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Morarji v Singh [2002] FJHC 249; HBC0511j.1996s (12 July 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0509 OF 1996

Between:

JAYANTI MORARJI & FOUR OTHERS
Petitioner

and

PREM SINGH & FOUR OTHERS
1ST Five Respondents

and

THE RETURNING OFFICER, NADI
6TH Respondent

and

THE SUPERVISOR OF ELECTIONS
7TH Respondent

and

THE ATTORNEY-GENERAL OFFICER
8TH Respondent

Civil Action No. 510 of 1996

Between:

AMJAD ALI
f/n Subhan Ali
and FOUR OTHERS
Petitioners

and

SHRI VENKANNA CHETTY
s/o Siddaya Chetty and FOUR OTHERS
First Five Respondents

and

THE RETURNING OFFICER NADI TOWN COUNCIL ELECTIONS
Sixth Respondent

and

THE SUPERVISOR OF ELECTIONS
Seventh Respondent

and

THE ATTORNEY GENERAL OF FIJI
Eighth Respondent

Civil Action No. 511 of 1996

Between:

PRADHUMAN RANIGA AND FOUR OTHERS
Petitioners

and

DANESH RANIGA AND FOUR OTHERS
First Five Respondents

and

THE RETURNING OFFICER, NADI TOWN
COUNCIL ELECTIONS
Sixth Respondents

and

THE SUPERVISOR OF ELECTIONS
Seventh Respondents

and

THE ATTORNEY GENERAL OF FIJI
Eighth Respondents

Mr. S. Nandan for 1st to 5th Respondents
No appearance for Petitioners

JUDGMENT

This is an application by Summons dated 12 October 2001 on behalf of the first five respondents (hereafter referred to as the Aapplicants@) for an Order that the decision of the Taxing Officer (the Acting Deputy Registrar) given on 20 September 2001 be reviewed upon the grounds stated in the said Summons pursuant to Order 62 Rule 35 of the High Court (Amendment) Rules 1998 (Legal Notice No. 72 of 1998).

Background facts

Pursuant to Byrne J=s decision delivered on 10 October 1997 the said respondents applied for taxation of costs on 30 March 2001.

There are three identical cases, namely, Civil Action Nos. 509, 510 and 511 of 1996 wherein the said respondents= solicitors were and are Messrs. Pillai, Naidu & Associates who appeared as counsel on taxation of costs application in these cases. Mr. S. Matawalu who was for the Petitioners made no appearance either on taxation nor on the present application before me.

The Taxing Officer gave a decision on taxation on 16 August 2001 when the taxation of Bill of Costs was dismissed on the ground of >breach of the High Court Rules=. Whereupon by motion dated 29 August 2001 the said respondents applied to the taxing officer for a review of the said decision. This application was made pursuant to Order 62 Rule 29 of the High Court (Amendment) Rules 1998. On 20 September 2001 the Taxing Officer dismissed the Review application for the reasons given by him in his >Review of Taxation= Decision.

Grounds for review

The application for review is made on the grounds that the Taxing Officer erred in finding that:

(i) the applicant=s bill of costs had breached the High Court Rules;

(ii) the applicants had applied for taxation when the limitation period for the application had expired; and that

(iii) the taxation of the applicant=s bill of costs began on the pronouncement or deliverance of Byrne J=s decision on 10 October 1997 in Civil Action No. 511 of 1996.

The applicants= further grounds are:

(iv) that the limitation period for the taxation of the applicants= bill of costs began on 25 April 2001 when Byrne J=s decision was entered and signed, sealed and perfected pursuant to Order 62 Rule 29(1)(d) of the High Court Rules.

(v) that the applicant had not breached the High Court Rules.

(vi) that the Taxing Officer erred in considering Order 42 Rule 4 of the High Court Rules when determining whether the applicants had breached Order 62, Rule 29(1)(d) of the High Court Rules as the two Rules deal with completely separate issues. Furthermore Order 42 Rule 4 applies only to ORDERS not JUDGMENT.

(vii) that the Taxing Officer erred in not taking into consideration Order 42 Rule(5) sub-paragraph (2)(b) of the High Court Rules in conjunction with the rest of the Rule 5. If he had done so, the Taxing Officer would have realised that this rule applied only to acts listed in order 42 Rule (5), paragraph (3) and the judgment of Justice J Byrne does not fall within the ambit of this list. Furthermore Order 42 Rule 5 applies only to ORDERS not JUDGMENTS.

Applicants= submission

The learned counsel for the applicants maintains that when the taxation of Bill of Costs was lodged on 25 April 2001 the respondents were well within time in making the application. In this case they relied on Order 62 Rule 29(1)(a) and (d) of the High Court (Amendment) Rules 1998 when the application for taxing of costs was made. They argue that proceedings under said Order 62 Rule 29(1)(a) and (d) must begin Awithin three months after the judgment, direction, order, award, or other determination was entered, signed or otherwise perfected......@. Accordingly, he says the High Court=s judgment in the substantive matter was sealed on 25 April 2001.

The learned counsel for the applicants submits that having perfected the decision on 25 April 2001, the >three months= begins from that date and hence he was within time to apply for taxation.

He says that Order 42 Rule 5 of the High Court Rules 1988 does not apply to this case as it refers to >orders= and not >judgments= and that there is a distinction between >judgment= and >order= (Ex p. Chinery [1884] UKLawRpKQB 27; 1884 12 QBD 342).

Determination of the issue

The Court only has the submissions of the said respondents but none from the other parties to the actions despite service of Summons on them. Be that as it may, I shall consider the arguments put forward by the learned counsel for the applicants.

