| Fiji Islands - Shandil v Public Service Commission - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 004 OF 1996
BETW/p>:
RANJAY SHANDIL
s/o Uday Bhan Shandil
Applicant
AND:
PUBLIC SERVICE COMMISSION
Respondent
Mr. S. P. Sharma for the Applicant
Mr. S. Kumar for the Respondent
DECISION
This is an application by RASHANDIL (the Applicant) for directions that pursuant to the Judgment herein of 10 June 1996 1996 the Applicant
proceed to the taxing of costs on an indemnity basis.
The Order made by me as to costs (as amended by consent and sealed on 7 April 1997) is that "the Respondent pay the costs of
this action to be taxed if not agreed with liberty to counsel for the Applicant to apply to argue the Solicitor/Client basis of taxation".
The Respondent opposes the application. I have before me written and oral submissions by both counsel and these have been given due
consideration in terms of the said Order.
Background
It is on my findings of fact in this case of 14 June 1996 (Reasons for Judgment) that will decide whether to grant costs on indemnity
basis or not. I give below, very briefly, the circumstances leading to the Order that I made.
The applicant who was a clerical officer was interdicted, and although he was charged by the Respondent, he was acquitted of the criminal
charges laid against him by the Suva Magistrate's Court. The Respondent refused to reinstate him after acquittal.
I said in my judgment that it is abundantly clear from the undisputed facts that the PSC had in breach of the relevant regulations,
namely, Regulations 21, 23, 24, 25 and 53 annulled the applicant's appointment and refused to reinstate him after his acquittal on
criminal charges without specifying any reason whatsoever" (page 6 of Judgment).
The Applicant's appointment was terminated some two years after interdiction and about 11 months after acquittal. The then learned
counsel for the Respondent conceded that the Regulations were not followed; he could not explain to Court why the Applicant was not
soon reinstated when there is a clear provision in that regard in Regulation 53. It is a matter of great concern that in his affidavit
in reply Mr. Meli Bainimarama, the Permanent Secretary for PSC, swore an affidavit in which he said that the Applicant "never
received any favourable reports from his supervising officers" when it transpired during the hearing that this statement was
untrue.
All that I have stated above are sufficient indication of malice, oppression and a blatant abuse of the Regulations.
I did hold that PSC disregarded its own Regulations and is guilty of being procedurally unfair. In fact the learned counsel at the
hearing conceded that the Applicant was unfairly and unlawfully terminated from employment.
This is how I concluded:
"I cannot leave this subject without commenting that it would have saved a waste of public funds if the officers dealing with
matters of this nature paid greater attention to the Regulations. Also, whatever legal advice the PSC gets should be such that it
is proper. Had all concerned been more vigilant and careful, matters would not have come to this pass resulting in judicial review
with the consequent loss of time, effort and money in deciding something which should have been as clear as crystal to the decision-makers."
There is no doubt that PSC was bent on terminating his employment knowingly in complete disregard of its own Regulations which are
meant to be followed. To add insult to injury, Mr. Walker, the learned counsel for the Respondent, when applying for extension of
time to appeal against part of my order, whilst disregarding some of the orders against which there are no intended appeals, said
that the Applicant "would still be interdicted" if the matter goes back to the Commission.
Plaintiff's submission
Mr. Sharma for the Applicant submits that the Public Service Commission (the "PSC") has acted in blatant disregard of its
dismissal procedures and has deliberately acted in a manner so as to make it impossible for the Applicant to be reinstated with full
benefits. It acted in total disregard of its own procedures and in disregard of the rights available to the Applicant.
In support of his arguments Mr. Sharma relies on a number of cases and Rules such as: Emi Records Limited v Ian Cameron Wallace Limited (1980) 2 All ER, Halsbury's Laws of England (Vol 37) Nth Ed. para 744, State v The Police Service Commission Ex parte Beniamino Naive (JR. 29/94 - SCOTT J - confirmed by the Fiji Court of Appeal in Appeal No. 52/95 on 19.8.96), Saville Heaton Company Limited v United Apparel (Mfg) Limitd (Action No. 410/92 - SCOTT J) Order 62 and Order 1 Rule 9(3)(a) of the High Court Rules 1988.
Respondent's submission
Mr. Kumar for the Respondent agrees that the jurisdiction to grant costs on various basis is contained in the High Court Rules.
He says that NAIVELI (supra) is distinguishable as issue of costs was actually pleaded; and as for SAVILLE (supra) it is on Appeal to Fiji Court of Appeal.
