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Public Officers Superannuation Fund v Independent State of Papua New Guinea [2018] PGNC 45; N7115 (15 January 2018)

N7115

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 262 of 1999

BETWEEN:
PUBLIC OFFICERS SUPERANNUATION
FUND
Plaintiff

AND:
THE INDEPENDENT STATE
OF
PAPUA NEW GUINEA
Defendant

Waigani: Hartshorn J.

2018: 15^th January

APPLICATIONS - review of taxation of costs and judgment on tax costs

Cases cited:

Tolom Abai v. State (1998) N1762

Counsel:

Mr. G. Koi, for the Plaintiff

15^th January, 2018

1. HARTSHORN J: This is a decision on the rehearing of two applications that were heard before the late Justice Sevua. His Honour reserved his decision on the applications, but did not deliver his decision before his term of appointment as a Judge expired.

2. The applications that were heard before His Honour on 6^th December 2000 were an application by the plaintiff, Public Officers Superannuation Fund Board, for judgment to be entered against the State for the sum of K49,577.88 as per the Certificate of Taxation dated 3^rd February 2000 and an application by the State for the review of the taxation of the plaintiff’s bill of costs.

3. I allowed the rehearing to proceed in the absence of representation on behalf of the State as I was satisfied that the order of this court dated 10^th February 2017 which amongst others, ordered the date and time of the rehearing (rehearing order), was personally served upon the State on 21^st February 2017 and so I was satisfied that the State had been properly notified.

4. Notwithstanding that the rehearing order only refers to the rehearing of the plaintiff’s application for judgment on taxed costs, I have also considered the defendant’s application for review. This is because Sevua J had on 14^th September 2000 granted leave to the State to file an application for review, that the notice of motion seeking review and affidavit in support were filed and the endorsements on the court file are that on 8^th November 2000, when counsel for both parties are recorded as being present, it is recorded that the matter is adjourned to 6^th December 2000 and that it is noted that this is the final adjournment. Then on 6^th December 2000, both counsel are recorded as being present and that, “Plaintiff seeks to have judgment entered against defendants. Ruling is reserved in relation to this matter.”

5. There is then another line of writing which has been ‘whited out’ and is indecipherable. Further, on the court file is a submission dated 8^th November 2000 on behalf of the State upon which there are blue fountain pen markings. There are other blue fountain pen markings on the file made by Sevua J and so I have formed the view that His Honour considered the State’s submissions on 6^th December 2000 as well as the submissions of the plaintiff.

6. Consequently, I have considered the defendant’s submission filed 9^th November 2000, the various affidavits filed on behalf of both parties the two respective notices of motion and the plaintiff’s taxable bill of costs taxed off by the taxing officer.

7. On 2^nd February 2000, the taxing officer, Mr. Lohia Raka, the Acting Registrar, certified that he had taxed the within bill of costs and allowed it at K 49,577.80. The State submits that the taxation should be reviewed pursuant to Order 22 Rule 60 National Court Rules as:

a) The amount allowed by the taxing officer for research in the sum of K35,000.00 should not have been allowed;

b) The amount allowed for compiling research and drafting and filing a submission for motion in the sum of K3, 600.00 should not have been allowed.

8. It is submitted that these amounts should not have been allowed because as Woods J said in Tolom Abai v. State (1998) N1762:

“In taxing a bill of costs between a lawyer and a client a taxing officer can only allow the costs of such steps as in the circumstances were reasonably necessary. A lawyer is expected to have a reasonable knowledge of his work and is not allowed to charge a client for work which is useless and he is not allowed to charge a client for work performed by the lawyer in learning his own business.

Order 22 Rule 35 gives the taxing officer and the court the authority to consider reasonableness of amounts charged. Where a client has agreed to an unreasonable amount it is still open to the taxing officer and the court to look at the agreement with the client and ascertain the reasonableness of the amount charged under ordinary taxation principles.

A client cannot agree to unreasonable or unnecessary costs where the client knows that a third party is to bear those costs. Under Order 22 Rule 49 any Bill of Costs must still contain particulars of the work done by the lawyer, his servants and agents and the costs claimed for the work done.”

9. Item 12 in the bill of costs is “Research conducted both at University & National Court Library in relation to case law on Summary Judgement”, and then 10 law topics are listed. K 40,000.00 is claimed being 8 hours per day at K250 per hour for 20 days. The taxing officer reduced this amount to K200 per hour and allowed K35,000.00, although the correct calculation is K32,000.00 with the reduction in the hourly rate.

10. In my view this amount should not have been allowed. I concur with Woods J that a lawyer is expected to have a reasonable knowledge of his work and is not allowed to charge a client for work performed by the lawyer in learning his own business. Further, as an aside, any lawyer practising litigation who is worth his salt should know how to apply for summary judgment. To charge a client 160 hours research in regard to making an application for summary judgment, even if such costs were allowed to be charged, is beyond excessive. I am of the view that the taxing officer fell into error in allowing anything for this item.

11. As to the sum of K3,600.00 for compiling research and drafting and filing submissions for motion, in my view this item is allowable but the amount of time claimed - 18 hours - is excessive. I reduce this amount to K1,800.00.

12. Consequently, pursuant to Order 22 Rule 62 National Court Rules which provides:

“Where the amount of any costs has been certified under this Division the Court may, on motion by a party, direct the entry of such judgement for the costs as the nature of the case requires.”,

13. The judgment for the costs that in my view the nature of the case requires is K 12,777.80, and I so order.
    

Orders

13. The formal Orders of the Court are:

a) Judgment is entered against the defendant in the sum of K12, 777.80 for the plaintiff’s taxed costs, pursuant to Order 22 Rule 62 National Court Rules;

b) No other order as to costs is made;

c) Time is abridged.
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Nambawan Super Limited In-house Lawyers: Lawyers for the Plaintiff