Kiuk (formerly trading as Nikiuma Lawyers) v Tapako [2025] PGSC 9; SC2698 (19 February 2025)

SC2698

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 56 OF 2022 (IECMS)

BETWEEN
NICKSON KIUK
(formerly trading as Nikiuma Lawyers)
Appellant

AND
JIM TAPAKO
First Respondent

AND
JT INVESTMENTS LIMITED
Second Respondent

&

SCA NO. 57 OF 2022 (IECMS)

BETWEEN
NICKSON KIUK
(formerly trading as Nikiuma Lawyers)
Appellant

AND
GLEN KUNDIN
First Respondent

AND
BANNING TRADING LIMITED
Second Respondent

&

SCA NO. 58 OF 2022 (IECMS)

BETWEEN
NICKSON KIUK
(formerly trading as Nikiuma Lawyers)
Appellant

AND
GLEN KUNDIN
First Respondent

AND
BANNING TRADING
Second Respondent

&

SCA NO. 59 OF 2022 (IECMS)

BETWEEN
NICKSON KIUK
(formerly trading as Nikiuma Lawyers)
Appellant

AND
JIM TAPAKO
First Respondent

AND
JT INVESTMENTS LIMITED
Second Respondent

&
SCA NO. 60 OF 2022 (IECMS)

BETWEEN
NICKSON KIUK
(formerly trading as Nikiuma Lawyers)
Appellant

AND
JIM TAPAKO
First Respondent

AND
JT INVESTMENTS LIMITED
Second Respondent

WAIGANI: MOGISH J, MAKAIL J, MIVIRI J
28 NOVEMBER 2023; 19 FEBRUARY 2025

SUPREME COURT – Appeal from dismissal of proceedings – Proceedings to recover certified taxed legal costs – Lawyer’s professional legal costs – Action time-barred – Computation of time – Accrual of cause of action – Six years – Frauds and Limitations Act, 1988 – Section 16

LAWYERS LEGAL COSTS – Lawyer’s professional legal fees – Bill of costs – Taxable form – Service of bill of costs – Bill of costs due and outstanding – Application for taxation – Taxation of bill of costs – Certificate of taxation – Taxed legal costs due and outstanding – Lawyers Act, 1986 – Sections 62 & 63

Facts

The appellant Mr Nickson Kiuk is a lawyer and practising in the law firm formerly trading as Nikiuma Lawyers. The appellant acted for the respondents in five sets of proceedings in the National Court. The appellant rendered a bill of costs of various sums for each National Court proceeding. The respondents did not settle the bill of costs. The appellant applied for taxation before the Taxing Officer pursuant to Order 22, rule 47 (Application for taxation under Section 63 of the Lawyers Act) of the National Court Rules (“NCR”). Each bill of costs was taxed pursuant to Order 22, rule 48 (Notification of time appointed for taxation) of the NCR. A certificate of taxation was issued for each bill of costs by the Taxing Officer pursuant to Order 22, rule 59 (Certificate) of the NCR. Each certificate of taxation was served on the respondents for settlement. Again, the respondents did not settle the certified taxed costs. The appellant commenced five National Court proceedings to recover his certified taxed costs. The respondents sought to dismiss the National Court proceedings on the ground that each proceeding was time-barred. The National Court upheld the respondents’ applications and dismissed the proceedings as being time-barred.

Held:

1. An action to recover the lawyer’s professional legal costs is an action based on contract between the appellant as a lawyer and the respondents as clients for provision of legal services.
   
2. To commence an action for breach of contract, the time limitation of six years applies pursuant to Section 16 of the Frauds and Limitations Act, 1988.
   
3. The cause of action for breach of contract to recover outstanding legal costs accrues when the last work was done on the matter. Corburn v Colledge (1897) 1 QBD 702 referred to.
   
4. The statutory requirement that a lawyer shall not bring proceedings to recover costs due to him until the end of a period of one month after a bill of costs has been delivered under Section 62(1) of the Lawyers Act 1986 is neither a cause of action, nor the time a cause of action accrues but a remedy to enforce a cause of action.
   
5. Moreover, the statutory requirement that a lawyer shall not bring proceedings to recover costs due to him until the end of a period of one month after a bill of costs has been delivered under Section 62(1) of the Lawyers Act 1986 is a precondition for a lawyer to satisfy before bringing an action to recover outstanding legal costs.
   
6. In the present case, the cause of action for breach of contract did not accrue one month after the bill of costs in taxable form was delivered to the respondents pursuant to Section 62 of the Lawyers Act 1986, but when the last work was done on the matters.
   
