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Boera Development Corporation Ltd v Kimas [2023] PGNC 296; N10455 (24 August 2023)

N10455

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 485 OF 2009

BOERA DEVELOPMENT CORPORATION LIMITED
First Plaintiff

AND
APAU BESENA COMPANY LIMITED
Second Plaintiff

AND
NAMONA OALA AND IGO NAMONA OALA for and on behalf of Iduata Gubarei No. 2 Clan of Boera Village
Third Plaintiff

AND
OALA MOI for and on behalf of Koke Gubarei No. 1 Clan of Boera Village
Fourth Plaintiff

AND
RAHO KEVAN for himself and on behalf of Tubumaga Clan of Boera village
Fifth Plaintiffs

AND
TAU MOI for and on behalf of Iduata Gubarei No.1 Clan of Boera Village
Sixth Plaintiffs

AND
MEA DIRO for himself and on behalf of Iduata Gubarei No. 2 Clan of Boera Village
Seventh Plaintiff

AND
SERI ALESA For himself and on behalf of Rurua Clan of Boera Village
Eighth Plaintiffs

AND
REI MIRIA for himself and on behalf of Iduata Sinavai No. 1 Clan of Boera Village
Nineth Plaintiffs

AND
HOMOKA LOA For himself and on behalf of Iduata Sinavai No.2 Clan of Boera Village
Tenth Plaintiffs

AND
SIR MOI AVEI For himself and on behalf of Koke Sinavai Clan of Boera Village
Eleventh Plaintiffs

AND
HELAI LOHIA for himself and on behalf of Taurama Clan of Boera Village
Twelfths Plaintiffs

AND
KOHU MURI for himself and on behalf of Koke Gaburei No. 1 Clan of Boera Village
Thirteenth Plaintiffs

AND
LOHIA KOHU for himself and on behalf of Koke Gubarei No. 2 Clan of Boera Village
Fourteenth Plaintiffs

AND
SENEKA KEVU for himself and on behalf of Laurina Clan of Boera Village
Fifteenth Plaintiffs

AND
GUDIA MEHA for himself and on behalf of Nenehi Clan of Boera Village
Sixteenth Plaintiffs

AND
REV. MOREA SERI for himself and on behalf of Isumata Clan of Boera Village
Seventeenth Plaintiffs

AND
IAVA GOMARA for himself and on behalf of Idu Araua Clan of Boera Village
Eighteenth Plaintiffs

V
PEPI KIMAS as Delegate of the Minister for Lands
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND
ESSO HIGHLANDS LIMITED
Third Defendant

Waigani: Miviri J
2023: 20^th July, 24^th August

PRACTICE & PROCEDURE – Judicial Review & Appeals – Leave to Review Certified Taxed Cost of third Defendant – Notion of Motion – Order 22 Rule 60 (2)NCR – First to Fourth Plaintiffs Application – Res Judicata – Same Subject and Matter all relevant Issues determined by Same Court – Motion without Merit Res Judicata – Refused and Dismissed with Cost to follow the Event on Solicitor Client Basis.

Cases Cited:

Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906
Kumbu v Mann [2018] PGSC 41; SC1710
Ipara v Walker [2018] PGNC 534; N7659
Sankin v Papua New Guinea Electricity Commission [2002] PGNC 77; N2257
Takori v Yagari [2008] PGSC 3; SC905

Counsel:

B. Mol, for First to Fourth Plaintiffs
E. Heagi, for the First to Fourth Defendants
K. Imako, for Third Defendant

RULING

24^th August 2023

1. MIVIRI, J: This is the decision on the First to the fifth Defendant’s Notice of Motion of the 1^st August 2022 seeking:
   
   • (i) Pursuant to Order 22 Rule 60 (2) of the National Court Rules and section 155 (4) of the Constitution, Leave to review out of time be granted to the Plaintiffs to review the whole decision of the Taxing Officer, Mr Nickson James made on the 11^th April 2022 to allow and disallow costs claimed by the third Defendant under items 1 to 35 of the third Defendant’s Bill of Costs filed on 23^rd April 2021.
     