This is an application for review of the decision of the taxing master on a review under Order 62 rule 35(1) which provides:

AAny person who is dissatisfied with the decision of a taxing officer on a review under rule 33 may apply to a judge for an order to review that decision either in whole or in part, provided that one of the parties to the taxation proceedings has requested that Officer to state the reasons for his decision in accordance with rule 34(4)@.

It was pursuant to the judgment herein of Byrne J on 10 October 1997, that application was made for taxation of costs. The Order reads as follows:

AUPON HEARING submissions from Mr. S. Matawalu of Counsel for the Petitioners and Mr. D.S. Naidu of Counsel for the first five Respondents and Mr. S. Banuve of Counsel for the sixth and eight Respondents, and Mr. I.V. Tuberi and Mr. J. Apted of Counsel for seventh Respondent IT IS THIS DAY ADJUDGED that all Petitions herein should be dismissed with costs to the Respondents, to be awarded under the Regulations@.

The Taxing Officer who is the Acting Deputy Registrar (Legal) of the High Court gave a Ruling on 16 August 2001 to the effect that since the proceedings on taxation were not begun within 3 months after the judgment in accordance with Order 62 rule 29(1)(d) he dismissed the taxation of costs giving the applicants 14 days to apply for review of his Ruling.

The Review of Taxation was dismissed by the Taxing Officer for the reasons given by him which is to the effect that the applicants failed to comply with the provisions of Or. 62 r.29. The Taxing Officer came to the following conclusion (in his own words):

• The taxation proceeding began on 30/3/2001 but the Order to which the party relied on to qualify them for the 3 months limitation period was issued on 25/04/2001; 26 days later.
  
• This is a total twist of the Legal System a clear breach of the rules;
  
• If the applicants were relying on 25/04/2001, the date that the Order was sealed, to be the commencement date for the 3 months limitation period, then, the application for taxation should have begun after that date and not before as was in this case.
  
• The interpretation of the Rules is very important.
  

He further stated that under Order 42 rule 4 >the date from which any judgment or order should take effect= is 10 October 1997 when Byrne J gave his judgment and which judgment was final and >does not need to be drawn up as the applicants have done on 25/04/01.=

The Procedure on Taxation is set out in Order 62 rule 29 which in so far as it is relevant provides:

29. - (1) Subject to paragraph (2), where a party is entitled to recover taxed costs or to require any costs to be taxed by a taxing officer by virtue of -

(a) a judgment direction or order given or made in proceedings in the Court; or

(b) rule 5(3), (4) or (5); or

(c) an award made on an arbitration under any Act pursuant to an arbitration agreement or

(d) an order, award or other determination of a tribunal or other body constituted by or under any Act, he must begin proceedings for the taxation of those costs either within three months after the judgment, direction, order, award or other determination was entered, signed or otherwise perfected or, in cases to which sub-paragraph (b) applies, within three months after service of the notice given to him under Order 21, rule 2 or Order 22, rule 3. (emphasis added)

This was a final judgment of the Court with an award of costs (r29(1)(a)). Costs form part of the judgment.

The decision in this Review is dependent upon the interpretation of the words of Order 29 Rule 1(d) where it states:

>he must begin proceedings for the taxation of these costs either within three months after the judgment, direction, order, award or other determination was entered, signed or otherwise perfected or, .....=

I have considered the arguments put forward by the learned counsel for the applicants and I agree with him entirely on the major issue in this case.

At the outset I must set the facts right. The Taxing Officer proceeded on the basis that the Order on Byrne J=s judgment of 10 October 1997 was not filed. On finding this Order (sealed on 28 October 1997) on the file I drew his attention to this and he stated that he neither saw it in the file nor was his attention drawn to this fact by counsel. However, this Order was filed by the Attorney-General of Fiji (the eighth respondent). For what reason he filed the Order, it is not clear as no steps appear to have been taken by him pursuant to it. In any case that Order would not have helped the present applicants as the time limit within which to tax costs had expired under Or.29 rule 1(d).

That however is not the end of the matter as far as the applicants are concerned. Evidently it was also not known to the applicants that the Order was filed. However, under the said Rule 29 they filed in the High Court Registry, Bill of Costs for Taxation under the said Order made by Byrne J on 30 March 2001 together with the order for sealing and paid the necessary filing fees but because corrections to the Order did not come back to the Registry on the same date it was dated 25 April 2001.

It is the applicant=s main argument that by filing the Order and perfecting it they are within the time for taxation as prescribed in Order 29. I entirely agree with that submission.

The date from which time runs for taxation of costs under Rule 29 was considered in Lant v Lant (1964) 2 All E.R. 608 in respect of a similar wording as in Rule 29 i.e. A......within three months after the judgment, direction order ..... was entered, signed or otherwise perfected or, ..... @ (emphasis added). In interpreting these words Willmer L.J said:

AThat in my judgment, does not refer to the date on which the judge or registrar, as the case may be, made the order, it refers to the date on which the Order was authenticated by receiving, in one way or another, the seal of the court in which it was pronounced ..... If, as appears to be the case the Principal Registry has been acting in the belief that the order is perfected as soon as it is made, then in my judgment, the Principal Registry is wrong.@

On the above authority and also because Rule 29 is quite clear as to when >proceedings for the taxation must begin=, I hold that the applicants were within time to make an application for taxation of costs. I therefore allow the application for Review and set aside the Taxing Officer=s Decision on Review and remit the application for the taxing of Bill of Costs as previously filed to proceed.

D. Pathik
Judge

At Suva
12 July 2002