SC2229

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA 48 OF 2020 (IECMS)

BETWEEN:
JOSEPH KUMASI
Appellant

AND:
AIR NIUGINI LIMITED trading as AIR NIUGINI
Respondent

Waigani: Gavara-Nanu J., Hartshorn J., Collier J.
(on the papers)
2022: 26th April

APPEAL

APPEAL – Costs - ordered costs of an application for dismissal against the plaintiff, now appellant and ordered that those costs be paid before any further steps are taken -  the orders appealed are on various grounds -  whether primary judge fell into error in the exercise of the court’s discretion in making the orders appealed in circumstances where the ruling on the dismissal motion had not been given and when the issue of costs had not arisen - decision on the dismissal motion has not been given by the primary judge - premature for the primary judge to make an order concerning any liability to pay costs for the motion when a decision on the success or otherwise of the motion has not been given - where an appeal has been caused or necessitated by an incorrect act of the primary judge and such incorrect act has not been sought or contributed to by the parties but is as a result of the primary judge’s own volition, parties should bear their own costs – parties should bear their own costs

Cases Cited:
Philip Opa Kore v. Pastor Charles Lapa (2018) SC1699
Counsel:

Mr. J. Holingu, for the Appellant 
Mr. C. Joseph, for the Respondent 

26th April, 2022

1. BY THE COURT: This is a decision on an appeal from an interlocutory judgment of the National Court which amongst others, ordered costs of an application for dismissal against the plaintiff, now appellant and ordered that those costs be paid before any further steps are taken in the National Court proceeding (orders appealed). Leave to appeal has been granted. 

Background

2. The appellant was terminated from his employment by the respondent on 15th September 2016. The appellant has sued the respondent in respect of certain deductions made from his salary. He seeks amongst others, declaratory relief and reimbursement of the deductions.

3. After hearing and reserving upon a notice of motion of the respondent which sought to dismiss the proceeding, about one year and seven months later, in court, the primary judge informed counsel for the appellant that there could be a conflict in her continuing to hear the proceeding. This was because of the previous employment of the primary judge by the major shareholder of the respondent. The primary judge requested counsel for the appellant to seek instructions from the appellant on whether the primary judge should continue to hear the proceeding or whether the proceeding should be heard by another judge.

4. About two months and two weeks later, the primary judge sought to deliver her ruling on the respondent’s notice of motion to dismiss. Counsel for the appellant objected and requested that the primary judge disqualify herself and not deliver her proposed ruling. The primary judge did not deliver her proposed ruling and made costs orders against the appellant. The costs orders are the orders appealed.

The appeal

5. The appellant appeals the orders appealed on various grounds. These grounds are in essence that the primary judge fell into error in the exercise of the court’s discretion in making the orders appealed in circumstances where the ruling on the dismissal motion had not been given and when the issue of costs had not arisen.

6. The respondent submits that it does not oppose this appeal being upheld as it did not apply for the orders appealed. The respondent submits that the orders appealed should be set aside to avoid confusion and ambiguity. The orders appealed were made by the primary judge of her own volition. The respondent submits however, that each party should pay their own costs of the appeal.

Consideration

7. It is clear from the relevant transcript of the National Court proceeding that a decision on the dismissal motion has not been given by the primary judge. In such circumstance, it was at least, premature for the primary judge to make an order concerning any liability to pay costs for the motion when a decision on the success or otherwise of the motion has not been given. By making the orders appealed the primary judge fell into error in the exercise of the court’s discretion. Consequently, from a consideration of the evidence, the transcript and the submissions, we are satisfied that the appeal should be upheld.

8. As to the costs of this appeal, although the appellant seeks that they be paid by the respondent, no submissions were made to support such an order. There is no evidence that the orders appealed were sought by the respondent and the appellant concurs that no application for costs was made by the respondent.

9. In circumstances where it is agreed that the respondent did not seek the orders appealed, where the appeal did not emanate as a result of any action of the respondent and the respondent has not opposed the appeal, it would be unfair and not in the interests of justice for the respondent to be ordered to pay the costs of the appeal. 

10. We refer in this regard to the Supreme Court case of Philip Opa Kore v. Pastor Charles Lapa (2018) SC1699 as an example of an appeal being upheld and each party being ordered to pay their own costs of the appeal. Notwithstanding that in the normal course, costs follow the event, where an appeal has been caused or necessitated by an incorrect act of the primary judge and such incorrect act has not been sought or contributed to by the parties but is as a result of the primary judge’s own volition, as has occurred in this instance and in Kore v. Lapa (supra), the parties should bear their own costs of the appeal notwithstanding that the appeal has been upheld.

Orders

11. The Court orders as follows:

a)	The appeal is upheld.

b)	The whole of the Judgment and Orders of Polume- Kiele J. given on 29th May 2020 in National Court proceeding WS No. 225 of 2018 are quashed.

c)	The parties shall bear their own costs of this appeal.
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Holingu Lawyers: Lawyers for the Appellant                                      
Ashurst PNG: Lawyers for the Respondent