Telesi v Public Trustee [2012] WSCA 10 (31 May 2012)

Court of Appeal of Samoa

Telesi v Public Trustee and Tautalafua [2012] WSCA 10

Case name: Telesi v Public Trustee and Tautalafua

Citation: [2012] WSCA 10

Decision date: 31 May 2012
Parties:
FILITAA SAUAGA TELESI, sued on her behalf and on behalf of her family members residing on the estate land at Tufuiopa v THE PUBLIC TRUSTEE, pursuant to sections 38 and 44 of the Public Trust Office Act 1975 and TAULAU AUIMATAGI-TAUTALAFUA, acting for and on behalf of the heirs of AUIMATAGI ETEUATI and FITI AUIMATAGI his wife

Hearing date(s): 31 May 2012

File number(s): C.A. 27/10

Jurisdiction: Civil

Place of delivery: Mulinuu
Judge(s):
Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Galbraith

On appeal from:

Order:
Representation:
T S Toailoa for appellant
S Leung for first and second respondents

Catchwords:

Words and phrases:
Legislation cited:
Halsubury’s Laws of England (4^th Ed, reissue, 2002) Vol. 10

Cases cited:
Myers v Elman [1939] 4 All ER 484;
Harley v McDonald [2002] UKPC 40; [2002] 1 NZLR 1;

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A. 27/10

BETWEENFILITAA SAUAGA TELESI, sued on her behalf and on behalf of her family members residing on the estate land at Tufuiopa

Appellant

AND

THE PUBLIC TRUSTEE, pursuant to sections 38 and 44 of the Public Trust Office Act 1975

First Respondent

AND

TAULAU AUIMATAGI-TAUTALAFUA, acting for and on behalf of the heirs of AUIMATAGI ETEUATI and FITI AUIMATAGI his wife

Second Respondent

Coram:

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith

Counsel:

T S Toailoa for appellant

S Leung for first and second respondents

Hearing: 30 May 2012

Judgment: 31 May 2012

JUDGMENT OF THE COURT

Jurisdiction to make a wasted costs order

1. A wasted costs order is an order that a legal practitioner pay costs unnecessarily incurred by a party as a result of some deficiency in the conduct of that practitioner or his or her employee: see further Halsubury’s Laws of England (4^th Ed, reissue, 2002) Vol. 10 Costs p93, fn 4. Unfortunately it has become necessary in this case to consider whether this Court has the power to make such an order.
2. Given that no wasted costs order has previously been made in Samoa, we invited the Attorney General to assist us on the question of jurisdiction. We are grateful to counsel for the Attorney for the thoroughness of their research and the helpful way in which they presented the result. We also appreciate the input of Mr Toailoa on the question of jurisdiction, albeit received at the eleventh hour.
3. In general superior courts of record have the power to order costs against counsel and solicitors. The jurisdiction stems from the court’s jurisdiction over its own officers: Myers v Elman [1939] 4 All ER 484, 500 (HL); Harley v McDonald [2002] UKPC 40; [2002] 1 NZLR 1 (PC). The primary aim of such orders is to compensate a disadvantaged litigant put to extra cost by the practitioner’s conduct (Harley [49]). However although expressed in terms which are compensatory, its purpose is also to punish the offending practitioner for a failure to fulfil his duty to the Court (ibid).
4. This Court is a superior court of record: see Article 75(1) of the Constitution and s 41 of the Judicature Ordinance 1961. Among other things it has the jurisdiction to hear such appeals from decisions of the Supreme Court as may be provided by Act. Section 45 of the Judicature Ordinance gives the Court of Appeal the jurisdiction to hear various types of appeal.
5. Mr Toailoa pointed out that s 45 contains no specific grant of jurisdiction to make wasted costs orders. Nor does s 45 does contain any express power to make ancillary orders. However such powers do not need to be expressly conferred by statute. Jurisdiction to determine disputes of a kind that has been identified in the statute necessarily brings with it the implied power to determine all matters ancillary to the hearing and determination of those disputes.
6. Mr Toailoa also relied upon Article 10 of the Constitution. It provides that no person shall be convicted of an offence other than an offence defined by law. It also provides that no person shall be held guilty of any offence on account of any act or omission which did not constitute an offence at the time when it was committed. Mr Toailoa submitted that since a wasted costs order was punitive, it would offend against Article 10.
7. Article 10 is confined to convictions for offences. The fact that an order is punitive does not mean that it can be imposed only where an offence has been committed. Exemplary damages and civil statutory penalties are punitive. They do not involve offences. An offence is committed only where there is conduct which exposes the offender to a summary or criminal conviction. Wasted costs orders do not involve offences or convictions.
8. We are satisfied that this Court has the power to determine all questions of costs in the cases that come before it including the power to make wasted costs orders against counsel and solicitors. The power is ancillary to the substantive matters that come before this Court. It is also consistent with this Court’s role as a superior court of record.
9. Before turning to the present case we would add only that such orders should not be made lightly. In the limited circumstances in which a judge thinks that one might be necessary, the practitioner concerned must be given adequate notice of that possibility along with the opportunity to be heard in opposition to it.

