Barava Limited v Augustine Mamalau, Joseph Buidal, Robert Rarap & Joseph Raite; Sca No 153 Of 2013; Marcello Vagaia, Tiop Balsasar, Linus Tirava, Bernard Turadavai, Francis Tapuku & Francis Entini and Barava Limited v Joseph Buidal, Henry Pidi, Robert Rarap & Augustine Mamalau (2013) SC1301

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 05 December 2013
• Court: Supreme Court
• Citation: (2013) SC1301
• Docket Number: SCA NO 152 OF 2013
• Year: 2013
• Judgement Number: SC1301

Full Title: SCA NO 152 OF 2013; Barava Limited v Augustine Mamalau, Joseph Buidal, Robert Rarap & Joseph Raite; Sca No 153 Of 2013; Marcello Vagaia, Tiop Balsasar, Linus Tirava, Bernard Turadavai, Francis Tapuku & Francis Entini and Barava Limited v Joseph Buidal, Henry Pidi, Robert Rarap & Augustine Mamalau (2013) SC1301

Supreme Court: Makail, J

Judgment Delivered: 5 December 2013

SC1301

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 152 OF 2013

BETWEEN

BARAVA LIMITED

Appellant

AND

AUGUSTINE MAMALAU, JOSEPH BUIDAL, ROBERT RARAP & JOSEPH RAITE

Respondents

AND

SCA NO 153 OF 2013

BETWEEN

MARCELLO VAGAIA, TIOP BALSASAR, LINUS TIRAVA, BERNARD TURADAVAI, FRANCIS TAPUKU & FRANCIS ENTINI

First Appellant

AND

BARAVA LIMITED

Second Appellant

AND

JOSEPH BUIDAL, HENRY PIDI, ROBERT RARAP & AUGUSTINE MAMALAU

Respondents

Waigani: Makail, J

2013: 04th & 05th December

SUPREME COURT – PRACTICE & PROCEDURE – Application for Stay – Appeal against refusal to set aside ex parte taxed costs – Whether right to a rehearing of an ex parte taxed costs available – Whether important point of law and procedure raised – Jurisdiction of National Court to review taxing officer’s assessment of taxed costs – Supreme Court Act – ss. 14(3)(b) & 19 – National Court Rules – O 22, rr 60 & 61.

SUPREME COURT – PRACTICE & PROCEDURE – Application for Stay – Form of application – Application made by notice of motion – Application should be made using Form 4 – Application incompetent for want of form – Notice of motion struck out – Supreme Court Act – s. 19 – Supreme Court Rules – Form 4.

Facts

The National Court refused the appellants’ applications to review the decisions of the Assistant Registrar of Kokopo National Court in her capacity as Taxing Officer in certifying costs in two National Court proceedings in the sum of K74,173.40 in WS No. 850 of 2010 and K10,228.30 in OS No. 287 of 2007. The costs were taxed at an ex parte taxation hearing. The appellants filed these appeals and in the interim, sought a stay of the decision pursuant to s. 19 of the Supreme Court Act. They submitted inter alia, that as the costs were taxed ex parte, and the Rules on Costs under O 22 of the National Court Rules do not provide for setting aside of ex parte taxed costs and rehearing before the Taxing Officer, the Court had discretion under s. 155(4) of the Constitution to issue those orders.

Held:

1. As the application for stay was made by notice of motion, it was flawed and incompetent as it was not in accordance with Form 4 of the Supreme Court Rules. The notice of motion was struck out: Kawaso Limited -v- Oil Search (PNG) Limited (2010) SC1082 followed.

2. The National Court Rules do not provide for a rehearing of ex parte taxed costs by the Taxing Officer. The only right available to a party aggrieved by the decision of the Taxing Officer in relation to taxed costs was to seek a review by way of a motion to a Judge under O 22, r 60 of the National Court Rules.

3. The appellants’ submission that the Court has discretion to set aside the ex parte taxed costs and order a rehearing did not raise an arguable case nor did it raise an important point of law. Further, there was no apparent error of law or procedure in the decision of the primary judge.

4. These cases had a long history. They were about a land dispute and the respondents had to defend them since the first case was commenced in 2007. As a result, they had incurred substantial costs. To stay the judgment would deny them their costs.

