PDA Investment Ltd v Rosso [2022] PGNC 176; N9603 (5 May 2022)

N9603

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 18 OF 2020

BETWEEN:
PDA INVESTMENT LIMITED
Plaintiff

AND:
JOHN ROSSO, MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
PAIYO BALE
Third Defendant

Waigani: Dingake J
2022: 07 & 24 March, 11 & 14 April, 5^th May

PRACTICE AND PROCEDURE - Costs at solicitor/client scale – Considerations

Case Cited:

Don Pomb Poyle v Jimson Sauk Papaki & Another [2000] PNGLR 166

Counsel:

Mr. Johannes Poya, for the Plaintiff
Mr. Jeffery Lome, for the Third Defendant

5^th May, 2022

1. DINGAKE J: This is my ruling on the Plaintiff’s prayer that this Court must award costs against the Third Defendant on a solicitor/client scale.
   
2. The background facts are that, the Third Defendant had brought an application, pursuant to Order 16 Rule 13 (13) (a), Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution, that the entire proceedings be dismissed for non-compliance of a Summons for Production filed on the 23^rd of February, 2022, which he later conceded was unmeritorious and in consequence of which concession the Court dismissed same.
   
3. The Summons for Production referred to above, was fatally defective in that it had no return date.
   
4. After the Court dismissed the application brought by the Third Defendant, the Plaintiff prayed for costs at solicitor/client scale because the application was unnecessary and bound to fail. To this extent, the Plaintiff had notified the Third Defendant in writing to withdraw the Notice of Motion by letter dated 4^th April, 2022, but the Third Defendant refused or declined to do so.
   
5. It must be noted that in the said letter, among other grounds raised by the Plaintiff, to justify the withdrawal of the Notice of Motion, was that, the Summons for Production had no return date, a point that Third Defendant conceded in Court.
   
6. The Court invited the Third Defendant’s Counsel to respond to the prayers of the Plaintiff that costs at solicitor/client scale be ordered against the Third Defendant, and his response, in a nutshell, was that there was no basis for such costs as prayed by the Plaintiff.
   
7. It is trite learning, that costs are the discretion of the Court and normally follow the event. The general scale for costs is usually on party-to-party scale.
   
8. Costs at solicitor/client scale are reserved for cases were the conduct of the other party in persisting in the litigation amounts to an abuse of Court process and the costs are justified where the conduct of the other party amounts to wasting both the Court and the other party’s time in pursuing a matter or litigation that is bound to fail.
   
9. I am fortified in the view I hold, expressed above, by the decision of the Supreme Court on a similar issue in the case of Don Pomb Pullie Poyle v Jimson Sauk Papaki & Another [2000] PNGLR 166, where the Supreme Court ordered costs on a solicitor – client basis for an application that was found to be an abuse of process and hopeless.
   
10. This is one such hopeless case, where, in the absence of a return date, it was plain that the application being pursued can not succeed and the Third Defendant’s Counsel was so advised, but still persisted with the litigation, thereby wasting the Court’s time and that of the Plaintiff’s Counsel.
    
11. I, therefore, conclude on the basis of the above, that costs at solicitor/client scale are justified.
    
12. In the result:
    • (a) This application brought by the Third Defendant (by Notice of Motion dated 23^rd March, 2022, Doc. 49) filed of record is dismissed with costs at solicitor/client scale, such costs to be agreed or taxed.

_______________________________________________________________
Poya Legal Services: Lawyers for the Plaintiff
Jeffersons Lawyers: Lawyers for the Defendant