Kumbu v Mann [2018] PGNC 50; N7126 (27 February 2018)

N7126

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 8 OF 2009

BETWEEN
JACOB SANGA KUMBU
Plaintiff

AND
DR NICHOLAS MANN AS CHAIRMAN REPRESENTING THE UPNG COUNCIL APPEAL COMMITTEE MEMBERS
First Defendant

AND
THE UNIVERSITY OF PAPUA NEW GUINEA
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2016: 6^th February
2018: 27^th February

COSTS – Review of taxed costs – Grounds of – Costs unreasonably and unnecessarily incurred – Excessiveness of costs – Counsel’s costs – Costs for appearance in Court including “waiting time” – “Waiting time” defined – The one-sixth rule – Application of – Costs taxed off more than one-sixth of total costs claimed – Costs of preparation bill and attendance at taxation disallowed – National Court Rules – Order 22, rules 34, 35, 44 & 45 – Schedule 2
Cases cited:
Papua New Guinea cases

Pius Sankin v. Papua New Guinea Electricity Commission (2002) N2257
Canisius Karingu v. PNG Law Society (2001) SC674
PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288
Napoleon Canonizado v. Kapu Rageau (2011) N4387
Bank of South Pacific Ltd v. Thomas Serowa (2014) SC1373
Tolom Abai & Ors v. The State (1998) N1762

Overseas cases

EMI Records Ltd v. Ian Cameron Wallace Ltd [1982] 2 All ER 980

Counsel:
Plaintiff, in person
Mr. C. Joseph, for First and Second Defendants
No appearance, for Third Defendant

RULING ON REVIEW OF TAXED COSTS

27^th February, 2018

1. MAKAIL, J: The plaintiff was awarded cost on solicitor-client basis on 14^th September 2012. On 4^th July 2014 he lodged an amended bill of costs in the total sum of K K5,505,174.40 with the National Court for taxing. After taxation, on 14^th April 2015 a sum of K1,165,009.00 was certified as his taxed solicitor-client costs. He and the first and second defendants each apply to review the Taxing Officer’s assessment of the taxed costs.

Background Facts

2. The plaintiff was a law student at the University of Papua New Guinea (UPNG) and firstly suspended and finally excluded from the final year of studies.

3. He sought judicial review of the decision to remove him as a student at UPNG. On 20^th July 2012 Cannings J granted the relief sought by the plaintiff, the effect of which was that he was reinstated as a student at UPNG. He conducted the proceeding in person.

4. On 14^th September 2012 Cannings J ordered costs in this proceeding in favour of the plaintiff on a solicitor-client basis.

5. On 28^th April 2015 the first and second defendants filed a notice of motion seeking review of the certified costs by the Taxing Officer on the grounds that it is excessive and unreasonable.

6. On the same date (28^th April 2015) the plaintiff filed his notice of motion seeking review of the certified costs on the grounds that it was excessively and unreasonably reduced by the Taxing Officer.

Preliminary Objection

7. At paras. 2.17 to 2.24 of his written submission, the plaintiff objected to the competency of the first and second defendants’ notice of motion filed on 28^th April 2015. The objection is based on a purported “barring” of the first and second defendants’ former lawyers by the Supreme Court in a related proceedings before that Court from acting for the first and second defendants. The former lawyers were Kamen Lawyers.

8. The plaintiff asserted that by reason of their “barring”, the notice of motion filed by that law firm seeking to review the decision of the Taxing Officer is void and should be dismissed.

9. But the first and second defendants’ submission must be upheld. The objection is misconceived. It has been decided by Nablu J on 20^th July 2015 after the first and second defendants’ current lawyers opposed the plaintiff’s notice of motion filed on 17^th June 2015 raising this issue. The plaintiff’s notice of motion was dismissed with costs. It follows that the issue has been determined and is res judicata. It is also an abuse of process. It is dismissed as being an abuse of process.

Principles of Governing Assessment of Taxed Costs
10. There is no contest to the principles governing assessment of taxed costs. Solicitor-Client costs are governed by Order 22, rules 34 and 35 of the National Court Rules.

11. In their respective written submissions, both parties referred to the case of Pius Sankin v. Papua New Guinea Electricity Commission (2002) N2257 on taxation of costs on a solicitor/client costs. All costs are allowed unless they are unreasonable or that even if they are unreasonable, the client approved the amounts claimed.

12. An order for costs is not for the party to make a profit but to recover costs incurred in either prosecuting or defending a legal proceeding. Costs comprise payment of proper remuneration by a client to a lawyer for legal work performed by lawyer to the client. It includes disbursements. All the costs must be necessarily and reasonably incurred in the course of his employment. For disbursements, there must be proof by way of invoices rendered and receipts of payments. Finally, a non-lawyer is entitled to reasonable costs unless the Court otherwise orders.

13. These principles have been applied in the cases of Canisius Karingu v. PNG Law Society (2001) SC674; PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288; Napoleon Canonizado v. Kapu Rageau (2011) N4387 and Bank of South Pacific Ltd v. Thomas Serowa (2014) SC1373.

14. More closer to the costs under consideration, in Tolom Abai & Ors v. The State (1998) N1762, Woods J also considered the authority of a Taxing Officer in considering the concept of “reasonableness” and discussed various principles as to indemnity costs. These included (at page 9):

(a) A client cannot agree to unreasonable costs where the client knows a third party is paying those costs.

(b) A lawyer cannot charge a client for work is useless.

(c) A lawyer is expected to have a reasonable knowledge of his work and cannot charge for learning his own business.

(d) The allowance of time spent and charge out rate of a lawyer is also to cover the general expenses of running an office.

(e) All costs are to be allowed but this is to be regulated by the principle of material evidence to support the costs and reasonableness.

15. In Tolom Abai (supra), the lawyers for the applicants put together Bills of Costs which could not be substantiated by evidence and seemingly sought to profit from the knowledge that the State had agreed to pay the costs on an indemnity basis.

16. UK authorities establish that the main principle is that all costs incurred will be allowed, except any which have been unreasonably incurred or are of an unreasonable amount: see EMI Records Ltd v. Ian Cameron Wallace Ltd [1982] 2 All ER 980.

17. I adopt and apply these principles to this case.

First and Second Defendants’ Grounds of Objection

18. The first and second defendants relied on the following grounds of objections:

(a) The Taxing Officer allowed excessive amounts claimed by the plaintiff on various items.

