In re Manase [2005] PGSC 47; SC879 (31 October 2005)

SC879

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO. 34 of 2003

REVIEW PURSUANT TO CONSTITUTION
SECTION 155 (2)(B)

APPLICATION BY ALFRED MANASE t/as
PATO LAWYERS

Waigani: Kapi C.J., Jalina & Sevua JJ.
2005: 31 October

JUDICIAL REVIEW - under s 155 (2)(b) of the Constitution – Issues within the discretion of the Supreme Court to review.

COST – Power of the Court to award costs under s.212 (1) considered Award of costs under s 223 considered.

Counsel:

S. Reid, for the Applicant
T. Anis, for Respondents.

Cases cited:

Avia Aihi v The State [1981] PNGLR 81
Application for Reivew by Melchior Kasap & Application for Review by Peter Yama [1988-89] PNGLR 197

Legislations Cited:
Constitution
Organic Law on National and Local Level Government Elections

31 October 2005

1. BY THE COURT: This is an application for review under s 155 (2) (b) of the Constitution.

2. The background to this review may be summarized as follows. On 8th May 2003, Sakora J. dismissed two election petitions (E.P. Nos 24 & 26 of 2002) and His Honour made an order for costs against Pato Lawyers. Pato Lawyers had formerly been the lawyers acting for the two petitioners and the trial judge, in Pato Lawyers absence, found that Pato Lawyers conduct of the matter prior to trial was such as to warrant costs being awarded against them, rather than against the two unsuccessful petitioners themselves.

3. As this is an exercise of discretion under the Organic Law on National and Local Level Government Elections (Organic Law), there is no right of appeal under s 220. However, there may be a review under s 155 (2) (b) of the Constitution on very limited grounds (see Avia Aihi v The State [1981] PNGLR 81 and Application for Review by Melchior kasap & Application for Review by Peter Yama [1988-89] PNGLR 197]. It is not necessary to set out all the cases here. There is no dispute that the issues before us, namely, (1) the power of the National Court to make costs award against a lawyer for an unsuccessful party and (2) the right to be heard before a costs award is made, fall within the category of grounds that may be reviewed under s 155 (2) (b) of the Constitution in election petition cases.

Power to Award Costs.

4. In support of the argument that the National Court has no power to award costs against a lawyer for an unsuccessful party, counsel for the applicant relies on s 223 of the Organic Law:

"The National Court may award costs against an unsuccessful party to a petition."

5. He submits that this provision gives power to award costs against unsuccessful parties such as the petitioners but there is no power to award costs against lawyers representing the unsuccessful parties. We note that s 223 speaks of: "award costs against an unsuccessful party in the petition." and that Pato Lawyers is not a party to the petition.

6. We consider that the powers of the National Court to award costs under s 212 (1) (j) of the Organic Law is wide enough and it is not restricted by s 223. Award of "cost" against an unsuccessful party (s 223) is premised on the general principle that cost of litigation should be born by the unsuccessful party. This rule applies generally to all litigation subject to the discretion of the court.

7. However, there may be circumstances where a petition may be unsuccessful on the basis of an act or omission on the part of a lawyer and cannot be attributed to an unsuccessful party. In our view, costs that may be occasioned by a lawyer in those circumstances, comes within the discretion of the Court to make costs award under s 21 (1) (j) of the Organic Law. We would dismiss this ground of review.

Opportunity to be Heard.

8. Alternatively, counsel for the applicant submits that the exercise of power to award costs is subject to the rules of natural justice – the right to be heard. He relies on O 22 r 65 of the National Court Rules which gives a lawyer the right to be heard on costs. It is not necessary for us to consider whether or not the National Court Rules apply to election petition cases. We are of the opinion that the underlying law principles of natural justice under s 59 of the Constitution are applicable to the right of a party (including a lawyer representing a party) to be heard before any award costs are made in an election petition. We would develop this principle by way of development of the underlying law under s 60 of the Constitution and apply it in election cases.

9. In this matter, when the issue of awarding costs against the applicant law firm arose, the lawyers for the respondents in the National Court requested the trial judge to give the applicant an opportunity to be heard before any award of costs could be made. The trial judge did not do this and proceeded to make costs award against the applicant in their absence. In doing so, he fell into error. We would allow the review on this ground.

10. In the result, the review is allowed and the costs award by the trial judge is set aside. We direct that the relevant parties should negotiate the settlement of costs and in the event that this is not settled, the parties should set down the matter before Sakora J for argument and determination.

Parties will bear their own costs of this review.

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Steeles Lawyers: Lawyers for the Applicant
Blake Dawson Waldron Lawyers: Lawyers for the Respondent