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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 40 OF 2013
BETWEEN
BANK OF SOUTH PACIFIC LIMITED
Appellant
AND
THOMAS SEROWA
First Respondent
AND
THOMAS SEROWA trading as THOMAS SEROWA & CO.
Second Respondent
Waigani: Makail, J
2014: 19th June & 25th July
SUPREME COURT – PRACTICE & PROCEDURE – Costs – Application for review of taxed costs – Hearing de novo – Grounds of objection – Excessiveness – Unreasonableness – Assessment of costs – Supreme Court Rules – O. 12, r. 37(1), (2) & (3).
Cases cited:
Tolom Abai v. The State (2000) SC639
Hii Luke v. Richard Maribu (2012) SC1188
Canisius Karingu v. PNG Law Society (2001) SC674
Counsel:
Mr R. Mannrai, for Appellant
First Respondent, in person & on behalf of Second Respondent
RULING
25th July, 2014
1. MAKAIL, J: This is an application for review of taxed costs brought pursuant to O. 12, r. 37(1), (2) & (3) of the Supreme Court Rules. There is also the respondents' application for entry of judgment on the taxed costs brought under O. 12, r. 36(3) of the Supreme Court Rules ("SCR") for determination.
2. Order 12, rule 37 (supra) provides for review of decision of taxing officer to certify costs after a taxation hearing and O. 12, r. 36 (supra) provides for entry of judgment on the taxed costs.
3. On 03rd May 2013, the appellant lodged an application for leave to appeal against an interlocutory judgment of the Mt Hagen National Court made on 05th April 2013 whereby the National Court struck out the defence filed by the appellant, entered judgment against the appellant and ordered the matter to proceed to assessment of damages.
4. On 17th April 2013, the Supreme Court refused the application for leave and ordered the appellant to pay the respondents' costs on a party/party basis. On 16th December 2013, the respondents filed a bill of costs in the sum of K315,597.70. On 28th March 2014, the taxation hearing was adjourned to 03rd April 2014 which time the appellant's lawyers Warner Shand Lawyers in Mt Hagen briefed Mannrai Lawyers in Port Moresby to attend the hearing. On 03rd April 2014, the taxing officer taxed the bill of costs and allowed a sum of K376,989.13. The difference was K61,391.43.
5. The appellant submitted that given that costs were incurred in defending the interlocutory application for leave and not the substantive appeal and the sum of K376,989.13 is excessive and unreasonable. In addition, there was no basis for the taxing officer to award a further sum of K63,391.43. In any case, failure to file a notice of objection did not stop the taxing officer from independently assessing the bill of costs before making a decision on the final sum.
6. The respondents objected to the application for review and seek entry of judgment on the taxed costs of K376,989.13 on the following grounds:
(a) The appellant delayed the taxation hearing by not availing itself twice on the appointed dates (04th and 28th March 2014) and failed to negotiate settlement of the costs.
(b) The appellant failed to file an objection in response to the bill of costs as required by the SCR. The failure precluded it from objecting to the bill of costs and the taxing officer had no choice but to award the sum claimed in the bill of costs.
(c) If the Court were to review the costs, they would be prejudiced because they have not filed any response to the application.
(d) In any case, as to the merits of the application, the sum awarded as taxed costs is not excessive and unreasonable but was evidence of time and effort put into preparing and defending the application for leave.
(e) Furthermore, the affidavit of Mr Peri of counsel for the appellant is scandalous and oppressive as it suggests that the sum awarded is equivalent to that of a Queens Counsel and should be struck out. That suggestion ignores the fact that substantial time and effort had been put into defending the application for leave.
7. Firstly, in relation to the application for entry of judgment on taxed costs, as the appellant has exercised its right to review the taxed costs within the prescribed time under O. 12, r. 37 (supra), I am not satisfied that it has defaulted in settling the taxed costs such that there should be a judgment against it. Accordingly, I refuse the application.
8. As to the second application, there is no issue with regards to the jurisdiction of a single judge of the Supreme Court to review the decision of the taxing officer on costs: see O. 12, r. 37 (supra), Tolom Abai v. The State (2000) SC639 and Hii Luke v. Richard Maribu (2012) SC1188. There is also no dispute with regards to a self-represented litigant like the respondents claiming costs under the SCR: see Canisius Karingu v. PNG Law Society (2001) SC674.
