Mann v Kumbu [2019] PGSC 42; SC1799 (1 May 2019)

SC1799

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 12 of 2012

BETWEEN:
DR. NICHOLAS MANN, CHAIRMAN, COUNCIL APPEAL COMMITTEE, UNIVERSITY OF PAPUA NEW GUINEA
First Appellant

THE UNIVERSITY OF PAPUA NEW GUINEA
Second Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Appellant

AND:
JACOB SANGA KUMBU
First Respondent

Waigani: Kandakasi, DCJ, Kariko & Lindsay, JJ
2018: 29^th August
2019:1^st May

APPEALS - Appeal against entry of judgement on taxed costs by single Judge of Supreme Court – Appeal pursuant Order 11 Rules 25 & 26, Supreme Court Rules – Whether order for judgement can be appealed to the full court – No reasons for decision – Effect of - Exercise of discretion.

PRACTICE & PROCEDURE - Appeal or review against decision of single Judge of the Supreme Court - Appeal pursuant Order 11 Rules 25 & 26, Supreme Court Rules – Whether order for judgement can be appealed to the full court – Among others, Rule 25 allows a party who is aggrieved by an order of a Judge given under the Supreme Court Rules or s.5 of the Supreme Court Act, to apply to the full court of the Supreme Court for “such order as appears just”.

JUDGEMENT & ORDERS – Decision makers to give reasons - No reasons for decision provided - Parties to obtain and include in appeal books trial judge’s reason for decision - Failure - Effect of - Exercise of discretion without good reason.

Cases Cited:

Powi v. Southern Highlands Provincial Government (2006) SC844
Mary ToRobert v. Henry ToRobert (2011) SC1130
NEC v. Dr Vele Pat Ila’ava (2014) SC1332
Joel Luma v. John Kali (2014) SC1608
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
Philip Opa Kore v. Charles Lapa (2018) SC1699
PNG Power Ltd v. Gura (2014) SC1402
Papua New Guinea v. Stanley Barker [1977] PNGLR 386
Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488
Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC1075
Canisius Karingu v Papua New Guinea Law Society (2001) SC674
Pius Sankin v Papua New Guinea Electricity Commission (2002) N2257
PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288
NCDC v. Yama Security Services Pty Ltd (2003) SC707

Legislation Cited:

Constitution
National Court Rules
Supreme Court Act
Supreme Court Rules 1984
Supreme Court Rules 2012

Counsel

Mr J Brooks, for the First and Second Appellants
Mr R Leo, for the Respondent

JUDGEMENT

1^st May, 2019

1. BY THE COURT: This is an appeal against the order of a single Judge sitting as the Supreme Court whereby judgment in the sum of K685,982 was entered against the appellants as to the respondent’s taxed costs in relation to the Supreme Court appeal entitled SCM No. 12 of 2012: Dr Nicholas Mann, The University of Papua New Guinea & The Independent State of Papua New Guinea v Jacob Sanga Kumbu.
   
2. The State did not enter appearance on this appeal so the term “appellants” from hereon refers to the first and second appellants.
   
3. The appeal has been filed pursuant to Order 11 Rules 25 and 26 of the Supreme Court Rules. As we will explain later, this proceeding is essentially an application documented as though it is an appeal and referred to as such.
   

Brief background

4. We set out in summary the relevant background facts leading to the lodging of this appeal.
   
5. The Council of the University of Papua New Guinea (UPNG) headed by Dr Nicholas Mann, made a decision to exclude the respondent at the end of 2008 from the final year of his law studies on disciplinary grounds.
   
6. The respondent filed for judicial review of that decision and on 20^th July 2012, the National Court found for him and effectively ordered his reinstatement as a student at UPNG.
   
7. On 29^th August 2012, the appellants filed the appeal SCM No. 12 of 2012 against the orders of the National Court.
   
8. After a little over a year, the appellants sought and were granted leave to withdraw the appeal, as a result of which the Supreme Court ordered the appellants pay the respondent’s costs of the appeal on an indemnity basis.
   