   • (ii) Pursuant to Order 22 Rule 60 (2) of the National Court Rules and section 155 (4) of the Constitution, the whole of the decision of the taxing Officer, Mr. Nickson James to allow and disallow costs claimed by the third Defendant under items 1 to 35 of the third defendant’s bill of costs filed on 23^rd April, 2021 without considering the objection raised by the Plaintiffs in their objection filed on 23^rd November 2021 and Counter-Response filed on 06^th December, 2021 be reviewed and quashed.
     
   • (iii) Pursuant to Order 22 Rule 60 (2) of the National Court Rules and section 155 (4) of the Constitution, the whole of the decision of the taxing officer, Mr. Nickson James to allow and disallow costs claimed by the third defendant under items 1 to 35 of the third defendant’s bill of costs filed on 23^rd April 2021 without giving reasons for the allowances and disallowances be reviewed and quashed.
     
   • (iv) Pursuant to Order 22 Rule 60 (2) of the National Court Rules and section 155 (4) of the Constitution, the purported certificate of taxation filed on 19^th April 2022 be set aside.
     
   • (v) Costs of the application be paid by the third defendant.
     
   • (vi) Any other orders in the discretion of the Court.”
     
2. This Court is of record. And its records show that this is not the first time that this motion has been moved in these terms. It is the identical terms and is the very same notice of motion dated before 06^th May 2022 before this Court constituted by Honourable Justice Dingake on the 23^rd June 2022, and ruling was delivered in writing on the 21^st July 2022. It is annexure WM-2 in the affidavit dated 31^st May 2023 by Wilma Mai of the firm Allens who acted for the third defendants. Those very same pleadings were determined by this Court with the decision specifically holding the motion to be “defective for one or all of the reasons, outlined earlier, namely, the erroneous naming of the parties and for failure to comply with the mandatory terms of Order 22 Rule 60 (3) of the NCR, and is liable to be dismissed.” And it was dismissed with Costs.
   
3. There was no objection raised against the taxing order by the taxing master which are the terms of Order 22 Rule 60 (3):

“60. Application for review of taxation. (U.K. 62/33)

(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 objections on each other party (if any) who attended the taxation of those items and any other person whom the taxing officer directs shall be served.”

4. That is the finding of this Court in that decision. Effectively this motion cannot be raised here again. For all intent and purposes, it is a dead issue. It has been determined on its merits and substance on all issues raised. And that is the confirmation of the affidavits filed of Wilma Mai Lawyer of the firm Allens who act for the third defendant Esso Highlands Limited, dated the 31^st May 2023 and 26^th June 2023. Particularly the annexure of the very Judgement delivered by this Court, WM-2 in the affidavit dated 31^st May 2023. In law it is res judicata and cannot be the subject of a rehearing here again: Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008). This is not the forum and will be the forum again in that very same matter. The applicant is estopped by res judicata from raising it here.
   
5. Because any challenge to the facts as found in that decision, primarily by the affidavit of Bare Mol sworn 28^th July 2022 filed 1^st August 2023, cannot be the basis for reconsideration redetermination of the facts, he contends that his honour’s finding that no written objections had been delivered to the taxing Officer on 06^th May 2022 with the first application was incorrect. He is unsatisfied that determination by this Court was wrong, he can go to the Supreme Court to air his satisfaction. This is not the forum.
   
6. If the finding of this Court in that written Judgment delivered was that there was no objection delivered to the taxing officer, what is there to be reviewed in this present application from that decision? The Court rightly affirmed those facts which cannot be the subject of its decision yet again on that same issue based upon the same facts it has settled. It would not be necessary to go down the basis of how why basis of reconsideration for leave for review: Kumbu v Mann [2018] PGSC 41; SC1710 (18 September 2018). It is simply in the wrong forum. It reignites a dead issue because it seeks to point to the decision of the taxing officer, his reasoning and to make sense of the allegation in the objections: Ipara v Walker [2018] PGNC 534; N7659 (20 April 2018). That was not the case and will not be the consideration here. The Court is asked to place itself in the thinking of the taxing Officer by the Rules and to make the decisions that was made initially, but for the objections could have been made in the way contended on the same facts and materials there and then. This is not the case now: Sankin v Papua New Guinea Electricity Commission [2002] PGNC 77; N2257 (19 July 2002).
   
