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Yam v Wong [2003] SBCA 9; CA-CAC 017 of 1999 (11 August 2003)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

Civil Appeal No. 17 of 1999

BETWEEN:

AUSTIN YAM
Appellant

AND:

MARIA WONG
Respondent

DATE OF HEARING: 04^th August 2003
DATE OF JUDGMENT: 11^th August 2003

JUDGMENT OF THE COURT

MURIA, CJ: Following a successful appeal to the Court of Appeal in Civil Appeal Case No. 17 of 1999 the appellant, Austin Yam, was awarded costs against respondent. The appellant’s bill of costs containing 54 items was served on the respondent in the sum of $25,807.44. The appellant was prepared to accept on a without prejudice basis, the sum of $23,632.44 in full and final settlement of his costs provided the respondent pays that amount within 10 days of the service of the bill of costs on him. The respondent has not paid the appellant’s costs and the matter came before the Registrar of the High Court, as taxing officer, first on 19^th August 2002 and later on 30^th April 2003. Following the latter hearing, the Registrar published his decision on 6^th May 2003 where the Registrar decided that the remuneration rate for admitted legal practitioners was $700.00 per hour, for provisionally admitted legal practitioners was $500.00 per hour and for Clerks, $100.00 per hour. The taxation of the appellant’s bill of costs would be based on those rates. The respondent’s application is against that decision.

The grounds for the respondent’s application, simply put, are that the Registrar has no power to fix the scale of costs to be charged by legal practitioners in Court of Appeal matters that any discretion exercisable by the Registrar regarding bill of costs relates only to items of costs and not fixing a scale of costs. In the alternative, the decision to fix the rates of $700.00, $500.00 and $100.00 was done without considering relevant facts. Despite the alternative ground of the application, it seems clear to the Court that the question of whether or not the rates of $700.00, $500.00 and $100.00 are correct is not to the point in this application. Rather the questions to be determined really, are whether the Registrar in fixing the rates of remuneration at $700.00, $500.00 and $100.00 for admitted legal practitioners, provisionally admitted legal practitioners and Clerks respectively, he was fixing a scale of costs; if he was, whether he had the power to do so, and whether he had the basis for fixing the amounts he so fixed.

Mr. Nori’s argument is that neither the Court of Appeal Act nor the Court of Appeal Rules prescribed a scale of costs for cases coming before the Court of Appeal. The Act simply empowers the making of the rules of Court and for the Court to exercise the powers prescribed such these rules of Court. The Court of Appeal Rules had been made but no scale of costs had been included under the Rules. The Rules simply provide in Rule 46 that the Registrar shall be the taxing officer. There are, however, the Court of Appeal (Fees) Rules but no Court of Appeal (Costs) Rules.

Taxing Officer’s power on Taxation of costs

It is undoubtedly true to say that the Registrar, as taxing officer, has been given the power to assess costs payable to or by a party in an action, and to tax such costs when required to do so. The Registrar’s powers in this regard are discretionary and they are exercised pursuant to the rules of Court or orders or direction from the Court. In the present case, the Court of Appeal granted costs to the appellant. There are, however, no Court of Appeal rules as to the scale of costs and so the Registrar is left with the order of the Court that the appellant must have his costs. How is the Registrar to exercise his discretion in such a case? The starting point must be Act and the Rules providing the jurisdiction under which the Registrar, as taxing officer, is to exercise his discretion. Whilst the Act empowers the Court to order costs, the limits within which such costs in the Court of Appeal is to be fixed have not been set. In the absence of the Rules on costs, the power to fix the scales lies in the Court. The decision to do so, in our case, appears to be one that can only be done by the Court. Once that is done, the taxing officer is then able to exercise his discretion to fix whatever amount, in the exercise of his discretion, which is quasi-judicial, to assess the amount as he sees fit.

Under the Present Provisions

There is no scale of costs in place. It would seem from the Act, that the present means of dealing with the question of costs in the Court of Appeal is that where the Court, simply orders ‘costs to a party’, it is incumbent on that party to apply to a single judge to fix the limit within which the taxing officer is to access the costs. The power to do so can be seen under section 19 of the Act which provides:

“The Power of the Court under this Part of this Act-
..........................

