Wena v Independent State of Papua New Guinea [2016] PGNC 331; N6549 (10 November 2016)

N6549

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 663 OF 1994

BETWEEN:

JOHN WENA & 46 ORS
Plaintiff

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Mount Hagen: Poole, J

2016: 10^th November

REVIEW OF TAXATION OF COSTS- “Bill” not drawn to plead entitlement to payment – claims patently excessive and without proof of payment of disbursements – total absence of notations on Bill or any indication Taxing Officer did other than sign off on document presented to him – taxation clearly is a sham – Certificate of Taxation set aside – claimant to file fresh Bill drawn in accordance with Rules – file referred to Registrar for further action.

PNG Authorities
Jack Livanai Patterson v NCDC (N2145)
Phillip Mando v Lumusa Local Level Government Counsel (N1752))
Pius Sankin, Jimmy Lingau and James Numbunda v Papua New Guinea Electricity Commission (N2257)

Counsel:

In person (John Wena), for the Plaintiff
Mr Akai, for the Defendant

10^th November,2016

Background Facts

1. POOLE J: The defendant applies to have the Court Review the Taxing Officer’s taxation of the Bill of Costs in this matter and the Review has been delayed for some time because the file was highly disordered and some documents could not be found. Material on file, however, is now sufficient. The original Order granting costs was made by the National Court on the 1^st of December 2003 and the decision is also on file. The taxation order for costs was on a party party basis.

2. A document entitled “Plaintiff’s Bill of Costs” was prepared by the lead Plaintiff. It was a most unsatisfactory document apparently drawn with little or no regard to the rules. Indeed, after the original lawyer in this matter, Mr DL O’Connor ceased to act in WS 663 of 1994, the Plaintiffs have generally acted for themselves. Wall & Co filed an Order on the 19^th of August 2004 and appeared at trial for the Plaintiffs but apart from that there is no indication of lawyers’ involvement at all. All other documents and correspondence has apparently been prepared and filed by the lead Plaintiff, most of them in highly irregular form. Affidavits are not properly executed and contain far more hearsay an argument than admissible evidence.

3. The Plaintiff’s Bill of Costs, prepared by the lead Plaintiff and filed on the 19^th of December 2009, is not in the form required by the rules and even claims, in party and party costs, meals and accommodation.

4. I have perused with care the bill as taxed by the Taxing Officer on the 24^th of February 2010. The Taxing Officer made a few hand written notations on the back sheet of the bill and otherwise simply placed a “tick” on each page and signed and dated the last page. I note that, on the last page at the foot of the Bill, there appears a typed notation as follows:

“I have this day taxed within Bill of Costs and allowed the sum of at K507, 801.00.”

5. Above that notation, at the end of the Bill, the total, in an identical sum as that which was typed as been hand written and there is a tick beside it. That entry to which I have referred was clearly typed before the identical sum was written in the total column. In other words, the Taxing Officer signed off on what was presented to him without any alteration. The “taxing” was a sham.

6. The costs to be taxed were awarded on a party party basis – that is in accordance with sub-division “C” of Order 22 of the National Court Rules. This restricts costs to (Rule 24 (2)) “all such costs as are necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.” I note, the requirement that the costs must be “proper for the attainment of justice.”

7. There are no notations or reasons given for the Tax Officer’s decision and this, combined with the fact that Bill has presented was just signed off on indicates to me, and I am satisfied on the balance of probabilities, that he did not exercise any discretion whatsoever.

8. The rules are clear. Order 22 rule 49 requires a Bill of Costs to specify if the work concerned was done by a lawyer or a clerk and also requires particulars of disbursements made. In setting out the Bill, professional charges paid to lawyer and counsel must be entered in a separate column from other disbursements and, in relation both to professional charges and disbursements, the entry must state whether the sum has been paid or not paid. Except for proceedings under the Matrimonial Causes Act, all disbursements must be paid before the taxation is completed. (See as authorities on these aspects on taxation of Bills, Jack Livanai Patterson v NCDC (N2145) and Phillip Mando v Lumusa Local Level Government Counsel (N1752)). Proof of payment is to be shown at taxation by producing receipts.

