SC2778
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCC (OS) NO. 4 OF 2021

APPLICATION PURSUANT TO CONSTITUTION SECTION 18(1)

APPLICATION BY JUSTICE FOUNDATION FOR POGERA LIMITED
Applicant

DR. ERIC KWA, PH.D.
THE ATTORNEY GENERAL OF PAPUA NEW GUINEA
First Intervener

BARRICK NIUGINI LIMITED
Second Intervener

LIHIR GOLD LIMITED 
Third Intervener

OK TEDI MINING LIMITED
Fourth Intervener

WAIGANI: SALIKA CJ, MAKAIL J, KARIKO J, TOLIKEN J, POLUME-KIELE J
28 AUGUST, 2 OCTOBER 2025

PRACTICE AND PROCEDURE – application for leave to review decision of taxing officer, O 12 r 37 Supreme Court Rules – objection to competency of application upheld by single Judge – fresh application to full court, O 11 r 25 & r 26 Supreme Court Rules – whether fresh application competent.

An application for leave to review the decision of the taxing officer was refused by a single Judge sitting as the Supreme Court. Aggrieved by the decision, the applicant filed a fresh application to the full court.  Objection to competency was raised to the new application.

Held

Per Salika CJ, Makail J, Kariko J and Toliken J (the majority):

(1)	As an application for leave to review the decision of the taxing officer may be heard by the full court or a single Judge under O 12 r 37 of the Supreme Court Rules, this necessarily implies that there shall be only one hearing of the objection. Application under O11 r 25 and r 26 of the Supreme Court Rules is therefore not permitted in respect to a decision by a Judge in an application for leave to review taxation of costs.

(2)	Application made under O11 r 25 and r 26 is neither an appeal nor a review but is a hearing de novo.

(3)	The Court does not have jurisdiction to hear an application to review taxation of costs filed outside the 14 days’ time-limit prescribed by O 12 r 37. 

(4)	The Court has discretion whether to dismiss a notice of motion for failure to name the concise jurisdictional basis, and a relevant consideration is whether the default is prejudicial or unfair to the other party. 

(5)	Application dismissed as incompetent for being filed out of time and for being an abuse of process.

(6)	Costs awarded on an indemnity basis.

Per Polume-Kiele J (dissenting):

(7)	The decision of the single Judge of the Supreme Court is subject to review by the full court exercising its inherent jurisdiction under s 155(2)(b) of the Constitution. 

(8)	The application seeking leave to review the taxed cost be granted.

(9)	 A review of the taxed costs be conducted by the Registrar within 14 days of this Order. 

(10)	Costs of the application are costs in the cause.

Cases cited

Application by Hon. Tomuriesa (2024) SC2611
Avia Aihi [1981] PNGLR 81
Balakau v Torato and Openakali [1983] PNGLR 242 
Giwi v Popuna (2023) SC2501
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 
Michael Wilson v Clement Kuburam (2016) SC1489 
Minape v Rosso (2024) SC2591 
Miriori v Daveona (2019) SC1847 
National Executive Council v Toropo (2022) SC2193
Pokia v Yallom (2014) SC1336
Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1) (2019) SC1821 
Rex Paki v Motor Vehicle Insurance Ltd (2010) SC1015
Rimbunan Hijau (PNG) Ltd v Enei (2019) SC1895 
State v Kalaut (2022) SC2246
Serowa v Dowa (2024) SC2663
Thomas v Bando (2024) SC2537
ToRobert v ToRobert (2011) SC1130  
Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Counsel

J Wohuinangu, for the applicant
K Imako & G Jiki, for the fourth intervener

1.	SALIKA CJ, MAKAIL J, KARIKO J & TOLIKEN J: The substantive proceedings SCC(OS) No. 4 of 2021 constituted an application under s 18(1) of the Constitution filed by Justice Foundation for Porgera Limited, which proceedings were dismissed by the Supreme Court as being incompetent and costs were awarded in favour of the interveners. 

2.	We have an application before us which arises from the taxing of the bill of costs rendered by the fourth intervener, and to which the fourth intervener has objected to its competency.

