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Ropati v Attorney General [2024] WSSC 68 (14 August 2024)

IN THE SUPREME COURT OF SAMOA
Ropati v Attorney General [2024] WSSC 68 (14 August 2024)

CP103/22

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER OF:

Article 70(1)(b), Part IX and Article 104 of the Constitution of the Independent State of Samoa
Declaratory Judgments Act 1988
Government Proceedings Act 1964

BETWEEN:

LETUFUGA ATTILA MANUTOIPULE ROPATI in his capacity as the removed President of the Land and Titles Court

Plaintiff

A N D:

THE ATTORNEY GENERAL, on behalf of the Prime Minister, the HONOURABLE FIAME NAOMI MATAAFA

First Defendant

A N D:

JUSTICE LESATELE RAPI VAAI, in his capacity as the incumbent President of the Land and Titles Court

Second Defendant

A N D:

THE ATTORNEY GENERAL, on behalf of the GOVERNMENT OF THE
INDEPENDENT STATE OF SAMOA

Third Defendant

Coram: Honourable Justice Whitten KC

Counsel: Mr S. Ainu’u and Mr M. Lemisio for the Plaintiff

The Attorney General, Ms S. H. Wallwork, and Mr D. Fong for the Defendants

Submissions: Plaintiff - 27 June 2024, 8 July 2024, 22 July 2024.
Defendants – 4 July 2024, 15 July 2024.

Ruling: 14 August 2024

RULING ON COSTS

Introduction

1. On 17 June 2024, judgment was delivered in this matter.^[1] In the result:
   • (a) the Plaintiff’s claims against the First Defendant were dismissed;
   • (b) the Plaintiff’s claim challenging the validity of the Second Defendant’s appointment as President of the new Land and Titles Court (LTC) and the Plaintiff’s claim to be reinstated as President were recorded as having been withdrawn during the trial; and
   • (c) judgment was entered against the Third Defendant, the Government, in the form of the following declarations:
     • (i) the revocation of the Plaintiff’s appointment as President of the LTC and removal from judicial office pursuant to ss 67(6) of the LTA 2020 was inconsistent with the Constitution and offended the principles of judicial independence, and was therefore unlawful; and
     • (ii) as a result, the Plaintiff is entitled to compensation in the sum of WST$750,000.
2. In relation to costs, I observed that:^[2]
   • (a) in the ordinary course, costs ought follow the event;
   • (b) however, during oral submissions at trial, both Counsel indicated that without prejudice offers of compromise had been served which may have a bearing on costs;
   • (c) s 14 of the Declaratory Judgments Act confers a very broad discretion on the Court as to costs; and
   • (d) there was also a potential question as to the Second Defendant’s costs, if any.
3. As a result, directions were given for the filing of submissions on costs.^[3]

Submissions

Plaintiff

4. In his submissions on behalf of the Plaintiff, Mr Ainu'u did not specify which of the Defendants ought be ordered to pay costs. On more than one occasion, he referred generally to "the Respondents". However, given the only Defendant found liable was the Third, I proceed on the assumption that the Plaintiff is seeking an order that the Government pay his costs.
5. More specifically, Mr Ainu'u submitted that (presumably) the Government should be ordered to pay the Plaintiff’s costs, on an indemnity basis, in the sum of $88,688.27; alternatively, 85% of his total costs, calculated at $75,385.03.
6. After providing a helpful summary of general principles pertaining to costs and the approach to orders for same (which will be discussed further below),^[4] Mr Ainu'u submitted that, here, costs should be ordered on an indemnity basis for the following reasons, in summary:
   • (a) On 27 July 2023 (after the Court of Appeal’s decision on 18 July 2023), the Plaintiff served an offer of compromise, marked ‘without prejudice save as to costs’. In it, the Plaintiff proposed to resolve the proceedings, in essence, on the following basis:
     • (i) the Second Defendant’s appointment as President of the LTC was to be declared void;
     • (ii) the Plaintiff’s original appointment as President on 12 July 2016 was to be declared valid;
     • (iii) the Plaintiff would be ‘reinstated’ as President of the new LTC; and
     • (iv) the Second Defendant would be appointed Chairperson of the Land and Titles Appeal and Review Court.
   • (b) That proposal was described as “a practical and logistically sound way forward for the administration of the Land and Titles Court”. It went on to lay out certain “public relations” considerations and suggestions as to how the arrangement, if agreed, could be implemented to achieve “a seamless and comfortable (as possible) transition”.
   • (c) However, “[t]he Respondents simply did not engage with the offer and instead rejected it through the Attorney General’s letter of 18 August 2024 [sic]” which contained an offer of one year’s salary and legal costs of $8,000.
   • (d) Had the Defendants accepted the Plaintiff’s offer, “it would have saved the parties from engaging in [a] full two-day hearing of this matter".
   • (e) “The Respondents” demonstrated a “clear disregard of the established principles of judicial independence and its constitutional guarantees in the form of Article 68 and Article 104D and unnecessarily insisted that ss 67(6) usurped those guarantees”.
   • (f) The First Respondent (the Honourable Prime Minister) insisted that she did not make any decision to remove the Plaintiff as President of the LTC, but it was the legislation that removed the Plaintiff by way of ss 67(6).
   • (g) However, it was clear that when the Prime Minister first wrote to the Plaintiff in October 2022, a decision to appoint the Second Respondent had already been made and the removal of the Plaintiff was primarily to facilitate that appointment.
7. Alternatively, the Plaintiff submitted that an award of 85% of his solicitor/client costs “mirrors the seriousness of this case, i.e., the removal of a judicial officer without regard for the constitutional protection and without offer of compensation”.
8. Mr Ainu'u then detailed the quantum of the Plaintiff’s claimed costs.^[5] In particular, he specified that:
   • (a) they did not include any costs associated with the July 2023 appeal;
   • (b) they did cover preparation and representation work for the period from 28 October 2022, when Mr Ainu'u was first instructed, to 17 June 2024, when the judgment was delivered (approximately 19 months) and the costs submissions; and
   • (c) detailed Excel spreadsheets were available should the Court consider it necessary to view them.
9. There followed a table providing a summary of the work claimed in three categories. The first was for court appearances spanning just over 30 hours at $400 per hour, totalling just over $12,000. The second was for ‘Solicitor's Legal work’,^[6] or out of court legal work, of over 111 hours at $350 per hour, totalling just over $39,000. The third was for ‘Administrative Tasks carried out by the Solicitor’,^[7] of over 86 hours at $200 per hour, totalling just over $13,000. The subtotal of all work was therefore claimed at just over $64,000. To that was then added “20% Disbursements”, bringing the subtotal to just over $77,000. To that was then added “15% VAGST” to arrive at the total claimed of $88,688.

