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Biukoto v Public Service Appeal Board [2006] FJHC 62; HBC012.2005 (11 August 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 12 OF 2005

NO. 157 OF 2006

BETWEEN

EMELE BIUKOTO
Applicant

AND

PUBLIC SERVICE APPEAL BOARD
1st Respondent

AND

KESHNI LATA KUMAR
Interested Party

Appearances: Messrs Law Naivalu for the applicant
Eroni Veretawatini Lawyers for the 1st Respondent

Decision: 11 August 2006

JUDGMENT

[1] Before me is a motion filed by the 1st Respondent (PSAB) for orders that:

(i) the applicant give security for costs

(ii) in default of security, the action be struck out

(iii) costs of the application be awarded to it on an indemnity basis.

Background

[2] On 9 August 2005, an application was filed by the applicant for leave to apply for a judicial review of the decision of the PSAB made on 9 May 2005. The application was opposed. The PSAB filed it’s Notice of Opposition on 12 August 2005. A comprehensive affidavit in reply was filed on 25 August 2005. Thereafter the matter was listed and adjourned as follows:

(i) 30 September 2005: Applicant sought time to reply to PSAB affidavit. The case was adjourned to 21 October 2005

(ii) 21 October 2005: adjourned to 16 November 2005

(iii) 16 November 2005: adjourned to 20 January 2006

(iv) 20 January 2006: adjourned to 3 March 2006

(v) 3 March 2006: adjourned to 10 March. Counsel who appeared for the applicant sought time to obtain further instructions. The case was adjourned to 10 March. The Court excused the attendance of the PSAB for the adjourned fixture

(vi) 10 March 2006: the applicant sought leave to withdraw the application for leave. The PSAB did not appear given that it’s attendance had been earlier excused. The leave sought to withdraw was granted.

[3] I note that each adjournment was occasioned by the applicant. Following the withdrawal of the proceedings the PSAB filed a submission on costs dated 31 March 2006. It submitted that it was entitled to costs on an indemnity basis. Those costs are itemized in the submission, totaling $3, 947.24. It relied on Orders 62 and 65 HCR. Following the filing of it’s submission the motion herein was filed. It is opposed.

Consideration of motion

[4] In essence the learned counsel for the applicant contends that the PSAB motion is misconceived given that the grant of leave to withdraw the proceedings concluded the proceedings without any orders on costs being made. He also submitted that the PSAB’s application was also misconceived being an application for security for costs where proceedings had been effectively terminated. I agree.

[5] The order sought for security would now be of no effect given the withdrawal of the proceedings. Accordingly I dismiss the motion.

Order 62 r 5 (3)

[6] The dismissal of the PSAB’s motion for security for costs does not end the matter. Order 62 r 5 (3) HCR provides:

"Cases where order for costs deemed to have been made"

Where a party by notice in writing and without leave discontinues an action or counter claim or withdraws any particular claim made by him as against any other party, that other party shall be entitled to his costs of the action or counter claim or his costs occasioned by the claim withdrawn, as the case may be, incurred to the time of receipt of the notice of discontinuance or withdrawal". (emphasis added)

[7] On 10 March when the applicant made an oral application for leave to withdraw the proceedings, the PSAB was not present in Court, it’s appearance having been dispensed with by the Court on the previous fixture, given that the adjournment to 10 March was only to enable the applicant’s counsel to obtain further instructions from his client. It appears that the applicant’s solicitor did not give prior notice of his intended application to withdraw the proceedings to the PSAB before the oral application was made. More importantly, the PSAB could not have applied for costs on 10 March because it did not appear.

[8] I am of the view that it should not be prejudiced by it’s not appearing on 10 March given that the adjourned fixture was only for the applicant’s benefit. It would be patently unfair for the PSAB to be deprived of costs it would otherwise be entitled to because it’s attendance was dispensed with given that the proceedings had a history of being continuously adjourned at the applicant’s behest. O. 62 r 5 deals with cases where an order for costs is deemed to have been made – this includes cases where a claim has been withdrawn, as in the present case. The PSAB is accordingly entitled to it’s costs of the action.

[9] It is also my view that an order for indemnity costs is not warranted in the circumstances of this case having taken into account the factors I am required to consider in the exercise of my discretion. The relevant principles are summarized in the Extempore judgment of Justice Gerard Winter in In re Agressor Fiji Ltd [2005] FJHC 48, HBE 0040. 2004 (3 March 2005). Applying those principles, I reluctantly decline to award indemnity costs but am compelled to mention that this is a borderline case.

Conclusion

[10] The applicant is to pay the PSAB the global sum of $1, 500.00 for costs and disbursements in relation to the proceedings.

Gwen Phillips
JUDGE

At Lautoka
11 August 2006