BACKGROUND

3.	Briefly outlined, the facts and circumstances that led to the present application are these.

4.	On 6 July 2023, the fourth intervener filed application for its bill of costs to be taxed by the Registrar.

5.	After a number of adjournments for various reasons, taxation was conducted on 30 November 2023 in the absence of the applicant although it was aware of the hearing. 

6.	The decision of the taxing officer was issued on 12 November 2024. 

7.	On 14 November 2024, the fourth intervener requested that the decision be amended to properly reflect Ok Tedi Mine Limited as the fourth intervener. 

8.	The decision was duly amended and issued on 23 January 2025.

9.	On 27 January 2025, the fourth intervener filed for certification of the taxation and the certificate was duly issued.

10.	The decisions and certificate were served on the applicant by the fourth intervener on 4 February 2025.

11.	On 18 February 2025, the applicant filed application for leave to review the taxing officer’s decision pursuant to O 12 r 37 of the Supreme Court Rules.

12.	The application for leave was heard by Hartshorn J who dismissed it on 20 March 2025 as being incompetent for not having been filed within the 14 days’ time-limit prescribed by O12 r 37(2) .
 
13.	Aggrieved by the dismissal, the applicant filed a fresh application pursuant to O11 r 25 and r 26 of the Supreme Court Rules.

14.	To this, the fourth intervener filed an objection to competency. 

THE APPLICATION

15.	The principal relief sought in the application, which is by way of a notice of motion, reads:

Pursuant to Order 11 Rules 25 & 26 of the Supreme Court Rules 2012, the Applicant be granted leave to review the decision of the taxing officer on the Fourth Intervener's Bill of Cost made on 12th November 2024 and amended on 23rd January 2025 pursuant to which a Certificate of Taxation was issued on 27th January 2025 and served on the Applicant on 4th February 2025, particulars of objection which appear in the Annexure herewith.

RELEVANT RULES

16.	Order 12 rule 37 concerns review of taxation of costs and provides:

(1) A Court or a Judge may review the decision of a Taxing Officer, only if the taxing officer has given a certificate in accordance with that decision. 

(2) A party aggrieved by the taxed costs may, within 14 days from the date of issue of the Certificate of Taxation, apply to the Court or a Judge, for leave to review the taxing officer’s decision, such application to be supported by affidavit and shall be served on the other party, 3 clear days before the date of moving the application. 

(3) The application shall be made by Notice of Motion and supported by affidavit which shall, amongst other things, specify the list of items to which the applicant objects and must state concisely the nature and grounds of each objection. 
(Emphasis added)

17.	O 11 r 25 and r 26 which are contained in Division 13 (Appeal & application to court from orders or directions of judge), state:

25. A party dissatisfied with a direction or order given by a Judge under these rules or s 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

26. Proceedings under Rule 25 shall be instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.
(Emphasis added)

18.	The term “Judge” refers to a Judge of the Supreme Court while the term “Court” means the full court of the Supreme Court; Rule 7(1). According to s 161(2) of the Constitution, the Supreme Court  shall comprise of at least three judges when hearing cases except where the law permits a single judge to exercise the powers of the court: s 162(2).

COMPETENCY 

19.	A court must be satisfied that its jurisdiction has been properly invoked for it to entertain a matter before it; ToRobert v ToRobert (2011) SC1130.

20.	The issue of competency of proceeding is a question of whether the court has jurisdiction to hear the matter; Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185.
 
21.	The grounds of objection to competency are: 

(1)	That the application was filed well beyond the 14-day time-limit stipulated in O 12 r 37.

(2)	That the concise jurisdictional basis for the application was not cited in the notice of motion.

(3)	That the notice of motion does not seek the same orders sought in the application made before Hartshorn J. 

22.	Additionally, the fourth intervener argued in its filed submissions that having already made the same application for leave to a judge, the application to this Court is an abuse of process.