9. By an amended bill of costs filed on 14^th July 2014, the respondent claimed nearly K1.8 million in legal costs. The bill was allegedly served on the office of the Registrar and the Vice-Chancellor of UPNG rather than the appellant’s lawyer on record, Kamen Lawyers.
   
10. Taxation of the bill was subsequently set down for 12^th September 2014. Again, notice of the scheduled hearing was served on the office of the Vice-Chancellor of UPNG and not Kamen Lawyers.
    
11. The only party who attended the taxation was the respondent in person. His costs were then taxed at K685,982.
    
12. The certificate of taxation was issued on 17^th September 2014, and it was allegedly served on both the offices of the Registrar and the Vice-Chancellor of UPNG.
    
13. On 10^th October 2014, the respondent filed an application seeking judgment on his taxed costs. That application was served on the Vice-Chancellor of UPNG and Kamen Lawyers.
    
14. In response, the appellants first filed an application to review the decision of the taxing officer. Later, however they filed another application on 14^th November 2014, seeking withdrawal of the earlier motion, and leave for extension of time to lodge their application for review.
    
15. The pending applications were finally set down for hearing and came before the appealed Judge on 12^th March 2015. The only party who appeared at that hearing was again the respondent in person. His Honour only dealt with the respondent’s application and entered judgement for the taxed costs of K685,982.
    
16. Aggrieved by that order, the first and second appellants filed this appeal in accordance with Order 11 Rules 25 and 26 of the Supreme Court Rules, arguing that the appealed Judge erred in exercising his discretion in favour of the respondent.
    

First hearing of appeal

17. On 17^th December 2015, the appeal came before the Supreme Court (Lenalia, Hartshorn and Sawong JJ) who first heard and dismissed an objection to competency filed by the respondent. The same constituted bench subsequently heard arguments on the substantive appeal on 31^st August 2016 and reserved its decision. Before the decision could be delivered, his Honour Sawong, J retired as a Judge. On 2^nd May 2017 and in accordance with section 3(2)(a) of the Supreme Court Act, a re-hearing of the appeal was ordered upon the insistence of the respondent. The matter thus came before us.
    

Objection to competency

18. At the commencement of our hearing this appeal, Mr Leo of counsel for the respondent sought to argue an objection to competency based on the ground that Order 11 Rule 25 of the Supreme Court Rules does not allow the appellants the right to appeal the decision of another Supreme Court, even if constituted by a single Judge. After noting that the ground could have and should have been argued when the previous bench heard the objection to competency on 17^th December 2015, we refused the application for the following reasons:
    
    • All grounds of objection to competency should be heard at the same time and not on a “piecemeal” basis.
    • The respondent had sufficient time to formally file and serve the application for the objection together with a supporting affidavit.
    • The substantive matter had progressed to hearing.
    • It was too late to entertain any objection to competency as of right.
    • The requisite leave had not been sought to raise the objection.
      
19. Despite the ruling, Mr Leo, in his submissions on the substantive appeal, persisted with arguments consistent with the ground of objection he tried to raise earlier. While we could easily ignore or disregard those particular submissions given the Court’s earlier ruling, we will nevertheless discuss them as they touch on an interesting area of practice and procedure of this Court.
    

Order 11 Rules 25 & 26

20. The appellants contend that the only recourse available to them to challenge what they allege to be an erroneous judgement by the appealed Judge is an appeal pursuant to Order 11 Rules 25 and 26 of the Supreme Court Rules which together with Order 11 Rule 27 make up Division 3 (Appeal & application to court from orders or directions of judge). These Rules read:
    

“25. A party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

26. Proceedings under Rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply.

27. Where a Judge refuses an order sought on an application pursuant to Section 10(1) of the Act, that application shall not stand dismissed, but shall remain on foot, and the same application may be moved before the Court pursuant to Section 10(2) of the Act, provided that a written request in that behalf is served on the Registrar within 14 days of the order refusing relief.” (Our underlining)

21. Pursuant to the Supreme Court Act, the term “Court” means the full court of the Supreme Court of Justice while the term “Judge” refers to a judge of the Supreme Court of Justice. Those definitions also apply to the Supreme Court Rules.
    
