Costs amounting to $22,000 that were paid to the courts by the Prime Minister 'Akilisi Pohiva should be paid back to him, the Chief Justice has ruled this week.

Lord Chief Justice O. G. Paulsen in a ruling on 22 June 2015 said that a Magistrate had no power to award costs in preliminary inquiry proceedings under Part III of the Magistrate’s Court Act or, in the circumstances of this case, any inherent power to do so. He ruled that the decision of the Magistrate awarding the respondents costs is set aside and the $22,000 that Hon. ‘Akilisi Pohiva had paid into court should be paid back to him.

Chief Justice Paulsen also directed for the respondents to advise within seven days if they wished to object to the release of the funds.

Dr Harrison, counsel for ‘Akilisi, was also given seven days to reply if objection is taken.

William Edwards, a counsel for the respondents, said this week that they intended to appeal against Chief Justice Paulsen’s decision.

Private prosecution

The appeal arose out of a case going back to February 2013 when ‘Akilisi began private criminal prosecutions against the respondents, Lord Tu‘ivakano, Princess Pilolevu Tuita, William Clive Edwards and the Friendly Islands Satellite Communications Ltd. The charges alleged serious dishonesty. The Magistrate conducted a preliminary inquiry (a committal hearing) and found that a sufficient case had not been made out to put the respondents on trial before the Supreme Court. The Magistrate Salesi Mafi discharged the four respondents.

‘Akilisi appealed the discharge to the Supreme Court, but the appeal was dismissed by Chief Justice Scott on 17 January 2014.

The Respondents, represented by S.J. Stanton SC, subsequently applied to recover their costs of $22,000 and their application was granted by the Magistrate’s Court on 10 September 2014.

‘Akilisi initially sought judicial review of the Magistrate's ruling on costs. However, Mr Justice Scott agreed it should have proceeded by way of an appeal and gave leave to appeal out of time. Costs were reserved pending the hearing of the appeal, which is the subject of this week's ruling by Chief Justice Paulsen.

The appeal was made on the issue of whether a Magistrate has the power to award costs against a private informant when exercising the preliminary inquiry jurisdiction under Part III, section 32 of the Magistrate's Court Act.

Genuine concern

In ruling that the Magistrate had no power to award costs in the preliminary inquiry proceedings, Chief Justice Paulsen stated that as a matter of principle, in circumstances where there is no express or implied statutory power to award costs, “it is difficult to see how the court's inherent power could extend so far, except as it necessary to prevent an abuse of the court's processes.”

In the interests of justice, Mr Justice Paulsen noted that he was also mindful of the submission made by Mr Stanton and Mr Kefu “that it is unjust that a party may bring an unsuccessful private prosecution, putting the accused to considerable cost and inconvenience, with no risk of an adverse costs order being made against them. The respondents understandably took steps, with the assistance of counsel to defend themselves against very serious criminal charges.”

He added that a successful accused has the right to recover wasted costs in an action for malicious prosecution, “although I accept this will mean that he must incur more costs on an uncertain outcome.”

Mr Justice Paulsen stated furthermore that the preliminary inquiry process is designed to minimise costs. “Also there is existing protection against vexatious prosecutions in the power that the Attorney General has to stay a private prosecution. There is also the court's power to stay a proceeding if it is an abuse of process.”

However, 'Akilisi had launched these prosecutions because of his genuine concern at the way these funds had been disbursed, and “That Mr Pohiva, acting in good faith, failed to make out a sufficient case to put the respondents on trial does not amount to an abuse of process.”