Sike v Sawin [2019] PGNC 330; N7969 (23 August 2019)

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AND:
JEROME SAWIN in his Capacity
as Legal Officer, Education Department
First Defendant

AND:
JOHN TEKLAU KAUPA as Acting
Principal of Simbu Teacher’s College
Second Defendant

AND:
BRIAN SORI in his capacity as
Chairman of Teaching Services Commission
Third Defendant

AND
DR. UKE KOMBRA in his capacity as Education
Department and Chairman of the National Education Board
Fourth Defendant

COSTS - Review of taxation of costs –exercise of discretion- relevant factors - requirement to separately itemize work done and time spent - appropriate hourly rate for lawyers of junior to medium experience - no entitlement to charge for research into law which lawyer is reasonably required to know

Counsel:
Mr. J. Napu, for the Plaintiff
Mr. J. Kerenge, for the Defendant

1. THOMPSON J: This was an application for review of a Certificate of Taxation in the sum of K244, 355.00, which had been issued by the Taxing Officer (“TO”) on 01July 2019.

2. The Plaintiff had filed a Bill of Costs, but had not filed an Application for Taxation in breach of the requirements of Order 22, Rules 45-46, and a copy of the court order for Taxation was not attached, in breach of Order 22, Rule 46 (3). The Bill was served, but no Application was served on the Defendant, in breach of Order 22, Rule 46 (4). Despite this, the Bill of Costs was set for taxation on 9 May 2019. It did not proceed on that date, and there is no evidence of what happened. There is no evidence if notice of an adjournment was given to the Defendant, and there is no affidavit of service on the court file showing that the Defendant was notified of the adjournment. The Taxation proceeded ex parte on 28 June 2019. On 01 July 2019 the TO published his Reasons in Taxing and issued the Certificate of Taxation, which was served on the Defendant on 2 July 2019.

3. Pursuant to Order 22 Rule 60, any party dissatisfied with the taxed amounts allowed in whole or part, may apply on Motion to review the decision within fourteen days or such further time as the court may allow. Pursuant to Order 22 Rule 60 (3), an applicant must at the time of making his application, deliver a written list of objections to the TO, and serve it on the other party.

4. On a Taxation, the TO has a wide discretion, and on review the court may exercise the same powers and discretions as the TO (O22 R 61(2).)

5. Pursuant to Order 22, Rule 61 (1) (b), on the review a party cannot raise objections which are not in the list of objections delivered to the TO. This is a reference to the list of objections required to be delivered under Order 22, Rule 60 (3).

6. The requirement under Order 22 Rule 60 (3), to deliver a copy of the list of objections to the TO, is similar to the requirement under Order 7 Rule 12 – 13 of the Supreme Court Rules to serve the Notice of Appeal on the primary judge. It is not because the TO or the judge is a party who may take part in the Review or Appeal process. It is a courtesy to let the TO or judge know that the decision is being reviewed or appealed.

7. The TO’s Reasons gave a concise summary of what he described as the rationale for his decisions. In view of the length and size of the Bill, he quite reasonably did not itemize every decision on every item, but clearly set out the major decisions including the hourly rate and the travel costs.

8. On 11 July 2019 the 5^th Defendant, the State, filed a Motion to Review the Taxation, and on 16 July 2019 they filed an Affidavit in Support, annexing the written list of objections. When the Motion was listed for hearing on 8 August 2019, there was no appearance by the Plaintiff’s lawyer, and it was adjourned to 13 August, when the Motion was heard. At the hearing of the review, the 1^st – 4^th Defendants were not separately represented.

9. The Plaintiff objected to the Motion on various technical grounds but made no submissions on the merits of the review. I will deal with each of the Plaintiff’s objections in turn.

10. The Defendant’s Motion and Affidavit referred to the Plaintiff as the Petitioner. As the Plaintiff’s Certificate of Taxation and the TO’s Reasons in Taxation also erroneously referred to the Plaintiff as the Petitioner, the matter is trivial, and is of no significance at all.

