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PNG Ports Corporation Ltd v Canopus No.71 Ltd [2010] PGNC 203; N4288 (30 July 2010)

N4288

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS No. 584 OF 2009

BETWEEN

PNG PORTS CORPORATION LIMITED
Plaintiff

AND:

CANOPUS NO. 71 LIMITED
Defendant

Waigani: Kandakasi, J.
2010: 15th March
30th July

CAUSES OF ACTION – All disputes capable of settlement – Parties duty or obligation – Explore all out of court settlement options and exhaust them – Courts last resort – One party taking all steps necessary to resolve a dispute out of court – Another running into court without first exhausting out of court settlement options – Matter subsequently settling with prompting of the Court – Party failing to explore out of court settlement much earlier and settle the matter responsible for costs on solicitor client basis.

COSTS – Substantive issues resolved out of court – Costs only issue for determination – Defendant proposing settlement prior to commencement of proceedings – Plaintiff failing to respond and failing to take any meaningful step to resolve matter before filing proceedings – All disputes capable of out of court settlement – Parties have obligation to settle disputes as promptly as possible - Resorting to court action without making any serious and meaningful attempts at out of court settlement unacceptable conduct – Reasonable to order defaulting party to pay costs unnecessarily forced onto the other side.

COSTS – Rate of costs payable – A party by its conduct unreasonably requiring or forcing another to incur costs – Failing to respond to communication aimed at finding an amicable and mutually beneficial outcome without going to court - Effect of - Dispute resolved after issuance of court proceedings and failed application for interim injunction – Forewarning on costs – Useful and necessary requirement – Party not seriously taking notice of such forewarning and act appropriately – Courts promoting ADR – Meaning and effect of – Party failing to take all steps necessary to expeditiously resolve conflicts by alternative dispute resolution - Appropriate to order costs on solicitor client costs.

Cases Cited:
Papua New Guinea cases

Concord Pacific Limited & Anor v. Paiso Company Ltd & Ors, N1981
Clive Wissman v. Collector of Customs [1977] PNGLR 324
Odata Limited v. Ambusa Copra Oil Mill Limited & National Provident Fund Board of Trustees (2001) N2106
Island Helicopter Services Ltd v. Wilson Sagati &Ors (2008) N3340
Polye v. Sauk [2000] PNGLR 168
PNG Waterboard v Gabriel M Kama (2005) SC821
Gulf Provincial Government v. Baimuru Trading Ltd [1998] PNGLR 311
Jacob Sarapel v. Fred Kulumbu (2003) N2405
POSF Board v. Sailas Imanakuan (2001) SC677
Benny Balepa v. Commissioner of Police (1994) N1374
PNG Waterboard v. Gabriel M Kama (2005) SC821
Peter Aigilo v. Morauta & Ors (2001) N2102
Salvation Army (PNG) Property Trust v. Ivar Jorgenson and Rex Vagi (1997) N1644
Alex Latham and Kathleen Marie Latham v.Henry Peni [1997] PNGLR 435
Bishop Brothers Engineering Pty Ltd v. Ross Bishop (1989) N705
Beecraft No 20 Limited v. Dr Fabian Pok as Minister for Lands and The Independent State of Papua New Guinea (2001) N2125
Mark Ankama v. Papua New Guinea Electricity Commission (2002) N2362
CDC v. Yama Security Services Pty Ltd (2003) SC707

Overseas Case Cited:

Sirois v Centennial Pontiac Buick GMC Ltd and General Motors of Canada Ltd (1988), 89 N.B.R. (2d) 244.
Rosniak v. Gio, (1996-1997) 41 NSWLR 608 at 616.

Text Book Cited:
Okin, on The Law of Costs, (2nd Ed. 1987),

Counsel:

J.L. Shepherd, for the Defendant/Applicant
G.G. M. Poole, for the Plaintiff/Respondent

30th July, 2010

1. KANDAKASI J: Except for the issue of costs, the parties resolved the substantive issues in these proceedings. That was through the parties' own negotiations at the prompting of the Court. These are reflected in consent orders made by the Court on 16th December 2009. On the question of costs, the parties resolved to take the issue to Court for the Court's determination.