9. But there appears to be a dispute in relation to whether the hearing is de novo. Based on the respondents' submissions, they appear to say that the appellant is stopped from objecting to the bill of costs and the sum claimed in each item because it has failed to file an objection at the original hearing. With respect, this contention is misconceived because O. 12, r. 37 (supra), allows an aggrieved party to seek a review of the decision of the taxing officer to certify costs. That hearing is a hearing de novo. What this means is that it is a fresh hearing and the Court may receive evidence including any objections filed by the appellant for the purpose of reviewing the taxed costs: see Tolom Abai v. The State (supra) and Hii Luke v. Richard Maribu (supra). In assessing the costs, the Court is guided by the basic principle that costs must be reasonably incurred, reasonable and not excessive. On this basis, I proceed to review the taxed costs.
10. For the purpose of assessing the costs, there are two bills of costs; one filed on 02nd December 2013 and the other on 01st April 2014 in the form of an affidavit sworn by the first respondent. The latter one covers costs preceding the date of filing of the former one. I have perused them, the appellant's objection to the first bill and particulars of objection, item by item, as deposed to in the affidavit of Mr Peri (supra). I have also considered the written submissions of both parties on the law. The first matter that needs to be pointed out is that each bill does not state the hourly rate used to calculate the costs per item although at the last page of the bill, K800.00 is stated as the hourly rate. So it appears that K800.00 was applied per item but this is contrary to the schedule of costs where the hourly rate varies item by item. This opens the door to criticism as to how the final sum was arrived at and the suggestion that it was equivalent to a Queens Counsel's costs may not be unfounded after all.
11. Secondly, the fourth schedule of the SCR provides for the general schedule of costs, in this case, party/party costs. It sets out item by item and the rate per item. Finally, notwithstanding the failure by the appellant to file an objection to the bills, it was within the discretion of the taxing officer to assess costs item by item based on the rates set out in the schedule. As this was not done, I will review by assessing each bill according to the rates set out in the schedule. Below is my assessment of the first bill.
30 mins. It would take 30 mins to attend and receive the Court documents, (application for leave to appeal and supporting affidavit) from the appellant's agent and perusing the cover letter from Warner Shand Lawyers. I allow K225.00 as professional costs.
356 mins. It would take 1hour all up to prepare, attend and serve the letter and consent order on the appellant's lawyers and also fax the same documents to Deputy Registrar, Supreme Court in Waigani and I allow K450.00. I also allow K50.00 for preparing letter. The total sum as professional costs is K500.00 and K8.00 (K4.00 per page x 2) as disbursement.
28 mins. It takes 5 minutes to peruse an email in response from Deputy Registrar Supreme Court not 28 mins. I allow K25.00 as per rate under Item 9 of Schedule 4.
27 mins. It takes 5 mins to read an email in response from appellant's city agent lawyers, not 27 mins. I allow K25.00 as per rate under Item 9 of Schedule 4.
558 mins. It will take at least 30 minutes to read the leave application, not 120 minutes which is 2 hours for a 3 page document. It would take about 2 hours for the respondents to read the affidavit of Koeya J. Peri including the annexures filed in support of the leave application, not 7 hours. This is not a complex matter. It was an appeal against entry of default judgement with damages to be assessed and also taking into account that the respondents are self represented. I allow K300.00 per hour which gives a total sum of K750.00.
1,847 mins. It takes 2 hours to draft and settle an affidavit in response including annexures. I allow K600.00. For disbursements, for photocopying, the sum of K20.00 should be allowed for the original and K4.00 for carbon copies across the board for every page for the 163 pages which gives K652.00 x 3 copies give a total of K1,956.00.
178 mins. It takes only 5 mins to draft a letter, not 3 hours just to issue a warning letter. I allow K50.00 and the costs of photocopies cost is K4.00 as disbursement.
300 mins. The airline ticket cost for K491.00 is allowed as disbursement. Actual travel time between Mt. Hagen and Port Moresby is 1 hour but including check-in and waiting time, all up, I allow 90 mins at K300.00 per hour, which gives a total sum of K450.00. Further, given that this is not a complex matter and that the respondents are self-represented, I allow K300.00 per hour for 2 hours for preparation of arguments/submissions to oppose leave at K600.00. The total sum for professional costs is K1,050.00. The respondents should be further allowed 5 nights' accommodation including food & taxi hire for attending the hearing on 07th August 2013 at K910.00 as disbursement. Total disbursement allowed is K1,401.00.
