N9888
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO.1 OF 2022(IECMS)
MP NO.2 OF 2022(IECMS)
MP NO.3 OF 2022 (IECMS)
MP NO.4 OF 2022 (IECMS)
MP NO.5 OF 2022 (IECMS)
MP NO.6 OF 2022 (IECMS)

IN THE MATTER OF AN APPLICATION FOR TAXATION FOR TAXING OF COSTS PURSUANT TO SECTION 63 OF THE LAWYERS ACT 1986.

BETWEEN:
NICKSON KIUK (formerly trading as Nikiuma lawyers)
Applicant

AND:
JUSTICE FOUNDATION  FOR PORGERA  LIMITED
Respondent

Waigani: Wurr, AJ
2022: 30th August, 13th September

PRACTICE & PROCEDURE- Lawyers Costs under the Lawyers Act 1986 –An action for recovery of costs- pleading necessary – commencement of proceeding by way of writ of summons
PRACTICE & PROCEDURE – Lawyers Costs – Application  for taxation under s 63(1)(2) of the Lawyers Act 1986 to be distinguished from s 62 (1) of the Lawyers Act 1986, which concerns commencement of an action for recovery of costs.
Cases Cited:
Kalinoe v Paul Paraka Lawyers (2014) PGSC 38; SC1366
Manu v Honiri Timber Resources Development Ltd [2004] PGNC 175; N2597
Patterson trading as Pattersons Lawyers v Teachers Savings and Loans Ltd [2004] PGNC 243; N2516,
Patterson v National Capital District Commission [2001] PGNC 71; N2145
Soi v Imawe Kewa Land Grouping Inc [2004] PGNC 221; N2560

Counsel:

Nickson Kiuk, in Person
No Appearance for the Defendant

RULING

13th September, 2022

1.	WURR, AJ: The applicant Mr Kiuk filed these applications against the respondent, his former client, asking for his solicitor- client bills  of costs (bills) to be taxed pursuant to s 63 (1) of the Lawyers Act 1986 (the Act). 

2.	The bills (six of them) are in relation to the work done in six different proceedings styled as:

2.1.	SCA No 126 of 2015- Justice Foundation for Porgera Ltd v Mark Tony Ekepa & Others;
2.2.	SCA No 125 of 2015- Justice Foundation for Porgera Ltd v Porgera Development Authority; 
2.3.	OS No 813 of 2014- Justice Foundation for Porgera Ltd v Porgera Development  Authority; 
2.4.	OS No 634 of 2014- Porgera Landowners Association Inc. -v- Justice Foundation for Porgera Ltd & 3 Others;
2.5.	 OS No. 172/2015;  of 2015- Andita Keko & 13 Others & Justice Foundation for Porgera Ltd v Barrick Niugini Ltd & State & Others; 
2.6.	OS No. 907 of 2014- Justice Foundation for Porgera Ltd v Porgera Landowners Association Inc.

3.	The bills dated 28 May 2021 were served on the respondent under cover letter dated 2 September 2021 on 07 September 2021. They were all in taxable form and received by the chairman of the respondent Mr Jonathan Paraia. However in the letter, the applicant failed to advise the respondent that the bills could be taxed, and that it had 30 days to apply for taxation upon receipt of the bills per s 63 (2) of the Act. 

4.	Be that as it may, the applicant applied for taxation of all the bills under s63(1) of the Act. The application for taxation was filed on  19 December 2021, more than 30 days after service of the bills on the respondent. The application for taxation and all supporting documents were served on the respondent on 11 February 2022 under cover letter dated 08 February 2022. The respondent was advised that the applications were fixed for taxation on 03 March 2022 but made no appearance. Matter was adjourned to 10 March 2022 to allow  for the respondent to make an appearance but still no appearance was made.  Taxation proceeded ex parte on the bills, and on 07 April 2022 a Certificate of Taxation was endorsed by the Taxing Master  and filed. On 12 May 2022 the Certificate of Taxation and the Reasons for Taxation were uplifted and served on the respondent. The bills have since not been settled hence this application under Order 22 Rule 62 of the National Court Rules (the Rules), seeking judgment to be entered on the certified costs in each of the matters. 

5.	I heard the applicant ex parte after I was satisfied that the application was duly served on the respondent through its company secretary Mr Fredrick Ipara on 19 August 2022. On 24 August 2022 under cover letter of same date, the respondent was  informed that the hearing of these applications would proceed on 29 August 2022. There was no appearance when the applicant moved  the applications.

6.	The issue that requires the Court’s determination is:

WHETHER THE COURT CAN GRANT JUDGMENT ON THE CERTIFIED COSTS PURSUANT TO ORDER 22 RULE 62 OF THE NATIONAL COURT RULES?

7.	Order 22 Rule 62 of the Rules is the starting  point to address this issue, and it provides that 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 judgment for the costs as the nature of the case requires. (My under lining)

8.	The last part of that rule qualifies it by the use of the phrase “as the nature of the case requires”. So the question I ask is, what is the nature of this case? 

