Oil Search (PNG) Ltd v Upke [2018] PGNC 527; N7657 (20 March 2018)

N7657

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S. NO. 107 OF 2016

OIL SEARCH (PNG) LIMITED
Plaintiff

V

LEWIS UPKE and WILFRED UPEKE and members of Imawe Bogasi Clan
First Defendant

WOLOTOU LAND GROUP INCORPORATED
Second Defendant

IPIPOME HONGIRI, WAINOKOLU and KAPISAPI SUBCLANS of IMAWE BOGASI CLANS
Third Defendant

Waigani: Kariko, J
2018: 14^th & 20^th March

COSTS – review – application for extension of time to file review – relevant considerations –requirement for list of objections to show application for review has merits

Cases Cited:

John Kombra v Bernard Kipit (2009) N3756
Rueben Kaiulo v John Yaluma (2008) N3507
Wari Vele v Loani Henao (2014) N5884

Counsel:

Mrs E Noki, for the Plaintiff
Mr L Karri, for the Third Defendant

RULING

20^th March, 2018

1. KARIKO J: This is a motion by the plaintiff for extension of time to apply for a review of the taxed costs of the third defendant pursuant to Order.22 Rule.60 (2) National Court Rules.

Background

2. The costs of the proceeding were ordered in favour of the defendants and against the plaintiff.

3. The costs for the third defendant were duly taxed on 14^th November, 2017.

4. Records show that the plaintiff filed its application for review of the taxed costs on 5^th December, 2017. The plaintiff claims however that it actually lodged the application on 27^th November, 2017 but it was not endorsed then as the advice from registry staff was that the file was still with the taxing officer and not available.

5. When the plaintiff’s lawyer attempted to serve the application on Mr Karri the third defendant’s lawyer, Mr Karri refused service on the basis that the application had been filed out of time.

6. On realizing its predicament the plaintiff on 6^th March 2018 filed the present application.

The law

7. Pursuant to Order 22 Rule 60(1) a party aggrieved by the taxation of costs may apply to the Court to have the taxation reviewed. Rule 60(2) states that the application must be filed within 14 days of the taxing officer’s decision or such other time as is allowed by the Court. Under Rule 60(3), the applicant for the review shall give to the taxing officer the list of its objections, such to be delivered “at the time of making the application”.

8. The Court’s power to extend time under Order 22 Rule 60(2) is discretionary and shall be exercised according to proper principles.

9. In Wari Vele v Loani Henao (2014) N5884, I referred to the cases of Rueben Kaiulo v John Yaluma (2008) N3507 and John Kombra v Bernard Kipit (2009) N3756 and concluded from discussing those cases that “an application for extension of time may be granted if:

(1) There is a reasonable explanation why costs were taxed in the applicant’s absence (if the applicant did not attend the taxation);
(2) There is a reasonable explanation why the application was not filed within the prescribed 14 days period;
(3) There is a reasonable explanation for any delay in making the application;
(4) There are arguable grounds for the proposed review; and
(5) That the other party will not be prejudiced by the late application.”

10. In the present case, the parties attended taxation.

11. I am willing to accept that the plaintiff lodged its application for review in time. I note that in its lawyers’ letter of 29^th November, 2017 to the Registry Bradshaw Lawyers requested for the documents to be endorsed as filed on 27^th November, 2017 when eventually sealed. That letter is acknowledged as having been received at the Registry on 30^th November, 2017. I am also mindful that the Registry does not always seal documents on the day of lodgement, particularly when a court file is not immediately available.

12. When the plaintiff’s lawyers realized that the notice of motion was sealed on 5^th December, 2017 and therefore taken as having been filed out of time, they should have filed promptly for an extension of time. They waited nearly 3 months before doing so and they have not presented any reasonable explanation for the delay.

13. I am unable to express a view on whether the plaintiff has an arguable case for the review or that it has merits because the plaintiff has not delivered its list of objections to the taxation officer. The Court has no idea therefore as to what items of taxation are being objected to and the basis for the objections. The plaintiff instead relies on its objections it filed concerning the bill of costs. I reject that submission. The objections must be of the taxation as contemplated by Order 22 Rule 60(3).

Conclusions

14. In the circumstances, I dismiss this application for extension of time, with costs in favour of the third defendant.
__________________________________________________________
Bradshaw Lawyers: Lawyer for the Plaintiff
PNG Legal Services: Lawyer for the Third Defendant