Vaai v Speaker of the Legislative Assembly [2021] WSSC 80 (12 January 2021)

IN THE SUPREME COURT OF SAMOA
Vaai & Anor v Speaker of the Legislative Assembly & Anor [2021] WSSC 80 (12 January 2021)

Case name:	Vaai & Anor v Speaker of the Legislative Assembly & Anor
Citation:	[2021] WSSC 80
Decision date:	12 January 2021
Parties:	OLO FITI VAAI (First Applicant) and FAUMUINA ASI PAULI WAYNE FONG (Second Applicant) v SPEAKER OF THE LEGISLATIVE ASSEMBLY (First Respondent) and ELECTORAL COMMISSIONER (Second Respondent)
Hearing date(s):
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Acting Chief Justice Niavā Mata Keli Tuatagaloa Justice Tologata Tafaoimalo L. Tuala-Warren Justice Leiataualesa D. Clarke
On appeal from:
Order:	We award the Second Respondent costs of $1000 (including disbursements) to be paid by both Applicants.
Representation:	M. Lui for First Applicant Mauga P. Chang for Second Applicant Luamanuvao K. Sapolu & Leota T. Leavai for First Respondent Fuimaono S. Ainuu and T. Peniamina Amicus Curiae
Catchwords:	Application for costs
Words and phrases:
Legislation cited:	Supreme Court (Fees and Costs) Rules 1971, r. 5.
Cases cited:	Aiafi v Speaker of the Legislative Assembly [2009] WSSC 65; O N & Sons Construction v Pacific Forum Line (unreported, 30 November 2015); Polynesian Limited v Samoa Observer [1999] WSSC 35.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

of the Constitution of the Independent State of Samoa and of the Declaratory Judgments Act 1988.

A N D:

IN THE MATTER:

of the Electoral Act 2019 and Standing Orders of the Parliament of Samoa.

BETWEEN:

OLO FITI AFOA VAAI

First Applicant

FAUMUINA ASI PAULI WAYNE FONG

Second Applicant

A N D:

SPEAKER OF THE LEGISLATIVE ASSEMBLY

First Respondent

A N D:

ELECTORAL COMMISSIONER

Second Respondent

Coram: Acting Chief Justice Niavā M. Tuatagaloa
Justice Tologata Tafaoimalo L. Tuala-Warren
Justice Leiataualesa D. Clarke

Counsel: M. Lui for First Applicant

Mauga P. Chang for Second Applicant
Luamanuvao K. Sapolu & Leota T. Leavai for First Respondent

Fuimaono S. Ainuu and T. Peniamina Amicus Curiae

Date: 12 January 2021

DECISION ON COSTS

Proceedings

1. This proceeding is in relation to the application for costs of the Second Respondent after having been struck out from the proceedings by consent.

Background

2. The Second Respondent was named in the Motion filed by the Applicants dated 20 November 2020 and was first mentioned on Monday, 30 November 2020 and then at callovers on Thursday, 3 December 2020.
3. At callovers, Counsels for the Second Respondent advised that they will be filing a Motion to Strike Out in response to the Applicants’ Motion.
4. On Friday, 4 December the Motion to Strike Out was filed with the Affidavit of the Second Respondent filed on 7 December 2020. As mentioned earlier, the Applicants and the First Respondent had no objection to the Motion and the Second Respondent was struck out.
5. However, the Court invited the Attorney General (or her office) to remain as amicus curiae in relation to any Constitutional issues that may arise. Counsel for the Applicant had no objection with the First Respondent saying that it is appropriate for the Attorney General’s office to remain as per the invitation by the Court.
6. The Second Respondent on 11 December 2020 filed a Memorandum as to Costs to the amount of $3,008.20. However, four days later the Second Respondent filed a second Memorandum as to Costs increasing their costs to $9,001.70.

Application for Costs

7. The Second Respondent claims (a) full costs on indemnity basis or; (b) 75% of the total costs or (c) such other Order as the Court deems just upon the following grounds:
   • (a) The Motion by the Applicants was clear that the decision they sought to challenge was that of the First Respondent to vacate the respective seats of the Applicants;
   • (b) The Second Respondent did not make the “decision” nor take part in the said decision challenged by the Applicants;
   • (c) The Applicants did not expressly or directly seek any orders or remedies against the Second Respondent in their Motion;
   • (d) The Applicants did not expressly state why the Second Respondent was made a party to the proceedings;
   • (e) The naming of the Electoral Commissioner (“EC”) was unnecessary given that he was not the decision maker and that the Applicants were not seeking any orders or remedies against him;
   • (f) The issue of naming the Electoral Commissioner as a Second Respondent to a Motion for Declaratory Orders by the Applicants has been determined in the case law of Aiafi v Speaker of the Legislative Assembly [2009] WSSC 65 (8 July 2009). The facts of this case is similar to the proceedings by the Applicants;
   • (g) The Applicants were aware at callovers on Thursday, 3 December 2020 that the Second Respondent was filing a strike out and therefore should have re-considered its position in light of the same; and
   • (h) Ms. Lui for the Applicants could have simply reply to the email of 7 December 2020 regarding their position to concede and the Second Respondent could not have incurred so much time and resources to prepare for this matter.
8. The Second Respondent provided an itemized account setting out in some detail the work undertaken in these proceedings.

