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Undialu v Potape [2021] PGSC 10; SC2076 (25 February 2021)

SC2076
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 8 OF 2019

BETWEEN
PHILIP UNDIALU
Applicant

AND
FRANCIS POTAPE
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani (“On the Papers”): Makail, Polume-Kiele & Dingake JJ
2020: 9^th November
2021: 25^th February

COSTS – Application for costs of National Court proceedings following successful review – Costs awarded to successful party in litigation – Costs of National Court proceeding are separate from costs of Supreme Court proceedings – Supreme Court Rules – Order 11, rule 32 – Order 12, rule 4

Cases Cited:

Electoral Commission v. Pastor Peter Kaku (2020) SC1911
Gray v. Gray [1987] PNGLR 141
Re Manase (2005) SC879
Wamu Abari v. Willie Gumaim (2020) SC1925

Counsel:

Messrs P. Mawa & G. Gileng, for Applicant
Mr. B. Lomai, for First Respondent
No appearance, for Second Respondent

RULING ON COSTS

25^th February, 2021

1. BY THE COURT: This is a ruling on costs of the National Court proceedings. On 7^th August 2020, we delivered a judgment in favour of the applicant, upheld the application for review, quashed the decision of the National Court and awarded costs of the review to the applicant. We did not award costs of the National Court proceedings to the applicant.

2. We also note the applicant did seek to review the order for costs by the National Court which costs were awarded to the first respondent to be paid by the second respondent.

3. The applicant has applied for costs of the National Court proceedings to be awarded to him. The notice of the application cites Order 11, rule 32(1) of the Supreme Court Rules (SCR) as the jurisdictional basis of the application. Order 11, rule 32 states:

“Division 16. —Applications subsequent to disposal of proceedings

32. (1) An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

(2) A ‘slip rule’ application shall set out the nature of the slip and the finding that the applicant contends the Court should have made.

(3) A ‘slip rule’ application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed.”

4. In submissions, in addition to Order 11, rule 32, the applicant relied on Order 12, rule 4 of the SCR. Order 12, rule 4 states:

“4. The Court or a Judge may in any proceeding of which the Court or

Judge is seized exercise its power and discretion as to costs at any stage of the proceeding or after the conclusion of the proceeding.

(a) Where the Court or a Judge makes an order in any proceeding for the payment of costs the Court or a Judge may require that the costs be paid forthwith notwithstanding that the proceeding is not concluded.

(b) An order for costs of an interlocutory proceeding shall not, unless the Court or a Judge otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order.

(i) When, pursuant to Section 3 or 12 of the Act judgment is delivered by less than the full number of Judges who heard the proceeding, if no final order for costs of that proceeding is included in the judgment, the Judges or Judge delivering the decision of the Court may hear the parties on costs and make such order for costs, as is considered just.

(ii) After hearing argument the Judge or Judges may consult the available absent members of the Court, in which case the order made shall be the order of the majority of the Court”.

5. The applicant further referred to the case of Electoral Commission v. Pastor Peter Kaku (2020) SC1911 where the Supreme Court per Anis J held that the Supreme Court may exercise power to order costs before or after judgment. He contended that the Supreme Court is conferred discretion to order costs after the decision and it is open to us to award costs of the National Court proceedings to him notwithstanding the conclusion of the review. The first respondent opposed the application and contended that our decision is in order and that as the Supreme Court proceedings had been concluded, it is not open to the applicant to seek costs of the National Court proceedings under Order 11, rule 32 and Order 12, rule 4.

6. The long and short answer to the issue is this, unless the applicant has sought review of the order for costs by the National Court which will be considered by the Supreme Court on its own merit, Order 12, rule 4 has no application to an order for costs made by the National Court. Order 12, rule 4 applies to costs of the Supreme Court proceedings. The discretion conferred on the Supreme Court under Order 12, rule 4 may be exercised before or after the proceedings of the Supreme Court had been concluded.

7. This is consistent with the general rule in litigation that a party who wins a case recovers his costs against the loser or losers: Gray v. Gray [1987] PNGLR 141.

8. It is reinforced in Re Manase (2005) SC879 where the Supreme Court stated:

“the powers of the National Court to award costs under s 212(1)(j) of the Organic Law is wide enough and it is not restricted by s 223. Award of “cost” against an unsuccessful party (s 223) is premised on the general principle that cost of litigation should be borne by the unsuccessful party. The rule applies generally to all litigation subject to the discretion of the court”.

9. We did not reverse the decision of the National Court to order the second respondent to pay the first respondent’s costs of the National Court proceedings because of this reason. The first respondent as the petitioner and successful party is entitled to his costs associated with the election petition proceedings at the National Court.

10. However, as the applicant relied on Order 11, rule 32(1) we note that in Wamu Abari v. Willie Gumaim (2020) SC1925, the Supreme Court appeared to accept that an application of any nature may be made after disposal of the proceeding. If we were to consider the application as an “application of any nature” on the premise that the applicant has sought review of the order for costs, we remain unpersuaded that the applicant should be awarded costs of the National Court proceedings. This is because except for the reason that the applicant was able to successfully have the decision of the National Court quashed, he has not been able to point to any apparent error by the National Court not to award costs to him.

11. Applying the general rule in litigation, the first respondent was the successful party, and entitled to costs in the National Court and such costs remain in the National Court. As to who will pay the costs, as the party found to be responsible for the unfavourable outcome of the election, the National Court had ordered the second respondent to pay the costs of the first respondent. Costs in the Supreme Court Review are separate and as the successful party in this case, the applicant is entitled to his costs for the review proceedings only. We have already made an order to that effect.

12. The application for an award of costs of the National Court proceedings is refused with costs.

13. The formal orders are:

1. The application for costs of the National Court proceedings is refused.
   
2. The applicant shall pay the costs of the application, to be taxed, if not agreed.
   

________________________________________________________________
Gileng & Co. Lawyers: Lawyers for Applicant
Lomai & Lomai Attorneys
as agent for Paul Othas Lawyers: Lawyers for First Respondent

Kimbu & Associates Lawyers: Lawyers for Second Respondent