7. The aggregate is that this motion will be dismissed with costs on a solicitor client basis to be paid within 21 days as of today’s date, 24^th August 2023. And evidence to be filed into Court by Monday 25^th September 2023. Because that 21 day expires on the Friday 22^nd September 2023. No further proceedings will be instigated by the first to the fourth plaintiffs without showing first evidence filed into Court that this order for the payment of Costs has been duly satisfied. The failure will constitute personal liability for counsel on record here Bare Mol in the light of this proceedings that have been filed in clear defiance of the law and unlawful illegal reading of the law. It is trite that when this Court has decided, it is res judicata therefore the matter goes to the Supreme Court. And any right-thinking lawyer will go down that path not back here again. Here counsel Bare Mol has come yet again here. He has a copy of the decision that was handed down by this Court which is annexure WM-2 in the affidavit dated 31^st May 2023 by Wilma Mai set out above. He if indeed schooled will take that to the Supreme Court not here. By bringing it here he has unnecessarily bore into Judicial time. It is negligence as a professional and would constitute the basis of personal liability in his case if the orders that are set out here are not complied with by Monday 25^th September 2023 by close of business on that day.
   
8. The first to the fourth plaintiff are not necessarily schooled in the law. They would not be pursuing into the legal world, in litigation here without guidance from their counsel, here Bare Mol. He is the professional schooled who will guide. And it will be his personal liability if these orders are not complied with by Friday 22^nd September 2023. He will be personally liable for failure to comply with the orders now set forth herewith. Any consequence following will be personal liability for his settlement not of the clients. I make these orders in the light of Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008) bearing in mind that no litigant should be driven off the Judgment seat summarily. Including that representation by counsel is at the instruction of the Clients. But there are so obvious trite positions in law that remain undisputed and bold, an appeal is the course primarily taken by an appellant not satisfied with the decision of the National Court as was here, and now. That advice would come from counsel and if counsel has by his overt actions demonstrated negligence in his duties he must account for that fact. And this is the basis for the personal attachment to Counsel Bare Mol should the present orders be not accorded and discharged as ordered upon his clients and himself.
   
9. Citizens, litigants must be protected from themselves and professionals, Lawyers who take advantage of and institute to draw unnecessarily on all, including the Court the other parties to the action, so that Justice is delayed and becomes a spiral of never-ending turmoil. It is unnecessary procrastination of the proceedings which bears institution since 2009. It is now 2023 and this file is still yet to reach its final destination on the matters raised since instituted. It is for these reasons that I make the determinations that will engulf the counsel on record for the first to the fourth defendants.
   
10. Hence the formal orders of the court are that:
    
    • (a) The Notice of Motion of the 1^st August 2022 with its terms set out above is dismissed as being Res Judicata and without merit.
      
    • (b) The Costs here will follow the event incidental here on a Solicitor Client basis to be paid by or before Friday 22^nd September 2023 and evidence filed by Monday 25^th September 2023.
      
    • (c) No further proceedings shall be instituted by the first to the fourth plaintiffs until evidence is filed in Court Monday 25^th September 2023 and served of that fact.
      
    • (d) And Personal liability shall be drawn upon Counsel for the first to the fourth plaintiffs Bare Mol for failure of this present orders now made for payment of the costs of the third defendants now ordered and added to the previous outstanding.
      

Orders Accordingly.

__________________________________________________________________

Warner Shand Lawyers: Lawyers for the First to Fourth Appellants

Ashurst Lawyers: Lawyers for the First & Second Defendants

Allens: Lawyers for the Third Defendants