N1148

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

LEO GETSI AND EAST NEW BRITAIN PROVINCIAL GOVERNMENT

V

PNG HARBOURS BOARD

Rabaul
Doherty J

5 March 1993
24 March 1993

COSTS - Corporate status and ability to sue does not automatically make a corporation liable for costs against an employee - Every person has a right to be heard in an action against them, including on costs - Parties must have notice of joinder - Powers of District Court to dismiss informations - District Court obliged to consider s 260A District Courts Act - Section 260A not restricted to police informants.

Facts

The respondent had an information laid against it by the first appellant. The informant did not appear on the hearing date. The respondent applied for dismissal of the information and for costs against the informant and his employer, the East New Britain Provincial Government. The East New Britain Provincial Government had not been a party to the proceedings, and there was no notice served on it joining it as a party.

Held

1. Section 12 of the Organic Law on Provincial Government, giving a provincial government power to sue and be sued:

(a) does not make it liable for costs against its employees, and

(b) does not make it a party to proceedings involving application of a provincial law.

2. While there is no clear procedure in the District Courts Act Ch 40 for joinder of parties, the rules of natural justice require that they must have notice and a right to be heard.

3. District Courts' Act s 160 provides for making a record of the court order, and that record is the prima facie evidence of the order. There being no written application, no record of an oral application, and no order joining the second appellant, it was not party to the proceedings.

4. Section 124 of the District Courts Act is mandatory and provides for dismissal of informations.

5. The matters set out in s 260A District Courts Act must be considered first when deciding to exercise the discretion to award costs under s 260(1)(b).

6. Section 260A applies whether the information is dismissed or "struck out".

7. Section 260A applies to all informants. It is not limited only to police informants.

Cases Cited

Baiyer River Local Government Council v Yandapu [1980] PNGLR 430.
McEnroe v Mou [1981] PNGLR 222.

Counsel

P Kee, for the appellant.
Y Wadau, for the respondent.

24 March 1993

DOHERTY J: Mr Getsi appeals against the part of the decision of the District Court at Rabaul where the Court struck out an information lodged by him against the defendant corporation, and ordered costs against him and the East New Britain Provincial Government.

The East New Britain Provincial Government was not an informant and was not a party in the original proceedings.

The appellant sought, at a preliminary hearing, to bring certain information before the Court. In the course of that argument and hearing, counsel for the respondent said that he had made an "application to join the other party and it was not entertained". The other party referred to is East New Britain Provincial Government.

The court depositions show that an information was laid by Leo M Getsi of Rabaul on 15 July 1992, alleging that the PNG Harbours Board had failed to furnish sales tax returns pursuant to s 21(1) of the East New Britain Sales Tax Act 1990. A summons was issued and, apparently, served, as the court records note "P/S filed and in order". The return date was 31 July 1992. I am unable to find from the record what exactly happened on that date. Nor do I see the notice of intention to defend referred to in Mr Wadau's submission, but the matter came again before the District Court on 28 August 1992 when, apparently, there was no appearance by the defendant, and the prosecution sought to have the matter heard ex parte. It was duly extended and set for an ex parte hearing on 8 September 1992, when Mr Toliman Mani of the PNG Harbours Board appeared. I am unable to read all of the record, but apparently no plea was taken and the matter was adjourned to 13 October 1992 and the summons extended. On 13 October 1992, there was no appearance by the informant, and counsel for the respondent (the defendant in the lower court) appeared. The record shows: "Mr Y Wadau ask that there is no evidence in this matter and that the case be dismissed with costs [sic]. COURT ORDER:- case be struck out with costs to the PNG Harbours Board." 

The notation is signed by the learned magistrate. The next document on the file in the lower court is a document called "sales tax return". It is filed by counsel for the respondent and sets out "party to party costs pursuant to District Court Schedule". A total of K1,345 is claimed.