147 mins. For attending Supreme Court Registry, filing and uplifting of affidavit of Thomas Serowa to oppose leave, I allow K50.00 as per rate under Item 13 of Schedule 4.
361 mins. For locating, attending and serving affidavit of Thomas Serowa to oppose leave at Mannrai lawyers' Office, I allow K50.00 as per rate under Item 13 of Schedule 4. For perusing email from Mannrai Lawyers in relation to next date of hearing of 14th August 2013, I allow K25.00 as per rate under Item 9 of Schedule 4. Total sum allowed is K75.00 as professional costs.
320 mins. It does not take 3.8 hours just to draft an affidavit of service of Thomas Serowa on service of the affidavit in opposition to leave on the appellant's city agent lawyers. Applying K250.00 per hour as per rate under Item 3 of Schedule 4, I allow 30 mins which gives K125.00. As to the return trip to Mt Hagen on 09th August 2013, the actual travel time between Port Moresby and Mt Hagen is 1 hour but including check-in and waiting time, all up, I allow 90 mins at K300.00 per hour, which gives a total sum of K450.00. Furthermore, the airline return ticket cost for K491.00 is allowed as disbursement. Total professional cost allowed is K575.00 and total disbursement allowed is K491.00.
90 mins. I allow the respondents' costs of travel from Mt Hagen to Port Moresby on 10th August 2013 for hearing of the leave application on 12th August 2013 and return on 15th August 2013. Actual travel time is 1 hour including check-in and waiting time, all up, 90 mins at K300.00 per hour, which gives a total sum of K450.00. The respondents should be further allowed 5 nights' accommodation including food & taxi hire for attending the hearing on 12th August 2013 which was further deferred to 14th August 2013 at K90.00 per night for K450.00, food at K60.00 per day for 6 days at K360.00 and taxi cost for 6 days by K50.00 for K300.00 which gives a total of K1,110.00 as disbursement. Furthermore, the airline return ticket cost for K491.00 is allowed as disbursement. Total disbursement allowed is K1,601.00.
266 mins. The respondents have prepared for arguments/ submissions for opposing the leave application and it does not take another 4.4 hours to repeat the task here except to review which would take 30 mins. Applying K300.00 per hour, I allow K150.00 for 30 mins. In addition, for attendance at Waigani Supreme Court Registry and advised matter adjourned to 14th August 2013 for hearing, I allow an additional 30 mins at K150.00. Total sum allowed is K300.00 as professional costs.
23 mins. It takes only 5 mins to read an email on the next date of hearing of the leave application and not 23 mins. I allow K25.00 as per rate under Item 9 of Schedule 4.
456 mins. The cost for preparing arguments/ submissions for opposing the leave application is duplication and disallowed. Costs for appearance in Court to oppose leave application and matter further deferred to 04th September 2013 is allowed at 1hour which is K300.00.
90 mins. I allow the respondents' costs of travel from Port Moresby to Mt Hagen on 15th August 2013 following the further adjournment of the leave application to 04th September 2013. Actual travel time is 1 hour including check-in and waiting time, all up, 90 mins at K300.00 per hour, which gives a total sum of K450.00. Furthermore, the airline return ticket cost for K554.80 is allowed as disbursement.
90 mins. I allow the respondents' costs of travel from Mt Hagen to Port Moresby on 21st August 2013 not only to conduct legal search but also to conduct search at the Waigani Supreme Court Registry to confirm if the appellant had filed an amended application based on the respondents' objection for want of form. The respondents should be further allowed 7 nights' accommodation including food & taxi hire from 21st August 2013 to 27th August 2013 at K90.00 per night for K630.00, food at K60.00 per day for 8 days at K480.00 and taxi cost for 8 days at K50.00 per day for K400.00 which gives a total of K1,510.00 as disbursement. Actual travel time is 1 hour including check-in and waiting time, all up, 90 mins at K300.00 per hour, which gives a total sum of K450.00. Furthermore, the airline return ticket cost for K491.00 is allowed as disbursement. Total disbursement allowed is K2,001.00.
742 mins. For attending Supreme Court Registry and conducting search on the Court file to confirm filing of amended application by appellant, I allow K50.00 as per rate under Item 13 of Schedule 4. For drafting and settling notice of motion and affidavit of Thomas Serowa including annexures for dismissal of leave application, all up, I allow 2 hours at K300 per hour, which gives a total sum of K600.00. Total professional cost allowed is K650.00. In addition, I allow costs of photocopies (3 x 23 pages @ K4.00 per page) at K276.00 as disbursement.
