Vagaia v Buidal [2013] PGNC 342; N5414 (14 October 2013)

N5414

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 850 OF 2010

BETWEEN:

MARCELLO VAGAIA, TIOP BALSASAR, LINUS TIRAVA BERNARD TURADAVAI, FRANCIS TAPUKU & FRANCIS ENTINI
First Plaintiffs

AND:

BARAVA LTD
Second Plaintiffs

AND:

JOSEPH BUIDAL, HENRY PIDI, ROBERT RARAP and AUGUSTINE MAMALAU
First Defendants

AND:

GIRE GIRE ESTATES LIMITED
First Defendant

AND:

OS NO: 587 OF 2007

BETWEEN:

BARAVA LIMITED
Plaintiff

AND:

AUGUSTINE MAMALAU & ORS
Defendants

Kokopo: Oli, AJ
2013: 7th & 14th October

PRACTICE & PROCEDURE – CIVIL JURISDICTION - Application to set aside the Ex parte Taxation of Defendants' Bill of Costs – Seek Bill of Costs taxed be reviewed by the Judge – Is it an appropriate case? - Plaintiffs fail to comply with Condition Precedent under Order 22, Rule 60 (3) NCR – Application to set aside Certificate of Taxation by Taxing Officer Refused.

PRACTICE & PROCEDURE – CIVIL JURISDICTION - Application to invoke Constitution s. 155 (4) - To remit the Taxed Bill of Costs to Taxing Officer to be re-taxed - Constitution s. 155 (4) is only to be relied upon to protect the primary rights of parties in the absence of other laws – Application refused.

Cases Cited:

Thomas Rangip v Peter Loko (2009) N3714,
Peter Makeng & Ors v Timbers (PNG) Ltd & Ors (2008) N3317

Counsel:

Mr. E. Paisat, for the Plaintiffs
Mr. N. Saroa, for the Defendants

RULING

14th October, 2013

1. OLI, AJ: The plaintiff filed a motion seeking an order to have the Ex parte Taxation assessed on 21st June 2013 by Taxing Officer reviewed by the Judge pursuance to Order 22 Rule 60 of the National Court Rules. And or in the alternative the plaintiffs' seek Courts inherent power under Section 155 (4) of the Constitution to issue a court order directing that the Ex parte Taxation be remitted back to the Registry for re-taxing of the Bill of Costs by the same Taxing Officer.
   
2. May I remind both parties and their counsel from the outset that I have taken the liberty to consolidate the both Rulings in this one ruling on the plaintiffs' application on both matters to set aside Certificate of Taxation of defendants' itemised Bill of Costs in WS. No. 850 of 2010 and OS No. 587 of 2007 respectively. The both matters are essentially the same, except that the Taxed Bills are different in quantum. That is to say WS No. 850 of 2010 Taxed Bill is K74, 173.40 and OS No. 587 of 2007 Taxed Bill is K10,228.30 as assessed on 21st June 2013 and respective Certificate of Taxations were issued on 24th June 2013 in their respective proceedings by the Taxing Officer thereafter.
   
3. I prefer to consolidate both matters in one ruling because the applications to set aside Ex parte Taxed bills are the same in nature with the same parties in both cases and same counsel appear in both matters and same relief sought in both defendants' itemised Bill of Costs. The same Legal Counsel for the plaintiffs and defendants were advice by the Taxing Officer to attend to Taxation hearing on 21st June 2013 at 2pm. The defendants' counsel appeared for the Taxation hearing except the plaintiffs nor their counsel attended and Certificate of Taxation were issued on both matters on 24th June 2013 to the parties thereafter.
   
