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McEnroe v Mou [1981] PNGLR 222 (3 July 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 222 - Dennis McEnroe v Felix Mou 

[1981] PNGLR 222

N302(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DENNIS MCENROE

V

FELIX MOU

Waigani

Pratt J

13 April 1981

3 July 1981

COSTS - Magistrates Court - Criminal jurisdiction - Principles for awarding - Amount to be awarded - Just and reasonable - Not limited by prescribed scales - District Courts Act, 1963 ss. 267, 268, 270, 271 - District Court Regulations, 1965 reg. 49, Sch. 3.

INFERIOR COURTS - District Court - Costs - Criminal jurisdiction - Principles for awarding - Amount to be awarded - Just and reasonable - Not limited by prescribed scales - District Courts Act, 1963 ss. 267, 268, 270, 271 - District Court Regulations, 1965 reg. 49, Sch. 3.

Where, in criminal proceedings before the District Court, the Court dismisses the information and exercises its discretion under s. 267(1)(b) of the District Courts Act 1963, to award costs, the costs awarded must be “such as the court considers just and reasonable”, and are not to be limited by the amounts prescribed under s. 267(2) in respect of civil complaints.

Baiyer River Local Government Council v. Robert Yandapu [1980] P.N.G.L.R. 430 not followed.

Counsel

W. Neill, for the appellant (defendant).

J. Byrne, for the respondent (informant).

Cur. adv. vult.

3 July 1981

PRATT J:  The appellant was charged at Mt. Hagen with the offence of obstructing a police officer in the execution of his duty on 27th December, 1980. The matter originally came before the District Court magistrate on 29th December and was then adjourned to 8th January. On 30th December however, Mr. McEnroe wrote to the Clerk of Court in Mt. Hagen and advised that he was being transferred to Port Moresby on 4th January, 1981. Consequently he requested the court to consider an adjournment of the case until 23rd February at 9.30 a.m. as a special fixture, and advised the clerk that he would be represented by Mr. Neill of counsel. A photostat copy of this letter has been filed with other papers annexed to the depositions received from the court, and bears an acknowledgement in handwriting acceding to the request for adjournment to 23rd February.

On that date the appellant and his counsel arrived at the Court House to defend the charge. The court papers reveal that the charge had been read to the appellant on 29th December and that a plea of “not guilty” had been entered. Apparently the charge was re-put on 23rd February and again a plea of “not guilty” was entered. No-one could have been under any misapprehension that the matter was going to be fully defended. The court was then advised by the police prosecutor that the police witnesses were not available and that he would not be able to proceed. The papers do not disclose whether the prosecution made any application for an adjournment but in any case, the information was dismissed, bail refunded and an application for costs in the sum of K100.00 plus an airfare of K150.00 in respect of counsel’s movements from Moresby to Mt. Hagen was made. The magistrate refused to award costs in favour of the defendant/appellant.

The magistrate’s reasons subsequently supplied to the Appeal Court are quite short. He says:

“It was a criminal matter. I used my discretion not to award the costs under s. 268 of the District Court Act. The case in PNG referred to the most recent PNG case on costs in District Court Criminal proceedings in Clive Wissman v. Collector of Customs[ccclvii]¹.”

The case referred to by the learned magistrate was a decision of Saldanha J. in October 1977. The reason for the application for costs by the appellant in that case arose from a submission that the magistrate had allowed evidence into the trial which the appeal judge subsequently ruled inadmissible. The appellant therefore claimed costs at the original hearing as well at costs on the appeal before his Honour. In both instances the learned judge refused the application for costs and in the process reviewed a number of leading authorities. I would add one recent case, Smith v. Robinson; Ex parte Robinson[ccclviii]². His Honour concludes (in Wissman’s case (supra)) that in the Australian jurisdiction it is now quite common for a successful defendant to obtain his costs in a criminal case but that the law in Papua New Guinea is not bound by Australian precedent and that the Constitution requires the common law of England to form part of the underlying law so far as it is appropriate to the circumstances of the country. His Honour went on at p. 327 to say:

“While Australia is a highly developed country ours is still developing with all the difficulties that this process entails. One of the difficulties is that in District Courts the vast majority of cases are heard by magistrates who are not professionally qualified. The trial magistrate in this case was not qualified. Had he been qualified he would no doubt have dealt with the problem with which he was confronted by adjourning the case to enable the police prosecutor to have the written statement properly sworn.... The appellant has succeeded on a pure technicality and not on merit, ...”

Furthermore, the case having been remitted for rehearing before the District Court, the appellant had not been totally successful and therefore was not in a position of one who could say that he should obtain costs because he had won the appeal.

