Yangwari v Simon [2022] PGNC 128; N9579 (31 March 2022)

N9579

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 26 OF 2017

IN THE MATTER OF SECTION 206 OF THE ORGANIC LAW ON NATIONAL & LOCAL LEVEL GOVERNMENT ELECTION

AND
IN THE MATTER OF A DISPUTED RETURN FOR THE MAPRIK OPEN ELECTORATE

BETWEEN:
VINCENT ALOIS YANGWARI
Petitioner

AND:
JOHN SIMON
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Yagi J
2022: 02^nd & 31^st March

PRACTICE AND PROCEDURE – application to convert certified taxed cost to judgment – National Court Rules, Order 12 Rule 1 and Order 22 Rule 62 – relevant principles considered and applied – Election Petition Rules 2017, rr 3 and 4.

Cases Cited:

PNG Power Limited v Gura (2014) SC1402
Tolam Abai and Ors v The State (1998) N1762
Jacob Sanga Kumbu v Nicholas Mann (2018) N7126
Curtain Brothers (PNG) Ltd v UPNG (2005) SC 788

Counsel:

Mr S. Dadada, for the Petitioner
Mr T. Waisi, for the First Respondent
No appearance by the Second Respondent

RULING

31^st March, 2022

1. YAGI J: The first respondent seeks, in this application, an order to convert his certified taxed cost into a judgment of the court pursuant to Order 12 Rule 1 and Order 22 Rule 62 of the National Court Rules 1983 (NCR). The application is made pursuant to notice of motion filed on 02 February 2022 and supported by an affidavit sworn by Hon. John Simon on 31 January and filed on 02 February 2022.

2. The petitioner opposes the application and relies on his affidavit sworn on 01 March and filed on 02 March 2022.

Facts

3. The substantive dispute in this proceeding was a dispute over the declaration of the first respondent as the duly elected candidate for the Maprik Open electorate seat in the National Parliament following the 2017 National General Elections. The petitioner was aggrieved by the declaration and therefore petitioned the Court challenging the election of the first respondent.

4. An objection to the competency of the petition was filed by the first respondent in accordance with the Election Petition Rules 2017 (EPR).

5. The Court heard the objection and dismissed the petition on 29 January 2019. Consequently, the Court also ordered that the petitioner pay the first and second respondents’ “costs of and incidental to the petition”.

6. On 30 November 2021 the first respondent filed his itemised bill of cost in taxable form. The petitioner filed his objections to the first respondent’s bill of cost on 14 December 2021. The bill of cost was taxed by the Taxing Officer on 17 December 2021. Both the first respondent and the petitioner, through their respective lawyers, were in attendance during the taxation proceeding.

7. The total taxable bill claimed by the first respondent was K287,332.45. The Taxing Officer taxed off K139,575.00 and allowed, thus certifying, an amount of K147,757.38 as the first respondent’s taxed cost.

8. It is this amount of K147,757.38 that the first respondent now seeks judgment to be entered against the petitioner.

Submission by the first respondent

9. Counsel for the first respondent submits the time limited for the petitioner to apply for a review of the taxed cost had lapsed and therefore there is no impediment to the Court granting the orders sought in the notice of motion.

Submission by the petitioner

10. As for the petitioner, it is submitted by counsel that the amount to be converted to judgment is under dispute because many of the items of cost allowed by the Taxing Officer were either “unreasonable” or “excessive”. Counsel pointed to a number of items in his written submissions which have been noted.

11. It is also submitted by counsel that the first respondent sat on his rights in not filing his application for his cost to be taxed within a reasonable time. In that regard, it is submitted, the first respondent had provided no evidence explaining the delay and therefore the Court should refuse to exercise its discretion in granting the orders sought.

12. It is further submitted that the criteria for granting the order sought is settled by the Supreme Court in PNG Power Limited v Gura (2014) SC1402. In applying the 4 criteria the Court should find that the first respondent’s application fails to satisfy all the criteria, hence the Court should refuse the application.

Considerations and Conclusion

13. The order for costs arose from an election petition proceeding and is governed by the EPR. The EPR makes provision for costs, and this is provided for under Rule 19 which states:

19. Costs

(1) The Court may make such orders as to costs as it deems fit.

(2) A party may apply to the Court at the end of the hearing for a different rate of costs other than the rates of costs specified in Schedule 2.

