Mirupas v Bonou [2009] PGSC 49; SC1049 (18 December 2009)

SC1049

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 45 OF 2008

BETWEEN:

VINCENT MIRUPAS trading as MIRUPASI LAWYERS
Appellant

AND:

MILLER BONOU & 92 OTHERS OF SARA CLAN
Respondent

Waigani: Injia CJ
2009: 18th December

APPEAL – application for leave to appeal – appeal pertaining to decision of National Court ordering appellant to pay judgment sum into court trust account pending substantive hearing on bill of costs – s.63 Lawyers Act

APPEAL – main issue – whether applicant has an arguable case to warrant hearing on merits – onus on applicant to show application has merits – whether trial judge had jurisdiction to make order in view of the Lawyers Act – whether the judge misapprehended the fact in relation to evidence before court as to payment of the balance of judgment amount – trial judge erred in law and fact in assuming jurisdiction – arguable case been demonstrated – leave granted

Cases Cited:
Papua New Guinea Cases

Chan v Ombudsman Commission [1999] PNGLR 258
Breckwoldt & Co (NG) Pty Ltd v Groyke [1974] PNGLR 106
Curtain Brothers (PNG) Ltd v UPNG (2005) SC788

Overseas Cases
Australia Coal Shale Employees Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621

Counsel:
M Pokia, for the Appellant
P Mambei, for the Respondents

21st May, 2009

1. INJIA CJ: This is an application for leave to appeal against a ruling of the National Court given on 10th June 2008 in National Court proceedings OS No 61 of 2007 in which the judge ordered the judgment sum of K534,000.00 received by the appellant on behalf of the respondents, to be paid into Court pending filing of fresh proceedings by the respondent contesting appellant’s bill of costs.

2. A brief background of this application is this, the appeal is from a ruling in respect of a completed matter in which judgment had been given in favour of the plaintiffs (now respondents). The judgment had been satisfied and paid to the plaintiff’s lawyer (now appellant). The appellant paid the money into its trust account and later rendered a bill of costs in the sum of K248,843.25. The appellant deducted this amount for its costs and paid the balance to the respondents. The respondents disputed the bill of costs and the payment. The respondents filed a Notice of Motion in OS 61 of 2007 seeking orders for the judgment amount to be paid into court and to have the bill taxed. IN separate fresh proceedings in OS 322 of 2008, the appellant sought permanent injunction to stop the proceedings on the concluded proceedings in OS 61 of 2007 being conducted. The appellant also filed a motion in the fresh proceedings seeking interim stay of the hearing of the respondents motion in OS 61 of 2007. The trial judge declined to entertain the appellant’s notice of motion and dealt with the respondent’s notice of motion. The trial judge ordered the judgment sum of K534,000.00 received by the appellant on behalf of the respondents, to be paid into Court pending filing of fresh proceedings by the respondent contesting appellant’s bill of costs, pursuant to s.63 of the Lawyers Act 1986.

3. The main issue to be decided in this application is whether the appellant has an arguable case to warrant a hearing on the merits. The onus is on the appellant to show that the application has merit. He must show its exercise was manifestly unreasonable, exercised on wrong principle or a mistake of fact. These principles are well established: see Kitto J I the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621 at 627, which was adopted by Clarkson J in Breckwoldt & Co (NG) Pty Ltd v Groyke [1974] PNGLR 106 at p112. Also see Curtain Brothers (PNG) Ltd v UPNG (2005) SC788. In a civil matter in which the Court is vested with jurisdiction in a procedural matter, "it is not simply a matter asserting there is an arguable case; that there has been some error. It is not the case that every error will affect the outcome of the substantive proceedings. What must be shown is, not only that there is patent error, but that the error effects a party’s substantive rights or will prevent the proper determination of the issues": Chan v Ombudsman Commission [1999] PNGLR 258.

4. One of the issues which perhaps may be the main issue in this application is whether the trial judge had the jurisdiction to make the order he did in view of the special provisions in s.63 of the Lawyers Act for a client aggrieved by his lawyers bill of costs to seek taxation of that bill before the Registrar. There is also an issue as to whether the judge misapprehended the fact in relation to the evidence before the Court that the balance of the judgment amount was already paid and receipt of it confirmed by the principal plaintiff. An order for the amount deducted for the bill of costs to be paid into court may have been in order but not the entire judgment sum. I am satisfied that an arguable case has been demonstrated that the trial judge erred in law and fact in assuming jurisdiction to order judgment sum to be paid into court and particularly when the balance of the judgment sum had been paid to the respondents. I am satisfied that the order prevented or prejudiced the appellant in contesting the challenge to its bill in the normal way and deprived the appellant of a hearing before the fresh proceedings were commenced by the respondents under s.63 of the Lawyers Act.
5. For these reasons, I grant leave to appeal. Costs shall be in the cause of the appeal.

______________________________
Mirupasi Lawyers: Lawyer for the Appellant
Mambei Lawyers: Lawyers for the Respondent