Jennifer McConnell v Loloata Island and Others

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J.
• Judgment Date: 18 March 2024
• Neutral Citation: SC2553
• Citation: SC2553, 2024-03-18
• Counsel: Ms. V. Rambua, for the Appellant,Mr. C. Joseph, for the Respondent
• Docket Number: SCA 182 OF 2023
• Hearing Date: 22 February 2024,18 March 2024
• Court: Supreme Court

SC2553

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 182 OF 2023

Between:

Jennifer McConnell

Appellant

v.

Loloata Island

Resort Limited

Respondent

Waigani: Hartshorn J.

2024: 22^nd February, 18^th March

SUPREME COURT APPEAL — Practice and Procedure — Application for Security for Costs

Cases Cited:

Brinks Pty Ltd v. Brinks, Incorporated [1996] PNGLR 75

Lambu v. Ipatas [1999] PNGLR 207

Electoral Commission v. Pila Niningi (2003) SC710

Kala Rawali v. Paias Wingti; Tom Olga v. Paias Wingti (2009) SC1033

Rose v. State (2009) SC1045

PNG Tropical Wood Products Ltd v. Manuel Gramgari (2013) SC1145

Nikint Investment Ltd v. Niganu (2020) SC1919

Counsel:

Ms. V. Rambua, for the Appellant

Mr. C. Joseph, for the Respondent

Leahy Lewin Lowing Sullivan: Lawyers for the Appellant

Ashurst PNG: Lawyers for the Respondent

18^th March 2024

1. Hartshorn J: This is a decision on a contested application by the respondent for security for costs. Reliance is placed amongst others, upon s. 18(1) Supreme Court Act.

Background

2. The appellant commenced a proceeding in the National Court seeking damages for personal injury and negligence. The proceeding was dismissed as being statute barred. The appellant now appeals.

3. The respondent applies for security for costs on the grounds that the appellant does not reside in Papua New Guinea and does not have any assets in Papua New Guinea; there is a high possibility that the appeal will be dismissed; the application has been made promptly with prior notice given to the appellant and the respondent is not using this application oppressively.

4. The appellant opposes the application on the grounds that the appellant attempted to settle the dispute before commencing proceedings; the appeal is not without merit and is not a sham; the appellant has the capacity to pay costs; this application is being used oppressively and it is not in the interests of justice that an order for security for costs be made.

Consideration

5. The appellant submits that in considering whether security for costs should be ordered the ultimate test is whether it is in the interests of justice. Reliance is placed upon Rose v. State (2009) SC1045 and “Lambu v. Ipatas (No. 3) [1997] PNGLR 2007” which is cited as such and referred to in Rose v. State (supra).

6. The judgment of the full Supreme Court reported in Lambu v. Ipatas [1999] PNGLR 207 is the judgment concerning an application for security for costs. The application was made pursuant to s. 155(2)(b) Constitution as the subject proceeding was a review and not an appeal. In that judgment the Court refers to security for costs pending an appeal being regulated by s.18 Supreme Court Act, that the provisions of the Supreme Court Act are not applicable to a review under s. 155(2)(b) Constitution and that it follows that s. 18 Supreme Court Act is not directly applicable.

7. The application before this court is made under s.18 Supreme Court Act. The judgment in Lambu v. Ipatas [1999] PNGLR 207 is not directly applicable to this application as the judgment in that proceeding concerned a review, not an appeal and the application before that Court was under s. 155(2)(b) Constitution and not s. 18 Supreme Court Act.

8. In regard to the Court considering the interests of justice and under s. 158(2) Constitution, there are numerous Supreme Court opinions to the effect that “justice” is to be interpreted as “justice according to law”: Electoral Commission v. Pila Niningi (2003) SC710; Kala Rawali v. Paias Wingti; Tom Olga v. Paias Wingti (2009) SC1033; PNG Tropical Wood Products Ltd v. Manuel Gramgari (2013) SC1145; Nikint Investment Ltd v. Niganu (2020) SC1919. The relevant law in this instance is s. 18 Supreme Court Act.

9. Section 18(1) Supreme Court Act is as follows:

“The Supreme Court or a Judge may, in special circumstances, order that just security be given for the costs of an appeal or an application for leave to appeal and, if an application is granted, for the prosecution of the appeal.”

10. The judgment of the Supreme Court which is on point is of the full Court in Brinks Pty Ltd v. Brinks, Incorporated [1996] PNGLR 75. In that judgment, in considering s. 18(1) Supreme Court Act and the reference to “special circumstances” the Court said:

“In determining the nature of what these “special circumstances” are, we think it is relevant to have regard to the circumstances upon which the National Court may order security for costs set out under O 14 r 25 of the National Court Rules. We say these Rules are relevant because they seek to protect a defendant's costs in the event that he is successful in an action. By analogy, the position is the same in an appeal. A respondent may be protected by an order for security for costs of the appeal in the event that he is successful in the result of an appeal. The difference is that in the National Court Rules, the circumstances upon which an order for costs may be made are particularised, whereas, under the Supreme...