Afele v Public Trustee [2010] WSSC 157 (1 November 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

MISC 1311/09

BETWEEN:

BEATRICE AFELE of Palisi, Business Woman and FLORY SHIRLEY ABIGAIEL LAM of Singapore, Education Consultant
Applicants

AND:

THE PUBLIC TRUSTEE a Corporation sole established pursuant to the Public Trust Office Act 1975 as the Administrator of the Estate of David Stout Parker, Deceased
Respondent

Presiding Judge: Justice Slicer
Counsel: R Drake for the Applicants
A Roma for the Respondent

Hearing: 13 May 2010, 11 June 2010
Judgment: 1 November 2010

JUDGMENT (NO.2) OF SLICER J

1. The applicants succeeded in part in their application to have the Public Trustee transfer their interest in land at Motootua to them as executrix and beneficiary. The court required the Public Trustee to sign the counterpart of a conveyance previously executed and declared that Flory Abigail Lam was entitled to the proceeds or benefit of a 11/12th share in the property. Her application for the transfer or benefit of the remaining one-twelfth share was dismissed in a judgment delivered on 11 June 2010.
   
2. The applicants are entitled to a significant portion of costs on a party/party basis. The court did not accept that they were entitled to indemnity costs as claimed. The Public Trustee was required to protect the estate and had acted in accordance with general policy introduced after the initial execution of the document. Failure to register the conveyance soon after its completion was not the fault of the Public Trustee.
   
3. The complicating factor in the assessment is that there was a concurrent hearing of an application by the applicants to remove a caveat lodged by an executor of the estate of Dan Parker which involved the same land or property of the estate of David Stout Parker as shown in a judgment delivered on 11 June, the same day as the previous judgment in this case. In that application the applicants were unsuccessful. The court accepts the assurance of counsel that there was no 'double accounting'. There was a costs order against them in these proceedings in favour of a different party.
   
4. The solicitors submitted an original memorandum of costs in the sum of $43,871. The court pointed out some errors in the claim and one, amended, was resubmitted for an amount of $39,851.
   
5. The scale of costs has not been updated since the Supreme Court (Fees and Costs) Rules 1971. However Rule 5 states:
   

"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 costs 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 in 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 of costs to be paid by any party as it thinks fit."

6. In Keil v Minister of Natural Resource and Environment [2004] WSSC 32, Carruthers J held that Rule 5 afforded the court a wide discretion permitting it to award costs outside the scale on the basis of a 'reasonable contribution towards the costs reasonably and properly incurred by the successful party' (Morten v Douglas Home Limited (2) [1984] 2 NZLR 625). The outcome of that approach was that the learned Judge awarded two-thirds of the costs actually incurred.
   
7. This court has followed that approach for some 25 years. The demands of modern practice and economics have altered but the court has been required to make a case by case an 'approximate' or 'intuitive' assessment of the costs on a case by case basis. There are weaknesses in that intuitive approach. An inefficient or junior counsel might take longer in preparation and research. A percentage figure of what is actually charged might reward one counsel over another equally experienced and competent on the same matter. A percentage figure on the sum total of a bill would penalise a firm of solicitors if disbursements such as photocopying or fixed costs are likewise reduced by one third.
   
8. A popular and highly experienced counsel might well properly command a higher fee than another from clients but a percentage based reductions could still be higher than the case is 'worth' and the operation of the system unfair to an opposing and losing party ordered to pay the costs of the other.
   
9. Samoa has neither the resources nor the infrastructure of the Australian and New Zealand models which provided for detailed or itemised bills of costs to be taxed by a highly experienced taxing officer. The profession may have some grounds for believing that this court has not provided sufficient guidance or assistance in developing and monitoring a more certain and uniform method. In fairness, judicial officers do not have sufficient time to act as taxing masters. We, the profession and judicial officers each do the best we can.
   
10. Here I will use differing methods to see whether they produce comparable results. I have attempted to do so in past cases (O.F. Nelson Properties v Sia'aga [2010] WSSC 54 (11 June 2010); Seabee Ah Yeung & Anor v Moe Jay To, unrep. 18 June 2010) and acknowledge their deficiencies.
    
11. This matter was complex and required the attention of senior counsel who could command from clients an hourly rate of $500. That presumably is what the 'market' will pay in the same way as Australian, New Zealand and U.K. 'silks' operate. The firm operates on a general 'time costing' method, again, a modern practice.
    
12. The file had previously been conducted by another firm so some time was required for counsel to become familiar with the matter.
    
13. The court was told that it is common practice in Samoa for counsel to count 8 hours as the standard allowance for the hearing day.
    
14. I will regard the first method as an equivalent to an indemnity costs bill, make the appropriate deductions and apply the two-thirds method and compare it with a different method.
    
