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Robmos Ltd v Punangi [2021] PGNC 265; N8974 (28 July 2021)

N8974

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 396 OF 2009 (CC2)

BETWEEN:
ROBMOS LIMITED
Plaintiff

AND:
FREDRICK M PUNANGI
First Defendant

AND:
MICHAEL THOMAS SOMARE
AND THE PERSONS NAMED IN SCHEDULE 1
Second Defendant

AND:
PHILLIP STAGG
AND THE PERSONS NAMED IN SCHEDULE 2
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Shepherd, J
2021: 22^nd & 28^th July

COSTS – taxation of costs – application for leave seeking extension of time for review of taxing officer’s decision on costs - Order 22 Rule 60 (2) National Court Rules – application for leave must be made by notice of motion – application for leave should be accompanied by notice of objection specifying list of items objected to by applicant – list of items in notice of objection must state concisely the nature and grounds of each objection – applicant must give reasonable explanation why application for leave not filed within 14 days after date of decision of taxing officer objected to – failure to adduce evidence of reasonable explanation for delay – arguable grounds for review – prejudice to other party - application for leave dismissed.

Held:

When application for leave is made by a party pursuant to Order 22 Rule 60 (2) of the National Court Rules seeking extension of time for judicial review of a decision of a taxing officer in respect of any item or items in a party’s bill of costs, the Court must be satisfied before granting leave that:

(1) There is a reasonable explanation why costs were taxed in the applicant’s absence if the applicant did not attend the taxation;

(2) There is a reasonable explanation for the delay in making the application outside the stipulated 14-day period;

(3) There are arguable grounds for the proposed review; and

(4) The other party will not be prejudiced by the late application.

Cases Cited:

Polling v Motor Vehicle Insurance Trust [1986] PNGLR 228
Kaiulo v Yaluma (2008) N3507
Kombra v Kipit (2009) N3756
Medaing v Ramu Nico Management (MCC) Ltd [2011] 2 PNGLR 396
Oil Search (PNG) Ltd v Upke [2018] N7657
Vele v Henao (2014) N5884

Counsel:

Mr A. Roden-Paru, for the Plaintiff
Mr H. Konkori, for the Defendants

DECISION

28^th July, 2021

1. SHEPHERD J: This is a decision on an application made by the State on behalf of all defendants in this proceeding seeking leave for the judicial review of certain taxed costs of the plaintiff.
   
2. On 10 July 2020 the Solicitor-General acting for all defendants filed an application seeking leave of the Court to apply for review of the decision of the taxing officer which had resulted in a certificate of taxation dated 18 November 2019 being issued in favour of the plaintiff in the sum of K331,155.
   

Background

3. The plaintiff commenced this proceeding against the defendants by writ of summons filed on 8 April 2009.
   
4. On 12 January 2017, following the trial of this matter, the Court gave judgment for the plaintiff in the sum of K1,065,161.80 plus costs and interest.
   
5. On 26 July 2017 the plaintiff filed an application for taxation together with its bill of costs pursuant to the judgment of 12 January 2017. This was served on the Office of the Solicitor-General on 1 August 2017.
   
6. A supplementary bill of costs was filed by the plaintiff on 10 April 2018.
   
7. On 14 April 2018 the then A/Solicitor-General by her employed legal officer Jacob Kerenge filed an objection to the plaintiff’s bill of costs. The objection listed a range of specific complaints regarding the plaintiff’s bill of costs. These included generic objections to fees claimed by the plaintiff’s lawyers for preparation of documents, counsel’s fees, pre-trial attendances and rates claimed for perusal of letters and photocopying charges.
   
8. On 18 April 2018 the plaintiff filed an amended bill of costs which consolidated the items claimed in its initial bill of costs filed on 26 July 2017 and its supplementary bill of costs filed on 10 April 2018.
   
9. A sealed copy of the plaintiff’s amended bill of costs (Bill of Costs) was served by the plaintiff’s lawyers on the Office of the Solicitor-General on 18 April 2018, the same day as the original had been filed.
   
10. The Bill of Costs was set down for hearing by the Registrar as taxing officer on 20 April 2018 but was deferred on numerous occasions.
    
11. The taxing officer conducted the taxation hearing of the Bill of Costs between 4 May 2019 and 12 November 2019 and allowed the sum of K331,155 as the plaintiff’s taxed costs as ordered by the Court’s judgment dated 12 January 2017.
    