4. The Taxation event follows from the Court Orders that awarded costs in favour of defendants when the Court dismissed the plaintiff's Writ of Summons (WS) No 850 of 2010 on 15th December 2010, for lack of compliance with discovery directions as per the National Court Rules. In the other matter the Court on 4th February 2013 also dismissed the plaintiffs' Originating Summons (OS) No 587 of 2007 (& OS 433 of 2008) for lack of jurisdiction. The defendants' counsel filed an itemised Bill of Cost in both matters to the Registry for Taxation to be done on the two itemised Bill of Costs. The Taxing Officer registered both matters and set it down for Taxation hearing returnable on 21st June 2013 at 2 pm for the defendants' Bill of Costs to be taxed. Both counsel in these matters were advised of the return date for the Taxation hearing by the Taxing Officer.
   
5. The defendants' counsel or the representative appeared on 21st June 2013 at 2pm for taxation hearing by the Taxing Officer, but neither plaintiffs' counsel nor its representative appeared for the taxation hearing. The Taxing Officer proceeded Ex parte to hear and determine both itemised Bill of Costs for the defendants and issue a Certificate of Taxation on both itemised Bill of Costs consistent with Orders of the Court dated 17th December 2010 and 4th February 2013 respectively. The Taxing Officer certifies that on 21st June 2013 did tax both itemised Bill of Costs in favour of the defendants in the sum of K74,173.40 for WS No 850 of 2010 and OS No 587 of 2007 (& OS 433 of 2008) in the sum of K10,228.30 for both proceedings and issued Certificate of Taxation forthwith.
   
6. The plaintiffs upon receipt of the Certificate of Taxation on defendants both itemised Bill of Costs were aggrieved and filed a Notice of Motion on both matters WS. 850 of 2010 and OS. 587 of 2007 (& OS 433 of 2008) under Order 22, Rule 60 of the National Court Rules for further review by a Judge and or remit the taxed bill of costs back to Taxing Officer for retaxing by using Courts inherent power under Section 155 (4) of Constitution.
   

BACKGROUND

7. The brief historical background in respect to the cost component in these cases is that the Court awarded costs in favour of the defendants' in WS No.850 of 2010 on 17th December 2010 when the Court dismissed the plaintiffs' proceedings against the defendants. And in another matter OS. 587 of 2007 (& OS. 433 of 2008) the Court dismissed the plaintiffs' applications on 4th February 2013 for lack of jurisdiction and cost awarded in favour of the defendants. The Defendants filed both itemised Bill of Costs on 31st May 2013 at the Kokopo National Court Registry to be taxed by the Taxing Officer before payment in both matters were progressed. These two matters are consolidated in this Ruling on this Application to set aside the defendants' two itemised Bill of Costs under Order 22 Rule 60 of National Court Rules and s. 155 (4) of the Constitution.
   
8. The Assistant Registrar of Kokopo National Court Registry upon receipt of the two itemised Bill of Costs by the defendants filed and registered for taxation hearing by Taxing Officer returnable on the 21st of June 2013, at 2.00pm and served on the parties thereafter. The defendants' lawyer attended the taxation on the 21st of June 2013, at 2.00pm but neither the plaintiffs' lawyer nor the plaintiffs turned up for the inter-party taxation hearing of the defendants' itemised Bill of Costs on the return date and time. As it turned out the taxation hearing proceeded Ex parte.
   
9. The Taxing Officer proceeded and conducted the taxation hearing Ex parte in the absence of the plaintiffs and issued a Certificate of Taxation on 24th June 2013 in favour of the defendants both itemised Bill of Costs and issued the same to each party thereafter. The plaintiffs being aggrieved filed these motions before this court to set aside both Certificate of Taxation issued by the Taxing Officer and seek orders for further review or remittance back to Registry for retaxing by the Taxing Officer.
   

PLAINTIFFS' NOTICE OF MOTION TO SET ASIDE THE CERTIFICATE OF TAXATION

10. The plaintiffs after receiving the Certificate of Taxation issued by the Kokopo National Court Assistant Registrar (Taxing Officer) were aggrieved and filed Notice of Motion on both matters on 27th June 2013 pursuance to Order 22, Rule 60 National Court Rules and s.155 (4) of Constitution and made returnable on 9th August 2013 at 9.30 am for the plaintiffs to move the motion. The motion filed is essentially seeking relief to set aside Certificate of Taxation by Taxing Officer and seek an order for a review of the Certificate of Taxation by a Judge and or remits the Certificate of Taxation of defendants' both itemised Bill of Costs back to Registry to be retaxed by the Taxing Officer.
    
11. The application for review of Certificate of Taxation by plaintiffs under National Court Rules is to move and seek this Honourable Court to issued Orders:
    
    1. That pursuant to Order 22, Rule 60; this Honourable Court review the decision of the Taxing Officer to allow the whole of the Bill of Costs of the defendants taxed on the 21st June 2013; and or in the alternative,
    2. That pursuant to Section 155 (4) of the Constitution, the Certificate of Taxation of the Bill of Costs be set aside and the taxation of costs be remitted to the taxing officer for retaxing.
    3. Costs of this application.
    4. Any other or further Orders the Court deems fit.
       
12. The law on application to review of taxation is provided under Order 22, Rule 60 of National Court Rules and I restate the rules as follows:
    

60. Application for Review of Taxation. (U.K. 62/33)

(1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by taxing officer, or with the amount allowed by the taxing officer in respect of any item, may apply on the 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 application 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 state concisely the matter 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 direct to be served.

13. The plaintiffs' counsel in support of this motion had deposed an affidavit sworn on 26th and filed on 27th August 2013 with three separate attachments; (1). A letter to defendants' lawyer dated 18th June 2013 providing a counter offer on bill of cost on OS 587 of 2007 as K3,159.00 and object to K9,666.00 itemised bill of costs as submitted by the defendants. However, on the last paragraph on the same letter the counsel advised that he will not be available on 21st and 22nd of June 2013 but will be available in 3rd week of July 2013 and there was no copy addressed to National Court Registry – Taxing Officer, and (2). Defendants' two separate Bill of Cost filed by the defendants' counsel set down for Taxation hearing on 21st June 2013 plus (3). A copy of the Certificate of Taxation on both matters issued by Taxing Officer on 24th June 2013 in favour of the defendants' bill of costs. The counsel for defendants in his affidavit in reply to the letter dated 18th June 2013 by plaintiffs' counsel, in response stated that that letter was never received by his office, hence, he was not made aware of the plaintiffs' counsels request for further adjournment from 21st and 22nd June 2013 to 3rd week of July 2013 due to his non availability during the Taxation hearing period. The same letter does not have a copy made to National Court Registry Kokopo to advice the Taxing Officer of Counsel Mr Paisat's non availability on the scheduled Taxation hearing return date on 21st June 2013 at 2pm.
    
14. Counsel for the plaintiffs in his affidavit made reference to having an audience with a Registry staff Ms Bonnie Paul that Assistant Registrar Ms June Micka was on leave and therefore suggested that Registrar of National and Supreme Court of PNG Mr Ian Augerea will come from Waigani to do the taxation on 21st June 2013. The plaintiffs' counsel further stated that he learnt that Registrar Mr. Ian Augerea did not come from Waigani so he did not attend the taxation hearing on 21st June 2013 at 2pm. This statement is very contradictory on the face of his own statement in his letter of 18th June 2013 at the last paragraph where he categorically stated in no uncertain terms that he will not be available on 21st and 22nd June 2013 but he will be available on the 3rd week of July 2013. He further stated that he was not advised by the Kokopo National Court Registry of the latest in-house arrangement that taxation will be presided over by Assistant Registrar Ms June Micka and not Mr. Ian Augerea Registrar from Waigani as earlier advised by Ms, Bonnie Paul of Kokopo Registry.
    
15. The plaintiffs' counsel maintains and claims that his non attendance to the taxation session conducted by the Taxing Officer on 21st June 2013 at 2pm was due to the misunderstanding created by one of the Registry staff Ms Bonnie Paul. The Counsel further claims that if there was any change plans as to who was going to preside over the Taxation hearing on 21st June 2013 at 2pm other than Registrar from Waigani, this was never communicated to him by the Kokopo National Court Registry.
    
