Kombra v Kipit [2009] PGNC 141; N3756 (11 September 2009)

N3756

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 479 OF 2005

BETWEEN:

JOHN KOMBRA & 10 OTHERS
Plaintiff

AND:

BERNARD KIPIT
First Respondent

AND:

NATIONAL CAPITAL DISTRICT COMMISSION
Second Respondent

Waigani: Davani .J
2009: 24th July, 11th September

COSTS – Taxation of bill of costs – taxation proceeded in respondents’ absence – costs taxed on a solicitor/client basis – appellant, a lay man, claimed costs on a solicitor/client basis – a ground for review – O.22 of National Court Rules.

COSTS – Review of taxation – application on motion to a Judge – to be done within 14 days after taxation or within such further time allowed by the Court – objections must be specified and listed or attached to the Motion – list must state concisely the nature and grounds of each objection.

COSTS – Review of taxed costs – application for extension of time – principles to apply when considering extension of time.

Facts

The Trial Judge had ordered that the respondents pay the appellant his costs. The appellant, a lay man, filed and had taxed a solicitor/client basis bill of costs. The respondent wishes to review the taxed costs but must firstly, seek an extension of time.

Held

The principles to be relied on when granting an extension of time to object to taxed costs are;

1. That there must be a reasonable explanation why costs were taxed in the defendant or plaintiffs absence;

2. That the application for extension of time must be made promptly and within a reasonable time of the decision becoming known;

3. If there is any delay, whether the reasons for delay are justified under the circumstances;

4. Whether the application has any merits?

Counsel

P. Solon- Mesa, for the first and second respondents/applicants
J. Kombra, in person for and on behalf of 10 others

11th September, 2009

RULING

1. DAVANI .J – Before me is Notice of Motion filed on 15th July, 2009 by the Legal Section of the National Capital District Commission (‘NCDC’). The Motion seeks orders for a review of costs taxed on 25th June, 2009 in the amount of K8,587.50. The application is supported by the affidavit of Patricia Solon Mesa sworn on 15th July, 2009.

2. The appellant opposes the application.

Background

3. The costs arise from a decision of the National Court of 18th May, 2007 where the Trial Judge presided over a claim for loss of entitlements by the plaintiff. This matter was filed as an appeal. The Trial Judge, on review of the plaintiffs claim before him, decided that the claim should proceed by way of Writ of Summons and Statement of Claim. He then directed that the National Court Registrar "allocate a file reference and put the matter before the Listings Court for the matter to be listed and to be dealt with under the Listings Rules" (pg.4 of Trial Judge’s transcripts). His Honour did so because he was of the view that the matter should be "transferred to the National Court and be determined by the National Court in accordance with the Rules and processes of the National Court." (pg.4 of transcripts).

4. In relation to costs, His Honour said;

"It is discretionary but the appellants have won the appeal and therefore, in my view that they should be credited with the costs. I therefore order that the respondents pay the appellants’ costs. Those are the orders of the Court." (pg.4 of transcript).

This application

5. Ms Solon-Mesa deposes in her affidavit that although the appellant’s costs were taxed, that the following occurred prior to taxation that would suggest that the taxation was not properly conducted. These are;

(i) That although the matter was listed for taxation on 25th June, 2009 as per the dairy kept by the Taxing Officer, the Taxing Officer did not send a letter either to the plaintiff or to the defendants advising and scheduling the taxation for 25th June, 2009. She exhibits to her affidavit copy of a page from the Taxing Officer’s diary of 25th June, 2009, which notes this matter as listed for hearing;

(ii) That the appellant filed a Bill of Costs assessed on a solicitor/client basis when the trial judge’s orders was only for payment of costs which I assume is party/party costs;

(iii) That the Taxing Officer did not provide any reasons for having taxed the solicitor/client Bill of Costs at K8,587.50.

6. Order 22 rule 60 of the National Court Rules (‘NCR’) reads as follows;

"60. Application for review of taxation.

(1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by the taxing officer, or with the amount allowed by the taxing officer in respect of any item, may apply on motion to a Judge to review the decision in respect of that item.

(2) An application for review of the taxing officer’s decision shall be made within 14 days after the date of the decision objected to or within such further time as the Court may allow.

(3) Every applicant for review under this Rule must at the time of making his application deliver to the taxing officer objections in writing specifying the list of items to which the applicant objects and must state concisely the nature and grounds of each objection.

(4) An applicant for review under this Rule shall serve a copy of the objections on each other party (if any) who attended the taxation of those items and any other person whom the taxing officer directs shall be served."

7. Order 1 rule 15 of the NCR reads;

"15. Extension and abridgement

(1) The Court may, on terms, by order extend or abridge any time fixed by the Rules or by any judgment or order.

(2) The Court may extend time under sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.

(3) The period within which a person is required by these Rules or by any order to serve, file or amend any pleading may be extended by consent without an order for extension."

8. The respondents apply for an extension of time to raise objections to the taxed costs because they are out of time. The Certificate of Taxation was issued on 25th June, 2009. If there was any opposition to the taxed costs, that the application for review should be made within fourteen (14) days after the date of the decision objected to or within such further time as the Court may allow (O.22 r.60(2)). In this case, the application was filed on 15th July, 2009, about a week and a half after the issuance of the Certificate of Taxation.

9. The respondents now apply to the Court for an extension of time and their reasons are that;

(i) They were not advised of the return date for taxation;

(ii) That the taxation was conducted in their absence after which they were served on 6th July, 2009 with the Certificate of Taxation dated 25th June, 2009, three (3) days before the expiration of the fourteen days within which to lodge objections;

(iii) On 13th July, 2009, the respondents conducted a search of the Court file to ascertain the manner in which taxation was conducted, wherein they confirmed the matters set out above.

