[1971-72] PNGLR 150

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

RAHONAMO

V.

ENAI AND THE ADMINISTRATION OF THE TERRITORY OF PAPUA NEW GUINEA (RE HITAU NO. 2)

Port Moresby
Kelly J

25 May 1971
28 May 1971

APPEAL - Security for costs - Circumstances in which order made - Considerations relevant to amount - Supreme Court (Full Court) Ordinance 1968 s. 23[clxxx]1 - Administration as party to appeal - Claims By and Against the Administration Ordinance 1951 s. 8.[clxxxi]2

APPEAL - Practice and Procedure - Notice of appeal - Grounds and particulars of appeal - Power of Judge to direct amendment - Supreme Court (Full Court) Ordinance 1968 s. 12.[clxxxii]3

The impecuniosity of an appellant and the consequent likelihood of his being unable to pay the respondent’s costs of an appeal if it should be unsuccessful is a special circumstance in which the court or a judge is empowered to order that such security be given for the costs of an appeal as is just within s. 23(1) of the Supreme Court (Full Court) Ordinance 1968.

Harlock v. Ashbury (1881), 19 Ch.D. 84; Stock and Another v. Woods and Another, [1957] St. R. Qd. 62, and Scerri v. Northam Holdings Pty. Ltd., [1967] V.R. 674 approved.

Considerations relevant to amount of security discussed.

Section 12 (1) of the Supreme Court (Full Court) Ordinance which provides that when an appeal is pending before the Full Court a direction not involving the decision in the appeal may be made by a judge, is wide enough to enable a direction to be made that a notice of appeal be amended in certain specified particulars where the notice of appeal falls short of what is required and it appears to be both necessary and desirable that an appropriate direction should be made with a view to remedying the situation and facilitating the hearing of the appeal.

Summons.

The facts appear sufficiently from the judgment of Kelly J.

Counsel:

Ross, for the applicant.
The respondents Rahonamo and Enai in person.
Cur. adv. vult.

28 May 1971

KELLY J:  The applicant, the Administration of the Territory of Papua and New Guinea, is one of the respondents to an appeal brought by the appellant, Bobby Gaigo Rahonamo on behalf of himself and the members of the Laurina clan of Tatana Village from a judgment of Clarkson J. given under Division 3 of Part V of the Land Titles Commission Ordinance. The applicant seeks firstly, an order that the appellant give security for its costs of the appeal in the sum of $747.00 within one month of the date of the order, and, secondly, a direction that the appellant’s grounds and particulars of appeal be amended in a number of respects.

By s. 23(1) of the Supreme Court (Full Court) Ordinance 1968 the Full Court or a judge is empowered in special circumstances to order that such security be given for the costs of an appeal as is just. It has repeatedly been held that the impecuniosity of an appellant and the consequent likelihood of his being unable to pay the respondent’s costs of the appeal if it should be unsuccessful is a “special circumstance” in this context (see, for example, Harlock v. Ashberry[clxxxiii]4; Stock v. Woods[clxxxiv]5; and Scerri v. Northern Holdings Pty. Ltd.[clxxxv]6). The material before me indicates that if this appeal should fail it is unlikely that the appellant could pay the applicant’s costs if he were ordered to do so. The fact that the respondent which seeks this order is the Administration does not affect the position as the Administration is in this regard in a position no different from that of any other litigant (see Claims by and Against the Administration Ordinance 1951, s. 8). I therefore consider that special circumstances have been shown and that this is an appropriate case in which to order that security for costs be given.

The question then arises as to the form and amount of such security. In Harlock v. Ashberry[clxxxvi]7 Jessel M.R. said that the amount of security is generally very moderate and often turns out to be a good deal less than the actual costs. It may be noted that under the High Court Rules the amount of security specified is still $100 unless otherwise ordered, whilst in the Rules of the Supreme Court (Queensland, adopted) the amount of security is prescribed by O. 33, r. 17 at, œ100 ($200) unless the court or a judge otherwise orders. That rule is not applicable in the case of an appeal to the Full Court since under the Supreme Court (Full Court) Ordinance the power of the Court is to order such security as is just, but some regard may nevertheless be had to it when the court is considering what in any particular case is just. In the two Australian cases referred to above the security ordered was œ50 ($100) in 1957 and $150 in 1967. Having regard to these considerations, in the circumstance of the present case I consider that the amount that is just is $100 and that security should be given by the payment of that sum into court within twenty-eight days. I therefore order that the appellant do within twenty-eight days give security in the sum of $100 for the costs of and occasioned by his appeal herein from the judgment of Clarkson J. given on 5th March, 1971, and that such security be given by payment into court of the said sum. No further order is necessary as to the consequences of failure to give the security ordered within the prescribed time as s. 23(2) of the Ordinance provides that if any security ordered is not given in accordance with the order the appeal shall be deemed to have been abandoned.

Under s. 12(1) of the Supreme Court (Full Court) Ordinance when an appeal is pending before the Full Court a direction not involving the decision in the appeal may be made by a judge and any direction so made is deemed to be a direction of the Full Court although it may be discharged or varied by the Full Court.

The basis of the application for the amendment of the appellant’s notice of appeal is that in some respects it fails to satisfy the requirements of the Supreme Court (Full Court) Ordinance and of the Supreme Court (Full Court Appeals) Rules and that in addition in some of the respects complained of it fails to specify the ground of appeal and particulars thereof with sufficient clarity for the respondent to know just what case it has to meet.

Whilst I fully appreciate the problem of the appellant in preparing a document such as a notice of appeal, the respondent is nevertheless entitled to have a notice from which it can ascertain precisely what the appellant is alleging and so become aware of what case it has to meet, and the Full Court should likewise have clearly before it in proper form the basis on which the appellant is challenging the judgment appealed from and the orders which he seeks.

The notice of appeal in its present form clearly falls far short of what is required and it appears to me to be both necessary and desirable that I give an appropriate direction with a view to remedying this situation and facilitating the hearing of the appeal. I would consider that the power to give a direction conferred by s. 12(1) is wide enough to enable me to direct in the way in which I now propose. I do not consider it necessary to give detailed reasons for each direction which I am about to give—the important thing is to indicate what must be done by way of amendment of the present notice of appeal.

[His Honour made consequential orders as to amendments, and continued:]

In view of the extent of the amendments necessary I further direct that the appellant file and serve an amended notice of appeal giving effect to the directions set out above, and if it is intended to seek leave to appeal in respect of those matters in relation to which, as indicated above, leave to appeal is necessary such matters must be separately set out in the form of an application for leave to appeal. There is no objection to such an application being contained in the same document as the notice of appeal but it should be in a separate part of the document so that it is possible to see what are the matters in respect of which the appellant is appealing as of right (that is, questions of law and of mixed fact and law) and what are the matters for which leave is required (that is, questions of fact).

It is apparent that no further steps can be taken towards the prosecution of this appeal until after security has been given and the directions which I have given in relation to the notice of appeal have been complied with.

Order and directions accordingly.

Solicitor for the applicant (second respondent): P. J. Clay, Crown Solicitor.

[clxxx]Infra p. 151.
[clxxxi]Section 8 of the Claims by and Against the Administration Ordinance 1951 provides:

“In any suit to which the Administration is a party, the rights of the parties shall, as nearly as possible, be the same, and judgment may be given and costs awarded on either side as in a suit between subject and subject.”

[clxxxii]Infra p. 152.
[clxxxiii](1881-82) 19 Ch.D. 84.
[clxxxiv][1957] St. R. Qd. 62.
[clxxxv][1967] VR. 674.
[clxxxvi](1881-82) 19 Ch. D. 84.