SC1675
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 50 of 2009

BETWEEN:
GIRE GIRE ESTATES LIMITED
Appellant

AND:
BARAVA LIMITED
First Respondent

AND:
RAGA KAVANA,
as the Registrar of Titles of Department
of Lands and Physical Planning
Second Respondent

AND:
HON. PUKA TEMU
as the Minister for Lands and Physical Planning
Third Respondent

Waigani: Hartshorn J
2018: 5th & 9th April

Application to set aside a certificate of taxation and a subsequent judgment entered ex parte – s. 155(4) Constitution

Cases Cited:

Louis Medaing v. Ramu Nico Management (MMC) Limited (2011) SC1156 
PNG Aviation Services Pty Limited v. Michael Thomas Somare (2017) SC1590

Counsel:

Mr. N. Saroa, for the Appellant
Mr. E. Paisat, for the First Respondent

ORAL DECISION DELIVERED ON

9th April, 2018

1.    HARTSHORN J: This is a decision on a contested application by the first respondent to set aside a certification of taxation and an ex parte judgment entered pursuant to the certificate of taxation. Reliance is placed upon s.155 (4) Constitution for the orders sought. 

2.  The first respondent seeks these orders on the grounds that:

a)	The taxation was conducted without the presence of the first respondent;

b)	There was a breach of the principles of natural justice or the right to be heard;

c)	The judgment was delivered without notice to the first respondent and was therefore delivered ex parte;

d)	Order 12 Supreme Court Rules does not deal with a taxation of costs 	conducted ex parte and so s.155(4) Constitution has to be relied upon.  

3.  The appellant counters that the relief sought should not be granted as:

a)	The subject certificate of taxation was served upon the first respondent on 	21st December 2016. That service is not contested;

b)	The first respondent had fourteen days after service to apply for leave to 	review the taxing officer’s decision and fourteen days to apply for an extension of time to pay the taxed costs. It did not make any of these applications;

c)	The application is incompetent and should be dismissed with costs. The case of PNG Aviation Services Pty Limited v. Michael Thomas Somare (2017) 	SC1590 is relied upon. 

Consideration

4.   The argument of the first respondent that Order 12 Supreme Court Rules does not apply to a taxation of costs conducted ex parte has no merit. There is no reference in Order 12 that, a taxation cannot proceed ex parte or indeed inter partes. Even if there were merit to the argument, and the first respondent wished to challenge the taxation that occurred ex parte on the basis that such a taxation should not have taken place, the first respondent should have relied upon Order 12 Rules 37(2) and (3) Supreme Court Rules to review the taxing officer’s decision. It did not. 

5.   As to the argument that there has been a breach of natural justice, as the first respondent was not heard on the taxation, from the affidavit evidence of Benjamin Mesmin Murliu, it is clear that on 14th December 2016, the lawyer for the first respondent and Mr. Murliu, the Chairman and Managing Director of the first respondent, were made aware of the taxation to be held on 19th December 2016. The fact that counsel Mr. Paisat was to be unavailable on that date is irrelevant. Other representation could have been arranged. Natural justice requires amongst others, that a person be given an opportunity to be heard, not that a person has to be heard. In this instance the first respondent was made aware of the taxation to be held but did not avail himself of the opportunity to be heard on the taxation. 

6.    As to s.155(4) Constitution, it is unable to be successfully relied upon by the first respondent. Section 155(4) is to be utilized to enforce a primary right in the absence of legislation providing for that right: Louis Medaing v. Ramu Nico Management (MMC) Limited (2011) SC1156 at [10] - [12]. Further, s.155 (4) may not be used to produce a result that is inconsistent with existing legislation. 

7.   In this instance Order 12 Supreme Court Rules provides for amongst others, costs, reviews and extensions of time. The first respondent has not availed itself of its rights under the Rules of this Order.  

8.   Further, the application should have been brought by notice of motion: Order 12 Rule 37(3) Supreme Court Rules and PNG Aviation Services v. Michael Thomas Somare (supra). It has not been. It has been brought by a purported amended application. 

9.  Consequently, for all of the above reasons the purported amended application of the first respondent filed 5th March 2018 is incompetent and the relief sought therein should be refused. 

Orders

10.   The formal Orders of the Court are:

a)	The amended application of the first respondent filed 5th March 2018 is 	dismissed;

b)	The first respondent shall pay the appellant’s costs of and incidental to this proceeding. 
_________________________________________________________________
Nelson Lawyers: Lawyers for the Appellant
Daniels & Associates: Lawyers for the First Respondent