7. The proceedings were commenced after the time-limitation of six years had expired. The learned primary Judge’s finding that the proceedings were, time-barred pursuant to Section 16 of the Frauds and Limitations Act 1988 is upheld.
   

Cases cited

Cockburn v Shedadie [2013] NSWSC 758
Corburn v Colledge (1897) 1 QBD 702
Curtain Brothers (PNG) Ltd v UPNG (2005) SC788
Edward Manu t/a Manu & Associates Lawyers v Honiri Timber Resources Development Limited (2004) N2597
Emmanuel Solwai Mambei v Johnny J Yawari (2017) N6950
Florian Gubon v Pacific Mobile Communications Ltd (2006) N3104
Joshua Kalinoe v Paul Paraka & Ors (2014) SC1366
Kewa v Madang Provincial Government (2014) N5650
Motor Vehicles Insurance Limited v Kuri (2006) SC825
Mountain Oil Ltd v Tokaju Engineering Services Ltd (2017) N8546
Oil Search Limited v Ministerial Resources Development Corporation (2010) SC1022
Patterson Lawyers v NCDC (2001) N2145
Patterson Lawyers v Teachers Savings & Loans Society (2004) N2516
Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399
Paul Tohian v Tau Liu (1998) SC566
Philip Mamando v Lumusa Local-level Government Council (1998) N1752
Sarea Soi v Imawe Kewa Land Group Inc (2004) N2560
Simon Norum t/a Simon Norum & Co Lawyers v Daniel Iko & Komaip Trading Pty Ltd (1997) N1593
Woodward v Woodward [1987] PNGLR 92
Yapao Lawyers v Yaliman Pawe & Ors (1998) N1751

Counsel:

Mr N Kuik for the Appellants
Mr L Aigilo for the Respondents in SCA Nos 56 & 60 of 2022
Mr J Yalgga for the Respondents in SCA Nos 57, 58 & 59 of 2022

JUDGMENT

1. BY THE COURT: This is the judgment for the following appeals which were heard together:

(a) SCA No 56 of 2022: Nickson Kiuk v Jim Tapako & JT Investments Limited
(b) SCA No 57 of 2022: Nickson Kiuk v Glen Kundin & Banning Trading Limited
(c) SCA No 58 of 2022: Nickson Kiuk v Glen Kundin & Banning Trading Limited
(d) SCA No 59 of 2022: Nickson Kiuk v John Komunga, Glen Kundin & Ors
(e) SCA No 60 of 2022: Nickson Kiuk v Jim Tapako & JT Investments Limited

Background Facts

2. These appeals arise from the following common facts:

• the appellant Mr Nickson Kiuk is a lawyer and practising in the law firm formerly trading as Nikiuma Lawyers.
• the appellant acted for the respondents in five sets of proceedings in the National Court.
• he rendered a bill of costs of various sums for each National Court proceeding.
• each bill of costs is in taxable form.
• the respondents did not settle the sum claimed in the bill of costs.
• the appellant applied for taxation before the Taxing Officer pursuant to Order 22, rule 47 (Application for taxation under Section 63 of the Lawyers Act) of the National Court Rules (“NCR”).
• each bill of costs was taxed pursuant to Order 22, rule 48 (Notification of time appointed for taxation) of the NCR.
• a certificate of taxation was issued for each bill of costs by the Taxing Officer pursuant to Order 22, rule 59 (Certificate) of the NCR.
• each certificate of taxation was delivered to the respondents for settlement.
• again, the respondents did not settle the sum allowed in the certificate of taxation (“certified taxed costs”).
• as the respondent did not settle the certified taxed costs, they remained outstanding legal costs.
• the appellant commenced five National Court proceedings to recover his outstanding legal costs.
• the respondents sought to dismiss the National Court proceedings on the ground that each proceeding was time-barred pursuant to Section 16 of the Frauds and Limitations Act, 1988 (“Limitations Act”).
• the National Court upheld the respondents’ applications and dismissed the proceedings as being time-barred.
  

Grounds of Appeal

3. All five appeals plead multiple grounds from Grounds 3A to 3H but are interconnected to one common major ground and that is the learned primary Judge of the National Court erred in law and fact in holding that the proceedings were time-barred under Section 16 of the Limitations Act.

Findings by National Court

4. We note that the National Court made the following finding:

(a) MP No 10 of 2020 (SCA No 56 of 2022) according to the bill of costs, the last work done on the matter was sometime in 2012. The bill of costs was filed on 27^th July 2020.

Eight years had lapsed between the last work done and filing of the bill of costs.