5. The application for stay was refused with costs.

Cases cited:

Gary McHardy -v-Prosec Security Limited [2000] PNGLR 279

Kawaso Limited -v- Oil Search (PNG) Limited (2010) SC1082

Counsel:

Mr E Paisat, for Appellants

Mr N Saroa, for Respondents

RULING ON APPLICATION FOR STAY

05th December, 2013

1. MAKAIL, J: On 14th October 2013, the National Court presided by Oli, AJ refused the appellants’ applications to review the decisions of the Assistant Registrar of Kokopo National Court in her capacity as Taxing Officer in certifying costs in two National Court proceedings in the sum of K74,173.40 in WS No. 850 of 2010 and K10,228.30 in OS No. 287 of 2007. On 24th October 2013, the appellants filed these appeals and in the interim, seek a stay of the decision pursuant to s. 19 of the Supreme Court Act.

Relevant Principles on Stay

2. The principles relevant to stay are set out in Gary McHardy -v-Prosec Security Limited [2000] PNGLR 279. These are:

· Whether leave to appeal is required and whether it has been obtained?

· Whether there has been any delay in making the application?

· Possible hardship, inconvenience or prejudice to either party;

· The nature of the judgment sought to be stayed;

· The financial ability of the applicant;

· Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;

· Whether on the face of the record of the judgment, there may be indicated an apparent error of law or procedure;

· The overall interest of justice;

· Balance of convenience;

· Whether damages would be a sufficient remedy?

Grounds of Appeal

3. According to the notices of appeal, each appeal is against the decision of the primary judge refusing to set aside the certificate of taxation. It is a final decision and leave is not required under s. 14(3)(b) of the Supreme Court Act. In both cases, the certificate of taxation was issued ex parte because the appellants did not attend the taxation hearing. In each case though, the grounds of appeal are identical. There are three grounds but they raise the same issue. The issue is whether the Court has discretion to set aside ex parte taxed costs and order its rehearing before the Taxing Officer. There are no other grounds alleging where and how his Honour erred in his exercise of discretion in assessing the costs.

Parties’ Submissions

4. The decision was made on 14th October 2013. The appeal and the application for stay in each case were filed on 24th October 2013. Mr Paisat of counsel for the appellants submitted that there is no delay as only a ten day period had lapsed since the date of decision and the date of filing the application for stay. The respondents have not shown how they have been prejudiced by the delay.

5. Mr Saroa of counsel for the respondents submitted that the time to compute the delay should be from 14th October 2013 to the date of hearing, this being 04th December 2013 and if that were the case, the appellants are late by almost two months. Both counsel have not cited any decided case on point to support their competing submissions. I consider it not necessary to consider this issue because in my view, the delay is not inordinate if one were to complete time from the date of decision to date of filing the application or from the date of decision to the date of hearing of the application.

6. It is the possibility of causing inconvenience or even prejudice to the respondents if a stay were granted that is in my view, the important consideration here. Mr Paisat submitted that that either way, both parties will be prejudiced by the stay. If a stay order is not granted, the appellants will be obliged to pay the taxed costs without having their appeals heard and determined first. If they were to pay the costs and if the appeals were successful, it would render their appeals nugatory.

7. Mr Saroa submitted that the respondents have secured taxed costs in the two National Court proceedings and subsequently a judgement in their favour and are entitled to the fruits of the judgment. These cases have a long history. They are about a land dispute and the respondents had to defend them since the first case was commenced in 2007. As a result, they have incurred substantial costs. To stay the judgment would deny them their costs.

8. It is arguable either way but I tend to lean towards Mr Saroa’s submission. The respondents are entitled to the fruits of the judgments. Any delay would deny them the right to have their costs paid. This consideration must not be considered in isolation. It must be considered together with the other factors set out in the case of Gary McHardy (supra). The appellants must also demonstrate that there is an arguable case for the discretion to be exercised in their favour. They also must show that on the face of the record of the judgment, there is an apparent error of law or procedure.

9. For that, Mr Paisat conceded that there is no express provision in O 22 of the National Court Rules for a rehearing of taxed costs by the Taxing Officer where it is made ex parte or after an ex parte hearing. But in support of the grounds of appeal and in demonstrating that the appellants have an arguable case and that on the face of the record of the judgment, there is an apparent error of law or procedure, he strongly submitted that as the appellants were not present at the taxation hearing before the Taxing Officer and the hearing proceeded ex parte, the primary judge had discretion to set aside the ex parte taxed costs and remit it for rehearing before the Taxing...