IN THE COURT OF APPEAL OF TONGA
APPEAL FROM THE LAND COURT
NUKU'ALOFA REGISTRY

CA. No 16/99
Case No. L 253/95

BETWEEN

HON. MINISTER OF LANDS
Appellant

AND

1. HENELE NAI
2. TEVITA FINAU
Respondents.

Coram:
Ward CJ, Burchett J, Beaumont J

Counsel:
Semisi Tapueluelu for the Appellants
Miss Lesina Tonga for the First Respondent
Mrs Vaihu for the Second Respondent

Date of Hearing: 14 July 1999
Date of Judgment: 23 July 1999

JUDGMENT OF THE COURT

This is an appeal against an order for costs made against the Crown in a Land Court case.

In March 1995, the first respondent filed a claim in the Land Court to be registered as the holder of' a town allotment in Ma'ufanga which was, at that time, registered in the name of the second respondent. The Minister was a defendant in that action and filed a defence in which he admitted a mistake had been made and that the first respondent was the rightful holder of the title. That is a position he has maintained ever since.

The trial started on 24 February 1997 but was adjourned the same day and the matter remitted to the Minister to hear the competing claims of the first and second respondents. On 15 April the Minister decided in favour of the first respondent.

As a result, the second respondent then applied out of time for leave to seek judicial review of that decision and, on 15 September 1997, leave was given with the question of costs reserved. Curiously, the application for judicial review was filed under the same cause number and with the same title as the original action.

No hearing appears to have occurred until, on 7 May 1998, the court by consent resubmitted the question to the Minister to hear the competing claims of the first and second respondents.

Paragraphs 4 and 5 of the Order that day provided;

"4. The Hearing of the Judicial Review Application herein be adjourned into open court for hearing on 9th July 1998, at 10.00 am for the purpose of recording the decision of the Hon. Minister of Lands.

5. The question of costs is reserved."

On 10 July 1998, the Minister again found in favour of the first respondent and, on 20 August 1998, the court ordered by consent;

"1. This application for judicial review be dismissed.

2. Costs of this application be those of the [first respondent] and the [second respondent] to be taxed or agreed and when certified to be paid by the [appellant] (the Minister of Land) to the [first respondent] and the [second respondent] pursuant to the provisions of the Crown Proceedings Act Cap 13 Section 9.

3 ….

4. The [second respondent] be at liberty to make a further leave application to have judicial review of the decision of the Hon. Tu'i'afitu."

Although the order is recorded as having been by consent, counsel advise the court the true position was that counsel for the Crown was asked if he had anything to say on the proposed order for costs but declined to make any submission.

It appears that, eight days later, at the request of counsel, the Judge made a further order:

"The Order of this court dated 20th August, 1998, be amended by adding the words "and of these proceedings" after the phrase "this application" in paragraph 2 thereof."

The learned judge then added those words in manuscript to the original Order of 20 August.

It is against that order for costs that the Minister now appeals. The ground is simply stated. When these proceedings were started in 1995, the proviso to section 152 of the Land Act, Cap 132, allowed no order for costs to or against the Crown in a case such as this. However, on 25 June 1997, the Land (Amendment) Act, No. 3 of 1997, came into force and repealed the proviso leaving section 152 in the following form:

"152. The Court may make such order in reference to payment of costs of any proceedings before it as it thinks just."

Mr Tapueluelu for the Crown suggests that the immunity from an award of costs was a right that accrued on the date the proceedings were commenced and, although the costs order was finally made after the new Act had come into effect, it did not affect the Crown’s immunity in pending proceedings. The application for judicial review was a part only of the whole proceeding started in 1995 and was therefore covered by the same immunity.

Counsel for the respondents challenges that and further suggests that, even if there is immunity in the original claim, the application for judicial review was a fresh action despite the fact it had the same title and cause number. As it was commenced after the operation of Act No. 3 of 1997, the order for costs of that application is valid.

We consider there are two issues here. The first is whether the effect of the amending Act was to allow the court to order costs in an action started before the provisions of the Act came into force and still pending at that time. The second is whether the application for judicial review is a part of the same action or is a different proceeding.

When an existing statutory provision is amended, the manner in which it comes into effect is frequently covered by transitional provisions. Where there are no such provisions, it is necessary for the court to draw such inferences as it considers the legislature intended [see Halsbury's Laws of England 4th Ed. [Re-issue] Vol. 44(1) at p. 771. There is no guidance to be found in the amending Act save that the intention was clearly to allow awards for and against the Crown in all Land cases.

The general rule is that, where an amendment is procedural, the courts will presume it affects pending as well as future proceedings. However, an order for costs is not merely procedural and so such a presumption does not apply.

Before the repeal of the proviso, section 152 gave the Crown a clear right to avoid costs orders. It is a principle of statutory interpretation that where an Act repeals an earlier enactment, it does not affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment. That principle has been incorporated into our law by section 15 of the Interpretation Act.

"15. Whenever any Act repeals either in whole or in part a former Act the repeal shall not, in the absence of any express provision to the contrary, affect or be deemed to have affected-

(a) the past operation of or anything duly done or suffered under the repealed act;

(b) any offence committed, or any right, liberty, obligation or penalty acquired or incurred under the repealed act:;

(c) any action, proceeding, or thing pending or incomplete when the repealing act comes into operation; but every such action, proceeding or thing may be carried on and completed as if there had been no such repeal."

The present action is clearly covered by the provisions of sec. 15(b) and (c) and, so far as the order of 28 August purported to award costs in the action commenced in 1995, it is invalid.

The second issue is whether the judicial review proceedings commenced by the application for leave filed on 2 September 1997 form part of the proceedings pending when the repealing Act came into operation.

It arose in an unusual manner. Having remitted the matter to the Minister and received his decision, the court made no final order, which could have been appealed and, instead gave leave to apply for a review of the decision the court had sought. Despite the manner in which it occurred and the use of the same cause number, this was clearly a separate and distinct: action seeking a different remedy. It was commenced after the amending Act came into force and the saving provisions of section 15(c) did not cover it. The court was entitled to order costs against the Crown in relation to those proceedings. There is, perhaps surprisingly, no appeal against the merits of the order.

We allow the appeal to the extent that the court had and has no power to award costs against the Crown in relation to the proceedings arising from the statement of claim filed on 15 March 1995 whenever those proceedings are completed. The part of the order for costs which applies to that action is set aside.

We dismiss the appeal in relation to the order for costs in the application for judicial review filed on 3 September 1997.

In view of the result, we make no order for the costs of this appeal.

NUKU’ALOFA: 23 JULY 1999

Ward CJ, Burchett J, Beaumont J.