2. The Defendant, Canopus No. 71 Limited (Canopus) argues for costs to be paid by the Plaintiff, PNG Ports Corporation Limited, which is the successor of PNG Habours Board (PNG Ports) on an indemnity basis. PNG Ports is arguing against such orders.

Relevant Issues

3. The only issue for the Court to determine in these proceedings therefore, is costs. That issue has two parts: (1) who should pay the costs; and (2) the relevant rate at which they should be paid? These can be dealt with jointly.

Background

4. In order to properly determine the issues presented, it is necessary to consider and properly understand the context in which the issues are presented, which is this. These proceedings arose from a dispute regarding a non-existent easement over a residential property owned by PNG Ports at Lot 18, Section 27, Granville, which is located on Paga Hill, Downtown, Port Moresby. Following failures of PNG Ports to enter into settlement discussions, Canopus constructed fences on its property which effectively blocked of vehicular and pedestrian access to PNG Ports property. As a result of that, PNG Ports filed these proceedings, seeking amongst others, interim injunctive relief.

5. In their resolution of the substantive proceedings, the parties agreed that PNG Ports has until 31st December 2010 to construct at its own expense vehicular and pedestrian access to its own property at Lot 18, without encroaching into Canopus' property at Lot 3. In return, the Defendant which owns adjacent properties at Lots 3 and 11, agreed to forthwith remove its vehicular driveway and pedestrian access to its residential property at Lot 3 provided that Canopus shall at its expenses ensure that up until 31st December 2010 or until PNG Ports' construction of its own driveway access to Lot 18, whichever first occurs allow for only pedestrian access via the road frontage of Lot 18.

6. Prior to the dispute between the parties, Canopus purchased Lot 3 from its previous owner on 2nd November 2004. While in the process of purchasing Lot 3 in late 2004 Dr Mills for Canopus ascertained that PNG Harbours Board was the proprietor of the State leasehold of Lot 18, which is contiguous with Lot 3. Dr Mills enquired and discovered that there was no registered access easement over Lot 3 in favour of Lot 18.

7. In late 2004, Dr Mills observed that the driveway for Lot 3 and its kerbside was used as means of access for PNG Ports' residents and their visitors at Lot 18 which had no driveway of its own. So on 3rd December 2004, he wrote to then Chairman of PNG Harbours Board, Mr Henry Kila, expressing interest to purchase Lot 18 so that the two contiguous lots could be consolidated into the one title.

8. Dr Mills received no response to his letter dated 3rd December. Consequently, he wrote again to Mr Kila on 14th December 2004. This time, he suggested a valuation of Lot 18. This again attracted no response from Mr Kila.

9. In the first quarter of 2005, Canopus became concerned over security issues caused by visitors to Lot 18 through usage of driveway of Lot 3. Hence, Canopus through Dr Mills made enquiries towards the end of April 2005 to discover the identity of the Property Manager for PNG Ports Corporation. He ascertained that Mr Opa Mea was the Property Manager. Equipped with that information, Dr Mills wrote to Mr Mea on 6th May 2005 and again offered to purchase Lot 18. At the same time, he pointed out the issue of driveway access and indicated his company's intention to move the fence line to coincide with the legal boundary, thereby cutting of vehicular access to Lot 18 through Lot 3. Yet again, this failed to attract any response. Thus, in June 2005, Canopus commenced fencing off on its boundary line between Lot 3 and Lot 18.

10. By a letter dated 20th June 2005, Mr Mea of PNG Ports asked Canopus to cease construction work on the fence line alleging there was an easement in place in favour of Lot 18 over Lot 3. Canopus through Dr Mills responded by letter on the same day to Mr Mea and stated, there was no such easement and that the access issue had been referred to in his earlier letters which did not attract any response from PNG Ports.