(b) MP No 11 of 2020 (SCA No 58 of 2022) according to the bill of costs, the last work done on the matter was on or about 20^th February 2013. The bill of costs was served on the respondents on 14^th June 2020.

Seven years had lapsed between the last work done and filing of the bill of costs.

(c) MP No 12 of 2020 (SCA No 59 of 2022) according to the bill of costs, the last work done on the matter was on 27^th February 2013. The bill of costs was served on the respondents on 27^th July 2020.

Seven years had lapsed between the last work done and service of the bill of costs.

(d) MP No 13 of 2020 (SCA No 60 of 2022) according to the bill of costs, the last work done on the matter was 2013. The bill of costs was served on the respondents on 1^st June 2020.

Seven years had lapsed between the last work done and service of the bill of costs.

(e) MP No 15 of 2020 (SCA No 57 of 2022) according to the bill of costs, the last work done on the matter was sometime on 16^th July 2014. The bill of costs was served on the respondents on 1^st June 2020.

Six years had lapsed between the last work done and service of the bill of costs.

(f) the cause of action did not accrue a month after the bill of costs in taxable form was delivered to the respondents pursuant to Section 62 of the Lawyers Act 1986 (“Lawyers Act”) but when the last work was done on the matter.

(g) the action to recover the lawyer’s outstanding legal costs was an action based on contract between the appellant as a lawyer and the respondents as clients for provision of legal services.

(h) to commence an action for breach of contract, the time limitation is six years from the date of breach pursuant to Section 16 of the Limitations Act.

(i) each proceeding was commenced after the time limitation of six years had expired.

(j) the proceedings were, accordingly, time-barred pursuant to Section 16 of the Limitations Act.

The Law

5. The law in Section 62 of the Lawyers Act states:

“62. ACTION TO RECOVER COSTS.

(1) A lawyer shall not bring proceedings to recover costs due to him until the end of a period of one month after a bill of costs has been delivered in accordance with this Act.

(2) A bill shall contain the particulars required by the Rules of Court.

(3) Where there is probable cause for believing that the party chargeable with the costs is about to–

(a) leave the country; or

(b) become insolvent; or

(c) compound with his creditors; or

(d) do any other act which would tend to prevent or delay the lawyer’s obtaining payment,

the Court may give the lawyer leave to commence proceedings for recovery before the expiration of the period of one month referred to in Subsection (1).

4) The bill of costs shall–

(a) be signed–

(i) by the lawyer, or, if the costs are due to a firm, by one of the members of the firm, in his own name or in the name of the firm; or

(ii) for or on behalf of the lawyer, or if the costs are due to a firm, for or on behalf of the firm, by a lawyer employed by the lawyer or by the firm, as the case may be, or be enclosed in, or accompanied by, a letter that is so signed and refers to the bill; and

(b) be delivered to the party charged personally, by sending it to him by registered post to, or by leaving it for him at, his place of business, dwelling house or last known place of abode.

(5) Where a bill is proved to have been delivered in accordance with Subsection (4), it is not necessary in the first instance for the lawyer to prove the contents of the bill and the bill shall be assumed, until the contrary is shown, to be a bona fide bill complying with this Act.

(6) The provisions of this section do not affect the operation of any Act which makes special provision for lawyers’ bills of costs.

(Italics added).

6. Section 63 of the Lawyers Act states:

“63. TAXATION ON APPLICATION OF PARTY CHARGEABLE OR LAWYER.

(1) On application at any time by a lawyer who has delivered a bill of costs as required by Section 62(4)(b), the Registrar shall order that the bill be taxed.

(2) On application by the party chargeable with a lawyer’s bill made within one month of delivery of the bill, the Registrar shall order that the bill be taxed and that no action be commenced until the taxation is completed.

(3) After the period of one month provided in Subsection (2), and before the expiration of 12 months from the date of delivery of the bill under Section 62(3)(b), and where–

(a) the bill has not been paid; or

(b) judgement has not been obtained in an action for recovery of the costs covered by the bill,

the Registrar may, upon such terms as he thinks fit (not being terms as to the costs of taxation) order that–

(c) the bill be taxed; and

(d) no action on the bill be commenced or that any pending action be stayed.

(4) After–

(a) the expiration of 12 months from the delivery of the bill; or

(b) payment of the bill; or

(c) judgement in an action for recovery of the costs covered by the bill,

the Court shall not make an order for taxation, except in circumstances which, in the opinion of the court, are special circumstances.”