9.	These Miscellaneous Proceedings were filed pursuant to s.63 (1) of the Act primarily seeking taxation of the applicant’s bills. And s 62 (1) and (2) of the Act provides that a lawyer shall not bring proceedings to recover costs due to him until the end of a period of one month after a bill of costs has been delivered in accordance with the Act. And that a bill shall contain the particulars required by the Rules.

10.	Order 22 Rule 47 of  the Rules provides for an application for taxation under s 63 of the Act, and sub-rule 5 of rule 47 provides  that the succeeding rules of that Division (Division 3) are applicable however with such modifications as are necessary. 

11.	Once taxation is done and the lawyer’s bill has been certified with the issuance of a Certificate in accordance with the Rules, can the lawyer then  seek judgment on the Certified Costs under Order 22 Rule 62 of the Rules? This requires a closer look at ss 62 (1) and (2) and 63 (1)  and (2) of the Act. According to these provisions the lawyer and the client respectively can apply to the Registrar for taxation of the lawyer’s bill. Section 62 (1) of the Act provides that a lawyer cannot bring proceedings to recover costs until the end of a month after delivery of the bill of cost to the client. When these provisions are read together, I am of the respectful view that an application for taxation under s. 63(1) is not the same as and does not come within the definition of commencement of a proceeding to recover costs under s. 62 (1) of the Act. They are two separate proceedings. An application for taxation should precede the proceeding to recover costs. This means, after the bill of cost is taxed and certified, that should be the end of the application for taxation under s. 63(1)(2) of the Act. 

12.	 A judgment on the certified costs under Order 22 Rule 62 summarily determines the issue on costs. Hence if this provision was invoked, as was done here, then it would, in my view,  be contrary to s 62 (1) of the Act which requires a separate proceeding to be filed to recover the lawyer’s costs.

13.	 Order 22 Rule 62 is qualified and depends on the nature of the case. Per ss 62(1) and 63(1)(2) of the Act, a lawyer cannot invoke this provision of the Rules to short-cut, or circumvent the process set out in the Act. The Act clearly stipulates that the unpaid  bill  of cost  is a recovery action and should be commenced after taxation- this means a separate fresh proceeding must be filed after an application for taxation under s 63 (1) and or (2) of the Act is completed; and the action should be commenced by way of a Writ of Summons as it would require pleadings, in my view. Most of the National Court cases that I have come across were commenced by way of a Writ of Summons. (See Manu v Honiri Timber Resources Development Ltd [2004] PGNC 175; N2597, Patterson v National Capital District Commission [2001] PGNC 71; N2145 and Soi v Imawe Kewa Land Grouping Inc [2004] PGNC 221; N2560)

14.	The case of Patterson trading as Pattersons Lawyers v Teachers Savings and Loans Ltd [2004] PGNC 243; N2516, is an interesting one. Mr Patterson initially commenced proceedings by way of a writ of summons but that proceeding was dismissed by the Court because he failed to deliver his costs in taxable form to his client as required by the Act. The Court found that no cause of action existed. He then applied for taxation under s 63(2) of the Act and his bill of cost was taxed by the Taxing Master. The defendant filed a motion seeking review of the taxation of the plaintiff’s costs. His Honour Justice Sevua as he then was held that it was an abuse of the court process for the plaintiff to file the application for taxation after the first proceeding was dismissed.  The Court held that the Taxing Officer should have declined the application for taxation on that ground, but he failed to. The Court therefore granted the defendant’s application for review and went further to dismiss the application for taxation.

15.	 It is arguable per se, that because the Act makes provision for the Rules, and that Order 22 Rule 47 of the Rules provides that Division 3 of the Rules (which includes Order 22 Rule 62) does apply to applications brought under s 63 of the Act, the normal process as set out in that Division should follow if a lawyer’s  certified costs is not paid by the client. However, as I discussed earlier in my ruling, Order 22 Rule 62 is qualified and subjected to the Act, which provides otherwise. 

16.	 The Supreme Court case of Kalinoe v Paul Paraka Lawyers (2014) PGSC 38; SC1366 has clarified this by holding amongst others that no lawyer can commence proceedings to recover his costs unless his costs have been first rendered in taxable form to his client and has been taxed.

17.	As such an application for taxation under s 63 (1) and or (2) should not be treated as commencement of a proceeding to recover costs under s 62(1) of the Act. To do so would be  contrary to the Act and the supreme court case of Kalinoe v Paraka (supra). The proper process would now be for Mr Kiuk to commence proceedings to recover his costs by way of a writ of summons.

FORMAL ORDERS

18.	Because of the foregoing, the applicant’s motions seeking entry of judgment under Order 22 Rule 62 of the Rules, are refused for being misconceived and an abuse of the court process. Each of the files are to be closed forthwith. 

Judgment and orders accordingly.
________________________________________________________________
Lawyer for the Applicant, In person