(b) The Taxing Officer failed to tax off excessive amounts claimed by the plaintiff on various items.

(c) The Taxing Officer failed to disallow excessive amounts of time spent by the plaintiff on various items.

19. The plaintiff did not file any objection which would set out the grounds of objection.

Parties’ Submissions

20. The gist of the first and second defendants’ submission is that most of the costs allowed by the Taxing Officer were unreasonable or excessive. They gave two reasons for this proposition; one that the plaintiff prosecuted the proceedings in person and was not a lawyer; he was a law student. Costs allowed must be commensurate to the work of an experience lawyer. For this reason, while he is entitled to costs, it must be reasonable and a reasonable hourly rate would be one charged by a junior lawyer.

21. The other is, it was an uncomplicated judicial review proceeding regarding the suspension and termination of the plaintiff from studies at the University on disciplinary grounds. It did not require special skills to be applied to prosecute it nor a complex and new area of law and principles to be considered and applied. Thus, less time and preparation was required to prosecute it.

22. As for the plaintiff, he focused on the decision of the trial judge and the reasons for upholding the judicial review proceedings and emphasised that the first and second defendants were wrong all along and should be blamed squarely for his predicament. For this reason, they should pay a higher price in terms of costs. Secondly, it was a test case because no student before him had successfully challenged the disciplinary authority of the University in Court. Finally despite proposing settlement of the dispute to the University, it failed.

23. The plaintiff initially claimed a charge out rate of K2,000.00 per hour. The Taxing Officer allowed K350.00 per hour. The first and second defendants submitted that given that the plaintiff is not a lawyer but an undergraduate at the material time, K350.00 exceeds a junior lawyer’s rate of K250.00 per hour. A rate of K100.00 per hour is reasonable and should be applied.

24. The plaintiff seemed to suggest at [3.2(i)] of his written submission that there is no discretion conferred on a Taxing Officer to reduce a charge out rate of costs in a solicitor/client costs under Order 22, rules 34 and 35 of the National Court Rules.

25. In other words, the Taxing Officer is bound by the rate charged by the lawyer and approved by the client. In this case, as a self-represented litigant, he approved for himself a hourly charge out rate of K2,000.00 and this is the rate the Taxing Officer should have applied. The Court should apply this rate to review the costs.

26. I am of the view that, regardless of the type of cost order, a Taxing Officer is guided by the prescribed scale of costs in Schedule 2 of the National Court Rules and may apply different rates for each item or work performed by the lawyer subject to, amongst other things, that the costs are necessarily or reasonably incurred in connection to the legal proceedings.

27. In this case, it was within the discretion of the Taxing Officer to apply the rate of K350.00 per hour. But accepting the defence submission that the plaintiff is not a lawyer and that he was an undergraduate at the material time, K350.00 exceeds a junior lawyer’s rate of K250.00 per hour. Given this, reducing the rate of K350.00 per hour by K100.00 to a rate of K250.00 per hour is, in my view, reasonable. Subject to further rates, this will be standard rate applied in reviewing the costs.

28. Secondly, both sides are seeking review of the taxed costs. The general principle is that the assessment and allowance made by the Taxing Officer is reasonable unless either of them can show that the costs allowed for each item or activity was unnecessarily or unreasonably incurred or excessive or vice versa.

29. Ultimately, the costs claimed and sum allowed in each review case must be considered on its own merits taking into account, amongst other things, the complexity of the issues involved and experience of lawyers. The onus is on each party to establish them.

Assessment of Taxed Costs

30. The application is supported by an objection filed on 23^rd December 2016. The objection sets out the grounds of objection to the Taxing Officer’s assessment and allowance of costs in his decision of 14^th April 2015.

31. Turning to the items objected to by the defence and, those objected by the plaintiff and taking into account their respective submissions, the following are the findings of the Court.

Part 1 – Preparation of Documents including filing and service (Items 1 to 57 inclusive)

32. The costs for preparation of documents, the plaintiff claimed a total sum of K2,395.00. For the disbursements including the filing fee of K50.00, the plaintiff claimed a total sum of K42,095.00.

33. It is unclear if the Taxing Officer considered these costs in his decision but one thing is certain, the defence objected to the costs allowed for the disbursements on the grounds that the costs of photocopy of K6.00 per page should be reduced to K1.00 per page for printing and 0.30t per page for photocopies. Overall, it does not object to the costs being claimed.

34. Going through the costs item by item can be a tedious task to work out the costs of printing and photocopy for each document prepared by the plaintiff. There is no doubt that a large body of documentation was prepared for the case, whether they were necessary and relevant must be taken into account in assessing the costs.

35. In addition, the costs of preparing, printing, photocopying and filing the Bill of Costs and Amended Bill of Costs in Items 55 to 57 are disallowed under the one-sixth rule under Order 22, rule 56 of the National Court Rules. Thus, striking a balance between the amount claimed by the plaintiff and the defence objection, a sum of K30,000.00 will be allowed for disbursements. In addition, the sum of K2,395.00 is allowed for costs of preparation.

36. Total sum allowed under this Part is K32,395.00.

Part 2 – Block allowance for preparation of documents

37. Nil

Part 3 – Counsel’s Fees

Pre-Trial Fees (Items 58 to 124 inclusive)

38. The Taxing Officer allowed a total sum of K444,300.00 for work performed by the plaintiff under Items 58 to 124. The defence objected on the ground that the sum allowed is excessive and unreasonable.

39. The defence submission is upheld. The time of four hours spent for each Court attendance in Items 58 to 124 inclusive is excessive and unreasonable. The application for leave to apply for judicial review and other interlocutory applications, including directions hearing and adjournments should be 30 minutes and a further 1 hour to cater for “waiting time”.

40. A “waiting time” is a term given to describe the time spent by counsel or lawyers waiting to be heard by a Judge. This is because there is more than one case listed before a Judge on any given day. It is commonly experienced in “Motions Hearings”, “Directions Hearing” and “Pre-Trial Hearings”. For this reasons, it is unreasonable to charge a client for just waiting around to be heard. A concession is made by deducting some time to cater for the actual hearing time in the form of “waiting time”.

41. The hearing of the actual application for leave took place on 3^rd February 2009 as per Item 58. For this, 2 hours will be applied to cater for hearing and “waiting time” at K250.00 per hour which gives K375.00. For Item 58, a sum of K375.00 is allowed.