7. Section 16 of the Limitations Act reads in part:

“16. LIMITATION OF ACTIONS IN CONTRACT, TORT, ETC

(1) Subject to Sections 17 and 18, an action -

(a) that is founded on simple contract or on tort or

(b) .......... or

(c) .......... or

(d) .......... or

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

(2) ...........

(3) Subject to Subsection (4), an action upon a speciality shall not be brought after the expiration of 12 years commencing on the date when the cause of action accrued.”

Whether an action to recover lawyer’s outstanding legal costs is time-barred

8. To answer the question whether an action to recover lawyers outstanding legal costs is time-barred, the major question to determine is when does the cause of action accrue to recover a lawyer’s outstanding legal costs? We were presented with two views as the answer to this major question.

9. The appellant proffered the view that a cause of action accrues to recover a lawyer’s outstanding legal costs at the end of one month after delivery of the bill of costs pursuant to Section 62(1) of the Lawyers Act. In support of this view, the appellant argues that the learned primary Judge erred in law and fact in finding that the time-limitation of six years under Section 16 of the Limitations Act applied and dismissed the proceedings. He relies on the following grounds:

• following the delivery of a bill of costs in taxable form on the respondents and where it is not settled, it is a statutory requirement under Section 63 of the Lawyers Act for him to apply for taxation of the bill of costs.
  
• after the bill of costs was taxed and the certificate of taxation was delivered to the respondents, they failed to settle the certified taxed costs.
  
• the time to commence proceedings to recover the certified taxed costs is at the end of one month after delivery of the bill of costs. This is when the cause of action accrued.
  
• after one month after delivery of the bill of costs, the appellant commenced the National Court proceedings.
  
• the requirement to comply with Section 62(1) of the Lawyers Act is mandatory and takes precedence over the common law principles of contract law because it is founded on an Act of Parliament.
  
• each proceeding was commenced at the end of one month after delivery of the bill of costs pursuant to Section 62 of the Lawyers Act. Thus, it is not time-barred.
  
• in addition, the learned primary judge failed to consider and apply the decision in Joshua Kalinoe v Paul Paraka & Ors (2014) SC1366 which discussed the principles and consideration relating to an action to recover a lawyer’s outstanding legal costs in the context of Sections 62, 63 and 64 of the Lawyers Act.
  
• the learned primary Judge was bound to follow the Supreme Court decision in Joshua Kalinoe v Paul Paraka & Ors (supra).
  
• in Sarea Soi v Imawe Kewa Land Group Inc (2004) N2560, the National Court followed the decision of the Supreme Court in Joshua Kalinoe v Paul Paraka & Ors (supra) and the learned primary Judge was bound to do likewise.
  
• moreover, the learned primary Judge’s finding at p 12 of the judgment that “.....If the solicitor has any mode of enforcing his rights than by action, that section does not seem to interfere with it......” is unsupported by law under Section 62(1) of the Lawyers Act because even in circumstances where a retainer agreement or arrangement of the kind described in Section 66 of the Lawyers Act are not exempted from taxation as in Yapao Lawyers v Yaliman Pawe & Ors (1998) N1751, Patterson Lawyers v NCDC (2001) N2145 and Florian Gubon v Pacific Mobile Communication Ltd (2006) N3104.
  
• furthermore, the learned primary Judge misinterpreted the law and fell into error when she adopted the view of the Court of Appeal in Corburn v Colledge (1897) 1 QBD 702 and held that Section 62 of the Lawyers Act is a condition precedent to commencement of proceedings to recover legal costs but not a cause of action when that case was decided over 200 years ago based on the Statute of Limitations and Section 37 of the Solicitors Act, 1843 which statutes are devoid of the court process of taxation and relevant Court Rules such as the NCR on process of taxation.
  
• instead, the learned primary Judge was persuaded by the foreign common law cases of Corburn v Colledge (supra) and Cockburn v Shedadie [2013] NSWSC 758 which are of no relevance to this jurisdiction where the law is that an action to recover a lawyer’s outstanding legal costs must comply with the requirements of Sections 62, 63 and 64 of the Lawyers Act.
  
• the view that the time-limitation of six years to commence an action for breach of a simple contract under Section 16 of the Limitations Act does not apply in this case because these proceedings were based on an action to recover lawyer’s outstanding legal costs under Section 62(1) of the Lawyers Act.
  
• finally, the learned primary Judge’s finding that an action for recovery of lawyer’s outstanding legal costs is one of simple contract is unsupported by case law because the cases of Woodward v Woodward [1987] PNGLR 92, Kewa v Madang Provincial Government (2014) N5650 and Mountain Oil Limited v Tokaju Engineering Services Ltd (2017) N8546 apply to oral or written contracts for provision of goods and services other than legal services and are irrelevant.
  

