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Lavea v Mulitalo [2017] WSSC 17 (6 March 2017)

THE SUPREME COURT OF SAMOA
Lavea v Mulitalo [2017] WSSC 17

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER OF

Land and Titles Act 1981

BETWEEN

TAGALOAMATUA MULITALO LISONA LAVEA of Solaua Saluafata, Moata’
First Applicant

AND:

ANITA LUAFA MILFORD MULITALO of Solaua,Saluafata & Auckland New Zealand.

Second Applicant

AND

ATTORNEY GENERAL sued on behalf of the Land and Titles Court.

First Respondent

AND

THE PRESIDENT OF THE LAND AND TITLES COURT of Mulinuu

Second Respondent

AND:

CHRISTINE TAEFU Deputy Registrar, Land and Titles Court of Mulinu’u.

Third Respondent

Counsel:
P. Mulitalo for the 1^st and 2^nd Applicants
R. Masinalupe on behalf of the Attorney General’s Office for the 1^st, 2^nd and 3^rd Respondents.

Decision: 6 March 2017

DECISION OF CLARKE J (AS TO COST)

1. On the 2^nd February 2017, the Applicants withdrew these proceedings by leave granted by His Honour Sapolu CJ. The parties were ordered to file submissions as to costs within seven (7) days. Written submissions filed by the Attorney General on behalf of the Respondents were filed on 9 February 2017. Written submissions were not filed by the Applicant’s counsel within that period. Only on being advised of delivery of my costs decision scheduled for 12.30pm on the 23^rd February 2017 did counsel for the Applicants file written submissions on that morning. The Applicants Counsel filing of submissions in this manner is unsatisfactory. In fairness to the Applicants however, I delayed the delivery of my decision so that their submissions could be considered.
2. Counsels for the Respondents have applied for full indemnity costs in the sum of $14,957.00. Counsel for the Applicants opposes the claim for costs entirely on the grounds that, stated generally:
   1. Whether it is reasonable and just for public servants to be rewarded with costs in addition to remuneration they already received from salaries paid for by the State;
   2. Whether the costs of $14,957 was reasonable and properly incurred;
   100. Whether justice will be served by imposing costs of $14,957.00 within the context of the special and unusual features arising from the circumstances in this case;
   4. Whether delay by the Land and Titles Court of hearing contingent on outcome of appeal is fair and just.

The Proceedings.

3. The proceedings before the Supreme Court stemmed from a decision in the Land and Titles Court to adjourn a hearing date before that Court relating to proceedings LC 12075/P1 – P7 (“LC 12075”). The catalyst to the Supreme Court proceedings is a letter dated 9^th February 2016 from the Third Respondent to the various parties to LC 12075 under the subject heading “MATAUPU: E uiga I le Faalupega o le nuu o Solaua: LC 12075/P1 – P7”. That letter stated the following:

“O la outou mataupu ua taua I luga, ua fa’atulagaina I le aso 15 Fepuari 2016 ua tolopoina nei, ua talia e le Fa’amasinoga le talosaga a Malaulau Popo Aiuli mo le Alii ma Faipule o Saoluafata ma Loau Pao Luteru ona o tuatuagia le maaalofia ma faatasi ai seia maea iloiloina talosaga apili I le suafa Tagaloamatua I Solaua ma Manunu.”

[Translation] Your matter mentioned above, scheduled for 15 February 2016 is now adjourned, the Court has accepted the application by Malaulau Popo Aiuli on behalf of Chiefs and Orators of Saoluafata and Loau Pao Luteru due to unforeseen commitments and until the application for appeal pertaining to the title Tagaloamatua at Solaua and Manunu is heard.

