PNG Power Limited v Ralph Gura, Albert Ukura, Yari Baiwe and all officers and members of Arona Valley Landowners Association Inc and all people of Agarabi, Kainantu, Obura, Wonenara District and Yonki, Arona Valley Area, Eastern Highlands Province (2014) SC1402

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Gabi and Hartshorn JJ
• Judgment Date: 05 December 2014
• Court: Supreme Court
• Citation: (2014) SC1402
• Docket Number: SCA 110 OF 2012
• Year: 2014
• Judgement Number: SC1402

Full Title: SCA 110 OF 2012; PNG Power Limited v Ralph Gura, Albert Ukura, Yari Baiwe and all officers and members of Arona Valley Landowners Association Inc and all people of Agarabi, Kainantu, Obura, Wonenara District and Yonki, Arona Valley Area, Eastern Highlands Province (2014) SC1402

Supreme Court: Salika DCJ, Gabi and Hartshorn JJ

Judgment Delivered: 5 December 2014

SC1402

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 110 OF 2012

BETWEEN:

PNG POWER LIMITED

Appellant

AND:

RALPH GURA, ALBERT UKURA, YARI BAIWE

and all officers and members of Arona Valley Landowners

Association Inc and all people of Agarabi, Kainantu, Obura,

Wonenara District and Yonki, Arona Valley Area, Eastern

Highlands Province

Respondents

Waigani: Salika DCJ, Gabi and Hartshorn JJ

2013: December 18th,

2014: December 5th

Appeal against judgment entered pursuant to Order 22 Rule 62 National Court Rules – exercise of discretion

Cases cited:

Tolom Abai and Ors v. State (1998) N1762

Abai v. Independent State of Papua New Guinea (2000) SC632

Curtain Bros (PNG) Ltd v. UPNG (2005) SC788

State v. Sam Akoita and Ors (2009) SC977

Isaac Lupari v. Sir Michael Somare (2010) SC1071

Ron Napitalai v. PNG Ports Corporation Ltd and Ors (2010) SC1016

Counsel:

Mr. J. Brooks, for the Appellant

Mr. L. Manua, for the Respondents

5th December, 2014

1. SALIKA DCJ and HARTSHORN J: This appeal was heard on 18th December 2013 before a Supreme Court constituted by Salika DCJ, Gabi J and Hartshorn J. The Court reserved its decision. On 1st August 2014 Gabi J died. Pursuant to s. 3 (2) Supreme Court Act, after being requested to inform the Court of their position both parties agreed that the remaining judges should continue to hear the appeal. We now give the judgment of the Court.

2. This is an appeal against a National Court decision that entered judgment in the sum of K349, 218.00 against the appellant. That sum had been certified as the costs to be paid by the appellant following a taxation. The appeal is opposed by the respondents.

Background

3. The primary judge at the National Court in Madang ordered amongst others, that the contemnors were found not guilty of the charge of contempt and the costs of the hearing were awarded to the contemnors on a party party basis to be agreed if not taxed. The contemnors were Messrs Ralph Gura, Albert Ukura and Yari Baiwe.

4. Following a taxation of the costs by a taxing officer at the National Court at Waigani, the taxing officer issued a certificate of taxation in which he certified that he taxed the contemnors’ costs in the sum of K 349, 218.00.

5. The contemnors/respondents applied by notice of motion for judgment and following an inter partes hearing the primary judge gave an extempore decision and entered the judgment that is now the subject of this appeal.

Grounds of appeal

6. The grounds of the appeal in essence are that the facts and circumstances of this matter indicate that the primary judge ignored relevant considerations, and even in the absence of an identifiable error by the primary judge, the resulting judgment is manifestly unjust in the circumstances such that an error can be inferred in the exercise of the primary judge's discretion.

7. The respondents contend that the appeal should not be upheld as amongst others:

a) the appellant did not file a motion within time pursuant to Order 22 Rule 60 National Court Rules to review the decision of the taxing officer.

b) a lawyer’s negligence is not a sufficient reason to set aside taxed costs.

c) the appellant being a body corporate has vast resources at its disposal and therefore the non-compliance with Order 22 Rule 60 National Court Rules was not excusable.

d) the primary judge properly exercised his discretion to convert taxed costs into a judgment pursuant to Order 22 Rule 62 National Court Rules.

8. That the primary judge has a discretion under Order 22 Rule 62 National Court Rules is acknowledged by him in his extempore ruling when he notes at p148 Appeal Book that, “the court may – may on motion direct the entry of such judgment for the cost as the nature of the case requires” and then “So, maybe there is a - well, there is discretion there.”

9. The respondents have not taken issue with this and have not given a notice of contention in that respect. We agree with the primary judge that the wording of Order 22 Rule 62 National Court Rules does provide a discretion to the Court. We also note that this is the view of the Supreme Court in Abai v. Independent State of Papua New Guinea (2000) SC632. The fact that the appellant did not make an application to review under Order 22 Rule 60 National Court Rules does not in our view preclude the exercise of discretion under Order 22 Rule 62 but is a matter that may be considered in the exercise of that discretion.

10. As to the approach to be taken by an appellate court in considering an appeal from a discretionary judgment, the appellant relied upon amongst others, the following passage from the Supreme Court decision of Curtain Bros (PNG) Ltd v. UPNG (2005) SC788:

“The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 –113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance…”

11. This passage was also cited with approval by Gabi J and Hartshorn J in their judgments in Isaac Lupari v. Sir Michael Somare (2010) SC1071 and in the Supreme Court decisions of State v. Sam Akoita and Ors (2009) SC977 and Ron Napitalai v. PNG Ports Corporation Ltd and Ors (2010) SC1016.

Exercise of discretion by the primary judge

Appellant’s submissions

12. The appellant submits that the primary judge had material before him that was sufficient for him to form the view that the costs claimed in the motion for judgment were not reasonable, were not supported by material evidence and by claiming such costs the contemnors’ were attempting to profit.

13. This is so submits the appellant as the material before the primary judge showed that:

a) the contemnors’ only had legal representation at the final hearing,

b) there were not hundreds of supporters at the direction hearings or the substantive hearing,

c) the matter only occupied approximately one hour of court time,

d) the matter only involved three named contemnors.

e) the bill of costs claimed more than K708, 000, approximately K690,000 being disbursements for allegedly hiring buses, hotel accommodation and meals, whereas the taxed costs amounted to K349, 000. As such, it could be inferred that approximately K330,000 of the taxed costs must have been claimed disbursements.

14. In the circumstances the disbursements could not be reasonable as the claim only involved three individuals. It is not reasonable to claim the costs of bringing hundreds of supporters in vehicles, housing them in hotels and buying them meals. Such costs cannot be reasonably claimed. Only the costs of the three contemnors themselves could be reasonably claimed, not the costs of hundreds of people.

15. Further, counsel for the appellant/plaintiff submitted to the court repeatedly and handed up written submissions to the court to the effect that at the taxation the contemnors’ lawyer provided no material evidence to support the...