11. The Defendant’s affidavit was not filed with the Motion. The affidavit was filed on 16 July, within 14 days after the date when the Certificate of Taxation was served. However, it was not filed with the Motion on 11 July, as required by Order 4 Rule 12. The Plaintiff gave no evidence of any prejudice caused by the documents not being filed at the same time. Pursuant to Order 4 Rule 49 (20) I dispense with that requirement.

12. The Affidavit was not sworn in the first person, as required by Order 11 Rule 22 (1). The Plaintiff has misunderstood the meaning of “first person”. The affidavit comprises the introduction and three paragraphs. The introduction and paras 1 and 3 say “I say ...”, “ I am ...” and “ I make ....”, and para 2 says “we object ....”. The “first person” is the opposite of the “third person”, so that “I say” or “we say” are the opposite of “he says” or “they say”. “We say” is simply the plural form of the first person. There is no breach of the Rule.

13. The list of objections was not served on the TO, did not particularize how much was allowed for each item by the TO, and did not state the grounds supporting the objection. As stated earlier, delivery to the TO (the Rule refers to delivery, not service) is a courtesy requirement, and he does not take part in the Review process. The Plaintiff has not shown any prejudice or any effect at all of the objections not being delivered to the TO. Pursuant to Order 1 Rule (7), I dispense with compliance with this requirement.

14. In relation to the objections, they are as sufficiently particularized as the nature of the case allowed. The TO did not specify his allowances and disallowances item by item, and so the Defendant is not able to specify each objections item by item. The Defendant has set out ten pages of objections with sufficient particularity, based on the documents.

15. It is not correct that the objections do not state the grounds, which are set out before each of the Parts and also partly in the Parts.

16. The Plaintiff also submitted that, because Order 22 Rule (61) says that a party shall not raise any grounds of objection not stated in the list of objections, then as the Defendant had not raised any objections at the Taxation, it is now precluded from raising any objections. However, Order 22 Rule (61) (3) is clearly referring to the list of objections delivered after the Taxation pursuant to Order 22 Rule (60) (3), because there is no requirement to deliver a list of objections before or at the Taxation. The Defendant is therefore permitted to raise all the matters in its list of objections.

18. Part 1 – Preparation of Documents. This part of the Bill is almost totally incorrect. It repeats the same items continuously. For instance, each of the charges for preparing the Originating Summons, Statement, Notice of Motion and Affidavits are each repeated six times. It includes charges for matters which are not prescribed documents, such as letters, and it charges copying on top of the preparation fee, when Schedule 2 Table 1 Part 1 says that the preparation fee includes three copies.

19. Nevertheless, as the Defendant has not objected to these items, they have been allowed.

20. Part 2 – Block Allowance. Again, this Part is totally incorrect. Table 1 Part 2specifies that this is an alternative charge to the previous charges in Part 1, not in addition to them. Nevertheless, as the Defendant has not objected, it has been allowed.

21. Part 3 – Counsel’s Fees. There are two main grounds of objection – the hourly rate, and the fact that each item includes five different types of items which have not been separately particularized and charged.

22. In relation to the hourly rate, the Plaintiff claimed K1,600.00 for John Napu and K800.00 for Tabe Jugari, which the TO reduced to K1,200.00 and K400.00 respectively. In my unreported decision in OS(JR) 721 of 2004 The State v the National Lands Commission and others delivered on 2 October 2018, I set out the factors to be taken into account when determining an hourly rate, including the seniority of the lawyer, the degree of skill involved, and the expenses and overheads which he incurs in providing his legal services. A sole practitioner working from home with few overheads cannot justify the same hourly rate as a lawyer in a firm in commercial office space with high overheads.

23. In the present case, Mr. Jugari (who conducted the hearing) was a junior lawyer, having only been admitted for about 2 years. Mr. Napu is a lawyer of medium seniority of ten years, working from his home. It was an ordinary judicial review matter which was uncontested and which took no more than two hours at the substantive hearing. It was not a complex matter involving calling witnesses or difficult areas of law.

