Nambawan Super Ltd v Independent State of Papua New Guinea [2021] PGNC 396; N9128 (9 September 2021)

N9128

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 20 OF 2017

NAMBAWAN SUPER LIMITED
Plaintiff

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Miviri J
2021: 09^th September

PRACTICE & PROCEDURE – Originating Summons – Application For Leave to Extend to Review – Certificate of Taxation – Discretionary – Whether Grounds demonstrated sufficient – Order 22 Rule 62 Motion for entry of certified costs – Evidence of Non-Attendance Taxation Hearing Defendants – No Reasonable Explanation – Delay – No Arguable basis – Prejudice to Plaintiff far outweighs – Motion Refused – Certified Costs converted to Judgment Order – Cost follow event.

Cases Cited:

Kaiulo v Yaluma [2008] PGNC 157; N3507

Abai v The State [1998] PGNC 92; N1762

Patterson trading as Pattersons Lawyers v Teachers Savings and Loans Ltd [2004] PGNC 243; N2516

Kotape v McConnell Dowell Construction PNG Ltd (Company No 1-123873) [2019] PGNC 473; N8338

Oil Search (PNG) Ltd v Upke [ 2018] PGNC 527; N7657
Counsel:

W. Mai, for Plaintiff
H. Konkori, for Defendants

RULING

09^th September, 2021

1. MIVIRI, J: This is the ruling on two Notice of Motion, firstly by the State seeking leave for extension of the period in which to review the certified taxed costs issued under hand of the taxing master of the 19^th April 2021 in the sum of K101, 926. 70 in favour of the plaintiff. Objection raised is on the basis that the State was not a party to that decision. It did not attend the hearing because it never was informed of the date of the hearing. Therefore, the decision was made in its absence despite its objection filed of the 14^th October 2020. Which was served on Allen’s Lawyers per Faylin Tiki but there was no attendance to it by the taxing master. It is pursuant to the Rules of Court in particular Order 22 Rule 60 (2) that further time to file the application to review the decision of the Taxing Officer of 10^th November 2020 be granted.
   
2. Secondly a notice of motion of the 18^th August 2021 which is the flip side for the entry of Judgment on the certified costs by the plaintiff. That pursuant to Order 22 Rule 62 of the Rules of Court Judgement be entered for the sum of K101, 926.70 certified of the 19^th April 2021. Including any other orders as discretion pertaining.
   
3. The first motion is supported by the affidavits of Henry Konkori sworn of the 18^th August 2021 filed the 19^th August 2021. Primarily he is the lawyer who had carriage of the matter from the office of the Solicitor General. That on the 28^th August 2020 service was made upon the Solicitor General of the Bill of Costs (annexure “A” to his affidavit) of Allen Lawyers pursuant to court order of the 12^th January 2018. Which was filed on the 17^th August 2020. He objected annexure “B” to his affidavit on the 14^th October 2020, serving it by hand on Allens on the first attendance at the National Court Waigani foyer. It was relisted on 24^th September 2020 and despite his attendance the taxing Officer did not so it was further adjourned to 15^th October 2020 at 1.00pm.
   
4. On the 15^th October 2020 an unsealed reply, annexure “C” of the 27^th October 2020 to the objections served by the Plaintiff upon the State. It was not filed nor sealed. And on the 10^th November 2020 taxing was conducted without the knowledge of the State by the Taxing Officer, nor was it in attendance. The State became aware when served of that certified costs, annexure “D” 14 days later. And he followed up with a letter annexure “E” to the taxing Master and which was responded with annexure “F” the decision on taxation. Which prompted him to file 11^th August 2021 annexure “G” objections to the allowances made by the Taxing Master. And on the 12^th August 2021 service of the same, annexure “H” the service detail form.
   
5. In response and in reliance in support for the motion by the Plaintiff is the affidavit of Faylin Tiki Lawyer of the firm Allen’s of the 18^th August 2021, who filed the subject application for taxation of the Plaintiff’s party/party costs pursuant to orders of this Court of the 12^th January 2018. Her evidence is in the negative that State was informed of the dates but were for reasons known to them not in attendance. They had no excuse because they filed the objections but did not live it out by appearance. They cannot come here to complain about extension of time to review. They had their opportunity and should not be given again. The reality is to confirm the certified taxed Costs of the sum allowed as Judgment orders.
   
6. In my view the conflict is resolved by the date on the decision of the taxation dated 10^th November 2020. That is not 10^th December 2020 deposed by the plaintiff in the evidence relied of FaylinTiki. That record independently confirms that despite its objections the State was not in appearance when the decision was made. The right to be heard is fundamental where money that will be drawn from the public purse is at stake. Here the sum is K101, 926. 70. Certification is of the 19^th April 2021. Obviously, the State has received that decision because it is annexure “F” of the affidavit of Henry Konkori. But no application as is the present was filed by the State in response objecting and heeding Order 22 Rule 60 (2) of the NCR. This motion was filed on the 19^th August 2021. That is almost four months leading on.
   
