IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

CV 431/2006

BETWEEN:

1.	NOBLE LASIKE
2.	SAMUELA ‘A POHIVA
3.	‘ISILELI PULU
4.	WILLIAM C EDWARDS
5.	‘ULITI UATA
6.	VILI KAUFUSI HELU
7.	SUNIA FILI
8.	LEPOLO TAUNISILA
Plaintiffs

AND:

1.	NOBLE TU’IHA’ANGANA
Speaker of the Legislative Assembly

2.	FELETI SEVELE
Prime Minister

3.	THE KINGDOM OF TONGA
in respect of the Legislative Assembly and Government of Tonga
Defendants

SUBMISSIONS ON COSTS HEARD AT NUKU’ALOFA ON 25 AUGUST 2006

Before Hon Chief Justice Webster

Counsel: Plaintiffs: Mr Kaufusi
1st Defendant: Mr Taumoepeau
2nd Defendant: Mr Waalkens QC
3rd Defendant: Acting Solicitor-General (Ms Simiki)

DECISION ON COSTS GIVEN ON 7 SEPTEMBER 2006

Preliminary

This case arose from the Opening of the Legislative Assembly on 1 June 2006 by HRH Princess Salote Mafile’o Pilolevu Tuita as Princess Regent, in the absence of His Majesty The King, who was abroad in Auckland. The legality of that Opening was challenged by the Plaintiffs, but I did not uphold that challenge and found in favour of the Defendants.

I did not hear any submissions on costs at the time of the hearing of the action, which was conducted with some urgency on a Saturday morning.

Thereafter I received written submissions from all Counsel and at this hearing I both heard oral submissions and received further written submissions and references to legal authorities.

Applicable law

The law on the award of costs has recently been set out fairly comprehensively in Taione v Pohiva [2006] TOSC 23 and I shall not repeat them here. Stated briefly, the salient aspects in relation to this case are that costs are at the discretion of the Court. That discretion is to be exercised judicially and costs generally follow the event. There must be some grounds for the exercise of the discretion, but if there are any grounds, the question of whether they are sufficient is entirely for the Judge at the trial, and a court on appeal cannot interfere with his discretion.

Counsel for the 1st Defendant in his submissions also referred to Secretary of Fisheries v Lanivia [1999] Tonga LR 179 (CA), [1999] TOCA 17, where the Court of Appeal stated:

"It should be remembered that this was an application for leave to seek judicial review out of time. That was the cause of action. In Ottway v Jones [1955] 2 All ER 585,591; [1955] 1 WLR 706 Parker LJ pointed out once again that:

"... the discretion [to award costs] cannot be exercised arbitrarily; it must be exercised judicially and on fixed principles dictated by reason and justice. One starts with this, that, as a general principle, costs follow the event and the successful party is entitled to be paid his costs unless there are special grounds to order otherwise and those grounds, it is well settled, must be grounds connected with the cause of action."
……

In that action the judge had found against the respondents. There was no qualifying matter and the appellant should normally have had his costs. The learned judge gave only one reason for not following the usual rule, namely that the appellant should carry the costs in the normal run of its business. That is not a ground arising out of the cause of action and neither does it follow any principle of costs.

Sometimes in cases of judicial review, a point of law is involved that is of sufficient public importance for the court to exercise its discretion not to order the unsuccessful party to pay the costs. That is not the case here and the judge did not suggest it was. Although the action was brought in administrative law it is effectively little more than a claim in private law and we see no reason to interfere with the usual practice."

However, as was stated in the Taione costs decision, in the area of constitutional rights it may not always be appropriate to allow costs to follow the event: Minister of Immigration v Udompun [2005] NZ CA 128 at para [186]. If the real substance of the case concerns important matters of constitutional law, it is important that bona fide resort to rights under the Constitution ought not to be discouraged: Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305,1315 (PC); Nouredine v Minister for Immigration & Multicultural Affairs (1999) 91 FCR 138,145.

