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Re Fisherman's Island [1979] PGNC 11; N202 (28 September 1979)

Unreported National Court Decisions

N202

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 209 OF 1977 (P)

APPEAL NO 257 OF 1977 (P)

APPEAL NO.261 OF 1977 (P)
BETWEEN: BOBBY GAIGO ON BEHALF OF LAURINA CLAN OF TATANA VILLAGE
APPELLANT
AND: MADAHA RESENA, FRANK GRIFFIN, BOGE NAO, ARTHUR AGEVA AND LOHIA GOASA ON BEHALF OF THEIR RESPECTIVE CLAN AND VILLAGE
RESPONDENTS
AND: THE GOVERNMENT OF PAPUA NEW GUINEA
RESPONDENT
BETWEEN: MADAHA RESENA ON BEHALF OF NENEHI IDIBANA,TUBUMAGA AND MAVARA CLANS
APPELLANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
RESPONDENT
BETWEEN: NAIME DAURE ON BEHALF OF NENEHI DUBU CLAN OF TATANA VILLAGE
APPELLANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
RESPONDENT
AND: MADAHA RESENA ON BEHALF OF NENEHI IDIBANA TUBUMAGA AND MAVARA CLANS OF TATANA VILLAGE
RESPONDENT
AND: ARTHUR AGEVA ON BEHALF OF ROKU VILLAGE
RESPONDENT
AND: BOBBY GAIGO ON BEHALF OF LAURINA CLAN OF TATANA VILLAGE
RESPONDENT
AND: JACK MASE ON BEHALF OF VABUKORI VILLAGE
RESPONDENT
AND: FRANCIS GRIFFIN ON BEHALF OF LAURINA CLAN OF VABUKORI
RESPONDENT
AND: BOGE NAU ON BEHALF OF POREPORENA CLAN OF HANUABADA VILLAGE
RESPONDENT
AND: LOHIA GOASA ON BEHALF OF KOITABU PEOPLE OF CENTRAL PROVINCE
RESPONDENT

Waigani

Wilson J
21 September 1979
28 September 1979

COSTS OF APPEAL TO NATIONAL COURT FROM LAND TITLES COMMISSION - re-hearing ordered - the successful appellant - the partly-successful appellant - the discretion.

RE FISHERMAN’S ISLAND (COSTS)

WILSON J: is an application for an o an order for costs made by Bobby Gaigo, Madaha Resena and Naime Daure on behalf of their respective c Bobby Gaigo and Madaha Resena were the successful appellants in the Fisherman’s I7;s IslandN202.html#_edn172" title="">[clxxii]¹ case. Naime Daure, although not successful on her grounds of appeal, was not unsuccessful either, because the appeal was allowed, the decision of the Land Titles Commission was quashed, and the was remitted in whole for re-hearing before the Commissioission; Naime Daure therefore partly succeeded in her appeal. The unsuccessful respondent in the case was the government.

The National Court has a discretion to make orders as to the costs of the parties to an appeal of this kind. Rule 18 of the Supreme Court Appeal (Land Titles Commission) Rules 1968, which apply to appeals from the Land Titles Commission to the National Court, provides:

“18. ټ Costs - The The Court may make such order as to the costs of the parties to an appeal as to it seems just and it may, in special circumstances, ordet such security shall be given by an appellant for the cost costs of the appeal as seems just.”

I must exercise my discretion judicially. There appears to be no general rule. However, where an appellant appeals in circumstances in which a re-hearing may result and where that appeal is opposed and where a re-hearing is granted, the law seems to be that the costs of that successful appeal ought, in the absence of special circumstances, to be borne by the party who opposes it (see Hamilton v. SealN202.html#_edn173" title="">[clxxiii]² pughan Williams LJ at p.263p.263).

In the present case I see no reason to deprive the two successful appellants (Bobby Gaigo and Madaha Resena) of their cor to delay them in recovering same. Although neither BobbyBobby Gaigo nor Madaha Resena were represented by a solicitor or counsel, they undoubtedly would have incurred expenses associated with the hearing of these appeals which was spread over some fourteen days. Their witnesses would be entitled to witness fees in respect of their attendance before the National Court to give evidence. They themselves would be entitled to a fee in respect of their own attendance during each day of the hearing. Because Naime Daure only partly succeeded in her appeal (the appeal was allowed on grounds not included in her Notice of Appeal), I consider that her costs should, in those special circumstances, be her costs in the cause, to the intent that she should receive her costs of this appeal if she succeeds in the rehearing but not otherwise.

Order:

1. & t60; that the respondent pay the costs of Bobby Gaigo and Madaha Resena in this appeal to be taxed.

2. &&##16imrea#8 co#8 costthistthis appeal be her her costs in the cause.

The appellppellant, ant, Mr. BMr. Bobby obby Gaigo (of the Laurina clan) in person

Tpellar. Madaha Resena (of the Nenehi Idabanaabana, Tub, Tubumagaumaga and Mavara clans) in person.

Solicitors for the appellant, Naime Daure (of Nenehi Dubu clan): Ikenna Nwokolo & Co.

Counsel: E.I.M. Nwokolo

Solicitors for the respondent: C. Maino-Aoae, State Solicitor

Counsel: L. Au.

N202.html#_ednref172" title="">[clxxii]^{N 197 Unreported National Court Judgment - August, 1979.}

[clxxiii]^{(1904) 2 K.B2 K.B. 262.}