Defendants

10. The Attorney General opposed the Plaintiff’s claim for costs and submitted that costs should lie where they fall; alternatively, that the Plaintiff should only be entitled to costs on a “nominal basis”, for the following reasons, in summary:
    • (a) The Plaintiff failed to identify or satisfy any of the requirements for indemnity costs.^[8]
    • (b) The Plaintiff’s claim for costs did not take into account that by the primary judgment:
      • (i) the claim against the First Defendant was dismissed;
      • (ii) the claim against the Second Defendant was withdrawn during the trial;
      • (iii) the Plaintiff’s claim for re-instatement was withdrawn during the trial; and
      • (iv) the Plaintiff did not meet the criteria for appointment as President of the new LTC pursuant to the Constitution.
    • (c) The Plaintiff’s offer to settle was “problematic” because it proposed reinstatement of the Plaintiff by a declaration that his appointment pursuant to the repealed LTA 1981 was Constitutional.
    • (d) The Defendants’ rejection of the Plaintiff’s offer was justified given that the Plaintiff abandoned his claim for re-instatement during the substantive hearing and the judgment confirmed that the Plaintiff did not possess the criteria prescribed by the Constitution for appointment as President of the new LTC.
    • (e) The Defendants’ counteroffer was a genuine attempt to settle the proceeding by focusing on what reasonable compensation ought to be, on a principled basis and supported by authorities.
    • (f) Even though the Defendants’ counteroffer was made nine months before the substantive hearing, the Plaintiff did not respond further.
    • (g) The Plaintiff’s claim also fails to take into account that exemplary damages of $100,000 have already been awarded.
    • (h) Although the Court has in the past consistently awarded indemnity costs where a party demonstrated a clear and intentional disregard for known facts or established legal principles or where a party pursued unmeritorious claims or defences,^[9] here, the Plaintiff’s pleadings were such^[10] that the Defendants acted reasonably and their pleaded defences were meritorious, particularly given they “pertained to a novel set of circumstances that had not been confronted in the history of Samoa”.
    • (i) In the ordinary course, costs ought to follow the event and a successful party is entitled to a reasonable contribution towards costs. In accordance with the accepted approach of Aitken J in O N & Sons Construction v Pacific Forum Line:^[11]
      • “In determining the amount, the Court will first determine what the actual and reasonable costs of the successful party should be, and from that amount, what a reasonable contribution would be. Such contribution is usually fixed at 2/3rds of the reasonable costs identified.”
    • (j) Therefore, as a starting point, the itemised attendances of Counsel for the Plaintiff “need to be reviewed to eliminate attendances relating to parts of the proceedings that were either removed/amended, abandoned, withdrawn, not pursued by the Plaintiff as well as those parts of the proceedings dismissed by the Court”. Then, a reasonable contribution of two-thirds of the resulting reasonable costs can then be calculated.
    • (k) However, in this case:
      • (i) the Plaintiff was only partially successful on his claim “based on the Court’s own assessment rather than being grounded in particular pleadings or submissions from the Plaintiff”; and
      • (ii) none of the relief sought in the Plaintiff’s pleaded prayer for relief in the Fifth Amended Statement of Claim was granted by the Court.
    • (l) Further, if the Plaintiff had engaged in further negotiations following the Defendants’ counteroffer, it is possible that a settlement could have been achieved that was more aligned with the Court’s conclusion. If that be accepted, then all attendances after the counteroffer ought also be rejected.

