N2633

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CIA NO. 75 OF 2002

BETWEEN:

SIMON NANUA
- First Appellant-

AND:

ROBERT SUCKLING
- Second Appellant-

AND:

Gend dinima
-Respondent-

Waigani: Injia, DCJ
2004: April 16th,
September 14th

Inferior Courts – District Court – General order for costs in favour of successful party, "if not agreed, taxed" - Order for costs not in specific amount or sum – Bill of Costs for K10,000- Subsequently sworn to and filed by successful party and sealed with Court seal – Bill of costs not taxed – Amount or sum of costs not assessed - No Court Order for specific "amount" or "sum" of costs issued – Sealed Bill of Costs treated as "Order for costs" and enforced by Court constituted by different Magistrate – Contrary to S.260(1) of District Courts Acts – Appeal allowed – Bill of Cost and enforcement proceedings quashed.

No cases cited in the judgment

Counsel:
S. Liria for the Appellant
Respondent in person

14th September 2004

Injia, DCJ: This is an appeal against the decision of the District Court sitting at Port Moresby published over by Mr Richard Cherake, made on 21 March 2002, dismissing the Appellant’s application to set aside a Warrant of Arrest issued on 6 March 2002. The Warrant of Arrest was issued following the Appellant’s alleged failure to attend Court in answer to a Debtor’s summons issued by that Court for the Appellant’s oral examination in relation to the non-payment of "an order" for costs in the sum of K10,000." The Debtor’s submission was in relation to a decision of the District Court made on 25th October 2001 constituted by Mr Steven Oli, Deputy Chief Magistrate, in which His Worship made an order in favour of the Respondent granting him title to the disputed block of land. Clause No. 4 of that order, says costs was awarded to the Respondent, "if not agreed, be taxed".

On 20th November 2001, the Respondent filed a Bill of Costs in the form of a sworn statement. The Bill of Costs states:

"Costs

The Cost (sic) of these proceedings had been awarded in favour of the complainant (Mr Gend Dinima, and the decision had been made on the 25/10/2001, so;

1.	Expenses		-	K 6,000.00
2.	Suffer			-	K 2,500.00
3.	Legal costs		-	K 1,200.00
4.	Interests			-	K 300.00

Total costs		-	K10,000.00

Sworn by (signed by complainant) on the 20th day of November 2001
Commissioner of Oath (Signed by unnamed person and seal with District Court seal)
GEND DINIMA
								PORT MORESBY"

There is no evidence to show that the amount for the separate items above was either agreed to by the parties, or in the absence of an agreement, it was taxed by the District Court. There is no evidence or Court record to show that the Court or Magistrate taxed this Bill of Costs and made a specific order for costs in the amount or sum of K10,000.

There are five (5) grounds of appeal and these are:

"1.	The learned Magistrate erred in fact and in law in holding that there was insufficient grounds to set aside the Warrant of Arrest.

2.	The learned Magistrate erred in law in not providing reasons or sufficient reasons contrary to Section 160 of the District Court Act, Chapter No. 40, in justifying his refusal of the applicant’s application to set aside Warrant of Arrest on 21st March 2002.

3.	The learned Magistrate erred in law in not considering or giving sufficient weight to the evidence which showed that the basis upon which the Warrant of Arrest dated 6th March 2002 was obtained was based on misinterpretation and misconception of Order No. 4 of His Worship Stephen Oli, dated 25th October 2001.

4.	The learned Magistrate erred in fact and in law in not giving sufficient weight to the applicant’s evidence that the costs awarded against the Defendants, which were the basis of the Warrant of Arrest dated 6th March 2002 being K10,000.00 for costs alone were in excess of its jurisdiction and not in accordance with Schedule 4 of the District Court Act, Chapter No. 40.

5.	There as a likelihood of unfairness and miscarriage of justice as the learned Magistrate Mr. Richard Cherake who heard the application’s to set aside the Warrant of Arrest on the 6th March 2002 contrary to Section 59 of the National Constitution.

6.	Such further or other additional grounds will be added and relied upon by the Defendants upon perusal of the Court depositions."

Both parties have filed written submissions on each of the grounds of appeal and invited me to make my decision based on them. They chose not to speak to their submissions. I have read those submissions and considered them.

In my view, ground No. 3 is the main ground, because the more fundamental issue of the validity of this order a cost outweighs the other grounds which relate to procedural issues of enforcement, arising from the grant of an order for the costs. There is no issue taken of the Court’s general order for costs made in clause 4 of the Order of 25th October 2001. If the "order" for costs is valid, then subsequent enforcement proceedings to recover the amount, including Warrant of Execution, Debtors Summons, etc are valid.

