Thompson v Karingu [2011] PGSC 52; SC1141 (6 December 2011)

SC1141

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 28 0F 2007

ROYALE THOMPSON, FRAZER PITPIT, SIR KINA BONA,
PIUS KINGAL, NIGEL AGONIA, NET KOLEALA
& JOHNNY BOGOMBARI,
CONSTITUTING THE LAWYERS STATUTORY COMMITTEE
OF THE PAPUA NEW GUINEA LAW SOCIETY
Appellants

V

CANISIUS KARINGU
Respondent

Waigani: Cannings, Gabi & Yagi JJ
2011: 29 November, 6 December

COSTS – application to Supreme Court for order for costs – whether application competent – Supreme Court Rules, Order 12.

After a Supreme Court appeal was dismissed and the respondent was awarded costs of the appeal he filed three separate bills of costs to the taxing officer: one in relation to the substantive appeal and two in relation to interlocutory applications that had been heard but not determined by the time the appeal was dismissed. The taxing officer certified the bill of costs in relation to the substantive appeal but did not tax costs in relation to the two interlocutory applications, instead referring those matters to the Chief Justice for deliberation. The Chief Justice set the matter down for hearing before the full court of the Supreme Court. At the hearing the Court queried whether the application was properly before it and heard argument on that preliminary issue as well as on the merits of the application.

Held:

(1) The objection and review procedure in the Supreme Court Rules, Order 12, is a procedural code that should be invoked in the event of a dispute over interpretation or application of costs orders of the Supreme Court.

(2) The procedure was not followed in this case. Therefore the court ordered that: the application was incompetent and dismissed; the parties bear their own costs; and the unresolved bills of costs be subject to taxation by the taxing officer in accordance with the Supreme Court Rules.

Cases cited

The following cases are cited in the judgment:

Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission (2000) SC651
Thompson & Ors v Karingu (2008) SC954
William Moses v Otto Benal Magiten (2006) SC875

APPLICATION

This was an application for costs regarding two interlocutory applications.

Counsel

G Poole, for the appellant
C Karingu, the respondent, in person

6 December, 2011

1. BY THE COURT: This is a ruling on an application by the respondent, Mr Canisius Karingu, for costs, which has come before this Court in the following way. In 2007 the appellants, who at that time constituted the Lawyers Statutory Committee of the Papua New Guinea Law Society, filed an appeal in the Supreme Court against a judgment of Justice Los in the National Court which, amongst other things, ordered that Mr Karingu be issued with a practising certificate and allowed to practise as a lawyer. On 28 November 2008 the Supreme Court (constituted by Injia CJ, Mogish J and Cannings J) dismissed the appeal for want of prosecution (Thompson & Ors v Karingu (2008) SC954) and in doing so ordered the appellants to "pay the respondent's costs of the appeal on a party-party basis, to be taxed if not agreed".

2. The parties failed to agree on costs so Mr Karingu filed three separate bills of costs to the taxing officer, the Deputy Registrar of the Supreme Court, Ms Daingo. The bills were in relation to:

• the substantive appeal, which, as indicated above, was dismissed on 28 November 2008;
  
• an interlocutory application by the appellants for a stay of the judgment of the National Court, which had been heard by a single Judge of the Supreme Court but remained un-determined at the date of dismissal of the appeal;
  
• an interlocutory application by the appellants for an order restraining Mr Karingu from pursuing the judgment of the National Court, which had been heard by another single Judge of the Supreme Court but also remained un-determined at the date of dismissal of the appeal.
  

3. The taxing officer completed taxation in relation to the first bill of costs and on 29 June 2009 issued a sealed certificate of taxation. She did not, however, tax costs in relation to the two interlocutory applications. Instead, by memorandum dated 23 September 2009, she referred those matters to the Chief Justice for deliberation. The taxing officer pointed out that she had raised with the parties the fact that because the two interlocutory applications remained un-determined there was no order for costs in respect of them. Mr Karingu was arguing that he was entitled to costs on the interlocutory applications as those costs were included in the "costs of the appeal" that had been awarded to him under the Supreme Court's order of 28 November 2008. The appellants, on the other hand, were objecting to having the costs of the interlocutory applications taxed as there was no order for costs made in respect of either of them. The Chief Justice, in response to the taxing officer's memorandum, set the matter down for a directions hearing, as a result of which Mr Karingu filed an application for costs, and the application was set down for hearing before us.