Mr. Kumar submits that where there is "malice intent, vindictiveness or continued damnification", award of costs on an indemnity
basis applies, otherwise order is made on standard basis.
Consideration of the issue
The Principles
The amount of costs which will be allowed on taxation depends upon the basis on which the taxation is made.
Costs may be taxed on either a "standard basis" or an "indemnity basis". The former allows all costs which are
reasonable in nature and amount and any doubt is resolved in favour of the paying party. The latter allows for all costs to be recovered,
except in so far as they are an unreasonable amount or have been unreasonably incurred and any doubt is resolved in favour of the
receiving party.
In an article "Do costs really follow the event?" by Jane Weakley (N.L.J. May 1996 p.710) the basis of indemnity costs is
very well summed up and is pertinent to the matter in issue before me. She said:
"Abuse of process and unmeritorious behaviour by a losing litigant has always been sanctionable by way of an indemnity costs
order inter partes. A party cannot be penalised by exercising its right: to dispute matters but in very special cases, where a party
is found to have behaved disgracefully or where such behaviour is deserving of moral condemnation, then indemnity costs may be awarded
as between the losing and winning parties."
As the Fiji Court of Appeal has said, in the HIGH COURT RULES, 1988 there is ample provision under Or 62 for the award of costs on
an indemnity basis. The Appeal Court in NAIVELI (supra) in a judgment delivered on 16 August 1996 (upholding Scott J) dealt fully with the meaning of "indemnity costs"
and its applicability and availability in certain circumstances. In so far as it is relevant it stated:
"The first question relates to the meaning of "indemnity costs" a term commonly used in the past in England to indicate
a more generous award than the usual party and party costs provided for in the English equivalent of O.62, r.25 of the Fiji High
Court Rules, the latter being defined therein as those costs "necessary or proper" for the attainment of justice or for
enforcing or defending the party's rights.
Until it was recognised in the amendment to the English Order 62 in 1986, a separate category of "Indemnity costs" was not
mentioned in either the former English rules or the present Fiji rules based on them. In EMI Records v. Wallace [1982] 2 All ER 980 Sir Robert Megarry V-C undertook a detailed review of the use of that expression and concluded that it was equivalent to an award
of "Solicitor and own client costs" in O.62, r.29 (described in its FIJI equivalent O.62, r.26 as "costs payable to
a barrister and solicitor by his own client"), but excluding paras (2) and (3) thereof. It would result in all costs being allowed
"except insofar as they are of an unreasonable amount or have been unreasonably incurred" (r.26(l)). Sir Robert's judgment is with respect persuasive, .............. an award of costs on an indemnity basis is to be understood in Fiji as an award in terms of O.62, r.26(1)." (emphasis mine)
The Court of Appeal further observed at p.6:
"...neither considerations of hardship to the successful party nor the over optimism of an unsuccessful opponent would by themselves
justify an award beyond party and party costs. But additional costs may be called for if there has been reprehensible conduct by
the party liable- see the examples discussed in Thomson v. Swan Hunter and Wigham Richardson Ltd. (1954) 2 All E.R. 859 and Bowen-Jones v. Bowen-Jones (1986) 3 All E.R. 163."
The question of award of indemnity costs has been discussed at length in E.M.I. RECORDS (supra) where at p.259 Sir Robert Megarry V.C. summarised his conclusion on orders of costs. He stated, inter alia:
"(1) Section 51 (1) of the Supreme Court Act 1981 (replacing section 50 (1) of the Judicature Act 1925) gives the court a wide
discretionary power over costs, and this has not been cut down by R.S.C, Ord. 62. r.28, so as to confine the court to making orders
only on the party and party basis or the common fund basis, and on no other basis.
(2) The Court has power to order costs to be paid on an indemnity basis.
(3) The effect of an order on an indemnity basis is, unless otherwise provided, that the rule laid down in Ord. 62, r.29(1) applies,
but not the presumptions set out in rule 29 (2) and (3). In brief, the result is that all the costs incurred will be allowed except
any which have been unreasonably incurred or are of an unreasonable amount; and in applying these exceptions the receiving party
will be given the benefit of any doubt.
(4) The court has power to order costs to be paid on the solicitor and own client basis as between litigating parties; ........"