Facts relevant to wasted costs in the present case

10. By late 2010 Mr Toailoa’s firm was acting for the appellant in this case. The file was initially handled by Ms Toailoa, an employee who also happened to be Mr Toailoa’s niece.
11. In the litigation the appellant needed to establish the date on which the deceased had died. In November 2010 two members of the appellant’s family visited a Pastor who had access to relevant church records. The Pastor provided them with a photocopy of the record required. This evidence was conveyed to Ms Toailoa. She left a note about it along with a copy of the required record and its source on the office file. This must have occurred on or before February 2011 because she left Mr Toailoa’s employ in that month.
12. The appeal was due to be heard in the week of 13 May 2011. On 1 May 2011 this Court issued a minute stating the matters which appellant’s counsel had not attended to and which would need attention in time for the hearing of the appeal. This included the need for Mr Toailoa to file and serve written submissions on a specified date before the hearing.
13. When the case was called on 13 May 2011 Mr Toailoa appeared. He told the Court that the case could not proceed because a transcript of the evidence had not been provided to him by the Court. This had prevented him from completing and filing his submissions. The Court records indicate that on 21 April 2011 a copy of the transcript was sent by email from a Court Official, Melissa Takazawa, to Mr Toailoa. Mr Toailoa told the Court that he had not received the transcript. He made no reference to fresh evidence. An adjournment was granted to the next Court of Appeal session later in the year. A new timetable for compliance by the appellant was directed. This now required him to file and serve his submissions by 3 June 2011.
14. Mr Toailoa says that he did eventually receive the transcript on 11 August 2011. The appeal was due to be heard on 24 August. For the first time Mr Toailoa looked through the file which Ms Toailoa had left in February. Finding the record obtained from the Pastor, he realised that this evidence and its source would need to be placed before the Court of Appeal as fresh evidence. At his request a member of the appellant’s family made an urgent visit to the Pastor two days before the fixture. The Pastor agreed to provide an affidavit. The family member who dealt with the Pastor swore another affidavit. These were sworn, filed and served on the following day, 23 August, along with an associated application to adduce fresh evidence.
15. The case was called before this Court on 24 August 2011. This time there were two obstacles to a hearing. One was that despite his acknowledged receipt of the transcript on 11 August 2011, Mr Toailoa had not yet filed and served his submissions. The other was that his service of the fresh evidence no earlier than the day before the hearing left the respondent with no time to respond. For those two reasons the appeal had to be adjourned again to the next session of the Court of Appeal.
16. Costs on the adjournment were awarded to the respondent in the sum of $2,500. In the first instance this was a conventional party and party award. However in adjourning the case for the second time this Court warned Mr Toailoa that it was considering whether all or part of the $2,500 should be paid by him personally. He was directed to file an affidavit setting out the facts and reasons for non-compliance with previous directions and also the unheralded application to adduce fresh evidence.
17. Mr Toailoa eventually filed his submissions on 18 August 2011. In a subsequent affidavit of September 2011 he accepted no responsibility for any of the delay. He said that he had been unable to prepare his submissions until he received the transcript from the Court Registry. He admitted that he had received the transcript at least by 11 August 2011, some 13 days before the case was called.
18. In his affidavit Mr Toailoa ignored the direction to give facts and reasons for the unheralded application to adduce fresh evidence. It was not until 30 May 2012, in response to questioning from this bench, that he gave an explanation from the bar. He said that he had not opened the office file on the matter until August 2011. By then it was too late to give timely notice of the fresh evidence to the respondent and this Court.

Is a wasted costs order appropriate in this case?

19. The facts largely speak for themselves. There is no satisfactory explanation for the fact that Mr Toailoa did not file at least provisional submissions at a much earlier point. For present purposes we will put to one side the email sending him the transcript on 21 April. Mr Toailoa has had no opportunity to respond to that evidence. However even if one accepts that he did not receive the transcript until later, there was nothing to stop him filing at least provisional submissions based on Ms Toailoa’s recollection of the hearing. Certainly submissions could have been filed within days of his receipt of the transcript which he says he received on 11 August 2011.
20. Failure to follow up the fresh evidence was an unrelated cause of delay. If Mr Toailoa had made a point of discussing the case with Ms Toailoa when she left in February 2011, or read the file as soon as he took personal responsibility for it, he would have learned of the fresh evidence. He could then have proceeded immediately to notify the respondent and Court in a timely fashion. Further, as the principal in the firm it was always Mr Toailoa’s responsibility to ensure that proper systems were in place to secure adequate representation for the client and the discharge of duties to the Court and other parties.
21. Because Mr Toailoa did not do those things the respondent was put to the trouble and cost of preparing for two hearings only to have both adjourned without prior warning.
22. We see no reason why the burden of meeting the respondents’ costs of $2,500 should fall entirely on the appellant. Mr Toailoa personally is directed to pay $1,000 towards the costs paid or payable to the respondent. He is required to produce to the Registrar within one month documentary evidence to show that he has personally contributed that sum.
    

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Honourable Justice Baragwanath

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Honourable Justice Fisher

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Honourable Justice Galbraith