23.	We commence our discussion of the grounds with the last issue. 

ABUSE OF PROCESS

24.	The fourth intervener submitted that under O12 r 37, a party seeking to dispute taxed costs may apply to the Court or a Judge for leave to review the taxation; the applicant has a choice of either courts. It was further contended that where the applicant elects to apply to a Judge, he is not permitted to make the same application before the Court as this constitutes an abuse of process. For this submission, reliance was had to the case of Miriori v Daveona (2019) SC1847.

25.	The applicant argued that its application meets these requirements of O11 r 25:

(1)	the applicant is by a party who is dissatisfied with an order, and

(2)	the order is that of a Judge (a single Judge of the Supreme Court), and 

(3)	the order is one made under the Supreme Court Rules.

Its application is therefore proper.

26.	Miriori v Daveona involved a dispute over the executive membership of an incorporated association. Several persons applied under O 11 r 11 of the Supreme Court Rules to be added as parties to the proceedings. This Rule states that the Court or a Judge may make such order. The application was heard by a Judge who refused it. Application was then made to the Court under O11 r 25 but that was declined because the applicants were considered not to be a “party” within the meaning of the word in O 11 r 25. Application was then made to the Court again under O11 r 11. The Court held that the application was an abuse of process because O11 r 11 gives an applicant a choice to be heard by either the Court or a Judge. The Court reasoned that the election exists for practical purposes and expediency: it avoids multiple applications; and an applicant might wish to argue before a Judge who regularly sits rather than having to wait before it is listed before the Court which may take some time. A determination by the applicant’s choice of court is final and is the end of the matter. If the application is refused by a Judge, the same application cannot then be brought before the Court. To do so amounts to an abuse of process. 

27.	A similar fact case was decided by the Supreme Court in Giwi v Popuna (2023) SC2501 which followed Miriori v Daveona.

28.	In the case of Thomas v Bando (2024) SC2537, application was made under O11 r 25 and r 26 for the Court to hear an objection to competency of an application for leave to review after the objection was dismissed by a Judge. The Court held this to be an abuse of process; that having had the objection dismissed at the leave stage, the applicant was not allowed “a second bite of the cherry”. 

29.	The proposition that a second application to the Court after a denial of the same application by a Judge constitutes an abuse of process, where a Rule provides that the application may be made to the Court or a Judge, was endorsed in Minape v Rosso (2024) SC2591. That case concerned an objection to competence of an application for leave to review an election petition. Pursuant to O 7 r 17(1)(a) of the Supreme Court Rules, such objection may be heard by the Court or a Judge. After the objection was refused by a Judge, another application was made under O11 r 25 and r 26. Following the decisions in Miriori v Daveona, Giwi v Popuna and Thomas v Bando, the Court dismissed the objection, observing that the Rule necessarily implies that there shall be only one hearing of the objection. 

30.	Counsel for the applicant did not offer any noteworthy submissions on the issue of abuse of process and we did not hear any argument that the statements in the cited Supreme Court judgements are wrong and should not be followed.

31.	It is our view therefore that an application under O11 r 25 and r 26 is not permitted in respect to a decision by a Judge in an application for leave to review taxation. We find the application as an improper use of the court process and this amounts to an abuse of process; Michael Wilson v Clement Kuburam (2016) SC1489 at [25] per Gavara-Nanu J. 

TIME LIMIT

32.	O 12 r 37(2) states that an application for leave to review taxation must be filed within 14 days after the taxing officer has issued a certificate of taxation. 

33.	The fourth intervener argued that the certificate in this case was issued on 27 January 2025, meaning that any application for review had to be filed by 10 February 2025. The application before us was filed on 11 April 2025, nearly two months late. It was clearly filed well out of time and is therefore incompetent. 
     
34.	In reply, the applicant explained that it was not able to comply with the 14 days’ time-limit for the reason that it was unaware of the certificate having been issued until it was served by the fourth intervener on 4 February 2025. By then only six days remained of the prescribed 14 days, and it could not file its application within time given the voluminous objections that were required to be properly compiled for filing as part of the application. However, it managed to file its application, viz the application before Hartshorn J, within 14 days of being served. 

