Solomon Islands Housing Authority v Onio [1990] SBCA 1; CA-CAC 002 of 1989 (22 February 1990)

SOLOMON ISLANDS COURT OF APPEAL

Civil Appeal Case No. 2 of 1989

SOLOMON ISLANDS HOUSING AUTHORITY

-v-

FIELDER ONIO

Hearing: 1 February 1990
Ruling: 22 February 1990

Jennifer C. Corrin for the Appellant
A. Radclyffe for the Respondent

This is an application by the successful appellant for taxation of their costs. A preliminary point has raised by Mr Radclyffe for the Respondent.

The Court of Appeal Rules 1983, Rule 23 states that:-

'The Court (of Appeal) may make such order as to cost as it sees fit'

By virtue of Rule 46 the Registrar of the Court of Appeal is the Taxing Officer, and R46(2) gives a right of appeal against his order to a Judge [of the Court of Appeal] within seven days.

There is no scale of costs for the Court of Appeal as in the High Court, Appendix J.

Mr Radclyffe's submission is that the Registrar cannot tax a bill without reference to a scale. The Court of Appeal Act is silent as to costs in civil appeals.

The Constitution states at S90 there shall be a Rules Committee, and the Committee may make rules of court regulating the practice and procedure of the High Court and Court of Appeal.

To date no scale for the Court of Appeal has been set down. The High Court scales in Appendix J have not been revised since 1975. The levels are totally unrealistic.

The matter of what scale of costs should be used by the Taxing Officer in the Court of Appeal was raised in Dettke And Others v Buchanan and after CA 2/88/CA. The Court ordered that the Appellant's pay the costs of the respondents to be taxed. The Taxing officer was asked upon what scale he would tax and it was explained that there was none. The Court agreed that the Taxing Officer would use his discretion and take into account matters such have been raised by Mr Radclyffe and Miss Corrin in this case, ie. Queensland, PNG, Vanuatu, Fiji scales, if any. As Mr Radclyffe has pointed out that is of limited help. We cannot simply adopt a scale. Scales are set dependent upon economic factors, office rental, wages, costs of utilities, and the value placed upon the profession.

S26 Interpretation Act states that where an Act confirms a power to do any act or thing, all powers reasonably necessary to enable the act or thing to be done are also confirmed by the Act. We are dealing with Rules made under the Act, and similar provisions must apply to the rules.

The full Court in Dettke & others v Buchanan and Others directed the Taxing officer to use his discretion, and appreciated that the costs involved in that particular case, where Counsel was brought in from outside the jurisdiction, would be higher and certified that fact. The matter of a scale was not considered.

The Rules Committee clearly must address themselves to this issue and make rules, to do this would lead to certainty as new officers hold the post of Taxing officer. This has been the first time the issue has been raised. It would be in the interests of the appellant for me to proceed to tax using my discretion.

The Supreme Court of PNG is in a similar situation to ourselves, where the Registrar is the Taxing Officer for the National Court, and Supreme Court, and he has used the same scale. The National Court Scale of costs are more comprehensive than our own.

In respect of WORK DONE, this is discretionary, but matters chargeable are clearly set out under item 12, and the notes thereto. Our rules do not do this and Work Done is covered by Item 44.

The High Court Scale has not been raised for many years and a simple mathematical factor of X 5 would bring them up to an Equivalent rate at today's dollar value. That would not take other matters into account such as office rentals etc.

I propose I proceed to tax on the High Court Scale. If this is deemed correct in principle, obviously, when the Rules Committee revise the Scale they should consider amending item 44 to allow an increase to reflect the care and conduct, and I would suggest the percentage increase should be in the discretion of the Taxing Officer.

I therefore order that the bill as drawn be re drawn COURT OF APPEAL set out as the High Court using Appendix J and a charge is made for Work Done. I would bring to the attention of Counsel that I have in Hyundai Timber Company Ltd v. Gatu and Others CCJ2/89HC allowed a charging rate of $100 per hour and the new bill can be drawn with this in mind.

I am aware that the full Court is due to sit in April and an appeal against this order can be made to a single Judge. If I am wrong in this, then he will be able to clarify and there will not be a great delay.

(J.K.R. STANFORD-SMITH)
Registrar of Court of Appeal