Pokia v Yallon [2016] PGSC 92; SC1707 (21 March 2016)

SC1707

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 105 of 2013

BETWEEN:
MURISO POKIA

Appellant

AND:
MENDWAN YALLON
First Respondent

AND:
DOROTHY NANAI
Second Respondent

AND:
Senior Constable JOB EREMUGO
Third Respondent

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J
2015: 18^th February, 25^th March
: 7^th April
2016: 21^st March

Application for judgment to be entered for costs – Order 12 Rule 36 (3) Supreme Court Rules

Cases cited:
Papua New Guinea Cases

PNG Power Ltd v. Gura (2014) SC1402

Overseas Cases

Ryan v. South Sydney Junior Rugby League Club Ltd [1975] 2 NSWLR 660

Counsel:

Mr. M. Pokia in person
Ms. M. Kias, for the Second, Third and Fourth Respondents

21^st March, 2016

1. HARTSHORN J: This is a decision on an application for judgment to be entered for costs. The application is made by the appellant against each of the respondents, pursuant to Order 12 Rule 36 (3) Supreme Court Rules. The application is opposed by the State respondents.

2. I was satisfied that all of the respondents had been served and had notice of the applications that were to be heard on 18^th February 2015 at 9:30 am. I thus permitted the applications to proceed notwithstanding that there was no appearance by or on behalf of the first respondent.

3. On 25^th February 2015 I delivered an extempore ruling in which I granted the appellant an extension of time in which to file an application for judgment to be entered for costs, dismissed the first respondent’s application to review the appellant’s taxed costs and adjourned the appellant’s application for judgment for costs for the appellant to put before this Court, in affidavit form, all of the documentation that he had submitted for his bill of costs to be taxed. On 7^th April 2015 the hearing of the appellant’s application for judgment for costs continued. The appellant had filed his documentation in affidavit form as ordered. There was no appearance on behalf of any respondents at this hearing however I was satisfied that they were aware of the hearing date and time.

Consideration

4. Order 12 rule 36 (3) Supreme Court Rules is as follows:

“(3) If, after 14 days from the date of service of the certificate of taxation, the costs remain unpaid, the Court or a Judge may, on motion by a party, supported by an affidavit, direct the entry of judgment for costs in the amount stated in the Certificate of taxation.”

5. So a Court or a Judge is given a discretion. Order 22 Rule 62 National Court Rules, in similar wording, gives a discretion to the National Court.

6. In PNG Power Ltd v. Gura (2014) SC1402, the Supreme Court, of which I was a member, noted that the only indication in Order 22 Rule 62 as to how the discretion is to be exercised is by the words, “as the nature of the case requires.” The Supreme Court went on to state that a primary judge should give consideration to whether the amount of tax costs for which judgment was sought:

“a) 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.

b) 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.”

7. Order 12 Rule 36 (3) Supreme Court Rules, however does not provide any indication as to how the discretion is to be exercised. One would have thought that the same considerations that the Supreme Court was of the view that should apply in respect of Order 22 Rule 62 National Court Rules should apply in respect of Order 12 Rule 36 (3) Supreme Court Rules given the similar subject matter.

8. The appellant submitted that the Court should take into account Order 12 Rule 35 (7), which is as follows:

“(7) Subject to the discretion of the taxing officer to be exercised in exceptional circumstances, on taxation of the bill:

(a) no amount is to be taxed off, nor any ground of objection to an item or part of an item of a bill allowed, unless each amount, ground, item or part, is specifically set out in a notice under subrule (2); and

(b)no amount is to be allowed in respect of an item or part of an item of a bill which is objected to in a notice under subrule (2) if no response to the objection has been made under subrule (4).”

9. As far as I am aware no similar provision appears in the National Court Rules. So when a court is considering the exercise of discretion under Order 12 Rule 36 (3) Supreme Court Rules, it is doing so in circumstances where the taxing officer’s discretion to tax off or allow an objection on a taxation of costs, is severely limited when compared to a taxing officer’s discretion on a taxation of costs in the National Court. In my view a court should take this aspect into account when considering the exercise of discretion under Order 12 Rule 36 (3) Supreme Court Rules.

10. So in this instance, in circumstances where no objection to a bill of costs has been made by the respondents, meaning that the taxing officer has not been given the opportunity to exercise his discretion under Order 12 Rule 35 (7) and even if he had been he could only exercise his discretion in exceptional circumstances; and in the absence of any meaningful submissions made on behalf of the respondents; and as there is no indication provided in Order 12 Rule 36 (3) as to how the court is to exercise its discretion, I am of the view that even if the court took into account the four considerations referred to in PNG Power v. Gura (supra), it would not and should not lead to its discretion being exercised in favour of the respondents.

11. Consequently, this court should direct the entry of judgment as sought by the appellant.

12. The only submission made by counsel for the State respondents was that if the court entered judgement, it should apportion the amount between the respondents. Counsel for the appellant submitted that all of the respondents were jointly and severally liable for the costs unless the court otherwise ordered.

13. I concur with the submissions of the appellant: Ryan v. South Sydney Junior Rugby League Club Ltd [1975] 2 NSWLR 660, amongst other authorities. In the absence of any evidence to support the State respondents position that costs should be apportioned, the costs are ordered against the respondents jointly and severally.

Orders

14. Entry of judgment is directed against each of the respondents for costs in the amount stated in the Certificate of taxation being K75,406.00.

____________________________________________________________
Appellant In person
Office of the Solicitor General: Lawyers for the Second, Third and Fourth Respondents