9. The respondents submit that:

• section 62(1) of the Lawyers Act does not constitute a cause of action, but a remedy to recover outstanding legal costs.
  
• if it were that Section 62(1) of the Lawyers Act is a cause of action, it is not expressed in Section 62 or elsewhere in the Lawyers Act or the Limitations Act that the time limitation of six years under Section 16 of the Limitations Act does not apply.
  
• As to what is a cause of action, in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 a cause of action is defined as “every fact which would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each but each fact which is to be proved”.
  
• a cause of action accrues when all necessary facts come into being: In Motor Vehicles Insurance Ltd v. Kuri (2006) SC825 the Supreme Court adopted the statement by Kapi DCJ (as he then was) thus:
  

“A cause of action accrues when all of the facts giving rise to a form of action establishing a right to judgment come into being: Patterson Lowa, Minister for Minerals and Energy v Wapula Akipe & Others [1992] per Kapi DCJ at 429. When there is an injury to a person in a motor vehicle accident caused by negligence reasonable foreseeable and not too remote caused by a party who owes a duty of care, a cause of action as accrued.”

• in Motor Vehicle Insurance Ltd v Kuri (supra) the plaintiff sued MVIL for damages arising from a motor vehicle accident. The Insurance Commissioner extended time to the plaintiff to give notice to make a claim against MVIL under Section 54 of the Motor Vehicles (Third Party Insurance) Act, Ch 295 (“MVIL Act”). The National Court refused an application to dismiss the proceedings for being time-barred holding that the cause of action accrued at time of giving notice to MVIL. On appeal, the Supreme Court upheld the appeal and set aside the decision of the National Court. It held that the time the cause of action accrued ran from date of accident and not at the time of giving notice to MVIL under Section 54 of the MVIL Act.
  
• by analogy, in a case of giving of notice of claim to MVIL under Section 54 of the MVIL Act, the delivery of the bill of costs under Section 62(1) of the Lawyers Act is not a form of a cause of action.
  
• the head notes in Joshua Kalinoe v Paul Paraka & Ors (supra) that “Action to recover a lawyers professional legal costs .....No cause of action accrues to a lawyer unless his bill of costs has been taxed” do not apply and are quoted out of context by the appellant because the Supreme Court did not decide the question on when the cause of action accrues to recover outstanding legal costs.
  
• the learned primary Judge was not bound to follow the Supreme Court decision in Joshua Kalinoe v Paul Paraka & Ors (supra).
  
• in Sarea Soi v Imawe Kewa Land Group Inc (supra) the National Court followed the decision of the Supreme Court in Joshua Kalinoe v Paul Paraka & Ors (supra) because the issue was whether the plaintiff lawyer delivered a bill of costs in taxable form to his client before commencing an action to recover the legal costs.
  
• on the other hand, the correct view as the learned primary Judge held is that an action to recover outstanding legal costs is one of breach of contract. The contract may be oral as in Kewa v Madang Provincial Government (supra) and Mountain Oil Limited v Tokaju Engineering Services Ltd (supra) or written.
  
• the relationship between a lawyer and client as in this case is governed by a contract. Even where there is vagueness and uncertainty in the terms of the contract, the Court will look at the intention of the parties to enforce a contract as in Woodward v Woodward (supra).
  
• a contract for provision of legal services between a lawyer and client is described as a simple contract as opposed to a complex one such as a specialty which the Supreme Court in Oil Search Limited v Mineral Resources Development Corporation Ltd (2010) SC1022 distinguished when determining whether an action involving alleged breach of contractual obligations is time-barred under Section 16 of the Limitations Act.
  
• as was held in Corburn v Colledge (supra) the time to count starts from the date of the last attended work is completed and not from the date of delivery of a bill of costs.
  
• the learned primary Judge correctly adopted the view expressed in Corburn v Colledge (supra) because the Court of Appeal construed Section 37 of the Solicitors Act, 1843 which is expressed in similar terms as Section 62 of the Lawyers Act.
  

Is Section 62(1) of the Lawyers Act a cause of action?

10. Based on the parties’ extensive and comprehensive submissions which we have summarised in the preceding paragraphs, it is abundantly clear to us that the appellant’s appeals are largely premised on Section 62(1) of the Lawyers Act and Joshua Kalinoe v Paul Paraka & Ors (supra) to bolster his argument in support of the view that the cause of action accrues a period of one month after delivery of the bill of costs on the client. We have read the judgment in Joshua Kalinoe v Paul Paraka & Ors (supra) and accept the respondents’ submissions that it is distinguishable and does not apply to these appeals because the Supreme Court did not decide the question on when a cause of action accrues to recover outstanding legal costs. We also agree with the respondents that the appellant has misinterpreted and read out of context the head notes of the said judgment and that the learned primary Judge was not bound to follow it.

