Hasifangu v Mauludu [2021] PGNC 53; N8796 (16 April 2021)

N8796

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 832 OF 2016

BETWEEN:
MARCELLA HASIFANGU
Plaintiff

AND:
MARK MAULUDU IN HIS CAPACITY AS CHIEF EXECUTIVE OFFICER OF BORAM GENERAL HOSPITAL
First Defendant

AND:
PASCOE KASE IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF HEALTH
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 10^th December

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Review of Taxed Costs – Excessive & Unreasonable Order 22 Rule 60 (1) (2) (3) & (4) NCR – Objection by State – Decision of Taxing Master lacking no record of – State Not party to Taxation – State not in position to object No Decision Taxing Master – Time Limit inoperable without – Materials relied insufficient to establish certified taxed cost – matter remitted for taxation by taxing master – cost follow event.

Cases Cited:

Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674

Kumbu v Mann [2018] PGNC 50; N7126

Sankin v Papua New Guinea Electricity Commission [2002] PGNC 77; N2257
Counsel:

J. Napu, for Plaintiff
A. Nasu, for Defendant

RULING

16^th April, 2021

1. MIVIRI, J: This is the Ruling on the third defendant’s notice of motion pursuant to Order 22 Rule 60 of the National Court Rules, “the Rules” to review the certified taxed costs of K 493, 500.00 allegedly by the taxing Officer on the 13^th October 2019.
   
2. Order 22 Rule 60 is in the following:
   

“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.”

3. It is clear that the taxing officer is obligated by these rules to provide reasons as to his certification of the taxation. He is also obligated to ensure that the parties to either side of the proceeding are before him at the time that taxation is affected, not without. A party who is dissatisfied as here the State cannot voice without sighting physically that itemized and certified taxed costs. He cannot be made to succumb without heed of what it is that is levelled. Especially here where money is involved in large sums. It is underlying that costs are the true value of the dispensation of justice in the matter. It is not enrichment at the expense of injustice and misery of the other party.
   
4. The time to lodge is 14 days after the decision of the taxing officer. That reason is not before the court. What is before the court is Plaintiff’s Party/Party Bill of Costs to be taxed and paid by the Defendants pursuant to Court Order of the 13^th of February 2019. This is filed 05^th April 2019. It is scheduled for taxation before the taxing master on the Tuesday 16^th April 2019. And has a signature with imprint taxing master underlying it. A document 67 filed the 05^th November 2019 is headed Certificate of Taxation. It is dated 13^th October 2019 but does not contain what is it that is being certified and taxed. Because in order to make a list of items in accordance with Order 22 Rule 60 (3) to voice objection on, it is impossible with even the alleged certificate of Taxation. Its inscription of the taxing officer Baka Bina who is taxing ex parte the bill of costs for K 704 010.00 allowed to K 493, 500.00. And it is filed by Napu and Company Lawyers, P. O. Box 1179 Boroko, National Capital District. Minihi Avenue, Section 55 Allotment 32 Boroko NCD. It is not the Taxing Master Baka Bina independently as Assistant Registrar and therefore is questionable in the form it is before court. It is not conclusive of the facts it deposes to. It is not verified by the items that were in the Plaintiff’s Party/Party Bill of Costs to be taxed of the 05^th April 2019. It cannot be ex parte by read of Order 22 Rule 60 (4) “...each other party (if any) who attended the taxation of those items.” As it is it is unsatisfactory for the purposes of Order 22 Rule 60 and must in all fairness go back to the Taxing Master to be taxed.
   
5. It also means calculation of the 14 days after the decision cannot be ascertained nor can the dictate of the rules be implemented to faulter the State who is the third Defendant. In all fairness the aggregate totality is to refer the matter back for taxation of the Costs that is now document 51 on the Court file of the 05^th April 2019. Because the review cannot take place here without that certified taxed costs including the reasons of the taxing master. It is itemized and backed by evidence but not necessarily in the same form as in a trial: Sankin v Papua New Guinea Electricity Commission [2002] PGNC 77; N2257 (19 July 2002). This will be illuminated by the taxing master’s reasons because the objections raised will be parallel against for the determination of the court. That is neither possible nor feasible without. It is therefore proper to be accorded the benefit of the reasoning of the taxing officer to determine. Which isn’t the case on the material that has been relied on by the plaintiff to move that it be ordered. The material relied is not in accordance with Order 22 Rule 60 and will be refused as inadequate.
   
6. There is no evidence before me that there was attendance on this day 16^th April 2019 for taxation by the parties. Even though there is an order dated 14^th September 2020 taken out by Napu Lawyers for the Plaintiff in particular order number 5 stating, “The defendants will pay the Plaintiff’s cost of an incidental to the proceedings which if not agreed to be taxed.” It is clear it must be taxed as it is not agreed to. And the reason required by the Rule set out above. The assertion by the applicant/third defendant is that taxation was made Sunday 13^th October 2019. That cannot be confirmed or denied as the subject taxing Officers reasons are not before me. It is important to be able to address this from that document. It is the document that will prompt the objection. And because it is not there, the objection follows suit. In my view the third defendant is not standing back and taking a lay by approach, because if it were in order, the reasons of the taxing officer would be before this court now. It is not before the court and cannot be held against the third defendant.
   
7. And therefore, the motion by the plaintiff to convert the alleged certified taxed costs to a court order will not flow. The material relied on is inconclusive and lacks compliance in all material particulars pointed out with Order 22 Rule 60 of the Rules.
   
8. It is important that the parties agree as to what is the true cost of the dispensation of Justice in the matter. And that the certified taxed cost is that “12. An order for costs is not for the party to make a profit but to recover costs incurred in either prosecuting or defending a legal proceeding. Costs comprise payment of proper remuneration by a client to a lawyer for legal work performed by lawyer to the client. It includes disbursements. All the costs must be necessarily and reasonably incurred in the course of his employment. For disbursements, there must be proof by way of invoices rendered and receipts of payments. Finally, a non-lawyer is entitled to reasonable costs unless the Court otherwise orders, Kumbu v Mann [2018] PGNC 50; N7126 (27 February 2018) which is an adoption of the Supreme Court in Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674 (9 November 2001).
   
9. In the totality the third defendant cannot make objections because there are no reasons of the taxing officer of the sum K 493, 500.00. The matter will be remitted to the taxing master for his action for taxation. He will furnish the reasons to the parties and if there is an objection to it, for it to be filed in accordance with Order 22 Rule 60 of the Rules set out above. It will also be the basis should there be an objection for the dispensation determination of this court based upon. Which is not the case before me to review objection.
   
10. The formal orders of the court are:
    
    • (1) The application of the third defendants is upheld.
    • (2) The matter is further remitted back to the taxing officer for his action satisfying the requirements of Order 22 Rule 60 of the National Court Rules.
    • (3) And further the taxing master will furnish reasons for the taxation to the parties in accordance.
    • (4) For the purposes of Order (2) and (3) of this Order the item to be taxed is Document 51 filed the 05^th April 2019 titled Plaintiff’s (Party/Party) Bill of Cost to be taxed and paid by the defendants pursuant to court order of the 13^th February 2019.
    • (5) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Napu & Co Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants