Tulapi v Yer [2012] PGSC 50; SC1212 (5 December 2012)

SC1212

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 7 OF 2012

BETWEEN:

DANIEL TULAPI
Appellant

AND:

GABRIEL YER
First Respondent

AND:

NEVILLE DEVETE
Second Respondent

AND:

CAROLINE JARUGA
Third Respondent

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J.
2012: 14th November,
: 5th December

Application for security for costs – s. 18 (1) Supreme Court Act

Facts:
This is an application for an order that the appellant pay security for costs. The application is made by the respondents pursuant to s. 18 Supreme Court Act.

Held:

(1) There being a justifiable belief that it is likely that the appellant will not pay any costs order against him, the fact that he has not prosecuted the appeal since March 2012 and that there is no reasonable prospect of the appeal succeeding, taken together constitute special circumstances such that it is appropriate for this court to order that the appellant give security for costs of the appeal.

(2) The appellant shall pay into Court the sum of K20,000 as security for costs of this appeal within 10 days of today.

Case cited:

Brinks Pty Ltd & Ors v. Brinks Incorporated [1996] PNGLR 75

Counsel:

Mr. L. P. Kandi, for the Respondents

5th December, 2012

1. HARTSHORN J: This is an application for an order that the appellant pay security for costs. The application is made by the respondents pursuant to s. 18 Supreme Court Act.

2. I allowed the application to proceed in the absence of the appellant as I was satisfied that the appellant had been served with the application and had been informed of the time and date of its hearing.

Background

3. This appeal was filed on 21st February 2012. An application for a stay by the appellant was dismissed by this court on 30th March 2012. The appeal is against a National Court order that amongst others, dismissed contempt proceedings as an abuse of process, ordered that certain District Court orders were unenforceable and ordered that the appellant could not institute further court proceedings until all previous orders on costs had been fully complied with by him.

4. The respondents contend that the appellant should be ordered to give security for costs as:

a) the appellant has not taken any steps to prosecute the appeal since March 2012,

b) the appeal has no reasonable prospect of success as it is frivolous and vexatious,

c) the appellant has numerous costs orders against him in the National and Supreme Courts in various proceedings that he has brought against the State which remain unpaid,

d) the National Court from which this appeal emanates, accepted that the appellant is amongst others, an habitual litigant,

e) it is likely that any costs orders made in this appeal against the appellant will remain unpaid.

Law

5. Section 18 (1) Supreme Court Act is as follows:

"The Supreme Court or a Judge may, in special circumstances, order that just security be given for the costs of an appeal or an application for leave to appeal and, if an application is granted, for the prosecution of the appeal."

6. In Brinks Pty Ltd & Ors v. Brinks Incorporated [1996] PNGLR 75, the Supreme Court held that in determining the nature of what constitutes special circumstances, in an application under s. 18 Supreme Court Act, it is relevant to have regard to the circumstances upon which the National Court may order security for costs under Order 14 Rule 25 National Court Rules. One of those circumstances described in the Supreme Court decision is "that there is reason to believe that the appellant will be unable to pay the costs of the respondent if ordered to do so."

7. The respondents rely upon those circumstances here and submit that the reason to believe that the appellant will be unable to pay their costs is because he has had ordered against him numerous costs orders in the National and Supreme Courts in various proceedings that he commenced against the State and those costs remain unpaid. In regard to this submission, the fact that the appellant has not paid outstanding costs orders to my mind, does not give rise to the belief that he will be unable to pay any costs order against him, in the absence of evidence as to his financial position, rather it gives rise to the belief that it is likely that he will not pay such costs.

8. I am satisfied however, from a consideration of the evidence, that the three factors of: a justifiable belief that it is likely that the appellant will not pay any costs order against him, the fact that he has not prosecuted the appeal since March 2012 and that there is no reasonable prospect of the appeal succeeding, taken together constitute special circumstances such that it is appropriate for this court to order that he give security for costs of the appeal.

9. Given this, it is not necessary to consider whether there are any other matters that could constitute special circumstances. I mention however that the respondents' submission that the court below, the National Court, accepted that the appellant is amongst others, an habitual litigant, in my view, should not be considered as this appeal is from that particular National Court's decision.

10. As to the amount of the security to be given, there is no evidence as to the likely amount of the costs of the respondents in defending this appeal. The respondents seek the sum of K50,000 to be given as security. In the circumstances, I am of the view that the sum of K20,000 is more appropriate.

Orders

11. The Orders of the Court are:

a) the appellant shall pay into Court the sum of K20,000 as security for costs of this appeal within 10 days of today.

b) the appellant shall pay the respondents' costs of and incidental to this application.
_____________________________________________
Appellant in Person
M S Wagambie Lawyers: Lawyers for the Respondents