35.	While we note the explanation offered by the applicant for its default, it is our view that the terms of O 12 r 37(2) are unambiguous. The 14-day period runs from the date of issue of the certificate of taxation. A party entitled to taxed costs is also bound by the same time-limitation if it decides to dispute the taxation. The application before us failed to meet the time requirement. It was filed some two months late. We have had no regard to the date the applicant filed the application before Hartshorn J, as the present application made under O11 r 25 and r 26 is neither an appeal nor a review of his Honour’s order but is a hearing de novo by the Court; Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1) (2019) SC1821 and Thomas v Bando.

36.	This Court therefore does not have jurisdiction to hear the application which has not met the mandatory requirement of the Supreme Court Rules in O12 r37(2): see State v Kalaut (2022) SC2246. 

37.	This is another reason why we decide the application is incompetent.

NOTICE OF MOTION

38.	As to the grounds of objection relating to the notice of motion, it is evident to us comparing it with the notice of motion that was before Hartshorn J, that the present application only refers to O 11 r 25 and r 26 while O 12 r 37(2) was cited as the jurisdictional basis for the earlier application.

39.	O 11 r 26 states that the application shall be by way of a notice of motion seeking the same orders as those sought before the Judge; Minape v Rosso, Application by Hon. Tomuriesa (2024) SC2611 and Serowa v Dowa (2024) SC2663. We are not persuaded that the applicant does not seek the same relief as sought before Hartshorn J. The wording of the main relief sought namely leave to review taxation of costs, is the same in both notices of motion.

40.	However, we are not persuaded that the concise jurisdictional basis has been cited in the notice of motion.

41.	While the Supreme Court Rules do not prescribe the form of the notice of motion brought under O 11 r 26, the Court in National Executive Council v Toropo (2022) SC2193 proposed that unless the Court has ordered the procedure to be adopted, the form of the notice of motion should follow the procedure in the National Court Rules including the relevant form (Form 11), with appropriate modifications. 

42.	The procedure for notices of motion in the National Court Rules is found in Division 5, O 4 r 37–r 49. It is required by O 4 r 49(8) that the motion “contain a concise reference to the Court’s jurisdiction to grant the orders sought”. The applicant has properly cited O 11 r 25 and r 26 in its motion but that only refers to the jurisdiction relied upon for the application being made to this Court. The correct jurisdiction for leave to apply for review of taxation is O12 r 37. This Rule should have also been also cited. That notwithstanding, the court has discretion whether to dismiss a notice of motion for failure to name the concise jurisdictional basis, and a key consideration is whether the default is prejudicial or unfair to the other party; Pokia v Yallom (2014) SC1336. In this case the fourth intervener has always been aware that the application is for leave to review taxation of the fourth intervener’s costs. 

43.	The omission of O 12 r 37 is not regarded as prejudicial or unfair to the fourth intervener, and we will not dismiss the motion for this inadvertence.

COSTS

44.	Before filing its objection to competency, the fourth intervener’s lawyers requested the applicant’s lawyers to withdraw the application and forewarned that costs on an indemnity basis would be sought if the application was dismissed for incompetence. 

45.	Awarding costs on an indemnity basis is appropriate “where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy” and has caused the other party to incur unnecessary costs; Rex Paki v Motor Vehicle Insurance Ltd (2010) SC1015 at [28].

46.	The application is incompetent and the relevant issues on this aspect, which we have largely accepted, were put to the applicant in the forewarning letter before the objection was filed. Pursuing the application has subjected the fourth intervener to unnecessary costs, and it has wasted judicial time and resources. These factors justify costs on an indemnity basis. See Rimbunan Hijau (PNG) Ltd v Enei (2019) SC1895 at [33].

CONCLUSION

47.	It is our judgement therefore to dismiss the application as incompetent for being filed out of time and an abuse of process. Costs are awarded to the fourth intervener on an indemnity basis.

ORDER

1.	 The application filed by the applicant on 11 April 2025 is dismissed.

2.	The applicant shall pay the fourth intervener’s costs of and incidental to the application on an indemnity basis, to be taxed, if not agreed.