(3) If parties do not agree to the costs, the Registrar shall tax the costs in accordance with Schedule 2 or the rate of costs ordered by the Court.

(4) A party aggrieved by the taxation of costs may within seven days after the taxation apply to a Judge of the National Court for a full review of the taxation.

14. Sub Rule (3) of Rule 19 gives the Registrar the power to tax cost in an election petition proceeding pursuant to a court order. The definition of “Registrar” under the EPR is “Registrar of the National Court”. The National Court Act offers no definition of the Registrar; however, the NCR defines the Registrar to include “Deputy Registrar” and “Assistant Registrar”. The Taxing Officer in this case was the Assistant Registrar - Mr Baka Bina. There is no controversy as to the power of the Assistant Registrar in this case.

15. Sub Rule (4) gives a right to a party aggrieved by the decision of the Taxing Officer to challenge it by applying to a Judge of the National Court for a review of the taxed cost. The rule further provides that the right is to be exercised within seven (7) days after the completion of taxation.

16. In this case, the petitioner did not exercise his right within the time stipulated. The taxation was completed on 17 December 2021 and to date no application for review pursuant to Rule (4) by the petitioner is pending. The failure by the petitioner to invoke his right under sub-rule (4) would ordinarily mean his challenge to the taxed cost would be incompetent or mischievous, unless his right is exercised following the grant of leave by the Court. However, this Court is bound by the Supreme Court decision in PNG Power Limited (supra) which was referred to by counsel for the petitioner. That case concerns the National Court’s exercise of discretion in an application for a taxed cost to be converted to judgment which is precisely the case before this Court.

17. I accept the submission by the petitioner that there are 4 considerations involved in exercise of discretion and these are framed by the Supreme Court in questionnaire form as follows:

1. was in accordance with what the law entitles a party to claim for costs and disbursements on a party party basis. We note Order 22 Rule 24 (2) National Court Rules which provides for costs to be allowed as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.
   
2. were reasonable in the circumstances: Tolom Abai and Ors v. State (1998) N1762,
   

c) were supported by material evidence,

d) was an attempt by the contemnors to profit.

18. I now turn to the relevant considerations.

Was the taxed cost and disbursement in accordance with the law?

19. The first respondent’s itemised bill of cost is attached to the affidavit of Hon. John Simon as Annexure “C”. The petitioner’s objection to the first respondent’s itemised cost is found in the affidavit of the petitioner as Annexure “A”. The Supreme Court in PNG Power Limited (supra) observed that proper cost must be for the purpose of “attainment of justice or for enforcing or defending the rights of the party”.

20. I have perused the first respondents itemised bill of cost. I find nothing untoward the cost items claimed that are improper or unnecessary in the first respondent defending his right in the election petition proceeding. The bill of cost complied with Schedule 3 of the EPR. The petitioner in his objections filed has raised nothing to suggest that the items claimed maybe against any law. The objections are based entirely on grounds of unreasonableness and excessiveness.

21. I am satisfied the taxed cost is in accordance with the law and practice.

Was the taxed cost reasonable?

22. The Supreme Court in PNG Power Limited (supra) stated that the question of what is reasonable cost is to be considered in accordance with the principles articulated in Tolam Abai and Ors v The State (1998) N1762. In that case Woods J was dealing with a solicitor-client cost, however, the principles, in my view, are the same as in party-party cost. The principles were summarised by Makail J in Jacob Sanga Kumbu v Nicholas Mann (2018) N7126 as follows:

(a) A client cannot agree to unreasonable costs where the client knows a third party is paying those costs.

(b) A lawyer cannot charge a client for work is useless.

(c) A lawyer is expected to have a reasonable knowledge of his work and cannot charge for learning his own business.

(d) The allowance of time spent and charge out rate of a lawyer is also to cover the general expenses of running an office.

(e) All costs are to be allowed but this is to be regulated by the principle of material evidence to support the costs and reasonableness.

23. In this case, except for the proven disbursement claims, the Taxing Officer taxed off almost every item in the bill of cost. The objection raised by the petitioner during the taxation, as I earlier stated, was on the grounds that the amount claimed was either unreasonable or excessive. It would appear from the affidavit of the petitioner that the same grounds of objection have been resurrected. This is apparent from paragraphs 5 and 6 of the petitioner’s affidavit, and hence it may be arguable, that such objection tantamount to a second bite at the cherry. Overall and generally, I note the itemised bill of cost was claimed at K287,332.45. The total amount taxed off is K139,575.00. This represents almost half of the total amount claimed by the first respondent.

