Ipara v Walker [2018] PGNC 534; N7659 (20 April 2018)

N7659

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 474 OF 2015

KURUBU IPARA in his capacity as TRUSTEE AND CHAIRMN OF THE POGERA LANDOWNERS CHILDREN’S INVESTMENT FUNDS
First Plaintiff

POGERA SML LANDOWNERS CHILDREN’S INVESTMENT FUND
Second Plaintiff

V

GREG WALKER in his capacity a EXECUTIVE GENERAL MANAGER OF POGERA JOINT VENTURE
First Defendant

BARRICK (NIUGINI) LIMITED
Second Defendant

POGERA LANDOWNERS ASSOCIATION INC.
Third Defendant

Waigani: Kariko, J
2018: 9^th & 20^th April

COSTS – application for review of taxed costs

Cases Cited:

Barava Ltd v Augustine Mamalau (2013) SC1301
Napoleon Canonizado v Kapu Rageau (2011) N4382

Legislation:

National Court Rules

Counsel:

Mr T Jugari, for the Plaintiff
Ms J Nandape, for the Third Defendant

RULING

20^th April, 2018

1. KARIKO J: This is an application by the plaintiffs pursuant to Order 22 Rule 60 (1) National Court Rules for a review of the taxed costs of the third defendant.

Background

2. On 25^th September, 2015, I ordered the plaintiff to pay the third defendant’s costs.

3. A bill of costs was prepared and ultimately lodged for taxation. After several adjournments, the matter was finally confirmed for determination on 27^th February, 2018.

4. On that day Ms Nandape for third defendant reminded Mr Jugari for the plaintiffs by mobile phone of the scheduled taxation. Mr Jugari was in Mt Hagen at the time and he asked Ms Nandape to pass on his request for an adjournment to the taxing officer. That message was duly relayed by Ms Nandape but she also advised the taxing officer (as she had also done with Mr Jugari) that she was ready to proceed. The taxing officer decided in her favour.

The objections

5. Summarized, the grounds for objection to the taxation on this review which are largely the same as those filed for taxation, are:

(1) The costs claimed are excessive.
(2) The amounts claimed are not justified due to lack of details of work done.
(3) Little or no weight was given to the defendant’s objections.
(4) The taxing officer failed to provide a decision explaining his decision on taxation.
(5) The taxing officer ought to have adjourned taxation until Mr Jugari was available.

Consideration

6. In her bill of costs, Ms Nandape claimed a total of K2,549 as disbursements and K18,259 as charges. The bill of costs covered items per Schedule 2 Table 1 of the National Court Rules which provides for the Scale of Costs. In particular, the bill addressed Part 1 (Preparation of documents), Part 3 (Counsel’s fees), Part 7 (Preparation for trial) and Part 9 (Taxation of costs).

7. The scale of costs to be charged under Parts 1 and 3 are prescribed in Table 1. The taxing officer would have been satisfied that the costs charged under Parts 1 and 3 were in line with the scale because he allowed all the costs claimed. Mr Jugari has not shown how costs exceed the scale or that there was an error by the taxing officer allowing the amounts claimed.

8. The taxing officer had a discretionary power under Parts 7 (Preparation for trial) and Part 9 (Taxation of costs) as to what costs and amounts to allow taking into account such matters as the legal issues involved, time taken to perform the required work, the work performed and the lawyer’s charge out rate. Only two items billed under Part 7 were considered excessive by the taxing officer on the basis that the work should have taken lesser time to perform. The charges for those two items were accordingly reduced. I find no evidence that he erred in the exercised of his discretion. The applicant must show that taxing officer erred in the exercise of his discretion; see Napoleon Canonizado v Kapu Rageau (2011) N4382.

9. It is true that the National Court Rules do not state that a taxing officer must provide a written decision following taxation. In my view it would be a prudent practice to adopt because such decision would allow parties and the Court on review to better appreciate the taxing officer’s exercise of his powers on taxation. However, I do not consider the fact that the taxing officer has not provided a written decision as a good ground to upset the assessment of the taxing officer.

10. In respect of the claim that taxation wrongly proceeded ex parte, the applicant has not shown that the taxing officer erred in the exercise of his discretion whether or not to defer the taxation. This Court cannot set aside the taxation assessed ex parte and order a re-hearing because the party absent during taxation has recourse for any grievance concerning the taxation by applying for review under Order 22 Rule 60(1); see Barava Ltd v Augustine Mamalau (2013) SC1301.

Conclusion

11. In the end, I am not convinced that the taxing officer erred in the taxation.

12. Accordingly, I dismiss the plaintiffs’ application for review of the taxation with costs in favour of the third defendant.

______________________________________________________________
Haiara’s Legal Practice: Lawyer for the Plaintiffs
Nandape Lawyers: Lawyer for the third Defendant