Section 260 of the District Court Act (Ch. No. 40) provides for costs in the following terms:

(1)	The power of a Court to award costs and the award of costs by a Court are subject to the following provisions—

(a)	Where the Court makes a conviction or order in favour of the complainant, it may award and order that the defendant shall pay to the informant or complainant such costs as it thinks just and reasonable; and

(b)	Where the Court dismisses the information subject to section 260A, or complaint, or makes an order in favour of the defendant, it may award and order that the informant or the complainant shall pay to the defendant such costs as it thinks just and reasonable and

(c)	The sums allowed for costs under Paragraph (a) or (b) shall be specified in the conviction or order or order of dismissal; and

(d)	A sum awarded or ordered to be paid, whether to a complainant or to a defendant, for costs, other than costs adjudged by a conviction to be paid by the defendant to the informant, is recoverable, without the direction of the Court making the order, by execution under Division IX 2; and

(e)	Where a case is adjourned, the Court may order that the costs of and occasioned by the adjournment be paid by a party to another party; and

(f)	The costs of persons present to give evidence or produce documents, whether they have been examined or not or have or have not produced documents, unless otherwise ordered by the Court, shall be allowed to them whether or not they have been summoned, but their allowance for attendance shall not exceed the highest rate of allowance prescribed; and

(g)	The amount of costs to be paid by one party to another, whether for the attendance of persons referred to in Paragraph (f) or otherwise, shall in all cases be fixed by the Court; and

(h)	Whether the Court convicts a defendant and orders the payment of costs to the informant, the payment of costs shall be enforced in accordance with Section 168.

(2)	Costs awarded under this section on proceedings on a complaint shall not exceed the prescribed amounts.

Schedule 3 – 6 of the District Court Regulations prescribes Schedule of fees payable under S.260, 262, 263 and 264. 

There is no specific provision in the Act or the Regulations for taxation of costs, either by the Court or the Clerk of Court, similar to the taxing powers exercised by the Registrar of the National Court under the National Court Rules. It is the intention of S.260(1) that the District Court that makes the order for costs will fix the specific "amount" or "sum" of costs at the same time when the order for costs is made. The terms "such costs as it thinks just and reasonable" in Subsection (1)(a), (b), or the "sums allowed" in subsection (1)(c), or the "amount of costs" in subsection(1)(g) means an order for specific "amount" or "sum" for costs, made by the Court. The word "shall" used in this section when read together with these other terms, make it imperative for the Magistrate who decides the case to fix the amount or sum for costs at the same time the Magistrates determines the liability of a party to pay costs under S.260(1), at the conclusion of the case. Before an order for an amount or sum for costs is fixed, the parties must be heard on the issue. 

In the alternative, the Court may make a general order for costs such as the one made in the present case. If an order is made for costs "to be agreed, if not taxed" and if the parties do not settle on the issue of costs, the matter must return to the same Court or Magistrate to assess or "tax" the costs. The Bill of Costs submitted by or filed by the party awarded costs, remain a bill only until it is taxed or assessed and a specific amount or sum is ordered. The Court must make every effort to assess and fix an amount or sum for costs at the end of the case. In determining the amount of costs, reference is made to the relevant scale of costs found in the Schedule to the Regulations referred to above. Once again, both parties must be heard on the issue. 

There seems to be a practice in the District Court at Port Moresby, as evident from this case, that the party in whose favour a general order for costs is made, prepares a bill/list/summary of costs which the person swears before a Commissioner for Oaths, files it in the District Court, it is sealed with the District Court seal, it then becomes the District Court order on costs and it becomes enforceable. I am not sure if this practice is common. This practice is inconsistent with S.260(1) and the practice must cease.

In the present case, the District Court Magistrate who decided the substantive action and made an order in favour of the Respondent did not make an order for costs in a specific amount but made a general order for costs in an amount to be taxed, if not agreed. The Respondent simply filed a sworn Bill of Costs, to which the District Court seal was fixed, and the Respondent proceeded to enforce it as if it was an order for costs in that specific amount. I am satisfied that this Bill of Costs was not taxed by the Court and a specific amount or sum for costs ordered. Further, the Bill contains amounts for individual items which are grossly exaggerated and also contains items which are not included in Schedule 3 (which is the relevant Schedule) e.g. "Suffer – K2,500." One of them "Expenses – K6,000" far exceeds the rate fixed in Schedule 3. The District Court Magistrate who dealt with the enforcement proceedings failed to detect this fundamental defect or flaw in the procedure on costs, and proceeded to take steps to enforce it, which included issuing a Debtors Summons and Warrant of Arrest. I am satisfied that the entire enforcement proceedings to recover costs was flawed from the beginning. There has been a substantial miscarriage of justice flowing from this flawed process.

For this reason alone, I quash the decision of the District Court, quash the purported Bill of Costs for K10,000 submitted by the Respondent. I order that the matter of costs return to Magistrate Stephen Oli, who made the decision on the substantive order and made an order for taxation of costs, to tax those costs and make a proper order on costs for a specific amount or sum, in accordance with this decision. Having reached this conclusion, it is not necessary to determine the other grounds of appeal. The Appellant will have costs of this appeal paid by the Respondent.

The Orders of this Court are:

1.	The Appeal is allowed.
2.	The decision of the District Court made on 21st March 2002 is quashed.
3.	The Bill of Costs filed by the Respondent in the District Court on 20th November 2001 is quashed.
4.	The matter of costs is referred back to the District Court, Mr Steven Oli presiding, for taxation or assessment of costs, in accordance with this decision.
5.	The Respondent shall pay the Appellant’s costs of this appeal.
___________________________________________________________________
Lawyers for the Appellant		:	Paraka Lawyers
Respondent in person