24. Nevertheless, the TO has a wide discretion, and while K1,200.00 may have been at the high end of the range for this type of matter, it was not outside the range, and there is no basis for interfering with this figure, or the figure for Mr. Jugari.

25. In relation to the way in which the items were shown in the Bill, this made it almost impossible for the TO to determine the work which was done and the time spent in that work. Without knowing the time spent on each item, the TO could not apply the hourly rate to each item.

26. Items 97 - 118 were identical. Each contained five different types of work, whereas Schedule 2 Table 1 Part 3 is specifically for Counsel’s fees for “appearing and arguing a case”, and nothing more. Work such as taking instructions is covered by Part 7, and should have been excluded from these items. The only items for assessment by the TO in Part 3 should have been Counsel’s Fees for court appearances.

27. The Schedule classifies court appearances by whether or not they were interlocutory or final, contested or uncontested, adjournments or taking a deferred judgment. However, the Bill did not generally identify the nature of the appearances, and almost every appearance was charged at 3 hours. The TO was unable to properly classify the nature of the work done or the time spent.

28. For instance, Item 97 charged K4,800.00 for 3 hours for “court appearance, perusal of file, consolidation of instructions, preparation for hearing and court appearance”, which are 4 separate types of work. In fact, the appearance on 20 June 2017 was simply to adjourn the matter because the Plaintiff had not yet served it. Item118charged K2,800.00 for “court appearance, perusal of file, further research into law and facts, consolidation of instructions, preparation for decision and court appearance”, which are 5 separate types of work . In fact the appearance on 10 August 2018 was only to receive the deferred judgment. Under the Scale set out in Part 3, these fees should have been K50 and K30 respectively.

29. Of course, a practice has developed whereby the TO uses the discretion under Order 22 Rule (36) to allow a higher amount than in the Scale, in view of the outdated nature of the scale fees. Nevertheless, that discretion must be exercised consistently with the classification of the prescribed items in the Schedule, so that the fee for an uncontested adjournment is less than for a contested hearing, and so on. The discretion must also be exercised in accordance with Order 22 Rule (24) (2), whereby the costs have to be necessary and proper for enforcing rights. It clearly was not necessary for the Plaintiff’s lawyer to ‘consolidate’ instructions, research the law or prepare for a hearing for the appearances on those date, or on the majority of the 20 or so adjourned dates.

30. The Defendant has referred to the case of Joseph Sanga Kumbu v Mann, UPNG and others (2018) PGNC 50, where the court found that Applications for Leave for judicial review, directions hearings, and other interlocutory applications should be allowed at 30 minutes. I respectfully agree, although this is always subject to the particular facts, which may show that the application was contested or for some other reason took much longer. No such facts were shown here. Applying these principles, the Counsel’s ex parte appearance at court on 20 June 2017 was for an uncontested adjournment and should not have taken more than 30 minutes.

31. Counsel’s appearance on that date did not require any research, or instructions or preparations, as claimed, and in any event, those items are covered elsewhere in the Schedule and Bill. A perusal of the court file shows that, apart from the application for Leave, the next 20 or so appearances were uncontested adjournments, withdrawing his Motion, Directions and so on. Each of these items, including taking the deferred judgment, should be allowed at 30 minutes. Item 117, which is the hearing, will remain at 2 hours.

32. Part 5 - Attendances. The Schedule clearly restricts these items to attending on examination of witnesses, attending on counsel in conference, and attending the hearing as a second lawyer. None of those matters are applicable in this case. The Plaintiff has also wrongly duplicated each of the earlier charges for counsel’s fees, and again has wrongly included more than one type of work. None of this is allowable.

33. Part 7- Preparation for Trial. The Plaintiff has for the third time in the Bill, duplicated the charges for attendances, consultations with the client, research, and preparing documents and letters. The item did not begin with a short statement of the issues, particular difficulties or special skills required, as prescribed by Part 7 Item12.(3).