For the first time, the name Provincial Government of East New Britain (hereafter Provincial Government) appears on that document. There is also an order which states:

"1. The case against PNG Harbours Board struck out.

2. The informants pay defendants costs." 

The order is dated 13 October 1992. It does not have a seal and the magistrate's signature differs from that on the depositions noted above.

The respondent claims the sum of K1,345 from the Provincial Government. The Provincial Government appeals against the decision that it should pay any costs. Mr Getsi appeals against the amount of the costs. Both are represented by Mr Kee. Affidavits have been filed by Mr Kee, setting out some of the facts. After preliminary hearing, certain parts of those affidavits were struck out and other parts were admitted.

The grounds of appeal are:

1. the costs are in excess of those permitted by s 263 of the District Courts Act Ch 40 and s 48 of and Schedule 4 to the District Courts Regulation.

2. the costs awarded were manifestly excessive.

3. alternatively, no costs have been validly specified in a court order, contrary to the requirements of s 260(1)(b) of the District Courts Act.

4. the second informant has never been a party to these proceedings, and should not have been added as a party in the order made on 13 October 1992.

Counsel for the appellant says the provincial government was never given notice that it was to be joined, it was not an informant, and it was not given an opportunity to be heard.

I will deal with the fourth ground of appeal (joinder of Provincial Government) first.

It will be noted from the record I have described that there is no formal written application for joinder of the East New Britain Provincial Government as a party to these proceedings. Counsel for the respondent in the preliminary hearing said that he "had made application to join the other party and it was not entertained". In the hearing of the appeal, he corrected this by saying that he may have given a "misconception" when he said it was not entertained. He says that it was not recorded, he made a verbal application at the time, and "the magistrate nodded". He had not given any written notice to join, and counsel assumed that the magistrate had agreed. This apparently took place after the information was struck out. 

Counsel for the respondent said that the informant, Mr Getsi, is an employee of the East New Britain Provincial Government. He said that s 12 of the Organic Law on Provincial Government gives legal capacity to provincial governments to hold property, sue, and be sued; therefore, the "appropriate authority to sue for any breach of a provincial law is a provincial government and none other". 

This misconceives the provisions of s 12 of the Organic Law on Provincial Government. The fact that any corporation has a status in law to be sued does not mean that it is automatically liable to a party in any proceedings involving its employees nor automatically a party to any proceedings involving an employee or to any proceedings involving the provisions of a provincial law.

There is no clear procedure laid down in the District Courts Act for the joinder of parties in a criminal action. Section 30 requires a description of the persons or things and the description of the offence. Section 42 requires the summons to be issued and be directed at a defendant. There is no procedure in the District Courts Act similar to O 5 r 8 of the National Court Rules, which provides for addition of parties on notice being given. Counsel for the respondent refers to the powers of the District Court to adopt National Court procedures by virtue of s 22 of the District Courts Act. If, by the same analogy, the National Court Rules are applied to joinder of parties, then O 5 r 8 requires an application.

Even though there is no clear procedure in the District Courts Act, the making of a person liable in damages or costs without giving him an opportunity to be heard appears to me to be contrary to the whole concept of natural justice and the right to a fair hearing within a reasonable time. Mr Wadau suggests that there was fault on the part of the informant and the Provincial Government in not appearing on the day. I am not prepared to allow that implication, as Mr Kee sought to call a clear explanation for non appearance; that was opposed by Mr Wadau, and his objection was upheld. The record shows the respondent did not appear on at least one occasion. There is no explanation concerning that.

The District Court is a court of record. There was no application on the record to join the East New Britain Provincial Government, there was no order to join the East New Britain Provincial Government. Section 160 of the District Courts Act provides that, where a court convicts and makes an order against the defendant, a minute or memorandum of the order shall be made and signed by the magistrate. The provision is a mandatory one. Section 160(3) states that a document purporting to be a copy of the minute or memorandum signed by the clerk is prima facie evidence for all purposes of the making of the order. Section 162 provides that a court may make a written order on an application of the defendant or complainant. Apparently, no such order was applied for here.

