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Atlas Corporation Ltd (In voluntary Liquidation) v Barton-Keene [2021] PGNC 147; N8874 (10 June 2021)

N8874

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 389 OF 2015

BETWEEN:
ATLAS CORPORATION LIMITED (In voluntary Liquidation)
Plaintiff

AND:
FAITH BARTON-KEENE, IN HER CAPACITY AS SOLICITOR-General within The Terms of the Claims By and Against the State Act
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2021: 20^th May, 10^th June

PRACTICE & PROCEDURE – Originating Summons – Application For Mandamus – Certificate of Taxation issued 15^th August 2017 served on Defendants – No payment made – Application for – Order 22 Rule 62 Motion for entry of certified costs – Evidence of Notice to Defendants – No payment despite – costs outstanding four years – Motion granted – Costs converted to Judgment Order – Cost follow event.

Cases Cited:

Kaiulo v Yaluma [2008] PGNC 157; N3507

Abai v The State [1998] PGNC 92; N1762

Patterson trading as Pattersons Lawyers v Teachers Savings and Loans Ltd [2004] PGNC 243; N2516
Counsel:

A. Narokobi, for Plaintiff
B. Kulumbu, for Defendants

RULING

10^th June, 2021

1. MIVIRI, J: This is the ruling on the Plaintiffs Notice of Motion of the 17^th February 2021 wherein he seeks the following orders:
   
   • (a) Pursuant to Order 22 Rule 62 of the National Court Rules (NCR) the taxed costs of K 189, 860.00 certified on the 28^th August 2017 be converted into Judgement ;
     
   • (b) Secondly pursuant to Section 6 (1) (2) and (4) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015, if the Plaintiff fails to make payment within 30 days from the date of service of this Order, the Judgement sum or so much of it that remains unpaid, shall attract two (2%) interest per annum.
     
   • (c) The plaintiff’s costs of this application are paid by the First and Second Defendants.
     
   • (d) Time for entry of these orders be abridged to the date of the settlement by the Registrar which shall take place forthwith.
     
   • (e) And such other orders as discretion by the Court.
     
2. The motion is supported by the affidavits of Alu Konena sworn of the 10^th December 2020 filed 17^th February 2021, secondly that of service of Sandra Vagi of the 19^th February 2021, and of Benjamin Hila together with Flora Genia of the 05^th May 2021. The latter evidence are service evidence that each deponent has undertaken to effect service of the matter upon the State defendants. It fulfills that the defendants are versed of what is alleged against and so would be not surprised as to what is intended by the Plaintiffs.
   
3. And as to the substantive cause sought, relevant and primary is the affidavit of Alu Konena, lawyer in the employ of O’Brien Lawyers who had carriage of the matter. That on the 24^th September 2015 leave was granted for judicial review against the decision of the First Defendant to refuse, fail or neglect to endorse as fit the certificate of Judgment issued in favour of the plaintiff, in SCA No. 6 of 2003. That on the 08^th of June 2016 the Court granted the application for Judicial Review and issued mandamus requiring the First Defendant to forthwith endorse as fit the Certificate of Judgement issued in favour of the Plaintiff in SCA No. 6 of 2003, dated the 18^th January 2005. This is annexure “A” of that affidavit and was issued by this Court presided by Justice Gavara-Nanu and entered on the 22^nd June 2016 in the following terms;
   
   • (i) That an order in the nature of a declaration is granted, that the actions of the First Defendant in failing, refusing, or neglecting to endorse as fit the certificate of Judgment issued in favour of the plaintiff, in the matter SCA No. 06 of 2003, signed and issued by the Registrar of the Supreme Court on the 18^th January 2005, is unlawful and a breach of the First defendant’s duty.
   • (ii) That under Section 14 (2) of the Claims by and Against the State Act; and under the Public Finance (Management) Act to safeguard public monies and avoid waste, by permitting statutory interest, at the rate set out in the Certificate of Judgement, to continue to accrue for an unreasonable period.
   • (iii) Further an order in the nature of Mandamus requiring the First Defendant to forthwith endorse as fit the certificate of Judgement issued in favour of the plaintiff, in matter SCA No. 06 of 2003, dated 18th January 2005, and served on her on the 19^th January 2005.
   • (iv) An order in the nature of mandamus requiring the first Defendant to forthwith endorse as fit the Certificate of Judgement issued in favour of the plaintiff, in matter SCA No. 06 of 2003, dated 13^th March 2012, and served on her on 14^th March 2012. And that the plaintiff’s costs of the proceedings be paid by the Defendants on an indemnity basis.
     
4. Notice was issued in accordance with Order 13 Rule 7 (3) & (4) of the National Court Rules to the First Defendant in her capacity as the Solicitor General that if she breached the terms of Orders Number 3 and 4, she may be liable to imprisonment or to sequestration of property.
   
