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Baiyer River Local Government Council v Yandapu and Maku [1980] PNGLR 430 (22 November 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 430 - Baiyer River Local Government Council v Robert Yandapu and Kundi Maku 

[1980] PNGLR 430

N273

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BAIYER RIVER LOCAL GOVERNMENT COUNCIL

V

ROBERT YANDAPU AND KUNDI MAKU

Mount Hagen

Bredmeyer AJ

22 November 1980

COSTS - Party and party - District Court - Costs awarded must accord with prescribed scales - District Courts Act 1963 s. 267 - District Court Regulations 1965, Sch. 3 and Sch. 4.

INFERIOR COURTS - District Court - Costs - Party and party - Costs awarded must accord with prescribed scales - District Courts Act 1963, s. 267 - District Court Regulations 1965, Sch. 3 and Sch. 4.

In both criminal and civil cases in the District Court any party and party costs awarded by the court (that is pursuant to s. 267 of the District Courts Act 1963) must be in accordance with the scales provided in the third and fourth schedules to the District Court Regulations 1965.

Appeal

This was an appeal against costs awarded by a district court magistrate in matters being, inter alia, prosecutions for failure to pay council tax: the costs against each defendant were K4,740.

Counsel

P. S. Sam, for the appellant.

D. O’Connor, for the respondent.

22 November 1980

BREDMEYER AJ: This is an appeal and cross-appeal against costs awarded by the Mt. Hagen District Court. The Baiyer River Local Government Council initially appealed against the fines imposed, as being too light, but that part of the appeal has been withdrawn. The Baiyer River Local Government Council engaged a private practitioner, Mr. Peter Sam, to prosecute Robert Yandapu and Kundi Maku the two respondents on five charges each of failure to pay council tax, obstructing council officials in the exercise of their duties, spreading false reports and wilful damage. The defendants were both members of the Western Highlands Provincial Government. The background to the charges are that the defendants opposed the collection of council tax, they failed to pay their own tax, encouraged others not to pay their taxes, obstructed tax collection and wilfully damaged the census tax roll used for the collection of tax. They pleaded not guilty to all charges and were not represented by counsel. All charges were heard together. At the conclusion of the evidence for the prosecution and the defence the two defendants were convicted on each charge and fined various sums totalling K250 each. Mr. Sam then asked for costs. The council’s executive officer, who was sitting with Mr. Sam throughout the case, hurriedly prepared some figures totalling K9,480 which included Mr. Sam’s fees K7,030 (approximately twenty-eight days at K250 per day) plus his plane fares from Moresby to Hagen, accommodation and transport. The magistrate allowed these costs and ordered each defendant to pay K4,740 costs to the council.

In addition to the costs ordered to be paid by the defendants, the magistrate also ordered the council to pay certain costs to the defendants. This was because on two of the many occasions the cases were adjourned the magistrate ordered that the costs of the adjournment—which had been requested by Mr. Sam—be awarded to the defendants. Mr. Yandapu was awarded K2,555 costs and Mr. Maku K2,458 costs.

The magistrate had power to award costs to the Baiyer River Local Government Council upon the conviction of the defendants under s. 267(1)(a) of the District Courts Act 1963. He also had power to award costs to the defendants when the hearing was adjourned at Mr. Sam’s request under s. 267(1)(e) and he was right in doing so. It was a considerable expense and inconvenience for the defendants and their witnesses to come from Baiyer River to Mt. Hagen only to be told that the case had been adjourned as a result of a phone call from Mr. Sam to the magistrate. But in all cases District Court costs must be awarded in accordance with the scales provided in the third and fourth schedules of the District Court Regulations 1965. Section 270 of the Act provides that an attorney is not entitled to receive more by way of fees for the work done by him than the prescribed sums, and the sums are prescribed by reg. 49 and the third schedule of the Regulations. Section 270 is wide enough to cover both civil and criminal cases. Similarly s. 271 of the Act provides that “the costs and mileage which may be allowed for the attendance of witnesses to give evidence before a court shall be such amounts, not exceeding the prescribed amounts, as the court allows”. Those amounts have been prescribed by reg. 50 and the fourth schedule of the Regulations. That section too is wide enough to cover civil and criminal cases. The effect of these sections and s. 267(2) (which is limited to civil proceedings) is that in both criminal and civil cases in the District Court any party and party costs awarded by the court must be in accordance with the third and fourth schedules. By party and party costs I mean those costs which the court orders under s. 267 a party to pay to another party. These are distinct from solicitor and client costs which the client agrees with his solicitor to pay.

I quash the orders as to costs made by the magistrate and in lieu thereof I order each defendant to pay costs of K701 to the Baiyer River Local Government Council. The magistrate gave them one year to pay the enormous sums he awarded. The defendants ask me to give them the same time to pay. Mr. Sam for the council asks that they be given less time. I order them to pay the said costs to the council by 30th June, 1981.

As each party, the appellant and cross-appellant, has won on this appeal, that is, has had his costs reduced, I award no costs to either side on this appeal.

Orders accordingly.

Solicitor for the appellant: P. Sam.

Solicitor for the respondent: D. O’Connor.