The written submissions for the Plaintiff also referred to Fotofili v Siale [1987] TOPC 2; [1988] LRC (Const) 102; [1987] SPLR 339 (PC), which was a case concerning allegations that members of the Legislative Assembly had unlawfully received payments by way of parliamentary allowances, where on appeal the Privy Council decided about costs:

"As for costs, there was some suggestion made on behalf of the appellants that the action was frivolous, vexatious and an abuse of the Court process. We do not agree. The issues raised were of importance and the respondent was entitled to his day in Court. We make no order for costs."

Counsel for the 1st Defendant further referred to an extract from The New Zealand Bill of Rights Act: A Commentary by Butler & Butler where it is stated at para 33.4.5:

"Overseas, numerous commentators have argued that if a plaintiff is unsuccessful in a human rights claim then it should not be the case that the Crown is awarded costs as a matter of course, even though the general rule in those jurisdictions is that costs follow the event. Commentators have argued that the prospect of a hefty costs award in the case of failure will act as a powerful disincentive to bringing proceedings, especially if the plaintiff is (as will often be the case) an individual of a non-governmental organisation. On the other hand, Courts are an expensive means of airing grievances, not just for the plaintiff but also for the Crown defendant. Why should taxpayer resources be consumed on defending BORA [Bill of Rights Act] litigation, when citizens have so many other equally effective and less costly means of vindicating breaches of rights - such as, for example, a complaint m the Ombudsmen, the Police Complaints Authority, prison inspectorate, Visiting Justices, and so on? The dilemma was well captured by Ackermann J in the South African Constitutional Court decision of Motsepe v Commissioner of Inland Revenue 1997 (6) BCLR 692, para 30 (SACC):

"In my view one should be cautious in awarding costs against litigants who seek to enforce their constitutional right against the state, particularly where the constitutionality of a statutory provision is attacked, lest such orders have an unduly inhibiting or "chilling" effect on other potential litigants in this category. This cautious approach cannot, however, be allowed to develop into an inflexible rule so that litigants are induced into believing that they are free to challenge the constitutionality of statutory provisions in this Court, no matter how spurious the grounds for doing so may be or how remote the possibility that this Court will grant them access. This can neither be in the interests of the administration of justice nor fair to those who are forced to oppose such attacks.""

Counsel for the 2nd Defendant referred to R v Lord Chancellor ex p Child Poverty Action Group [1999] 1 WLR 347,355-6 (QBD), where in the Queen’s Bench Division a single Judge, Dyson J, stated:

"I accept the submission of Mr Sales that what lies behind the general rule that costs follow the event is the principle that it is an important function of rules as to costs to encourage parties in a sensible approach to increasingly expensive litigation. Where any claim is brought in court, costs have to be incurred on either side against a background of greater or lesser degrees of risk as to the ultimate result. If it transpires that the respondent has acted unlawfully, it is generally right that it should pay the claimant's costs of establishing that. If it transpires that the claimant's claim is ill-founded, it is generally right that it should pay the respondent's costs of having to respond. This general rule promotes discipline within the litigation system, compelling parties to assess carefully for themselves the strength of any claim.

The basic rule that costs follow the event ensures that the assets of the successful party are not depleted by reason of having to go to court to meet a claim by an unsuccessful party. This is as desirable in public law cases as it is in private law cases. As Mr Sales points out, where an unsuccessful claim is brought against a public body, it imposes costs on that body which have to be met out of public funds diverted from the funds available to fulfil its primary public functions. I did not understand Mr Drabble to take serious issue with any of the foregoing. It is plainly right that in the normal run of the mill public law case, the unsuccessful party should pay the other side's costs. To this Mr Drabble would respond by saying that typical judicial review proceedings involve adversarial litigation, in which the applicant is seeking to promote or protect his or her own private interest: it does not raise a public interest challenge as defined. Nevertheless, in considering whether, and in what circumstances, there should be a departure from the basic rule that costs follow the event in public interest challenge cases, in my view it is important to have in mind the rationale for that basic rule, and that it is for the applicants to show why, exceptionally, there should be a departure from it."