22. Among others, Rule 25 allows a party who is aggrieved by an order of a Judge given under the Supreme Court Rules or s.5 of the Supreme Court Act, to apply to the full court of the Supreme Court for “such order as appears just”. Pursuant to Rule 26, the application takes the form of an appeal under Order 10 and shall conform with the procedural rules of that Order as modified.
    
23. Rule 25 deals with two types of orders given by a Judge – those made pursuant to the Rules or those issued under s.5 of the Act, which states:
    

“5. Incidental directions and interim orders.

“(1) Where an appeal is pending before the Supreme Court—

(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order in any proceedings (other than criminal proceedings) for security for costs; or

(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or

(e) an order admitting an appellant to bail,

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court.” (our underlining)

24. In short, s.5 of the Act deals with incidental directions and interim orders made where an appeal is pending. The types of incidental directions and interim orders therein described do not include the entry of judgement on taxed costs which is an order that a Judge may make pursuant to Order 12 Rule 36(3) of the Rules. That Rule provides:
    

“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.”

25. The respondent relies on the case authorities of Powi v. Southern Highlands Provincial Government (2006) SC844; Mary ToRobert v Henry ToRobert (2011) SC1130; and NEC v Dr Vele Pat Ila’ava (2014) SC1332, to argue that those cases clearly confirm the principle that there can be no appeal to the Supreme Court against the decision of another Supreme Court, however constituted. Accordingly, the respondent submits that appellants are not entitled to appeal the decision of the appealed Judge to a full court of the Supreme Court, or put another way, this Court has no jurisdiction to entertain the appeal.
    
26. In the Powi case, the applicant sought to discharge an order of a Judge made under s.5(2) and s.10(1) of the Act relying on s.155(4) of the Constitution. The Court (Jalina, Gavara-Nanu & Kandakasi, JJ) held that the application should have been properly brought under s.5(3) and s.10(2) of the Act.
    
27. The ToRobert case concerned a decision of a Judge made under s.10(1)(b) of the Act, allowing the appellant extension of time to file his appeal. The respondent appealed against that order, and the Court (Cannings, Kariko & Murray, JJ) by majority, held that:
    
    • such appeal is not authorized by the Act pursuant to s.14(3)(a); and
    • a refusal of an application under s.10(1)(b) may be taken up to the full Court not by way of appeal but through a fresh application.
      
28. In the Ila’ava case a Judge acting under s.5 of the Act granted interim orders in favour of the appellant pending the hearing of his appeal. Aggrieved, the respondents filed a separate appeal against those orders pursuant to Order 11 Rule 26 of the then Supreme Court Rules 1984. The Court (Gabi, Sawong & Murray, JJ) held that a party seeking to challenge an order issued under s.5 by a Judge is not permitted to appeal separately against that decision but it may under s.5(3) make application to the Court for the order to be varied or discharged.
    
29. As the Supreme Court (Injia CJ, Sakora & Manuhu JJ) explained in Joel Luma v John Kali (2014) SC1608 at [10]:
    

“The nature of an application under s 5(3) is explained in several decisions of this Court. It is an application to “vary or discharge” an order of a single Judge; it is not a fresh appeal or a review from that decision. The application is interlocutory in nature and made in the context of the existing appeal: National Executive Council & others v Dr Vele Pat Ila’Ava & another, Unreported judgment of the Supreme Court dated 26th February 2014, per Gabi, Sawong & Murray JJ. ToRobert v ToRobert (2011) SC1130, Powi v The State (2006) SC844, National Executive Council & others v Dr Vele Pat Ila’Ava & another (supra). As with all proceedings before the Supreme Court, the matter proceeds by way of a rehearing de novo: see s 6 of the Act.” (Our emphasis)

30. The appealed order in the present matter was not made pursuant to s.5 nor s.10 of the Act.
    
31. When the Powi case and the ToRobert case were decided, the Supreme Court Rules 1984 was still in force. Those Rules were repealed and replaced by the Supreme Court Rules 2012 which took effect in December 2012. The provisions under the repealed Rules that corresponded with the current Order 11 Rules 25 and 26 were Order 11 Rules 27 and 28, and they read as follows:
    

“27. A party dissatisfied with a direction given by a Judge under these rules may upon notice to the other parties concerned in the proceedings apply to the Court which may make such order as appears just.