What his Honour says of course is quite true, but is only one side of the coin. However, I do not believe that his Honour was stating a general principle but was merely giving the reasons why, in the particular factual context before him, he exercised his discretion in a particular way. The appeal was upheld on a pure technicality. The facts before me however are vastly different. What has happened to the defendant in this case is that having given considerable prior notice of his intention to defend the case on 23rd February, he came with his counsel from Pt. Moresby to answer the charge which he believed would then be dealt with in the proper manner. For reasons best known to themselves, the police did not proceed with the matter on that day and did not have any witnesses available at the court to substantiate the charge. Unfortunately this approach on the part of the police is only too common in Papua New Guinea and is a cause of endless inconvenience, annoyance and financial loss to individuals. I have experienced this frustration both as a trial judge and as counsel prior to my appointment to the Bench. It is most reprehensible conduct and deserves the strongest censure from the Bench, whether it be in the lower court or an appeal court. The appellant was perfectly entitled to assume that the police would do their work and that when he arrived at the court on the set day of hearing with his counsel, both of them having travelled from Pt. Moresby specifically for that purpose, the matter would be dealt with then and there.

It is not possible for me to say whether the dismissal of this case was on the merits or otherwise. The statement of facts typed on the back of the information is of no assistance to me in determining this issue. Indeed it is impossible to determine whether or not the appellant had a strong case. As has been said on a number of occasions before, once a plea of “not guilty” is entered the statement of facts should be discarded. It is merely a summary of the police case which is anticipated will be supported by evidence. It may bear little or no resemblance to the facts as found by the tribunal at the conclusion of the entire proceedings.

On 10th June, 1980, Miles J. entertained a costs appeal at Kieta in the matter of Simon Sania and Others v. Joseph Noro (Appeal No. 170 of 1979)[ccclix]³. Although his Honour did not circulate a published judgment, I have had the benefit of reading a copy. His Honour explains how Wissman’s case[ccclx]⁴ is distinguishable from the matter brought before him. The appeal being dealt with by his Honour was, like the one presently before me, an appeal against a dismissal by the magistrate of an application for costs and in the ultimate his Honour upheld the appeal following an examination of some English authorities which he accepted as part of the underlying law of Papua New Guinea as well as some of the Australian authorities. His Honour held that to deprive the appellants of their costs was a substantial miscarriage of justice.

In November 1980 Bredmeyer A.J. (as he then was) was also faced with the question of a magistrate’s award of costs in the case of Baiyer River Local Government Council v. Robert Yandapu and Another [ccclxi]⁵. Unfortunately his Honour did not have available to him the decision of Miles J. and I cannot locate in the judgment any reference to Wissman’s case[ccclxii]⁶. His Honour took the view that it was within a magistrate’s discretion to award costs (in this instance a successful prosecutor in relation to charges for failure to pay tax). The appeal related to an excessive amount of costs awarded by the magistrate in favour of the prosecution.

At p. 431 of his judgment his Honour says:

“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. ... 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.”

To my mind it is clear that Miles J. did not consider himself bound by the amount of costs set forth in the third schedule of the Regulations in a criminal matter. At the bottom of page 1 and top of page 2 of his judgment he says:

“It should also be noted that s. 267(1)(a) gives the District Court power to award costs in its discretion against a defendant in favour of a successful informant; also that costs awarded upon proceedings upon a complaint shall not exceed the prescribed amounts: s. 267(2). There appears to be no restriction on the costs which may be awarded in proceedings based upon an information.”

His Honour’s decision of course was made earlier in time than that of Bredmeyer A.J. and thus the question of a conflict of views did not arise. Unfortunately for myself this is not the position.

It is of course highly undesirable that different judges of the same court come to different conclusions on the law. The result can only cause confusion to litigants and their legal advisers alike, quite apart from the lower courts. Judicial comity is a principle to be observed for very sound reasons indeed. I think the matter is most succinctly set forth by a Canadian judge in the case of Re Hansard Spruce Mills Ltd.[ccclxiii]⁷:

“Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another Judge of this Court if:

(a)      Subsequent decisions have affected the validity of the impugned judgment;

(b)      it is demonstrated that some binding authority in case law, or some relevant statute was not considered;

(c)      the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.

If none of these situations exist I think a trial Judge should follow the decisions of his brother Judges.”

A little earlier on the same page his Honour says:

“I have no power to overrule a brother Judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight.”

In my approach to the present problem I am minded to be guided by the principles set forth by the Canadian judge. I do not say that his Honour has exhausted all the possibilities but for the purpose of the present case I certainly agree with the propositions which he has enunciated. Quite apart from the fact that Bredmeyer A.J. inadvertently differed from an earlier view of one of his brother judges, it seems to me with great respect that his Honour has failed to take account of a relevant part of the statute which he had under consideration. Reference is made to s. 267(1) and (2) of the District Courts Act but none to Divisions 2 and 3 of Pt. IV of the Act which make it quite clear that informations deal exclusively with criminal matters whereas complaints deal exclusively with civil matters. Consequently it is important to bear the distinction in mind when reading the words “information” or “complaint” in s. 267. The provision relevant to the matter before me is s. 267(1)(b) of the District Courts Act which reads as follows:

“Where the Court dismisses the information or complaint, or makes an order in favour of the defendant, it may in its discretion award and order that the informant or the complainant shall pay to the defendant such costs as it thinks just and reasonable.”

Going then to s. 267(2), we find that reference is not made to informations or complaints but to complaints only, the wording reads:

“Costs awarded under this section upon proceedings upon a complaint shall not exceed the prescribed amounts.”

