Bigilale v Moutu [2021] PGNC 497; N9314 (26 November 2021)

N9314

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 345 & 347 OF 2016

BETWEEN:
ILAIAH BIGILALE
First Plaintiff

AND:
BENI SAREA
Second Plaintiff

V
DR. ANDREW MOUTU DIRECTOR OF NATIONAL MUSEUM & ART GALLERY
First Defendant

AND:
NATIONAL MUSEUM & ART GALLARY
Second Defendant

Waigani: Miviri J
2021: 25^th & 26^th November

PRACTICE & PROCEDURE – Taxed Costs – Application for Entry of Judgment on Taxed Costs – Certificate of Taxation – Discretionary – Whether Grounds demonstrated sufficient – Order 22 Rule 62 Motion for entry of Judgment on certified costs – Whether Judgment on certified Taxed Costs Interest & percentage – Respondent No Dispute – Motion Granted – 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

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:

M. Worinu, for Plaintiff/Applicant
J. Kondop, for Respondents

RULING

26^th November 2021

1. MIVIRI, J: This is the ruling on the Notice of Motion of the applicants Ilaiah Bigilale in OS (JR) 345 of 2016, and of Beni Sarea in OS (JR) 347 of 2016, both heard together because they arise from the same facts and circumstances. Both invoke Order 22 Rule 62 of the National Court Rules for Judgment to be entered against the respondents in each case in the terms of the draft that they have submitted here.
   
2. The relied order reads; “Where the amount of any costs has been certified under this division the Court May, on a motion by a party, direct the entry of such judgement for the costs as the nature of the case requires.”
   
3. Initially when the matter Ilaiah Bigilale in OS (JR) 345 of 2016 was called, Counsel representing was not in attendance before the Court. Service of the proceedings and notice of today’s date for hearing was served and on file by the affidavit dated the 9^th November 2021 of Melisha Worinu, Lawyer of the applicant. Service included annexure “A” the true copy of a letter dated 08^th February 2021 from Kopunye Lawyers (KL) to the Lawyers for the respondents, Manase & Co Lawyers together with the certificate of Taxation filed on the 29^th January 2021. And receipt was made of all by one Martha Renagi of that firm. Following service KL made several requests by letters and there were exchanges of correspondence with Manase & Co Lawyers. The following annexures evidenced that:
   

“B” letter dated the 12^th February 2021 is from Manase & Co Lawyers to KL.

“C” letter dated 18^th March 2021 from KL to Manase & Co Lawyers;

“D” letter dated 19^th April 2021 from KL to Manase & Co Lawyers;

“E” letter dated 26^th April 2021 from Manase & Co Lawyers to KL;

“F” letter dated 27^th April 2021 from KL to Manase & Co Lawyers;

“G” print out of emails sent to Manase & Co Lawyers.

4. The deponent filed another affidavit of the 18^th November 2021 of service of the Notice of motion and the affidavit supporting, both filed of the 09^th November 2021. Annexure “A” is a letter dated the 11^th November 2021 from KL to Manase & Co Lawyers received by one Martha Renagi of that firm.
   
5. Yet another affidavit is filed of the 24^th November 2021which attaches annexures “A” Letter dated the 22^nd November 2021 from KL to Manase & Co Lawyers. Annexure “B” print out of emails exchanged between the deponent and lawyers for respondent Manase & Co Lawyers.
   
6. The record of proceedings of the Court shows last appearance material of the 18^th November 2021. In attendance was counsel for the applicant Ms Worinu not for the respondent and the matter was adjourned to today’s date 25^th November 2021 for the hearing of the matter with or without the appearance of Counsel for the respondents. It was directed that service of todays hearing be made by counsel for the applicants. That has been done proof in each case filed by affidavit set out above of the 24^th November 2021. Both cases have these records showing that this is not the first time that the matter has been addressed and taken up with lawyers for the respondents. Therefore, leave was granted for the application to be made without the lawyer for the respondent. This happened and the application of Ilaiah Bigilale in OS (JR) 345 of 2016 was concluded without appearance of Counsel for the respondent in attendance.
   