16. The plaintiffs' counsel being hit with the two Certificate of Taxation Bill of costs on both matters OS No. 587 of 2007 (& OS No. 433 of 2008) and WS No. 850 of 2010 against his client filed a motion to set aside both Certificate of Taxation and seek review by a Judge or remitted the Certificate of Taxation back to Registry for retaxing by the Taxing Officer.
    
17. The defendants' counsel filed in support of his clients to oppose the Motion to set aside both Certificates of Taxation deposed an affidavit sworn on 23rd August 2013 with two separate attachments of letters to the plaintiff lawyers. The first letter dated 3rd June 2013 annexure marked "A" advising plaintiffs' counsel of the amended Defendants Bill of Costs in the proceedings filed particulars OS No. 587 of 2007 (& OS 433 of 2008); and same Defendants Bill of Costs in proceedings WS No. 850 of 2010 respectively.
    
18. The defendants' counsel in his letter of 3rd June 2013 draw plaintiffs' counsel's attention at second last paragraph that sealed Taxation bill of costs documents filed on 31st May 2013 at National Court Registry on two separate Bill of Costs were listed for taxation hearing on 21st June at 2pm. The last paragraph on the same letter on the last sentence kindly reminds the plaintiffs' counsel to ensure attendance as failure will result in the matter proceeding under the Order 22 of the National Court Rules. The service of this letter was confirmed by the plaintiffs' counsels' office on 6th June 2013. The second letter dated 24th June 2013 annexure marked "B" enclosed by way of service of the sealed copies of the following documents to Plaintiffs' Counsel's office were:
    
    1. Certificate of Taxation in the sum of K10,228.30 issued on 24th June 2013 in the proceedings of OS No. 587 0f 2007 (& OS 433 of 2008); and
       
    2. Certificate of Taxation in the sum of K74,173.40 issued on 24th June 2013 in the proceedings of WS No. 850 0f 2010.
       

The plaintiffs' counsels' office also confirmed receipt of this letter dated 24th June 2013 by the defendants' counsel with attachments of the two Certificate of Taxation bill of costs issued by Taxing Officer dated 24th June 2013.

THE LAW

19. The Taxing Officer is empowered under Order 22, Rule 39 of National Court Rules to Tax Bill of Cost ordered by the court to be taxed, if not agreed by the parties. The Order 22, R 39 of National Court Rules reads:
    

Rule 39. General Powers.(52/37):

The taxing officer may, in the discharge of his functions with respect to the taxation of costs or any other functions under this Order:-

(a) dispense with the filing or service of notice of a motion to proceed with taxation; and
(b) require any party represented jointly with any other party in any proceedings before him to be separately represented and
(c) take evidence by the examination of witnesses or otherwise; and
(d) and direct the production of any document; and
(e) adjourn any proceedings before him; and
(f) do such other things as the court may by order direct.

APPLICATION OF FACTS TO THE LAW

20. Change of Lawyers from Motuwe Lawyers to Jackson Gah & Associates Lawyers by plaintiff is the same lawyer Mr. Paisat who has the carriage of the matter when he was under the employee of Motuwe lawyers. He is still the same lawyer in carriage of this matter in these proceedings.
    
21. Letters by the defendants' counsel advising of the return date to the plaintiffs' counsel was 21st June 2013 as evidenced by the said letters received and acknowledged by plaintiffs' counsel's law office.
    
22. The Plaintiff's Counsels' account of relying on the Registrar from Waigani to hear the Taxation matter is indeed ill advised as the plaintiffs' counsels' assertion of such statement by Ms Bonnie Paul is not supported by her own affidavit in the Court file. In the absence of such supporting affidavit documented by registry support staff refer to as Ms Bonnie Paul has created this mistaken belief on the part of the plaintiffs' counsel has no substance nor has any legal bases.
    
