DC366

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 158 1OF 2005

BETWEEN

Esther Job
Complainant

V

Hoihoi Trading
First Defendant

Wembo Security Services
Second Defendant

Port Moresby: Gauli, Sm
2005: 18th July
09th, 29th, 31st August
07th

District Court – Practice And Procedure- Notice Of Motion To Stay The Current Proceedings Until The Defendant’s Costs Are Paid

Law Applicable – Section 22 Of The District Courts Act, Order 12 Rule 7 Of The National Court Rules.

COUNSEL
Mr. Greg Kunjip of Yapao Lawyers For The Complainant 
Mr. Virgil Narakobi of Narakobi Lawyers For The Defendant

Decision of the Court

30th August, 2005

GAULI, SM: The Defendant filed a Notice of Motion on the 08th June, 2005 seeking orders:

(1) To stay the current proceedings registered as DC158 of 2005 until Complainant pays the Defendant’s cost of K750.00 in the case registered as DC:2162 of 2004.

(2) The Complainant to pay the cost and this proceedings.

(3) Any other orders the Court sees fit to grant.

The brief background which leads the Defendant to seeking the above orders are as follows:

In the COMPLAINANT NO DC2612/2004 Between ESTHER JOB (Complainant) –V – CHOLAI TRADING LTD (First Defendant) and WEMBO SECURITY SERVICES LTD (Second Defendant) the Complainant claimed K4 700.00 for the loss of cash (K3 554.00) and other items which went missing at the Security check in counter. This proceedings was struck out by the Court on the 19th August, 2004 for want of form. And the Court awarded costs in favour of Defendants in the sum of K750.00. The case was struck out due to wrongly naming the Defendants.

Then on the 18th April, 2005 the Complainant laid fresh Proceedings against the same Defendants for the same subject matter of complaint. However in this present proceedings the Complainant named the First Defendants as HOIHOI COMPANY NO. 54 LTD Trading as CHOLAI TRADING in the Complaint NO DC:1518 of 2005.

And the Defendants in their Notice of Motion filed on the 08th June, 2005 seeks the orders as stated above for the reasons that the complainant has yet to pay the Defendants cost as per the Court Order of the 19th August, 2004.

The District Court has power to award costs under section 260 (1) (b) of the District Courts Act where the case is dismissed. There is no provisions in the Act nor under section 260 of the Act that gives the District Court the Jurisdiction to award costs for the defendant when the case is struck out, it is just as good as been dismissed and therefore Section 260 (1)(6) of the Act must apply.

Section 22 of the District Courts Act gives the District Court jurisdiction to grant such relief, redress or remedy or the combination of them whether absolute or conditioned as ought to be granted in a similar case by the National Court.

In the present proceedings the Defendant is seeking orders to stay this proceedings until his costs are paid by the Complainant. There are no provisions in the District Act that empowers the District Courts to grant such stay orders. However under the Section 22 of the District Courts Act of it general ancillary jurisdiction, the District Court can fall back to the National Court Ruler, particularly to the Order 12 Rule 7 for this particular application. Sub-Rule (2) of Rule (7) of the Order 12 states and I quote:

"(2) Where – 

(a) the court makes an order for the dismissal of proceedings so far as concerns the whole or any part of any claim for relief by any party; and

(b) the Court orders the party to pay any costs; and

(c) before payment of the costs, that party brings against a party to whom the costs are payable further proceedings on the same or substantially the same cause of action as that on which that claim for relief was founded.

The Court may stay the proceedings until those costs are paid."

The cause of action in the earlier proceedings registered as DC 2612 of 2004, which was struck out on the 19th August, 2004, and the cause of action in the current proceedings registered as, DC 1518 of 2005 are same or are substantially the same. And that the Complainant has not paid the Defendant’s cost of the earlier proceedings before filling the fresh proceedings. Under these circumstances this Court is satisfied that the stay order sought by the Defendant should be granted.

The Complainant does not refuse to pay the costs awarded by the Court. However the Complainant submitted that the costs should be in a taxable form pursuant to the District Court Regulation.

The Defendant rebutted and he submitted that the costs awarded by the Court on the 19th August, 2004 is a liquidated sum therefore it should not be in a taxable form.

I would agree with the Defendant’s submission for reasons that when the court awarded cost the Court made a liquidated sum instead of the costs been made in general. The Complainant should have requested for the costs to be in taxable form at the material time. For the Complainant to request for the costs to be in a taxable form same twelve (12) months after the award was made would be quite unreasonable.

For the reasons alluded above I would grant the Defendants Notice of Motion and the orders sought therein as follows:

ORDERS

1. That the current proceedings in the Complaint No. DC 1518 of 2005 be stayed until the Complainant pays the Defendants costs, the sum of K750.00 in the case registered as DC 2612 of 2004.

2. That the Complainant to re-set the returnable date of the current proceedings in DC 1518 of 2005 once the costs are settled and notify the Defendant of the new
 
3. The Complainant to pay the costs of this proceeding in a taxable form.

In Person: Complainant
In Person: Defendant