42. Secondly, the defence objection to costs claimed in Items 63, 64, 65, 66, 67 and 68 is upheld. These costs are in relation to an application by the plaintiff to amend the Originating Summons and also Item 93 which relates to an application by the plaintiff to further amend the Originating Summons. That application was refused. Despite this, the Taxing Officer allowed:

• Item 63 for 4 hours – K1,400.00.
• Item 64 for 4 hours – K1,400.00.
• Item 65 for 4 hours – K1,400.00.
• Item 66 for 4 hours – K1,400.00.
• Item 67 for 4 hours – K1,400.00.
• Item 68 for 4 hours – K1,400.00.
• Item 93 for 4 hours – K1,400.00.
  

Total – K9,800.00

43. The defence submission is upheld. The plaintiff is disentitled to these costs. The sum of K9,800.00 for Items 63, 64, 65, 66, 67, 68 and 93 is disallowed.

44. The rest of the Court appearances were to do with pre-trial preparations such as settlement of an index to the Review Book and preparation of the Review Book including listing of matter for trial and post-trial matters such as receiving final judgment and application for costs. It is unreasonable and further, excessive to charge a client more than an hour for attending Court when parties should be able to sort out pre-trial matters with minimal Court supervision hence less cost to the client. Taking a deferred judgment should take no more than an hour. It is for these reasons that a reasonable time allowable should be 1 hour 30 minutes for Court appearances to attend to pre-trial and post-trial matters.

45. Excluding Items 63, 64, 65, 66, 67, and 68 (see reason at [42] and [43] above), there were 45 Court appearances between Items 59 and 62, 69 and 92, 94 and 110. Then there were 12 Court appearances between Items 112 and 123. This gives a total of 57 Court appearances. Applying 1 hour and 30 minutes for 57 Court appearances at K250.00 per hour for these items gives K14,250.00. The sum of K14,250.00 is allowed for Items 59 to 62, 69 to 92, 94 to 110 and 112 to 123.

46. Thirdly, the hearing of the application for judicial review which is the substantive matter should be three hours and 30 minutes if it is a half day hearing. This is Item 111. Applying 3 hours and 30 minutes at K250.00 per hour gives K875.00. For Item 111, a sum of K875.00 is allowed.

47. Finally, for Item 124, the plaintiff claimed 40 hours for unaccounted time spent on attendances due to inadvertence on his part for lack of particulars for a period of 4 years and submitted that the first and second defendants should be able to produce evidence of their records of time keeping verifying each Court appearance.
48. The plaintiff’s submission is untenable. He bears the onus of proving his claim for cost for each item or activity. If he is unable to be precise about the time he appeared in Court, then he is disentitled to the cost. In any case, the costs were not for actual Court appearance before a Judge but attendance at the Registry due to the case not been listed. Thus, the sum of K14,000.00 allowed by the Taxing Officer is disallowed.

49. The total sum allowed under this Part is K15,500.00.

Part 4 – Travelling expenses

50. The Taxing Officer allowed costs of travel to Madang under Items 125 to 130 inclusive. The defence do not object to costs of airfares to Madang of K968.40. This sum is, therefore, allowed. However, it objected to the rest of the costs allowed by the Taxing Officer on the ground that they were unnecessarily incurred.

51. The objection is upheld. The hearing at Madang National Court was on 7^th September 2012. It was a hearing on the question of costs arising from the judicial review proceedings, whether the first and second respondent should be ordered to pay costs on solicitor-client basis. The Plaintiff claimed costs for seven days in Madang.

52. There is no evidence to justify the decision to allow costs for seven days. For example, there is no evidence that the plaintiff had to spend seven days to locate and interview witnesses in Madang, draft, settle and file affidavits for witnesses prior to the hearing and do research and prepare submissions for hearing. He also gave no explanation in his affidavit for incurring these costs.

53. On the other hand, there appears to be no dispute that the hearing was completed on 7^th September but the plaintiff stayed on until 13^th September. In the absence of any evidence to the contrary, the costs incurred after 7^th September are unreasonable and unnecessary. In any case, an application for costs should not take the entire week to travel to and return from Madang. The same reasons apply to costs of accommodation and hire of a motor-vehicle.

54. However, the defence made concession for one day to travel to Madang before the hearing and return to Port Moresby in the afternoon of the next day after the hearing. This submission is upheld. Accordingly, in addition to airfares of K968.40, the plaintiff is allowed accommodation costs at K150.00 x 2 days, breakfast costs at K15.00 x 2 days, lunch costs at K25.00 and dinner costs at K35.00 x 2 days. Total sum is K450.00.

55. There is no evidence that the plaintiff hired a motor-vehicle at K800.00 per day because there is no invoice from the service provider and receipt of payment produced by the plaintiff to prove this claim. It is disallowed.

56. Cost of airfares is allowed at K968.40. Total costs of accommodation and meals are allowed at K450.00.

Part 4. 7(3) – Transport fee

57. The defence objected to costs allowed under Items 131 to 133. The Taxing Officer allowed K2,520.00 for 126 trips at K20.00 per trip for costs of travel to deliver letters enclosing court documents on the defendants’ lawyers under Item 131.

58. The defence submitted that this item is vague and not properly itemised to enable it to object. In the alternative, costs should be allowed for 96 trips at K20.00 per trip if the plaintiff is able to produce copies of the letters. In the further alternative, costs should be allowed for 40 trips at K20.00 per trip in the sum of K800.00.

59. The plaintiff maintained that costs were necessarily and reasonably incurred under this item. The first and second defendants’ former lawyers (Niugini Legal Practice) will confirm the list of letters delivered to them.

60. Both parties’ grounds for and against the costs allowed under this item is misconceived. Further, the Taxing Officer made an error in allowing costs under this item. This is because costs incurred under this item are for costs of counsel to travel from the town where he practices to appear in Court and includes fees, costs and expenses of overseas counsel certified by the trial judge. They are costs for airfares and accommodation (reasonable hotel expenses) which the plaintiff has already claimed under Part 4. This is a duplication of the claim.

61. Finally, the costs for travel to deliver letters to the first and second defendants’ lawyers are not counsels’ costs for attending court. Costs for Item 131 are disallowed.