23. The plaintiffs' counsel relying on the belief that unless the Registrar from Waigani comes, he was of the view that taxation was not going to take place on 21st June 2013 at 2pm. The plaintiffs' counsel relying on such information and belief and deciding not to turn up on 21st June 2013 at 2pm for taxation hearing is a choice he himself made and he alone can take the blame for not turning up at the taxation hearing and no one else. This belief is contrary to the advice he advanced in his letter of 18th June 2013 where he had the courtesy to advise the defendants' counsel that he will not be available on 21st & 22nd June 2013 and thereby seeks that the matter be stood over to 3rd week of July 2013 when he will be available. This clearly demonstrates the plaintiffs' counsel exercising some degree of bad faith in the course of discharging his professional duties and obligation to his clients and the Court. I therefore conclude that Plaintiffs' counsel's non attendance to the taxation hearing on the scheduled date and time was a decision he himself made not to turn up and therefore he cannot rely on speculative advice from Registry staff or expect an advice from National Court Registry office that form the basis or has contributed to his mistaken belief that made him not to appear for the taxation hearing. These events must not be seen in isolation with counsel's own conduct and advice he communicated in his letter to his counterpart counsel for the defendants. Counsel for the plaintiff did explain his own position or stand whether to appear for the taxation hearing on the scheduled date or not. It is the personal knowledge he had and no one else. The plaintiffs' counsel had knowledge about his prior professional commitments and did inform his counterpart of his non availability on the date of taxation hearing and suggested his availability on the 3rd week of July 2013. Whilst on the other hand the Plaintiffs' Counsel is shifting the blame to National Court Registry for lack of proper communication with him for change of Taxing Officer other than the Registrar from Waigani National & Supreme Court of PNG, to justify his non appearance on the taxation hearing date is a big let down to his client and may amount to nothing less than professional negligence.
    
24. The formal notice for taxation hearing date and time was set by the Taxing Officer when the defendants filed the draft itemised Bill of Costs at the Kokopo National Court Registry. The itemised bill of costs were registered and stamped and set for Taxation hearing on 21st June 2013 at 2pm and served on the plaintiff' on 3rd June 2013. The letter of 3rd June 2013 which accompanied the Bill of Costs documents that were served was another kind reminder to the plaintiffs' counsel who was informed of the Taxing Officer scheduling the matter for Taxation hearing on 21st June 2013 at 2pm. The letter further stated at the last paragraph that in the event of non attendance, the taxation will proceed ex parte. The Taxation hearing by Taxing Officer proceeded Ex parte in the absence of neither the plaintiffs nor their counsel and the Certificates of Taxation were issued by the Taxing Officer on 24th June 2013 in favour of the defendants' itemised bill of costs.
    
25. The plaintiffs having learned and served with the issuance of the Ex parte Certificate of Taxation were aggrieved and filed a motion to review the Bill of Cost as per the Certificate of Taxation under Order 22 Rule 60 of National Court Rules. The plaintiff having filed the Motion to set aside the Certificate of Taxation must comply with the four (4) limb legal requirements under Rule 60 sub rules (1) and (2), (3) & (4) of Order 22. The Order 22 Rule 60 of National Court Rules reads as follows:
    
    • (1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by taxing officer, or with the amount allowed by the taxing officer in respect of any item, may apply on the 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 application 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 state concisely the matter 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 direct to be served.

26. The party who is aggrieved by the decision of the Taxing Officer has the right under Order 22, Rule 60 of the National Court Rules, to seek review of the Certificate of Taxation issued by the Taxing Officer before a Judge to be reviewed. In order to do this the aggrieved party must comply with the stipulated requirements, in particular Sub rule (3) of Rule 60 of Order 22 of the National Court Rules and they are referred to above by filing a motion to seek review within (14) days from the date the decision by Taxing Officer was made.
    
