Special Reference pursuant to Constitution, s19 In The Matter of Re-Election of the Governor-General, Sir Paulias Matane, for the second term and Interpretation of s87(5) and s88 of the Constitution; Reference by the Morobe Provincial Executive (2012) SC1202

• Jurisdiction: Papua New Guinea
• Citation: (2012) SC1202
• Date: 02 November 2012
• Docket Number: SC REF NO 4 0F 2010
• Court: Supreme Court
• Year: 2012

Full Title: SC REF NO 4 0F 2010; Special Reference pursuant to Constitution, s19 In The Matter of Re-Election of the Governor-General, Sir Paulias Matane, for the second term and Interpretation of s87(5) and s88 of the Constitution; Reference by the Morobe Provincial Executive (2012) SC1202

Supreme Court: Sakora J, Batari J, Cannings J, Manuhu J, Gabi J

Judgment Delivered: 2 November 2012

COSTS—whether appropriate to award costs in proceedings re Special Reference under Constitution, s19—discretion as to costs—whether distinction should be drawn between referrers and interveners—relevant considerations to take into account in exercise of discretion.

After the Supreme Court handed down its opinion on questions of constitutional interpretation and application referred to it under s19 of the Constitution, it reserved the question of costs pending applications for costs. The referrer and three interveners subsequently applied for costs. This is the ruling on those applications.

Held:

(1) The Supreme Court is a superior court of record and has power under the underlying law and s155(4) of the Constitution and the Supreme Court Rules to award costs at its discretion in any proceedings including a s19 Special Reference.

(2) Though the Section 19 reference procedure is unique there is no reason that the general rule that costs should follow the event ought not apply.

(3) In applying the rule of thumb that costs follow the event, the court should identify the party or parties primarily responsible for ‘the event’ and the party or parties primarily responsible for opposing it; and award costs to the former against the latter.

(4) The court should before making a final decision on costs take into account any special considerations that would warrant a departure from the general rule, eg whether a party to the reference has made a significant contribution to the proper determination of the reference (even though its submissions may not have ultimately been upheld), whether any party has been held to have acted unconstitutionally, whether any party has abused the processes of the court.

(5) Here, ‘the event’ was the determination of eight questions that formed the subject of the Reference, seven of which were decided substantially as proposed by the referrer and contrary to the propositions advanced by the second intervener (the National Parliament) and the fourth intervener (the Attorney-General).

(6) The party primarily responsible for that event was the referrer and the parties primarily responsible for opposing it were the second and fourth interveners.

(7) Application of the rule of thumb would result in the second and fourth interveners being ordered to pay the referrer’s costs. There were no special considerations to warrant departure from the general rule. In particular: it was unnecessary in hindsight for other interveners to join the proceedings and none of them added significant value to the Court’s consideration of the issues; the second intervener had acted unconstitutionally and the fourth...