34. Part 7 was the appropriate section for taking instructions and issuing correspondence. It does not contain any reference to research, as a lawyer is expected to know the general law. If the item had identified any particular difficulty or skill required for an unusual problem, an allowance for research could have been made. However, this was an ordinary judicial review, and any lawyer, including one of ten years experience, must be required “to have a reasonable knowledge of his work and cannot charge for learning his own business” (see Tolom Abai and others v the State (1998) PGNC 92 and also Kumbu v Mann, Supra). No particular research was required, and it should have been disallowed.

35. Further, in relation to the time spent, it is clearly excessive. For instance, the Plaintiff’s lawyer says he spent eight hours conferring with the Plaintiff on 7 June, six hours research on 8 June, 13 hours research and drafting on 9 June, 6 hours research on 11 June, 8 hours research on 15 June, 8 hours research on 17 June, 8 hours research on 25 June, 3 hours research on 29 September, 5 hours research on 3 July 2018 and 3 hours research on 6 July 2018 a total of about 60 hours in research alone. This was unreasonable and unnecessary in an ordinary judicial review based on established law.

36. Again, the Plaintiff has made it impossible for the TO to apply the hourly rate to the time spent on the items, because the Plaintiff has included 3 or 4 different types of work in the same item. There are no allowable items for opening a file. The time spent in preparation of documents is excessive. For instance, the Plaintiff’s lawyer says that from 9 June to 23 June 2017, he spent 33 hours drafting and preparing the documents. This included 3-4 hours (it is difficult to be precise because the items are not shown separately) for preparing a one-page Affidavit Verifying Facts, 2-4 hours preparing a one-page Undertaking as to Damages, and 6-11 hours preparing a 3- paragraph originating summons.

37. In relation to the preparation and copying of documents, apart from the fact that this has already been claimed in Part 1 Preparation of Documents, the Schedule does not permit a lawyer to charge for preparing several drafts of a document. In relation to a number of items, the hourly rate has been charged at K250.00 instead of K1,600.00 or K800.00. Order 22 Rule 49 says that where work is done by a clerk, it should be stated in the Bill. These items referred to “preparing issuing and service,” of various documents, but it is not stated who performed the work. Under Schedule Table 1 Part 1, the item for “preparing, issuing, filing and service” is a single item, with a single charge. If a clerk is engaged to file or serve, it should be shown as a disbursement, or if employed, shown at an hourly rate.

38. Because the Plaintiff again combined several different types of work in one item, it was not possible for the TO to apply the correct rate. For instance, only a lawyer, not a clerk, could prepare the originating summons and other documents, but a clerk should have filed and served them. As I found in the National Lands Commission case, it is not reasonable for a lawyer to charge a lawyer’s rate for clerical work. In Kumbu’s case, the court found that K25.00 per hour was an appropriate rate for copying, searching, filing and so on, and I respectfully agree with that figure, but extending it up to K75.00 per hour where appropriate.

39. In relation to correspondence, these charges were already (incorrectly) included in Part 1 Preparation of Documents, and allowed. They are therefore wrongly duplicated in Part 7.

40. In relation to the preparation of documents, the charges and copying charges were already allowed in Part 1. The TO could use his discretion to allow a further amount for preparation, if he was satisfied that the basic amounts should be increased. The way in which the items were presented, made this difficult. For instance, in Part 1, the Plaintiff was allowed K45.00 plus K648.00 for copying and preparing the Review Book. This was in addition to the separate charges for preparing the documents in the Review Book. He was allowed another K45.00 for preparing, filing and serving it. In Part 7, he charges K12,800.00 plus K648.00 copying, for preparing it, and another K1,250.00 for preparing, filing and serving it. He has charged over K13,000.00 plus K1,296.00 for copying, just for preparing the Review Book ( not for preparing the documents in it), which is a clerical task. Even if it took the 8 hours which has been claimed, it should be at the clerical rate. Further, the Review Book was only 85 pages, and he was only required to produce one copy for the Plaintiff, one copy for the 5^thDefendant (as the other defendants had not filed an address for service, pursuant to Order 6 Rule 14, service was effected by the mere filing of the documents) and one copy for the court.