62. In relation to Item 132, the Taxing Officer allowed K1,740.00 for 87 trips at K20.00 per trip for costs of travel to Court over a four year period. The defence objected to the costs allowed under this item for the same reason as above. For the same reason given above, costs for Item 132 are disallowed.

63. As to Item 133, the Taxing Officer allowed K2,000.00 for 100 trips at K20.00 per trip for costs of travel to do searches of Court file over a period of four years. The defence objected to the costs allowed under this item for the same reason as above. For the same reason given above, costs for Item 133 are disallowed.

Part 5.9 – Attendances

64. The defence objected to costs allowed under Items 134 to 136. The Taxing Officer allowed K7,000.00 for 20 hours at K350.00 per hour for costs of consultation and meeting with seven witnesses under Item 134.

65. The defence submitted that costs incurred and allowed by the Taxing Officer under Item 134 is a duplication of costs under Items 138 to 145 inclusive, regarding all the plaintiff’s attendances on deponents and preparing their affidavits.

66. The defence is correct in objecting to costs allowed by the Taxing Officer under Item 134. However, its reason for objecting is incorrect. The costs incurred under this Part are for counsel who is a lawyer who practices solely as a barrister. In this case, the plaintiff was not a lawyer and did not practice solely as a barrister to be entitled to claim costs under this item. The sum of K7,000.00 is disallowed.

67. As to costs under Item 135, the Taxing Officer allowed K3,500.00 for 10 hours at K350.00 per hour for costs for conferences with Ms. Christine Lari of Niugini Legal Practice on separate occasions between 2009 and 2011 to settle the Statement of Agreed and Disputed Facts and Index to Review Book.

68. The defence objected to the costs under this item on the ground that they were unnecessarily incurred. It submitted that the usual practice is to deliver the draft documents to the other party’s lawyers for them to review and endorse.

69. The objection is upheld but not for the reason submitted by the defence. The true reason is that costs incurred are for counsel who practices solely as a barrister. In this case, the plaintiff was not a lawyer practising as a barrister or conferring with his counsel. He was conferring with counsel for the opposing party, the first and second defendants. The sum of K3,500.00 allowed by the Taxing Officer is misconceived and disallowed.

70. In relation to costs under Item 136, the Taxing Officer allowed K17,500.00 for 50 hours at K350.00 per trip for conferences and consultations with lawyers like Robbie Yansion, former UPNG Lecturer, Robert Leo of Leo Lawyers, Jeffery Abone of Parkil Lawyers etc,.. on issues relating to the proceedings between 2009 and 2012.

71. The defence submitted that this item is vague and not properly itemised to enable it to object.

72. The objection is upheld but not for the reason submitted by the defence. The true reason is that, costs incurred under this Part are for counsel who practices solely as a barrister. In this case, at the relevant time, the plaintiff was not a lawyer who practiced solely as a barrister to be entitled to claim costs under this item.

73. In any event, if the plaintiff prosecuted the judicial review proceedings in person, any costs incurred for conference and consultation with lawyers should be disallowed because he chose not to engage a lawyer to represent him. Otherwise, he should have engaged one or all of them to represent him in the first place. Then the lawyer can claim costs under this Part. The sum of K17,500.00 allowed by the Taxing Officer is misconceived and disallowed.

Part 7 – Preparation for Trial

74. In relation to Item 137, the first and second defendants’ submission is upheld. The plaintiff claimed that he took 50 hours to review the affidavits and other court documents in preparation for the hearing of the application for judicial review. If he took six hours per day (the usual billable hours per day of a law firm) to prepare for trial, this means he had taken 8 days to review affidavits and other documents for trial.

75. This is excessive. Several hours should be sufficient. He should have taken six hours per day for two days which will add up to 12 hours. Accordingly, the defence submission that the plaintiff should be allowed 12 hours for Item 137 is upheld. For 12 hours at K250.00 per hour gives a sum of K3,000.00. K3,000.00 is allowed for Item 137.

76. In relation to Items 138 to 145, the first and second defendants’ submission that the plaintiff claims that he spent five hours for each item to interview and prepare their affidavits is excessive is upheld. The plaintiff should be allowed 2 hours for each of the item, that is, 1 hour for interviewing the respective witnesses and another 1 hour to prepare and settle their respective affidavits.

77. For 2 hours at K250.00 per hour is K500.00 per witness. For 8 witnesses at K500.00 per witness gives K4,000.00. For Items 138 to 145, K4,000.00 is allowed.

78. In relation to Item 146, the defence submitted that the plaintiff claimed that he took 200 hours to consider relevant legislation and text books. That is, if the plaintiff took six hours per day (the usual billable hours per day of a law firm), this means he took 33 days. This is excessive and unreasonable. Several hours should be sufficient. He should have taken 6 hours per day for two days which will add up to 12 hours. These submissions are upheld.

79. In addition, contrary to the plaintiff’s submission that there are no case precedents, thus more time was needed to conduct research to prepare for trial, there are. Those cases were cited by Cannings, J in the judgment upholding the plaintiff’s application for judicial review.

80. They are Kely Kerua v. Council Appeal Committee of the University of Papua New Guinea (2004) N2534, Peter Kama v. Council Appeal Committee of the University of Papua New Guinea (2010) N38294 and Karen Mek v. Mann, UPNG & The State: OS (JR) No. 392 of 2009 (Unnumbered & Unreported Judgment of 17^th January 2011). Those cases should have provided the plaintiff with sufficient information in relation to disciplinary proceedings by the University and grounds to sustain the judicial review proceedings.

81. Accordingly, the plaintiff should be allowed 12 hours for Item 146. For 12 hours at K250.00 per hour is K3,000.00. K3,000.00 is allowed for Item 146.

81. In relation to Item 147, the plaintiff claimed that he took 100 hours to research the provisions of the National Court Rules and case law regarding principles regarding applications for Judicial Review. That is, if the plaintiff took six hours per day (the usual billable hours per day of a law firm, this means he took about 17 days. The Taxing Officer allowed K35,000.00 at a rate of K350.00 per hour. The first and second defendants’ submission that this amount is excessive and unreasonable is upheld. Again, several hours should be sufficient. He should have taken 6 hours per day for two days which will add up to 12 hours.