24. The objection now raised by the petitioner relates to the exercise of the discretion by the Taxing Officer. This Court does not have the benefit of the transcript of what transpired during the taxation proceeding. It is difficult to determine how the Taxing Officer exercised his discretion. The principle of law as regards to exercise of discretion is settled. The onus is on the aggrieved party to demonstrate an identifiable error: Curtain Brothers (PNG) Ltd v UPNG (2005) SC788.

25. Based on the materials before the Court, I am not satisfied that an identifiable error was committed by the Taxing Officer. In the circumstances I am unable to conclude that the certified taxed bill of cost is unreasonable.

Was cost supported by material evidence?

26. The first respondent’s bill of cost before the Taxing Officer was presented in taxable form and was taxed in accordance with Schedule 3 of the Election Petition Rules 2017. This is apparent from the Reasons in Taxation dated 17 December 2019 filed by the Taxing Officer (document # 96). The form of the bill of cost is not under challenge by the petitioner. In normal taxation proceeding, the parties make oral arguments as to whether an item claimed is unnecessary, unreasonable, or excessive in the circumstances of the case and where necessary supporting documents are referred to and relied upon.

27. Where objection is taken on the number of hours spent by a lawyer on a particular work claimed generally consideration is given to matters such as the complexity of the matter and the skill and experience required by the lawyer to undertake the task. In considering the matter the Taxing Officer is usually assisted by supporting documents such as file records, time sheets and lawyer’s dairy. It is not clear whether that Taxing Officer relied on these supporting documents to tax the bill of cost. However, I note the costs are based on fixed rates. The pre-trial work rate is K450.00 an hour. The lawyer’s fees for court appearances are also fixed at K650.00 for directions hearing; any other applications at K350.00; appearing and arguing a petition at K1,500.00 for the first day and two-thirds of that amount for every subsequent days and finally taking deferred judgment at K350.00.

28. The petitioner has not contended that the Taxing Officer failed or omitted to rely upon the supporting documents in taxing the bill of cost.

29. The items in respect to disbursement claims such as air tickets, hire car, accommodation, meals, etc are normally allowed or disallowed depend on whether receipts and payment vouchers are produced in support of the claims.

30. In this case I note that some disbursement claims were taxed off. According to Annexure “A” of the petitioner’s affidavit disbursement claims items 44 (return air ticket for counsel), 45 (hotel accommodation for counsel) and 46 (hotel accommodation for 10 witnesses) were taxed off in full. The respective amounts were K3,909.20, K1,000.00 and K14,000.00. The petitioner objected to these claims on the basis that such claims had to be proven by evidence of receipts. I infer that these items were disallowed because no receipts were produced as evidence of payment.

31. In the circumstances, I am satisfied that the Taxing Officer properly exercised his discretion in disallowing items that were not supported by material evidence. Accordingly, I am satisfied that the certified taxed cost was supported by material evidence.

Was there attempt by the first respondent to profit?

32. A claim under this category usually relates to a lawyer’s over head expenses and claims for services provided other than the lawyer having carriage of the matter. In Tolom Abai (supra) Wood J described one such category as “the cost of clerical and secretarial assistance” which have already been taken into account by the lawyer’s charge rate under the heading professional fees.

33. Having perused the bill of cost, I am satisfied that none of the items could be described as an attempt by the first respondent to profit from the bill of cost. As I already mentioned the bill of cost is structured in form in compliance with Schedule 3 of the EPR.

34. In all the circumstances I am satisfied that the certified taxed bill of cost meets all the requirements under the PNG Power (supra) principle. In my view, the first respondent is entitled to the orders sought in the notice of motion.

Order

35. The following orders are therefore made:

1. Pursuant to Order 12 Rule 1 and Order 22 Rule 62 of the National Court Rules 1983, the certified taxed cost of K147,575.38 entered on 18 December 2021 is converted to a judgment of the National Court in favour of the first respondent.
   
2. The first respondent’s cost in this application be paid by the petitioner on party-party basis, to be taxed, if not agreed.
   

3. Time for the entry of the order is abridged.

Orders accordingly.
__________________________________________________________________
Kumbari & Associate: Lawyer for the Petitioner
Waisi Lawyers: Lawyer for the First Respondent