In the case of civil matters the costs awarded must be just and reasonable and must not exceed the amounts set forth in the schedule. In the cases of criminal matters however, sch. III does not have any relevance to the matter and the magistrate must award such costs as he considers in the circumstances of the case “just and reasonable” and I can see nothing in reg. 49 inconsistent with this proposition. To my mind the schedule has no relevance to an award of costs in respect of an information as opposed to a complaint for two further reasons. The sub-heading at the top of sch. III deals with “plaintiff’s costs” and “defendant’s costs”, no mention being made of “informant’s costs” and “defendant’s costs”. Secondly, the amounts set out depend upon the amount of claim. Upon what basis could one justify an award of costs under any one of those headings setting down amounts, in respect of a criminal matter? There is no logical reason in my view for saying that one should pick the highest amount as appropriate rather than picking any other in order to arrive at a figure for costs. Alternatively it may well encourage a belief that the less serious charges should be treated as a minor civil matter whilst the more serious charges should be treated like a civil claim involving a greater amount of money.

I therefore regret that I am unable to agree with the reasoning of Bredmeyer A.J. and find that any award of costs arising out of proceedings on an information is not limited by the maximum amounts set out in either the third or the fourth schedules. In my view the specific reference to “the prescribed amounts” appearing in ss. 270 and 271 when taken in conjunction with the distinction between information and complaint appearing in s. 267(1) and (2) makes it quite clear that those sections are referring to both counsel’s fees and witness’s expenses in respect of civil matters only. I appreciate that the word “complainant” is used in s. 268 but this is clearly a slip on the part of the draftsman or a misprint. There is just no such person as a “complainant” in a criminal jurisdiction, despite lay terminology and the use of the term in sexual cases is an exception hallowed only by long usage.

During argument on this appeal Mr. Neill mentioned that incorrect amounts were presented to the magistrate at the time the charge was dismissed. I do not think it proper for me however to consider amended amounts as I am being asked at this point in time to either remit the matter back to the magistrate for a proper exercise of his discretion or at least to exercise my discretion in substitution for that of the magistrate on the material which was presented before him. I therefore decline to entertain such amendments.

Consequently I consider the sum of K100.00 for counsel’s costs together with the airfare of K150.00 to be both just and reasonable. As no application was made before his Worship for accommodation, I do not think I should make such an allowance at this stage although it was certainly a figure which, had it been asked for, should have been granted. I am also aware that in allowing airfares for counsel from Pt. Moresby to Mt. Hagen, I am not exercising my discretion in the same manner as Bredmeyer A.J. in the Baiyer River Local Government Council case[ccclxiv]⁸. However as it is a matter of exercise of discretion only and not a matter of differing views on the law, I do not think the principles set forth in Re Hansard Spruce Mills Ltd.[ccclxv]⁹ are applicable.

In his judgment (supra) Bredmeyer A.J. says:[ccclxvi]¹⁰

“I should add if there had been a private lawyer available in Mt. Hagen at the time I would not have allowed any costs for Mr. Sam’s air fares and accommodation. Where a private lawyer is available in a town the Court will not foist on a losing party the extra costs of importing a lawyer from another town.”

In my view that is an unwarranted interference by the National Court on the free choice of a litigant. Merely because one lawyer happens to set up practice in a town does not in my view mean that he should be supported by the National Court to the extent of being guaranteed a practice to the exclusions of other lawyers. It is not the task of this Court to decide which counsel should be employed and I think the parties must accept the fact that within reasonable limits they must take the party, and his counsel, as they find him. It seems to me neither just nor reasonable to limit a litigant to the one and only lawyer available in a particular town. There must obviously be some restriction set upon the importation of counsel and where there are a number of practitioners, of course, it may be very difficult to see how it is either just or reasonable to import one from elsewhere and expect the losing party to foot the bill. Even more so if he came from another country.

In exercising his discretion to deny costs, I consider that the learned magistrate placed an interpretation on the Act which is contrary to the views of the National Court judges (Miles J. and myself) and he has misconceived to some extent the ratio of Clive Wissman v. Collector of Customs [ccclxvii]¹¹. His Honour was there giving reasons of the exercise of his discretion in a particular way in the light of the particular facts before him and was not examining the specific provisions of the Act. I do not take the words of his Honour earlier quoted in the judgment to do any more than that. The magistrate’s ruling amounts to a substantial miscarriage of justice.

As the appellant has been completely successful in this case, I would not only award the costs which should have been awarded by the learned magistrate but would also award costs on this appeal. Material has been presented to me to indicate that such costs amount to K73.00 for counsel’s fees and K77.00 for the appellant’s loss of salary.

I therefore uphold the appeal, substitute an award of costs in the sum of K250.00 for the magistrate’s order refusing costs and I also award the sum of K150.00 upon the present appeal.

Appeal allowed.

Order for costs substituted.

Solicitor for the appellant (defendant): W. Neill.

Solicitor for the respondent (informant): L. Gavara-Nanu, Public Prosecutor.