48.	POLUME-KIELE J: I have read the majority decision of the Supreme Court presented above, and I accept that the application before the Court is made pursuant to Order 11 Rule O 11 r 25 & r 26 Supreme Court Rules, and therefore consideration be had as to whether the hearing be that of fresh application and is competent. 

49.	I am mindful that this Court is constituted to hear the application as a fresh application under the relevant rules; at the same time, I am also of the view that this Court also has inherent discretion to consider the application, s 155(2)(b) of the Constitution is also available to this Court on its own volition to provide an opinion where there is ambiguity  

50.	I start by referring to the judgment of his Honour Kidu CJ in the case of Balakau v Torato and Openakali [1983] PNGLR 242 which relates to an application following an unsuccessful election petition instituted by the applicant, Mr. Balakau. In that case, his Honour Kidu CJ in his deliberation on the application of s 220 of the Organic Law on National Elections, stated: 

Section 220 of the Organic Law on National Elections reads as follows:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.” (My emphasis)

The Constitution only guarantees a right of appeal to higher courts in criminal cases. Section 37(15) of the Constitution provides:

“Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.”

Section 37(16) says as follows:

“No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of conviction or sentence, as the case may be.”

There is no provision in the Constitution which guarantees the right to appeal from a decision of a lower court (on non-criminal matters) to a higher court. The only provision in the Constitution which does guarantee a right in non-criminal matters is s. 37(11). This provision is worded as follows:

“A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.”

In non-criminal matters, therefore, if there are to be rights of appeal from decisions of lower courts to the higher courts such rights must be found in relevant statutes. For instance, as far as appeals from the National Court to the Supreme Court are concerned, the general appeal provision is found in s. 4(1) of the Supreme Court Act 1975 (Ch. No. 31). It reads:

“(1) An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court.”

So, s. 4; subject to specific provisions relating to specific matters covered by special legislation, gives a general right of appeal from any judgment of the National Court to the Supreme Court. Therefore, if there were no other provisions relating to appeals from the National Court to the Supreme Court in electoral matters, s. 4 of the Supreme Court Act would quite clearly give a right of appeal.

51.	This case does not involve an election petition arising from the National Court. This is an application arising from a decision of a single Judge sitting as the Supreme Court under Order 11 Rule 11 and 26 of the Supreme Court Rules.  A 5 men bench of the Supreme Court has been panelled to sit and determine the application. In my respectful view, I consider that when a 5 men bench is panelled, it is sitting to review the decision of the full Supreme Court and this is where, I consider that the provisions of the Supreme Court Rules, Order 11 Rules 25 and 26 are inconsistent with the provisions of Constitution relating to rights of appeal, s 37 (11), s 155(2) (b) . 

52.	There is no right of appeal from any judgment of the Supreme Court, except under Order 11 Rules 25 and 26 for a hearing de novo, this provision, in my respectful view is an area which is not clearly defined under the Supreme Court Act nor the Constitution.  The lack of or absence of such provision restricts a litigant who is aggrieved by a decision of the Supreme Court (either a single Judge or a full court) to file a review of the full court decision. A hearing de novo by a 5 men is not provided under the Supreme Court Act or the Constitution.  This is where I am minded to refer to and adopt the statements of Kearney DCJ in the case of Avia Aihi [1981] PNGLR 81referred to by Kidu CJ in Balakau (supra). The Deputy Chief Justice stated: 

This Court, as part of the National Judicial System, is invested with the judicial authority of the people: Constitution, s. 158(1). That is the exclusive and ultimate source of its authority.

The word “inherent” in the Constitution, s. 155(2)(b), I think, indicates that it is direct from that unlimited well that the court’s authority under that provision is derived; it is not a reference to a power possessed by the court simply because it is a court.

The word “inherent” also connotes that within the limits of the subject matter of the Constitution, s. 155(2)(b) - “judicial acts of the National Court” - the power of review of this Court is plenary. In the absence of express constitutional provision, that power and its exercise cannot be restricted, by any Act of Parliament; there is no express constitutional provision - see per Andrew J in Constitutional Reference No. 1 of 1979 [1979] P.N.G.L.R. 329 at 401. So, for example, a privative clause would be of no effect “see the illustration by Pritchard J in In re Moresby North East Election Petition; Patterson Lowa v. Goasa Damena [1977] P.N.G.L.R. 429, at 442. Contrast the Constitution, ss 155(3)(a) and 155(3)(e), as regards the National Court.

