Kalsakau v Principal Electoral Officer [2013] VUSC 112; Election Petition 20 of 2012 (14 August 2013)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Election Petition Case No. 20 /2012

BETWEEN:

ALATOI ISHMAEL KALSAKAU
Petitioner

AND:

PRINCIPAL ELECTORAL OFFICER
First Respondent

AND:

RALPH REGENVANU
Second Respondent

AND:

EDWARD NIPAKE NATAPEI
Third Respondent

AND:

TONY WRIGHT
Fourth Respondent

AND:

MOANA CARCASSES
Fifth Respondent

AND:

PATRICK CROWBY
Sixth Respondent

AND:

WILLIE JIMMY

Seventh Respondent

Hearing: 14 August, 2013

Before: Justice RLB Spear

In attendance: Avock Godden for the Petitioner
Robert Sugden for the First Respondent
No appearance for the Second and Third Respondents (Christina Thyna)
No appearance for the for the Fourth and Sixth Respondents (Ronald Warsal)
Nigel Morrison for the Fifth Respondent
Saling Stephens for the Seventh Respondent

JUDGMENT ON COSTS
SPEAR J – 14 August, 2013

1. At paragraph 124 of the judgment issued on 26 July 2013, I noted that the respondents were entitled to costs on a standard basis to be agreed or taxed. At the time that judgment was prepared, I had not heard from counsel on the issue of costs. As soon as the judgment was delivered, Mr Godden sought to address me on the issue of costs and in this respect see the Minute of 29 July 2013. Mr Godden asked for time to be heard on costs and I consider that it was appropriate that he be given that opportunity.
   
2. A hearing as to costs was then set for 9.00 am today with the requirement that Mr Godden prepared and filed any submissions as to costs within 14 days.
   
3. Mr Godden's submissions were filed within the 14 day period.
   
4. Mr Sugden has given notice that he has ceased to act for the first respondent. I am unsure why that has occurred as I am grateful to Mr Sugden for the careful and most helpful presentation of the case for the PEO. Mr Sugden was granted leave to withdraw.
   
5. The primary submission for the petitioner Mr Kalsakau is that the Court has a free and unfettered discretion as to costs pursuant to s. 60(2) of the Representation of the People Act [Cap.146]. Furthermore, that this proceeding was akin to public interest litigation and that there was an abundance of authority both in Vanuatu and overseas where a person bringing litigation to advance a matter that can legitimately be considered as being in the public interest should not have their public spirited endeavours punished by an order for costs if unsuccessful.
   
6. This Court does not have such a free and unfettered as Mr Godden would contend. Costs are at the discretion of the Court but it is necessary for the Court to have regard to the interests of justice when considering what order for costs should be made. Furthermore, an explanation should be given by the Court as to the basis for any decision as to costs.
   
7. There are some presumptions as to costs that apply including the principal presumption that costs usually follow the event. That is, a successful litigant will usually be awarded costs. Those costs will ordinarily be on a standard basis unless there are good reasons why indemnity costs should be awarded. CPR 15.8 sets out a number of matters that the Court can have regards to. However, each case must be approached having regards to its individual circumstances so that in the end costs are awarded on a basis that meets the ends of justice.
   
8. Mr Godden argued that the civil procedure rules did not apply to a determination of costs under the Representation of the People's Act. What is overlooked in the submission, however, is that CPR 15.8 essentially sets out matters that the Courts have considered over the years as having possible relevance to a determination of costs.
   
9. This is an unusual case. Counsel agreed that it was the first case where such a substantial attack had been made on an election of all the candidates for election to Parliament in a particular constituency. I do not, however, accept that this can be considered public interest litigation which is a term that is more often and more appropriately applied to litigation brought by a person or body seeking to either protect or advance a matter of general public interest. In this case, Mr Kalsakau was a candidate in the election for the Port Vila Constituency but he was unsuccessful. There were six seats available in the Port Vila constituency. Mr Kalsakau received the ninth highest number of votes. Mr Crowby was the successful candidate with the least number of votes at 917 and Mr Kalsakau followed 279 votes behind him.
   
10. It is clear that Mr Kalsakau brought this petition seeking to have the entire election for the Port Vila seats set aside and thus for a by-election for all six seats. His backup was an attack upon the election of the fourth, fifth and sixth respondents alleging unlawful election practices.
    
11. I propose to deal with the issue of costs having regard to each of the respondents. I appreciate that the election was dismissed but there are a number of individual issues that I consider should impact upon the costs issue.
    