27. The plaintiffs did comply with the first limb by filing the motion upon being dissatisfied with the allowance or disallowance in whole or in part of any item by taxing officer, or with the amount allowed by the taxing officer in respect of any item. In this case the plaintiffs' have taken issue with the entire itemised Bill of Costs by the defendants after itemised Bill of costs was taxed and issuance of the Certificate of Taxation by the Taxing Officer thereafter.
    
28. In respect to the second limb requirement, I am satisfied that the plaintiffs did comply with the filing of the motion seeking orders for a Judge to review the decision in respect of that item objected to in the Taxing Officers decision within 14 days from the date the decision being objected to was made. The Taxing Officer taxed the itemised Bill of Costs on 21st June 2013 and the plaintiffs filed a Notice of Motion on 27th June 2013 to set aside the Certificate of Taxation issued on 24th June 2013.
    
29. On the third limb the stipulated requirement to be addressed by the plaintiffs are required under sub rule (3) of rule 60. That is to provide in writing the specific and articulated list of items in the defendants itemised Bill of Costs to which the applicant/plaintiff objects to and state concisely the matter and grounds of each objection. The plaintiff's counsel in his affidavit stated that the plaintiffs object to the entire taxed itemised Bill of Costs but fails to specify or articulate and state concisely the items and grounds of each item being objected to in the entire itemised Bill of Costs by the defendants. I am not satisfied and convinced that mere general objection by plaintiffs to the entire itemised Bill of Costs by the defendants without specifying or state concisely and precisely the matters in each items and articulate the grounds of each items being objected to on the entire itemised Bill of Costs. The mere objection to the entire Bill of Costs is one thing but the facts and grounds that entails the justification for such objection to each itemised bill of costs is another. It is the latter that matters most and this case is no exception.
    
30. The itemised Bill of Costs by the defendants is comprised of Nine Parts to it and they are: - Part (1). Preparation of Documents, Part (2). Block Allowance for Preparation of Documents, Part (3). Counsels Fees, Part (4). Counsels Travelling Expenses, Part (5). Attendances, Part (6). Allowance of Witnesses, Part (7). Preparation for Trial, Part (8). Admiralty and Part (9) Taxation of Costs. The itemised Bill of Costs comprise of Nine parts as reflected above and the third limb requires that every application 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 state concisely the matter and grounds of each objection. The plaintiffs in this case, as illustrated above in the Nine (9) parts to a Standard Bill of Costs, have failed to specify the list of items to which the applicant objects and state concisely the matter and grounds of each objection. The plaintiffs' mere objection to the entire Bill of costs without specifying the list of items being objected to and lack thereof in substantiating the legal basis for such objections on each nine parts have failed to comply with the third limb of the legal requirements under sub rule (3) of Rule 60 Order 22 of National Court Rules.
    
31. The third limb, in my view, is the main crust of the plaintiffs' application in order to be successful under Order 22 Rule 60 of the National Court Rules. The applicant/plaintiff has failed to state concisely and provide the necessary prerequisite legal requirements stipulated under Order 22, Rule 60, in particular sub rule (3) of rule 60 of the National Court Rules. Without which the Review forum before a Judge or re-taxing by the Taxing Officer, has no critical issues and items the subject of applicants' objection to be reviewed by the Judge and the Taxing Officer to retax. That is to find fault with the itemised taxed bill of costs consistent with the applicants' grounds of objection that the Taxing Officers tax assessment with the bill of costs on items objected to be proven to be wrong or non related cost to the case or amount was too excessive, etc as the case may be. This was not the case in this case as required by law under Order 22 Rule 60 of the National Court Rules.
    
32. The fourth requirement under sub rule (4) of rule 60 is for the applicant/plaintiff to 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 direct to be served. In this case there was no itemised inventory list of items objected to be provided by the applicant/plaintiff consistent with sub rule (3) of Rule 60 Order 22 of National Court Rules that would form the basis for review by the Judge or retaxing by Taxing Officer, the subject of this motion before the court. If there were no itemised inventory list of items being objected to provided by the applicant/plaintiffs there is nothing that a Judge to review or Taxing Officer to retax on the defendants' bill of costs.
    
