Zeipi v Gagarimabu [1999] PGSC 18; SC611 (28 May 1999)

Unreported Supreme Court Decisions

SC611

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC REVIEW NO. 5 OF 1999
REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (B)
APPLICATION BY PARRY ZEIPI
AND: GABIA GAGARIMABU
FIRST RESPONDENT
AND: THE ELECTORAL COMMISSION
SECOND RESPONDENT

Waigani

Kapi DCJ Hinchliffe Kirriwom JJ
29 April 1999
28 May 1999

JUDICIAL REVIEW pursuant to s 155 (2) (b) of the Constitution – Security for costs – the need to balance the relevant considerations carefully.

Counsel

J.Aisa for the applicant

A. Manase for the first respondent

Kongri for the second respondent

28 May 1999

KAPI DCJ HINCHLIFFE KIRRIWOM JJ: Mr Parry Zeipi (Applicant) petitioned the result of the election of the Hon. Gabia Gagarimabu in the last General Elections (EP No. 28 of 1997). The petition was tried by the National Court and on the 3^rd December 1998, the Court dismissed the petition. The applicant has filed a judicial review against the decision of the National Court pursuant to s 155 (2) (b) of the Constitution. The review is pending.

In the mean time, the first respondent made an application for security for costs pending the review. Counsel for the second respondent supports the application.

The Court has wide discretion in this matter under s 155 (2) (b) of the Constitution. The proper principles for the exercise of the discretion have now been established in the recent decision, David Lambu v. Peter Ipatas & The Electoral Commission (No. 3) (Unreported judgment of the Supreme Court dated 30^th April 1999, SC601). We adopt the general principles enunciated in that case.

The primary concern is the need to protect the interest of the respondents in the event that they are successful in the outcome of the review. The ultimate test is, whether, it is in the interest of justice to make an order for security for costs.

Counsel for the respondents rely mainly on two grounds. First, that the National Court awarded substantial costs against the applicant in the amount of K45,627.33 and that he has not paid any of these costs to date. Second, that the applicant has no merit in the judicial review.

While we accept that the merits of the review is a relevant consideration, we do not consider that it is determinative of this issue. It is important to bear in mind that ultimately, the merits should be determined at the substantive hearing on the merits. This consideration is to be balanced against the right of all citizens to go to the Supreme Court. That in many cases there will be ordinary people who may not be able to put up security for costs and security for costs should not be used as an obstacle to stop them from getting a hearing in the Supreme Court. If access to the Supreme Court was based on financial considerations, the rich could have an advantage over litigants who did not have the means. On the other hand, litigants should not drag other parties into the expense of having to go to the Supreme Court, if the other parties are unable to recover any costs at the completion of the review. All these considerations must be delicately balanced.

In the present case, there is evidence to show that there is a taxed bill of costs for K45,627.33 which remains to be paid. First, the question of costs in the National Court still remain open depending on the merits of the review. That of itself does not indicate in any way the ability or inability of the applicant to pay those costs. There is no other evidence to show that the applicant is unable to meet these costs or future costs of the review.

We bear in mind that the respondents have the ultimate remedy of getting costs of the review against the applicant if he is not successful on the merits of the review against the applicant if he is not successful on the merits of the review and such an order can be enforced against him in the ordinary way.

We are not satisfied that circumstances for security for costs exist in this matter. We dismiss the application with costs to the applicant.

Lawyers for the Applicant: Aisa & Associates

Lawyers for the First Respondent: Pato

Lawyers for the Second Respondents: Nonggor & Associates