That decision was an interlocutory decision of a single judge, not given on appeal, and it was given in somewhat different circumstances. The applicants had been refused legal aid and applied for judicial review of those decisions, and then made an application in the judicial review for a pre-emptive interlocutory order (ie before the judicial review took place) that no order for costs be made against them whatever the outcome of the judicial review proceedings. So I did not consider it a substantive precedent and I do not find it particularly persuasive.

That said, I accept all that is written in these authorities so far as they go, but it is important that none make absolute statements and in each one there is some kind of qualification. In Ottway v Jones the reference is to special grounds, connected with the cause of action, to order otherwise; while in Lanivia the Court of Appeal referred to a point of law involved that is of sufficient public importance for the court to exercise its discretion not to order the unsuccessful party to pay the costs. In Motsepe Ackermann J recognised that one should be cautious in awarding costs against litigants who seek to enforce their constitutional right against the state, while noting that a cautious approach could not be allowed to develop into an inflexible rule. Even in the hard line approach taken in the CPAG case, there was reference to the normal run of the mill public law case, and it was acknowledged that, exceptionally, there might be a departure from the basic rule that costs follow the event in public interest challenge cases.

Counsel for the 2nd & 3rd Defendants also referred to Fonua v MBf Bank Ltd [1999] Tonga LR 4 & [2000] Tonga LR 319 (CA), both in the Supreme Court, (where Ward CJ referred to the defendant being put to the expense and inconvenience of an action he should never have had to face, which he described as totally unmeritorious, and added that there were too many hopeless civil cases being pursued to trial in Tonga) and in the Court of Appeal, which upheld the award of costs and pointed out that a claim of that kind was a waste of the resources that society puts into the Court. But that was a private, straight civil law claim for breach of contract and undue influence and I do not see that it is relevant to the exercise of the Court’s discretion in this case.

Grounds of decision

Clearly this was an important case, where the legality of the opening of the Legislative Assembly by the Princess Regent was challenged. One only has to read the Court's decision to see that the interpretation of the Constitution was at the heart of it, even though it originated as a challenge based on section 17 of the Legislative Assembly Act.

I do not believe that the case can be labelled as a simple case, let alone a worthless one.

To my mind that view was reinforced by the 2nd Defendant instructing a QC from New Zealand to appear on his behalf (albeit a QC with strong links with Tonga) and that QC consulted both New Zealand’s Parliamentary Counsel and the Professor of Constitutional Law at Auckland University about the case. Counsel for the 1st Defendant also said that he expected to be paid as a senior counsel. It was submitted for the Defendants that that was due to the potential, rather than actual, public interest, and that the case made serious allegations and could have had potentially serious consequences for the Defendants due to the nature of the claim, despite them characterising it as worthless or unmeritorious. However I did not see that as a real distinction: if the reality is that a case is seen as having potentially serious consequences for a defendant, then it is a serious case and not completely lacking in merit.

I believe it is fair to say that the case did not only deal with the opening of the Legislative Assembly, but in doing so it was able to provide some clarification of the position and powers of the Princess Regent or Princess Regent on a broader basis. With all due modesty, I hope and believe that as a result the case has been of real value to the Government, the Legislative Assembly and the Kingdom as a whole. So I cannot accept that this was not a case of constitutional significance. The real substance of the claim concerned important matters of constitutional law (as in Ahnee);and in terms of the Court of Appeal decision in Lanivia, there were points of law involved which were of sufficient public importance for this Court to exercise its discretion. In terms of the Privy Council decision in Fotofili, I cannot say that the action was frivolous, vexatious or an abuse of the court process. I do not consider that in Tonga there were other equally effective and less costly methods of resolving this issue, such as Ombudsmen, as mentioned in the Butlers’ book.

I accept the submission for the 3rd Defendant that not all cases involving the Constitution will be of constitutional importance, but I noted also the submission for the 3rd Defendant that constitutionally significant proceedings (whether successful or not) should not normally be discouraged through awards of costs. Applying the tests submitted for the 3rd Defendant, on an analysis of this case, its impact and outcome certainly affected not only the Plaintiffs but the Kingdom of Tonga as a whole; and the allegation before the Court was undisputed in fact but depended on an interpretation of the law. One of the principal functions of the Supreme Court is to decide cases under the Constitution and to uphold the Constitution.