11. On the same date, Canopus wrote to his lawyers, Blake Dawson Lawyers regarding the issue of easement and requested advice on its rights. By letter dated 21st June 2005, to Canopus, Blake Dawson confirmed, their search results of the relevant records at the Lands Department indicated that, there has never been any registered easement over Lot 3 in favour of Lot 18. Equipped with its lawyer's advice, Canopus by letter dated 21st October 2005, again offered to purchase Lot 18 from PNG Ports. Following no response, Canopus sent a follow up letter on 7th June 2006, and again offered to purchase Lot 18 at full market value.

12. Subsequently, by advertisement in the Post Courier newspaper, in November 2007, PNG Ports asked for tenders for the purchase of Lot 18. Canopus responded to that advertisement and tendered to purchase the property by letter dated 16th November 2007. Again following no response to that tender and fearing that the property might be sold without resolving the easement issue, Canopus on 10th December 2007 lodged a caveat against the title to Lot 18. Then in May 2009 or thereabouts, Canopus continued with its construction of the perimeter fencing to its property.

13. That saw a repeat of what happened in the same period the year before. By their letter of 1st June 2009, PNG Ports claimed that they had a registered easement for access to their property through Canopus' property. In reply, by letter dated 9th June 2009, Canopus informed PNG Ports of the fact that, there was no registered easement. At the same time, Canopus reminded PNG Ports of their failure to respond to Canopus's earlier letters and further that, Canopus remained willing to resolve the matter on mutually acceptable terms. Canopus's lawyers further confirmed this by an email sent to PNG Ports on 10th June 2009.

14. The following month on 16th July, Dr Mills of Canopus and Mr Vini of PNG Port met. At that meeting, Mr Vini agreed that, there was no registered easement which allowed access to PNG Ports' property at Lot 18 through Canopus property at Lot 3. Appreciating that, Dr Mills suggested either the building of an alternative access to Lot 18 or a sale of Lot 18 to his company.

15. By letter dated 17th July 2009, Dr Mills wrote to Mr Brian Riches, Chief Executive Officer of PNG Ports, outlining the matters discussed between himself and Mr Vini the previous day and indicated his company's intentions of eliminating one of the lower access driveways, thereby removing access to Lot 3. He also pointed out that, only walkway access to Lot 18 would be maintained. That did not attract any response from Mr Riches or PNG Ports. Hence, by letter dated 01st October 2009 Canopus' through its lawyers informed PNG Ports that as from 5 pm on 09th October 2009, all vehicular and pedestrian access to Lot 18 from Lot 3 would be closed. One day before the stipulated deadline of 09th October 2009, PNG Ports filed these proceedings on 08th October 2009.

16. On 09th October 2009 the matter came before me and PNG Ports sought to move for an urgent ex parte interim injunction. Upon reading the affidavit evidence filed in support of the application, I formed the view that, this matter was not an urgent matter but it was PNG Ports' own doing that led to the purported urgent situation. So I directed that, the proceedings be served on Canopus and the matter be dealt with inter partes.

17. Following service of the proceedings, a meeting on site between the parties with their lawyers took place. At that meeting Canopus informed PNG Ports of the reason for the closure of the driveway via Lot 3.

18. Subsequently, proceedings returned to the Court, on 19th October, 4th November, 9th December and 16th December. On all of these occasions, a number of orders by consent were made with the substantive one being the orders of 16th December resolving the main issues between the parties. This followed promptings from the Court as well as Canopus' lawyers who requested PNG Ports for instances, by letter dated 04th November 2009, to seriously reconsider their position and to consider constructing separate driveway access to Lot 18 and a payment of costs on lawyer/client basis. Canopus' lawyers followed up on their letter of 4th by letter dated 12th November 2009 sent to PNG Ports' lawyers, O'Briens Lawyers requesting settlement of the matter on terms stipulated in Canopus' lawyers' letter dated 4 November 2009. That was accompanied with a forewarning that Canopus would seek directions from the Court that PNG Ports claim be referred to mediation. Subsequently, the matter settled in terms alluded to earlier.

19. With these background in mind, I now turn to a consideration of the relevant principles governing the issue of costs in litigation.