I find that the East New Britain Provincial Government, a body corporate, is not a party to these proceedings, and no order should have been made against it. I uphold the appeal on this ground.

ORDER FOR COSTS

The other three grounds of appeal relate to the costs, the amount thereof, and their validity. I will deal with them together.

Counsel for the respondent says there is no provision for the striking out of an information under the District Courts Act and refers to the National Court Rules and English case law concerning the powers to strike out pleadings.

This is a criminal information, and rules and precedents on striking out pleadings in civil matters are not necessarily relevant. The District Courts Act clearly provides at s 124 that:

"If, on the day and at the place appointed by a summons for hearing and determining an information of a simple offence or an indictable offence triable summarily:

(a) the defendant attends voluntarily in obedience to the summons, or is brought before the Court by virtue of a warrant; and

(b) the complainant, having had notice of the day and place, does not appear by himself or by his legal representative

the Court shall dismiss the information unless for some reason it thinks proper to adjourn the hearing to some other day."

In the interpretation provisions of the District Courts Act, "complainant" includes an "informant", and it is clearly the intention of s 124 to cover an informant in a simple offence. The section itself refers to "information of a simple offence".

The provision is a mandatory one. It obliges the court to dismiss or adjourn. There is no need to consider the National Court Rules or other legislation. The District Courts legislation covers the situation. It is true, as counsel for the respondent has pointed out, that there is a common practice of striking out for non-appearance in the District Court.

Both counsel referred to s 160(1)(b), which provides that a court dismissing an information or complaint may make an order that an informant or complainant pay costs to the defendant, as the court considers just and reasonable. Counsel for the appellant refers to the case of Baiyer River Local Government Council v Yandapu [1980] PNGLR 430. Counsel for the respondent refers to this case and to the case of McEnroe v Mou [1981] PNGLR 222. It must be borne in mind that both these decisions were made prior to the introduction of the amendment resulting in s 260A of the District Courts Act in 1986 (No 9 of 1986). I consider that when looking at the question of costs to be awarded against an informant, that section must be applied and must be applied first. This is an obligation on the court by virtue of the wording of the provision. It says:

"Notwithstanding the provisions of s 260(1)(b), the Court shall, before making an order for costs against an informant, consider all relevant circumstances and, in particular, where appropriate, shall consider and ..."

The amended section then sets out various matters to be considered. It goes on to say, at s 260A(2):

"There shall be no presumption for or against an award of costs."

In case there is any doubt as to whether costs should be awarded under s 260(1)(b), then s 260A(3) makes it clear that the defendant shall not be awarded costs by reason only of the fact that he has been discharged or that an information has been dismissed or withdrawn.

When considering this provision, I do not think it is appropriate to make a distinction between a striking out action on the part of the Court (albeit there is no clear provision for such an order) and the dismissal. Both the orders are in favour of a successful defendant, and it appears to me the spirit of the legislation should extend to both being considered for costs to be properly assessed.

The law obviously obliged the learned magistrate in the case before me to first consider the various matters set out in s 260A(1) (a) - (g). There is no suggestion on the record that he did so. The depositions show no submission on the record relating to any of the particular ground set out in s 260A(1) (a) - (g), and I consider that the learned magistrate erred in not considering those matters and erred in merely accepting the paper submitted by counsel for the respondent without demure.

Counsel for the respondent, in a detailed submission, suggests that s 260A applies only to the police. This is not apparent from the provisions of the section nor the definition provisions of the District Courts Act. Section 260A refers to "prosecution", a word that is not defined in the act. Division 1 of Part V does not use the word "prosecution" when dealing with hearings. It refers to an "informant" and to the Public Prosecutor (s 61A). Prosecution is a legal word and is not limited to police prosecution. A wide variety of persons can lay informations - public health officers, customs officers, community and local government officials. If Parliament intended that s 260A should exclude these informants and be limited only to the police, this would have been clearly stated.