11. Similarly, we uphold the respondents’ submissions that the Sarea Soi case (supra) was decided on the question of whether the plaintiff lawyer delivered a certified taxed legal costs to his clients (defendants) pursuant to Section 62(1) of the Lawyers Act prior to commencing proceedings to recover the outstanding legal costs. We find that case does not advance the appellant’s case, and it was not necessary for the learned primary Judge of the National Court to follow it.

12. Additionally, we note in a related case of Emmanuel Solwai Mambei v Johnny J Yawari (2017) N6950 on the application of Section 62 of the Lawyers Act, the defendants sought to strike out the plaintiff lawyer’s bill of costs because it lacked form and failed to comply with Section 62(4)(a)(i) and (ii) of the Lawyers Act. The National Court relied on the authority of Florian Gubon v Pacific Mobile Communications Ltd (supra) at [8] where the National Court adopted inter-alia, the criteria to commence an action to recover outstanding legal costs as follows: “the bill of must first be taxed if the client refuses to pay; (4) the lawyers can only then commence legal proceedings to recover his taxed costs; and (5) unless requirements (1) to (4) have been met, no cause of action accrues to a lawyer to sue for his costs against his client” and held that the plaintiff’ lawyer did not meet these criteria and struck out the bill of costs. However, we note that the National Court did not decide when time starts to run to commence an action to recover the outstanding legal costs. For this reason, we find that case does not support the view that the time-limitation of six years under Section 16 of the Limitations Act runs at the end of one month after delivery of the certified taxed legal costs on the respondents under Section 62(1) of the Lawyers Act.

13. Similarly, in a case where a lawyer and client enter into a retainer agreement or arrangement for payment of legal costs described in Section 66 (Remuneration by Agreement) of the Lawyers Act as in Yapao Lawyers v Yaliman Pawe & Ors (supra), Philip Mamando v Lumusa Local-level Government Council (1998) N1752, Patterson Lawyers v NCDC (supra), Patterson Lawyers v Teachers Savings & Loans Society (2004) N2516, Edward Manu t/a Manu & Associates Lawyers v Honiri Timber Resources Development Limited (2004) N2597 and Florian Gubon v Pacific Mobile Communication Ltd (supra) the retainer agreement or arrangement for payment of legal costs are not exempted from taxation.

14. Moreover, in Simon Norum t/a Simon Norum & Co Lawyers v Daniel Iko & Komaip Trading Pty Ltd (1997) N1593 the National Court held that a retainer or remuneration agreement between a client and lawyer for the lawyer to receive a specified portion of money recovered in a litigation is champerty at common law and not exempted from taxation.

15. On the other hand, we consider that the statutory requirement that a lawyer shall not bring proceedings to recover costs due to him until the end of a period of one month after a bill of costs has been delivered under Section 62(1) of the Lawyers Act, 1986 is neither a cause of action, nor the time a cause of action accrues but a remedy to enforce a cause of action. Equally, we uphold the respondents’ submissions that if it were that Section 62(1) of the Lawyers Act is a cause of action, it is not expressed in Section 62 or elsewhere in the Lawyers Act or the Limitations Act that the time limitation of six years under Section 16 of the Limitations Act does not apply.

16. Moreover, we consider that Section 62(1) of the Lawyers Act is a precondition to commence an action to recover outstanding legal costs. It is analogous to the precondition to give a notice of intention to make a claim to the MVIL under Section 54 of the MVIL Act as affirmed by the Supreme Court judgment in MVIL v Kuri (supra) or similarly, a notice to the State under Section 5 of the Claims By and Against Act, 1996 as affirmed by the Supreme Court in Paul Tohian v Tau Liu (1998) SC566.

What is the cause of action?

17. As to the cause of action, we note at [18] of the judgment that the learned primary Judge held that the cause of action is one of breach of simple contract for recovery of legal costs. We uphold the respondents’ articulation of the definition of the phrase “cause of action” supplied by the case of Patterson Lowa & Ors v Wapula Akipe & Ors (supra). We accept the respondents’ submissions that the learned primary Judge was correct to hold that an action to recover outstanding legal costs is one of breach of contract. The form of contract may be oral or written: Kewa v Madang Provincial Government (supra) and Mountain Oil Limited v Tokaju Engineering Services Ltd (supra).

