs should have been the reasonableness.

2.4 The principle of unreasonableness (Wednesbury unreasonableness) is a matter for judicial review. The underlying principle of judicial review is the doctrine of ultra vires which means beyond the powers conferred.

2.5 In this application the appellant's complaint is that when ordering the petitioner to pay high costs in a sum of F$ 12000.00 whereas the trial court having gone into merits of the case had fixed the cost at F$ 4500.00, did the court of Appeal erroneously enhance the quantum of cost for no obvious reasons.

2.6 While appreciating the discretionary power of the Court, the Court of Appeal should have exercised the said discretionary power fairly and reasonably and made the order enhancing the quantum of cost on valid reasons.

2.7 It can be contended that the principle of unreasonableness only applies to administrative decisions for want of reasonableness. However, we proceed to observe that that the Court of Appeal in this application has failed to act fairly and reasonably when ordering the higher costs against the petitioner.

2.8 The next ground of Appeal of the appellant is that the Court of Appeal took upon itself to make such order for higher costs without discussing or hearing the counsel for the appellant. In other words that the Court of Appeal failed to adhere to the principles of natural Justice by not granting an opportunity to the petitioner's counsel to make representations on costs and thereby violated the Rules of natural Justice.

2.9 It must be noted that the natural justice or procedural fairness is used in many jurisdictions in the determination of just and fair processes in legal proceedings. After hearing, the parties have to be satisfied that justice has been done and justice should be seen to be done.

3.0 In the case of Heffernan V Byrne 2008 FJCA 7; ABU 0027.2008 decided on 29 May 2008 the Court of Appeal carefully considered the issue of costs in paragraphs 33- 40 of the judgment. It was a stay application as well as Leave to Appeal from an interlocutory decision of Pathik J. made on 24/10/2007 in which an Application for Recusal was dismissed for want of prosecution and the Appellant's lawyer on record, Mr. Dorsami Naidu Esquire, was ordered to pay the costs in a sum of F$ 9500.00 personally in favour of the lawyers who appeared for the 3 respondents.

3.1 The court invited all the lawyers for the petitioner and respondents to address court on the question of costs fairly and reasonably. The Court specifically said that if the costs were to be awarded against Mr. Naidu personally, then he should be given an opportunity to respond (paragraph 35 of the judgment).

3.2 It is to be noted that even if the said judgment is not binding on the parties in this application it has some persuasive value that should be considered in fairness to the parties of this application. The principles of reasonableness and principles of natural justice have to be followed.

3.3 It was submitted by the counsel for the appellant, under Rule 32 of the Court of Appeal Rules that the petitioner's costs allowed by the court of Appeal are taxable on the applicable scale.

The Rule 32 (1) reads as follows:

"Costs allowed by Court of Appeal shall be taxable according to scales for the time being in force in the High Court."

3.4 In regard to the question of costs in civil appeals it is necessary to consider the provisions of the Court of Appeal Act and the Court of Appeal Rules.

Section 32(1) of the Court of Appeal Act provides as follows:

"On hearing and determination of an appeal under this part no costs shall be allowed to either side"

The above provisions in section 32(1) applies only to criminal appeals in the Court of Appeal.

However, we observe that there is no similar provision in the Court of Appeal Act which precludes the Court of Appeal in awarding costs in civil appeals.

3.5 Even though there is no express provision in the Court of Appeal Act which confers jurisdiction on the Court of Appeal to award costs in civil matters it is worthwhile to consider the provisions contained in Rule 7 of the Court of Appeal Rules.

Application of Practice and Procedure in England
Rule 7 reads as follows:

" Where no other provision is made by these Rules, or by any other enactment, the jurisdiction, power and authority of the Court of Appeal and the judges thereof shall be –

(a) In civil causes or matters, according generally to the course of the practice and procedure for the time being observed by and before Her Majesty's Court of Appeal in England."

3.6 The Practice and Procedure in relation to civil appeals referred to in Rule 7 (a) should not be resorted to if adequate provision of law with regard to awarding costs either in the Court of Appeal Act or in the Rules thereof is provided for. We observe that there is no express provision in the Rules of Court of Appeal which confers jurisdiction or power on the Court of Appeal in regard to awarding costs in civil appeals.

3.7 Nonetheless, Rule 6 of the Court of Appeal Rules referred to in paragraph 1.7 above in this judgment provides

"Subject to these Rules, the High Court Rules shall apply to proceedings in and before the Court of Appeal in civil causes or matters. Order 62 Rule 9 4 (a) of the High Court Rules can be invoked by the Court of Appeal when awarding costs.

The issue of costs in civil appeals or matters were discussed in details in the case of South Pacific Recording Ltd v John Yates and Another 1997 ABU 23/97 which was followed in Julie Doyle v Phiyllis Latour Doyle Trustee Corporation Limited consolidated with Trustee Corporation Limited v Phyllis Latyour Doyle 1999 45 FLR 262.

In view of the provisions contained in Rule 6 and Order 62 (R9) of the High Rules the Court of Appeal has been conferred with jurisdiction regarding awarding costs.

It should be noted however, that the court must be mindful of the fact that the parties finally receive a favourable exercise of the discretion when awarding costs on the ground reasonableness and fairness.

3.8 We agree with the submissions of the learned counsel for the appellant that the principles of reasonableness and principles of natural justice have not been observed by the Court of Appeal when awarding higher costs in favor of the respondent.

3.9 Having carefully considered the written submissions and all the material before this court we are of the view that there is no justification to impose higher costs on the unsuccessful petitioner without giving reasons based on principles of reasonableness and fairness.

4.0 The question is whether the petitioner has satisfied the threshold requirements set out in Section 7(3) of the Supreme Court Act. In our considered view, the petitioner has met the test by satisfying that there is an issue of great general or public importance and substantial general interest to the administration of civil justice. In particular it is an important, public and administrative issue on which a party must be given an opportunity to address the court on an important aspect such as costs and without giving an opportunity and reasons the court cannot grant exorbitant costs of such a nature. Accordingly leave has been granted and we have delved into the merits of the case.

4.1 In the circumstances this court is of the view that we should set aside the part of the judgment of the Court of Appeal dated 19/11/2008 ordering the petitioner to pay F$ 12,000.00 as costs.

4.2 We confirm the Order of costs imposed by the trial court in a sum of F$ 4500.00 to be paid by the petitioner.

We vacate and set aside the Order made by the Court of Appeal in relation to costs and substitute the amount of F$3000.00 to be paid by the petitioner in that appeal.

We order costs in favour of the petitioner in respect of this appeal in the sum of F$1500.00

Hon. Justice Sathyaa Hettige PC
Judge of the Supreme Court

Hon. Justice William Calanchini
Judge of the Supreme Court

Hon. Justice Anjala Wati
Judge of the Supreme Court

Solicitors:

Young and Associates, Solicitors for the Petitioner
Neel Shivam Lawyers, Solicitors for the Respondent