In my view the answer to the
first issue ought to be in the negative. In his judgment for taxation
review, His Lordship
Judge Vincent Lunabek said this at paragraph 3:
�At that time, I sat as the
CRegistrar/Taxation Master. I still hold the same views....�....�
Although His Lordship sat as a
Judge, he gave a jud in which he upheld his views as Chief Registrar
and and Taxation
Master. That in my opinion cannot have been a review and it is
my view that the Applicant has been denied his right. The term
�Review�
translated means �to see or behold again�. It is an act of looking over
something again with a view to correction
or improvement. It means also to
re-examine or to reconsider something. (see the shorter Oxford English
Dictionary).
It is my view therefore that
when ae upholds his decision as Chief Registrar/Taxing Master, thr, there
has not been a
review within the ordinary meaning of the word, and as such,
the Applicants have been denied their right to a review to a Judge.
If a
Judge reviewing taxation has made his determination and the Applicant is yet
not contented, the Applicant then has
a right to appeal against the decision
of the Judge. In Vanuatu this is done in the Court of Appeal. In this case I
hold
that there has not yet been a �review� and the application is allowed
accordingly.
Second Issue
The Applicant says that they do
gree that their professional Costs was taxed by the Taxing xing Master at a
rate of VT
10,000 per hour. Mr Sugden argued that substantial justice
requires that the Applicant gets his costs at the rate of VT 20,000
per
hour. He referred me to Article 47(1) of the Constitution which reads:-
�The administration of
justice is vested in udiciary, who are subject oect only to the Constitution
and the law. The function
of the judiciary is to resolve proceedings
according to law. If there is no rule of law applicable to a matter before
it, a court shall determine the matter according to substantial justice and
whenever possible in conformity with custom.�
This submission is made due to
the presumption that there is no rule of law in Vanuatu govu governing costs and
taxation thereof.
Mr Sugden argued thattion
has nothing to do with what a Solicitor gets paid but to obtain justice.
F Further he argued
that solicitors acting for either parties in a case get
paid their full bills either at the time or after taxation. In Vanuatu
unless otherwise decided by the Solicitor the rate is VT20,000 per hour. He
submitted that where a Court finds for the
winning party, substantial
justice requires that the losing party reimburses the solicitor the whole of
his costs. The
rational behind this is that the winning party is forced to
go to Court to obtain justice. Where the suing party loses and
having put
the winning party at an expense that would not have been incurred had the
suing party not initiated the Court
proceedings, it is fair and just to
award costs to the winning party. That cost includes solicitor�s costs which
is reimbursed
to him in full.
I accept these arguments and
submissions.
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But Mr Sugden further submitted
that the iples as regards taxation in England govern Vanuatu up unti until
independence
and remain binding to date. This is done by virtue of Article
95(1) & (2) of the Constitution which reads:-
�Existing Laws
95(1) Until otherwise
provided by Parliament, all Joint Regulations and subsidiary legislation
made thereunder in force
immediately before the Day of Independence shall
continue in operation on and after the day as if they had been made in
pursuance of the Constitution and shall be construed with such adaptations
as may be necessary to bring them into conformity
with the Constitution.
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(2) Until otherwise provided
by Parliament, the British and French laws in forceforce or applied in Vanuatu
immediately
before the Day of Independence shall on and after that day
continue to apply to the extent that they are not expressly revoked
or
incompatible with the independent status of Vanuatu and wherever possible
taking due account of custom.
(3).....�
These provisions fall within
the transitionovisions of the Constitution which clearly state that
until Parliament
provides for the necessary legislation governing a
particular subject or matter, the law applicable shall be British or French
laws. It has been submitted to me that in Vanuatu there is no statute
governing taxation, therefore the principles as
applied in England apply in
Vanuatu by virtue of Article 95(1) and (2). I find these submissions sound
in law and I accept
them entirely.
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I was referred to the
provisions of Articles 92 and 94 of the Constitution as the legal basis for
or
submitting that
the Common Law of England forms part of the law of Vanuatu.
I need not to quote those provisions here as it suffices to say
that it is a
fact, and this Court takes judicial notice of that fact. A number of cases
provide clear authority for this:-
(a) Morris Ben v. Public
Prosecutor, App Case No. 7 of 1993, 2 3, 2 VLR, 687 at p.689.
(b) Attorney General v.
President Frederick K. Timakata, App Case No. 1 o. 1 of 1993 , 2 VLR 679 at
pp 682-683.
(c) Lindsay Barrett v.
Patterson & Or, App Case No. 122A of 1992, 2 VLR at pp 564-565.
(d) Kalkot MatasKelekele v.
Iolu J. Abil, App Case No.7 of 1991, 2 VLR 517 at p. 518.
(e) Marie Noelle Ferrieux v.
Banque Indosuez, App Case No. 1 of 1990, 2 VLR 490 at p. 492.
(f) Hon. Willie Jimmy v. The
Ombudsman, Civil Case No. 111 of 1995, pp 2, 3, & 5.
(g) Marie Rose Banga v.
Emily Waiwo, App case No.1 of 1996, at p. t p. 10.
With these line of cases I persuaded to accept that English Common Law not only is it persuasive but is
als also binding
on Vanuatu. As regards costs and taxation, the principles
applicable in England are binding on the Republic of Vanuatu by virtue
of
Article 92(2) of the Constitution.
As regards the issue of how
much should be awarded in this case, I am of the view that VT20,000 is the
right amount. I
take judicial notice of the fact that the going rate in
Port-Vila at the present time is VT20,000 per hour. I also take judicial
notice of the fact that this Court has in the past made Orders awarding
costs at VT20,000 per hour. Depending of course
on the circumstances
surrounding each individual case, here I am persuaded to follow those
decisions. I accept that VT20,000
is to be decided on the broad average rate
principle. Geography is what the Court has to be concerned with in
considering
taxation of costs. (See Edwin Pierce Brown II v. Scott &
Thompson reported in the Gazette 91/44 30th November 1994 at p.15).
It is without doubt that the
costs of and incito all proceedings in the court shall be in the
discrdiscretion of the Court
(see Order 65 Rule 1 of the High Court (Civil
Procedure) Rules 1964). But having held that the principles of Common law
apply in Vanuatu, one such principle is that of Geographical consideration
as shown by the Edwin Pierce Brown II case (Supra), it is my judgment
that the discretion has to be exercised having regard to the geography of
the parties to the
proceedings. That being so, for Port-Vila the appropriate
amount to be claimed on taxation on a party and party basis is VT
20,000 per
hour.
<
In my jnt therefore, both
substantial justice and the Common law of England as applicable inle in Vanuatu
require that
the appropriate amount to be paid on a party and party cost is
VT20,000 per hour. And I conclude therefore, that this is the
sum that the
solicitor is entitled to charge his client in the instant case to be
reimbursed to him by the losing party
namely, the Defendant, Mr Lessegman.
I therefore allow the review
and order as follows:-
1) The Order of the Taxing
Master and Chief Registrar dated the 5th day of June, 1995 be a be and is hereby
set aside.
2) That the Plaintiff recover
against the Defendant professional cost costs in the sum of VT641,000 plus
disbursements
in the sum of VT 89,540 totalling to the sum of VT730,540.
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3) There be no further orde
to costs.
DATED AT PORT-VILA THIS
................... DAY OF AUGUST, 1997
BY THE COURT
OLIVER A. SAKSAK
Judge
