Malele v Billie [2018] PGNC 516; N7628 (28 December 2018)

N7628

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NOS 22-25 OF 2014

JOACHIM MALELE, BEN MISREN,
JOHN BOSCO & MARK SOIPANG
Plaintiffs

V

ANTON BILLIE,
ASSISTANT COMMISSIONER OF POLICE, NEW GUINEA ISLANDS
First Defendant

JEFFREY VAKI, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2018: 10 October, 28 December

COSTS – application by party to taxation proceeding for review of decisions of taxing officer to certify costs – Nation al Court Rules, Order 22, Rule 60 (application for review of taxation); Order 22, Rule 61 (review).

A firm of lawyers that acted for the plaintiffs in four related civil proceedings was ordered to pay the taxed costs of the defendants. They were dissatisfied with the decision of the taxing officer to certify costs in the proceedings as K9,846.82 + K9,012.67 + K13,538.80 + K20,725.79 = K53,124.08. They applied by motion, in each proceeding, for review of the decision, the primary grounds of objection being that (a) they were not given the opportunity to make oral submissions to the taxing officer; (b) the taxing officer failed to take account of the similarities in the four proceedings and that they were progressed in the same manner; (c) the taxing officer failed to take account of the fact that the proceedings did not proceed to trial, yet allowed costs pertaining to preparation for a trial. The defendants opposed each application, arguing that the decision of the taxing officer in each proceeding was reasonable.

Held:

(1) In determining an application for review of taxed costs, the Court may exercise all the powers and discretions as are vested in the taxing officer. An application for review is a hearing de novo: a fresh hearing of the question of what costs should be certified. It is not an appeal against the taxing officer’s decision.

(2) In each proceeding the application for review was granted, the decision of the taxing officer was quashed and the Court decided that a certificate of taxed costs shall be deemed to be made under Order 22, Rule 59 of the National Court Rules in the sum of K9,000.00, a total of K36,000.00. The parties were ordered to bear their own costs of the applications.

Cases cited

The following cases are cited in the judgment:

Wesley Karl v Nationwide Microbank Ltd (2018) N7102
PNG Power Ltd v Raphael Gura (2018) N7101

REVIEW OF DECISIONS OF TAXING OFFICER

These were applications for review of decisions of the taxing officer to make a certificate of taxed costs.

Counsel

M Boas, for the Applicant
L A Nasu, for the First and Third Defendants

28^th December, 2018

1. CANNINGS J: Kuman Lawyers acted for the plaintiffs in four separate, related civil proceedings. In each proceeding the plaintiff was seeking damages for malicious prosecution and breaches of human rights allegedly committed by the first defendant, a senior member of the Police Force, in the course of a series of criminal investigations of the plaintiffs that led to them being arrested, charged and detained in connection with alleged misappropriation of Lihir Sustainable Development Program funds. They were each discharged by the District Court and their cases never proceeded to trial.

2. Each National Court proceeding was on 18 November 2015 summarily dismissed before trial due to Kuman Lawyers’ failure to comply with the Court’s pre-trial directions and for want of prosecution. Kuman Lawyers were ordered to pay the taxed costs of the first and third defendants.

3. On 30 July 2018 the taxing officer, Deputy National Court Registrar, Mr Samuel Ikiso, issued a certificate of taxed costs in each proceeding. Kuman Lawyers are dissatisfied with his decision to certify costs in the proceedings as K9,846.82 + K9,012.67 + K13,538.80 + K20,725.79 = K53,124.08. They applied by motion, in each proceeding, WS (HR) 22, 23, 24 and 25 of 2014, for review of the decision, the primary grounds of objection being that:

(a) they were not given the opportunity to make oral submissions to the taxing officer;

(b) the taxing officer failed to take account of the similarities in the four proceedings and that they were all progressed in the same manner;

(c) the taxing officer failed to take account of the fact that the proceedings did not proceed to trial, yet allowed costs pertaining to preparation for a trial.

4. The first and third defendants oppose each application, arguing that the decision of the taxing officer in each proceeding was reasonable.

5. Kuman Lawyers’ application for review in each proceeding is made by notice of motion under Order 22, Rule 60 (application for review of taxation) of the National Court Rules, which states:

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

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

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

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

6. In determining these applications the Court enjoys the powers of the taxing officer under Order 22, Rule 61 (review) of the National Court Rules, which provides:

(1) On the review, unless the Court for good reason otherwise directs

(a) no further evidence shall be received; and

(b) a party shall not raise any ground of objection not stated in the statement of objections delivered to the taxing officer.

(2) Subject to Sub-rule (1), on the review the Court may exercise all such powers and discretions as are vested in the taxing officer in relation to the subject matter of the application.

7. An application for review under Order 22, Rule 60 is a hearing de novo: a fresh hearing of the question of what costs should be certified. It is not an appeal against the taxing officer’s decision (PNG Power Ltd v Raphael Gura (2018) N7101, Wesley Karl v Nationwide Microbank Ltd (2018) N7102).

DETERMINATION

8. With those considerations in mind and having considered the submissions of Ms Nasu, of the Office of Solicitor-General for the first and third defendants, (to the effect that the amount of taxed costs should have been more than what was certified in each proceeding), I find, with one exception, merit in Mr Boas’s submissions. The exception relates to the complaint that Kuman Lawyers were not given the opportunity to be heard orally. I don’t think this was necessary in the circumstances as Kuman Lawyers had filed written objections and the first and third defendants had filed written replies. It was open to the taxing officer to decide how the taxation proceedings would be conducted. He clearly engaged in an active deliberation on the arguments of each side. There was no procedural unfairness.

9. I nonetheless grant the application for review in each proceeding. I consider, with respect, that the taxing officer failed to take account of the similarities in the four proceedings and that they were all progressed in the same manner, and this inevitably involved multiplication of similar documents. I see no justification for the costs certified for WS (HR) 25 of 2014 being more than double the amount certified for WS (HR) 22 of 2014. A lot of copying-and-pasting of documents inevitably took place. I also agree that the taxing officer appears to have not taken into account the fact that the proceedings did not proceed to trial, yet allowed costs pertaining to preparation for a trial.

10. I consider that the amount of costs certified in each proceeding should be the same. I fix that amount as K9,000.00.

ORDER

1. The application for review in each proceeding is granted.
   
2. The decision of the taxing officer and the certificate issued pursuant to that decision are, in each proceeding, quashed.
   
3. A certificate of taxed costs is deemed to be made under Order 22, Rule 59 of the National Court Rules, in each proceeding, in the sum of K9,000.00.
   
4. The parties will bear their own costs of the applications for review.
   

Judgment accordingly.
________________________________________________________________
Kuman Lawyers: Lawyers for the Applicant
Solicitor-General: Lawyer for the First & Third Defendants