Ainea Sengero v Luther Wenge — Governor Morobe Provincial Government and Soiat Williams — Secretary Department of Personnel Management (2001) N2152

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 06 August 2001
• Court: National Court
• Citation: (2001) N2152
• Year: 2001
• Judgement Number: N2152

Full Title: Ainea Sengero v Luther Wenge — Governor Morobe Provincial Government and Soiat Williams — Secretary Department of Personnel Management (2001) N2152

National Court: Injia J

Judgment Delivered: 6 August 2001

N2152

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 471 OF 2000

BETWEEN:

AINEA SENGERO

-Plaintiff-

AND:

LUTHER WENGE — GOVERNOR MOROBE PROVINCIAL GOVERNMENT

1st Defendant-

AND:

SOIAT WILLIAMS — SECRETARY DEPARTMENT OF PERSONNEL MANAGEMENT

-2nd Defendant-

LAE : INJIA, J.

2001 : JULY 13, AUGUST 6

Civil — Costs — Discontinuance of proceedings by plaintiff, by leave — Whether Successful
defendant should pay unsuccessful plaintiff's costs — Principles discussed — National Court
Rules, Order 22 rule 11.

Cases cited in the judgment

Ritter v. Godfrey [1920] 1 K.B. 47

Papua New Guinea Coffee Industry Board v. Panga Coffee Factory Ltd [1990] PNGLR 363

B. Ovia for the Plaintiff

P. Ousi for the defendants

6 August 2001

INJIA, J.: The plaintiff is the former Administrator of the Morobe Provincial Government. On 5/09/00, he filed an Originating Summons seeking orders inter alia, a declaration that his suspension or purported suspension by the First Defendant, ("Governor") is illegal and invalid.

On 13/7/01, I had before me two motions. The first motion was the plaintiff's motion seeking leave to discontinue the proceedings and seeking orders for costs. The second motion was from the defendants seeking orders dismissing the proceedings and costs. I dealt with the plaintiff motion first because it was filed first in time. I granted leave to the plaintiff to discontinue the proceedings. The reason for the discontinuance was that the relief sought in the Originating Summons was no longer available because the plaintiff's employment was terminated by the National Executive Council ("NEC") ON 06/04/01. This in turn extinguished the defendant's motion. But the plaintiff applied for his costs to be paid by the defendant and the defendants moved for their costs to be paid by their plaintiff.

Order 8 rule 61(2) allows a plaintiff to discontinue proceedings commenced by originating summons, by leave of the Court. Orders 8 r 63 provides that the "Court may give leave under Rule 61… on terms". The phrase "on terms" includes terms as to costs. This rule can be read subject to Order 22 r11 which provides for award of costs. Order 22 r11 states:

"If the Court makes an order as to costs, the Court shall, subject to this order, order that the costs follow the event, except where it appears to the court that some other order should be made to the whole or any part of the costs." (my emphasis)

The general rule that "costs follow the event" stated above means that an unsuccessful party should pay the successful party's costs. What then is the position of a plaintiff who discontinues his action? Pursuant to Order 22 r17(1) a plaintiff who discontinues his action without leave of the court is an unsuccessful party and he must pay the successful defendant's costs "unless the Court orders otherwise". It follows that an unsuccessful plaintiff who discontinues costs, "unless the Court otherwise orders". In the present case, because the proceedings were discontinued with leave of the Court, the unsuccessful plaintiff must pay the successful defendant's costs unless the plaintiff qualifies under the exception.

But the precise ambit of the discretion conferred by the exception to the general rule is not specified under Order 22. In my research, I am unable to locate any local cases in which an unsuccessful plaintiff is required to pay a successful defendant's costs. I find Lord Atkin's statement in Ritter v. Godfrey [1920] K.B. 47 in relation to Order 62 r3(3) of the United...