277 mins. I allow costs for attendance at Waigani Supreme Court Registry and filing of the notice of motion and supporting affidavit of Thomas Serowa to dismiss the leave application for want of form. As per the rate under Item 13 of Schedule 4, I allow K50.00.00. In addition, I allow the respondents' costs of travel from Port Moresby to Mt Hagen on 15th August 2013 following the filing of the application to dismiss the leave application. Actual travel time is 1 hour including check-in and waiting time, all up, 90 mins at K300.00 per hour, which gives a total sum of K450.00. Total professional cost allowed is K500.00. Furthermore, the airline return ticket cost for K431.50 is allowed as disbursement.
393 min. First, I allow costs for attendance and service of the notice of motion and supporting affidavit of Thomas Serowa for the application to dismiss the leave application on Warner Shand Lawyers at K50.00 as per rate under Item 13 of Schedule 4. Secondly, for drafting and settling affidavit of service on service of notice of motion and supporting affidavit on Warner Shad Lawyers, applying hourly rate of K300.00, I allow 15 mins at K75.00. Total professional cost allowed is K125.00. Finally, I allow costs of photocopies (K84.00 + K8.00) at K92.00 as disbursement.
321 mins. I allow the respondents' costs of travel from Mt Hagen to Port Moresby on 10th August 2013 to attend the hearing of the leave application on 04th September 2013 and return on 07th September 2013. Actual travel time is 1 hour including check-in and waiting time, all up, 90 mins at K300.00 per hour, which gives a total sum of K450.00. The respondents should be further allowed 4 nights' accommodation including food & taxi hire for attending the hearing on 04th September 2013 at K90.00 per night for K360.00, food at K60.00 per day for 5 days at K300.00 and taxi cost for 5 days by K50.00 for K250.00 which gives a total of K910.00 as disbursement. Furthermore, the airline ticket cost of K491.00 is allowed as disbursement.
Cost for attendance at Waigani Supreme Court Registry and conducting Court file search and noting endorsement of the Court orders, I allow K50.00 as per rate under Item 13 of Schedule 4. Finally, I allow costs of photocopies (3 x 2 pages @ K4.00 per page) at K24.00 as disbursement. Total disbursement allowed is K1,425.00.
230 mins. I disallow costs for preparing arguments/submissions as it was the date of hearing of the leave application but I allow costs for appearance in Court and leave application further adjourned to 05th September 2013 at 1:30 pm for hearing at 30 mins at K150.00 and for waiting, a further 30 mins at K150.00 which gives a total of K300.00.
225 mins. I disallow costs for preparing arguments/submissions as it was the date of hearing of the leave application but I allow costs for appearance in Court and leave application further adjourned to 11th October 2013 for hearing pending provision of National Court Transcripts at 30 mins at K150.00 and for waiting, a further 30 mins at K150.00 which gives a total of K300.00. In addition, I allow 15 mins at K75.00 for perusal of appellant's written extract of submissions which gives a total sum of K375.00 as professional costs.
90 mins. I allow the respondents' costs of travel from Port Moresby to Mt Hagen on 15th August 2013 following the adjournment of the leave application to 11th October 2013. Actual travel time is 1 hour including check-in and waiting time, all up, 90 mins at K300.00 per hour, which gives a total sum of K450.00. Furthermore, the airline return ticket cost of K409.00 is allowed as disbursement.
90 mins. It is unnecessary for the first respondent to travel to Port Moresby just to conduct a file search to confirm the availability of the National Court Transcripts. A request either by phone or letter to the appellant's lawyers would suffice. In any case, an agent should have been engaged to undertake this task. For these reasons, I disallow costs of travel, including related costs for accommodation, food and taxi hire.
90 mins. For the same reasons given above, the respondents' cost of travel from Port Moresby to Mt Hagen is disallowed.
387 mins. This time equates to 6.45 hours which time is too long and unreasonable for conducting research on cases authorities brought to the attention of the parties by the Court at the last hearing and reading them in preparation for the next hearing. I allow 2 hours at K300.00 per hour which gives a total sum of K600.00. In addition, I allow costs of photocopies of case authorities (2 x 9 pages @ K4.00 per page = K72.00 + 2 x 19 pages @ K4.00 per page = K152.00) which gives a total sum of K224.00 as disbursement.
