SC651

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 22 of 1999

BETWEEN:

DON POMB PULLIE POLYE
Petitioner

AND:

JIMSON SAUK PAPAKI
First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani : SHEEHAN, JALINA,
SAWONG, JJ.
1999  : 24th November
2000  : 31 May

Practice and Procedure – Abuse of Process - Costs – Discretion of Court – liability of Counsel for costs wasted or thrown away. 

CASES CITED:
Myers v Elman 1940 AC 282
Holden & Co v Crown Prosecution Service 1990 2QB 261
Ridehalgh v Horsefield 1994 PH 205
Orchard v Southeastern Electricity Board [1987] QB 565

Counsel:
Mr B. Frizzell for the Applicant/1st Respondent 
Mr G. Sheppard for the Applicant 
Mr A. Kongri for the 2nd Respondent

BY THE COURT:	On 29th October 1999 this Court in its supervisory jurisdiction of judicial review ruled that an election petition brought by the First Respondent in the National Court be dismissed as the Respondent Petitioner was without standing. Because he was not registered on the Electoral Roll for the Kandep Electorate he was not entitled to vote in the election nor was he eligible to stand as a candidate for the electorate nor to bring an election petition challenging the result of the election in that electorate in the name of a person not on electoral roll.

On 5th November 1999 application was made to this Court for the review to be re-listed for "the purpose of correcting perceived mistakes in the judgement and orders …….due to a misapprehension by this Court of facts and or law and for the purpose of reversing its decision and reinstating the decision of the National Court".

When the matter was called before this Court on 23rd November on a challenge to the competence of the application, it was revealed that on the face of the application and by acknowledgement of Counsel appearing for the Applicant, that the purpose of the application was in fact not to point out error but to seek to re-argue the issue on which the Supreme Court found that the election petition should be dismissed.

The Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process. That was the order of the Court in respect of this application.

Further, the Court has also authority over Counsel as officers of the Court. Thus when the Court finds that the breach of its procedure was occasioned by the misconduct of the legal advisors for a party, there is no doubt the Court has jurisdiction to order those legal advisors to meet the costs incurred or wasted in pursuit of such procedures. Again that was a course proposed in this instance.

This Court therefore sought argument on whether in this matter there should be an order for costs to be met by the legal advisors of the Appellant on an indemnity basis. The matter was adjourned to enable lawyers and counsel for the Applicant to be heard.

The jurisdiction is summary and as is to be exercised judicially. The procedure lies within the discretion of the Court seized of the matters and stands to be exercised by the Court before which the misconduct and or the abuse of process occurred. The only procedural (and constitutional) condition requirement is that the legal advisor whose conduct is in question should be given opportunity to be heard before any order effecting him is made.

The representation of the Applicant has been complicated by the fact that while Counsel on record is Messrs Paulus Dowa, Lawyers, the application now struck out was filed by Messrs Warner Shand Lawyers though without notice of change of Counsel being filed or notice that they were acting on instructions from the Solicitor on record.

At the competence hearing the Court was advised by Mr Kwimberi of Paulus Dowa, Lawyers and who appeared on the application, that it had been filed by Messrs Warner Shand Lawyers and was to be argued by Mr Kuwimb of that firm on instructions from Paulus Dowa Lawyers. However as Mr Kuwimb was indisposed, Mr Kwimberi appeared to conduct the application on his behalf.

Mr Frizzell of Warner Shand has now appeared on behalf of the Applicant, his own firm, and his instructing lawyers, Paulus Dowa. In detailed submissions he argued strenuously against this Court making any order of costs against the Applicant’s legal advisors.

It has been his contention that the application struck out was in fact not without merit in that there was an arguable case submitted, and that was supported by the arguments in written submissions filed with the application. Further, the Court had made no reference in its ruling striking out the application to any improper or unreasonable conduct on the part of Applicant’s lawyers; had not found any dishonest or improper purpose or abuse of the rules. He further contended that although the Court had jurisdiction to make an order against lawyers for the Applicant, for costs wasted, the Court should first provide particulars of any alleged misconduct and give opportunity for them to respond and if necessary call evidence.

Making orders for costs is part and parcel of the Court’s ordinary jurisdiction. The Supreme Court Act and Rules do make some provision for cost orders in specific circumstances, though s. 35 of the Act which sets out to provide for the "power of the Supreme Court to impose terms as to costs", fails to do so. The section is anomalous and reflects an error in drafting.

The Rules of the National Court by contrast in Order 22 clearly spell out the breadth of that court’s jurisdiction to award appropriate costs. And to the extent that section 8 (1)(e) of the Supreme Court Act reflects the Supreme Court’s general authority to make any order the National Court may make, Order 22 is relevant in these proceedings. Sub Rule 65 of Order 22 details the liability of a lawyer for costs. It reads:

"65 Personal Liability of Solicitor for costs.