Response of First and Second Applicants

9. The First and Second Applicants oppose the application for costs by the Second Respondent and say that costs should not be awarded for the following reasons:
   • (a) The Second Respondent was put on notice about the concession to their strike out;
   • (b) The Second Respondent was then given the formal concession to their strike out when they filed at 2pm on Monday, 7 December 2020;
   • (c) The Second Respondent confirmed that the affidavit of Electoral Commissioner filed was done on their own motion to “assist” the Court;
   • (d) The affidavit was used by First Respondent in support of his case;
   • (e) The Office of the Attorney General remained as part of the case on the request of the Court.

The Law

10. The approach to costs is well settled. That is, costs tend to follow the result, and the successful party is entitled to a reasonable contribution towards costs incurred in the course of litigation.
11. A scale of costs is provided for under Rule 5 Supreme Court (Fees and Costs) Rules 1971 which also provide the Court with the discretion whether to adhere to the scale or award what it thinks to be reasonable costs. This Court has, on a number of occasions not followed the scale for the reason that the scale of costs under the Rules is outdated as the amounts (in the scale) reflect costs fixed over 40 years ago.
12. We take the approach of Aitken J in O N & Sons Construction v Pacific Forum Line (unreported, 30 November 2015) as follows:
    • “In determining the amount, the Court will first determine what the actual and reasonable costs of the successful party should be, and from that amount, what a reasonable contribution would be. Such contribution is usually fixed at 2/3rds of the reasonable cost identified.”
13. The Court can also from time to time award indemnity costs. That is, make an award that will, in effect, indemnify the successful party for the full costs of the litigation. Such an order is rare but may follow where the circumstances of a case require some special or unusual feature; where there has been flagrant misconduct by a party or where a party has acted unreasonably - by pursuing a wholly unmeritorious and hopeless claim or defence or pursuing a matter for an ulterior motive.^[1]

Discussion

14. Although, this matter did not proceed to the hearing of the application to strike out, we accept that there would have been some work involved or undertaken by Counsel for the Second Respondent when they received the Motion by the Applicants. Such work in our view would or should not have taken much time in terms of perusal and consideration of the Motion as the Motion was only one (1) page. Preparation of the Motion to Strike Out was also very simple and specific.
15. The Second Respondent indicated in the callovers of 3 December 2020 that they will be filing an application to strike out, at that point of time the grounds of such application was not yet known as the application was yet to be filed. The application was then filed the following day on Friday, 4 December 2020. The correspondence between the Second Respondent and counsel for the Applicants (Annexure “A”) is dated the day before the hearing of this matter, 7 December 2020. It seems from the correspondence that there was ‘missed’ communication between the Counsels^[2] and then there was no response by counsel for the Applicants to that email but instead they filed a response consenting to the Second Respondent’s application to be struck out from the proceedings on the same date.
16. The Motion by the First and Second Applicants was not legally or factually complex. There is not much difference with the grounds the Second Respondent based the costs they originally claimed of $3,008.20 with the much increased cost they now claim. We have also noticed that the hours spent by Counsel(s) involved have been inflated in the later costs for the same work they claimed in the original application for costs. The difference is the later costs now include disbursements.
17. The affidavit of the Electoral Commissioner filed on 7 December in the words of Counsel, Mr. Ainuu was to “assist” the Court. If that is the case, we agree with the Applicants that the affidavit was filed of their own motion. That is, it was not filed to assist in their application to strike out but out of their sense of duty to assist the Court; which affidavit was never requested or ordered by the Court.
18. It is the letter by the Second Respondent to the Clerk of the House that set in motion the vacation of the parliamentary seats of the First and Second Applicants. Although, the decision to vacate was that of the Speaker of the House (First Respondent) that decision was made based on the letter by or from the Electoral Commissioner (Second Respondent) who is the administrator of the Electoral Act; which legislation the Speaker also based its decision on in vacating the parliament seats of the First and Second Applicants.
19. There has been no flagrant misconduct by the Applicants or that they have acted unreasonably - by pursuing a wholly unmeritorious and hopeless claim nor do we find that the Applicants have pursued the matter for an ulterior motive other than for the Court to declare that the vacation of their seats in Parliament was unlawful.
20. We do not accept the inflated costs later filed by the Second Respondent. We also do not find it appropriate to award indemnity costs nor 75% of the total costs.
21. We find that $750.00 are reasonable costs incurred by the Second Respondent. A reasonable contribution is fixed at 2/3 of the reasonable cost identified. We will also allow $250 for disbursements.

Result

22. We award the Second Respondent costs of $1000 (including disbursements) to be paid by both Applicants.

ACTING CHIEF JUSTICE TUATAGALOA
JUSTICE TUALA-WARREN
JUSTICE CLARKE

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^[1] Polynesian Limited v Samoa Observer [1999] WSSC 35
^[2] Annexure “A” - first sentence of email.