12. Mr Kalsakau's case highlighted a substantial number of problems with the electoral system in the way that the elections took place in the Port Vila constituency. Those matters have been addressed in detail in the substantive decision and I do not propose to revisit them. Mr Kalsakau, and any other petitioner in his position, will always be under a difficulty when attempting to set aside the election for all the seats in a particular constituency. That is principally because the petition is required to identify the grounds on which the petition is based and that petition is to be filed within 21 days of the outcome of the election being declared. That 21 day time period is not able to be extended. Furthermore, it is now well accepted that a petition cannot be amended after the 21 day period except in minor respects going to "fine tuning".
    
13. As it happened, it was only during the hearing of the petition that some material matters were brought to light by the acting PEO from records that had not been disclosed to Mr Kalsakau's legal team. While Mr Kalsakau may have made certain mistakes and assumptions from his examination of the records examined, and in particular when addressing a duplication of registration and double voting, it would have been unnecessary for this to have been explored at all if all the source records had been made available to Mr Kalsakau in the first place.
    
14. There was a public interest factor in my view that accompanied the principal thrust of the petition which was that the elections in Port Vila were subject to so many irregularities that it should not stand. As it happened, Mr Kalsakau did not succeed but in my view he may have felt he had a greater chance of succeeding with the petition in the light of the records that had been made available to him by the PEO in the course of his preparation.
    
15. Furthermore, Mr Kalsakau's petition that sought to overturn all the seats of the Port Vila Constituency highlighted deficiencies not only in electoral practice but also certain difficulties that are presented by this Act to anyone seeking to challenge an election by way of an election petition.
    
16. I consider that the justice of the matter requires that the PEO carries his own costs.
    
17. Mr Regenvanu and Mr Natapei were represented by Ms Thyna. They had to be included as parties because their election to Parliament was placed at risk because of the primary thrust of the petition challenging all the Port Vila seats. At the commencement of the hearing, and at earlier conferences, it was indicated that counsel for Mr Regenvanu, Mr Natapei and Mr Jimmy would be excused from the hearing given that Mr Sugden would effectively be carrying the response on their behalf. Ms Thyna, however, remained in Court throughout the hearing, she asked virtually no questions and effectively took little part in the proceeding. Given that no allegations were made against either Mr Regenvanu or Mr Natapei, I failed to see why Ms Thyna felt it necessary to remain in Court throughout the entire case. Ms Thyna may well have been able to explain why she felt the need to remain in Court throughout the hearing but has chosen not to attend this costs' hearing today.
    
18. The second and third respondents are award 10% of standard costs to be agreed or taxed.
    
19. In the similar position is Mr Stephens in respect of the seventh respondent Mr Jimmy. While a positive defence was raised by Mr Stephens in the seventh respondent's defence, it had no substance at all. It sought to raise the issue of whether Mr Kalsakau was or was not the Attorney General at the time that he stood for Parliament. I determined in a intra-trial ruling that this was not a matter that the Court need be concerned with.
    
20. Mr Jimmy would have been treated in much the same way as Mr Regenvanu and Mr Natapei as to costs but for a matter that Mr Stephens has mentioned to me. He states that at the commencement of the hearing, when counsel for Mr Regenvanu, Mr Natapei and Mr Jimmy were informed that the Court would favourably entertain an application by them to be excused during the course of the hearing, the Court indicated that Mr Stephens should remain because of the positive defence raised by him. I have no recollection of this and I feel sure that I would have made a note of it if I had given a direction of that nature. However, I am prepared to treat this as a misunderstanding on the part of Mr Stephens which may explain why he felt the need to remain in Court throughout. I award Mr Jimmy 50% of standard costs to be agreed or taxed. I record that Mr Stephens accepts that as being a fair outcome.
    
21. Specific complaints of corrupt electoral practice were made against Mr Wright, Mr Carcasses and Mr Crowby. The specific complaints were dismissed against Mr Carcasses and Mr Crowby as having no substance and so the Court did not even have to take account of whether, if established, they would have had an effect upon the outcome of the election. It is appropriate that Mr Carcasses and Mr Crowby receive costs from the petitioner on a standard basis to be agreed or taxed.
    
22. The fourth respondents Mr Wright, however, was found to have acted on two occasions in a way that was contrary to the provisions of the Act; specifically, by providing gifts through the purchase of kava. Furthermore, I consider that the evidence presented by Mr Wright was orchestrated and fabricated. In those circumstances, notwithstanding that the petition was dismissed in his respect as well, I make no order for costs.
    
23. That brings this matter to an end.
    

BY THE COURT