747 mins. This time equates to 12.45 hours and was spent on preparing, reviewing and settling amended written extract of submissions over a 3 day period. As the respondents had prepared their arguments/submissions, I will reduce that time by half which equates to 2 hours per day which gives a total of 6 hours at K300.00 per hour. I allow K900.00 as professional costs. In addition, I allow costs for photocopies of the amended submissions (3 x 6 pages @ K4.00 per page = K72.00). I allow K72.00 as disbursement.
159 mins. I allow the respondents' costs of travel from Mt Hagen to Port Moresby on 10th October 2013 to attend the hearing of the leave application on 11th October 2013 and return on 19th October 2013. Actual travel time is 1 hour including check-in and waiting time, all up, 90 mins at K300.00 per hour, which gives a total sum of K450.00. The respondents should be further allowed 9 nights' accommodation including food & taxi hire for attending the hearing on 12th August 2013 which was further deferred to 14th August 2013 at K90.00 per night for 9 days at K810.00, food at K60.00 per day for 9 days at K540.00 and taxi cost for 9 days by K50.00 at K450.00 which gives a total of K1,800.00 as disbursement. Furthermore, the airline return ticket cost for K496.50 is allowed as disbursement. Finally, for costs of attendance at Waigani Supreme Court Registry, filing and uplifting of affidavit of service of Thomas Serowa, I allow K50.00 as per rate under Item 13 of Schedule 4. Total professional costs allowed are K500.00 and total disbursement allowed is K2,296.50.
215 mins. I disallow costs for preparing arguments/submissions as it was the date of hearing of the leave application but I allow costs for attendance at Waigani Supreme Court Registry and leave application further adjourned to 14th October 2013 at 1:30 pm for hearing. Applying K300.00 per hour at 30 mins gives K150.00.
198 mins. I disallow costs for preparing arguments/submissions as it was the date of hearing of the leave application but I allow costs for attendance at Waigani Supreme Court Registry and leave application further adjourned to 16th October 2013 at 1:30 pm for hearing. Applying K300.00 per hour at 30 mins gives K150.00.
165 mins. For attending Supreme Court Registry and conducting search on the Court file to confirm availability or filing of National Court Transcript, I allow K50.00 as per rate under Item 13 of Schedule 4.
388 mins. I disallow costs for preparing arguments/submissions as it was the date of hearing of the leave application but I allow costs for attendance at Waigani Supreme Court for hearing and informed leave application fixed for hearing on 17th October 2013 at 3:00 pm. I allow K300.00 per hour for waiting time. In addition, I allow 1 hour for perusing affidavit of Rex Mannrai enclosing National Court Transcripts at K300.00. This gives a total sum of K600.00 as professional costs.
356 mins. In light of the provision of the National Court Transcripts which was pertinent to the leave application, I allow costs for reviewing and settling arguments/submissions before the hearing of the leave application and also costs for appearance including waiting time at Waigani Supreme Court for hearing 17th October 2013 at 3:00 pm. For each activity, I allow 1 hour at K300.00 which gives a total of 3 hours at K900.00.
231 mins. I disallow cost for attendance at Waigani Supreme Court Registry and conducting Court file search to ascertain the terms of the Court order of 17th October 2013 because it is unnecessary. The respondents should have taken note of the order at date of decision. However, I allow K75.00 for drafting and settling the order of 17th October 2013 and K50.00 as per rate under Item 13 of Schedule 4 for attendance at Waigani Supreme Court Registry, filing and uplifting of the order. The total professional cost allowed is K125.00. Finally, I allow costs of photocopies (3 x 2 pages @ K4.00 per page) at K24.00 as disbursement.
90 mins. I allow the respondents' costs of travel from Port Moresby to Mt Hagen on 19th October 2013 following decision of Supreme Court to refuse leave application. Actual travel time is 1 hour including check-in and waiting time, all up, 90 mins at K300.00 per hour, which gives a total sum of K450.00. Furthermore, the airline return ticket cost of K565.90 is allowed as disbursement.