Similarly, in Dillion and Others v Baltic Shipping Co ("The Mikhail Lermontov") (Australia, Sup. Ct of N.S.W. Ct of Appeal) 1991 2 Lloyds Rep 155 at 176 KIRBY J. stated thus on costs on indemnity basis:
"In a series of cases it has been suggested that the order of costs on a solicitor and client basis should be reserved to a case
where the conduct of a party or its representatives is so unsatisfactory as to call out for a special order. Thus, if it represents
an abuse of process of the Court the conduct may attract such an order, see e.g. Packer v. Meagher, [1984] 3 N.S.W.L.R. 486. See also Australian Guarantee Corporation Ltd. v. De Jagri [1984] Vag. 483. This is the order which this Court ultimately made in Premier Woodworking when an appellant belatedly withdrew an unmeritorious appeal."
Application of principles to the facts
I have already stated in sufficient detail the circumstances which led the applicant to seek a judicial review. I have also been critical
in my earlier judgment and decision in this matter as to the manner in which the applicant's case was handled which left a lot to
be desired. That is why, on counsel's application at the hearing I granted him liberty to apply for costs on indemnity basis for
my consideration and which he is now doing.
Right from the outset, namely, from the time of interdiction and until dismissal (which was long time afterwards) it was obvious to
the Respondent that it was acting contrary to its own Regulations. Even with this knowledge it decided to contest the judicial review
when there were no defences to it. Not only that, in order to bolster its case it produced an affidavit from a very senior officer
referred to above which turned out to be not true and if the falsity was not detected when it was it would have put the applicant
in a very dim light. It does not mean that the parties are to be inhibited from litigating an issue reasonably in contention between
them. However, as HIGGINS J said in Quirk v Bawden (111 FLR Sup. Ct. of ACT 115 at 122): "........... neither should parties be permitted to persist in an unrealistic assessment
of the chance that the issue or issues in dispute will be determined favourably to them when that view is able to be perceived as
unrealistic".
The following passage from the judgment of BELDAM L.J. in Willis v Redbridge Health Authority (1960) 1 W.L.R. 1228 CIA. at 1232 is pertinent on the misuse of the process of the court:
"First, I consider that the defendant had prima facie misused the process of the court by putting forward a defence which from
the outset it knew was unsustainable. In Afzal v. Ford Motor Co. Ltd [1994] 4 All E.R. 720, 747 I expressed the view that such conduct by a defendant could amount to a misuse of the process of the court. Secondly, I would
emphasise that the purpose of an order that one party should pay the other's costs of an Indemnity basis is not penal but compensatory
and, where one party causes another to incur legal costs by misusing the process to delay or to defer the trial and payment of sums
properly due, the court ought to ensure so far as it can that the sums eventually recovered by a plaintiff are not depleted by irrecoverable
legal costs."
This present case was one in which the Respondent had no defence and it knew that this is misuse of the process of the court which
amounted to an unreasonable behaviour on the part of the Respondent. And this is the type of situation which calls for costs on a
higher scale. The circumstances here were exceptional to enable the court to make the type of order sought. The Applicant has been
put to the expense of continuing litigation that ought reasonably to have been withdrawn by the Respondent.
The Respondent's conduct I find was reprehensible and it calls out for a special order, namely, the one that is prayed for in this
application.
The words of wisdom contained in the following passage from the judgment of ROGER C.J. Comm D in Tickell v Trifleska Pty., Ltd (1990) 25 NSWLR 353 at 354-355 are worth bearing in mind as underlying the concept of the use of cost orders to encourage compromise; and had the Respondent
given thought to the views expressed in these statements matters would not have come to a head which eventually very belatedly forced
the Respondent to concede the error:
"It is the primary aim of any judicial system to attempt to bring the parties to a point where, with fairness to themselves,
they are able to dispose of the dispute between them by compromise, it is only in the last resort that a dispute should proceed to
trial and to determination. That is for any number of reasons. It is in the interests of the community that scarce resources, such
as the court, should not be over-taxed. It is in the interests of the community and of the parties themselves that they should not
engage in the rancour which a dispute in court necessarily entails. It is in the interests of the parties themselves to save themselves
the expenditure of time and energy necessarily entailed in participation in contested court proceedings."
In the outcome, on the facts of this case, bearing in mind the authorities and the factors which ought to be considered on an application
of this nature, I find this to be an appropriate case in which I ought to make an order for costs on an indemnity basis.
Accordingly it is ordered that such costs be paid by the Respondent to the Applicant which are to be taxed on a "solicitor and
client" basis by the Chief Registrar of the High Court with costs of this Summons against the Respondent which is to be taxed
unless agreed.
D. Pathik
JUDGE
At Suva
16 May 1997
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