Roman Catholic Archdiocese of Rabaul v Saru [2021] PGNC 118; N8835 (18 March 2021)

N8835

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 269 OF 2018

BETWEEN:
ROMAN CATHOLIC ARCHDIOCESE OF RABAUL
First Plaintiff

AND:
3A COMPOSITES PNG LIMITED
Second Plaintiff

AND:
BENJAMIN SARU in his capacity as REGISTRAR OF TITLES
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
MALO IMMER KILIGIA INCORPORATED LAND GROUP
Third Defendant

AND:
PACIFIC REGION DEVELOPMENT LIMITED
Fourth Defendant

Kokopo: Suelip AJ
2021: 11^th & 18^th March

CIVIL – costs – application for leave for extension of time to seek review of decision of taxing master – application must be filed within 14 days or further time as the Court may allow – filing of application 2 days outside of time – Court’s power to extend time is discretionary – proper principles considered and discussed – reasonable explanation for delay – application has merits – prejudice to third defendant minimal

Cases Cited

Oil Search Ltd v. Lewis Upke & ors (2018) N7657
John Kombra v. Bernard Kipit (2009) N3756
Rueben Kaiulo & Anor v. State (2008) N3507
John Kotape v. McConnell Dowell Constructions PNG Ltd & ors (2019) N8338
Oliver Taste Ltd v. Graham Elipas & ors (2020) N8198

Counsel

S Kiene, for the First and Second Plaintiffs
P Yange, for the Third Defendant

RULING

18^th March, 2021

1. SUELIP AJ: The plaintiffs are seeking leave for an extension of time to review the decision of the taxing master of 13 November 2020 where he taxed the third defendant’s Bill of Costs (BOC) and allowed it at K95,471.00.

2. The application is contested by the third defendant.

3. This is my decision.

Facts

4. On 6 December 2019, the Court dismissed this matter for being without merit, with costs. On 16 March 2020, the third defendant filed its Application for Taxation of its BOC. On 13 November 2020, the third defendant’s BOC was taxed by the taxing master, Mr Ian Augerea. Prior to taxation, the plaintiffs presented to the taxing master, their Notice of Objections to the third defendant’s BOC. On 24 November 2020, a Certificate of Taxation was filed. Then on 1 December 2020, the plaintiffs filed their application for leave for extension of time to review the taxing master’s decision of 13 November 2020.

Law

5. Order 22 rule 60 of the National Court Rules provide the following:

60. Application for review of taxation. (U.K. 62/33)

(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. The Court’s power to extend time under Order 22 rule 60(2) is discretionary and shall be exercised according to proper principles. See Oil Search Ltd v. Lewis Upke & ors (2018) N7657.

7. These proper principles are enunciated in the case of John Kombra v. Bernard Kipit (2009) N3756 where Her Honour, late Justice Davani listed them as:

(i) that there must be a reasonable explanation why costs were taxed in one of the parties’ absence;

(ii) that the application for extension of time must be made promptly and within a reasonable time of the decision becoming known;

(iii) if there is a delay, whether the reasons for delay are justified under the circumstances;

(iv) whether the application has any merits?

8. Another principle was added to the above 4 principles in the case of Rueben Kaiulo & Anor v. State (2008) N3507 where the Court included the principle of whether the other party will not be prejudiced by the late application.

Issue

9. The issue is whether leave for extension of time to review should be granted to the plaintiffs?

Considerations of principles

10. I now discuss each of the principles of granting an extension for review.

There must be a reasonable explanation why costs were taxed in one of the parties’ absence

11. In this case, the plaintiffs and the third defendant attended taxation.

The application for extension of time must be made promptly and within a reasonable time of the decision becoming known

12. Order 22 rule 60(2) requires an application to extend time for review to be filed within 14 days from the date of the decision of the taxing master. Taxation was conducted on 13 November 2020. A Certificate of Taxation was filed on 24 November 2020. The plaintiffs’ application for extension of time was filed on 1 December 2020.

13. The plaintiffs submit that 14 days from the date of taxation is 28 November 2020 which fell on a Saturday. Hence, their application for extension and review was lodged on Monday, 30 November 2020 at the registry but was dated 1 December 2020. No evidence was provided to prove lodgment being done on 30 November 2020. It is their submission that the application was filed only 1 day out of time. The third defendant takes issue and says there is no evidence for not filing within the required time.

14. Whilst I agree there is no evidence provided by the plaintiffs to show why their application for leave was filed late, the plaintiffs did say they lodged the application on 30 November 2020. I therefore accept that the plaintiffs did attempt to file the application within time.

If there is a delay, whether the reasons for delay are justified under the circumstances

15. Fourteen (14) days after 13 November 2020 is 27 November 2020, which is a Friday. As such, there is a delay in filing the application of 2 days, which did not include the weekends. Naturally, this is outside the required period. The third defendant argues that there are no valid reasons given for the late filing of the application. However, as stated by Justice Kariko in Oil Search Ltd v. Lewis Upke & ors (supra) at paragraph 11, and I also know from my practicing experience that documents are not always sealed on the day they are lodged at the registry so I will accept the late filing.

Whether the application has any merits

16. The primary objection from the plaintiffs is on Part 7 of the third defendant’s BOC where the amounts allowed were excessive and unreasonable. The plaintiffs also say the taxing master did not consider their objections.

17. Let’s take a closer look at the Notice of Objections filed by the plaintiffs. The objections raised include the charge out rate for the lawyers, lawyers’ seniority, limited degree of skill involved, matter not involving difficult areas of law, fewer expenses and overheads of lawyers in current office location, unjustified witnesses’ costs and the lack of particulars under Part 7 Item 12(2).

18. In contest, the third defendant says that there were voluminous affidavits filed and the taxing master had already reduced a substantial amount of costs from K1,681,940.00 to K95,471.00. Further, the third defendant says there is no affidavit filed to point out the errors of the taxing master and therefore, there are no merits in the application.

19. As this a leave application, I do not see the necessity to file separate evidence to point out the taxing master’s error at this juncture. In my view, such evidence is required at the review. Besides, the plaintiffs’ objections listed in paragraph 16 of the Notice of Objections in response to Part 7 Item 29 of the third defendant’s BOC are valid and therefore the application has merits.

That the other party will not be prejudiced by the late application

20. The third defendant is prejudiced in that there will be a delay in receiving payment of the certified costs.

Conclusion

21. Essentially, the reason for the delay in filing of the application is justified under the circumstances. More importantly, the application has merits in the objections raised by the plaintiffs. There is no doubt the third defendant will be prejudiced in that there will be delay in receiving payment of its certified costs, but the level of prejudice is minimal. Therefore, I will exercise my discretion and grant the application for extension.

Orders

22. The formal orders of the Court are:

(i) leave is granted to the plaintiffs for extension of time to review the decision of the taxing master of 13 November 2020.

(ii) the application for review of the taxing master’s decision on 13 November 2020 is listed for hearing within 7 days.

(iii) each party to bear their own costs.

(vi) time is abridged.
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Cornerstone Legal Services: Lawyers for the First and Second Plaintiffs
Island Legal Services: Lawyers for the Third Defendant