IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0004 OF 2003L

BETWEEN:

SUKH RAM
s/o Jagassar of Ellington, Rakiraki, Farmer
as next kin and best friend of Amit Kumar
Appellant/Plaintiff

AND:

FLYING PRINCE TRANSPORT COMPANY LIMITED
1st Respondent/1st Defendant

AND:

BHUPENDRA DUTT
2nd Respondent/2nd Defendant

Mr. A. Patel for Mr. S.R. Shankar for appellant/plaintiff
Mr. S. Krishna for Mr. D. Kumar for the respondents/defendants

Date of Hearing: 7 October 2005
Date of Judgment: 28 October 2005

JUDGMENT ON APPEAL

This is an appeal by the appellant against the Learned Magistrate’s order striking out the appellant’s statement of claim upon the basis that the claim was beyond the jurisdiction of the Magistrates Court.

In his statement of claim, the appellant claimed the sum of $15,000.00 in respect of damages for personal injuries. The claim was pleaded as follows:

Special Damages		-	$ 850.00
General Damages		-	$14,150.00

The appellant also claimed costs of the action.

Endorsed on the Writ of Summons are details of the amount claimed together with the Court fees, bailiff’s fees and solicitor’s costs. These fees and costs totalled $96.50.

The issue for determination by this Court is whether the appellant’s claim for costs in addition to damages in the sum of $15,000.00 creates a claim which exceeds the jurisdiction of the Magistrates Court.

The civil jurisdiction of the Magistrates Court is governed by section 2 of the Magistrates Court (Civil Jurisdiction) Decree 1998 which provides that:

“A resident magistrate shall have and exercise jurisdiction in civil causes - …

(ii)	in all other personal suits whether arising from contract, or from tort, or from both, where the value of the property or the debt, amount or damage claimed whether as a balance claimed or otherwise, is not more than $15,000.00…”

The section is silent as to whether costs and disbursements are to be included in calculating the value of the claim for the purpose of the jurisdictional limit.

The authority for the Magistrates Court to award costs comes from Order XXXIII of the Magistrates Courts Rules. Rule 1 provides:

“Under the denomination of costs is included the whole of the expenses necessarily incurred by either party on account of any cause or matter, and in enforcing the decree or order made therein, including the expenses of summoning and of the attendance of the parties and witnesses, and of procuring copies of documents, the fees of Court, and the remuneration of referees.”

Rule 3 relevantly provides:

“The costs of every suit or matter and of each particular proceeding therein shall be in the discretion of the court; and the court shall have full power to award and apportion costs, in any manner it may deem just, and, in the absence of any express direction by the Court, costs shall abide the event of the suit or proceeding…”

The issue of costs is a matter which is determined at the conclusion of the proceedings. It is not a matter which forms part of the proceedings themselves but can only be considered and determined once the proceedings themselves have been finalized.

In all Common Law jurisdictions the general rule in relation to costs is that costs follow the event and in the discretion of the Court. Viscount Cave L.C. in Donald Campbell v Pollak [1927] A.C. 732 at 811 said:

“A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them.”

As costs are usually awarded to the successful party it is not necessary or possible for the party to specifically claim costs in their pleadings. It may be either the plaintiff or the defendant who is the recipient of the costs order.

There are throughout the Commonwealth jurisdictions many cases where a plaintiff has been awarded an amount of damages up to the jurisdictional limit and then awarded his or her costs – Lovejoy v Cole [1894] 2 Q.B. 861; Legon v Viscount [1945] 1 C.A. 710; Nichols v Patrick Stevedoring Co. Pty Ltd (1979) 2 NSWLR 457.

The respondent relies upon Govind Holdings Ltd v Kalia Nand – Civil Appeal No. HBA0015 of 1998L as authority for the proposition that costs must be factored into the amount claimed for the purposes of establishing whether the claim exceeds the jurisdictional limit of the Magistrates Court. In that case, Madraiwiwi J. was considering the issue of interest and the effect that interest might have on a claim and whether the claim would then exceed the jurisdictional limit of the Magistrates Court. There is merely an obiter reference in that authority to costs. It does not form part of the ratio of that case.

I have not been referred to any other authority in this country which would support the proposition that costs are to be included in the claim when determining if that claim exceeds the jurisdictional limit of the Magistrates Court.

The regime of Order XXXIII of the Magistrates Courts Rules together with the authorities referred to from other Commonwealth countries lead to the conclusion that any costs which may be awarded to the plaintiff by the Court at the conclusion of the proceedings do not form part of the plaintiff’s claim for the purpose of calculating whether the claim falls within the jurisdictional limits of the Magistrates Court.

Orders of the Court

1.	Appeal allowed.

2.	Matter remitted to the Magistrates Court, Rakiraki for trial according to law.

3.	Respondent to pay the appellant’s costs assessed in the sum of Five Hundred Dollars ($500.00).

JOHN CONNORS
JUDGE
At Lautoka
28 October 2005