William Moses v Otto Benal Magiten (2006) SC875

• Jurisdiction: Papua New Guinea
• Judge: Mogish Cannings & Gabi JJ
• Judgment Date: 10 November 2006
• Citation: (2006) SC875
• Docket Number: SCA NO 15 0F 2001
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC875

Full Title: SCA NO 15 0F 2001; William Moses v Otto Benal Magiten (2006) SC875

Supreme Court: Mogish, Cannings & Gabi JJ

Judgment Delivered: 10 November 2006

SC875

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 15 0F 2001

WILLIAM MOSES

Appellant

V

OTTO BENAL MAGITEN

Respondent

Madang: Mogish, Cannings & Gabi JJ

2005: 2 November

2006: 10 November

RULING

COSTS – certificate of taxation for costs – power of Supreme Court to make order for costs – lack of specific Rules of Court – Supreme Court Act, Sections 6(2), 8(1)(e) – Supreme Court has same powers, authority and jurisdiction as National Court as to costs.

The respondent to appeal proceedings in the National Court and the Supreme Court was awarded costs in both proceedings. He obtained certificates of taxation of costs for both proceedings from a taxing officer, for specific sums. He applied to the Supreme Court for an order directing the entry of judgment for those sums. Neither the Supreme Court Act nor the Supreme Court Rules expressly empowers the Supreme Court to make orders for costs and there is no law equivalent to Order 22 of the National Court Rules regulating the making and enforcement of costs orders by the Supreme Court.

Held:

(1) When hearing and determining an appeal the Supreme Court has by virtue of Section 6(2) of the Supreme Court Act all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.

(2) Furthermore, the Supreme Court may, for the purposes of the Supreme Court Act, if it thinks it necessary or expedient in the interests of justice to do so, by virtue of Section 8(1)(e) of the Supreme Court Act, exercise in relation to the proceedings of the Supreme Court any other powers that may for the time being, be exercised by the National Court on appeals or applications.

(3) The combined effect of those provisions is that whatever the National Court can do regarding costs, the Supreme Court can do.

(4) It is appropriate to draw on Order 22 of the National Court Rules as a guide to the powers, practice and procedure of the Supreme Court regarding costs (Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission (2000) SC651, applied).

(5) Order 22, Rule 62 of the National Court Rules allows the National Court to direct the entry of judgment for costs, after certification; so the Supreme Court has equivalent power in equivalent circumstances.

(6) In the present case, the amount of costs having been certified and a party to the appeal having made an application supported by affidavit, it was appropriate to direct entry of judgment for the certified costs.

Cases cited

The following cases are cited in the judgment:

Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission (2000) SC651

Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PNGLR 385

William Moses v Otto Benal Magiten (2000) N2023

APPLICATION

This was an application for entry of judgment for costs, following certification of costs by the Registrar.

Counsel:

O B Magiten, the applicant in person

No appearance by the other party

1. BY THE COURT: This is a ruling on an application by a person who was awarded costs, for a judgment on those costs. He has already had the costs certified by the Registrar but the costs have not been paid to him yet. He wants us to enter a judgment in his favour, saying that he is entitled to be paid a specific sum of money.

BACKGROUND

2. The applicant is Otto Benal Magiten. He has had an ongoing dispute with one of his relatives, William Moses, over an oil palm block in the Bialla District of West New Britain Province.

3. Mr Magiten took the dispute to the District Court at Bialla and in June 1999 obtained an order ejecting Mr Moses from the block.

4. Mr Moses filed an appeal in the National Court, in proceedings known as App No 190 of 1999. In December 2000 Kandakasi J, sitting in the National Court in Lae, dismissed Mr Moses’s appeal for want of prosecution (William Moses v Otto Benal Magiten (2000) N2023).

5. Mr Moses then filed an appeal against Kandakasi J’s decision in the Supreme Court, in proceedings known as SCA No 15 of 2001. They are the proceedings to which the current application is attached. Mr Moses is the appellant and Mr Magiten the respondent. Mr Moses’s appeal in SCA No 15 of 2001 came before the Supreme Court in Kokopo in August 2001. It was also dismissed for want of prosecution. The Court was constituted by Sawong J, Gavara-Nanu J and Lenalia J.

6. Mr Magiten has therefore had three successive wins over Mr Moses – in the District Court, the National Court and the Supreme Court. On each occasion, costs have been awarded to Mr Magiten. The District Court ordered Mr Moses to pay K1,501.00 costs. The National Court ordered that the appeal be dismissed “with costs against the appellant”. The Supreme Court ordered Mr Moses to “pay the applicant’s costs on a solicitor/client basis”.

7. We do not know whether the District Court costs have been paid but that does not matter, as the application before us relates only to the National Court and the Supreme Court costs. For both of them, Mr Magiten applied to have his costs ‘taxed’. He submitted his bills of costs and a taxing officer, the Deputy Registrar of the Supreme Court, Ms Christine Daingo, in May 2003 issued certificates of taxation in the following terms:

National Court – App No 160 of 1999 = K 803.60

Supreme Court – SCA No 15 of 2001 = K6,320.00

Total = K7,123.60

8. Mr Magiten says he has tried everything reasonable to get Mr Moses to pay the money but Mr Moses says the certificates are not court orders so he does not have to pay.

9. Mr Magiten’s application, filed in July 2005, is for us to direct the entry of judgment for the above sums.

POWER OF SUPREME COURT TO AWARD COSTS

10. The application before the court raises the issue of the Supreme Court’s power to award costs and make orders that a judgment be entered on costs. There is no law, equivalent to Order 22 of the National Court Rules, which expressly authorises the Supreme Court to award costs or that regulates taxation of costs or enforcement of costs orders by the Supreme Court. The Supreme Court Act (Chapter No 37) and the Supreme Court Rules are generally silent on the issue (though the Act alludes to costs in Sections 5(1)(d) and 35). This is significant as the power of a court or tribunal to award costs must be conferred by statute. It is not part of a court or tribunal’s inherent powers (Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PNGLR 385, Supreme Court, Kidu CJ, Pratt J, Bredmeyer J).

11. However, the Supreme Court decided in a previous case that its power to award costs is an ordinary part of the exercise of its judicial functions and that there is a provision of the Supreme Court Act which, in effect, gives the Supreme Court the same powers as the National Court in regard to costs. The case is Don Pomb Pullie Polye v Jimson Sauk and Electoral Commission (1999) SC651 (Sheehan J, Sawong J, Jalina J). The provision the court relied on was Section 8(1)(e) (supplemental powers of Supreme Court), which states:

For the purposes of this Act, the Supreme Court may, if it thinks it necessary or expedient in the interests of justice to do so … exercise in relation to the proceedings of the Court any other powers that may for the time being be exercised by the...