JURISDICTIONAL ISSUE

4. We heard argument on the merits of the application but in the course of doing so we raised with Mr Karingu, who represented himself, and Mr Poole, for the appellants, a jurisdictional issue: is the application properly before the full court of the Supreme Court? Both Mr Karingu and Mr Poole agreed that that is a moot point in view of the procedure in the Supreme Court Rules that allows parties to object to bills of costs and to seek review by the Court of a certificate of costs. The procedure for objection and review operates in the following way:

• A party in whose favour an order for costs has been made files a bill of costs under Rule 33 (bill of costs), which must be done within 12 months of the final order for costs (Rule 17, (time limit for taxation)).
  
• The responsibility of taxing, allowing and certifying costs is conferred by Rule 10 (Registrar to tax costs) on "taxing officers".
  
• Once a bill of costs is filed, the taxing officer appoints under Rule 34(1) (appointment to tax bill of costs) a time to tax the bill.
  
• The party who files the bill then must serve a copy of the bill on each other party to the taxation at least 21 days before the date appointed for taxation (Rule 34(2), (appointment to tax bill of costs)).
  
• A party on whom the bill is served may, by notice, object to any item in the bill, stating the grounds of objection, and the notice must be filed and served on the party in whose favour the bill is to be taxed at least seven days before the day appointed for taxing the bill. The right of objection is conferred by Rules 35(1), (2) and (3), (objection to bill of costs),which state:
  

(1) A party on whom a bill is served, may, by notice, object to any item in the bill.

(2) The notice shall list each item or part thereof in the bill which is objected to and shall also state concisely and specifically the nature and grounds of objection to each item or part objected to and the amount which it is contended should be taxed off.

(3) The notice shall be filed and served on the party in whose favour the bill is to be taxed and on any other interested party not less than 7 days before the day appointed for taxing the bill.

• The party on whom a notice of objection is served must prepare a written statement of response, which must be filed and served at least three days before the day appointed for taxing the bill, in accordance with Rules 35(4) and (5), which state:
  
  • (4) A party on whom a notice is served under sub-rule (5) must prepare a written statement of response to each item or part of an item of the bill objected to, stating concisely and specifically, the basis on which it is claimed the item or part is allowable and the reason the objection cannot be sustained, including references to any authorities relied on.
    
  • (5) The statement of response shall be filed and served on the party on whom the bill was served not less than 3 days before the day appointed for taxing the bill.
    
• Submissions on the objection may be made at the taxation conference in accordance with Rule 35(6), which states:
  

(6) Oral submissions may be made at the taxation conference:

(a) subject to the discretion of the taxing officer; and

(b) only for the purpose of explaining or clarifying an objection set out in a notice under sub-rule (3) or a response to an objection set out in a statement under sub-rule (4).

• The taxing officer is authorised for the purpose of taxation to deal with parties found under Rule 18 (delay before taxing officer) to be guilty of neglect or delay.
  
• In conducting a taxation the taxing officer has a broad range of powers under Rule 32(1) (powers of taxing officer), including summoning and examining witnesses.
  
• In the exercise of his or her powers the taxing officer must have regard to the requirements of the Rules, eg Rule 19 (costs to be allowed on taxation), 20 (disbursements in lawyers' bills) and 21 (taxing officer's discretion).
  
• The taxing officer may refer questions arising in a taxation for the direction of a Judge or the Court, under Rule 32(2), which states:
  

(2) A taxing officer may, of his own motion, refer any question arising in a taxation for the direction of a Judge or the Court.

• The taxing officer conducts a taxation conference in accordance with Rules 35(6), (7), (8) and (9) and may obtain assistance from other taxing officers under Rule 13 (taxing officers to assist each other).
  
• Within seven days after completion of taxation the taxing officer issues a sealed certificate of taxation under Rule 36(1) (certificate of taxation), which is then served by the party entitled to costs on the party responsible for their payment (Rule 36(2)).
  