Principles Governing Costs

20. Generally, costs usually follow the event. What this means is that, a party that succeeds in litigation or court action is entitled to recover costs from the losing party. Nevertheless, whether or not costs should be ordered in each case is a matter entirely within the discretion of the Court. That discretion must be exercised in accordance with proper principles that have been judicially developed. Order 22 rr. 4, 5 and 11 enshrines some of these principles.[1]

21. At the time of making an order for costs, the Court has power to decide at what rate the costs must be paid. There are two common rates on which costs could be ordered. The first is on the basis of "lawyer and client costs" or as is sometimes called "solicitor and client costs" or "costs on an indemnity basis". This kind of costs comprises of the proper remuneration payable to a lawyer by his client for legal work performed by the lawyer for his client. It includes disbursements of charges, and other costs necessarily and reasonably incurred by the lawyer on behalf of his client in the course of his employment. Order 22 rr. 34 and 35 of the Rules govern this type of costs. Where a party is ordered to pay the costs of another party on a "solicitor and client basis" the party obliged to pay the costs, is all of the costs the party entitled to the costs paid toward his successful prosecution or defence of the court proceedings. That includes his lawyer's fees, all expenses or charges incurred by that party toward that party's prosecution or defence of the proceedings.

22. The second rate on which costs can be ordered to be paid is on what is called "party and party costs". This type of costs is the opposite of "solicitor and client costs" and is governed by O.22 rr. 23 and 24 of the Rules. It comprises of the proper and reasonable legal costs, charges and expenses reasonably and necessarily incurred by one party to a litigation to enable him to successfully, either complete or in part or in whole the prosecution of or in the defence of a claim. This is the kind of costs usually ordered against a losing party. The amount of costs that can be recovered under this type of costs order is usually less than the amount that can be recovered under a "solicitor and client costs". Most authorities suggest the amount recoverable under "party and party costs" order is about two thirds (2/3) of the costs incurred on a solicitor client basis. This expression is usually apparent in the context of an application for security for costs.[2]

23. It is settled law that, the Court has discretion both in terms of ordering costs in favour of a party and the rate at which the costs must be paid.[3] With a few exceptions, costs on "party and party basis" are almost readily granted in favour of parties who are successful in any litigation. However, an order of payment of costs on a "solicitor and client" or indemnity basis is usually ordered in exceptional cases. The decision of the Canadian Court of Appeal of New Brunswick, in Sirois v Centennial Pontiac Buick GMC Ltd and General Motors of Canada Ltd,[4] points out the basis on which an order of costs on "solicitor and client costs" can be ordered.

24. Adopting a passage from Okin, on "The Law of Costs"[5] the Court said:

"An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional cases to mark the court's disapproval of the conduct of a party in the litigation. Orders of this kind have been made where a litigant's conduct has been particularly blameworthy, for example, where there were allegations of fraud or impropriety either proven or abandoned at trial; or wanton and scandalous charges; or allegations of perjury; or collusion; or where the responsible party perpetrated a fraud on the court, e.g., by preparing and presenting forged documents; or by filing a deliberately deceptive affidavit in support of an order without notice; or by concealing a document until trial and then relying on it; or prolonged the trial by engaging in obstructionist tactics; or brought motions without merit to exhaust an opponent's resources; or intentionally misled the court by giving false evidence as to material facts; or in contempt proceedings. Solicitor-and-client costs have been awarded to successful party where an action was without any foundation in law, or where an appeal was considered to be without merit; and in a libel action where fault was admitted, only the amount of damages being contested; or in an action for indemnification by an insured against his insurer where the insurer, in refusing to settle a personal injury claim had not used reasonable care for the protection of its insured, acted in bad faith and the plaintiff ought not to have had to bring an action."

