Umba v Herepe [2007] PGDC 108; DC638 (10 October 2007)

DC638

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 22 of 2007

BETWEEN

DENNIS UMBA
Complainant

AND

JIM HEREPE
Defendant

Goroka: M Gauli, PM
2007: October 10

CIVIL - Claims debts for legal services provided – Debts incurred while in the employee of another law firm – Legal costs claimed some years after the proceedings were completed in National Court and after the Complainant has left to set up his own law firm – Bill of costs not in taxable form – Exparte hearing.

Cases Cited
1. Leaonard Noel Marsh –v- Hay [1981] PNGLR 392

References
1. Section 143 of the District Courts Act

Counsels
For the Complainant - In Person
For the Defendants - No Appearance

10 October 2007

DECISION OF THE COURT

M Gauli, PM: The Complainant Mr. Dennis Umba, a lawyer by profession who practises on its own, sued the defendant Jim Herepe and claims for legal services rendered to the defendant. The matter was fixed for trial on 10 October 2007, however the Court proceeded exparte on the defendant’s failure to attend. The Complainant has no witnesses except himself who testified on oath. The Section 143 of the District Court act gives this Court the power to proceed exparte. The hearing proceeds exparte as the defendants note seeking adjournment was received few minutes before the trial.

2. Complainants Evidence

The complainant’s evidence is that while he was employed by the Acanufa & Associates as a practising lawyer, he represented Jim Herepe, (the defendant) in the proceeding before the National Court on a Writ of Summons W.S No 1697 of 2000 between 26 August 2000 and 27 August 2004. Jim Herepe was the plaintiff in that proceedings. He sued the State of Papua New Guinea in damages for the injuries he sustained from the police shooting. On 27 August 2004, the National Court in Goroka awarded judgment in favour of the plaintiff Jim Herepe in the sum of K77, 966.00 and Jim Herepe was paid the amount in 2006 by the State.

3. In January 2007 Mr. D. Umba resigned his employment with the Acanufa & Associates. On the 01 of February 2007 he established his own law firm known as Umba Lawyers. After beign aware of the payments being made to Jim Herepe, Mr. D. Umba then rendered a bill on the 13 April 2007 to the defendant Jim Herepe for a sum of K10, 000.00. The defendant having failed to pay the bill has resulted in this proceedings.

4. From the evidence of the complainant as it stands, he claims for the legal costs for the proceedings that were incurred before the National Court in Goroka some three years ago which proceedings have been completed. The order of the National Court of the 27 August 2004 included the costs of the proceedings, which states as per the Order No. 5:

“5. The second defendant shall pay the costs of this proceeding.”.

5. Mr. D. Umba was in the employee of the Acanufa & Associates at the time he was representing Jim Herepe in National Court proceedings. Whatever the legal costs incurred would have been paid to the Acanufa & Associates. If that State had not paid the costs then it is the matter for the Acanufa & Associates to persue their costs against the State of PNG before the National Court. The bill of costs would have been given to the State. If the State failed to pay the costs, then that should be persued in the National Court.

6. Mr. D. Umba in his evidence said that on 31 of January 2007 on his resignation, he was given the file on W.S No. 1697 by the Acanufa & Associates to carry on with the matter as the State has not settled the judgment order of the National Court. There is no evidence from Acanufa & Associates to support this evidence. Mr. D. Umba of the Umba Lawyers had not provided sufficient evidence to satisfy this Court of his claim of K10, 000.00 legal costs against Jim Herepe. He has not particularised his claim of costs in any detail. It is not sufficient for one to say “My bill is K10, 000.00” without detail particulars. I would only assume that he claims this costs for writing one or two letters to the Acting Solicitor General in February and March 2007 for the none settlement of the judgment order of the National Court. This was a lump sum bill but not a bill of cost in a taxable form. Since this bill was not in taxable form the defendant cannot be sued for non-payment. In the case of Leonard Noel Marsh –v- Hay [1981] PNGLR 392, Justice Pratt held that:

“A solicitor’s client has a right to demand, receive and have taxed a proper bill of costs in a taxable form before being sued for non-payment.”

7. I could see no reason why the Acanufa & Associates had to transfer the file to the Umba Lawyers to further progress on it. As far as the proceedings on that matter before the National Court is concern, the proceedings have been concluded in August 2004 except for making inquiries to the State for the payment.

8. The complainant has failed to satisfy this Court of his claim of the legal costs for the services rendered. Accordingly I find the defendant Jim Herepe not liable to the complainant for any costs. And I order that the case be dismissed.

For the Complainant – In Person
For the Defendants – No Appearance