SC875

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 15 0F 2001

WILLIAM MOSES
Appellant

V

OTTO BENAL MAGITEN
Respondent

Madang: Mogish, Cannings & Gabi JJ
2005: 2 November
2006: 10 November

RULING

COSTS – certificate of taxation for costs – power of Supreme Court to make order for costs – lack of specific Rules of Court – Supreme Court Act, Sections 6(2), 8(1)(e) – Supreme Court has same powers, authority and jurisdiction as National Court as to costs. 

The respondent to appeal proceedings in the National Court and the Supreme Court was awarded costs in both proceedings. He obtained certificates of taxation of costs for both proceedings from a taxing officer, for specific sums. He applied to the Supreme Court for an order directing the entry of judgment for those sums. Neither the Supreme Court Act nor the Supreme Court Rules expressly empowers the Supreme Court to make orders for costs and there is no law equivalent to Order 22 of the National Court Rules regulating the making and enforcement of costs orders by the Supreme Court.

Held:

(1)	When hearing and determining an appeal the Supreme Court has by virtue of Section 6(2) of the Supreme Court Act all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

(2)	Furthermore, the Supreme Court may, for the purposes of the Supreme Court Act, if it thinks it necessary or expedient in the interests of justice to do so, by virtue of Section 8(1)(e) of the Supreme Court Act, exercise in relation to the proceedings of the Supreme Court any other powers that may for the time being, be exercised by the National Court on appeals or applications.

(3)	The combined effect of those provisions is that whatever the National Court can do regarding costs, the Supreme Court can do.

(4)	It is appropriate to draw on Order 22 of the National Court Rules as a guide to the powers, practice and procedure of the Supreme Court regarding costs (Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission (2000) SC651, applied). 

(5)	Order 22, Rule 62 of the National Court Rules allows the National Court to direct the entry of judgment for costs, after certification; so the Supreme Court has equivalent power in equivalent circumstances.

(6)	In the present case, the amount of costs having been certified and a party to the appeal having made an application supported by affidavit, it was appropriate to direct entry of judgment for the certified costs.

Cases cited

The following cases are cited in the judgment: 

Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission (2000) SC651
Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PNGLR 385
William Moses v Otto Benal Magiten (2000) N2023

APPLICATION 

This was an application for entry of judgment for costs, following certification of costs by the Registrar. 

Counsel:

O B Magiten, the applicant in person
No appearance by the other party

1. BY THE COURT: This is a ruling on an application by a person who was awarded costs, for a judgment on those costs. He has already had the costs certified by the Registrar but the costs have not been paid to him yet. He wants us to enter a judgment in his favour, saying that he is entitled to be paid a specific sum of money. 

BACKGROUND

2. The applicant is Otto Benal Magiten. He has had an ongoing dispute with one of his relatives, William Moses, over an oil palm block in the Bialla District of West New Britain Province.

3. Mr Magiten took the dispute to the District Court at Bialla and in June 1999 obtained an order ejecting Mr Moses from the block. 

4. Mr Moses filed an appeal in the National Court, in proceedings known as App No 190 of 1999. In December 2000 Kandakasi J, sitting in the National Court in Lae, dismissed Mr Moses’s appeal for want of prosecution (William Moses v Otto Benal Magiten (2000) N2023). 

5. Mr Moses then filed an appeal against Kandakasi J’s decision in the Supreme Court, in proceedings known as SCA No 15 of 2001. They are the proceedings to which the current application is attached. Mr Moses is the appellant and Mr Magiten the respondent. Mr Moses’s appeal in SCA No 15 of 2001 came before the Supreme Court in Kokopo in August 2001. It was also dismissed for want of prosecution. The Court was constituted by Sawong J, Gavara-Nanu J and Lenalia J. 

6. Mr Magiten has therefore had three successive wins over Mr Moses – in the District Court, the National Court and the Supreme Court. On each occasion, costs have been awarded to Mr Magiten. The District Court ordered Mr Moses to pay K1,501.00 costs. The National Court ordered that the appeal be dismissed "with costs against the appellant". The Supreme Court ordered Mr Moses to "pay the applicant’s costs on a solicitor/client basis".

7. We do not know whether the District Court costs have been paid but that does not matter, as the application before us relates only to the National Court and the Supreme Court costs. For both of them, Mr Magiten applied to have his costs ‘taxed’. He submitted his bills of costs and a taxing officer, the Deputy Registrar of the Supreme Court, Ms Christine Daingo, in May 2003 issued certificates of taxation in the following terms:

National Court – App No 160 of 1999	=	K 803.60 		
Supreme Court – SCA No 15 of 2001	=	K6,320.00		
Total			K7,123.60	

8. Mr Magiten says he has tried everything reasonable to get Mr Moses to pay the money but Mr Moses says the certificates are not court orders so he does not have to pay.

