Chief Collector of Taxes v Dickson Panel Works [1990] PGSC 2; SC390 (30 April 1990)

Unreported Supreme Court Decisions

SC390

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO 15 OF 1988

SCA NO 17 OF 1989

SCA NO 18 OF 1989

SCA NO 19 OF 1989

SCA NO 20 OF 1989

SCA NO 21 OF 1989

SCA NO 22 OF 1989
BETWEEN
THE CHIEF COLLECTOR OF TAXES
APPELLANT
V
DICKSON PANEL WORKS PTY LTD & 2 OTHERS
RESPONDENT
AND
BETWEEN
THE CHIEF COLLECTOR OF TAXES
APPELLANT
V
JOSEPH DAVIS
RESPONDENT
AND
BETWEEN
THE CHIEF COLLECTOR OF TAXES
APPELLANT
V
TOMAY INVESTMENTS PTY LTD
RESPONDENT
AND
BETWEEN
THE CHIEF COLLECTOR OF TAXES
APPELLANT
V
SOUTH PACIFIC SHIPPING PTY LTD
RESPONDENT
AND
BETWEEN
THE CHIEF COLLECTOR OF TAXES
APPELLANT
V
TERRITORY FIBROUS PLASTER & ACOUSTIC TILES PTY LTD
RESPONDENT
AND
BETWEEN
THE CHIEF COLLECTOR OF TAXES
APPELLANT
V
LUCKY STAR CORDIALS PTY LTD
RESPONDENT
AND
BETWEEN
THE CHIEF COLLECTOR OF TAXES
APPELLANT
V
DAVIS CONSOLIDATED PTY LTD
RESPONDENT

Waigani

Amet J
20 April 1990
30 April 1990

PRACTICE AND PROCEDURE - Application for security for costs under O 14, rr 24 and 25 of National Court Rules - Inappropriate to Supreme Court Appeals by Applicant.

These were applications by the Chief Collector of Taxes seeking order for security for costs, against the respondents for each outstanding Supreme Court Appeal.

Held

(1) The applicant, Chief Collector of Taxes is the petitioner and appellant in the National Court and Supreme Court respectively.

(2) Order 14, r 25 does not apply in applications by the Appellant in Supreme Court Appeals.

Application dismissed.

Cases Cited

Driver v Swanson [1977] PNGLR 30.

Application for Security for Costs

These were applications by the Appellant Chief Collector of Taxes seeking orders for security for costs in respect of each outstanding Supreme Court Appeal.

Counsel

J Weigall for the applicant

C Karingu for the respondents

Cur adv vult

AMET J: These are seventeen applications by the Chief Collector of Taxes against diverse respondents seeking orders for security for costs in respect of each outstanding Supreme Court Appeal.

The applications came before me initially sitting as a National Court in the motions court. Miss Weigall, Lawyer for the Chief Collector purported to bring the applications under O 14, rr 24 and 25. Rule 25 which provides that where in any proceedings to the Court on the application of a defendant under various circumstances as innumerated, the court may order that plaintiff to give such security as the court thinks fit for the costs of the defendant of and incidental to the proceeding. The only authority relied on was Driver v Swanson [1977] PNGLR 30 for the proposition that where the plaintiff is out of the jurisdiction and that he has no assets which can be reached within the jurisdiction in the event of an order against him for costs then the defendant was entitled to an order for security for costs.

In the course of argument quite belatedly counsel agreed that because these were applications in appeals that were pending before the Supreme Court I should reconstitute myself as a single Supreme Court Judge under the Supreme Court Act s 5, which enables a single Supreme Court Judge to deal with procedural interlocutory motions and to make orders appropriately. I need to make several observations of procedural facts at the outset of these applications.

Firstly, as I said the Chief Collector of Taxes is the appellant in all of these Supreme Court Appeals that are pending. Secondly, with the exception of SCA 15 of 1988, in all the other applications the original National Court actions were petitions by the Chief Collector of Taxes for insolvency. Thirdly, these petitions were stayed upon the Respondent's motions pending determinations of other Supreme Court Appeals against the Chief Collector in related matters. Fourthly, the Chief Collector had appealed against those National Court Orders granting the stay. It is pursuant to these appeals pending in the Supreme Court that these applications are now being made. Fifthly, the only one that is different is SCA 15 of 1988, in which the original plaintiff is other than the Chief Collector of Taxes; being Joseph and Irene Davies and one of their companies, Dickson Panel Works Pty Ltd. That appeal was from interlocutory motions in the National Court in respect to the two Writs of Summons wherein Mr Justice Los ruled that Lawyer for the Chief Collector of Taxes then appearing before him was not qualified to appear in the motions before him.

Miss Weigall has in a novel way tried to analogise her applications with those of a defendant under the National Court Rules that I have referred to and upon the case authority that she has referred to where the plaintiff is out of the jurisdiction and has no assets which can be reached within the jurisdiction in the event of an order against that plaintiff for costs. These are not the situations in these applications. Order 14, r 25 that I have read and the authority of Driver v Swanson referred to have to do with the application of a defendant where the plaintiff is out of the jurisdiction. The applicant, Chief Collector is the plaintiff, petitioner, and appellant in these proceedings in the National Court and in the Supreme Court, apart from SCA 15 of 1988.

In all the matters under which these applications have been made the applicant is the Petitioner in the National Court and the Appellant in the pending appeals. The National Court Rules and the authority of Driver v Swanson have no relevance and do not apply to these circumstances. I cannot perceive how the applicant can equate or analogise himself as a defendant to bring himself under O 14, r 25 seeking security for costs. Quite frankly, this is a novel and unique proposition quite unsupported by authority. It is quite a unique proposition for a party who is a plaintiff and who is a petitioner who sues someone else and who then files appeal against a decision in favour of that defendant party in the trial court, to come seeking security for costs.

It is quite plainly without foundation. In my view the Chief Collector is in no different position to any other litigant. He must run the risk of incurring costs in any court proceedings just the same as any other litigant. If he were a defendant then he can just like any other defendant under O 14, r 25 apply for security for costs. The applications are all totally misconceived, without foundation and authority and I dismiss them all.

The cost of each application in the defendants favour.

Lawyer for the applicant: J Weigall.

Lawyer for the defendants: Karingu Sitapai Kemaken & Associates.