(g) generally, to hear any application, make any order, or give any direction incidental to an appeal or intended appeal, not involving the decision of the appeal.

may be exercised by any judge of the Court in the same manner as they may be exercised by the Court and subject to the same provisions; but, if the judge refuses an application to exercise any such power or if any party is aggrieved by the exercise of such power, the applicant or party aggrieved shall be entitled to have the matter determined by the Court as duly constituted for the hearing and determining of appeals under this Act-

By way of analogy, section 32 does not allow costs in criminal appeals but expenses of counsel assigned, can be recovered subject to rates and scales made by rules of Court. Although that provision concerns appeals in criminal cases, it nevertheless envisages the existence and application of scale of costs on matters of costs in the Court of Appeal. I take note of the cases ¹ cited by Counsel for the appellant, but I agree with Counsel for the applicant/respondent that those cases are distinguishable, since they deal with instances where scale of costs had been put in place and the issues really in those cases centred on the exercise of the taxing officer’s discretion within the applicable scale of costs. Unfortunately, we do yet not have a scale of costs for Court of Appeal matters.

In Australian Coal and Shale Employees’ Federation –v- The Commonwealth^[2] [1953] HCA 25; (1953) 94 CLR 621 the High Court of Australia held, among other things, that the decision of a taxing officer as to quantum will generally not be interfered with unless there are strong grounds for showing that he proceeded on wrong principle. In Simpsons Motor Sales (London) Ltd –v- Hendon Corporation^[3] [1964] 3 All ER 833 it was said that the Judge reviewing the taxing master’s decision should only consider whether the figure adopted by the taxing master fell “above the upper or below the lower limit of the range within which the proper figure would come”. The limit of the range of costs referred to was the Supreme Court Costs Rules 1959. In Dwyer –v- Dwyer^[4] [1976] 2 All ER 1, the court reviewed the taxing officer’s decision by considering the relevant scale of costs under the Matrimonial Causes (Costs) Rules 1971. The Court in that case said that the discretion of the taxing officer cannot be restricted simply due to inadequacy of the statutory maximum amount for an item. He must be allowed the discretion to decide on the appropriate rate of remuneration for practicing solicitors. That of course was referring to a specific item within the prescribed scale of costs. That is different from simply fixing a remuneration rate of general application which in effect was what the as taxing officer did in this case when he fixed the rates of $700.00, $500.00 and $100.00 for admitted legal practitioners, provisionally admitted legal practitioners and clerks respectively.

Thus is my judgment, until the Court of Appeal (Costs) Rules are put in place, the Court retains the power to fix the scale of costs or fix the limit within which the Registrar as taxing officer, should exercise his discretion in fixing the appropriate rate of remuneration for Legal Practitioners and Clerks in Solomon Islands.

The decision of the Registrar complained of by the rest in this case is in effect is fixing a scale of costs to be charged in connection with Court of Appeal matters. It is an exercise by taxing officer of a discretionary power that has not been delegated to him by the Act or Rules of Court. Having reached that conclusion, I do not need to decide the other points raised by Counsel for the respondent.

In the exercise of the review power on me sitting as single judge of the Court of Appeal, I conclude that the respondent’s application must succeed. The ruling by the Registrar, sitting as taxing officer, made on 6^th May 2003 is set aside. In doing so, it must be pointed out that, this decision is limited to the issue that in so fixing the rates of $700.00, $500.00 and $100.00 in the absence of the Rules of Court fixing a scale of costs, the Registrar is in effect fixing the rates within a scale of costs that does not exist. The reasonableness of those amounts does not arise in this application. It will only arise once the scale of costs is determined or put in place.

Order (1) Application allowed.

(2) Ruling of the Registrar, sitting as taxing officer, made on 6^th May 2003 set aside.

(Sir John B. Muria)
CHIEF JUSTICE

^[2] Australia Coal and Shale Employees’ Federation –v- The Commonwealth
^[3] Simpsons Motor Sales (London) Ltd –v- Hendon Corporation
^[4] Dwyer –v- Dwyer