Supplementary submissions

11. In light of the Attorney General’s apparent challenge to items of work and amounts claimed, on 4 July 2024, I directed Mr Ainu'u to file and serve his itemised bill or spreadsheet of costs.
12. On 8 July 2024, Mr Ainu'u filed two spreadsheets together with an explanatory memorandum. The first in time of the spreadsheets covered the period from 1 October 2022 to 19 July 2023 while the second covered the period from 20 July 2023 to 17 July 2024. Both were divided into sections pertaining to the different types of work performed and fee rates charged (as described in paragraph 9 above). Unfortunately, however, the line items were formatted so that the date of each activity was included in that cell and then sorted only in accordance with the day of each date rather than the whole date sequence. That resulted in the work described not being in chronological order which in turn made it more difficult to understand the sequence of works for each phase of the proceeding and the relationship between different work items during those periods.
13. Within the spreadsheets, a number of entries relating to Court of Appeal work had the duration of that work recorded but with zero sums claimed. The resulting amount tallied in the last row of the first spreadsheet was $27,088 and $34,409 in the second, making a total of $61,497 (excluding disbursements or VAGST).
14. In his accompanying memorandum, Mr Ainu'u explained that:
    • (a) he and Mr Faimalomatumua Mathew Lemisio worked on the matter;
    • (b) he recorded his hours in the aforesaid spreadsheets while Mr Lemisio recorded his “in the usual way”;
    • (c) Mr Lemisio performed eight hours of Court appearances, four hours of legal work and six hours of administrative work (which totalled $6,500); and
    • (d) the only work indirectly related to the Court of Appeal proceedings which is the subject of the present costs claim is for work following up on the Court of Appeal orders as to “back pay” for the Plaintiff, the order for the Plaintiff to provide an undertaking as a prerequisite for paying out the back pay, and the instant order as to costs.
15. Mr Ainu'u then restated his summary table of costs claimed this time differentiating between his hours (cross referenced back to subtotals in the two spreadsheets) and those of Mr Lemisio. The total remained $86,688 (including 20% disbursements and VAGST).
16. Mr Ainu'u also annexed five invoices, spanning 28 October 2022 to 28 March 2024, which he stated had been issued to and paid by the Plaintiff (through the “back pay” ordered by the Court of Appeal). Thankfully, the work described in the invoices was in chronological order. He described their inclusion as being “for comparison and in response to Madam Attorney’s query concerning what has been invoiced to date and settled”. The invoices, inclusive of disbursements and VAGST, totalled $72,586.
17. However, I note at this juncture that the last three invoices^[12] contained discounts of 30% on the legal fees, thereby reducing the total of the five invoices to $61,057.
18. Mr Ainu'u went on to explain that work for the period from 29 March 2024 to 17 July 2024 (which included the trial in May) had not been invoiced as the date of his primary costs submissions (27 June 2024) but was included in the spreadsheets as well as five hours for the preparation of the costs submissions. By my calculations, the value of that work totalled $23,586.^[13]
19. In conclusion, Mr Ainu'u submitted that a comparison of the invoiced total of $72,586 “already paid by the Plaintiff as actual cost” with the claimed costs of $88,688 “demonstrate that the amount claimed is reasonable, and properly incurred, and not overly exaggerated”.
20. On 11 July 2024, after considering the Plaintiff’s itemised costs, I directed Counsel to advise whether they wished me to fix the Plaintiff’s costs (as the Plaintiff’s submissions seemed to indicate) or whether they only required a ruling as to the basis of any costs order, to be later taxed or assessed by the Registrar, unless agreed. Both required the costs to be fixed. In that event, directions were also made for the Attorney General to file and serve any objections to any line-item costs claimed by the Plaintiff, followed by the Plaintiff’s responses to those objections.

Defendants’ objections

21. The Attorney General submitted the following objections to the Plaintiff’s claimed costs, in summary:
    • (a) The Plaintiff filed five amended Statements of Claim and three amended Notices of Motion for Judicial Review but abandoned four of the pleaded claims during the substantive hearing.
    • (b) The Plaintiff’s itemised work set out in the invoices and spreadsheets were “very difficult to reconcile”, and therefore proved “a challenge for the Defendants to separately quantify specific line items”.
    • (c) The invoices also appear to include Mr Ainu’u’s attendances on a matter relating to the HRPP political party.^[14]
    • (d) The Plaintiff’s costs ought be fixed in accordance with any reasonable steps that were taken within the periods covered by each of the invoices.
    • (e) The Fifth Amended Statement of Claim was filed and served on 19 April 2024. That was the basis on which the matter proceeded to the substantive hearing and the date from which reasonable costs were incurred.
    • (f) Therefore, the Defendants surmise that invoices 43/22, 55/22 and 98/23 relate primarily to pleadings that were eventually replaced by the Fifth Amended Statement of Claim. Those costs should not be allowed for the reasons set out in the Defendants’ primary submissions.
    • (g) It appears that almost all the attendances in invoice 114/23 relate to the Court of Appeal hearing on 11 July 2023.
    • (h) Some of the attendances noted in that invoice relate to the Judicial Settlement Conference (JSC) that took place on 12 June 2023 for less than half a day. The JSC proceeded on the basis of the pleadings that were subsequently amended and replaced by the Fifth Amended Statement of Claim. Those costs should therefore be rejected.
    • (i) Following the Court of Appeal hearing in July 2023, attendances in invoice 37/24 do not appear to cover any substantive steps taken in these proceedings. The invoice appears to relate only to attendances at court mentions and case management conferences in-chambers with the Chief Justice. The Attorney General surmised that part of the time recorded in that invoice relates to the Plaintiff’s application/motion dated 31 January 2024 seeking additional payment of wages for the Plaintiff pending the substantive hearing. The Defendants did not oppose that Motion and Orders were made by consent. Given the nature of those attendances, they should be charged at Counsel’s rate for administrative work ($200/hour) rather than the rate for Court attendances ($400/hour) and legal work ($350/hour). Objection was also taken to the total of 38 hours claimed in that invoice given the nature of the attendances.
    • (j) Mr Lemisio’s fees of $6,500 should be rejected as the Plaintiff has not set out a basis or justification for the costs of a second counsel.
    • (k) The amounts in Mr Ainu'u’s table for disbursements of $12,853 and VAGST of $11,563 have been claimed twice because they have already been charged in the invoices.
    • (l) Even though Mr Ainu'u has not submitted an invoice for the preparation of the Fifth Amended Statement of Claim and the substantive hearing on 27 and 28 May 2024, given the Plaintiff was only partially successful, the costs of the substantive hearing ought to lie where they fall.