4. The Third Respondent’s letter was addressed to the First Applicant, counsel for the Applicants and other parties to LC 12075. The letter was not addressed to the Second Applicant, I presume because she was not a named party in LC 12075.
5. In any event, on the 25^th February 2016, the Applicants filed a Notice of Motion for Judicial Review together with two supporting affidavits and a Statement of Claim. The supporting affidavit of the Second Applicant was sworn on the 15th February 2016 and by the First Applicant on the 19^th February 2016.
6. The decision sought to be impugned by the Applicants was that of the Respondents purportedly discontinuing or staying LC 12075. The Applicants challenged the purported discontinuance or stay as unlawful and unconstitutional on various grounds including:
   1. That the decision to discontinue did not comply with provisions of the Land and Titles Act 1981;
      2. The procedural flaw violated the Applicants’ right to a fair trial guaranteed under article 9 of the Constitution;
      100. The decision was unreasonable, inequitable and unjust; and
   4. The President of the Land and Titles Court must not be involved or be seen to be involved in petition by the Applicants as stated in Lavea v Kerslake [2015] WSCA 3 (17 April 2015).
7. The Applicants also filed a Statement of Claim seeking $50,068.00 against the Respondents arising from alleged actions of the Second and Third Respondents discontinuing LC12075 proceedings constituting misfeasance in public office. The particulars specifically allege that the Second Respondent failed to disqualify himself from discontinuing the proceedings before the Land and Titles Court and he did not declare his conflict of interest. There were no particulars setting out clearly how it was alleged that the Third Respondent committed misfeasance in public office.
8. In terms of the Applicants’ pleadings and documents, they lacked precision in drafting and confused an adjournment with a discontinuance and stay.
9. The written submissions for the Respondents set out the history of the Supreme Court proceedings. These include hearing dates for the Respondents’ strike out motion scheduled for the 18^th July 2016, 10 November 2016 and 13 February 2017. The hearing date of 10 November 2016 was vacated due to the unavailability of Applicants counsel and the third hearing date of 13 February 2017 was vacated due to the Applicants counsel’s indication that proceedings would be withdrawn. The Respondents prepared detailed legal submissions dated 4^th November 2016 for its strike out motion and an extensive case book.
10. In the Respondents’ written submissions as to costs, counsel draws the Court’s attention to a without prejudice save as to costs letter dated 3 August 2016 informing the Applicants that the decision conveyed by the Land and Titles Court through the 3^rd Respondent was an ‘adjournment’ and not a ‘discontinuance’. I understand this submission to mean that the Applicants were on notice from that date as to the error upon which the Applicants’ case was being brought.
11. Whilst the Respondent may be correct that the Applicants and their counsel should have been on notice from 3 August 2016 onwards, in fact, it was clear from the Respondents pleadings in the Notice of Motion to Strike Out filed on 4^th April 2016 that the Respondents case was that the Land and Titles Court had adjourned as opposed to discontinued LC 12075. That the matter was adjourned and not discontinued was also clear in the Third Respondent’s letter dated 9 February 2016 addressed to the parties to LC 12075 including the First Applicant and his counsel.

The Law:

12. The Samoan Courts approach to costs is well settled. Ordinarily, costs follow the event and are usually awarded on a party/party basis of the reasonable costs incurred (see: Crownland International Co Ltd v Pioneer Freight Futures Co Ltd BVI [2009] WSSC 102 (28 October 2009); O N & Sons Constriction v Pacific Forum Line, Unreported decision of Aitken J dated 30 November 2015). This Court is also not bound by the scale of costs under the Supreme Court (Fees and Costs) Rules 1971 (see: Polynesian Limited v Samoa Observer Ltd [1999] WSSC 35 (30 July 1999); O N & Sons Constriction v Pacific Forum Line, op. cit).
13. Similarly, the power of the Court to award indemnity costs is also well settled. In OF Nelson Properties v Sia' Aga [2010] WSSC 54 (11 June 2010), Slicer J stated the following:

“17. The principle governing indemnity costs have clearly stated in d in this jurisdiction. In Polynesian Limited v Samoa Observer /a>, the Court adopted the principles as stated in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 240. The general principles are:

1. The Court ought not depart from the ordinary rule that costs be ordered on a party and party basis unless there are special and identified circumstances
   
2. Those circumstances require some special or unusual feature in the case which include:
   1. That a party has acted unreasonably in pursuing a wholly unmeritorious or hopeless claim or defence
   2. A case which is commenced or pursued for an ulterior motive
   100. A party shows willful disregard of the known facts or clearly established law.”
14. In Bradbury v Westpac Banking Corporation [2009] NZCA 234; [2009] 3 NZLR 400 (8 June 2009), cited with approval by the Court of Appeal of Samoa in Letele v Filia [2011] WSCA 2 (13 May 2011), the New Zealand Court of Appeal also referred to ‘increased costs’ and summarized the approach to costs generally as follows:

“[27] The distinction among our three broad approaches: standard scale costs; increased costs; and indemnity costs may be summarised broadly:

a) standard scale applies by default where cause is not shown to depart from it;

b) increased costs may be ordered where there is failure by the paying party to act reasonably; and

c) indemnity costs may be ordered where that party has behaved either badly or very unreasonably.”

