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Musuvanua v State [2010] FJHC 379; HAA017.2010 (3 September 2010)

N THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. HAA 17 OF 2010

BETWEEN:

ORISI TOLOI MUSUVANUA
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Mr. Kohli - for the Appellant
Ms. Bull - for the Respondent

Date of Ruling: 3 September 2010

RULING ON COST

1. The appellant preferred an appeal against the sentence.

2. The appeal was mentioned on the 4th August 2010. Mr. Singh appeared on behalf of Mr. Kohli for the appellant and the appeal was fixed for hearing on 11th August which was suitable for both counsels. Further it was agreed by Mr. Singh to file the written submission on 9/08/2010, with copies to the State Counsel and the State Counsel to file his written submission on the 10/08/2010. Hearing on 11/08/2010.

3. On the 11th August 2010, Mr. Lomaloma appeared on the instruction of Mr. Kohli and sought an adjournment till 12/08/2010. It was granted.

4. On the 12/08/2010, Mr. Kohli appeared in court and submitted that he couldn't come on the previous day, due to his commitment at High Court, Suva. And other reasons.

5. On the 11th and 12th, it was informed to Mr. Kohli and his instructing counsels that the court is inclined to impose cost if there is no proper explanation offered for moving out the appeal. Mr. Kohli was given time till 20/08/2010 to file his submission, and the State was given time till 23/08/2010.

6. Mr. Kohli submitted a written submission which contains a number "HAC Case No. 96/2010." I do not see this number has any relevancy to this case (may be the Magistrates Court Case Number). Since the parties names are correct, I presume that written submission belongs to this case regarding awarding of cost.

7. Mr. Kohli submitted three pages written submission with annextures. There he discuss several matters including past and present practices of court and double booking.

8. I take judicial notice that Mr. Kohli informs this court on the 2nd August 2010. Mr. Kohli moved out a case before me on the ground that he is held up in Suva before the High court on an ongoing trial.

9. It was on the instruction of Mr. Kohli, Mr. Singh obtained 11/08/2010.

10. Senior Counsel with more than 26 years in Practice should have known to estimate his time and to obtain dates for appeal hearing. Because of his moving of adjournment, the valuable Court time and the State time wasted apart from the inconvenience.

11. I carefully considered the submission of Mr. Kohli. He states that he presumed that the trial will be taken up before Justice Goundar. Since he is in Suva and certain trials are fixed before him in Suva. Mr. Kohli presumed that this will not be reached at Labasa.

12. I am unable to accept the submission because Mr. Kohli who is a very senior and busy practitioner. He should have known that there are more then 5 judges sitting in the Criminal Division. I do not know how Mr. Kohli presumed as stated above, because 5 judges are continuously sitting more than last 2 ½ months at least.

13. Considering the seniority of Mr. Kohli I do not describe this issue as a double booking, but he has not properly assessed his cases which is also frown upon by judiciary.

14. Now I consider Section 150 of the Criminal Procedure Decree.

"A judge or magistrate may order any person convicted of an offence or discharged without conviction in accordance with law, to pay to a public or private prosecutor such reasonable costs as the judge or magistrate determines, in addition to any other penalty impose."

15. To award costs against counsel is clearly sets out at Section 150 (4). It refers as follows:

"A judge or magistrate may take any other order as to costs as may be required in the circumstances to –

1. defray the costs incurred by any party as a result of an adjournment sought by another party;
   
2. recompense any part for any costs arising from any conduct by any other party which delays a trial or requires the expenditure of monies as a result of the conduct of that party during a trial;
   

100. penalize a lawyer for any improper action during a trial, and in such a case the order may be that the lawyer pay the costs personally; and
     

4. otherwise meet the interests of justice in any case.
   

16. In Akinisi Panapasa vs the State Crim Misc HAM 101 of 2010 His Lordship Justice Goundar states as follows:

"The decree has retained the circumstances provided by the Code, there is now a wider power to order costs against either prosecution or the defence."

17. In Von v Commonthwealth of Australia (No 2) [2009] FCAFC 172 (8 December 2009) at [15], the Full Court of the Federal court of Australia referred to the relevant provisions of the Federal Court of Australia Act and of the Federal Court rules, and stated:

"There are two bases upon which the court may make an order for costs personally against a legal practitioner. The first is s 43 of the Federal Court of Australia Act 1976 (Cth). An example of the exercise of this discretion is to be seen in the case of Ex Christmas Islanders Association Inc v Attorney- General (Cth) (No 2) [2006] FCA 671; (2007) 233 ALR 97, where French J (as he then was) required that a barristers and solicitor pay the Commonwealth's costs personally.

The second basis is to be found in O 62 r 9 of the Federal Court rules which allows the Court to award costs against a legal practitioner if it appears to the Court that 'costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default..."

18. In a discussion of s. 97(b) of the Magistrates (Summary Proceedings) Act 1975 of the State of Victoria, which provisions are similar to "counterpart provisions in New South Wales, Victoria, Queensland, South Australia, the Australia Capital Territory and the north Territory", which provision is similar also to s. 150 (2) of the Criminal Procedure Decree, the High Court of Australia in Latoudis v Casey [1990] HAC 59; [1990] HCA 59; (1990) 170 CLR 534 (20 December 1990) referred to the unfettered nature of the discretion to award costs, and cited the Victoria case of Puddy –v- Borg [1973] VicRp 61; (1973) VR 626 where the Supreme Court of Victoria stated:

"The discretion is one to be exercised in each case according to its own circumstances. Beyond limiting the power to such costs as to the court seems just and reasonable; the sub-section does not otherwise circumscribe the discretion conferred. No doubt it must be exercised judicially so as to achieve what is fair and just between the parties according to the circumstances of the particular case, and its exercise is open to challenge according to the well-established rules which govern the exercise of discretionary powers."

19. Considering the Law and the decided cases, I am of the view that Mr. Kohli has caused undue delay in disposing an appeal and wasted the time of court, therefore I have decided to award cost against Mr. Kohli.

20. Now I consider the quantum of the costs. It is not an easy task to assess the cost. The court time, time of other Counsels, State and other parties who are in Court at that time. So it is not possible to quantity. But considering the seniority of Mr. A Kohli, I decide to award a reasonable cost.

21. Considering all factors, I fix the cost at $500. Mr. Kohli to personally pay this cost within 14 days.

S. Thurairaja
JUDGE

At Labasa
3 September 2010