The description ‘constitutional case’ is rather vague, but while accepting that this was not a case about the rights of liberty protected by the Constitution, nor a case where the individual rights of the plaintiffs were alleged to have been breached, such as in Ahnee or Nouredine, it did involve the interpretation of the Constitution and issues of the interaction of ordinary legislation with the Constitution. On page 4 of the decision I referred to the case as "a case necessarily involving interpretation of the Constitution of Tonga". In passing, I mention that I said of the words chosen to describe the powers of the Prince Regent that "There is nothing remarkable about the meanings of the words", not that there was "nothing remarkable" about the words.

There was certainly no finding of any misconduct on the part of the Defendants, and while that is a factor to be taken into account in exercise of the Court’s discretion, it does not result in the case ceasing to be of importance.

It is necessary to balance the various factors of the case, being that, on the one hand, while not constitutionally important, this was a case with potential public interest, and that, on the other hand, despite the value of the outcome, there was not a great deal of weight in the particular allegations made.

It is also important that, once this issue had been raised, it was going to be hanging in the air until settled. I understand that it was the first time the Assembly had been opened by a Regent. I therefore believe it was of value to the Government and the Kingdom, and the Legislative Assembly itself, to have it judicially decided so as to avoid the need for it to be raised again.

However, while nothing turns on the point, I do not altogether accept the submission for the Plaintiffs that they had a special role or duty as elected Representatives to the Legislative Assembly to bring this action. The Assembly is the Legislative Assembly and enacting laws is its primary purpose under clause 56 of the Constitution; and clause 60 of the Constitution states that they are elected as Representatives to the Assembly, impliedly for that purpose. I do not consider that, other things being equal, that gives them some special status to raise actions in this Court in the expectation of having immunity from costs.

I accept that at the time there was a feeling among the Defendants that this case was an opportunistic one brought for political ends just to disrupt the Government and make things hard for it, and I can understand why the Defendants felt that way.

But I do not think that the Court should allow these projected feelings of irritation or annoyance to obscure the due exercise of its discretion on costs. Throughout this case I have emphasised that the Court must stay above politics, and I also consider that it must bear in mind the wider picture. After all, one of the principal purposes of the Supreme Court is to decide cases under the Constitution and to uphold the Constitution.

I have taken time to consider this decision and it has not been an easy one to reach. But overall I have come to the view that in the exercise of my discretion, balancing these various factors referred to, I should not award costs to follow the event, but that, taking the broad view for the ultimate benefit of the Kingdom, justice would best be served by making no award of costs in this particular case. In taking that view I was fortified by the comments in the opinion of the Privy Council in Fotofili and the Court of Appeal in Lanivia. I recognise that this may be seen as a soft decision, but as mentioned I consider the Court must stand above the fray and take the long view.

While I have sympathy with what Ward CJ wrote in Fonua, especially in relation to the number of hopeless civil cases being pursued to trial in the Supreme Court of Tonga, one only has to consider the quotation in Para 10(c) of the submissions for the 2nd Defendant to realise that the present case is not an ordinary type of civil case of the same type as Fonua.

It was also submitted for the 3rd Defendant that the costs of the claim were reduced significantly as a result of the Court's approach to the matter, including arranging a hearing at such short notice. Thus the costs involved were not very large as costs go, and the substantive hearing only took half a day.

But I must put up a marker for the future. I viewed this as a one-off case with a result of value to the nation as a whole, and I must make it clear that this decision not to award costs relates only to the particular circumstances of this case. Litigants should not (in the words used in Motsepe) seek to bring actions against the Government, believing that they are free to challenge the constitutionality of statutory provisions, no matter how spurious the grounds for doing so may be or how remote the possibility that this Court will grant them. Any person contemplating an action which may disrupt or make life difficult for the Government, or with any hint of a vendetta, should understand that, if the normal rule on costs is applied, they might find themselves in a different position; and they would be well advised to be sure of their grounds if they wish to avoid possibly heavy awards of costs against them.

R M Webster
Chief Justice

7 September 2006