25. A quick review of cases in our jurisdiction reveals that in a number of cases, the Courts have ordered costs to be paid on a "solicitor and client basis in the following circumstances:

(a) abuse of Court process by invoking the Court's review jurisdiction without reasonable cause and pursuing an hopeless application;[6]

(b) filing an application for review with no basis at all and was clearly mischievous, unmeritorious and an abuse of the Court's process;[7]

(c) bringing proceedings which are vexatious and abuse of Court process;[8]

(d) running a defence when there is a complete lack of any valid defence and where the claim could be settled but unnecessarily delayed by the defendant causing the plaintiff to litigate unnecessarily and thereby incur expenses;[9]

(e) taking a defence position at trial by a defendant when it had no factual or legal basis;[10]

(f) Where the defendant's conduct in terminating the plaintiff's contract of employment was harsh and oppressive and had no good defence on the merits when the plaintiff sued for damages which could have settled but the plaintiff was put to unnecessary expense in litigating the claim;[11]

(g) wanton, deliberate and unprovoked wrongful assault by the defendant;[12]

(h) wilful and deliberate defiance of Court Orders;[13]

26. In Island Helicopter Services Ltd v. Wilson Sagati & Ors (supra),[14] Injia DCJ (as he then was) considered the practice of asking for costs on a "solicitor and client basis" against lawyers under O. 22 r. 65 (1). His Honour held that there must be proper forewarning as noted in the Supreme Court decision in PNG Water Board v. Gabriel M Kama,[15] and proper pleading by way of a motion clearly asking for such costs and supported by affidavit evidence which clearly identifies the conduct complained of against the party from whom "solicitor and client costs" is sought, going by the decision Rosniak v. Gio,[16] where Mapson J said:

"[T]he Court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation. This is because the party and party costs remain the norm, although it is common knowledge that they provide an inadequate indemnity."

27. The then Deputy Chief Justice went on to hold that, the lawyer against whom "solicitor and client costs" is sought must be given opportunity to be heard before such an order can be made. In so holding, His Honour correctly observed that, costs ordered on a "party and party basis" is the norm in all court proceeding. But costs on a "lawyer-client basis" are a departure from the norm and it requires proper exercise of judicial discretion because it is a serious matter as it entails serious financial burden and possible adverse effect on the lawyer's professional reputation. Hence, the onus is on the party asking for costs on such a rate to persuade the Court to exercise its discretion in that party's favour.

28. At the same time, the Deputy Chief Justice observed correctly in my view that, there are very rare cases in which the conducts of the parties or their lawyers in proceedings are known to the Court. This is possible in cases where say the proceedings are conducted and completed before the same judge. In such cases, there would be no need for formal notice of motion and affidavit. A party or a lawyer could make an oral application for "solicitor and client costs" and the matter may be argued on the pleadings, the material already before the Court, any new material such as copies of correspondences exchanged between the parties which may be handed up from the bar table by consent of the parties.

Consideration

29. In the present case, PNG Ports' employees and guests were accessing its property at Lot 18 via Canopus' property at Lot 3. PNG Ports Corporation claimed that, it had a registered easement over Lot 3 for its vehicular and pedestrian access. That claim was made without having in place any such easement, registered or capable of being registered. Canopus made numerous efforts initially directly by itself and later through its lawyers to try and come to some agreement on the issue. That included offers by Canopus for purchase of the property. At one stage, PNG Ports advertised to sell its Lot 18 property, which Canopus offered to purchase. All the efforts made by Canopus attracted no response from PNG Ports. Only when, Canopus started to put up fences to its property which effectively, prevented access to PNG Ports' Lot 18 property, PNG Ports responded by filing these proceedings asking initially for an interim injunction against Canopus. Prior to undertaking its fencing, Canopus reminded PNG Ports of its earlier unanswered correspondence and communicated its desire to put up the fence and PNG Ports, still failed to respond. Having regard to PNG Ports' conduct, I declined to grant the interim orders when PNG Ports asked for them.

30. After a few adjournments for the purposes of enabling the parties to enter into out of court settlement discussions with a view to settling the matter, the parties eventually decided to settle the matter. Throughout the whole of the process, Canopus remained committed and willing to have this matter discussed and resolved on terms mutually beneficial to both parties. The parties could have had this matter resolved much earlier and without the need for any court action had PNG Ports, properly considered and responded to Canopus' letters and various other communication in a timely manner and appropriately. PNG Ports' failure to do so led to the issuance of these proceedings and caused the parties to unnecessarily incur costs. It has also unnecessarily taken up much of the time, each time the matter came to attention of the Court.

