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Va'ai v Meredith [1998] WSSC 30 (5 August 1998)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of Article 4 of the Constitution

BETWEEN

ASIATA ALAEULA VAALEPA SALEIMOA VA'AI
of Siusega and Vaega Satupaitea, Barrister and Solicitor
Applicant

AND

FAAITAMI PIERRE MEREDITH
of Apia
Registrar of the Supreme Court
Respondent

Hearing: 4 and 5 August 1998
Counsel: L L Stevens QC and P A Fepulea'i for the Applicant
B P Heather Attorney General and M Tuatagaloa for the Respondent

JUDGMENT OF MORAN J AS TO COSTS

Submissions as to costs have been received from the applicant. The respondent has not taken the opportunity to make submissions.

Rule 5 Judicature Ordinance 1961 provides:

"5. Costs

(1) Costs when allowed shall be regulated and paid according to the scale of costs set out in the Second Schedule hereto, but the Court may, in giving a judgment or making any order, fix a sum or sums as the costs, notwithstanding that such sum is greater or smaller than the sum set out in the said scale.

(2) In case of there being any doubt as to what costs should be allowed pursuant to the said scale in any particular matter arising in the course of any proceedings, the Court, in its discretion, having regard to the said scale, shall fix such sum for costs to be paid by any party as it thinks fit. "

The Court has a broad discretion to award a greater or lesser amount than that prescribed by the scale.

In the present case application of the scale would produce party and party costs of $335.00, a sum which, in all the circumstances of the present case would be derisory.

The applicant's actual solicitor/client costs have come to $52,980.59.

The respondent should make "a reasonable contribution towards the costs reasonably and properly incurred by the successful party" - Morten v Douglas Home Limited (No 2) [1984] 2 NZLR 625.

The factors relevant to arriving at such reasonable contribution in the present case are:

1. The amount of the applicant's solicitor/client costs.

2. The importance of the case to the applicant whose professional reputation and livelihood was at stake.

3. The wider importance of the case effecting, as it did, fundamental constitutional rights.

The weighting to be accorded to the second factor must be tempered somewhat by the fact that the applicant's challenge to the finding of bribery made against him succeeded upon grounds of procedural unfairness, the substance and merit of the finding of bribery not being amenable to challenge. In short the applicant can consider himself fortunate in the result that he achieved.

The applicant submits that he should be awarded $20,000.00 (i.e. less than half his solicitor/client costs) as a reasonable contribution. That is somewhat more than I would consider a reasonable contribution to be.

The applicant is awarded $15,000.00 in full settlement of all costs and disbursements in this proceeding.

Moran J