1, 532 mins. This is a total of 25 hours over a period of 4 days. It does not cost the respondents 25 hours to peruse the Court file, documents and to prepare a bill of cost. However, taking into account that this was not a complex matter as it was on question of leave and the numerous adjournments/deferments of the hearing of the application for leave for one reason or the other, I am satisfied that respondents' costs had significantly increased. I allow 4 hours for perusing Court documents, records of attendance/activities and drafting bill of costs. Applying the rate of K300.00 per hour for 4 hours gives K1,200.00 as professional costs. Additionally, I allow costs of photocopies (3 x 10 pages @ K4.00 per page) which give K120.00. I disallow costs for purchase of 5 x Arch-Lever Folders. These are to be borne by the respondents as part of administration costs.
159 mins. I disallow the respondents' cost of travel to Port Moresby on 23rd October 2013 and return to Mt Hagen on 26th October 2013 to file the bill of cost including related costs of accommodation, food and taxi hire. I also disallow cost of attendance at Waigani Supreme Court Registry to lodge the bill. The bill was not drafted in accordance with the Rules and was rejected by the Supreme Court Registry and in my view the appellant should not and cannot bear the costs of respondents' blunder.
90 mins. The respondents' cost of travel to Mount Hagen from Port Moresby on 26th October 2013 is disallowed for the above stated reason.
187 mins. Given that the respondents are self-represented, in my view if a lawyer was retained, it would not be necessary to conduct a research as to how a bill of costs should be drafted and presented for taxing. In my view the costs incurred were unnecessary and are disallowed. But I do allow costs of preparing, reviewing and settling an amended bill of costs. I allow 2 hours for this activity at K300.00 per hour which gives a total sum of K600.00 as professional costs.
159 mins. I allow the respondents' costs of travel from Mt Hagen to Port Moresby on 28th October 2013 to file an amended bill of costs and return on 01st November 2013. Actual travel time is 1 hour including check-in and waiting time, all up, 90 mins at K300.00 per hour, which gives a total sum of K450.00. The respondents should be further allowed 2 nights' accommodation only instead of 4 nights including food & taxi hire at K90.00 per night for 3 days at K270.00, food at K60.00 per day for 3 days at K180.00 and taxi cost for 3 days by K50.00 at K150.00 which gives a total of K600.00 as disbursement. In my view it does not take more than 2 days to lodge and uplift copies of the bill of costs. The costs incurred for the extra days in Port Moresby are unnecessary and should not be borne by the appellant.
In addition, the airline ticket cost of K560.30 is allowed as disbursement. Finally, for costs of attendance at Waigani Supreme Court Registry, filing and uplifting of bill of costs, I allow K50.00 as per rate under Item 13 of Schedule 4. Total professional cost allowed is K500.00 and total disbursement allowed is K1,060.00.
469 mins. The leave application was refused and this was a Supreme Court matter registered, heard and determined at Waigani. The taxing officer is based in Waigani. There was no reason to have it transferred to Mt Hagen. The costs incurred by the respondents to file a motion to transfer matter are unnecessary and disallowed.
175 mins. The cost of preparing a letter of offer directly to the appellant's Mr John Maddison to settle the costs including cost of photocopying were unnecessary as the appellant was represented by lawyers and the letter should have been addressed to Warner Shand Lawyers. These costs are disallowed.
159 mins. The cost of travel to Bank South Pacific's office at Harbour city to serve the letter of offer to settle the costs including the order of 17th October 2013 on Mr Maddison is unnecessary as the appellant was represented by lawyers and the letter should have been addressed to Warner Shand Lawyers. This cost is disallowed.
90 mins. I allow the respondents' costs of travel from Port Moresby to Mt Hagen on 01st November 2013 following filing and uplifting of sealed copies of bill of costs. Actual travel time is 1 hour including check-in and waiting time, all up, 90 mins at K300.00 per hour, which gives a total sum of K450.00. Furthermore, the airline ticket cost of K624.10 is allowed as disbursement.
294 mins. The activity undertaken here for drafting, reviewing and settling an affidavit of service and appearance at Waigani Supreme Court Registry to file and uplift the affidavit of service including disbursements is vague. Costs incurred are disallowed.
20 mins. The cost of time spent in making a telephone call to Mr Maddison of Bank South Pacific and discussion on settlement of costs including telephone cost are unnecessary as the appellant was represented by lawyers and the respondents should have communicated with the lawyers for the appellant. These costs are disallowed.
