Mambei v Yawari [2017] PGNC 259; N6950 (1 September 2017)

N6950

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP 73 of 2012

BETWEEN:

EMMANUEL SOLWAI MAMBEI
trading as SOLWAI LAWYERS

Applicant

AND:
JOHNNY J. YAWARI
on his own behalf and in his capacity as Chairman of Foe
Association Inc. and Managing Director of Kurao Limited,
Dam Limited and Digimu Limited and Attorney for the
Late Hami Yawari
First Respondent

AND:
FOE ASSOCIATION INC.
Second Respondent

AND:
KURAO LIMITED
Third Respondent

AND:
DAMO LIMITED
Fourth Respondent

AND:
DIGIMU LIMITED
Fifth Respondent

Waigani: Hartshorn J
2016: September 22^nd
2017: September 1^st

Application to strike out bill of costs

Cases Cited:
Papua New Guinea Cases

Boochani v. Independent State of Papua New Guinea (2017) SC1566
Bougainville Copper Ltd v. Commissioner General of Internal Revenue (2008) N3331
Florian Gubon v. Pacific Mobile Communications Ltd (2008) N3104
Herman Gawi v. PNG Ready Concrete (1983) unnumbered, unreported
Louis Medaing v. Ramu Nico Management (MCC) Limited (2011) SC1156
Onne Rageau v. Kina Finance Ltd (2015) N6175
Peter O’Neill v. Nerrie Eliakim (2016) SC1539

Overseas case

Watt (formerly Carter) v. Ashan [2007] UKHL 51

Legislations:

Lawyers Act, (1986)

Counsel:

Mr. I. P. Mambei, for the Applicant
Mr. S. Javati, for the Respondents

1^st September, 2017

1. HARTSHORN J: This is a decision on two contested notices of motion concerning the Applicant’s bill of costs. The bill of costs is purportedly dated 20^th of March 2012 (Bill of Costs), it was taxed in the amount of K1, 850,241.30 on 12^th October 2015 and the Registrar issued a certificate of taxation on 13^th October 2015 for that amount.

2. The Respondents seek, amongst others, to strike out the Bill of Costs or alternatively an extension of time to apply to review the taxation. The Applicant seeks that the taxed Bill of Costs be converted into a judgment. I consider the application to strike out the Bill of Costs first as if it is successful it will be determinative.

Striking out application

3. The Respondents seek to strike out the Bill of Costs pursuant to Order 12 Rule 1 National Court Rules and s. 155(4) Constitution on the grounds that it lacks form and fails to comply with s. 62(4)(a)(i) and (ii) Lawyers Act 1986.

Res judicata and issue estoppel considered

4. The Applicant submits that the Respondents are estopped from moving the various applications in their notice of motion by virtue of the doctrines of res judicata and issue estoppel. This is because on 17^th June 2016 this court refused the relief sought by the Respondents in an almost identical notice of motion.

5. Res judicata operates to prevent proceedings to enforce a cause of action when that cause of action between the same parties has already been determined by a decision on the merits by a court of competent jurisdiction.

6. For Res Judicata to apply the following six probanda must be established:

a) was the earlier decision a judicial decision?

b) was the judicial decision pronounced?

c) did the judicial tribunal have competent jurisdiction?

d) was the judicial decision final?

e) did the judicial decision involve a determination of the same question?

f) are the parties the same?

7. I refer to the cases of Herman Gawi v. PNG Ready Concrete (1983) unnumbered, unreported; Peter O’Neill v. Nerrie Eliakim (2016) SC1539;
Bougainville Copper Ltd v. Commissioner General of Internal Revenue (2008) N3331 and Onne Rageau v. Kina Finance Ltd (2015) N6175 in this regard.

8. In this instance, the previous decision was not a final decision and only determined that the application was incompetent as it did not contain any reference to the court’s jurisdiction to grant the relief sought. It did not determine the proceeding on its merits. The fourth and fifth probanda have not been satisfied.

9. As for issue estoppel, it arises:

“.... when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties: ...”

10. This was stated in the House of Lord’s case of Watt (formerly Carter) v. Ashan [2007] UKHL 51 at [31] per Lord Hoffman and was cited with approval in O’Neill v. Eliakim (supra). In this instance, no question of fact or law has been determined. All that has been determined was that the application was incompetent as it did not contain any reference to the court’s jurisdiction to grant the relief sought.

11. Consequently, the doctrines of Res Judicata and issue estoppel do not apply and so the submissions of the Applicant on these points are rejected.

12. For their strike out application, the Respondents rely upon Order 12 Rule 1 National Court Rules and s. 155(4) Constitution. As to the reliance upon s. 155(4) Constitution, I need do no more than reproduce the following passage from the joint decision of Salika DCJ and Hartshorn J in Boochani v. Independent State of Papua New Guinea (2017) SC1566 at [39]:

“As was stated in Louis Medaing v. Ramu Nico Management (MCC) Limited (2011) SC1156 at [10] – [12]:

“10. Section 155 (4) Constitution has been considered on numerous occasions by this Court. It has been interpreted as conferring jurisdiction on the court to issue facilitative orders, such as prerogative writs or an injunction, in aid of the enforcement of a primary right conferred by a law: SCR No 2 of 1981 [ 1981] PNGLR 150 at 150 and Ume More v. UPNG [1985] PNGLR 401 at 402.

11. Section 155 (4) is not however the source of any substantive rights, as stated by Kidu CJ in SCR No 2 of 1981 (supra):

“The provision under reference.... does not.... vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement.”