Whether the power is to be exercised in a particular case must always remain wholly a matter for this Court, in its discretion. I consider that it is a truly discretionary jurisdiction, of much the same type as that of the Privy Council in exercising what the common law recognizes as its inherent prerogative to grant special leave to appeal, though an applicant has no right by statute to appeal.

I consider that this court’s discretionary and reserve power under the Constitution, s.155(2)(b), is additional to the power and jurisdiction vested in the court under the Constitution, s.155(2)(c); this appears clearly from the language used. The latter is dependent in part on the exercise of legislative power by Parliament; the former is not.

The latter is subject to limits imposed by Acts; the former is not.

It is to be expected that the final court of appeal in the National Judicial System would be expressly vested by the Constitution with a discretionary jurisdiction of the type in the Constitution, s. 155(2)(b), so as to ensure the dispensation of justice; it is a common feature of many judicial systems. The policy of the Constitution in this respect is made strikingly clear in s. 155(5), as regards the National Court.

No distinction is to be drawn in my opinion, as regards the Constitution, s. 155(2)(b), between the concepts of “jurisdiction” and “power”. In normal language usage, “jurisdiction” connotes the authority of a court to exercise judicial power in a specific case; while “judicial power” is the totality of the powers of a court, when it embarks upon the hearing of a case within its jurisdiction. The Constitution, s. 155(2)(b), however, vests in the court an unrestricted authority to review certain judicial acts; and that, in effect, is a grant of jurisdiction. A grammatical support for this view is the reference to “other jurisdiction” in the Constitution, s. 155(2)(c). Further, it appears that the “inherent power” in the Constitution, s. 155(4) is characterized as a “jurisdiction, in the Constitution, s. 155(3)(d), although the “power” there referred to in fact accords more closely with the strict sense of the word. The Constitution, ss 155(2)(b) and 155(2)(c) are clearly two distinct and separate heads of jurisdiction. 

53.	For this present case, whilst acknowledging that the applicant has not invited this Court to invoke its inherent jurisdiction under Section 155(2)(b) of the Constitution, I am minded to refer to, quote and adopt the statement of his Honour Kearney DCJ in Avia Aihi (supra) where he stated which I reiterate:

Whether or not this Court would exercise that power and grant leave to appeal, depends on the circumstances of the particular case. It is wholly discretionary, but I think that in general leave would be granted only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity. 

54.	In this case, the question here is whether the exercise of such power is subject to review or appeal by a full Supreme Court, on questions of both fact and law but sitting as a Supreme Court 5 men bench hearing de novo? This is where I am of the respectful view that this is a grey area which makes the Supreme Court Rules inconsistent with the right of an aggrieved litigant to seek a review of the full Court decision under s 155(2)(b) of the Constitution opposed to rights under Sections 18 and 19 of the Constitution. 

55.	The importance of insisting on the existence of review to the full court is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by the full court. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently constituted: see Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991) as discussed and cited in Balakau (supra)

CONCLUSION

56.	Given the foregoing, I am of the view that the applicant should be granted leave to review the decision of a single judge sitting as the Supreme Court.  It is my opinion that the objection to competency be declined, the application seeking leave to review the taxed cost be granted and a review of the taxed costs be  conducted before the Registrar as the Taxing Officer within 14 days from the date of this Order.

57.	As to the issue of costs, I am minded to rule that costs  of the application be costs in the cause. 

ORDER (BY MAJORITY OF THE COURT)

1.	 The application filed by the applicant on 11 April 2025 is dismissed.

2.	The applicant shall pay the fourth intervener’s costs of and incidental to the application on an indemnity basis, to be taxed if not agreed.
_______________________________________________________________
  Lawyers for applicant: SLM Legal Practice
Lawyers for fourth intervener: Allens