18. Moreover, we accept that this is because the relationship between the lawyers and client as in this case is governed by a contract. In some instances, there may be vagueness and uncertainty in the terms of the contract, but the Court will always look at the intention of the parties to enforce a contract as in Woodward v Woodward (supra). We consider this principle equally apply in a lawyer/client relationship.

19. In conclusion, we uphold the learned primary Judge’s finding that a contract for provision of legal services between a lawyer and client is a simple contract as opposed to a complex one such as a specialty which the Supreme Court in Oil Search Limited v Mineral Resources Development Corporation Ltd (supra) distinguished when determining whether an action involving alleged breach of contractual obligations is time-barred under Section 16 of the Limitations Act.

When does a cause of action accrue in an action to recover outstanding legal costs?

20. As to when the cause of action accrues, we note that the learned primary Judge adopted the view expressed by the English Court of Appeal in Corburn v Colledge (supra) that the time to count starts from the date of the last attended work is completed and not from the date of delivery of a bill of costs. This view was based on the Court of Appeal’s construction of Section 37 of the Solicitors Act, 1843 which is expressed in similar terms as Section 62 of the Lawyers Act.

21. Contrary to the appellant’s strong submission that Corburn v Colledge (supra) has no relevance to these appeals because it applies to a solicitor’s costs as opposed to counsel’s costs of litigation, we agree with the learned primary Judge that it does. Except for the difference in the charge out rate, in a jurisdiction such as PNG where there is a fused legal profession, it is necessary for a solicitor and counsel to render a fee note or invoice to a client to settle once the work is done. In the Corburn v Colledge (supra) the plaintiff, who was a lawyer, did some work for the defendant. All the work done by the plaintiff had been completed on 30^th May 1889. The defendant left England on 7^th June 1889 and on 12^th June 1889 his Solicitor posted his bill of costs which reached Australia in 1891. The defendant then returned to England in 1896 and in that year, the Solicitor filed proceedings to recover his bills. The defendant relied on the statutory defence of time-bar under the Statute of Limitations. The Court of first instance held that the claim was statute barred and dismissed it. The plaintiff then appealed to the Court of Appeal. The Court of Appeal confirmed the decision of the lower court thus:

“In the case of a solicitor’s costs the cause of action arises when the work is completed, and therefore the Statute of Limitation begins to run from the expiry of a month from the delivery of the bill of costs.” (Italics added).

22. At 2^nd paragraph (line 7) of the judgment:

“Lord Esher M.R with regard to actions by solicitors for their costs, a solicitor stood in the same position as any other person who has done work for another at his request and could sue as soon as the work which he was retained to do was finished, without having delivered any signed bill of costs or waiting for any time after the delivery of such a bill.....”

23. Further:

“Similarly, I think s. 37 of the Solicitors Act, 1843, deals, not with the right of the solicitor but with the procedure to enforce that right. It does not provide that no solicitor shall any cause of action in respect of his costs or any rights to be paid till the expiration of a month from the delivering a signed bill of costs, but merely that he shall not commence or maintain any action for the recovery of fees, charges, or disbursements until then.

It assumes that he has a right to be paid the fees, charges, and disbursements, but provides that he shall not bring an action to enforce that right until certain preliminary requirements have been satisfied. If the solicitor has any other mode of enforcing his right than by action, that section does not seem to interfere with it. For instance, if he has money of the client in his hands not entrusted to him for any specific purpose, there is nothing in the section to prevent his retaining the amount due to him out of that money. If that be the true construction of the section, it does not touch the cause of action, but the remedy for enforcing it.”

24. Furthermore, contrary to the appellant’s strong submission that Corburn v Colledge (supra) was decided more than 200 years ago and outdated, that case is a testament and reminder that the legal profession is arguably one of the oldest professions in human history and the common law principles developed in that case is well and truly alive in these day and age. It is so because while in the New South Wales Court of Appeal case of Cockburn v Shedadie (supra) was not an action for recovery of outstanding lawyer’s legal costs, but for services rendered to the defendant for provision of research services, the agreement provided that all invoices submitted by the plaintiff will be paid within 90 days. The judge of first instance struck out the action for being commenced outside six years and time barred. On appeal the Court of Appeal adopted the view expressed by the Court of Appeal in Corburn v Colledge (supra) that the cause of action accrues when services are completed.