83. With due respect to the plaintiff, it should be added that an experienced lawyer practising in the area of judicial review and administrative law would be able to prepare documents required by the National Court Rules not more than 100 hours. Where the plaintiff is yet to reach and gain that level of expertise, it is quite unfair and unreasonable to pass on the costs incurred in what would be appropriately described as “educating oneself” on the law, practice and procedure to the opposing party to pay. And realistically, no client would readily pay a lawyer’s bill for this: see Tolom Abai case (supra).

84. For these reasons, a reasonable time would be around 12 hours to undertake this activity. The plaintiff should be allowed 12 hours for Item 147. For 12 hours at K250.00 per hour is K3,000.00. K3,000.00 is allowed for Item 147.

85. In relation to Item 148, the plaintiff claims that he took 200 hours to research case law and photocopying the relevant case law. The defence submitted that this item is a duplication of Item 147 above regarding research on case law. The item should be disallowed, alternatively, 1 hour should be allowed for attendance to photocopying case at K25.00 per hour as this work is usually done by secretaries. The time allowed for the plaintiff of 200 hours at the charge out rate of K350.00 per hour is unreasonable and excessive.

86. The alternative submission is upheld. Applying the rate of K250.00 per hour for 1 hour is K250.00. K250.00 is allowed for Item 148.

87. In relation to Item 149, the plaintiff claimed that he took 100 hours in consultation time with lawyers in the period 2009 to 2012. For 100 hours, the Taxing Officer allowed K350.00 per hour at K35,000.00. The defence submitted that this item is a duplication of Item 136 regarding consultation times with lawyers in the period 2009 to 2012. This submission is upheld. Accordingly, costs for Item 149 are disallowed. In addition, the costs are rejected for the reason stated at [73] above.

88. In relation to Item 150, the Taxing Officer allowed K70,000.00 at a time spent of 200 hours for file searches, contested hearings, referral to Law Society and LTI between 2009 and 2012.

89. The defence objected to costs for this item on the ground that it is not properly itemised or particularised in terms of dates, time spent and details of searches. Hence, it is prejudiced as it is not able to properly object to it. Alternatively, costs should be allowed at 20 hours based on the clerk rate of K25.00 per hour.

90. It is quite unfair for the plaintiff to pass on the costs to a party liable to pay costs like the first and second defendants when an applicant like him has failed to give details of work done/activity, time spent and date of work/activity.

91. In this case, the costs claimed for this item are for searches. Generally searches are conducted by clerks and costs are calculated based on the applicable hourly rate of a clerk. From the searches, the clerks provide a report to the lawyer having conduct of the matter on the result of the searches. The nature of a search of the file varies depending on the reason for the search. It may be for a general or specific purpose but the task is generally performed by a clerk. The whole idea is to reduce costs for the client so that client does not end up paying an exorbitant amount for time spent by the lawyer doing searches.

92. The first and second defendants submitted the applicable hourly rate should be K25.00. The plaintiff does not contest this rate but submitted the rate should be based on the lawyers rate of K2,000.00 per hour.

93. To be fair to both parties, the defence alternative submission is upheld and applying a clerk’s rate of K25.00 per hour at 50 hours for a period of 4 years gives a sum of K1,250.00. For Item 150, K1,250.00 is allowed.

Part 7 – Letter out (Items 151-212 inclusive)

94. The Taxing Officer allowed costs at a rate of K350.00 per hour for Items 151 to 212 inclusive for preparing 63 letters. The defence submitted that the charge out rate should be K100.00 per hour. Secondly, the plaintiff claimed that he spent 3 hours to prepare each letter.

95. The defence submission that this is excessive is upheld. Unless, the plaintiff is able to show that the letters were contentious which he has not, drafting and settling a letter should not take more than 10 minutes, even a lengthy one would not take more than 30 minutes. As the plaintiff has failed to justify the costs incurred for these items, he should be allowed six minutes to prepare each of those 63 letters at a charge out rate of K100.00 per hour. The time allowed for the plaintiff of 3 hours just to prepare one letter and a charge out rate of K350.00 per hour allowed for the plaintiff are excessive and unreasonable.

96. K100.00 divided by 60 minutes gives K1.66 per minute. The cost of preparing a letter at K1.66 per minute by 6 minutes is K10.00. For preparing 63 letters at K10.00 per 6 minutes is K630.00.

97. The final sum allowed for preparing 63 letters is K630.00.

Part 7 – Letter in (Items 213 to 271 inclusive)

98. The Taxing Officer allowed costs at a rate of K350.00 per hour for Items 213 to 271 inclusive. The work undertaken under these items was perusal of 59 letters. The defence repeated their submissions that the charge out rate should be K100.00 per hour.

99. For each of the items (ie. Items 213-271 inclusive), the plaintiff claimed that he spent 30 minutes to pursue each of the letters he received. The defence submission is upheld. The cost allowed per item is excessive. The plaintiff should be allowed 2 minutes to peruse each of those 59 letters at a charge out rate of K100.00 per hour. The time allowed for the plaintiff of 30 minutes just to peruse one letter and a charge out rate of K175.00 per hour allowed for the plaintiff are excessive and unreasonable.

100. K100.00 divided by 60 minutes gives K1.66 per minute. The cost of perusing a letter at K1.66 per minute by 2 minutes is K3.33. For perusing 59 letters at K3.33 per 2 minutes is K196.47.

101. The final sum allowed for perusing 59 letters is K196.47.

Part 7 – Preparing, consideration etc of court documents (Items 272 to 339)

102. The Taxing Officer allowed 20 hours at K350.00 per hour in the total sum of K3,300.00 for Item 277. The plaintiff contended that he inadvertently claimed K4,000.00 at 20 hours for this item for preparing the main affidavit in support for the application for judicial review. The correct amount should have been K40,000.00. Thus, what should have been taxed off should have been K33,000.00 and K7,000.00 should have been allowed.

103. The first and second defendants submitted that K3,300.00 is unreasonable and excessive. The plaintiff should be allowed 2 hours to draft and settle the affidavit in support at K100.00 an hour in the total sum of K200.00.

104. It is the Court’s decision that given that time was spent on preparing the main affidavit for the plaintiff’s evidence at trial which included numerous annexures, a reasonable time is 5 hours at an hourly rate of K250.00. This gives a total sum of K1,250.00. For Item 277, a sum of K1,250.00 is allowed.