7. Which is more than the 14 days allowed for review of the certified taxed costs under Order 22 Rule 60 (2) of the NCR. This matter is originally by reference to the evidence set out initially of 27^th August 2020 of a proceeding dating from 2017. The fruits of which came out by the certified taxed costs filed on the 19^th April 2021 served on the office of the Solicitor General on the 28^th April 2021. From that date to today’s date 09^th September 2021 is almost five (5) months in the making.
   
8. Primarily from the 10^th November 2020 when the decision on the certification was issued on the Costs by the taxing officer it would be Monday 30^th November 2020 would be the last day for review if the State were to insist by the 14 days by Order 22 Rule 60 (2) of the Rules. The objections in the hearing were filed by the State on the 14^th October 2020. But there was no attendance on the 10^th November 2020 by the State. There is also no attendance by the state on 24^th September 2020, despite being advised by Allen’s Lawyers for the plaintiff. There was appearance by Mr. Henry Konkori for the State on the 15^th October 2020 who requested adjournment for the service of the objections that he had filed upon Allen’s for the Plaintiff. That was granted to the 28^th October 2020. On that day Allen’s appeared for the plaintiff but not Mr Konkori for the State. And at this it was noted by the taxing Master the objections by the State to the bill of Costs by the Plaintiffs. It was further adjourned to 11^th November 2020. Allen’s attended but the taxing master Baka Bina was unavailable so it was rescheduled to 10^th December 2020.
   
9. On that day Ms Tiki of Allens attended but not Mr Konkori. Interestingly the decision of the taxing officer is of the 10^th November 2020 not 10^th December 2020. It means in effect that what is deposed to by Ms Tiki cannot be sustained. The records of the taxing master show that there was no attendance on the 10^th November 2020 by the State. But that is the decision that emanates consequential on the part of the State and is detrimental to its cause of action by this motion. It does not immediately file for leave to extend time to review as is the case here. From that date 10^th November 2020 to today 09^th September 2021 is almost 10 months without any finger lifted by the State. And from the certification of the 19^th April 2021 is almost five (5) months that the state has laid back without doing anything constructive to advance its cause.
   
10. Where lies the balance in the matter given. Is it there being cogent and convincing reasons advanced that leave be granted to extend outside of the 14 days called by the rule set out above? And if so, are there cogent and convincing reasons for so allowing by the material in support?
    
11. In my view following and adopting what this court said in Kaiulo v Yaluma [2008] PGNC 157; N3507 (27 October 2008) there is conclusive evidence of default in the payment of the costs by the State Defendants. Because the costs have been certified which is conclusive evidence of liability on the part of the defendants. It has not been reviewed Abai v The State [ 1998] PGNC 92; N1762 (24 September 1998), nor has it been challenged by the rules. Time within has lapsed on the part of the State defendants no leave has been filed to open outside the time limitation by the Rules. And this application is way outside the 14 days called. Since the 19^th April 2021 after due service by the plaintiff the State has not readily attended. Nor has it shown real interest to ensure that it was heard in its objections. The State defendants must lead by example to give heed and respect to court orders that are made, especially here as to costs where it has been given every opportunity to draw it with no heed.
    
12. Money that will come out of the public purse of the 8.5 million people will be paid out to an individual with no fault of his, but the laxity of the State is not sound reason in law to accord leave. It is not arguable that leave should be accorded. Nor are the reasons substantive and cogent to advance in favour of the State’s motion. Rather it is to the other side more in contrast. There is no merit to discretion this Court as in Patterson trading as Pattersons Lawyers v Teachers Savings and Loans Ltd [2004] PGNC 243; N2516 (19 February 2004), to grant leave even outside the review period of 14 days because that would be erroneous considering all the materials set out above. The orders sought by the Notice of motion are made out in favour of the Plaintiff and he is accorded accordingly.
    
13. And it is a well-trodden path that this Court has walked in Kotape v McConnell Dowell Construction PNG Ltd (Company No 1-123873) [2019] PGNC 473; N8338 (27 November 2019) and Oil Search (PNG) Ltd v Upke [2018] PGNC 527; N7657 (20 March 2018), which is the way that the discretion of the Court will be exercised here, leave will be refused the State to extend outside the 14 days by Order 60 (2) of the Rules.
    
14. But that leaves the motion of the Plaintiff for entry of Judgement on the certified taxed Costs of K101, 926. 70. Certification is of the 19^th April 2021. That is granted as prayed because of the reasons set out above.
    
15. Accordingly, the formal orders of the Court are:
    
    • (i) Pursuant to Order 22 Rule 60 (2) of the National Court Rules Leave to extend time is refused the State defendant.
    • (ii) Pursuant to Order 22 Rule 62 the taxed certified costs in the sum of K101, 926. 70 certified on the 19^th April 2021 is converted to a Judgment Order of this Court in favour of the plaintiff.
    • (iii) The plaintiffs Costs here will be paid by the State defendants.
    • (iv) Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders Accordingly.

__________________________________________________________________

Allen Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor Generals: Lawyer for First Defendants