N411(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

JACK LAAD

V

LEO WANJO

Waigani
Bredmeyer J

4 April 1983
27 April 1983

COSTS - District Court - Fees of "attorney or agent" - Confined to lawyers - Law student appearing by leave - No right to costs - District Courts Act 1963, s. 67(1)(e) - Lawyers Act, (Ch. No. 91), s. 35.

COSTS - District Court - Scale costs - Fee for attendance of lawyer - Confined to attendance at substantive hearing - Not allowable for adjournments - District Court Regulations, Sch. 3, item 7.

Held:

(1) A law student who appears in the District Court by leave pursuant to s. 67(1)(e) of the District Courts Act 1963, cannot charge, nor can his client be awarded fees for his services.

(2) The words "attorney or agent" where used in the District Courts Act 1963, and the Regulations thereunder refer only to a lawyer as defined in the Lawyers Act (Ch. No. 91).

(3) The fee allowed for the attendance of a lawyer in the District Court under item 7 of the Third Schedule to the District Courts Regulations is confined to attendance in court at the substantive hearing of the case or to receive judgment: it should not be allowed for attendance on an application for adjournment.

Appeal

This was an appeal against a decision of the District Court on a claim for moneys due and owing.

Counsel

B. Narokobi, for the appellant.
Respondent in person, assisted by law student R. Rea appearing by leave.
Cur. adv. vult.

27 April 1983

BREDMEYER J: (I discussed the evidence called on the appeal and made a finding on the balance of probabilities that a threat had been made to the appellant, who was the defendant in the District Court case, on 26 November 1982, and that as a result of that threat, he consented to an order made against him on 29 November 1982. I said that that threat to the defendant amounted to a substantial miscarriage of justice and I ordered a rehearing of the case commencing from the point where the magistrate ceased to hear evidence on 26 November 1982. I made a related order as to the costs of the appeal which is not recorded here.)

Before concluding my remarks I wish to say something on the matter of costs. The claim in the District Court was for non payment of moneys due on the sale of a caravan trade store. Both plaintiff and defendant were Engans and in the District Court both were represented by fourth year law students. Both law students were given leave to appear under s. 67(1)(e) of the District Courts Act 1963 and because of that they are not in breach of s. 35(1)(b) of the Lawyers Act (Ch. No. 91). However that leave does not include the power to charge fees for their services. For a law student to charge a fee for his services is I consider "to act as a lawyer" within the meaning of s. 35(1)(a) of the Lawyers Act which is an offence punishable by a fine not exceeding K200. In this case I heard sworn evidence that the defendant in the District Court, Jack Laad, paid K50 to the law student Lucas Senar who represented him, and that he agreed to pay him another K50 but did not do so because the case was settled before the conclusion of all the evidence. I did not ask the plaintiff in the District Court whether he paid Reme Rea for his services — but I assume that Reme Rea asked for payment because, at the conclusion of the District Court case, he got up and asked for the scale legal costs allowable as if he were a lawyer. Law students who appear by leave in the District Court cannot charge fees for their services; to do so is to commit an offence. In this case the grade V magistrate compounded the offence by awarding scale costs to the successful party in exactly the same way as if his legal representative had been a lawyer.

The District Court’s power to award costs is contained in ss 267 to 272 in the District Courts Act. By s. 270 the legal fees are restricted to the prescribed sums. The prescribed sums are contained in reg. 49 and in the Third Schedule to the District Courts Act. The Third Schedule and the Second Schedule to the District Courts Act were replaced by Statutory Instrument No. 36 of 1981 which gave a substantial increase to the fees formerly allowed. Section 270 of the Act, reg. 49 of the District Courts Regulations, and the Third Schedule to those regulations, all contained the phrase "an attorney or agent". I find this phrase puzzling as I know of no other use of those terms attorneys or agents in our statutory law. I consider the interpretation of the District Courts Act should be such that it does not conflict with s. 35 of the Lawyers Act. I thus consider that the terms "attorney or agent" in the District Courts Act, Regulations and Third Schedule refers only to a lawyer as defined in the Lawyers Act. That being so, the learned magistrate had no power to grant costs according to the Third Schedule to the plaintiff for the services of his law student representative. When a party appears in the District Court and he is represented by a person by leave, as was the case here, the only costs that can be awarded are costs under Sch. 2 — the fee on summons, the service fee etc. — and witnesses expenses.

Even if the plaintiff had been represented by a lawyer, the awarded costs were wrong in one particular. There were four adjournments granted in this case and the trial itself lasted two days. In fixing costs the magistrate allowed K17.00 for each adjournment as he was entitled to do under item 5 of the Third Schedule. In allowing costs under item 7, the fee for the attendance of the lawyer in court, the magistrate treated the case as a five-day trial. He granted K84.00 for the first day and K56.00 (being two-thirds of K84.00) for four other days. That was incorrect. The correct way was to allow K17.00 for each of the four adjournments, K84.00 for the first day of the trial, and K56.00 for the second day. It is incorrect to treat an application for adjournment under item 5 as anything other than an application for adjournment. The same applies to any other kind of application under item 4. There is no overlap between items 4 and 5 and item 7. Item 7 refers to lawyer’s attendance in court at the substantive hearing of the case or to receive judgment.

Orders accordingly.

____________________________

Lawyer for the appellant: B. Narokobi.