25. In these appeals, while we note that there is no evidence of a written contract between the parties, we are satisfied on the evidence of the parties that there is a partly oral and implied contract between the parties because the respondents offered by retaining the appellant to act for them as their lawyer and provided legal services in the matters coming before the National Court, and he accepted by rendering his legal services to them and as consideration, was paid legal fees of unspecified sums, from time to time.

26. Based on the contract and where there is a breach, the view proffered by the respondents and upheld by the learned primary Judge is that the cause of action for breach of contract accrued on the last work done on the matter. This view is based on how a simple contract for provision of goods and service is applied in a commercial setting where unless the contract provides otherwise, the paramount consideration is payment when goods are supplied and received, or work is completed. Moreover, while the relationship of a lawyer and client is of a fiduciary nature where trust and confidentially are paramount considerations, it does not change the nature of the relationship of being one of simple contract.

27. The Corburn v Colledge (supra) and Cockburn v Shedadie (supra) cases should serve as a useful reminder to lawyers that time is of essence and if they do work for their clients, deliver their bill of costs for payment as soon as the work is completed. It will be observed that the general rule of practice these days is that majority of modern law firms issue fee notes or bills for payment of their legal costs on monthly basis for the work done in the month. These fee notes or bills are computer generated from billing software programs and the solicitor or counsel’s data entry of each activity based on the hourly charge out rate. It is an efficient method of billing as opposed to a manual drafted bill. It is an example of keeping up with time for payment. Unfortunately, the appellant did not issue any fee note or bills for payment but received instalment payments of unspecified amounts for work done for acting for the respondents. By the time he delivered his final bills of costs for payment, he was well out of time.

28. We uphold the learned primary Judge’s finding and conclude that to commence an action for breach of contract for provision of legal services, the time limitation of six years applies pursuant to Section 16(1)(a) of the Limitations Act. Further, we uphold the learned primary Judge’s finding that the National Court proceedings were commenced after the time limitation of six years had expired and the proceedings are time-barred pursuant to Section 16(1)(a) of the Limitations Act.

Appellant’s Additional Submissions

29. Finally, before we close, we note that the appellant made additional extensive submissions in relation to the National Court proceedings being “an action upon specialty” under Section 16(3) of the Limitations Act. The gist of the extensive submissions is that the learned primary Judge erred in law and fact in failing to hold that the cause of action is “an action upon specialty” under Section 16(3) of the Limitations Act, thus the applicable time-limitation is twelve years to commence an action to recover outstanding legal costs and the proceedings were commenced within time. We refer to “Part C – Issues” from [5] to [30] of the written submissions found in SCA No 56 of 2022 to highlight the appellant’s additional submissions. However, we have perused the notices of appeal and find that there are no expressed grounds questioning the soundness of the learned primary Judge’s decision not to hold that the National Court proceedings were “an action upon specialty” under Section 16(3) of the Limitations Act. We consider that these submissions bring up a significant and substantial question for consideration, and ought to have been pleaded as one of the grounds of appeal. Without that, we consider that it is prejudicial and a violation of the respondents’ right to a fair hearing and natural justice to rule on these additional submissions because the respondents did not have prior notice that the appellant will be taking up this ground at the hearing. For these reasons, we disregard these submissions.

Conclusion

30. We are not satisfied that the appellant has demonstrated that there the learned primary Judge acted on a wrong principle of law, gave weight to extraneous or irrelevant matters, failed to take into account relevant considerations or made a mistake as to the facts or that there are identifiable errors of law or fact or that the resulting judgment is unreasonable or plainly unjust: Curtain Brothers (PNG) Ltd v UPNG (2005) SCSC788.

31. We dismiss the appeals in their entirety, affirm the judgment of the National Court of 28^th March 2022 and award costs to the respondents on a party/party basis, to be taxed, if not agreed.

Order

32. The final terms of the order of the Court are:

1. The appeals SCA No 56 of 2022, SCA No 57 of 2022, SCA No 58 of 2022, SCA No 59 of 2022 and SCA No 60 of 2022 are dismissed in their entirety.
   

2. The judgment of the National Court of 28^th March 2022 is affirmed.

3. The appellant shall pay the costs of the appeals SCA No 56 of 2022, SCA No 57 of 2022, SCA No 58 of 2022, SCA No 59 of 2022 and SCA No 60 Nickson Kuik Lawyers: of 2022 on a party/party basis, to be taxed, if not agreed.

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Lawyers for appellants: Nickson Kuik Lawyers
Lawyers for respondents in SCA Nos 56 & 60 of 2022: Gibson Bon Lawyers Lawyers for respondents in SCA Nos 57, 58 & 59 of 2022: Raymond Obora Lawyers