31. The Courts have repeatedly made it clear that, almost all disputes that enter the Court are capable of settlement, by the parties' direct negotiations. The recent developments in the Alternative, Active or Appropriate Dispute Resolution (ADR) further strengthens that position. Indeed the Supreme Court on 9th November 2001, in Public Officers Superannuation Fund Board v. Sailas Imanakuan,(supra)[17] confirmed that position in these terms:

"... Courts are there only to help resolve or determine disputes that cannot be resolved by the parties themselves despite their best endeavours to do so. All human conflicts and disputes are capable of settlement without the need for court action. That is possible only if the parties are prepared to allow for a compromise of their respective positions. People in other jurisdictions are already recognising the benefits of settling out of court as it brings huge savings to the parties in terms of costs and delay and help maintain good relations between the parties. This is why in other jurisdictions, out of court settlements are actively being pursued through what has become known as Alternative Dispute Resolutions or ADRs. We in Papua New Guinea have briefly talked about it in workshops and seminars but have not formerly embraced that into our court process and procedures. Work is now being undertaken to do that."

32. Before the Supreme Court spoke in the above case, I said on 5th April 2001, in Beecraft No 20 Limited v. Dr Fabian Pok as Minister for Lands and The Independent State of Papua New Guinea,[18] in terms of lawyers duty to their clients that:

"Lawyers should now seriously examine instructions they receive from their clients and explore the possibility of out of court settlements before resorting to court action or if court action has already been instituted allowing it to continue up to a trial. The Rules of the Court are now being seriously looked at toward encouraging more alternative ways of dispute resolution first before issuing proceedings or if already issued, before listing matters for trial. This will help and eliminate those matters that need not go to trial and are capable of out of court settlement. That will help minimize the delay in the dispensation of justice and the associated costs there to."

33. Allowing myself to be guided by the foregoing decisions, I observed on 23rd October 2002, in the case of Mark Ankama v. Papua New Guinea Electricity Commission,[19] that:

As the Supreme Court said in Public Officers Superannuation Fund Board v. Sailas Imanakuan ... SC 677 at p. 24, all disputes and or conflicts between people are capable of settlement out of Court. Thus only matters that cannot settle after all serious efforts toward that should go to the Courts with agreement on almost everything except of the points in real contest. This should produce succinct issues for trial in the Courts. A good opening would then be able to assist the Court to focus its mind on the real issues for trial and come up with a judgement on it. No doubt, this would save a lot of time, money and inconvenience for all of the parties involved, including the Courts."

34. The Supreme Court further emphasised the point in its subsequent decision in NCDC v Yama Security Services Pty Ltd,[20] on 06th June 2003. There, the Supreme Court noted that negotiations, mediations and compromises of disputes have a long history in our country. The Court said:

"Indeed notions of negotiation, mediation and compromise of disputes is a long-standing traditional custom in all traditional societies in this country and our courts should be able to tap into this valuable custom and develop ADR procedures which are appropriate to our own circumstances."

35. Recognising the importance of having matters resolved out of Court the Parliament in 2008, amended the National Court Act and added sections 7A – 7E. These provisions, amongst others empower the National Court to order mediation and other forms of ADR at any stage of the proceedings. These provisions also empower the Court to promulgate appropriate rules to give effect to the legislative intent of making ADR/Mediation an integral part of the Court's process. In accordance with that mandate, the Judges recently on 30th March 2010 promulgated the "Rules Relating to, Accreditation, Regulation and Conduct of Mediators" (ADR Rules in short).

36. All these now make it abundantly clear if not already done, the need for parties to seriously explore and exhaust out of Court settlement before coming to Court. If all parties involved in a dispute did that, they would be only appropriately reserving the courts for the hearing and determination of cases, which have merit that warrant only judicial consideration and determination. In other words, only cases with meritorious issues which are beyond the ability of the parties to resolve either through their own direct negotiations or with the assistance of an independent and neutral third party, warranting judicial consideration and determination and hence need to go to the Courts, need only go to the courts. Thus, unless a case falls into such a category, most of the disputes should be settled and should never get to court. Hence, if they enter the courts without first exhausting out of court settlement options, the very first issue for the courts and the parties to address and resolve should be resolution of the matter through out of court settlement discussions which should take place under the shadow of the Court. The settlement discussions should include mediation or a form of ADR. If such discussions fail, parties should be able to agree on what the relevant facts are and which of those facts are disputed and why and clearly set out or disclose the existence of a meritorious issue or issues, which warrant judicial consideration and determination. The parties should then be able to persuade the Court that, there is such an issue for the Court's consideration. Then on being satisfied that there is such an issue for trial, the Court can allow the parties to progress their matter to trial expeditiously.