12. On 18 November 2019 the taxing officer issued his certificate of taxation in the sum of K331,155 in favour of the plaintiff.
    
13. The certificate of taxation was served by the plaintiff’s lawyers on the Office of the Solicitor-General on 20 November 2019.
    
14. On 10 July 2020 the Solicitor-General filed the subject application for leave to review the plaintiff’s taxed costs certified by the taxing officer at K331,155.
    

Application for Leave

15. The application for leave is dated 28 May 2020 (Application for Leave) but it was not filed by the Office of the Solicitor-General with the Civil Registry of the National Court until 10 July 2020. I am satisfied that the reason for the delayed filing was because of the partial closure of the Waigani Court complex and the Civil Registry at that time due to the then prevailing Covid-19 pandemic situation in Port Moresby.
    
16. The Application for Leave bears the signature of the present Solicitor-General Mr Tauvasa Tanuvasa in his capacity as the lawyer acting for all defendants. The Application for Leave is supported by the affidavit of Henry Konkori, counsel for the defendants, sworn on 28 May 2020 and filed on 10 July 2020.
    
17. The Application for Leave was heard by me by video-conference with the consent of all parties on 22 July 2021.
    
18. Mr Konkori’s affidavit was admitted into evidence and marked Exhibit “A” at the hearing of the Application for Leave.
    
19. The plaintiff contests the Application for Leave and in response relies on the affidavit of Alu Konena sworn on 22 April 2021 filed on 27 April 2021 by the plaintiff’s legal representatives, O’Briens Lawyers. Mr Konena is a lawyer with O’Briens Lawyers.
    
20. Mr Konena’s affidavit was filed in support of a separate motion filed by O’Briens Lawyers on 27 April 2021 seeking conversion of the taxing officer’s certified taxed costs of K331,155 into a judgment pursuant to Order 22 r.62 of the National Court Rules (NCR). Mr Konena’s affidavit was admitted into evidence as Exhibit “B” for the purpose of the hearing of the defendants’ Application for Leave.
    

The law

21. The Application for Leave states that it is made pursuant to Order 22 r.60(2) and Order 1 r.7 NCR as well as pursuant to s.155(4) of the Constitution. It seeks an order that leave be granted to the defendants for review of the taxing officer’s decision “outside the 14 days requirements”.
    
22. The text of Order 22 r.60 NCR is set out in full below:
    

60. Application for review of taxation

(1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by the taxing officer, or with the amount allowed by the taxing officer in respect of any item, may apply on motion to a Judge to review the decision in respect of that item.

(2) An application for review of the taxing officer’s decision shall be made within 14 days after the date of the decision objected to or within such further time as the Court may allow.

(3) Every applicant for review under this Rule must at the time of making his application deliver to the taxing officer objections in writing specifying the list of items to which the applicant objects and must state concisely the nature and grounds of each objection.

(4) An applicant for review under this Rule shall serve a copy of the objection on each other party (if any) who attended the taxation of those items and any other person on whom the taxing officer directs shall be served.

[underlining added]

23. Order 1 r.7 NCR provides:
    

7. Relief from Rules

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

24. In my view, Order 1 r.7 NCR should only be availed of in circumstances where strict compliance with the Rules should be waived in the interests of justice and only after careful assessment of the impact which any non-compliance would have on the other party: see Polling v Motor Vehicle Insurance Trust [1986] PNGLR 228 (Wilson J). In the present case, Order 22 r.60(2) NCR already allows the Court a discretion to grant an extension of time to apply for review of a taxation matter. Order 1 r.7 NCR has been unnecessarily sought to be invoked by the defendants in this instance and has no relevance to the Application for Leave.
    
25. Section 155(4) Constitution provides:
    

155(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

26. Section 155(4) Constitution similarly has no direct bearing on the present Application for Leave. Section 155(4) is not to be utilised to render a result that is inconsistent with an existing law: Medaing v Ramu Nico Management (MCC) Ltd [2011] 2 PNGLR 396 (Davani, Hartshorn, Sawong, JJ) at [149]. Order 22 r.60 NCR is an existing law which already properly prescribes the requirements for applications for judicial review of the taxed costs decisions of a taxing officer.
    
27. The Application for Leave will therefore be considered solely within the purview of Order 22 r.60 NCR, which specifically deals with applications for reviews of taxation proceedings.
    