9. Mr Magiten’s application, filed in July 2005, is for us to direct the entry of judgment for the above sums.

POWER OF SUPREME COURT TO AWARD COSTS

10. The application before the court raises the issue of the Supreme Court’s power to award costs and make orders that a judgment be entered on costs. There is no law, equivalent to Order 22 of the National Court Rules, which expressly authorises the Supreme Court to award costs or that regulates taxation of costs or enforcement of costs orders by the Supreme Court. The Supreme Court Act (Chapter No 37) and the Supreme Court Rules are generally silent on the issue (though the Act alludes to costs in Sections 5(1)(d) and 35). This is significant as the power of a court or tribunal to award costs must be conferred by statute. It is not part of a court or tribunal’s inherent powers (Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PNGLR 385, Supreme Court, Kidu CJ, Pratt J, Bredmeyer J).

11. However, the Supreme Court decided in a previous case that its power to award costs is an ordinary part of the exercise of its judicial functions and that there is a provision of the Supreme Court Act which, in effect, gives the Supreme Court the same powers as the National Court in regard to costs. The case is Don Pomb Pullie Polye v Jimson Sauk and Electoral Commission (1999) SC651 (Sheehan J, Sawong J, Jalina J). The provision the court relied on was Section 8(1)(e) (supplemental powers of Supreme Court), which states:

For the purposes of this Act, the Supreme Court may, if it thinks it necessary or expedient in the interests of justice to do so … exercise in relation to the proceedings of the Court any other powers that may for the time being be exercised by the National Court on appeals or applications. 

12. The Court stated:

Making orders for costs is part and parcel of the Court's ordinary jurisdiction. The Supreme Court Act and Rules do make some provision for cost orders in specific circumstances, though Section 35 of the Act which sets out to provide for the "power of the Supreme Court to impose terms as to costs", fails to do so. The section is anomalous and reflects an error in drafting.

The Rules of the National Court by contrast in Order 22 clearly spell out the breadth of that court's jurisdiction to award appropriate costs. And to the extent that Section 8(1)(e) of the Supreme Court Act reflects the Supreme Court's general authority to make any order the National Court may make, Order 22 is relevant in these proceedings. 

13. We agree with their Honours’ reasoning and the conclusion reached: Order 22 of the National Court Rules should be used as a guide to the powers, practice and procedure of the Supreme Court regarding costs. That position is reinforced by Section 6(2) of the Supreme Court Act (appeal to be by way of rehearing), which states:

For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

14. The combined effect of those provisions is that whatever the National Court can do regarding costs, the Supreme Court can do – at least when it is exercising appellate jurisdiction under the Supreme Court Act. 

15. If it is exercising its review jurisdiction, eg under Section 155(2)(b) of the Constitution, different considerations may arise. Sections 6(2) and 8(1)(e) of the Supreme Court Act may be inapplicable. However, it would appear to us to be anomalous to allow the Supreme Court the power to order costs in appeals, but not in reviews. We consider that the anomaly is overcome by drawing on Section 155(4) of the Constitution, which confers an inherent power on the Supreme Court to make, in such circumstances as seems to it proper, such orders as are necessary to do justice in the circumstances of a particular case.

16. The present case – SCA No 15 of 1999 – does not involve the Supreme Court in the exercise of its review jurisdiction. It is an appeal against a decision of the National Court. It is clear therefore that the Supreme Court has the power to award costs and to enforce its orders for costs under Sections 6(2) and 8(1)(e) of the Supreme Court Act and Order 22 of the National Court Rules. 

17. Order 22, Rule 62 (judgment) of the National Court Rules allows the National Court to direct the entry of judgment for costs, after certification by the Registrar. It states:

Where the amount of any costs has been certified under this Division the Court may, on motion by a party, direct the entry of such judgment for the costs as the nature of the case requires. 

18. The Supreme Court has equivalent power in equivalent circumstances. In the present case, certificates for costs have been issued and a party to the appeal – the respondent, Otto Benal Magiten – has made an application for entry of judgment for the certified costs. Therefore we will enter judgment for those costs. 

COSTS

19. There remains the question of the costs of the present application. Though there was no appearance by William Moses, there is an affidavit of service which indicates that he was served with the application and given notice of its hearing. We will therefore award the costs of the hearing and determination of this application to Otto Benal Magiten, on a party-party basis, to be taxed if not agreed. 

JUDGMENT

20. The Supreme Court will direct entry of judgment in the following terms:

1	Costs of previous proceedings to be paid by the appellant, William Moses, to the respondent, Otto Benal Magiten, in the sum of K7,123.60;

2	William Moses shall pay the costs of these proceedings to Otto Benal Magiten on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
_____________________

The Applicant in Person: Lawyer for the applicant