33. The applicant/plaintiffs' motion is therefore based on mere general objection or disagreement to the entire itemised taxed Bill of Costs without any substantive factual representation based on law that render it null and void. The statement of objection with inventory list of items objected to should outline in every material particular; viz be it that the cost has no legal bases to the case, unrelated to the case or itemised cost is too excessive or exorbitant under cost rules as per National Court Rules. The compliance will trigger off the justification to warrant the interventions by Court under Order 22, Rule 60 of the National Court Rules for review by a Judge or remittance to Registry for re-taxing by the Taxing Officer.
    
34. The plaintiffs' made further reference in their motion that the court should exercise its powers under Section 155 (4) of the Constitution for court to invoke its inherent powers and direct in the alternative for the bill of costs to be re-taxed by the Taxing Officer.
    
35. In the case of Thomas Rangip v Peter Loko (2009) N3714, His Honour Hartshorn J, held that s. 155 (4) Constitution is only to be relied upon to protect the primary rights of parties in the absence of other relevant law. In addition s. 155 (4) cannot be applied to do anything contrary or inconsistent with the provisions of the National Court Rules: Peter Makeng & Ors V. Timbers (PNG) Ltd & Ors (2008) N3317 per Injia DCJ (as he then was). Held: - consequently I will only consider whether the plaintiffs' are able to have recourse to s. 155 (4) if I determine that this court does not have jurisdiction under Order 12 Rules 8 (3) (a) of the National Court Rules.
    
36. I respectfully adopt and apply the principles in this two cases that I do not find that the application of s. 155 (4) Constitution is appropriate as this Court has jurisdiction to deal with the motion on foot under Order 22 Rules 39 & 60 of the National Court.
    

CONCLUSION

37. After hearing both counsel in their respective argument before me and considering the submission by Mr. Saroa for the defendants and evidence filed on behalf of the plaintiffs, I am not satisfied that the plaintiffs have provided a credible and articulated objection with concise stated grounds to invoke the Courts power under Order 22 Rule 60 of the National Court Rules for the defendants' itemised bill of costs to be reviewed by a Judge or remitted to the Registry for retaxing by the Taxing Officer. The plaintiffs' mere general objection on the defendants' entire taxed bill of costs is like a vacuum full of no concise stated substantive legal grounds for objections on an item by item and articulated issues been objected to for review by a Judge or further retaxing by the Taxing Officer, rendered the application by plaintiffs' in my humble view, amount to an abuse of process. To put it simply the plaintiffs' have not raised one iota of credible stated grounds of objections on an item by item basis on the defendants' bill of costs for review by a Judge or retaxing by the Taxing Officer for that matter at all. The plaintiff is required by law under the third limb to provide an inventory of grounds of objections on item by item and grounds rely on against the defendants' Certificate of Taxation bill of costs and file with the Notice of Motion to set aside the Certificate of Taxation issued by the Taxing Officer. This was not the case, in this case, the plaintiffs have failed to comply with the procedural legal requirements under Order 22 Rule 60 (3) & (4) of the National Court Rules.
    
38. Consequently, the application by the plaintiffs in respect to both maters to wit: - WS. 850 of 2010 and OS. No 587 of 2007 (OS. NO 433 of 2008) to set aside the Certificate of Taxation issued by Taxing Officer on 24th June 2013 and seek further orders to be reviewed by a Judge or remitted the itemised bill of costs to the Registry for retaxing by the Taxing Officer are hereby refused in their entirety.
    
39. The costs of and incidental to this applications to wit: - WS. 850 of 2010 and OS. No 587 of 2007 (OS. No. 433 of 2008) shall be paid by the plaintiffs' to the defendants.
    

______________________________________________________
Nelson Lawyers: Lawyer for the Plaintiff
Jackson Gah & Associates Lawyers: Lawyer for the Defendants