10. After the conduct of the search on the Court file on 13th July, 2009, the defendants were already four (4) days out of time. Two (2) days later, they filed their application for extension of time to review taxed and certified costs.

11. In my view, the principles in relation to the grant of an extension of time would be similar to the principles in relation to the setting aside of default judgments regularly entered and which principles are well settled in this jurisdiction (see Green & Co. Pty Ltd v. Green [1976] PNGLR 73; The Government of PNG & Davis v. Barker [1977] PNGLR 386; George Page Pty Ltd v. Balakau [1982] PNGLR 140; Leo Hannet v. ANZ Banking Group (PNG) Ltd (1996) SC505; and Leo Duque v. Avia Andrew Paru [1997] PNGLR 378);

(i) That there must be a reasonable explanation why costs were taxed in the other party’s absence;

(ii) That the application for extension of time must be made promptly and within a reasonable time of the decision becoming known;

(iii) If there is any delay, whether the reasons for the delay are justified under the circumstances;

(iv) Whether the application has any merits.

Ground 1: That there must be a reasonable explanation why costs were taxed in the other party’s absence

12. Ms Solon-Mesa’s affidavit explains that she was not advised of the date for the hearing of the taxation. The only time she became aware that costs had been taxed was on 6th July, 2009 when the NCDC was served the Certificate of Taxation. That prior to that, she had always received advice from the National Court Registry of when the taxation would take place. However, in this instance, she was not advised.

13. Based on the materials attached to Ms Solon-Mesa’s affidavit and which I reviewed above, I find that the respondents have provided a reasonable explanation as to why costs were taxed in their absence.

Ground 2: That the application for extension of time must be made promptly and within a reasonable time of the decision becoming known

14. On 25th June, 2009, the appellant proceeded ex parte to tax his costs. The NCDC received the Certificate of Taxation on 6th July, 2009. Thereafter, it had to conduct its own investigations to ascertain why costs were taxed in its absence. They had to do that by liaising with the appellant’s lawyers on record and also by searching the Court file and the Taxing Officer’s file. Armed with that information, they then filed this application on 15th July, 2009. (see pars. 5, 9 and 10 of these reasons).

15. On review of the above evidence, I find that the five (5) days lapse is because of the tasks undertaken by the respondents and is justified under the circumstances.

16. I find that the application for extension of time was promptly made.

Ground 3: If there is any delay, whether the reasons for delay are justified under the circumstances

17. I find no delay sufficient enough to warrant a refusal. But, as I said above, the 5 days lapse is justified under the circumstances.

Ground 4: Whether the application has any merits?

18. Evidence before the Court is that the appellants had won their appeal and the trial judge had directed that they be awarded costs. (see pars. 3 and 4 of these reasons). The Court did not specify the type of costs but I assume it is the usual party/party costs.

19. I do not know who appeared in Court that day but the undisputed fact is that the appellants had a lawyer on record. However, the evidence is also that the appellants’ lawyer was not aware that the appellants had personally pursued the taxation and had filed a solicitor/client Bill of Costs. In fact, Mr Greg Kunjib, principle of Kunjib Lawyers advised in his letter of 7th July, 2009 to Ms Solon-Mesa that he did not hold any instructions from the appellants. He advised that the lawyer with carriage of the file, a Warren Kume, had since been terminated because he opened a file for the appellants, against Mr Kunjib’s instructions. (see par.14 of Ms Solon-Mesa’s affidavit and annexure ‘H’).

20. Additionally, the appellant is a lay man. Prima facie, he cannot claim costs assessed as if he were a solicitor or in this case, a lawyer. How it is that the Taxing Officer proceeded to tax costs on a solicitor/client basis, when he had earlier directed by his letter of 26th March, 2009 that costs be taxed on a party/party basis, is indeed a mystery. Clearly, the Taxing Officer’s actions are questionable and suspicious, if I may add.

21. Additionally, there is no evidence before this Court that the Taxing Officer had advised the respondents of the taxation date or had dispensed with this notice, contrary to O.22 r.41 of the NCR which reads;

"41. Absence of party

Where a party entitled to attend any matter before the taxing officer has had due notice of the time appointed for the matter, or where notice to a party has been dispensed with under Rule 39 of this Order, the taxing officer may proceed in his absence."

22. In all, I find that the respondents do have a meritorious case and will grant the extension of time requested.

23. The orders I make are line with O.22 r.60 of the NCR.

Formal orders

24. These are the Court’s formal orders;

(1) The respondents have leave to apply on motion to a Judge to review the taxed and certified costs of 25th June, 2009, and shall do so within twenty-one (21) days, on or before 2nd October, 2009;

(2) In accordance with O.22 r.60(3) of the NCR, the respondents shall have attached to the Notice of Motion, its objections in writing specifying the list of items to which it objects and to also state concisely the nature and grounds of each objection;

(3) Thereafter, in accordance with O.22 r.60(3), the respondents shall deliver to the Taxing Officer, the objections referred to in par.2 herein;

(4) After obtaining a date for the hearing of the objection, the first and second respondents shall serve a copy of the objections on parties who attended the taxation and also upon other persons the Taxing Officer directs should be served, to be done on or before 2nd October, 2009;

(5) The respondents are at liberty to apply for an extension of time of these orders, but must do so before 2nd October, 2009;

(6) Time is abridged to the time of settlement to take place forthwith;

___________________

NCDC In-house Lawyer: Lawyers for the first and second respondents/applicants
Appellants appeared in person