41. On this point, the prescribed charge in the Schedule for copying, is 50 toea per page. The TO may use his discretion to increase this. However, I consider K6.00 per page to be grossly excessive. A simple affidavit of 11 pages including a front sheet and annexure sheets, should not cost nearly K500.00 to print. A Review Book should not cost K15,000.00 to print. I consider K2.00 per page to be more than reasonable.

42. Similarly, because the Plaintiff combines all the types of work, the charges for preparing a Notice of Motion and Affidavit of 14 May 2018 are: item 60 - K45.00 and K54.00 copying, item 61 – K45.00 and K126.00, item 62 – K45.00, item 64 – K45.00, item 240 – K8,000.00 and K288.00 for copying, and item 241 –K750.00, making a total of K8,885.00 plus K468.00 for copying. The affidavit was a simple document, with the body being only 8 paragraphs, and annexing two documents. It could not have taken 5 –7 hours of a lawyer’s time to prepare.

43. Another example is item 222. The reference to four separate types of work includes preparing an affidavit of service, which is charged at K1,250.00 for 5 hours plus K48.00 for copying. Item 233 goes on to refer to preparing and filing the affidavit of service, which is charged at K750.00 for 3 hours. It cannot take between 3-8 hours and cost about K2,000.00 to prepare and file a simple affidavit of service.

44. Similarly, after charging several hours for preparing a Notice of Motion in June 2018, there is a charge for another 4 hours in amending the Motion. In relation to interlocutory submissions in June 2018, the Plaintiff has charged 2 hours and K1600.00 for preparing submissions on a Motion which was either not proceeded with, or refused.

45. In relation to substantive submissions, the Plaintiff has charged about 35 hours and about K26,000.00 (excluding research) for preparing them, K750.00 for serving them, and K1250.00 for doing an affidavit of service. There is no copy of the submissions on the court file, but as it was an ordinary judicial review, they could not have been difficult, and the figures are grossly excessive.

46. In relation to the Notice of Trial in item 266, the Plaintiff has charged K800.00 for preparing it and K54.00 for copying, in item 267 has charged K1600.00 for preparing and filing it, and in item 268 has charged again for serving it, a total of over K2,400.00. The scale fee in Part 1 of the Schedule for preparing, filing and serving a Notice of Trial is between K10.00 – K45.00.

47. In view of the way in which the Plaintiff’s Bill was set out, it was not possible for the TO, the Defendant or this court to go through every item and apply the hourly rate to each type of work performed. In the circumstances, I will review the Bill using the same format as the Reasons in Taxing and the Summary on the final page of the Bill.

Item	Amount allowed by Taxing Officer	Amount allowed on Review
Part 1 - Preparation of Documents. Items 1-95	K4,964.00 including disbursements	K4,964.00 including disbursements
Part 2 - Block allowance. Item 96	K 300.00	K300.00
Part 3 - Counsel’s fees. Items 97-118	K55,800.00	K11,200.00
Part 4 - Counsel’s travelling expenses. Items 119-140	Nil	Nil
Part 5 - Attendances. Items 141-162	K63,400.00	Nil
Part 7 - Preparation for trial. Item 164-280	K109,355.00	K64,275.00
Part 9 - Taxation of Costs. Item 282	K 1,500.00	K 1,500.00
	TOTAL	K82,239.00

48. The amount of costs certified by the Taxing Officer in his Certificate of Taxation issued on 1 July 2019, is hereby reviewed and assessed in the total sum of
K 82,239.00, and the total amount of costs ordered to be paid by the Defendants to the Plaintiff pursuant to the court order of 10 August 2018, is allowed in the sum of
K82,239.00.

Napu & Co. Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendants

National Court of Papua New Guinea

Sike v Sawin [2019] PGNC 330; N7969 (23 August 2019)