7. Counsel appeared after his conclusion and made representation in the matter Beni Sarea in OS (JR) 347 of 2016 affirming that there were no objections to the application of the motion, but that interest be 2% because these were government and State entities that were responsible.
   
8. Firstly, the hearing was set on the record of the proceedings adjourned to today because of non-appearance of counsel for the respondents. And service notice of todays hearing was on record, there was a long line of evidence showing that this matter was not the first time raised between the parties since, evidence set out above. Therefore, to proceed as was done here did not prejudice the respondents in anyway. They were given the right to be heard in the defence of the matter. And from the position confirmed later by appearance of counsel there was no serious prejudice upon and breach of the right to be heard. The matter proceeded.
   
9. From all the material set out above it is safe to hold that the certified costs were made by the taxing officer after filing of the bill of costs on the 20^th July 2020 by the Applicant/Plaintiffs. Which the Assistant Registrar and taxing officer, Nickson James taxed in the sum of K 53, 222.30 for Ilaiah Bigilale on the 29^th January 2021, and for Beni Sarea K 53, 292.03 on the 19^th April 2021. Which were filed on the 19^th April 2021 and served on the Defendants on 28^th April 2021. This is evidenced annexure “A” follow up correspondences of annexure “B” and “C” which did not draw any payment up to the date of this applications by both applicants. And the evidence set out above show and establish continuous notice to the lawyers for the respondent for the payment and settlement of both certified costs which has not been done so, hence notice and now this proceedings to seek in accordance with Order 22 Rule 62 of the National Court Rules for Judgement.
   
10. In each case interest is sought at on the Judgement sum of K 53, 222.30 at 8% per annum from the date of the Order 2^nd November 2018 to the date of full payment for Ilaiah Bigilale. The same in the case of Beni Sarea of the amount K 53, 292.03.
    
11. Thirdly the defendants to pay the Plaintiff’s costs of and incidental to this application on a Solicitor/Client basis and the honourable Court fix a sum.
    
12. Such other orders as the court deems fit.
    
13. Both applicants rely on the affidavit of Melisha Worinu filed of the 09^th November 2021. She is their lawyer and deposes to the application from the records held by that firm which are set out above relating to the costs in the matters. This Court presided by Justice Thompson on the 2^nd November 2018 ordered that;
    
    • (a) The plaintiff’s application for Judicial Review by way of a declaration and mandamus of the Defendant’s decision not to comply with the PSC decision of 05^th June 2015, is refused.
      
    • (b) The defendants are to pay the Plaintiff’s costs on a party party basis, to be taxed if not agreed.
      
14. It is very clear that the certified taxed costs were both outstanding since the date of Judgment of the 02^nd November 2021 by this Court which secured no payment by the respondent/defendants. There is no material filed to explain this delay despite the opportunity given set out by evidence above. It is elementary that Court Orders must be obeyed and complied with, failure for no good reason has drawn adverse on parties so acting. And the law reports and Jurisprudence evidence failures that have ended up with very serious offences drawn against. Here there is no evidence filed, nor submission to the contrary against the notice of motions in each case of the applicants, Ilaiah Bigilale and Beni Sarea.
    
15. It means there is no dispute to the motion sought except as to the percentage for the interest, not 8% by the applicants, but 2% by the respondents. This is a discretionary matter governed on the facts by the Judicial Proceedings (Interest on Debts and Damages) Act 2015, which inserted amendment to the original Act Judicial Proceedings (Interest on Debts and Damages) Act 1962. So, the current law is the former which inserted new section 6 reading: “POST-JUDGMENT INTEREST ON DEBTS AND DAMAGES.