• A party aggrieved by the taxed costs has 14 days after the date of issue of the certificate of taxation to seek leave to review the taxing officer's decision under Rule 37 (review of taxation), which states:
  

(1) A Court or a Judge may review the decision of a Taxing Officer, only if the taxing officer has given a certificate in accordance with that decision.

(2) A party aggrieved by the taxed costs may, within 14 days from the date of issue of the Certificate of Taxation, apply to the Court or a Judge, for leave to review the taxing officer's decision, such application to be supported by affidavit and shall be served on the other party, 3 clear days before the date of moving the application.

(3) The application shall be made by Notice of Motion and supported by affidavit which shall, amongst other things, specify the list of items to which the applicant objects and must state concisely the nature and grounds of each objection.

• If no application for leave to review is made by an aggrieved party under Rule 37 and the costs remain unpaid for 14 days after the date of service of the certificate of taxation and no extension of time to pay is granted under Rule 38 (extension of time), the Court or a Judge may, on motion by a party, under Rules 9 (entry of order for costs) or 36(3) (certificate of taxation), direct the entry of judgment for costs in the amount stated in the certificate of taxation.
  

5. There are two aspects of the above procedure that we wish to highlight. First, the taxing officer has a wide range of powers, functions, duties and responsibilities to perform, and is clothed with a considerable discretion as to what particular costs and disbursements are to be allowed for the purpose of taxation. Secondly a party who is dissatisfied with how an order for costs is being dealt with has, at two different stages of the process, the opportunity to challenge what is proposed:

(a) by filing an objection – before taxation – under Rule 35(1), to a bill of costs, which is then determined by the taxing officer; and

(b) by filing an application for leave – after taxation – under Rule 37(2), to review the taxing officer's decision.

6. The Supreme Court Rules, Order 12, is a procedural code that sets out clearly how disputes over interpretation or application of costs orders of the Supreme Court should be resolved.

THE PRESENT CASE

7. Those two important features of the Supreme Court Rules have not been appreciated by the taxing officer and the parties. The taxing officer, faced with a less than straightforward issue about how to interpret the Supreme Court's costs order of 28 November 2008 in light of the two un-determined interlocutory applications, has, with respect, failed to exercise the powers that were available to her and unnecessarily referred the matter to the Chief Justice for deliberation. The taxing officer should have, after the two contentious bills of costs were filed, and upon becoming aware of the disagreement between the parties, either insisted on the appellants filing notices of objection or appointed a time to tax the bills and proceeded with a taxation conference and simply made a decision. Whichever party is aggrieved by the decision could then have sought leave to review the decision.

8. We note that Order 12 (costs) of the Supreme Court Rules only commenced operation last year, when the Judges made the Supreme Court Amendment Rules 2010. Prior to that there was no self-contained set of costs rules for the Supreme Court. Nevertheless taxing officers were authorised and required to tax bills of costs in accordance with Order 22 of the National Court Rules (Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission (2000) SC651; William Moses v Otto Benal Magiten (2006) SC875), which conferred on taxing officers the same type of powers, functions, duties and responsibilities that are now expressly conferred by Order 12 of the Supreme Court Rules.

9. The upshot is that the correct procedure was not followed in this case. The taxing officer failed to make the decisions that should have been made, and both parties added to the confusion by not insisting on the correct procedure being followed. The application that is before us has no jurisdictional basis. It is incompetent and must be dismissed. The lack of jurisdiction has not been cured by the directions of the Chief Justice that have resulted in the application being set down for hearing before us. Both parties are responsible for allowing the application to be placed unnecessarily before this Court and will bear their own costs. The two contentious bills of costs must be subject to taxation by the taxing officer.

ORDER

(1) The application for costs is incompetent and is dismissed.

(2) The parties shall bear their own costs.

(3) The unresolved bills of costs shall be subject to taxation by the taxing officer and for that purpose the taxing officer shall within 30 days after the date of this order appoint, under Order 12, Rule 34 of the Supreme Court Rules, a time to tax the bills.

Judgment accordingly.

_____________________

O'Briens: Lawyers for the Appellants
Lawyers for the respondent: Canisius Karingu in Person