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PNG Pipes Pty Ltd v Sefa [1998] PNGLR 551 (27 June 1997)

[1998] PNGLR 551

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PNG PIPES PTY LTD

V

MUJO SEFA
GLOBE PTY LTD;
ROMY MACASAET
ANZ BANKING GROUP (PNG) LTD

WAIGANI: AMET CJ; KAPI DCJ; LOS J
13 August 1996; 27 June 1997

Facts

The appellant appealed against the decision of the National Court, which dismissed its action against the respondents. Pending the hearing of that appeal, the appellant filed an application before a single judge of the Supreme Court seeking orders for stay of the National Court’s order of dismissal. The judge dismissed the application and ordered the respondents’ costs, against the appellant’s lawyers. The appellant then appealed to the Supreme Court against the judge’s order on costs.

Held

1. It is clear from s 19 of the Supreme Court Act that the Supreme Court or a single judge of the court may hear and grant an application for stay of proceedings pending an appeal to the court.
   
2. The power to award costs is a statutory creation. The Supreme Court Act, being the relevant statute, does not confer on a single judge of the Supreme Court jurisdiction to award costs in an application for stay of proceedings.
   
3. The costs of an application for stay of proceedings and any ancillary matters connected with an appeal to the Supreme Court may only be considered by the full Supreme Court upon a full determination of the appeal.
   
4. Appeal allowed with costs.
   

Papua New Guinea cases cited

Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PNGLR 385.

Counsel

J Bray, for the appellant.
D Steven, for the first second and third respondents.
E Anderson, for the fourth respondents.

27 June 1997

BY THE COURT. Sheehan J dismissed the proceedings entitled OS 212 of 1996. It is not necessary to set out the details of this proceeding at this stage. The appellant has lodged an appeal against this decision (SCA30 of 1996) which is still pending.

The appellant filed an application in the National Court dated 27 May 1996 seeking orders by Sheehan J to strike out proceedings entitled OS 212 of 1996, to remove ANZ Banking Group from the proceedings and that the proceedings be stayed pending the hearing of the appeal. This application came on for hearing before Sakora J. He dismissed the application and then heard submissions on costs of the application. He subsequently made orders on costs as follows:

1. The respondent’s costs of the application filed on 27 May 1996 be awarded against the appellant’s lawyers.
   
2. That the costs be paid in the manner prescribed by Order 22 r 65 on the basis that the appellant’s lawyers, indemnify the respondents for their costs.
   
3. That the costs are paid are to be paid on a solicitor/client-taxed basis.
   

The appellant has appealed against this decision by way of notice of motion under the Supreme Court Rules. Two questions arise for consideration in this case. The first, is does a single judge of the Supreme Court have any jurisdiction to award costs in the circumstances of this case? If the answer to this question is in the positive, did the trial judge err in exercising his discretion in the manner he did?

The Supreme Court is a Constitutional body of a statutory nature. It is established by s 155(1)(a) of the Constitution. Its jurisdiction is defined by s 155(2). It has appellate jurisdiction (s 155(2)(a)), inherent power to review all judicial acts of the National Court (s 155(2)(b)) and other jurisdiction and powers given by this Constitution and any other law (s 155(2)(c)).

It is not necessary to review other powers of the Court, which are not relevant to the issue before us. The subject matter before us arises out of the provisions of the Supreme Court Act. In particular, the application made before Sakora J was made in accordance with s 19 which is in the following terms:

"Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings."

It is clear from this that the Supreme Court or a single judge of the Court may hear and grant an application to stay proceedings pending an appeal. In the present case the application for stay was determined by a single judge. The question then arises whether a single judge of the Supreme Court has power to award costs in such an application.

There is authority for the proposition that power to award costs is a matter of statutory creation: see Thiess Bros. (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PNGLR 385. The Supreme Court Act deals with the powers of the court and it is divided into different parts. Part III Div. 1, s 5 (1) (c) gives power to a single judge to make an order for security for costs. Security for costs is not one and the same as an award for costs. This provision pre-supposes that the power to award costs is to be found in another provision. Sections 5 and 10 of the Act give other powers to a single judge but do not include an express provision on power to award costs in those matters.

Part III, Div. 2 deals with appeals in civil cases. There is also an absence of provision which gives power to a single judge to award costs. Section 16 of the Act gives power to the Supreme Court (not a single judge) to affirm, reverse or modify judgment (s 16(b)) or give such judgment as ought to have been given in the first instance (s 16(c)). These provisions may give the Supreme Court power to award costs upon determination of an appeal. This provision is not applicable to the present case. In the present case a single judge dealt with the application, and the power of the Court in s 16(b) and (c) is not given to a single judge of the Court.

Part III Div 3 deals with criminal cases. Section 31 of the Act does not allow costs to either side.

We cannot find any provision which gives a single judge power to award costs in an application for stay of proceedings.

The question then arises, what happens to the cost of the application to stay? It appears to us that the cost of the application and any other ancillary matters connected with an appeal may be considered by the Full Supreme Court when it determines the appeal on its merits. As we have pointed out previously, appropriate orders may be made under s 16(b) or (c) of the Act. It would follow from this that where a single judge deals with a stay of proceedings the appropriate order would be costs in the appeal.

It follows from this conclusion that it is not necessary to consider the secondary issue, namely, whether Sakora J erred in exercising his discretion in the manner he did.

We would allow the appeal with costs and quash the order of Sakora J dated 3 June 1996.

Lawyers for the appellant: Pato Lawyers.
Lawyers for the first, second and third respondents: Maladina Lawyers.
Lawyers for the fourth respondents: Gadens Ridgeway Lawyers.