180 mins. The leave application was refused and this was a Supreme Court matter registered, heard and determined at Waigani. The taxing officer is based in Waigani. There was no reason to have it transferred to Mt Hagen. The cost incurred by the respondents to travel to Port Moresby on 12th November 2013 and return to Mt Hagen on 07th December 2013 including related costs for accommodation, food and taxi hire were unnecessary. These costs are disallowed.
27 mins. The cost of time spent in making a telephone call to Mr Maddison of Bank South Pacific and following up on discussion on settlement of costs including telephone cost are unnecessary as the appellant was represented by lawyers and the respondents should have communicated with them. These costs are disallowed.
27 mins. The cost of time spent in making a telephone call to Mr Maddison of Bank South Pacific and following up on discussion on settlement of costs including telephone cost are unnecessary for the above stated reason.
27 mins. The cost of time spent in making a telephone call to Mr Maddison of Bank South Pacific and following up on discussion on settlement of costs including telephone cost are unnecessary for the above stated reason.
27 mins. The cost of time spent in making a telephone call to Mr Maddison of Bank South Pacific and following up on discussion on settlement of costs including telephone cost are unnecessary for the above stated reason.
27 mins. The cost of time spent in making a telephone call to Mr Maddison of Bank South Pacific and following up on discussion on settlement of costs including telephone cost are unnecessary for the above stated reason.
10 mins. The cost of abandoning a telephone call with Mr Maddison as there was no fruitful outcome is unnecessary and that call should have been made to the lawyers for the appellant. It is disallowed.
365 mins. The cost of reviewing the bill of costs because there was no settlement of the costs is unnecessary and disallowed because any settlement offer should have been made to the appellant's lawyers Warner Shand Lawyers. It is then for them to take up with the appellant, possibly with Mr Maddison. As to the cost for preparing arguments/submissions for taxation hearing, much of the information which would form the basis of the submission have been incorporated into the bill of costs. For this reason, I allow cost for reviewing and settling the bill of costs at 2 hours at K300.00 per hour. The sum allowed is K600.00. In addition, I allow costs of photocopies (14 pages x 3 @ K4.00 = K168.00 + 16 x 3 pages @ K4.00 per page = K192.00) which gives K360.00 as disbursement. The rest of the activities are repetitious and costs incurred are disallowed.
389 mins. For attending Waigani Supreme Court Registry and lodging and uplifting bill of costs and application for taxation, I allow K50.00 as per rate under Item 13 of Schedule 4. As for attending and serving the same documents on the appellant, the cost incurred here was unnecessary because the appellant had lawyers, Warner Shand Lawyers and should have served these documents on them.
70 mins. As for drafting, reviewing and settling letter to the appellant enclosing bill of costs and application for taxation, again, the costs incurred were unnecessary because the appellant had lawyers, Warner Shand Lawyers and should have written to them including serving these documents on them. This cost is disallowed.
5,432 mins. The respondents claimed a sum of K14,000.00 for 90 hours estimated cost for doing other things. But this sum has not been justified. It was unnecessary for the first respondent to travel between Mount Hagen and Port Moresby to file a further motion to transfer the matter to Mount Hagen for taxation purposes or otherwise. Repeating the reasons given above, this case was registered, heard and determined at Waigani, the Court file is in Waigani and the taxing officer stays in Port Moresby to conduct the taxation.
Any costs incurred for reviewing, conducting file search, attendance at the Supreme Court registry, any travel expenses including airline ticket, accommodation, taxi hire and food associated with the application to transfer should never have been allowed at all after the leave application was refused on 17th October 2013. Similarly, any costs incurred in pursuing offer for settlement of costs with Mr Maddison were unnecessary because the respondents by-passed the appellant's lawyers. Costs are disallowed.
12. As to the second bill, below is my assessment.
231 mins. This equates to 3.85 hours of researching cases law on costs by self-represented litigants. The argument is that if a litigant prefers to be self-represented, then he or she must be prepared to prosecute or defend the case and must not unnecessarily incur costs and pass on to the opposing party. For this reason, the appellant should not be charged costs for time researching the issue of costs of self-represented litigant. But as per rate under Item 24 of schedule 4, I will allow 1 hour for this activity at an hourly rate of K200.00 as professional costs. I allow costs of use of Internet at Holiday Inn at K50.00 and photocopies (20 pages x 3 copies @ K4.00 per page) at K240.00. Total disbursement allowed is K290.00.