Plaintiff’s responses

22. In response to the Attorney General’s objections, Mr Ainu'u submitted, in summary:
    • (a) The Attorney General's objections in respect of the invoices misconstrued the basis for the Plaintiff’s claim for costs. The Plaintiff’s claim is not based on the invoices because they included work for the appeal. The claim is based on the spreadsheets in which work relating to the appeal has been recorded but not claimed.
    • (b) To the Attorney General’s objection to the costs of all work performed prior to the Fifth Amended Statement of Claim:
      • (i) “The law is that costs must be 'reasonably' and 'properly incurred' by the successful party, but not necessarily, as the Attorney seems to suggest, costs incurred only in relation to the arguments/heads of claim that were successful at the hearing of the matter.”
      • (ii) The Court did not determine that any ground advanced by the Plaintiff was frivolous, vexatious or unreasonably pursued.
      • (iii) In October 2022, the Plaintiff sought to have his removal from office declared unconstitutional and to be reinstated. The natural and reasonable result of that was to challenge the appointment of the Second Defendant including on the bases that he was ineligible for appointment by reason of his age and that the process by which he was appointed was procedurally improper. At the hearing of this matter, the Plaintiff withdrew that challenge for “public interest reasons to avoid disruption and scandal to the work of the Land and Titles Court”. As such, the challenge against the appointment of his Honour Justice Vaai was reasonably advanced and pursued (and later reasonably withdrawn) by the Plaintiff.
      • (iv) The pleading amendments were reasonable and necessary as they included, variously:
        • (A) the “full and further arguments against the removal of the Plaintiff and the appointment of Justice Vaai as the new President”;
        • (B) what occurred after 29 October 2022 when the Original Motion and Statement of Claim were filed;
        • (C) the joinder of Justice Vaai as a party and the challenge to his appointment as the new President of the LTC;
        • (D) the joinder of the Government;
        • (E) further heads of damage in light of the decision in Sharma v The President of the Republic of Fiji^[15] delivered on 27 January 2024; and
        • (F) clarification of the quantum of the heads of damages claimed and the prayer for relief.
      • (v) Otherwise, the Plaintiff’s constitutional challenges against his removal from office and Justice Vaai's appointment remained the same.
      • (vi) The dismissal of certain of the Plaintiff’s claims or his abandonment of others does not render the costs incurred in respect of those claims unreasonable or improper.
    • (c) The Attorney General has misconstrued the references in the invoices to meetings at Petesa and with Dr Harrison and Fonotoe as being related to a different matter because “Fonotoe is a senior member of the Law Society and the reference records the consultation with Fonotoe and Dr Harrison regarding this matter”.
    • (d) The Attorney General did not elaborate on how or why the spreadsheets were said to be difficult to reconcile.
    • (e) Given that the “summary dismissal of a judge without compensation where constitutional protections for judicial tenure is in play” is the first case of its kind in Samoa, it was reasonable to engage Mr Lemisio as co-counsel to assist in the preparation and presentation of the matter.
    • (f) In light of the above explanation that the invoices are not the basis for the Plaintiff’s present costs claim, disbursements and VAGST have not been claimed twice.
    • (g) It was not necessary to provide an invoice for the 27 and 28 May 2024 hearing as the time, description, and costs of that work has been provided in the spreadsheets. “The Attorney General simply need[ed] to sift through the days leading up to and following the 27 and 28 May to determine what had been done on those day[s], the time it took to do it, and how much it cost.”
    • (h) The Attorney General did not genuinely seek to settle this mater. “A genuine attempt at settlement would be to acknowledge that at some level there might be some weight to the Plaintiff's position especially having the benefit of the Court of Appeal decision”. Despite that decision, “the Attorney General maintained there was no legal basis to entertain the settlement offered by the Plaintiff. The offer of one year’s salary was a further confirmation that the Attorney General had not accepted the alternative to her position: that section 67(6) of the LT Act 2020 may not or cannot usurp the constitutional protection for judicial tenure enjoyed by all Judges including the Plaintiff”.

Consideration

23. In the directions, liberty was also reserved, following the filing of the above supplementary submissions, for either party to request a further oral hearing. Neither party did so. Accordingly, this ruling has been made on the papers.

Principles

24. This action was brought principally pursuant to the Declaratory Judgments Act 1988. Section 14 of that Act provides that:
    • 14. Costs – The costs of an action, motion, or appeal under this Act is in the discretion of the Court, and the Court may in the exercise of that discretion order the whole or a part of those costs to be paid by a party, although successful in the action, motion or appeal, and may in a case direct that costs awarded to a party is taxed either as between party and party or as between solicitor and party.
25. Further, Rule 5 of the Supreme Court (Fees and Costs) Rules 1971 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 of the action or of the application, as the case may be, in full of all 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.
26. The exercise of those statutory discretions, and the appropriate approach to the resolution of this final issue, has been informed and conditioned by a number of principles, some of which were referred to by the parties in their submissions:
    • (a) The purpose of the Costs Rules and the scale of costs is to impose on the unsuccessful party an obligation to make a reasonable contribution towards the costs reasonably and properly incurred by the successful party.^[16]
    • (b) The scale of costs has not been amended since 1971 and therefore no longer reflects a reasonable contribution to costs in 21st century litigation.^[17]
    • (c) Rule 5 confers on the Court a broad and unfettered discretion, which must be exercised judicially, including to award costs of more or less than that prescribed by the scale.^[18]
    • (d) Ordinarily, costs should be awarded to the successful party. An unsuccessful party should be required to make a reasonable contribution towards the costs reasonably and properly incurred by the successful party.^[19]
    • (e) In determining the amount, the Court will first determine what the actual and reasonable costs of the successful party should be, and from that amount, what a reasonable contribution would be.^[20]
    • (f) While a practice has developed (derived from the general approach of the New Zealand Courts and the Court’s own experience of the outcomes of taxations or assessments of costs, and a desire, where appropriate, to avoid the additional time and expense of separate taxations of costs before the Registrar) of fixing that contribution, in appropriate cases, at up to two-thirds of actual and reasonable costs, there is no rule that a reasonable contribution to the successful party's costs means two-thirds of that party's costs, and each case must be considered according to its own particular circumstances.^[21]
    • (g) In determining a reasonable contribution, the following factors are relevant:^[22]
      • (i) the length of the hearing;
      • (ii) the amount of money involved;
      • (iii) whether arguments lacking substance (but not necessarily frivolous or vexatious) were advanced;
      • (iv) whether there has been poor pleading and/or presentation of the case;
      • (v) the degree of success achieved by the parties; and
      • (vi) whether the hearing was lengthened or shortened by the conduct of either party.
    • (h) A higher award of costs, up to and including on a full solicitor/client or indemnity basis, may be ordered when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course such as where:^[23]
      • (i) a party has acted unreasonably in pursuing a wholly unmeritorious or hopeless (but not necessarily frivolous or vexatious) claim or defence;
      • (ii) the case has been commenced or pursued for an ulterior motive;
      • (iii) a party has shown a wilful disregard of the known facts or clearly established law; or
      • (iv) a party has engaged in irresponsible conduct which needlessly prolonged the proceedings or increased their cost.
    • (i) Where the State is a party and the question involves a matter of public importance or one affecting the operation of a Constitutional question, a Court might require the parties to pay their own costs or make an order in favour of the unsuccessful party.^[24]

