Stephen John Rose & John Charles Harrison v The Independent State of Papua New Guinea (2009) SC1045

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 03 August 2009
• Court: Supreme Court
• Citation: (2009) SC1045
• Docket Number: SCA No. 131 of 2007
• Year: 2009
• Judgement Number: SC1045

Full Title: SCA No. 131 of 2007; Stephen John Rose & John Charles Harrison v The Independent State of Papua New Guinea (2009) SC1045

Supreme Court: Injia, CJ

Judgment Delivered: 3 August 2009

SC1045

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 131 of 2007

Between:

STEPHEN JOHN ROSE & JOHN CHARLES HARRISON

Appellants

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Injia, CJ

2009: 3rd August

COSTS – application for security for costs – grant or refusal of an order for security for costs in an appeal is discretionary - Judge may order security to be given for cost in ‘special circumstances’ - interest of justice favours the appellants’ right to pursue judgment – application for security for costs dismissed – s.18 (1) Supreme Court Act

Cases Cited:

Brinks Pty Ltd & 2 others v Brinks Incorporated [1996] PNGLR 75,

Lambu v Ipatas (No. 3) [1997] PNGLR 2007

Counsel:

S Rose, (appellant) in person

G Gileng, for the Respondent

3rd August, 2009

1. INJIA CJ: This is the respondent’s application for security for costs. It is made under s.18 (1) of the Supreme Court Act. The application is supported by the affidavits of Mr Devette, Mr Inasi and Mr Kinn all sworn and filed herein. The application is contested by the appellant Mr Rose. Mr Rose relies on his affidavit sworn and filed on 17th July 2009.

2. The other appellant Mr Harrison though served with the application made no appearance at the hearing.

3. Both parties made submissions last week and I reserved my ruling to today which I now deliver.

4. The grant or refusal of an order for security for costs in an appeal is discretionary. The ambit of the exercise of this discretion is circumscribed by s 18 (1) itself which says the “Judge may, in special circumstances, order that just security be given for the cost of an appeal”. I am referred to a number of National Court and Supreme Court decisions in which “special circumstances” have been considered. It is sufficient to refer to the authoritative statement of the principles in two Supreme Court decisions cited by the parties.

5. In Brinks Pty Ltd & 2 others v Brinks Incorporated [1996] PNGLR 75, the Supreme Court defined special circumstances as follows:

“The key word we need to interpret is “special circumstances”. It is not possible to give an exhaustive meaning of what the “special circumstances” are. It is, however, possible to indicate the nature of these circumstances in the context of s 18. It can be implied from the context of this provision that security for costs of an appeal is not necessary in every case. The Court may exercise the discretion to order security for costs only in “special circumstances”......

Having regard to the National Court Rules and the need to protect the interest of the respondent’s costs, we would adopt the circumstances set out in the National Court Rules as coming within the meaning of “special circumstances” upon which the Court may exercise its discretion to order security for costs of an appeal, namely:

(a) that an appellant is ordinarily resident outside Papua New Guinea;

(b) that there is reason to believe that the appellant will be unable to pay the costs of the respondent if ordered to do so;

(c) that the address of the appellant is not known;

(d) that the appellant has changed address after the appeal is instituted with a view to avoiding the consequences of the appeal.

As we have stated before, this list is not exhaustive. There may be other circumstances which may come within the words “special circumstances”.

6. In Lambu v Ipatas (No. 3) [1997] PNGLR 2007, the Supreme Court discussed some earlier cases in which security for costs was dealt with including Brinks case and stated the ultimate test to be “whether, it is in the interest of justice to make or not to make an order for security for costs having regard to all the circumstances of the case (adopting the words of s 155 (4) of the Constitution)”.

7. In this application the respondent relies on the circumstances in (a), (b) and (c) in the Brinks case. It is submitted for the applicant that the appellants are Australian citizens and are not currently resident in PNG and that their fixed residential or business address for service contained in the court documents filed by appellants which is in Port Moresby, is unreliable because the respondents have had much difficulty in serving court documents on the location specified in that address for service. It is further submitted that there are no known assets...