145 mins. This equates to 2.41 hours for attendance at taxation hearing on 05th March 2014 and hearing adjourned to 28th March 2014. As per rate under Item 24 of schedule 4, I will allow 1 hour at an hourly rate of K200.00 as professional costs.
90 mins. As per rate under Item 9 of schedule 4, I allow K50.00 for preparing a short letter to appellant's lawyers to inform them of the new date of taxation hearing. For attendance and service of this letter on the appellant's lawyers, as per rate under Item 13 of schedule 4, I allow K50.00. For drafting, reviewing and settling affidavit of service of first respondent on service of letter of new date of taxation hearing, I allow 30 mins at K75.00. Total allowed as professional cost is K175.00. Printing cost of letter is disallowed but I allow costs of photocopies of affidavit of service (3 copies x 3 pages @ K4.00 per page) at K36.00 as disbursement.
80 mins. Respondents' cost of travel from Mount Hagen to Port Moresby on 25th March 2014 is allowed at K200.00 as per rate under Item 18 of schedule 4. Air Niugini Airline ticket of K496.50 is allowed as disbursement.
457 mins. This equates to 7.61 hours for attendance at taxation hearing on 28th March 2014 and hearing further adjourned to 03rd April 2014. As per rate under Item 24 of schedule 4, I will allow 1 hour at an hourly rate of K200.00 as professional costs.
The above time includes these additional activities and as per rate under Item 9 of schedule 4, I allow K50.00 for preparing a short letter to appellant's lawyers to inform them of the new date of taxation hearing. For attendance and service of this letter on the appellant's lawyers, as per rate under Item 13 of schedule 4, I allow K50.00. For attendance by telephone to appellant's lawyers to request copy of signed proof of service form, as per rate under Item 12(a) of schedule 4, I allow K50.00. Total allowed as professional cost is K350.00. Printing cost of letter is disallowed but I allow costs of photocopies of affidavit of service (3 copies x 3 pages @ K4.00 per page) at K36.00 as disbursement.
423 mins. This equates to 7 hours for drafting, reviewing and settling affidavit of service of first respondent on service of letter of new date of taxation hearing, I allow 30 mins at K75.00. Attendance at Waigani Supreme Court Registry, filing and uplifting affidavit of service, as per rate under Item 13 of schedule 4, I allow K50.00. For drafting, reviewing and settling written submissions for taxation hearing, I apply K200.00 per hour for 2 hours which gives K400.00. Total professional cost allowed is K525.00. Cost of photocopies (11 x 3 pages @ K4.00 per page = K132.00 + 3 x 4 pages @ K4.00 per page = K48.00) is K180.00 as disbursement.
123 mins. The cost for preparation for attendance at the taxation hearing is duplication and disallowed as it has been claimed in the preparation of submissions. The taxation hearing was fixed for 03rd April 2014 the claim for cost for attendance at the taxation hearing on 02nd April 2014 is misconceived and disallowed.
129 mins. This time is roughly 2 hours and cost for attendance at the taxation hearing as per rate under Item 24 of schedule 4 at K200.00 per hour for 2 hours is K400.00. For cost for drafting, reviewing and settling certificate of taxation, I allow 15 mins at K200.00 per hour which gives K50.00. Total professional cost allowed is K450.00. Cost of photocopies of certificate of taxation (3 x 3 pages @ K4.00 per page) is K36.00 as disbursement.
80 mins. I allow the respondents' costs of travel from Port Moresby to Mt Hagen on 04th April 2014 following taxation hearing. Actual travel time is 1 hour including check-in and waiting time, all up, 80 mins at K200.00 per hour, which I round up to K400.00. In addition, the airline return ticket cost of K437.10 is allowed as disbursement. Finally, related costs of accommodation, food and taxi fare are allowed. These are K90.00 per night for 10 days at K900.00, food at K60.00 per day for 11 days at K660.00 and taxi cost for 11 days at K50.00 per day at K550.00 which gives a total of K2,547.10 as disbursement.
13. Adding the costs in each bill, the final professional cost allowed is K19,909.10 and the final disbursement allowed is K18,959.30. The total cost allowed is K38,868.40. I award this sum. Parties are granted liberty to apply within seven days to correct any mistakes in the figures. The respondents shall pay the appellant's costs of both applications, to be taxed, if not agreed.
Ruling and orders accordingly.
_____________________________________________________
Mannrai Lawyers (City agent for
Warner Shand Lawyers): Lawyers for the Appellant
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