One of the grounds specified in s 260A(l)(e) is whether the evidence was sufficient to support the conviction of the defendant but the information was dismissed on a technical point. Clearly, this information was struck out without hearing the facts and could be said to be on a technical point. These are all matters which should have been before the learned magistrate when considering the question of costs. 

I accept, as conceded by the parties, that the Court does have power to award costs that it thinks just and reasonable, but I add that it must first consider s 260A.

I uphold the appeal of the first informant on that ground. 

The second ground refers to the amount of the costs. In his argument, counsel for the respondent says the transport and daily allowance are his entitlement when travelling away from Port Moresby. The costs allowed are set by statute. They do not and never have been the amount of allowances in a contract of employment. I consider the costs allowed excessive and in breach of the provisions of the act.

Counsel for the respondent has said that it was open to the appellants to apply for a setting aside of the decision pursuant to s 25 of the District Courts Act. That is a discretionary right in a person to make an application for the court to set aside an ex parte decision. However, a right of an appeal is the statutory right provided by s 219 of the District Courts Act, and I can see no good legal reason for not permitting the appellants the right of appeal, particularly as a failure to pay costs awarded by the District Court on dismissal of an information is enforceable by way of a warrant of commitment under s 170 of the District Courts Act.

Counsel for the appellant's third ground of appeal refers to the document misnamed "sales tax return". Strictly, he is correct, but it appears to me that is a clerical error and an order was signed (although not sealed).

I have considered remitting this matter for re-hearing in view of my ruling that the learned magistrate erred in not considering the provisions of s 260A. The National Court is empowered by s 230(1)(d) to remit for a re-hearing, but as this would involve further hearings and expenses on the part of the parties, I will, instead, consider the costs allowed and make orders as the National Court is entitled to do by s 230(1)(c). 

It is not argued that the cost and disbursement for perusal etc, at K52, is excessive, and that is allowed.

With regard to the airfares from Port Moresby to Rabaul, counsel for the appellant says that there are other lawyers available in Rabaul and one of these could be briefed. I consider that a ruling to that effect would curtail a corporation or a provincial government or local authority using its "in-house lawyer", and it would not be proper to make such a curtailment. I, therefore, allow the airfares in part from Port Moresby. They have been apportioned to half as, clearly, Mr Wadau had other commitments that day. Despite submissions by counsel for the appellant that it should be one-third, I will allow half of the return fare, i.e. of K187. Apportionment is provided for in Sch 4 r 14 of the District Courts Regulation.

Counsel could not have arrived in Rabaul in time for the hearing, but he did not need to stay in a hotel for three nights. I consider this excessive. I allow one night only. It is clear that he was dealing with other matters, and I allow part only of that one night, which I assess at a higher level than half and set at K70. I consider the expenses for meals etc for three days to be excessive and the amount of K239 to be excessive. Counsel was only in court for a very short period. He would only have had breakfast and, possibly, lunch before leaving, as the case was over early in the morning. I allow K20. I do not see any reason why he needed to hire a vehicle at a cost of K400 when the place he was staying in was only a matter of yards from the court. I will allow a taxi fare to the airport which, in the absence of other submission, I assess to be K10. The District Courts Regulation Sch 4 "Lawyers and Agents Costs" sets a fee of K84 per day where the defendant is necessarily absent from his place of practice. He would have been absent for one day and, therefore, I allow K84 - the maximum provided by the act.

I substitute these items for the amount awarded by the learned magistrate.

I see no good reason on the facts before me why costs should not follow the cause on this appeal. Accordingly, costs, to be agreed or taxed, are awarded to the appellants. One set of costs only are allowed, as the same counsel acted for both.

______________________

Lawyer for the appellant: Legal Officer - Provincial Government.
Lawyer for the respondent: Legal Officer - PNG Harbours Board.