12. We also make reference to Powi v. Southern Highlands Provincial Government (2006) SC844 in which the Court, after giving detailed consideration to s. 155 (4) said that in its view, there are about five important features or attributes of that section. They are:

“1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make “such other orders as are necessary to do justice in the particular circumstances of each case” before the Court;

2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;

3. Where remedies are already provided for under other law, the provision does not apply;

4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number (sic) it is constituted, except as may be provided for by any law; and

5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.”

We respectfully agree with the views expressed in Powi (supra).””

13. In this instance, remedies are already provided for under other law. These include Order 12 Rule 40 National Court Rules. Consequently, the respondents are unable to rely upon s. 155(4) Constitution.

14. In regard to the Respondents’ reliance upon Order 12 Rule 1 National Court Rules, it is a general Rule. It does however, provide a jurisdictional basis pursuant to which this court may strike out the Bill of Costs. In the absence of any issue being taken by the Applicant as to the reliance upon Order 12 Rule 1, I do not consider further, whether the Respondents’ reliance upon the provision is appropriate.

15. As to the strike out application, the Respondents submit that the Bill of Costs does not comply with the mandatory requirements of s. 62(4)(a)(i) and (ii) Lawyers Act 1986 which are as follows:

“(4) The bill of costs shall—

(a) be signed—

(i) by the lawyer, or, if the costs are due to a firm, by one of the members of the firm, in his own name or in the name of the firm; or

(ii) for or on behalf of the lawyer, or if the costs are due to a firm, for or on behalf of the firm, by a lawyer employed by the lawyer or by the firm, as the case may be,

or be enclosed in, or accompanied by, a letter that is so signed and refers to the bill; ........”

16. Here, the Bill of Costs is not signed at all, “either by the lawyer, or, if the costs are due to a firm, by one of the members of the firm, in his own name or in the name of the firm.”

17. Further, there is no evidence of the Bill of Costs being signed, in compliance with any of the requirements of s. 62(4)(a)(ii). Counsel for the Applicant conceded that there is no evidence before the court of a signed Bill of Costs.

18. In Florian Gubon v. Pacific Mobile Communications Ltd (2008) N3104, Kandakasi J said as to sections 62 to 65 Lawyers Act the following at [8] and [9]:

“8. I now turn to a consideration of the second issue. There is unanimity in the case law concerning the requirements under Sections 62 to 65 of the Lawyers Act. I accept the defendant’s submission on the import (in part) of the case law on point that: (1) under s. 62 of the Act, and O. 22 r. 22 of the National Court Rules a bill of costs must always be in taxable form; (2) the lawyer must advise his client that the client can apply to have his costs taxed; (3) the bill of Costs must first be taxed if the client refuses to pay; (4) the lawyer can only then commence legal proceedings to recover his taxed costs; and (5) unless requirements (1) to (4) have been met, no cause of action accrues to a lawyer to sue for his costs against his client. These principles emerge clearly from a long line of cases, starting with Marsh v. Hayxxvi5 and ending with the Manu & Associates Lawyers case.xxvii6 The earlier case started to bring out these principles and the later ones adopted and applied them.

9. The above principles apply in cases where there are no agreement as between a client (s) and a lawyer in relation to his costs for the provision of his services.”

19. In this instance, the mandatory requirements of s. 62(4)(a)(i) and (ii) have not been complied with. Consequently, on the authority of Gubon v. Pacific Mobile (supra) and the cases referred to therein, no cause of action accrues to the Applicant to sue for his costs on the basis of the Bill of Costs. Further, the taxation and the certification should not have taken place.

20. The Applicant submits that the Respondents should not be able to seek the striking out of the Bill of Costs as there has been significant delay by them in making this application.

21. The response of the First Respondent is amongst others, that he was involved in attempting to be re-elected as the Chairman for the Second Respondent, and the associated court challenge, that for periods of time he was not the Chairman and therefore could not be sued as such, that he had no knowledge and therefore was unable to respond to the Bill of Costs as he was not involved with the Second Respondent’s affairs until after September 2011 and that the Applicant has never performed any work for the Third, Fourth and Fifth Respondent companies.

22. As to the Respondents response concerning the delay that has occurred in making their strike out application, whether or not their response is considered reasonable in the circumstances, it nevertheless remains the position that no cause of action has accrued to the Applicant to sue for his costs on the basis of the Bill of Costs because of the failure to comply with the mandatory requirements of s. 62(4) (a) (i) and (ii) Lawyers Act.

23. Consequently, I am satisfied from the above reasons that the Respondents are entitled to the relief that they seek in paragraph 2 of their notice of motion. Given this it is not necessary to consider the other submissions of counsel.

Orders

24. The Orders of the Court are:

a) The Applicant’s Bill of Costs filed on 19^th April 2012 and taxed on 12^th October 2015, and the Certificate of Taxation issued on 13^th October 2015 for the amount of K1,850,241.13 are struck out;

b) The Notice of Motion of the Applicant filed 21^st June 2016 is dismissed;

c) The Applicant shall pay the Respondents’ costs of and incidental to the Notice of Motion of the Respondents’ filed 15^th August 2016 and the Applicant’s Notice of Motion filed 21^st June 2016;

d) Time is abridged.

_____________________________________________________________
Solwai Lawyers : Lawyers for the Applicant
Javati Lawyers : Lawyers for the Respondents