Indemnity costs?

27. The Plaintiff’s primary claim is for costs on an indemnity basis. I have interpreted the several grounds submitted as boiling down to two, namely:
    • (a) the Government’s imprudent refusal of the Plaintiff’s offer of compromise; and/or
    • (b) the Government’s wilful disregard of clearly established law.
28. It will be immediately noted that the decisions and principles referred to by Counsel, as summarised above, do not include any express reference to the first ground.
29. In Sua v Attorney General,^[25] the Court cited, with apparent approval, the view expressed by Lord Woolf that “the philosophy of litigation should be primarily to encourage early settlement of disputes”.^[26]
30. In a number of decisions in which indemnity costs have been considered,^[27] the principles expounded in the seminal Australian decision of Colgate-Palmolive Co v Cussons Pty Ltd^[28] have been applied. In that case, Sheppard J observed:^[29]
    • “... 4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England.
    • The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
    • 5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records).
    • Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
    • 6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.”
    • [emphasis added]
31. What then constitutes an imprudent refusal of an offer of compromise so as to enliven the Court’s discretion to order indemnity costs?
32. In 2008, the Samoa Law Reform Commission was “given a reference” by Cabinet and the Attorney General for the review and reform of the Samoan Court civil procedure rules and processes. In 2014, the Commission issued its second paper^[30] which included a review of offers of compromise and Calderbank Letters.^[31] It noted that the Supreme Court Civil Procedure Rules were silent on the subject. The Commission then presented a comparative analysis of such rules in New Zealand, Australia, Solomon Islands and the United Kingdom. Despite the Commission’s recommendations, the Rules remain silent on offers of compromise and the consequences of their unreasonable rejection.
33. Nonetheless, given the broad and unfettered nature of the Court’s discretion, generally in relation to costs, and the Samoan Courts’ adoption of the Colgate Palmolive principles in relation to indemnity costs,^[32] I consider the Plaintiff’s offer is a relevant consideration in the exercise of that discretion.
34. Consistent with the approach generally taken in those jurisdictions which have enacted procedural rules governing offers of compromise,^[33] before determining whether a Defendant’s refusal (or failure to accept) a settlement offer was imprudent or unreasonable, a number of features of the offer fall for consideration, including:
    • (a) whether the judgment was no less favourable to the Plaintiff than the terms of the offer; and
    • (b) whether the terms of the offer were capable of acceptance.
35. For the reasons which follow, I consider that the Plaintiff’s offer is not an effective basis for enlivening the Court’s discretion to order indemnity costs.
36. Firstly, at the time it was made, the principal object of the Plaintiff’s offer was for him to be reinstated as President of the LTC while the Second Defendant’s appointment was to be declared void with him being appointed instead as Chairperson of the LTC Appeals Court. However, the Plaintiff abandoned both those claims during the trial. The stated reasons for doing so, as recorded in the primary judgment, may well be considered laudable, but in the absence of any further or alternative offer for payment of compensation in lieu of reinstatement, the practical effect of the abandonment of those claims was that the operative terms of the offer could no longer be reconciled or compared with the ultimate judgment on the issues that remained, and on which the Plaintiff was successful. Therefore, it cannot be said that the judgment was no less favourable than the offer.
37. Secondly, in my opinion, it was legally impossible for any of the Defendants to accept or give effect to the operative terms of the offer. The Attorney General, on behalf of the Prime Minister or the Government, could not agree to the Plaintiff’s proposal for the plain reason that, as to the first part, the Plaintiff’s original appointment could not simply be continued because the LTA 1981 under which it was made had been repealed. Further, any continuation of the Plaintiff’s original appointment could only have been for the purposes of the limited jurisdiction or tenure as determined by this Court in its April 2022 decision. Moreover, any proposal involving the Plaintiff becoming the President of the new LTC, under Part IX of the Constitution, would necessarily have required the Prime Minister to advise the Head of State, pursuant to Article 104D(1), that the Plaintiff should be so appointed in circumstances where the primary judgment concurred with the Attorney General’s submission that the Plaintiff did not possess the first of the new Constitutional requirements for appointment, namely, no less than 10 years practice as a lawyer in Samoa. In other words, the offer itself was unconstitutional.
38. As to the Plaintiff’s second ground for indemnity costs - that the Government’s conduct in removing him from office constituted a wilful disregard of clearly established law – true it is that the principles of judicial independence have long been recognised throughout the Commonwealth and other jurisdictions. But this case involved more than that. As noted in the primary judgment, the context in which the dispute arose was novel in the sense that there has never been a previous court restructuring through legislative reform in Samoa which resulted in any judge of a court of record not only losing their position on the court but having their judicial appointment revoked entirely. In the absence of any clear curial precedent for guidance on the situation, I consider that the Government’s conduct, in terms of passing the legislative reforms with the known or presumed consequence they would have on the Plaintiff, fell short of a ‘wilful disregard of clearly established law’. Similarly, I do not consider the Government “behaved either badly or very unreasonably” so as to attract an order for indemnity costs.^[34]
39. However, the same cannot be said for the Government’s treatment of the Plaintiff post the reforms. Contrary to the well-established principles of judicial independence (canvassed in the primary judgment), upon the restructuring of the LTC, the Plaintiff was not offered a position on the new Bench, nor was he offered reasonable compensation. Properly advised, those requirements must have been known to the Government at the time because they were referred to in the authorities cited by the Attorney General in this proceeding, including, in particular, the remarks of Glazebrook J in Claydon v Attorney-General.^[35] That failure to act reasonably^[36] rendered it necessary for the Plaintiff to institute and prosecute these proceedings (and the allied proceedings along the way) in order to vindicate his legal rights. Conversely, had the Government heeded those principles, this action may well have been avoided.
40. For those reasons, the Attorney General’s primary submission that costs ‘should lie where they fall’ or that the Plaintiff should only be awarded ‘nominal’ costs must be rejected.
41. Further, I am satisfied that while indemnity costs are not warranted, the case is “well outside the circumstances in which scale or conventional costs (or anything similar) would be appropriate”,^[37] and that it is appropriate to award the Plaintiff costs on a higher than party/party basis.