28. Proceedings under Rule 27 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply. (underlining for emphasis)

32. The previous provisions only allowed applications to be made against a direction given by a single Judge under the Rules. We note that the current Rules were promulgated and came into force after the judgments in the Powi case and the ToRobert case. It would appear that the corresponding provisions under the previous Rules were amended to address some of the procedural issues concerning s.5 and s.10 of the Act that emerged from those judgements. The Rules now refer to directions and orders given by a Judge not only under the Rules, but also pursuant to s.5 of the Act. Further, the Rules also provide a new procedure for an application to the Court following a refusal by a Judge of an application under s.10(1) of the Act.
    
33. The statement of the majority in the ToRobert case at [8] that there is no right of appeal from a single Judge to a Supreme Court is not an absolute proposition given the changes to the Rules since that judgement, and in any case, the proposition is more fully stated in Powi v The State (supra) at [24] as follows: “...regardless of however the Supreme Court is constituted, there is no power in the Supreme Court to review the decision of another Supreme Court except as may be provided for by, any other law, such as the Supreme Court Act itself.” (our underlining). We consider the Supreme Court Rules to be one such law as it is a subordinate legislation to the Supreme Court Act.
    
34. From the foregoing discussion, we conclude that the appellants have correctly invoked Order 11 Rules 25 and 26 to file this appeal against the order of the appealed Judge made pursuant to Order 12 Rule 36(3).
    

Appealed Judge’s decision

35. The Appeal Book comprises four thick Volumes of documents but it does not include the reasons for decision of the appealed Judge. It is understood that an oral decision was given, but a transcript of the decision was not obtained and included in the Appel Book.
    
36. The transcript is critical as it would disclose what considerations swayed the appealed Judge to decide as he did. In the case of an appeal, it is the obligation of the parties (through their lawyers if they have legal representation) to ensure all relevant documents necessary for the proper determination of the appeal are provided to the appellate court. A fundamental and essential document is of course the decision appealed, that is, the written decision or the transcript containing the decision. As the Supreme Court (Salika DCJ, Batari J, Davani J) observed in the case of Sir Arnold Amet v Peter Charles Yama (2010) SC1064 at [14] regarding reasons for decision:
    

“The parties are entitled to it, more so for the parties in an appeal or judicial review application. The written reasons for decision will assist them to consider whether to proceed with or to defend the appeal or review. It will also assist the Appellate Court when it deliberates the grounds of appeal or review. So, the reasons for decision whether oral or published are an integral part of the appeal and review process”.

37. Counsel for the respondent proposed that this Court obtain the transcript and consider it before deciding this appeal. We decline to do so for reasons that:
    
    • It is the duty of parties and not the court to ensure the availability of the transcript; and
    • It is rather late to be looking for the transcript when the appeal has been fully argued not once but before two differently constituted Courts.
      
38. The position then is that neither this Court nor the parties know the reasoning behind the decision of the appealed Judge. The respondent, the only party who attended the hearing, informed the Court through counsel that his Honour merely proceeded to grant the respondent’s application upon the non-appearance of the other parties. That strongly suggests that his Honour did not consider the merits of the application but merely “rubber-stamped” it. We conclude from the respondent’s indication that there was no real exercise of discretion and in those circumstances, the appeal should succeed.
39. We also note that there are ample case authorities that endorse the principle that a court is obligated to give reasons for its decision. Where no reasons are produced, the conclusion is that the court had no good reason for the decision; see for example Sir Arnold Amet v Peter Charles Yama (supra) and Philip Opa Kore v Charles Lapa (2018) SC1699. As we do not have the benefit of the transcript to consider the reasons for the orders by the appealed Judge, we consider there was no good reasons for the judgement and on that basis also, we would allow the appeal.
    

