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Andrias v Kereme [2021] PGNC 215; N8929 (5 July 2021)

N8929

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 356 OF 2016

BETWEEN
JOHN ANDRIAS AS SECRETARY FOR DEPARTMENT OF TRADE COMMERCE & INDUSTRY
Plaintiff

AND:
DR. PHILIP KEREME IN HIS CAPACITY AS THE CHAIRMAN OF THE PUBLIC SERVICES COMMISSION
First Defendant

AND:
AUGUS WIALU
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 17^th June, 5^th July

PRACTICE & PROCEDURE – Notice of Motion – Order 22 Rule 62 NCR – Judgment on Taxed Costs – 2% Interest Judicial Proceedings (Interest on Debts & Damages) Act – Costs ordered against Plaintiff – Third Defendant not liable – Motion not following order of Court – costs outstanding four years – Motion granted – Costs converted to Judgment Order – Cost follow event.

Cases Cited:

Bagari v Marape [2019] PGNC 440; N8143

Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674

Kaiulo v Yaluma [2008] PGNC 157; N3507

Abai v The State [1998] PGNC 92; N1762

Patterson trading as Pattersons Lawyers v Teachers Savings and Loans Ltd [2004] PGNC 243; N2516

Counsel:

No appearance for Plaintiff
P. H. Pato, for Second Defendant
No appearance for Defendants

RULING

05^th July, 2021

1. MIVIRI, J: This is the ruling on the second defendants Notice of Motion of the 12^th May 2020 wherein he seeks the following orders:
   
   • (a) Pursuant to Order 22 Rule 62 of the National Court Rules (NCR) judgement for the sum of K 59, 763.00 being taxed costs be entered against the third defendant ;
     
   • (b) Secondly pursuant to Section 6 (1) (2) and (4) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015, if the third defendant fails to make payment within 30 days from the date of service of this Order, the Judgement sum or so much of it that remains unpaid, shall attract two (2%) interest per annum.
     
   • (c) And such other orders as discretion by the Court.
     
2. This is a very unusual claim for costs where the second defendant is claiming against the Third Defendant the State and leaving out the Plaintiff together with the first defendant. Particularly in the light of the fact that the action is instituted by the Plaintiff against all defendants. It is not the fault of the third defendant that the second defendant is before the court and has had to endure costs in the proceedings.
   
3. And that action was dismissed on the 05^th April 2017. And particularly the facts which spell out that plaintiff filed an amended motion on the 18^th April 2017 to set aside the orders of the 05^th April 2017. On the 18^th May 2017, the Court dismissed the Plaintiff’s amended motion. That order was entered on the 19^th May 2017 document 50. It ordered that the Plaintiff shall pay the costs of the application to be taxed if not agreed. Document 46 is of the 03^rd May 2017. It is a court Order particulars of which are, the proceedings are dismissed for want of compliance with Court directions and or want of prosecution pursuant to order 16, Rule 13 (2) (b) of the National Court Rules. And the Plaintiff shall pay the Costs of the Proceedings, to be taxed, if not agreed. The order is of the 05^th April 2017 and entered the 03^rd May 2017.
   
4. The order is specifically against the plaintiff not against the defendants one of whom is the third defendant, including the second defendant. The order does not sanction the action pleaded by the second defendant. He does not have an order of the Court prompting the certification of the taxed costs against the third defendant. Costs orders are by the court not at the discretion of the party as here. It is specifically to be paid by the Plaintiff. In this proceedings he is John Andrias as the Secretary for the department of Trade Commerce and Industry. That is the person who is responsible for the costs of the defendants including the second defendant not the third defendant. He is responsible for bringing the second defendant into Court and suffers whatever consequences he brought on. Which is also the case for the third defendant. All are entitled for their costs to be paid by the plaintiff. Because the proceedings he instituted was dismissed. The costs follow the event and therefore it is wrong to claim it against the third defendant who is not at fault in the matter. Importantly he is not the subject of the order by the court presided by Justice Makail when the orders are made for costs set out above.
   
5. The second defendant is making the application against the third defendant without the basis in the court order of the 05^th April 2017 entered 03^rd May 2017. Nor is there any basis on the 18^th May 2017 the Court dismissed the Plaintiff’s amended motion. That order was entered on the 19^th May 2017 document 50. It ordered that the Plaintiff shall pay the costs of the application to be taxed if not agreed. So, in all cases of the dismissal the order as to cost is against the Plaintiff not against the third defendant the State. There is no authority for the motion for costs of the third defendant to take out Judgement of the taxed costs because that is against the Plaintiff. Which is not by the order issued by this Court: Bagari v Marape [2019] PGNC 440; N8143 (23 October 2019). Costs follow the event and are ordered not by convenience of the parties, and the Supreme Court affirms this, Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674 (9 November 2001).
   
6. This action is without any basis in law although the State third defendants with the plaintiff have made no appearance. Costs are discretionary and this is a matter where court time was drawn out to hear and to deliver this judgment. It means other cases are not attended to when this matter is attended to. Costs of this proceedings will follow the event.
   
7. This is a motion that is misleading either by design or deliberate counsel should refrain from further like behaviour because a repeat will see serious consequences levelled against.
   
8. Accordingly, the motion is dismissed with costs to be paid by second defendant.
   
9. The formal orders of the Court are:
   
   • (i) The motion of the second defendant for Judgement orders for costs certified is refused and dismissed forthwith.
   • (ii) The second defendant will pay the State third defendants and the plaintiff’s costs.
   • (iii) Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders Accordingly.

__________________________________________________________________

Parker Legal: Lawyer for the Plaintiff/Applicant

Office of the Solicitor Generals: Lawyer for First Defendants