SC1672
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 140 of 2017

BETWEEN:
GOLD EXPORTS LIMITED
First Applicant

AND:
MICHAEL BOLE
Second Applicant

AND:
OPAOTI TRADING LIMITED
Third Applicant

AND:
NANGAMANGA LIMITED
First Respondent

AND:
ANTHONY FLYNN
Second Respondent

AND:
ROSE FLYNN
Third Respondent

Waigani: Hartshorn J,
        2018: 5th & 9th April 

           Whether costs of the proceeding should be paid on a solicitor client basis

Cases Cited:

Don Polye v. Jimson Papaki (2000) SC637
PNG Waterboard v. Gabriel Kama [2005] SC821
Rex Paki v. Motor Vehicle Insurance Limited (2010) SC1015 

Counsel:

Mr. M. Pokia, for the Appellants 
Mr. J. Kais, for the Respondents

Oral decision delivered on 

9th April, 2018

1. 	HARTSHORN J:  This is a decision on the respondents’ application for their costs of the proceeding to be paid on a solicitor client basis. This follows the applicant’s informing that they withdraw their application for leave to review that they filed pursuant to s. 155(2)(b) Constitution. 

Background

2. 	The applicants had sought leave to review three decisions of the National Court. The grounds for leave to be granted were that amongst others, in respect of the first decision, the Court did not give reasons why their application was refused. As to the second and third decisions, alleged requisite conditions were not present for the second and third decisions to be made. The second decision required compliance with previous orders, and the third decision struck out the applicants’ amended defence and entered judgment against them. 

Costs application

3. 	The respondents seek their costs of the proceeding on a solicitor client basis as amongst others:

a)	The costs of the respondents have been unnecessarily forced upon them by 	the actions of the applicants in prosecuting this application for leave to 	review. This application for review has no basis in fact or law, is hopeless, is 	bound to fail, is vexatious and is an abuse of process.

b)	The lawyers for the applicants were aware that the first decision was to be delivered and they had requested a copy of the transcript of its delivery. They should have been aware that the first decision had been delivered with 	reasons. 

4. 	The applicants submit that the parties should bear their own costs as:

a)	A person has a right to approach the Supreme Court by way of appeal or 	review;

b)	The reason for the withdrawal of this application now is because counsel for the applicants only became aware of the evidence concerning reasons being 	given for the first decision on the first working day after Easter, was not aware of email correspondence sent during the Easter vacation and was engaged with other matters;

c)	No forewarning was given by the lawyers for the respondents that costs on a solicitor client basis would be sought. 

Consideration 

5. 	Counsel for the applicants submitted that he was aware of some authority concerning the need for a forewarning letter to be sent before solicitor client costs could be successfully sought. Solicitor client costs have been awarded in circumstances that included a forewarning letter being given, for instance in PNG Waterboard v. Gabriel Kama [2005] SC821, but no authority was cited that was to the effect that a forewarning letter is a prerequisite for a successful application for solicitor client costs. In the absence of such authority I am not satisfied that it should be a prerequisite that a forewarning be given prior to the date of the hearing in which solicitor client costs are sought particularly where such an order is made by the Court pursuant to its inherent power to control its own proceedings.

6. 	As to the submission of counsel for the applicants that a person has a right to approach the Supreme Court by way of appeal or review; without giving consideration to whether there is a duty upon a lawyer to be satisfied to a certain standard of the likelihood of success of a proposed proceeding before prosecuting that proceeding on behalf of a client, I am satisfied that there is a duty upon a lawyer to ascertain that before he prosecutes a proceeding, that proceeding has at least a modicum of success.

7. 	In this instance, the application to review the first decision is predicated upon the National Court not giving any reasons for the orders it made.

8.	The evidence is that this application for leave for review was filed on 21st December 2017 and that the lawyers for the applicants requested a copy of the transcript of the first decision on 22nd December 2017. This evidence is not rebutted. Counsel for the applicants informed the Court that although such a request for the transcript was made, the request was not followed up and so the lawyers for the applicants did not know, if there was a transcript and did not have a copy of the transcript, if it existed. It was only when a hard copy of the affidavit of Joseph Kais sworn 29th March 2018 came to the attention of counsel for the applicants on Tuesday 3rd April 2018 that it was realised that there was a transcript of the first decision. 

9.	To my mind, the conduct of the applicants and their lawyers in filing the application for leave to review, ten months after the first decision was delivered before establishing whether there was a transcript, and therefore whether there was any prospect of an application to review succeeding, and then failing to ascertain whether there was a transcript after initially ordering one, is conduct that is particularly blameworthy, and has caused the respondents to incur wasted time, effort and legal costs. I refer to the Supreme Court cases of Rex Paki v. Motor Vehicle Insurance Limited (2010) SC1015 and Don Polye v. Jimson Papaki (2000) SC637 in this regard. I am satisfied that the respondents are entitled to the costs that they seek. 
Orders 

10.  The formal Orders of the Court are:

a)	This application for leave to review is withdrawn at the request of the 	applicants;

b)	The applicants shall pay the respondent’s costs of and incidental to this proceeding on a solicitor client basis to be taxed if not otherwise agreed. 

__________________________________________________________________
Mirupasi Lawyers: Lawyers for Applicants                                    
Huon Lawyers	: Lawyers for the Respondents