In re Fly River Provincial Executive [2007] PGSC 43; SC918 (31 August 2007)

SC918

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 3 0F 2006

IN THE MATTER OF SECTION 19 OF THE CONSTITUTION
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

REFERENCE BY
FLY RIVER PROVINCIAL EXECUTIVE

Waigani: Salika J, Gavara-Nanu J, Cannings J
2007: 31 August

RULING ON COSTS

COSTS – constitutional reference struck out – whether referrer should pay costs of interveners.

An intervener in a Constitution, Section 19 reference made a successful application that the reference be struck out for non-compliance with the Supreme Court Rules. The application had been opposed by the referring authority and one of the other interveners; and supported by two other interveners.

Held:

(1) Though the Section 19 reference procedure is unique there is no reason that the general rule that costs should follow the event ought not apply.

(2) In this case the ‘event’ in question was the hearing of an application by OTML to strike out the reference.

(3) In applying the rule of thumb that costs follow the event, the court should identify the party primarily responsible for bringing the successful application and the party primarily responsible for opposing it.

(4) In this case, those parties were OTML and the referrer, the Fly River Provincial Executive, respectively.

(5) Accordingly the referrer was ordered to pay OTML’s costs; and other parties will bear their own costs.

Cases cited
There are no cases cited in the judgment.

RULING

This is a ruling on costs

Counsel
K Pilisa, for the referrer
V Narokobi, for the 1st intervener
T Boboro, for the 2nd intervener
N Pitoi, for the 3rd intervener

31 August, 2007

1. BY THE COURT: Earlier today we struck out a Constitution, Section 19 reference for non-compliance with the Supreme Court Rules. We upheld an application to strike out the reference that had been made by an intervener, Ok Tedi Mining Ltd.

2. The application had been opposed by the referring authority, the Fly River Provincial Executive and one of the other interveners, Tigam Malewo; and supported by two other interveners, PNG Sustainable Development Program Ltd and the National Parliament.

3. We then heard submissions on costs and this is our ruling on costs.

4. The parties agreed that if costs are to be awarded, costs should be restricted to costs incidental to the hearing of the application that we have just ruled on. We have not been asked to order any party to pay costs in relation to the whole of the reference.

5. That is a proper approach to take as this matter has a complex history, the reference having been filed 16 months ago and involving numerous directions hearings and hearing of various applications besides the one that has ended the reference.

6. The first thing we have to decide is whether it is proper to make any award for costs at all given the special, unique nature of a Section 19 reference, a matter that we highlighted in our judgment upholding the application. We note from the submissions provided by Mr Pitoi for PNG Sustainable Development Program Ltd that the recent practice has been for costs to be awarded, at least where some private parties are involved in the proceedings; and we will follow that practice.

7. Though the Section 19 reference procedure is unique there is no reason that the general rule that costs should follow the event ought not apply.

8. In this case the ‘event’ in question was the hearing of an application by OTML to strike out the reference.

9. We note that OTML’s lawyers put the referrer’s lawyers on notice that they would agitate the issue about non-compliance with the Rules in mid-June 2007. The referrer’s lawyers had ample opportunity to consider their client’s position and consider whether the reference should be withdrawn.

10. In applying the rule of thumb that costs follow the event, the court should identify the party primarily responsible for bringing the successful application and the party primarily responsible for opposing it.

11. In this case, those parties were OTML and the referrer, the Fly River Provincial Executive, respectively.

12. Accordingly we will order the referrer to pay OTML’s costs; and other parties will bear their own costs.

13. We decline to make any order for certification of costs of overseas counsel. The application was centred on the constitutional law of Papua New Guinea and the development of our indigenous jurisprudence will be enhanced if the Court encourages and cultivates local expertise and finesse in this critical area of the law.

ORDER

• the referrer shall pay the costs of Ok Tedi Mining Ltd in relation to the application heard and determined on 29 and 31 August 2007, on a party-party basis to be taxed if not agreed;
  
• other parties shall bear their own costs.
  

Ruling accordingly.

_____________________
Pilisa Lawyers: Lawyers for the referrer
Narokobi Lawyers: Lawyers for the 1st intervener
Allens Arthur Robinson: Lawyers for the 2nd intervener
Gadens Lawyers: Lawyers for the 3rd intervener