Assessment

42. I turn now to consider, in light of the above principles and the parties’ submissions, what the Plaintiffs’ actual and reasonable costs should be. In doing so, I have taken into account the following:
    • (a) Rule 17 of the Supreme Court (Civil Procedure) Rules 1980 permits a plaintiff, at any time before or during the trial, to amend his Statement of Claim with the leave of the Court. No issue of leave has been raised here in respect of the Plaintiff’s various amended pleadings. The Rules are silent on the costs consequences of amendments to pleadings or in respect of any costs of an opposite party thrown away by reason of amendments. When one traces through the evolution of the Plaintiff’s claim, the amendments reasonably reflect, to a large extent, the novel and relatively complex nature of the dispute involving matters of Constitutional, public and jurisprudential importance. Mr Ainu'u’s invoices and spreadsheets also indicate the involvement of overseas counsel in providing advice in the matter, which no doubt found its way into the amended pleadings. The amendments to the various iterations of the Statement of Claim do not appear to have had any substantial impact on the responding Defences or the Defendants’ case concepts. The Attorney General has not sought costs in respect of any necessary amendments to those Defences. For those reasons, I do not accept the Attorney General’s submission that costs should only be allowed from the date of the Fifth Amended Statement of Claim. However, I do consider it appropriate to make allowance for any poor pleading and/or unnecessary prolongation of the case, by reason of the Plaintiff’s changes in pleaded position compared to the case he eventually ran at trial, by an overall reduction in his allowable costs.
    • (b) From the myriad pleadings, the parties agreed to conduct the hearing, and prepared for it, by reference to eight issues. During the hearing, the Plaintiff abandoned two of those issues. I am not persuaded by the reasons advanced by Counsel at the time and in his costs submissions, that the abandonment of those claims could not have occurred much earlier in the proceeding, thereby avoiding or reducing the costs to both sides of preparing those issues.
    • (c) Further, while I consider there to have been merit in the Plaintiff’s claims against the Second Defendant’s appointment by reason of his age, the Plaintiff’s consequential claim, as pleaded, for reinstatement was weak. In that regard, the Plaintiff was on notice, from the Court’s October 2022 decision, that “even if the Plaintiff had been improperly dismissed, he would not automatically be entitled to continue as President of the new LTC, a role which is now specifically provided for in the Constitution” and “the Applicant was not chosen to lead the new Land and Titles Court legal system, and this Court should be slow to interfere with judgment calls made by those empowered by the Constitution to make them”.
    • (d) Ultimately, the hearing was conducted, and the dispute determined, by reference to six issues. On judgment, the Plaintiff’s claim against the Prime Minister was dismissed but he was otherwise successful, to varying extents, on about half the remaining issues. Importantly, he was successful on what I regard to have been the core issue, namely, whether his removal from office was unconstitutional. In this regard, I note that the Attorney General has not advanced any claim for costs in respect of the Plaintiff’s failed claim against the Prime Minister or his abandoned claims against the Second Defendant. Further, in circumstances where the issues here involved a degree of overlap and common facts, I consider it undesirable to engage in any analysis aimed at producing an issues-based costs order.^[38] Rather, it is appropriate, in my view, to account for this aspect by a reasonable reduction in the Plaintiff’s allowable costs.
    • (e) Further in that regard, the Plaintiff enjoyed only modest success in respect of his claim for damages (approximately 22% of that claimed).
    • (f) I do not accept the Defendants’ criticism of the Plaintiff for failing to engage in any further settlement negotiations after the Attorney General’s counteroffer. In circumstances where an offer of compensation had been made, it was open to the Government to pitch that offer (or even successive offers) at a level which either satisfied the Plaintiff or matched or beat the judgment amount. Alternatively, no compelling explanation was ever advanced for the Government’s failure or refusal to offer the Plaintiff a position on the new LTC. During argument at trial, the Attorney General indicated that that option had not been considered because the Government needed a determination first on whether the Plaintiff’s removal from office was unlawful. That, in my review, was not a compelling reason for not including that option in any settlement negotiations. Had it sought to resolve the dispute on either of those bases, the Government would have been in a much stronger position on costs.
    • (g) The award of exemplary damages, referred to by the Attorney General, has no bearing on the issue of costs.
    • (h) I accept Mr Ainu'u’s explanation that the quantum of costs claimed is based on the entries in his spreadsheets (with Court of Appeal attendances marked as $0) rather than his invoices to the Plaintiff. However, I do take into account the fact that in the last three invoices, Mr Ainu'u was prepared to discount his legal fees by 30%. The resulting balance represents the costs incurred by the Plaintiff. Those discounts were not reflected in Mr Ainu'u’s spreadsheets or tables of costs claimed in his submissions. Mr Ainu'u did not elucidate any reason for those discounts in his submissions. Nor is it clear whether the same has or will be applied in any subsequent or final invoice/s to the Plaintiff.
    • (i) I do not accept the Attorney General’s complaints in respect of invoice 37/24. The work described therein all reasonably relates to this proceeding, and the time claimed for that work (a total of 38 hours for appearances, legal and administrative work respectively) is, in my view, reasonable given the eight-month period to which the invoice relates.
    • (j) The claim for Mr Lemisio’s fees, as co-counsel, should be allowed. In my view, the nature and relative complexity of this case warranted two counsel, as demonstrated by the Attorney General being assisted throughout by Mr Fong of her office for the Defendants.
43. In his table, Mr Ainu'u tallied all of his and Mr Lemisio’s work at $64,266. I have understood that figure to be intended to represent the total of Mr Ainu'u’s claimable work as recorded in his spreadsheets plus Mr Lemisio’s work ($6,500) plus five hours for preparation of the costs submissions (which at $350 per hour totals $1,750). However, there appears to be a mathematical (or typographical) error in part of the table. Under “Administrative Tasks”, the time claimed from the first spreadsheet of over 44 hours at $200 per hour has been totalled in the table at $3,429 whereas the spreadsheet records it (correctly) as $8,909. Once that figure is corrected, the total of work claimed should be $69,746.
44. Taking into account all the considerations in paragraph 42 above and doing the best I can with the material before me, I consider that the claimed costs for all work performed should be reduced to $50,000.
45. The next item for consideration is Mr Ainu'u’s claim of 20% (of all legal work) as “disbursements”. By email to the Registrar dated 8 July 2024, the Attorney General described that claim as “surprising ... (as opposed to disbursement costs actually incurred)”. In response by email later that day, Mr Ainu'u explained:
    • “The 20% disbursement is one of the terms of engagement of our Firm. The law does not allow for an unsuccessful party, let alone the Attorney General, to dictate who a Plaintiff should engage to represent him and the terms of the representation.”
46. No other basis for that claim was put in evidence or explained in submissions. Even if 20% for disbursements was a term of Mr Ainu'u’s retainer with the Plaintiff, as explained above, the Plaintiff is not entitled to a full indemnity of all costs paid to Mr Ainu'u (on whatever basis). Accordingly, I am not satisfied that this claim represents part of the reasonable and proper costs of the Plaintiff’s conduct of the proceeding, nor that it is appropriate to visit this amount on the Government.
47. In the ordinary course, and in a legal context, disbursements are expenses paid by a lawyer on the client's behalf. Item 29 of the Scale of Solicitors Costs allows for disbursements such as Court fees, witnesses' and interpreters' fees, allowances and travelling expenses, agency charges and other necessary payments. There is nothing in the material before me to explain what, if any, disbursements of that nature, were paid by Mr Ainu'u. Given that expenses such as Court fees are generally fixed amounts (and relatively modest), it is very difficult to see how they could be properly accounted for simply as a percentage (i.e. effectively, a sliding scale) of the value of the legal work performed. In the absence of any other evidence or explanation, I consider it appropriate to reduce the amount claimed to $5,000.
48. VAGST of 15% of the resulting subtotal of $55,000 amounts to $8,250, making a grand total of $63,250.
49. In accordance with the view expressed in paragraph 40 above, I consider that the Government should make a reasonable contribution of 80% of that sum, which I round down to $50,000.