Part 7 – Preparing, consideration etc, of Court documents

105. The costs claimed in Items 272 to 276 and 278 to 339 are for preparing, considering etc, of Court documents.

• Item 272 – Preparation and settlement of Originating Summons for leave to apply for judicial review should not take 20 hours. Applying K250.00 per hour for 1 hour gives K250.00. This sum is allowed.
  
• Item 273 – Preparation and settlement of Notice of Motion for leave to apply for judicial review should also not take 10 hours. Applying K250.00 per hour for 1 hour gives K250.00. This sum is allowed.
  
• Item 274 – Preparation and settlement of Statement under Order 16, rule 3(2)(a) of the National Court Rules should also not take 10 hours. Applying K250.00 per hour for 3 hour gives K750.00. This sum is allowed.
  
• Item 275 – Preparation and settlement of Notice to Secretary for Justice under Order 16, rule 3(2)(a) of the National Court Rules should also not take 5 hours. Applying K250.00 per hour for 30 minutes gives K125.00. This sum is allowed.
  
• Item 276 – Preparation and settlement of Affidavit Verifying Facts under Order 16, rule 3(2)(b) of the National Court Rules should also not take 2 hours. Applying K250.00 per hour for 30 minutes gives K125.00. This sum is allowed.
  
• Item 277 – Preparation and settlement of Affidavit in Support of Plaintiff should also not take 20 hours. Applying K250.00 per hour for 5 hours gives K1,250.00. This sum is allowed.
  
• Item 278 – Preparation and settlement of Order granting leave to apply for judicial review should also not take 3 hours. Applying K250.00 per hour for 30 minutes gives K125.00. This sum is allowed.
  
• Item 279 – Preparation and settlement of Notice of Motion for substantive relief should also not take 5 hours. Applying K250.00 per hour for 1 hour gives K250.00. This sum is allowed.
  
• Item 280 – Contrary to the defence submission, this item (preparation and settlement of Affidavit of Aimos Joseph) is not a duplication of Item 138 because Item 138 is cost incurred for reviewing the affidavit before the trial. But it should not take 5 hours to prepare and settle the affidavit. Applying K250.00 per hour for 2 hours gives K500.00. This sum is allowed.
  
• Item 281 – For the reasons stated in Item 280 above, this item (preparation and settlement of Affidavit of Mamit Laisam) is not a duplication of Item 139. But it should not take 5 hours to prepare and settle the affidavit. Applying K250.00 per hour for 2 hours gives K500.00. This sum is allowed.
  
• Item 282 – Preparation and settlement of Supplementary Affidavit of plaintiff should not take 5 hours to prepare and settle. Applying K250.00 per hour for 2 hours gives K500.00. This sum is allowed.
  
• Item 283 – Preparation and settlement of Affidavit of Service should not take 2 hours to prepare and settle. Applying K250.00 per hour for 30 minutes gives K125.00. This sum is allowed.
  
• Item 284 – Preparation and settlement of Notice of Motion seeking to amend Originating Summons is disallowed because each party were ordered to bear own costs of the application to amend. The sum of K4,950.00 is disallowed.
  
• Item 285 – Preparation and settlement of Amended Originating Summons is disallowed for the reason stated in Item 284 above. The sum of K16,500.00 is disallowed.
  
• Item 286 – Preparation and settlement of Amended Notice of Motion is disallowed for the reason stated in Item 284 above. The sum of K8,250.00 is disallowed.
  
• Item 287 – For the reasons stated in Item 280 above, this item (preparation and settlement of Affidavit of Jack Lomai) is not a duplication of Item 145. But it should not take 4 hours to prepare and settle the affidavit. Applying K250.00 per hour for 2 hours gives K500.00. This sum is allowed.
  
• Item 288 – Preparation and settlement of Affidavit in Support of plaintiff to amend Originating Summons is disallowed for the reason stated in Item 284 above. The sum of K8,250.00 is disallowed.
  
• Item 289 – Preparation and settlement of Affidavit of Service to amend Originating Summons is disallowed for the reason stated in Item 284 above. The sum of K3,300.00 is disallowed.
  
• Item 290 – Preparation and settlement of Amended Statement under Order 16, rule 3(2)(a) of the National Court Rules is disallowed for the reason stated in Item 284 above. The sum of K8,250.00 is disallowed.
  
• Item 291 – Preparation and settlement of Affidavit in Reply is disallowed for the reason stated in Item 284 above. The sum of K16,500.00 is disallowed.
  
• Item 292 – Preparation and settlement of Order granting leave to amend Originating Summons is disallowed for the reason stated in Item 284 above. The sum of K2,950.00 is disallowed.
  
• Items 293 & 294 – Preparation and settlement of Notice of Motion and Affidavit in Support of Plaintiff seeking summary judgment is disallowed because the application was refused. The total sum of K24,750.00 is disallowed.
  
• Item 295 – Preparation and settlement of Affidavit of Service of application for summary judgment is disallowed for the reason stated in Items 293 and 294 above. The sum of K4,950.00 is disallowed.
  
• Items 296 & 297 – Preparation and settlement of Statement of Agreed and Disputed Facts is allowed. Applying K250.00 per hour for 3 hours gives K750.00. For these items, K750.00 is allowed.
  
• Items 298 & 299 – Preparation and settlement of Index to Review Book is allowed. Applying K250.00 per hour for 2 hours gives K500.00. This sum is allowed.
  
• Item 300 – Preparation and settlement of Review Book is allowed. Allowing for the time needed to go through a large body of documentation required for trial, 5 hours will be applied at K250.00 per hour which will give K1,250.00. This sum is allowed.
  
• Item 301 – Preparation and settlement of Notice of Motion to amend pleadings. The plaintiff should not be allowed costs to amend because the defaulting party is not the defendants. It should be him because he should have ensured in the first place that all information including evidence were in order before drafting and settling the pleadings for filing purposes. In any case, there is no evidence that he was awarded costs of the amendment. The costs of K8,250.00 is disallowed.
  
• Item 302 – Preparation and settlement of Affidavit in Support of plaintiff to amend pleadings. For the reasons stated in Item 301 above, the costs of K16,500.00 is disallowed.
  
• Item 303 – Preparation and settlement of Affidavit in Reply of plaintiff to amend pleadings. For the reasons stated in Item 301 above, the costs of K16,500.00 is disallowed.
  
