|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS No. 259 of 2011
In the matter of an application for Judicial Review pursuant to order 16 of the National Court Rules.
BETWEEN:
DINAH URANGA MATMAT for herself and on behalf of the relatives and children of IsikielToluana, deceased in relation to Vunakangar
land of Takubar Village, Kokopo
Applicant/Plaintiff
AND:
PAUL AND GEORGE TUNIA
First Respondents/Defendants
AND:
HENRY WASA as Registrar of Titles
Second Respondent
AND:
LUCAS DEKENA as Minister for Lands and Physical Planning
Third Respondent
Kokopo: Susame, AJ
2019: 6th September &18th October
COST – Notice of Motion - Judgment for Taxation Cost pursuant to Order 22, Rule 62 National Court Rules - Taxation of costs - Certificate of Taxation by Taxation Officer – Question of Liability may not be raised
Cases Cited:
Papua New Guinea Cases
Thirwall v Eng Chin Ah [1088-89] PNGLR 34
Overseas Cases
Re Glassfurd (1910) 27 VCR 357
Counsels:
Ms. J Marubu, for the Plaintiff
No appearance of Defendants
DECISION
18th October, 2019
1. SUSAME AJ: Applicant was the Principal of Motuwe Lawyers operating at Takubar, Kokopo, East New Britain Province. The firm provided legal services to the first Respondents commencing around month of August 2011 in proceedings OS No. 259 of 2011 before the National Court, Kokopo.
2. The court entered judgment for the first respondents and dismissed the judicial review proceedings. The decision went on appeal to the Supreme Court. Again Motuwe Lawyers acted for the first respondents.
3. The law firm (which has now ceased operations) has not been paid for services provided on solicitor-client basis. Hence, the applicant has come to this court by notice of motion pursuant to Order 22 Rule 62 of the National Court Rules filed on 15 November 2018 seeking the following orders:
(a). The sum of K107 000 be entered as judgment in favour of the applicant against Paul Tunia and George Tunia.
(b). Interest at 8% to accrue from the date of filing of the Judicial Review on the taxed amount till settlement of the costs pursuant to the Interests on Debts and Damages (Judicial Proceedings)Act1962).
(c) Cost of the application be allowed at K1500.00
4. Motion is supported by the following documents:
5. First respondents have also moved a motion filed 5 December 2018 seeking order to strike out the bill of cost filed on 6 November 2018 in regard to the certificate of taxation filed on 26 September 2018 pursuant to Order 12 Rule 1 and 40 of the National Court Rules. The basis of which is that the bill of costs failed to meet the requirements of section 62 (4)(a)(1) and (ii) of the Lawyers Act 1986. Together with the motion is Respondent’s lawyer, Mr. Paul Pori Yange’s affidavit sworn and filed on 5 December 2018.
6. Both motions were set for hearing today. Applicant entered appearance. First Respondents and their lawyer did not. No reasons were accorded this court for their non-appearance. Respondents’ lawyer are well aware of the hearing of the motions today by order of court of 9 August 2019. Service of the order has been effected on the respondents’ lawyer which is attested by Motuwe in his affidavit sworn and filed on 5 September 2019.
7. As such motion filed by the first respondents has not been considered on merits due to their lawyer not in attendance to prosecute it. Appropriate order shall be issued to have it dismissed for want of prosecution.
Back Ground
8. A bit of history of the case. Much of it has been adequately set out in Motuwe’s affidavit which I will refer to. The Plaintiff, Motuwe who was operating a law firm provided legal services to the respondents in the judicial review proceedings before the National Court in 2012 and before the Supreme Court when the matter went on appeal. (Court takes judicial notice of the copy of the judgment by Maliku AJ).
9. After conclusion of all proceedings both in the National and Supreme Court the Plaintiff prepared and issued a bill of cost to
the first respondentsfor services rendered. Respondents refused to settle the bill although they were receiving payments for rental
of their property from Tzen Niugini Ltd.
10. Plaintiff followed through with an itemized bill of costs of K132, 550.00 on 3 November 2017. The bill of cost was served on the
first respondents on 6 November 2017 as attested to by Nassain Robin in his sworn affidavit filed on 17 November 2017. Due to non-availability
of the Taxing Officer that bill of cost was left unattended.
11. Taxing Officer and Registrar, Mr. Ian Augerea travelled in from Port Moresby to deal with cost taxation matters in East New Britain Province. First respondents were put on notice to attend the call-over. They failed to attend. Few attempts were made to have them attend proceedings with their lawyer. Mr. Paisat finally attended the conference. In their discussions it was mutually accepted and agreed a reduced sum of K107 000.00 was to be paid. It was further agreed the amount would be paid in installments over unspecified period of time until it was settled. Despite all the efforts taken first respondents have yet to settle the agreed bill of cost.The above basically explains the factual circumstances of the case.
Law
12. Order 22 Rule 62 of the National Court Rules:
“Where the amount of any costs has been certified under this Division the Court may, on motion by a party, direct the entry of such judgment for the costs as the nature of the case require.”
13. This rule vests in the National Court wide discretion to enter judgment for any cost as the case requires. Where an amount in terms of costs has been certified in a certificate of taxation by the Taxing Officer the party/applicant who was awarded cost in the earlier proceedings is entitled to judgment as of right of cost taxed and certified. “Questions of liability may not be raised after the certificate of taxation issues.” (See Thirwall v Eng Chin Ah [1088-89] PNGLR 34. Woods J and Re Glassfurd (1910) 27 VCR 357.
14. Question is whether the amount certified in the certificate of taxation by the Taxation Officer is manifestly wrong or the amount allowed or disallowed is exorbitant.
15. I cannot find anything substantially wrong with the Taxation Officer’s calculations. Legal services were provided in preparing the case up to litigation in both National and Supreme Court. The initial taxation cost was calculated at K132, 550.00 by the Taxation Officer. The sum of K107 000.00 being claimed represents about 80.7% of the initial taxation cost mutually accepted by parties after discussions with the Taxation Officer.
16. As it emanates from the facts there is a lot to be desired of the first respondents conduct. Their conduct in procrastinating settlement of legal services duly provided when they had the financial capacity to do so have been so unreasonable, selfish and self-centered.
17. There is no plausible reason for this court doing justice to refuse to enter judgment for the plaintiff. Accordingly, there shall be a judgment for the plaintiff in the sum of K107, 000.00.
Award
______________________________________________________________
Marubu Lawyers : Lawyer for the Plaintiff
Islands Legal Services : Lawyer for the Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2019/382.html