Order

50. The Third Defendant is to pay the Plaintiff’s costs of and incidental to the proceeding, fixed in the sum of $50,000.
    

HONOURABLE JUSTICE WHITTEN KC
14 August 2024

^[1] Ropati v Attorney General [2024] WSSC 43

^[2] [389]

^[3] [390]

^[4] Rule 5 of the Supreme Court (Fees and Costs) Rules 1971; Keil v Minister for Natural Resources and Environment [2004] WSSC 32; Polynesian Limited v Samoa Observer Company Limited & Ors (30 July 1999); Morton v Douglas Home Limited (No. 2) [1984] 2 NZLR 620, applied in Tofilau Eti Alesana v Samoa Observer Company Limited & Savea Sano Malifa (16 September 1998); Asiata Alaelua Vaalepa Saleimoa Vaai v Faaitamai Pierre Meredith [1988] WSSC 30; Moala v Samoa National Provident Fund Board [2019] WSSC 21, approving Holden v Architectural Finishes Ltd [1997] 3 NZLR 143; Lavea v Mulitalo [2017] WSSC 17; Stevenson v Apia Construction & Engineering Ltd [2018] WSCA 6.

^[5] [11]

^[6] Described as “Preparation of all Court pleadings, submissions, memorandums including legal research and advice to the client regarding the Court Appearances (Civil Mentions, Callovers, In Chambers, JSC) above, the way forward in this matter and legal correspondence with the Court and the Attorney General.”

^[7] Described as “Includes all support and logistical work in relation to the legal work and court appearances above include, inter alia, corresponding with the Attorney General to follow up on judgements of this Court and consent orders in this matter.”

^[8] Referring to Polynesian Ltd v Samoa Observer Company Ltd [1999] WSSC 35 and OF Nelson Properties v Sia' Aga [2010] WSSC 54.