37. What this means then is that, a party who fails to give any serious consideration and fails to make good faith efforts toward resolving a dispute out of Court should be responsible for the other party's costs. Where as in this case, one of the parties has taken all of the right steps toward having a dispute resolved through the parties own negotiations or with the assistance of a mediator or an independent and neutral third party and the matter subsequently settles after much costs have been incurred, the party concerned should be responsible for the costs thrown away on a solicitor and client basis, unless the parties otherwise agree. This proceeds on the basis that, as the Supreme and this Court have said, all disputes are capable of settlement except for the few cases in which a judicial consideration and determination is necessary. Hence, forcing a matter into court or unnecessarily prolonging a dispute and its resolution should be at the costs of the party responsible.

38. In the present case, the evidence before me clearly shows that, PNG Ports Service:

(a) failed to appreciate the fact that it did not have any registered or capable of being registered easement over Canopus's property. Yet it claimed it had such a right;

(b) failed to respond in any manner or form to Canopus which had the legal right's numerous attempts to reason with them and reach an agreement or arrive at a mutually beneficial outcome;

(c) issuing Court proceedings without having a reasonable cause of action which had a likelihood of success; and

(d) failed to explore and exhaust all prospects of having the matter settled without the need for court action or further delay.

Decision

39. The matter has now settled in a way that has resulted in PNG Ports not succeeding in its claim. Considering this and all of the foregoing, I am of the view that, PNG Ports, should pay Canopus's costs and such costs should be on a solicitor and client or on an indemnity basis. I make orders in those terms and further order that, such costs are to be agreed if not taxed.

_____________________________

O'Briens Lawyers: Lawyers for the Plaintiffs
Blake Dawson Lawyers: Lawyers for the Defendant

^[1] For case authorities on this, see for example Concord Pacific Limited & Anor v. Paiso Company Ltd & Ors N1981 and Clive Wissman v. Collector of Customs [1977] PNGLR 324 at page 325(although in the context of the District Courts Act, s. 236).
^[2] I mentioned that in Odata Limited v. Ambusa Copra Oil Mill Limited & National Provident Fund Board of Trustees (2001) N2106 at page 24.
^[3] Island Helicopter Services Ltd v Wilson Sagati &Ors (2008) N3340.
^[4](1988) 89 N.B.R. (2^nd) 244.
^[5] (2nd Ed. 19877), at pages 2 – 61 and 2 – 62.
^[6] Polye v Sauk [2000] PNGLR 168.
^[7] PNG Waterboard v Gabriel M Kama (2005) SC 821.
^[8] Gulf Provincial Government v. Baimuru Trading Ltd [1998] PNGLR 311; Jacob Sarapel v. Fred Kulumbu (2003) N2405.
^[9] POSF Board v Sailas Imanakuan (2001) SC 677.
^[10] Benny Balepa v Commissioner of Police (1994) N1374;
^[11] Peter Aigilo v Morauta & Ors (2001) N2102. Salvation Army (PNG) Property Trust v Ivar Jorgenson and Rex Vagi (1997) N1644
^[12] Alex Latham and Kathleen Marie Latham v.Henry Peni [1997] PNGLR 435.
^[13] Bishop Brothers Engineering Pty Ltd v. Ross Bishop (1989) N705.
^[14] Supra note 3 above.
^[15] (2005) SC 821.
^[16] (1996-1997) 41 NSWLR 608 at 616.
^[17] Supra note 8.
^[18] (2001) N2125.
^[19] (2002) N2362.
^[20] (2003) SC707.