(1) Subject to Subsections (2) and (3), where judgment is given or an order is made for the payment of money, interest shall, unless the court otherwise orders, be payable at the prescribed rate from the date when the judgment or order takes effect on such of the money as is, from time to time, unpaid.

(2) Where the judgment referred to in Subsection (1) is taken against the State, the rate of any interest under that subsection shall not exceed 2% yearly.

(3) Where, in proceedings on a common law claim, the court directs the entry of judgment for damages and the damages are paid within 30 days after the date that the direction is served, interest on the judgment debt shall not be payable under Subsection (1) unless the court otherwise orders.

(4) Where, in proceedings for damages on a common law claim, the court makes an order for the payment of costs and the costs are paid within 30 days after service of the direction or order that ascertains the amount of the costs by taxation or otherwise, interest on the costs shall not be payable under Subsection (1) unless the court otherwise orders.

(5) Notwithstanding anything in this section, where the judgment given or the order made is given or made against the State -

(a) no interest is payable on a judgment for damages until a certificate of judgment is served on the State; and

(b) to avoid any doubt, no interest is payable on taxed costs until a certificate of taxation is served on the State; and

(c) any payment under Subsections (3) and (4) shall be deemed to have been made on the date of the drawing of the cheque for payment; and

(d) where the sum awarded is increased on appeal, interest shall only be payable on the increase in accordance with this section from the date when the appellate judgment or order takes effect.

(6) A judgment entered or order given contrary to Subsections (5) is a nullity and is liable to be set aside and re-issued according to law by the same judge or judges on application -

(a) by the lawyer for the State; or

(b) by the registrar, clerk, or other proper officer of the court by which the judgment is given; or

(c) by any party to the proceedings.”

16. The interest by the read of this section is 2% not 8 % and that is what will be drawn here against the Respondents. The certified taxed cost now served on the respondent will draw 2% interest each on the sums awarded in each case, not 8%. It is clear that there is no dispute as to the claim made here by the motions in each case. There is conclusive evidence here that payment has not been made despite notice since 2^nd November 2018 and more so after each bill was certified taxed on the 29^th January 2021 and 19^th April 2021. The evidence that I have set out above relied by the applicants show no attempt to pay or proposal or schedule to pay. It is certified taxed costs and is conclusive evidence on that basis of liability on the part of the defendant/respondents: Kaiulo v Yaluma [2008] PGNC 157; N3507 (27 October 2008).
    
17. It has not been reviewed; Abai v The State [1998] PGNC 92; N1762 (24 September 1998), nor has it been challenged by the rules. Here on the eve of the notice of motion counsel for the respondent indicated that they did not dispute what was alleged by the applicant. They conceded the application but pleaded that cost be borne out by each party. What the applicants seek is well settled pathway 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). It will be the same path that will be followed here given the facts circumstances by the rules set out above in each notice of motion of the applicants individually.
    
18. Accordingly, the notice of motion of the Plaintiffs, K 53, 222.30 for Ilaiah Bigilale certified taxed as of the 29^th January 2021, and for Beni Sarea K 53, 292.03 of the 19^th April 2021 are entered as Judgement Orders. That is granted as prayed because of the reasons set out above. Accordingly, the formal orders of the Court are:
    
    • (i) Pursuant to Order 22 Rule 62 the taxed certified costs of the 29^th January 2021 in the sum of K 53, 222.30 for Ilaiah Bigilale, and for Beni Sarea K 53, 292.03 on the 19^th April 2021 are each converted to a Judgment Order of this Court in favour of each of the plaintiffs in that order with interest in each case as 2% drawing from the 02^nd November 2018 to date of this Judgement.
    • (ii) The plaintiffs Costs of K700. 00 in each case here will be paid by the defendants.
    • (iii) Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders Accordingly.

__________________________________________________________________

Kopunye Lawyers: Lawyer for the Plaintiff/Applicant

Manase & Co Lawyers: Lawyer for First Defendants