9. I note and respectfully adopt the dictum in Pius Sankin, Jimmy Lingau and James Numbunda v Papua New Guinea Electricity Commission (N2257) that “an Order for Costs is not an Order for the party entitled to it to profit from. Instead, it is merely an Order for that party to recover what it may have been forced to incur on account of litigation to which the Order relates”. As was said in this judgment, it is necessary to prove the actual costs a claimant has paid or is liable to pay. The bills and correspondence must be produced. His Honour stated, “I consider this very important to show that the amounts claimed is in fact reimbursement of the cost the party entitled to has incurred either defending or prosecuting a claim.....and is not a claim for profiting at the expenses of the other party”.

10. To turn, now, to the “Bill” itself in this matter;

• The Plaintiff claims K50.00 for filing the proceedings. The scale of costs (schedule 2 table 1) allows a maximum of K45.00.
  

11. The Plaintiff claims, “legal and lawyers fees” (not as a disbursement of professional fee) K10, 000.00 – without notation as whether it is paid or not and, thereafter, lists 102 items in identical sums (such as “affidavit of John Wena – K45.00 and typing – K50.00”).

12. Preparing affidavits is allowed at K6.00 per page for the first 5 pages. Most affidavits in evidence on the file are 3 pages in length (including the back sheet) although some extend to 4. The affidavit of the valuer, Noah Kana, was 22 pages. Forty seven of the affidavits are grossly overcharged because the scale should be, for a 3 page affidavit, K18.00 and not K45.00.

13. The Bill falsely;

1. Claims K70, 500.00 for valuer’s fees when the fee was (by his invoice No. 4150 dated the 30^th March 2001) “valuation report of properties destroyed at Banlkago Village, Simbu Province” K4, 500.00.

14. Likewise the charges claimed for attendance of 47 witnesses for the Plaintiff is patently false. The judgment reveals that only 3 witnesses were called for the Plaintiff at trial and all other evidence was, by consent, affidavit evidence.

15. The Bill claims K84, 600.00 for a “Mr Wall of Wall Lawyers who represented us in trial charged us K18, 000.00 per claimant x 47 claimants.” The Order for Costs was on a party party basis and the fee allowed for counsel in a contested matter in excess of K50, 000.00 is K350.00 for the first day.

16. It is apparent that the “taxation” of the costs in this matter was a sham. The “Bill of Costs” is an attempt to extract large sums of money from the defendant without any evidentiary foundation and the Taxing Officer simply signed his name to the document presented to him claiming the sum he signed off for. He made no notation on the Bill itself. He did not alter a single item. He gave no reason for his decision and, in fact, failed to discharge his functions with respect to the taxation of costs in compliance with the Order.

17. In summary, having examined the documents on file with care and Reviewed the Bill, I am fully satisfied on the balance of probabilities and I find:

1. The Bill fails to properly plead any entitlement to the Costs claimed;
2. The Taxing Officer had no discretion to allow costs that have no foundation in the pleading of the Bill of Costs;
3. The Taxing Officer failed to give any reason for awarding any of the costs he signed off on and I am satisfied on the balance of probabilities that he made no effort to satisfy himself that the costs claimed were reasonable. He also failed to satisfy himself that disbursements and professional fees claimed had been paid.
   

18. Accordingly, in the exercise of my power under Order 22 rule 61 (2) of the National Court Rules I make the following Orders:

1. I Order that the certificate of taxation dated the 24^th of February 2010 be set aside in its entirety.
   
2. I direct that if the Plaintiffs wishes to claim Costs in accordance with the Order of the trial Judge they are to prepare or cause to be prepared a Bill of Costs in accordance with the form required and containing the particulars specified by the National Court Rules and file and serve such a Bill within 28 days of this Order.
   
3. I further direct this file be delivered to the Registrar of the National Court, Mr Ian Augerea, for him to examine and decide if any, and if so what, actions should be taken in relation to the actions and conduct of the Taxing Officer concerned, Mr Eric Kiso, the Plaintiff, John Aur Wena or any other person including, if he thinks fit, to refer the matter to police for investigation and prosecution.
   
4. I make no Orders as to costs of this review.

______________________________________________________
In person (John Wena): Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Defendant