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Patrick v Kimas [2010] PGNC 166; N3913 (12 March 2010)

N3913

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 278 OF 2009

BETWEEN:

TIMOTHY PATRICK, BENJAMIN DEMASI, DEL REGAN, MEGAN REGAN FOR THEMSELVES AND ON BEHALF OF DULIA LAND GROUP
Plaintiffs

AND:

PEPI KIMAS - SECRETARY DEPARTMENT OF LANDS
First Defendant

AND:

CHRIS ABEL, DOURA MARAGA, HENRY BAILASI & SARAH CLERK - AS THE MILNE BAY PROVINCIAL LAND BOARD
Second Defendants

AND:

RAGA KAVANA - REGISTRAR OF TITLES
Third Defendants

AND:

SIR PAULIS MATANE - GOVERNOR GENERAL OF PAPUA NEW GUINEA
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND:

KB DEVELOPMENT LIMITED
Six Defendant

Waigani: Gavara-Nanu J
2009: 11th November
2010: 12th March

PRACTICE & PROCEDURE – Costs – Application for costs on solicitor and client basis – Principles discussed – Requirements under Order 22 r 65 of the National Court Rules irrelevant – A judicial dictum - Proceedings frivolous and vexatious and an abuse of process – Principal plaintiffs to pay costs on solicitor and client basis.

Cases Cited:

Papua New Guinea Cases

Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47
Gulf Provincial Government -v- Baimuru Trading Pty Ltd [1998] PNGLR 311
Island Helicopter Services Ltd -v- Wilson Sagati (2008) N3340
Kenn Norae Mondiai v. Minister for Forests, Hon. Patrick Pruaitch (2008) N3298
Niugini Minig Ltd v. Joe Bumbandy (2005) SC804
Paul John v. Gerd Lindhart and Servicom Pty Ltd (1999) N1938
PNGBC v. Jeff Tole (2002) SC694
Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329
Public Officers Superanuation Fund Board v. Sailas Imana Kuan (2001) SC677

Other Cases Cited

Jones v. Curling and Another [1884] UKLawRpKQB 79; (1884) 13 Q.B.D 262
Richard West and Partners Ltd v. Dick [1969] 1 All E. R 289.
The Civil Service Co-operative Society, Ltd v. The General Steam Navigation Company [1903] UKLawRpKQB 174; [1903] 2 K.B 756

Counsel:
A. Banyamai, for the plaintiffs
J. Brooks, for the sixth defendant

12 March, 2010

1. GAVARA-NANU J: The sixth defendant is seeking costs on solicitor and client basis against the plaintiffs after the plaintiffs' application for leave for judicial review was refused on 11 November, 2009.

2. The application for leave was made inter parte after the sixth defendant was granted leave to be heard on the application.

3. The plaintiffs oppose the application and contend that the application should be made by a notice of motion so that the plaintiffs can be given an opportunity to be heard on the application. For this contention, the plaintiffs rely on Island Helicopter Services Ltd -v- Wilson Sagati (2008) N3340.

4. It is clear that the plaintiffs have misapprehended the ruling in Island Helicopter Services Ltd, because the relevant part of the ruling relates to an application seeking costs against a lawyer personally, under Order 22 r 65 (1) of the National Court Rules. The application before me is not seeking costs against a lawyer; it is an application seeking costs against the plaintiffs on solicitor and client basis. Thus, it is plain that requirements under Order 22 r 65 (1) are irrelevant and they do not apply to this application.

5. But even if the sixth defendant was seeking costs against a lawyer personally, under Order 22 r 65 (1); I am of the respectful opinion that this Court would be reading too much into the Rule to say that the application should be made by way of a motion. To do so would with respect be importing into consideration, a process that is not a requirement under the Rule.

6. I would therefore with respect differ from the view adopted in Island Helicopter Services Ltd -v- Wilson Sagati (supra), viz; that an application for costs made under Order 22 r 65 (1) should be made by a motion. I hold this view for the following reasons: Firstly, the requirement under the Rule, to give the lawyer against whom costs are sought, an opportunity to be heard is on the Court; not on the party seeking costs. Secondly, the Court is given a broad discretion by the Rule, when deciding whether the lawyer should be given an opportunity to be heard on the application. Thirdly, the Court may in the exercise of its broad discretion decide against giving the lawyer an opportunity to be heard if any of the matters set out in sub-rule (2) exist, or if any of those matters form the basis of the application for costs against the lawyer. Fourthly, if the Court decides to give the lawyer an opportunity to be heard, the opportunity given to the lawyer must be reasonable, but what is a reasonable opportunity must be considered within the meaning of the Rule. Fifthly; the party seeking costs is entitled under the Rule to make the application viva voce based on the materials already before the Court and the lawyer concerned should be able to defend the application using the same materials upon which the application for costs was made. This in my view is the essence of the Rule, and because the reputation of the lawyer is at stake, the Court should exercise its power to award costs only in the clearest of cases. This requirement is inherent in the Rule to afford protection to the lawyer concerned. See, Civil Service Co-Operative Society, Ltd v. The General Steam Navigation Company [1903] UKLawRpKQB 174; [1903] 2 K.B 756 and Jones v. Curling and Another [1884] UKLawRpKQB 79; (1884) 13 Q.B.D 262 at 271-272 where Lord Justice Bowen in my respectful opinion succinctly summarized the essence of the Rule and how it should be applied:

Now I have always entertained the strongest opinion that the court would be acting ultra vires if it were to lay down a hard and fast line upon which discretion should be exercised when the Act of Parliament or Judicature rule which creates the discretion gives it in ample and qualified terms. And the Order LXV., rule 1, has to my mind the merit that it does not do this, but leaves the matter nearly as the rule itself does. ...The object, of course, is that justice should be done. It was felt by the legislature that justice would best be done in jury trials by leaving the costs to follow the event, but that there might be exceptional cases in which that rule would work injustice, and then the judge should in furtherance of justice be allowed to make an exceptional order. So "good cause" really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now to ascertain the existence of such facts the judge should look in the first place at the result of the action itself, namely, the verdict of the jury; and he should also look at the conduct of the parties to see whether either of them had in any way involved the other unnecessarily in the expense of litigation, and beyond that he should consider all the facts of the case so far as no particular fact was concluded by the finding of the jury; and if upon the whole he reasonably thought there were facts which justified him in thinking that justice would be better arrived at by an exceptional order it would be his duty to make such order" . (my underlining).

7. If this application was made by a motion as contended by the plaintiffs, that would inevitably attract other processes relating to motions, such as the need for the applicant to give proper and sufficient notice of the application, and to file supporting affidavits, the respondent may also decide to file a cross-motion with supporting affidavits and so on; which may in turn give rise to more procedural issues such as adjournments. The end result is that applications for costs made under this Rule will become unnecessarily cumbersome and protracted. This will with respect defeat the whole purpose of the Rule, which is to provide for a less cumbersome application for costs against a lawyer following decision on verdict and to regulate a fair and speedy disposition of the issue of costs and to bring finality to proceedings. See, Paul John v. Gerd Lindhart and Servicom Pty Ltd (1999) N1938; Public Officers Superanuation Fund Board v. Sailas Imanakuan (2001) SC677; PNGBC v. Jeff Tole (2002) SC694; Niugini Mining Ltd v. Joe Bumbandy (2005) SC804 and Kenn Norae Mondiai v. Minister for Forest, Hon. Patrick Pruaitch (2008) N3298;

8. Whilst my observations on Order 22 r 65 (1) here may not be part of the ratio decidendi as the issue does not arise upon the facts of the case before me for decision, regard should nonetheless, with respect be had to the fact that the observations constitute a judicial dictum, consisting of considered enunciations of the view I hold on the application of the Rule. See, Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329 per Wilson J., at 387 and 388 and Richard West and Partners (Inverness), Ltd and Another v. Dick [1969] 1 All E.R 289, per Megarry J., at 292.

9. Turning now to the application before me; the general rule is that for costs to be awarded against the plaintiffs on solicitor and client basis, the applicant must demonstrate that there are grounds upon which such award may be made; for instance, the applicant having to defend proceedings which are frivolous and vexatious and are an abuse of process. See, Gulf Provincial Government -v- Baimuril Trading Pty Ltd [1998] PNGLR 311; or that the applicant is being dragged into the Court and is made to suffer and incur unnecessary costs. See, Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47.

10. In this case there is undisputed evidence that the Land Group through which these proceedings were issued was and is unregistered, thus it has no legal capacity to issue these proceedings.

11. The individuals who instituted these proceedings are also shareholders of the sixth defendant; in fact they have agreed during the course of the hearing that the matters they raised before this Court could have been raised in a shareholders' meeting with the sixth defendant, yet they opted to institute these proceedings without exhausting that avenue. In that regard, these proceedings are a clear abuse of process; the sixth defendant has also been dragged into this Court to defend the proceedings which are also frivolous and vexatious and is made to incur unnecessary costs. This provides a clear basis for the Court to order costs against the plaintiffs on solicitor and client basis.

12. Mr. Brooks argued that costs should be ordered against those individuals who were instrumental in issuing these proceedings, namely Timothy Patrick, Benjamin Demasi, Del Regan and Megan Regan; the names of these individuals appear on the back of the Court documents, including the writ as principal plaintiffs. The 'Consent and Authority Forms' signed by each individual Dulia Clan and Land Group members as the authority for their respective names to be included as plaintiffs in these proceedings; name Marina Regan as one of the principal plaintiffs, besides Timothy Patrick, Benjamin Demasi and Del Regan.

13. Thus, if Megan Regan whose name appears on the writ is not the same person as Marina Regan, then any orders for costs against the principal plaintiffs will also cover Marina Regan, who according to the 'Consent and Authority Forms' is a principal plaintiff.

14. Having considered the materials that are before the Court, I am of the opinion that the principal plaintiffs whose names appear at the back of the writ including Marina Regan who were clearly instrumental in issuing these proceedings should be ordered to pay the sixth defendant's costs on solicitor and client basis.

15. Consequently, the Order of the Court is that, Timothy Patrick, Benjamin Demasi, Del Regan and Megan Regan and or Marina Regan will pay costs for the sixth defendant on solicitor and client basis.
    

16. Orders accordingly.
_______________________________

Allan Banyamai Lawyers : Lawyers for the Plaintiffs
Gadens Lawyers: Lawyers for the Sixth Defendant