Consideration

28. The procedural requirements relating to applications for leave pursuant to Order 22 r.60 NCR for a Judge to review a decision of a taxing officer which has resulted in certification of taxed costs are clear. A party aggrieved by the taxation of costs may apply to the Court by way of notice of motion to have the taxation reviewed by a Judge pursuant to Order 22 r.60 (1). Order 22 r.60 (2) requires that each such application must be filed within 14 days of the taxing officer’s decision “or within such further time as the Court may allow”. Order 22 r.60 (3) stipulates in mandatory terms that the applicant for the review must deliver to the taxing officer the list of the applicant’s objections and the list must concisely state the nature and grounds of each objection.
    
29. The Court’s power under Order 22 r.60 (2) to grant leave for an extension of time to apply for judicial review of a taxation is discretionary. That power must however be exercised according to well established principles.
    
30. In Vele v Henao (2014) N5884 Kariko J referred to the earlier cases of Kaiulo v Yaluma (2008) N3507 and Kombra v Kipit (2009) N3756 which deal with applications for extension of time under Order 22 r.60 (2) NCR for review of a taxing officer’s decision. His Honour concluded from his discussion of those cases that an extension of time may be granted if the Court can be satisfied that:
    

(1) There is a reasonable explanation why costs were taxed in the applicant’s absence if the applicant did not attend the taxation;

(2) There is a reasonable explanation why the application was not filed within the prescribed 14 days period;

(3) There is a reasonable explanation for any delay in making the application;

(4) There are arguable grounds for the proposed review; and

(5) The other party will not be prejudiced by the late application.

31. In Vele v Henao there had been no attendance at the taxation by the applicant for review. Kariko J observed at [8]:

Parties affected by a bill of costs and who object to any item or amount charged in the bill should attend taxation to raise their objections. Otherwise, it is assumed they do not oppose the bill. A party who fails to attend taxation must therefore have a good excuse why he did not attend if he is aggrieved by the decision of the taxing officer and wants the decision reviewed. The time limit for review is prescribed so issues relating to costs are not unnecessarily dragged out. If a party does not apply review “within 14 days after the date of the decision objected to”, then he must also have a good explanation why he did not apply for review within the stipulated time.

32. In the present case, there is no evidence before the Court that Mr Kerenge or any other legal officer from the Office of the Solicitor-General attended the multiple taxation hearings which were conducted by the Registrar as taxing officer between 4 May 2019 and 12 November 2019. Mr Konkori’s affidavit is silent on this important factual issue. Mr Konkori simply deposes by hearsay in paragraph 3 of his affidavit that on 14 April 2018 Mr Kerenge filed and served on O’Briens Lawyers a copy of the defendants’ objection to the plaintiff’s bill of costs filed on 27 July 2017, the notice of objection being annexure “B” to Mr Konkori’s affidavit. Given the observations of Kariko J in Vele v Henao and cases cited therein, the Office of the Solicitor-General acting for the defendants should at the very least have filed an affidavit from Mr Kerenge or some other form of affidavit evidence as to whether or not the defendants were represented at the taxation hearings conducted by the Registrar as taxing officer, and if not, the reason for that non-attendance. No such evidence is before the Court at all.
    
33. Mr Konkori’s affidavit gives no explanation as to why there was a delay of more than 6 months between the date of issuance of the taxing officer’s certificate of taxation on 18 November 2019 in the sum of K331,155 served on the Office of the Solicitor-General on 20 November 2019 and the Application for Leave dated 28 May 2020 prepared by Mr Kerenge and later filed on 10 July 2020. There is simply no evidence at all as to explanation by the Office of the Solicitor-General for the delay as to why the defendants’ Application for Leave was filed outside the prescribed 14-day period, let alone any reasonable explanation for that delay.
    
34. As to whether there are arguable grounds for the review of the decision of the taxing officer, there is no evidence in that regard from the defendants, other than the following bare assertion in paragraph 5 of Mr Konkori’s affidavit:
    5. The Taxing Master’s ruling was not reasonable made on presumption and did not consider in detail the objection filed by the Office of the Solicitor General on 14th April 2018 allowing excessive amount to the Plaintiff.
35. Mr Konkori in his submissions pointed to the notice of objection to the plaintiff’s bill of costs which is annexure “B” to his affidavit. However, there is no evidence before the Court that the contents of that notice of objection were raised or addressed at the taxing hearings by any legal officer from the Office of the Solicitor-General who may have attended the taxation hearings between 4 May 2019 and 12 November 2019.
    