5. Annexure “B” is an order of this Court presided by Justice Gavara-Nanu of the 04^th August 2016 entered 10^th August 2016. It is in the following terms:
   
   • (1) Leave is granted to the Plaintiff to withdraw its notice of Motion filed 25^th July 2016.
   • (2) The Notice of Motion filed 25^th July 2016 stands withdrawn.
   • (3) The Plaintiff’s costs of and incidental to the Notice of Motion filed 25^th July 2016 and the contempt proceedings shall be paid by the Defendants on an indemnity basis.
     
6. Annexure “C” is Application for Taxation of the Plaintiff’s Bill of Costs Payable by the Defendants on an indemnity basis filed 07^th October 2016. In support of that application is the plaintiff’s bill of costs in the sum of K 226, 475.70, and the sealed copy of the Court Order by the National Court made on the 04^th August 2016.
   
7. Annexure “D1” is letter by O’Briens Lawyers dated the 23^rd January 2017 attention Mr Samuel Ikiso that another date be given as taxing officer was not available for the hearing of the same. And parties be informed accordingly. It is signed by Alu Konena of O’Briens. Yet another similar letter dated the 22^nd March 2017 in similar terms also by the Registrar of the Court on the same subject matter as of the earlier letter set out above. It is also signed by the same deponent.
   
8. Annexure “D2”is a similar letter dated the 19^th April 2017 by the deponent Alu Konena above; that the bill of costs filed on the 11^th October 2016 is listed for hearing before Mr. Baka Bina on Tuesday 02^nd May 2017 at 9.00am and a copy of the registry is enclosed for reference. The subject letter is addressed to Fairfax Legal Level 3- Pacific Place Cnr, Champion Parade & Musgrave Street Pom NCD 121. It is signed by Alu Konena and copied to the First Defendant. And acknowledgement is attached that the First defendant has received it. Including similar for Fairfax Legal acknowledging, the date is 12^th May 2017. Here the advice is that bill of costs intended certification filed of the 11^th October 2016 is deferred to Tuesday 16^th May 2017 at 2.00pm for taxation hearing before Mr Baka Bina. Then a similar letter dated the 08^th August 2017 on the same subject to Fairfax Legal attention one Keith Iduhu returns Tuesday 16^th August 2017 at 10.00am for hearing before the taxing master, Mr Baka Bina.
   
9. And annexure “E” is the originating summons that was filed for leave for judicial review of this proceeding of the 26^th January 2017. And “F” is the Judgment of court presided by Justice Gavara-Nanu in the proceedings OS (JR) No. 18 of 2017 between the parties here. Which is appealed to the Supreme Court which on the 13^th March 2020 ordered allowing the appeal. And setting aside the orders of the National Court of the 29^th November 2018. Also dismissing the application for an order in the nature of a mandamus. That each party was to pay its own costs.
   
10. Annexure “I” is a letter dated the 21^st July 2020 addressed to the Solicitor General attention Mr Tanuvasa Tauvasa, subjected as OS (JR) 389 of 2015: Atlas Corporation Limited v Faith Barton Keene & another. It is written by Alu Konena who draws the subject to the Solicitor General and the certificate of Taxation filed on the 15^th August 2017. He asks for the payment of the certified costs of the plaintiff. He attaches the sealed court order of the 04^th August 2016 together with the sealed certificate of taxation filed of the 28^th August 2017. He cautions payment to be made or he will take matter back to court for enforcement. And indicates that the defendants respond before close of business Friday 31^st July 2020.This evidence is supported in all material particulars by the other affidavits set out above.
    
11. The Defendants rely on the affidavit of Bethsheba Kulumbu of the 13^th May 2021. She is a lawyer with the office of the Solicitor General who has carriage of the matter. That the affidavit material of the plaintiff was served on their Lawyers on the 12^th October 2016. That the hearing on taxation was differed a number of times until 15^th August 2017 when it proceeded resulting in the sum K 189. 860.00 to the plaintiff. It appears that the Defendants were not present for the taxation hearing on the 15^th August 2017. And that the matter was briefed out to Fairfax Legal together with Gadens Lawyers by the Solicitor General to act for the defendants. She acknowledges that the administrative arrangements are such that an officer of the Office still allows one of its lawyers to take carriage of the matter solely for the purposes of monitoring the brief out counsel’s progress on the matter, as well as vetting the legal bills of the brief out counsel upon conclusion of the matter. And here the matter was under carriage of the former Solicitor General Faith Barton Keene. There is no evidence as to why no lawyer was present on the 15^th August 2017 at the taxation hearing of the plaintiff’s bill of costs in the first instance.
    