Discussion:

15. The Respondents seek indemnity costs on the basis that the Applicants proceedings had no prospect of success. Furthermore, the Respondents submit that unnecessary costs “could have been prevented if not for the Counsel for the Applicants ignorance of the law.” In essence, the Respondents appear to argue that the Applicants acted unreasonably in pursuing a wholly unmeritorious or hopeless claim and showed a willful disregard of the known facts or clearly established law.
16. In large measure, the Applicants proceedings against the Respondents as pleaded stem from a fundamental flaw. The Applicants litigated on the erroneous belief that the Respondents had discontinued or stayed LC12075 in breach of provisions of the Land and Titles Act 1981. The purported discontinuance or stay then formed the basis for the raft of allegations of breach of a right to a fair trial, failure to comply with the procedures of the Land and Titles Act 1981 including those relating to discontinuance, acting in conflict of interest in respect of the Second Respondent and misfeasance in public office by the Second and Third Respondents.
17. The Third Respondent’s letter of 9 February 2016 stated that LC12075 was adjourned by the Land and Titles Court. That LC 12075 was adjourned and not a discontinued or stayed was therefore patently clear prior to the filing of Supreme Court proceedings by the Applicants.
18. That the Second Applicant had sworn an affidavit on the 15^th February 2016 only 6 days after the date of the Third Respondent’s letter suggests a rush to litigate as opposed to any considered review of the facts, the Third Respondent’s letter and the applicable law prior to filing. Nevertheless, having not identified the difference between an ‘adjournment’, a ‘discontinuance’ or ‘stay’ from the Third Respondent’s letter, the Respondents’ Notice of Motion to Strike out filed on the 4^th of April 2016 should have placed both Applicants without any doubt that the basis upon which the Respondents’ case rested was that LC 12075 was ‘adjourned’ as opposed to discontinued or stayed. Even if the Applicants proceedings were correctly pleaded to challenge the ‘adjournment’ granted by the Land and Titles Court, the adjournment and the circumstances of its grant simply could not sustain the allegations made on the material before the Court.
19. Turning specifically to the Applicants grounds of opposition to the indemnity costs claim, counsel has not provided case authorities to support his submission that the State is not entitled to costs. The State is also entitled to costs and there is no substance to this ground.
20. Secondly, having perused the Court file, the extensive written submissions and research conducted on behalf of the Respondents for the strike out motion and having read the written submissions on behalf of the Respondents as to costs, I am satisfied that the costs claimed are reasonable and properly incurred.
21. Thirdly, in terms of counsel’s submission that the proceedings had special and unusual features being the delay in the Land and Titles Court proceedings and alleged improper involvement of the Second Respondent such that indemnity costs should not be awarded, the purported special and unusual features submitted are not such as to be relevant to the assessment of costs here. There is also no material before the Court to support the allegations of impropriety by the Second Respondent in any way as alleged by the Applicants and in fact, the affidavit evidence before the Court is to the contrary.
22. Fourthly, purported delay in the Land and Titles Court of the allocation of a hearing date arising from the decision to adjourn is not relevant to the assessment of costs in this Court.
23. Finally, the Applicants through counsel have pleaded financial hardship “if full costs are awarded to the respondents.” There was however no material furnished to the Court to support this submission made from the bar table.
24. The Applicants have withdrawn their application before the Supreme Court and therefore have abandoned their claim. Costs follow the event and there is no reason to depart from that position. The Applicants have in my view however acted unreasonably in pursuing their claim. Whilst indemnity costs might be justified, I am mindful that the Applicants ultimately withdrew proceedings and did not persist with this matter to a full hearing. I am also not convinced that at the end of the day, indemnity costs are warranted. In all the circumstances and given the unreasonableness of the Applicants’ proceedings and conduct, I have determined to award increased costs and not full indemnity costs.

Result:

25. The Court has an absolute and unfettered jurisdiction in awarding costs, but that discretion must be exercised judicially (See: Re Wilcox; Ex parte Venture Industries Pty Ltd. and Others (1996)] 41 ALR 727).
26. Taking on board the factors I have raised above, I have determined to award increased costs at 75% of the costs reasonably incurred. Accordingly, I award costs to the Respondents in the sum of $11,217.75 against the First and Second Applicants jointly and severally.
    

JUSTICE LEIATAUALESA DARL CLARKE