15. Method A.
    

(1) Receiving and reviewing file $ 650

No deductions

(2) Drafting, reviewing and finalising

Notice of Motion and affidavits $6,600

13 hours at $500, deduction $100

$6,500

(3) Affidavit of Service $ 110

Standard document/deduction $ 55

$ 55

(4) Receiving and considering respondent's

Notice of Opposition $ 50

No deductions NIL

(5) Supplementary affidavit $ 88

No deductions NIL

(6) Research and preparation $5,412

11 hours, no deductions NIL

(7) Preparation of witnesses 3 hours at $500 $1,890

Deduction $ 390

$1,500

(8) Hearing – 1 Day 8 hours at $500 $4,400

Deduction $ 400

$4,000

(9) Receiving respondent's submissions

and preparing response $ 820

No deductions NIL

(10) 3 Callovers $ 400

Deduction $ 100

$ 300

Total $19,485

16. Taxed at two-thirds of $19,485 costs would be allowed at $13,056.
    
17. I would not apply the two-thirds rule to disbursements since that would be unfair to the party.
    

Add disbursements $ 1,220
Total professional costs and disbursements $14,726

18. Differing rates are charged by the Attorney General in its recovery for costs namely;
    
    1. Attorney General $350 per hour
    2. Assistant Attorney General/Parliamentary Counsel $250 per hour
    3. Legal Consultants/Principal $200 per hour
    4. Senior State Solicitor $175 per hour
    5. State Solicitor $150 per hour
       
19. Assuming a rate of $350 per hour with no one-third deduction and making the same deductions, the same bill would be assessed as:
    

(1) Receiving and reviewing file $ 650
No deductions

(2) Drafting, reviewing and finalising
Notice of Motion and affidavits
13 hours at $350, deduction $4,500

(3) Affidavit of Service $ 110
Standard document deduction $ 55
$ 55

(4) Receiving and considering respondent's
Notice of Opposition $ 50
No deductions NIL

(5) Supplementary affidavit $ 88
No deductions NIL

(6) Research and preparation $3,850
11 hours, no deductions NIL

(7) Preparation of witnesses 3 hours at $350 $1,050

(8) Hearing – 1 Day 8 hours at $350 $2,800

(9) Receiving respondent's submissions
and preparing response $ 820
No deductions NIL

(10) 3 Callovers $ 300

$14,213
Add disbursements $ 1,220

Total $15,433

20. The second method is fairer if junior counsel are used for some matters such as callovers, portions of the preparation, witnesses and a lesser hourly rate charged. Another advantage of the second method is that it can be readily adjusted to allow differing rates provided for by the Attorney General.
    
21. It is interesting that the two methods produce an approximately similar amount.
    
22. A problem remains of the time claimed for components (2) and (6). Disbursements should be allowed at 100%.
    
23. In this case the applicants were not wholly successful. The Public Trustee defended a one-twelfth share of the estate on special grounds from the main issue.
    
24. The bill will be taxed as drawn by the applicants at $13,056 from which a notional sum of $500 will be deducted.
    
25. The professional costs and
    

Disbursements $13,056

Less allowance $ 500

$12,556

Add disbursements $ 1,200

$13,756

26. There is a separate matter for concern. In a recent case heard by the Court of Appeal, involving an appeal and cross appeal the costs of providing copies of judgments, statutes and extracts (x5) for one party to the appeal amounted to over $3,000, almost one half of the professional costs and disbursements. As a member of that court, I appreciated the assistance of counsel. But not all of the material, doubtless required by the court, was unnecessary or read only in part. The cost will become unsustainable for the parties to appeals. The issue requires consideration by both the judiciary and the profession.
    
27. There is a second issue raised by the bill concerns witness expenses and the applicants' own work in obtaining documentation and material for trial.
    
28. The claim relates to the applicant Shirley Abigail Lam, a Samoan who works in Singapore. The claim as formulated is:
    

Air fares May 2008 NZD$ 571

June 2008 SGD$2,097

Nov/Dec 2008 NZD$ 817

Car rental in New Zealand Nov/Dec 2008 NZD$ 624

Accommodation Nov 2008 NZD$ 585

Dec 2008 NZD$ 328

May 2010

Air fares SGD$932 at .53 SAT$1,758

AUD$ 658 at .44 SAT$1,495

Car rental in Australia AUD $147 at .44 SAT$ 334

Accommodation AUD$ 69 at .44 SAT$ 156

Total SAT$3,743

29. The claim for attendance and accommodation in transit to attend the hearing will be allowed in the sum of SAT$3,743.
    
30. Abigail Lam had attempted to obtain her claim through the consent of her family. The attempts and details are set out in the primary judgment. She travelled to New Zealand to obtain their consents to the signing of the counterpart. Most signed the documentation but later many withdrew their consent. She had undertaken the task at the behest of the Public Trustee. I am not prepared to order the Public Trustee to pay these costs from its own funds. Payments would come, in part, from the estate to which Abigail was entitled.
    
31. Neither counsel nor the court has been able to find authority permitting the award of costs to research undertaken by a party rather than the employment of a specialist or expert witness. This authority is not to be one conclusive or precluding future such claims. But here they will be disallowed as remaining the responsibility of the successful party. No award will be made for the 2008 claim.
    
32. The applicants' costs, expenses and disbursements will be allowed in the sum of $17,499 to be paid by the respondent to the applicants.
    

(JUSTICE SLICER)