Keil v Minister of Natural Resources and Environment [2004] WSSC 32 (1 January 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

WILLIAM KEIL
of Vaiganga, Businessman
Plaintiff

AND

THE MINISTER OF NATURAL RESOURCES AND ENVIRONMENT
First Defendant

AND

KYLE KEIL,
Businessman
AND
ADELE KEIL,
his wife both of Vaiganga
Second Defendants

Appearances: Memoranda from:
Mr S Leungwai for Plaintiff
The Attorney General by her counsel
Mr A Lawson for First Defendant

Judgment Date:

JUDGMENT ON COSTS

Introduction

[1] The Plaintiff and the First Defendant have been unable to agree on quantum of costs awarded on the judgment of the Court of 21 October 2003 which dismissed the plaintiff's application for judicial review. Costs have been agreed between the Plaintiff and the Second Defendant at $8000.00 being approximately 60% of solicitor/client costs.

[2] In awarding costs to the defendants, the Court reserved the matter of quantum to be either agreed or dealt with by the Court on the filing of memoranda. Memoranda have been filed by both the Plaintiff and First Defendant.

[3] Rule 5 of the Supreme Court (Fees and Costs) Rules 1971 governs the issue:

"5. Costs -

(1) Costs when allowed shall be regulated and paid according to the scale of costs set out in the Second Schedule hereto, but the Court may, in giving a judgment or making an order, fix a sum or sums as the cost of the action or of the application, as the case may be in full of all costs, notwithstanding that such sum is greater or smaller than the sum set out in the said scale.

(2) In case of there being any doubt as to what costs should be allowed pursuant to the said scale on any particular matter arising in the course of any proceedings, the Court, in its discretion having regard to the said scale, shall fix such sum for costs to be paid by any party as it thinks fit."

[4] In Tofilau Eti Alesana v Samoa Observer Company Limited and Savea Sano Malifa (CP 42-97, 16 September 1998) and Asiata Alaeula Vaalepa Saleimoa Va'ai v Faaitami Pierre Meredith [1998] WSSC (Undated), this Court adopted the principles set out in Morton v Douglas Homes Limited (2) [1984] 2 NZLR 620, 625 that the purpose of the Rules and the scale of costs is "to impose on the unsuccessful party an obligation to make a reasonable contribution towards the costs reasonably and properly incurred by the successful party."

[5] The memoranda of counsel for the First Defendant notes a total of costs and disbursements on a solicitor/client basis of $5950.00. It is that amount that the First Defendant seeks. It is not clear from Counsel's memorandum whether the bill of costs annexed is an actual bill from the Office of the Attorney General or a notional one.

[6] An award of costs in favour of the First Defendant based on the scale would in my view be inadequate. The schedule has not been amended since 1971 to properly reflect a reasonable contribution to costs in 21^st century litigation.

[7] It is not appropriate in this case to award the First Defendant costs calculated on a full solicitor/client basis even if the charge out rate is less than those rates charged by commercial litigators. The principle is that any award should reflect a reasonable contribution towards the costs reasonably and properly incurred. The fact that Counsel for the First Defendant happens to charge actual costs at rates less than other counsel is irrelevant in this instance. The information provided to the Court is that actual costs (including disbursements) amount to $5950.00.

[8] In the circumstances and bearing in mind that the Plaintiff was wholly unsuccessful, a reasonable contribution towards the First Defendant's costs is the sum of $3,750.00. This equates to two thirds of actual costs. Additionally there is an award of $300.00 for disbursements.

JUSTICE D J CARRUTHERS