36. Moreover, the defendants’ notice of objection filed on 14 April 2018 pertains to the taxation hearings conducted by the taxing officer. It is not the objection referred to in Order 22 r.60 (3) NCR, which is the objection which must be filed with every application of leave to review a taxing officer’s decision. The objection prescribed by Order 22 r.60 (3) is different from any objection used during the course of the taxation hearing(s) by a taxing officer. Order 22 r.60 (3) clearly stipulates that the objection filed with the application for leave must specify the list of items to which the applicant objects and the objection “must state concisely the nature and grounds of each objection”. The record shows that no such separate notice of objection was filed and served on the taxing officer by the Office of the Solicitor-General in breach of Order 22 r.60 (3) NCR.
    
37. I again refer to the decision in Vele v Henao and quote Kariko J who was confronted with a similar absence of any objection filed in support of an application for leave under Order 22 r.60 (2). His Honour said at [13]:
    

To demonstrate merits in a proposed review, an applicant should properly put before the Court the list of objections (including the items objected to and the nature and grounds of objections) that would be required to accompany an application for review pursuant to O.22 r.60(3). This has not been done and I am unable to properly assess whether there are arguable grounds for the proposed review.

38. These sentiments were repeated by Kariko J in the later case of Oil Search (PNG) Ltd v Upke [2018] N7657 where His Honour stated at [13]:
    

I am unable to express a view on whether the plaintiff has an arguable case for the review or that it has merits because the plaintiff has not delivered its list of objections to the taxation officer. The Court has no idea therefore as to what items of taxation are being objected to and the basis for the objections. The plaintiff instead relies on its objections it filed concerning the bill of costs. I reject that submission. The objections must be of the taxation as contemplated by Order 22 Rule 60 (3).

39. I am satisfied that His Honour’s observations in the latter two cases are equally apposite to the present case.
    
40. I am also satisfied that the plaintiff would be prejudiced if this Court were to grant leave to the defendants to proceed with an application for judicial review of the taxing officer’s decision to certify the plaintiff’s costs in the sum of K331,155. This case commenced in April 2009, more than 12 years ago. The plaintiff’s costs were ordered to paid when substantive judgment was delivered on 12 January 2017. The taxation proceedings were conducted between 4 May 2019 and 12 November 2019 and resulted in the issuance of the taxing officer’s certificate of taxation on 18 November 2019. The plaintiff is still waiting for payment of its taxed costs, no explanation for delay having been forthcoming from the Office of the Solicitor-General as to why the defendants’ Application for Leave was not filed within the prescribed 14-day period or within the ensuing period of more than 6 months and no notice of objection having been filed with the Application for Leave in non-compliance with the requirement stipulated in Order 22 r.60 (3). The plaintiff has therefore been unreasonably kept from its entitlement to settlement and payment by the defendants of its certified taxed costs of K331,155.
    
41. One further observation needs to be made. Counsel for the plaintiff has submitted that the Application for Leave is not in the correct form. The Application should have been brought by way of Notice of Motion, as required by Order 22 r.60 (1). I concur.
    
42. For the reasons given, the defendants’ Application for Leave is dismissed.
    
43. In view of the lack of evidence adduced by the Office of the Solicitor-General as to what transpired during the course of the taxation hearings in 2019, the lack of evidence as to the reasons for delay in filing the Application for Leave after the Office of the Solicitor-General was served with the taxing officer’s certificate of taxation on 20 November 2019, coupled with the absence of the notice of objection required by Order 22 r.60 (3) NCR, I consider this to be reprehensible. The fourth defendant shall be ordered to pay the plaintiff’s costs of and incidental to the Application for Leave on a solicitor-and-own client basis, such costs to be taxed if not agreed.
    

Order

44. The formal terms of the Order are as follows:

(1) The defendants’ Application for Leave filed on 10 July 2020 seeking judicial review of the decision of the taxing officer in the taxation proceedings outside the 14-day filing and service requirement is dismissed.

(2) The fourth defendant shall pay the plaintiff’s costs of and incidental to the Application for Leave on a solicitor-and-own-client basis, such costs to be taxed if not agreed.

__________________________________________________________
O’Briens Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants