SC2074

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 90 OF 2017

BETWEEN:
LINDA ANGOMAN
Appellant

AND:
FREDERICK ANGOMAN
First Respondent

AND:
MOSES KOPYOTO
Second Respondent

AND:
BUI KARE
Third Respondent

AND:
BENJAMIN SAMSON, Deputy Registrar of Titles
Fourth Respondent

AND:
 DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fifth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

Waigani: Hartshorn J
2019: 13th, 20th March

COSTS - Whether the lawyers for the appellant should pay the costs of a withdrawn application on a solicitor client basis

Cases Cited:

Rex Paki v. Motor Vehicle Insurance Ltd (2010) SC1015 
Julius Pololi v. Bryan James Wyborn (2013) N5395
Gold Exports Ltd v. Nangamanga Ltd (2018) SC1672
Tukupa Walo Land Group Inc v. Exxonmobil PNG Ltd (2018) N7257 

Counsel:

Mr. J. Kumbu, for the Appellant
Mr. L. Tangua, for the First, Second and Third Respondents
Ms. M. Elisha, for the Fourth, Fifth and Sixth Respondents

Oral decision delivered on
20th March 2019

1.      HARTSHORN J: This is a decision on whether, upon the withdrawal of an application by the appellant, the lawyer for the appellant should pay the respondents costs of and incidental to the application on a solicitor client basis. 

Background

2. The appeal of the appellant was dismissed by a full Supreme Court on 1st November 2018 following an inter partes hearing of an application for dismissal for want of prosecution. 

3. On 21st November 2018 the appellant filed an application to revoke the dismissal and to reinstate the appeal purportedly pursuant to Order 7 Rule 51 Supreme Court Rules and s.155(4) Constitution (application). The appellant now seeks to withdraw that application pursuant to Order 11 Rule 29(b) Supreme Court Rules. 

4. The first three respondents, supported by the other respondents, seek that their costs of and incidental to the application be paid by the lawyers for the appellant on a solicitor client basis. The appellant seeks that costs of the application be in the cause. 

5. Order 11 Rule 29 (b) Supreme Court Rule relevantly provides that:

“29.	A party making an application …..may withdraw the proceedings so far as concerns the whole or any part of his application-

(b)	with the consent of all of the parties appearing or leave of the Court before a date is set for hearing;” 

6. Counsel for the appellant submitted that the actions that were taken by the appellant’s lawyers were in her interests and upon her instructions, and that if costs are to be awarded against the appellant, the order should be against the appellant and not her lawyers. 

7. The respondents submit that:

a)	the application is hopeless and was bound to fail;

b)	the lawyers for the appellant were forewarned that if they did not withdraw this application, costs would be sought against them on a solicitor client basis;

c)	the appellant is illiterate and it would be unfair for her to pay the costs incurred by her lawyer’s incompetence and conduct. 

Consideration

8. The application is without merit and would be bound to fail. This Court is functus officio and there is no power in the Court to further adjudicate upon the appeal. The appellant may have filed a slip rule application, but that is not what the application is or purports to be. The Rule relied upon Order 7 Rule 51 Supreme Court Rules clearly has no application and s.155 (4) Constitution is only to be used to enforce a primary right in the absence of other law. 

9. The evidence is that the lawyers for the appellant were warned of the inadequacies of the application and that costs against them would be sought if they persisted. Further the appellant by her lawyers has filed an affidavit, in which she deposes that she is a “very illiterate person”. 

10. As to the submission that the lawyers for the appellant acted upon the appellant’s instructions, a lawyer should inform his client of the options that are legally available to his client and then recommend to his client the course of action which the client should follow. The client should then instruct his lawyer of the course of action he wishes to take. In this instance, if the appellant’s lawyer had recommended to the appellant to file the application, the lawyer was clearly wrong in the advice that he had given. If the appellant had instructed the lawyer to file the application because of such a recommendation, the lawyer should bear the costs because of his incorrect advice and the lack of knowledge of his client. 

11. If the lawyer had advised against filing this application but the appellant insisted that his application be filed the lawyer should have ceased acting for the appellant. If however, the appellant had instructed the lawyer to file the application without any advice and/or recommendation from her lawyer, the lawyer was wrong in filing the application as it was clearly incorrect and his client, being very illiterate, would not have known this. Given the above, that the application was filed is the fault of the lawyer for the appellant in the circumstances. 

12. I am satisfied that the necessary requirements for an order for solicitor client costs against a lawyer have been made out. I refer in this regard to the Supreme Court decisions of Rex Paki v. Motor Vehicle Insurance Ltd (2010) SC1015, Gold Exports Ltd v. Nangamanga Ltd (2018) SC1672 and the National Court decision of Tukupa Walo Land Group Inc v. Exxonmobil PNG Ltd (2018) N7257. I also refer to Julius Pololi v. Bryan James Wyborn (2013) N5395 in this regard. 

13. I concur with the sentiments contained in the statement by the lawyers for the first three respondents in their letter to the lawyers for the appellant as follows:

“We will seek costs against you in person or your law firm on a solicitor client basis because the question of jurisdiction is a fundamental legal issue which you as the Appellant’s Lawyer ought to properly advise your client – a lay person who cannot understand the issue. Thus it would be unjust for your client to be responsible for your utter incompetence and recklessness”. 

14. Notwithstanding that this statement may be said to have ultimately led to the decision to withdraw the application, given the hopelessness of the application and the context in which it was filed, I am satisfied that solicitor client costs against the appellant’s lawyers should be ordered. 

Orders

15. The formal orders of the Court are:

a)	The application of the appellant filed 21st November 2018 is withdrawn;

b)	The appellant’s Lawyers, Parkil Lawyers and Jacob Kumba jointly, shall pay the costs of all of the respondents of and incidental to the application of the appellant filed 21st November 2018 on a solicitor client basis. 
__________________________________________________________________
Parkil Lawyers: Lawyers for the Appellant                                            
Tangua Lawyers: Lawyers for the First to Third Respondents                
Office of the Solicitor General:  Lawyers for the Fourth to Sixth Respondents