• Items 304, 305 & 306 – Preparation and settlement of Notice of Motion and Affidavit in Support of plaintiff and Affidavit of Raymond Dikana (Appeals Clerk) to set aside an order dismissing the proceeding for the failure of the plaintiff to appear at the hearing date. Costs would have been incurred but for the plaintiff’s default. In any case, the file endorsement shows that on 15^th May 2012, Sawong J granted the plaintiff’s application to set aside the dismissal order with “EACH PARTY TO BEAR OWN COSTS”. For these reasons, the total sum of K70,950.00 is disallowed.
  
• Item 307 – Preparation and settlement of Affidavit of Allen Paniu to set aside an order dismissing the proceeding for the failure of the plaintiff to appear at the hearing date. For the reasons stated in Items 304 to 306 above, the costs of K4,950.00 is disallowed.
  
• Item 308 – Preparation and settlement of Notice of Trial under Order 10, rule 12 of the National Court Rules. This should not take long to prepare. Allowing 30 minutes at K250.00 per hour gives K125.00. For Item 308, K125.00 is allowed.
  
• Item 309 – Preparation and settlement of Affidavit of Service presumably for the Notice of Trial. Again, this should not take long to prepare. Allowing 30 minutes at K250.00 per hour gives K125.00. For Item 309, K125.00 is allowed.
  
• Items 310 & 311 – Preparation and settlement of Notice of Motion and Affidavit in Support of plaintiff for second application for summary judgment (refer to Item 293 for first application which was refused). The preparation of the application and costs incurred were unnecessary because quite apart from it being an abuse of process because there is no provision for summary judgment in judicial review proceedings, the application for judicial review was ready to be set down for trial. What the plaintiff should have done is to seek an early trial date and if the defence had been dilatory, it was upon him to apply for an expeditious trial. For Items 310 & 311, the total sum of K11,450 is disallowed.
  
• Item 312 – Preparation and settlement of written submission for trial. Contrary to the defence submission that this item is a duplication of Items 146, 147 & 148, it is not. Costs incurred will be allowed because this is for preparing and finalising the actual written submission as opposed to researching the law, perusal of case law and legislations under Items 146, 147 & 148. But 6 hours will be allowed at K250.00 per hour which will give K1,500.00. The reasons being that, it is an uncomplicated matter, no special skills were required, no new area of the law was required to be developed and an experienced lawyer in judicial review and administrative law would spend less time preparing a written submission. For Item 312, K1,500.00 is allowed.
  
• Item 313 – Preparation and settlement of Order granting judicial review should not take long to prepare. Allowing 30 minutes at K250.00 per hour gives K125.00. For Item 313, K125.00 is allowed.
  
• Item 314 – Preparation and settlement of Notice of Motion for costs on Solicitor-Client basis. Again, this should not take long to prepare. Allowing 30 minutes at K250.00 per hour gives K125.00. For Item 314, K125.00 is allowed.
  
• Item 315 – Preparation and settlement of Affidavit in Support for costs on Solicitor-Client basis. Again, this should not take 20 hours to prepare. This is unreasonable and excessive. Allowing 2 hours at K250.00 per hour gives K500.00. For Item 315, K500.00 is allowed.
  
• Item 316 – Preparation and settlement of Affidavit of Service for Notice of Motion for costs on Solicitor-Client basis. Again, this should not take 2 hours to prepare. Allowing 30 minutes at K250.00 per hour gives K125.00. For Item 316, K125.00 is allowed.
  
• Item 317 – Preparation and settlement of Order granting costs on Solicitor-Client basis should not take 2 hours to prepare. Allowing 30 minutes at K250.00 per hour gives K125.00. For Item 317, K125.00 is allowed.
  
• Items 318 to 324 inclusive – Preparation and settlement of Notice of Motion and Affidavit in Support of plaintiff for setting aside of a restraining Order obtained by the defence against the plaintiff from pursuing costs against them. The costs for these items are disallowed not for the reason submitted by the defence but according to the file endorsement, on 26^th October 2012, Cannings J refused the order sought by the plaintiff and “Costs of the motion shall be paid by the pl (plaintiff) to defs (defendants) on party- party basis to be taxed if not agreed.” As costs were awarded against the plaintiff, he is disentitled to costs of these items. Costs allowed in Items 318 to 324 are disallowed.
  
• Item 325 – Costs incurred in preparing, printing, photocopying, filing and perusal of draft consent directions from plaintiff to defendants are disallowed because they are not itemised and particularised in terms of work performed/activity, time spent and date of work performed/activity. For Item 325, K7,000.00 is disallowed.
  
• Item 326 – Perusal of Affidavit of John Dialla (58 pages). This should not take long to peruse. Allowing 2 hours at K250.00 per hour gives K500.00. For Item 326, K500.00 is allowed.
  
• Item 327 – Perusal of Affidavit of Jenifer Popat (70 pages). This should not take long to peruse. Allowing 2 hours at K250.00 per hour gives K500.00. For Item 327, K500.00 is allowed.
  
• Item 328 – Perusal of Affidavit of Dr. Nicholas Mann (22 pages). This should not take long to peruse. Allowing 2 hours at K250.00 per hour gives K500.00. For Item 328, K500.00 is allowed.
  
• Item 329 – Perusal of Affidavit of Michael Kupo (84 pages). This should not take long to peruse. Allowing 2 hours at K250.00 per hour gives K500.00. For Item 329, K500.00 is allowed.
  
• Item 330 – Perusal of Affidavit of John Kawi (41 pages). This should not take long to peruse. Allowing 2 hours at K250.00 per hour gives K500.00. For Item 330, K500.00 is allowed.
  
• Item 331 – Perusal of Affidavit of Maurice A. Laufa (3 pages). This should not take long to peruse. Allowing 30 minutes at K250.00 per hour gives K125.00. For Item 331, K125.00 is allowed.
  
• Item 332 – Perusal of Affidavit of Jenifer Popat. This should not take long to peruse. Allowing 1 hour at K250.00 per hour gives K250.00. For Item 332, K250.00 is allowed.
  
• Item 333 – Perusal of Affidavit of Jenifer Popat. This should not take long to peruse. Allowing 30 minutes at K250.00 per hour gives K125.00. For Item 333, K125.00 is allowed.
  
• Item 334 – Perusal and consideration of Review Book should take 1 hour because all the documents contained in the Review Book were perused and considered prior to its compilation. Thus, it should not take that long to peruse it. Allowing 1 hour at K250.00 per hour gives K250.00. For Item 334, K250.00 is allowed.
  