12. This witness goes on to state, “Since the State was not present at the material time, we will undertake to file the appropriate application before the Court at the earliest in order to challenge the amount of K 189, 860.00 which was allowed by the Taxing Officer. We intend to file a review of the Certificate of Taxation at the earliest.” This is evidence in the light of the orders of this Court of the 13^th May 2021 entered 18^th May 2021 where it was ordered that the matter was adjourned to 20^th May 2021 at 9.30 with specific order to the defendants, “The defendants are to file a response to the Plaintiff’s notice of motion filed on 17^th February 2021 by or before 14^th May 2021.” It has not been accorded due diligence by the defendants to see out a proper defence in the motion that has been drawn against them now moved. A process of law by the Rules has been instituted and all opportunities within the law and rules have been accorded the defendants to no avail.
    
13. So, it is not as if the defendants have not been forewarned nor have, they been given an opportunity to defend themselves. These evidence shows disrespect by the defendants the State to the orders of this Court to see out the matter fairly and for justice to be done and seen to be done by section 59 of the Constitution between the parties. State Lawyers the Office of the Solicitor General in particular must take the lead and show respect to the Courts and orders it makes. Here it is evident and clear Lawyers on record from that office have simply not lived up to expectations of a prudent lawyer given the facts as set out here. It is clear the State has not seen what it must do and bring this matter where orders were made against it in the costs of these proceedings. These are public moneys and ought to be properly defended not piece meal as is evident by the affidavit of Bethsheba Kulumbu above. It has simply ignored and continues to do so even when the case has gone to the Supreme Court and back. It has not taken its responsibility drawn out by this Court in the orders it has been served. And that is clear that it is versed off the orders because it has been served as particularized by the evidence all set out above.
    
14. There cannot be any doubt that the State has been put on notice to settle this cost outstanding, which has culminated in an appeal to the Supreme Court, that has sent the matter here, outstanding against them in favour of the Plaintiff. Who has patiently drawn the defendants of this fact and the evidence set out above show this clearly. That notice has been given time and again since 15^th August 2017 when it was certified after taxing, yet no payment has been forthcoming from the State defendants. Neither excuse nor material has been filed by law to show as to why the non-payment since. Even in the face of opportunity by an order of this Court set out above. The attitude of the State defendants is shown out by the evidence set out above of its lawyer on record in the present, Bathsheba Kulumbu, no material nor has any constructive attempt been made under the rules of court, and law to see out in favour of the defendants.
    
15. In my view more than ample opportunity has been drawn to the State Defendants to make good as ordered. But the response has been otherwise and in the face of the apparent and evident, the State continues to ask for time to file and defend evidence by its lawyer set out above. In my view more than ample opportunity has been accorded to the State defendants, there is nothing other than to accede to the pray of the plaintiff in the motion filed and to grant it in the terms he has prayed. This is more than the 14 days allowed for review of the certified tax costs under Order 22 Rule 60 (2) of the NCR. This matter is originally by reference to the evidence set out initially of 18^th January 2005 from proceedings SCA No. 06 of 2003, that culminated in yet another National Court proceedings OS (JR) No. 18 of 2017 on the same matter which has yet again led to a Supreme Court order in SCM No. 32 of 2018, which has now landed with the present proceedings OS (JR) 389 of 2015: Atlas Corporation Limited v Faith Barton Keene & another.
    
16. In my view following and adopting what this court said in Kaiulo v Yaluma [2008] PGNC 157; N3507 (27 October 2008) there is conclusive evidence of default in the payment of the costs by the State Defendants. Because the costs have been certified which is conclusive evidence of liability on the part of the defendants. It has not been reviewed (Abai v The State [1998] PGNC 92; N1762 (24 September 1998), nor has it been challenged by the rules. Time within has lapsed on the part of the State defendants, no leave has been filed to open outside the time limitation by the Rules. It is now 16 years since the first proceedings in this matter and no real opportunity or effort to settle has been made by the State defendants. The State defendants must lead by example to give heed and respect to court orders that are made, especially here as to costs where it has been given every opportunity to draw it with no heed. There is no merit to discretion this Court as in Patterson trading as Pattersons Lawyers v Teachers Savings and Loans Ltd [2004] PGNC 243; N2516 (19 February 2004), to grant leave even outside the review period of 14 days because that would be erroneous considering all the material set out above. The orders sought by the Notice of motion are made out in favour of the Plaintiff and he is accorded accordingly.
    
17. The formal orders of the Court are:
    
    • (i) Pursuant to Order 22 Rule 62 the taxed certified costs in the sum of K189, 860.00 certified on the 28^th August 2017 is converted to a Judgement Order of this Court.
    • (ii) Further pursuant to Section 6 (1), (2) and (4) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 should the plaintiff fail within 30 days from the date of service of this Order, the Judgment sum or so much of it that remains unpaid shall attract two percent (2%) interest per annum.
    • (iii) The plaintiffs Costs here will be paid by the State defendants.
    • (iv) Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders Accordingly.

__________________________________________________________________

O’Briens Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for First Defendants