Exercise of discretion

40. There is no controversy that a Judge has a discretion in deciding an application made pursuant to Order 12 Rule 36(3) for the entry of judgement for taxed costs.
    
41. Under the National Court Rules, Order 12 Rule 22 provides for a similar application to be made in the National Court. Upon discussing the exercise of discretion by the National Court under Order 12 Rule 22 of the National Court Rules, the Supreme Court in PNG Power Ltd v Gura (2014) SC1402 (Salika DCJ, Gabi & Hartshorn, JJ) held that:
    
    • (1) Failure to apply for review of taxed costs does not preclude exercise of the discretion but is a matter to be considered;
    • (2) The court should ensure that taxed costs:
      • (a) were allowed in accordance with what the law entitles the person claiming the costs;
      • (b) are reasonable in all the circumstances;
      • (c) are supported by material evidence; and
      • (d) are not an attempt to profit.
        
42. We endorse those principles as equally applicable in considering the exercise of discretion under Order 12 Rule 36(3) of the Supreme Court Rules.
    
43. Based on case authorities such as Papua New Guinea v Stanley Barker [1977] PNGLR 386, Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd (1995) SC488, Ramu Nico Management (MCC) Ltd v Eddie Tarsie (2010) SC1075, a decision in the exercise of a discretionary power should only be disturbed by an appellate court if the court appealed:
    
    • acted upon a wrong principle of law;
    • gave weight to extraneous or irrelevant matters;
    • failed to take into account relevant considerations;
    • made a mistake as to the facts; or
    • in the absence of identifiable error made a decision that is unreasonable or plainly unjust.
      
44. As already noted, the reasons for the decision appealed are not before us. Despite that, we are persuaded by the arguments of Mr Brooks of counsel for the appellants that even if the reasons were available and supposing there is no identifiable error by the appealed Judge, the decision is unreasonable and plainly unjust. This clearly stems from the fact that taxed costs of over half a million Kina was allowed for a law student pursuing his own case and for a case that did not proceed any further due to its withdrawal. No doubt, this is manifestly exorbitant when one considers the kind of costs allowed for experienced lawyers in similar circumstances. Costs in similar circumstances generally would not exceed K50,000.00.
    
45. To emphasise the exorbitance of the taxed costs, we mention one costs item as highlighted by Mr. Brooks in his submissions and is very obvious to us. It is the charge-out rate applied by the respondent. He charged K2,000 per hour which was taxed at K600 per hour. Most senior practicing lawyers charge out rates could arguably be around that figure while junior lawyers starting their practice could be around K100 per hour.
    
46. Mr Leo argued that because the order was for costs to be paid on an indemnity basis, his client charged costs as if he was a lawyer. That submission is rejected as nonsensical for the simple fact that at the material time, the respondent was neither a lawyer nor could he have been assumed a lawyer. That aside, the scale of costs found in Schedule 4 to the Rules allows a maximum charge-out rate of K450 per hour.
    
47. Under the common law, a self-represented litigant who was awarded costs, was only entitled to out-of-pocket expenses. In Canisius Karingu v Papua New Guinea Law Society (2001) SC674, Kandakasi J (as he then was) determined the common law position to be inappropriate to the circumstances of this country and as part of the development of the underlying law, he varied the common law principle, pronouncing that:
    

“an order for costs in a litigant in person case includes the litigant in person's costs necessarily and reasonably incurred for the attainment of justice, unless the court otherwise orders. That should be the case whether or not the litigant in person is a lawyer provided there is no dual gain.” (our underlining)

48. The claimant for costs in that case was a qualified lawyer of a number of years’ experience but he was yet to be issued a current practicing certificate. The Court allowed him to receive costs as if he was a lawyer. Obviously, the same allowance cannot be accorded to a law student.
    
49. Principles relevant to an assessment of costs on a solicitor-client or indemnity basis are clearly set out in the judgement of Kandakasi, J (as he then was) in Pius Sankin v Papua New Guinea Electricity Commission (2002) N2257, and those principles include:
    
    • (a) All costs are to be allowed unless they are unreasonable or have been agreed to by the client; and
    • (b) An order for costs is an order that entitles a party to recover costs it incurred as a result of the litigation, but not to profit from the order.
      