^[9] E.g. Tausaga v Electoral Commissioner [2020] WSSC 81 and Gray v Drake [2021] WSSC 18.

^[10] E.g. the Plaintiff’s claim against the Second Defendant and the claims for untaken and future annual leave and sick leave were only abandoned during the trial.

^[11] Unreported, 30 November 2015, cited with approval in Vaai v Speaker of the Legislative Assembly [2021] WSSC 80 (12 January 2021) where the three member Court dismissed a claim for indemnity costs on the basis that they were inflated and not justified.

^[12] Invoices 98/23, 114/23 and 37/24.

^[13] $21,836 for work from 29 March 2024 plus $1,750 ($350/hr x 5 hours) for the costs submissions, rounding each amount to the nearest tala.

^[14] The Attorney General specified, by way of example, “Invoice 43/22 attendance on 1 Nov 22 to ‘Petesa for the Meeting’ (Note: Petesa is the Headquarters for HRPP Party); Invoice 55/22 attendance on 25 Nov 22 to ‘meeting with Dr Harrison’ and ‘making way back with Fonotoe to Dr Harrison’ (Note: Fonotoe is Deputy Leader of Opposition Party – HRPP)”.

^[15] [2024] FJHC 49

^[16] Tofilau Eti Alesana v Samoa Observer Company Limited and Savea Sano Malifa (CP 42-97, 16 September 1998); Asiata Alaeula Vaalepa Saleimoa Va'ai v Faaitami Pierre Meredith [1998] WSSC (undated), applying the principles in Morton v Douglas Homes Limited (2) [1984] 2 NZLR 620, 625.

^[17] Keil v Minister for Natural Resources and Environment [2004] WSSC 32; MMI v IPL (Costs) [2024] WSSC 5.

^[18] Polynesian Limited v Samoa Observer Company Limited & Ors (30 July 1999); Lavea v Mulitalo [2017] WSSC 17, applying Re Wilcox; Ex parte Venture Industries Pty Ltd. and Others (1996) 41 ALR 727.

^[19] Faapo v Cabinet/Caretaker Government [2016] WSSC 23 at [23].

^[20] O N & Sons Construction v Pacific Forum Line (Unreported, 30 November 2015).

^[21] Moala v Samoa National Provident Fund [2019] WSSC 21, applying Apia Construction and Engineering Ltd v Samoa National Provident Fund [2017] WSCA 6.

^[22] Moala v Samoa National Provident Fund, supra, at [7], applying Holden v Architectural Finishes Ltd [1997] 3 NZLR 143. The late Chief Justice Sapolu noted that other factors which are relevant to determining a reasonable contribution in a particular case are set out in Civil Remedies in New Zealand (2003) pp 219-220, para 19.2.6.

^[23] MMI v IPL (Costs) [2024] WSSC 5 at [10]; Ponifasio v Attorney General [2021] WSCA 10, citing Polynesian Limited v Samoa Observer [1999] WSSC 35, where the Court adopted the principles stated in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 240; Stevenson v Apia Construction & Engineering Ltd [2018] WSCA 6; Samoa Red Cross Society Incorporated v Sapolu [2011] WSSC 43 at [50], citing, inter alia, Wilcox; Ex Parte Venture Industries Pty Limited & Ors (1996) 41 ALR 727.

^[24] Ponifasio v Attorney General, ibid, at [20], citing Ta'amalo and another v The Attorney General (unreported CA 2/95 B, August 1995); A v L (unreported CA 21/93, March 1994); The Attorney General v Saipaia Olomalu [1980-1993] WSLR 42.

^[25] [2013] WSSC 1 at [78].

^[26] Access to Justice (1995), Ch 4, para 22.

^[27] Polynesian Ltd v Samoa Observer Company Ltd [1999] WSSC 35; OF Nelson Properties v Sia' Aga [2010] WSSC 54; Lavea v Mulitalo [2017] WSSC 17; MMI v IPL (Costs) [2024] WSSC 5.

^[28] [1993] FCA 536; (1993) 118 ALR 240; (1993) 46 FCR 225, 232. Applied in OF Nelson Properties v Sia' Aga [2010] WSSC 54; Lavea v Mulitalo [2017] WSSC 17; MMI v IPL (Costs) [2024] WSSC 5.

^[29] [24]

^[30] Samoa Law Reform Commission, Civil Procedure Rules, Supreme Court (Civil Procedure) Rules 1980 and Magistrates’ Court Rules 1971, Issues Paper Two (IP/13), November 2014, [2014] WSLawRComm 2.

^[31] Calderbank v Calderbank [1975] 3 All ER 333.

^[32] See also Hazledene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298.

^[33] For example, rule 26.08 of the Victorian Supreme Court (General Civil Procedure) Rules 2015; rule 14.11 of the New Zealand High Court Rules 2016; rules 9.7 and 15.11 of the Vanuatu Civil Procedure Rules.

^[34] Lavea v Mulitalo [2017] WSSC 17 at [14], referring to Bradbury v Westpac Banking Corporation [2009] NZCA 234; [2009] 3 NZLR 400, cited with approval in Letele v Filia [2011] WSCA 2.

^[35] [2004] NZAR (CA) 16, as discussed in the primary judgment at [73], [191] and [350].

^[36] Lavea v Mulitalo, supra.
^[37] Petterson v Chan Mow & Co Ltd [2024] WSCA 2 at [20], referring to Apia Construction & Engineering Ltd v Samoa National Provident Fund [2017] WSCA 6. See also Siva Afi Investment Ltd v Attorney General [2012] WSCA 17 at [66].

^[38] Mickelberg v State of Western Australia [2007] WASC 140 (S), [43]; Chen v Chan (No 2) [2009] VSCA 233, [10].