• Item 335 – Perusal of two Affidavits of Christine Lari presumably for restraining order against plaintiff. This should not take long to peruse. Allowing 1 hour at K250.00 per hour gives K250.00. For Item 335, K250.00 is allowed.
  
• Item 336 – Perusal of Notice of Motion by first and second defendants presumably for restraining order against plaintiff. This should not take long to peruse. Allowing 30 minutes at K250.00 per hour gives K125.00. For Item 336, K125.00 is allowed.
  
• Item 337 – Perusal of Affidavit of Milfred Karmi presumably for restraining order against plaintiff. This should not take long to peruse. Allowing 30 minutes at K250.00 per hour gives K125.00. For Item 337, K125.00 is allowed.
  
• Item 338 – Costs of perusal and consideration of all those other Affidavits and sundry hours that were inadvertently omitted are disallowed because they are vague and not properly itemised. For this reason, it is quite unfair to pass on the responsibility to the first and second defendants to pay for those costs. For Item 338, K14,000.00 is disallowed.
  
• Item 339 – Costs for transcript since 2009 are disallowed for the reason stated in Item 338 above. In addition, there is no explanation for incurring costs for this item. In any event, they are unnecessary and unreasonably incurred because the plaintiff should have been able to keep notes of each stage of the proceedings/hearings. Where he has defaulted, he should accept responsibility. For Item 339, K1,500.00 is disallowed.
  

106. The total sum allowed under Items 272 to 339 of Part 7 is K14,250.00

Part 9 – Taxation of costs (Items 340-342 inclusive)

107. The first and second defendants strongly objected to costs of taxation from Items 340 to 342 on the grounds that the plaintiff was allowed an excessive amount of K592,500.00 for preparing the bill of costs and attendance at taxation.

108. The objection is upheld. The costs for preparing the bill of costs and attendance at taxation are not covered under the costs order dated 14^th September 2012. However, as a matter of course, costs are incurred in preparing a bill of costs and attending taxation. The amount awarded varies and is depended on the amount of time spent in preparing it and attending taxation.

109. The first and second defendants submitted that an amount between K500.00 and K1,000.00 to prepare the bill of costs and attend at taxation. From this, the plaintiff should be allowed K1,000.00 to prepare and attend at taxation.

110. This is reasonable in circumstance where those costs are not covered under the costs Order dated 14^th September 2012.

111. Both parties have missed the application of the one-sixth rule. This rule is provided for under Order 22, rule 56 of the National Court Rules. Rule 56 states:

“56. Disallowance of fees for taxation. (52/56)

(1) Where a solicitor —

(a) fails to file his bill for taxation within the time fixed by or under this Order; or

(b) otherwise delays or impedes the taxation,

the solicitor shall not, unless the taxing officer otherwise orders, be allowed the fees to which, apart from this Sub-rule, he would be entitled for preparing his bill of costs and for attending the taxation.

(2) If, on the taxation of any costs, one-sixth or more of the amount of the bill for those costs is taxed off, the solicitor whose bill it is shall not be allowed the fees to which, apart from this Sub-rule, he would be entitled for preparing the bill and for attending the taxation.” (Emphasis added).

112. According to this rule, where on taxation of any costs, one-sixth or more of the amount of the bill of costs is taxed off, the costs of preparing the bill and attending the taxation will not be allowed.

113. One-sixth of K5,505,174.40 is K917,524.56. The amount allowed is K1,165,009.00. The difference between K5,505,174.40 and K1,165,009.00 is K4,340,165.40. The sum taxed off is K4,340,165.40. Based on this sum, it is clear more than one-sixth of the bill of costs has been taxed off. The Taxing Officer erred in awarding costs of taxation in a massive sum of K592,500.00. It is disallowed and no sum is awarded for costs of taxation.

Part 9 – Taxation of costs (Item 343)

114. Costs called for “Other billable hours” in future for lodgement of application for taxation of bill of costs etc, are disallowed on the grounds that, apart from being vague and lacked particulars, are speculative.

Other disbursements (Items 344 and 345)

115. Next, the Taxing Officer allowed a total sum of K8,000.00 for costs of “other disbursements” under Items 344 and 345 The defence objected to costs awarded for “other disbursements”. It submitted that the plaintiff has, however, failed to provide any particulars for this claim. In the circumstances he should only be allowed K1,000.00 to carter for “other disbursements.”

116. Apart from lack of particulars in relation to when and how those disbursements may have been incurred, and as disbursements must be strictly proved (see [9] above), there is no evidence to prove these disbursements. The sum of K8,000.00 is disallowed.

10% GST

117. Finally, the defence objected to the claim for 10% GST. It submitted that the plaintiff should not be allowed 10% GST. At paragraph 8 of his affidavit in support, the plaintiff asserted that the Taxing Officer erred in not awarding 10% GST. His decision is contrary to the decision of the Supreme Court which awarded 10% GST to him and the Taxing Officer is bound to follow the decision of the highest Court of the land.

118. This assertion by the plaintiff’ is misconceived because it is not suggested that the opposing party in that case objected to the claim of 10% GST and was overruled by the Taxing Officer. Then, on review, that ruling was overturned by the Supreme Court.

119. In this case, the first and second respondents have objected to the claim in this review, albeit it was disallowed by the Taxing Officer in the first instance. It follows that the Supreme Court decision which the plaintiff refers to is not relevant to this case.

120. On the other hand, the defence submission is upheld. The plaintiff represented himself in the proceeding. He is not engaged in a business to provide legal services nor has he engaged a law firm for its legal services to be entitled to claim a 10% GST.

121. Furthermore, there is no evidence that he paid a 10% GST to the government for these services that he rendered to himself in this proceeding to be entitled to claim a 10% GST from the first and second defendants. I agree with the defence that this is an attempt by the plaintiff to enrich himself and the claim for 10% GST is disallowed. Compare this case to Napoleon Canonizado (supra) where it was held that 10% GST is allowable to the lawyers because of legal services rendered to the client. Here, it does not apply because no lawyer was engaged.

Conclusion

122. The total sum allowed as Solicitor-Client costs for the plaintiff is K80,139.87.

123. Each party shall pay its own costs of the reviews.
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Ashurst Lawyers: Lawyers for First and Second Defendants