50. His Honour stressed that:
    

“an order for costs is not an order for the party entitled to it to profit from. Instead, it is merely an order for that party to recover what it may have been forced to incur on account of the litigation to which the order relates. ...... that the amounts claimed is in fact a reimbursement of the costs the party entitled has incurred in either defending or prosecuting a claim against the other, and is not a claim for profiting at the expense of the other party.” (our emphasis)

51. In submissions, Mr Leo suggested that the appellants failed to use the opportunities available at the taxation hearing and at the hearing before the appealed Judge to object to the costs claimed and awarded. Hence, his Honour was entitled to apply that factor against the appellants. Whilst we accept that non-attendance is a relevant consideration, we of the view that, that factor is far outweighed by the fact that costs claimed and awarded are grossly unreasonable and may be interpreted as a profit-seeking exercise.
    

Conclusion

52. Ultimately, we find that the appealed Judge erred in the exercise of his discretion under Order 12 Rule 36(3), and we accordingly uphold the appeal.
    
53. Even though costs normally follow the event, it is apparent to us that the appellants are partly to blame for the matter coming thus far. Hence, we are inclined to order that each party meets its own costs.
    
54. It is noted that during submissions, the appellants offered a compromise of the amount of costs but this was declined by the respondent. We accept the agreed view of the parties that if the appeal succeeds, the matter should be referred back to taxation. However, we noted that, the bill of costs does not present any issue that is worthy of going through the process of taxation. Both this Court and the National Court have been repeatedly calling upon lawyers and their clients to settle their disputes unless there is a meritorious issue that warrants judicial or quasi judicial determination. To enforce that call, the Courts have ordered solicitor and own client or indemnity costs, against parties failing to enter into good faith negotiations and settle their disputes.
    
55. In PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288, Kandakasi J., (as he then was) observed:
    

“The Courts have repeatedly made it clear that, almost all disputes that enter the Court are capable of settlement, by the parties’ direct negotiations. The recent developments in ... Alternative, Active or Appropriate Dispute Resolution (ADR) further strengthens that position. Indeed, the Supreme Court on 9th November 2001, in Public Officers Superannuation Fund Board v. Sailas Imanakuan.... confirmed that position in these terms:

‘... Courts are there only to help resolve or determine disputes that cannot be resolved by the parties themselves despite their best endeavours to do so. All human conflicts and disputes are capable of settlement without the need for court action. That is possible only if the parties are prepared to allow for a compromise of their respective positions. People in other jurisdictions are already recognizing the benefits of settling out of court as it brings huge savings to the parties in terms of costs and delay and help maintain good relations between the parties. This is why in other jurisdictions, out of court settlements are actively being pursued through what has become known as Alternative Dispute Resolutions or ADRs. We in Papua New Guinea have briefly talked about it in workshops and seminars but have not formerly embraced that into our court process and procedures. Work is now being undertaken to do that.’”

56. Other Supreme Court decisions like the one in NCDC v. Yama Security Services Pty Ltd (2003) SC707, have also repeated the call for more use of ADR and or mediation.
    
57. Given that position of the law, we urge the parities to have this matter resolved without incurring the unnecessary expenses of going through the process of taxation of costs.
    

Order

58. The Court orders that:
    
    • (1) The appeal is upheld.
    • (2) The entry of judgement on the certified taxed costs ordered on 12^th March, 2015 is set aside.
    • (3) The certificate of taxation issued on17^th September 2014 is set aside.
    • (4) The amended bill of costs filed on 14^th July 2014 is remitted for taxation.
    • (5) The parities shall have the cost resolved by their direct negotiations and avoid the costs associated with a taxation of the respondent’s costs.
    • (6) Failing settlement, the taxation of the respondent’s costs shall proceed in accordance with the Supreme Court Rules.
    • (7) Each party shall bear its own costs of this appeal.
    • (8) Time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.
      

________________________________________________________________
Ashurst Lawyers: Lawyer for the Appellants
Leo Lawyers: Lawyer for the Respondent