(1)	where costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default and it appears to the Court that a Solicitor is responsible (whether personally or through a servant or agent) the Court may after giving the Solicitor a reasonable opportunity to be heard – 

(a)	disallow the costs as between him and his client and 

(b)	direct a solicitor to repay to his client costs which the client has been ordered to pay to any other party and 

(c)	direct the solicitor to indemnity any party either his client against costs payable by the party indemnify…….".

That rule in fact may be said to summarise the common law throughout the Commonwealth on solicitors' liability for wasted costs. The leading decision is that of the House of Lord in Myers v Elman 1940 AC 282 which states that in making wasted costs orders the court is exercising a compensatory jurisdiction in costs, rather than a disciplinary jurisdiction over the professional conduct of counsel. The misconduct that may be penalised by such orders are the improper, negligent incurring of costs without reasonable cause, whether by default, negligence or otherwise.

In Holden & Co v Crown Prosecution Service 1990 2QB 261 the English Court of Appeal explained that in making such orders a Court is exercising authority over its own officers and so to the extent that an award against a Solicitor for his default may be seen to be an act of discipline, such orders may be said to be punitive; but the primary object of such orders is to reimburse a party for the cost which have been incurred or wasted because of the solicitors default.

Emphasising the compensatory cost oriented nature of such orders, the Court of Appeal said "the costs which a solicitor has to pay from his own pocket will be those, and only those, which his default has caused. There is nothing to be added to that figure to mark the disapproval of the Court or by way of penalty. To that extent the object of the jurisdiction is to compensate."

The Court went on to say "However there is a punitive element in that the solicitor is having to pay a bill which would otherwise have to be met by one of the parties to the litigation. There is also necessarily an element of deterrence in that solicitors will wish to avoid the expense and adverse publicity that the exercise of the courts jurisdiction entails."

Wasted costs order were more recently examined by the English Court of Appeal in Ridehalgh v Horsefield 1994 3ALL ER 848 which approved a three stage test for the exercise of this jurisdiction, namely

(1)	Has the .legal representative of who complaint is made, acted improperly, unreasonably or negligently? 

(2)	If so, did such conduct cause unnecessary costs?

(3)	If so, is it in all the circumstances just, to order the legal representative to compensate any party to proceedings for the whole or any part of the relevant cost.

Counsel for the Applicant who cited this decision before us submitted such tests might properly be applied in Papua New Guinea. We agree. We also accept that in considering "all the circumstance" the role and duty of Counsel appearing before the Courts needs to be kept in mind. The admonition of Sir John Donaldson M.R. in Orchard v Southeastern Electricity Board [1987] QB 565 succinctly stated this when he said at (p. 572):

"this is a jurisdiction which falls to be exercised with care and discretion and only in clear cases. In the context of a complaint that litigation was initiated or continued in circumstances in which to do so constituted serious misconduct, it must never be forgotten that it is not for solicitors or counsel to impose a pre-trial screen through which a litigant must pass before he can put his complaint or defence before the court. On the other hand, no solicitor or counsel should lend his assistance to a litigant if he is satisfied that the initiation or further prosecution of a claim is mala fide or for an ulterior purpose or, to put it more broadly, if the proceedings would be, or have become, an abuse of the process of the court or unjustifiably oppressive."

As regards the costs in respect of these proceedings these was an abuse of the Court’s process by invoking the Courts jurisdiction without reasonable cause, which plainly amounts to misconduct.

Testing that evidence against the criteria detailed above we are satisfied that it was the legal representatives of the Applicant who acted improperly and who must be held responsible for that misconduct. Even if an Applicant himself wishes to continue, proceedings it was not open to his legal advisors to lend assistance to proceedings in abuse of process.

Obviously unnecessary costs have been incurred; for the Applicant in filing and appearing on the application, and for the Respondents in opposing it.

In the circumstance we are satisfied it is appropriate and just to compensate the Respondents for the whole of the costs of this application. Because the application was an abuse of process and hopeless in any event, such costs shall be on a solicitor/client basis.

The legal representative of the Applicant on record is Paulus Dowa. We are advised that he briefed Messrs Warner Shand who filed the application and who did so without notice they were acting on instruction. That omission too, caused unnecessary costs. In all the circumstances we find that the order for costs should be met by both firms equally.
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Lawyer for the Applicant  - Maladina Lawyers
Lawyer for the 1st Respondent  - Paulus Dowa/Warner Shand
Lawyer for the 2nd Respondent - Nonggorr Lawyers