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Wilkinson v K92 Mining Ltd [2024] PGNC 281; N10962 (17 August 2024)

N10962

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.1474 OF 2018

BETWEEN:
TIMOTHY WILKINSON
Plaintiff

AND:
K92 MINING LIMITED
Defendant

Waigani: David J
2024: 21^st May & 17^th August

CIVIL PRACTICE & PROCEDURE – applications by defendant for entry of judgment for certified costs - National Court Rules – Order 22 Rule 62.

CIVIL PRACTICE & PROCEDURE – application by plaintiff for referral of matter to mediation - objection to competency of amended notice of motion – no rule in the National Court Rules that allows for an amended notice of motion to be filed - allegation that malaria contracted in the course of employment due to defendant’s failure to provide a safe working environment and safe system of work at place of employment – negligence and breach of contract alleged - certain categories of cases are not considered appropriate for mediation – legal issues not previously determined by a court in the country - Alternative Dispute Resolution Rules 2022 – Order 2 Rules 2(1), (2), (3)(b)(i)-(x), (5)(c), 3 and or 5.

Cases Cited:
Thirlwall v Eng Chin Ah [1988-89] PNGLR 34
Tolom Abai v The State (2000) SC632
Pua v Magiten (2005) N2892
PNG Power Ltd v Gura (2014) SC1402
Able Construction Ltd v WR Carpenter (PNG) Ltd (2014) N5636
Tovon v Malpo (2016) N6240
Aiwasi v Derari (2017) N6602
Bais v Ilius (2022) SC2328

Counsel:
Jorden Yamai, for the Plaintiff
Jordan Kakaraya, for the Defendant

JUDGMENT

17^th August 2024

1. DAVID J: INTRODUCTION: This is the decision of the Court in relation to three motions. One was moved by the plaintiff pursuant to his Amended Notice of Motion filed on 7 May 2024 (plaintiff’s motion) and the other two were moved by the defendant pursuant to Notices of Motion both filed on 25 January 2024 (defendant’s motions).

BRIEF BACKGROUND

2. The plaintiff commenced these proceedings by writ of summons endorsed with a statement of claim filed on 21 November 2018 (Statement of Claim). In the Statement of Claim, the plaintiff makes the following averments.
   
3. He is a former employee of the defendant who worked at the defendant’s Kainantu Gold Mine in the Eastern Highlands Province, Papua New Guinea (the Mine) pursuant to a written contract of employment between himself and the defendant dated 30 March 2016 (Contract of Employment). He was employed by the defendant as a Manager of Occupational Health & Safety, Training & Environment. He commenced his employment with the defendant in or about April 2016. Due to the defendant’s failure to provide a safe working environment and safe system of work at the Mine during the course of his employment and the negligence of the defendant’s representatives, servants or agents or alternatively was caused by the breach of contract by the defendant’s servants or agents, he contracted malaria which developed into cerebral malaria and encephalitis and suffered loss and damage as a result.
   
4. The plaintiff claims; general damages; past economic loss; past loss of superannuation; future economic loss; future loss of superannuation; past care and domestic assistance as to his illness; future care and domestic assistance as to his illness; Medicare refunds and “out-of-pocket” medical expenses; pharmaceutical expenses; travel expenses; and future treatment and medication.
   
5. In its defence filed on 20 December 2018, the defendant denies liability.
   
6. In his reply filed on 21 January 2019, the plaintiff joins issue with non-admissions and denials in the defendant’s defence.
   

ENTRY OF JUDGMENT ON CERTIFIED COSTS

7. In the defendant’s motions, it seeks, in accordance with Order 22 Rule 62 of the National Court Rules, the entry of judgment against the plaintiff in the amounts certified in two Certificates of Taxation made by Taxing Officer, Baka Bina, Deputy Registrar of the National Court (the Taxing Officer). The motions are supported by two affidavits of Jordan Kakaraya both sworn on 23 January 2024 and filed on 25 January 2024.
   
8. The first Certificate of Taxation was made by the Taxing Officer on 7 December 2023 certifying taxed costs in the sum of K25,003.00 for costs incurred in relation to the defendant’s notice of motion filed on 14 April 2023 seeking an order to dismiss the proceedings for want of prosecution. On 10 May 2023, the motion was withdrawn with leave of the Court and the plaintiff was ordered to pay the defendant’s costs.
   
9. The second Certificate of Taxation was made by the Taxing Officer on 7 December 2023 certifying taxed costs in the sum of K31,709.70 for costs incurred in relation to the defendant’s successful application for security for costs moved by notice of motion filed on 31 May 2023. The costs order was made by the Court on 21 July 2023 whereby the plaintiff was ordered to bear the defendant’s costs.
   

Submissions

10. Mr. Kakaraya for the defendant submitted that:
    
    1. The defendant was entitled to judgment as of right;
    2. Interest at 8% yearly be awarded on the certified taxed costs pursuant to s.6(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 and Order 12 Rule 6 of the National Court Rules; and
    3. Pursuant to Order 22 Rule 6(2)(c) of the National Court Rules, costs be awarded against the plaintiff in amounts fixed by the Court for each application and suggested that the Court consider the draft Bills of Costs annexed to his affidavits and award the sum of K5,000.00 as the defendant’s costs of each application.
       
11. Mr. Yamai for the plaintiff conceded to the defendant’s motions being granted as no appeal or applications for review of the certified taxed costs were filed by the plaintiff.
    
12. However, he objected to the amount of costs sought for each motion as per the draft Bills of Costs annexed to the defendant’s supporting affidavits on the basis that they were unreasonably high and not justified.
    

Reasons for Ruling

13. Order 22 Rule 62 of the National Court Rules gives the Court wide discretion to enter “such judgement for the costs as the nature of the case requires”: Tolom Abai v The State (2000) SC632, PNG Power Ltd v Gura (2014) SC1402. Order 22 Rule 62 states:

“62. Judgement (52/63)

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 judgement for the costs as the nature of the case requires.”
14. In Thirlwall v Eng Chin Ah (1988-89) PNGLR 34 at 35 and the headnote, Woods J held:

“Where a party seeks, in accordance with O 22, r 62, of the National Court Rules that judgment be entered against another party upon amounts certified in a certificate of taxation issued by a taxing officer he is entitled to judgment as of right for the costs so taxed and certified, subject only to any application for review or appeal as to the amounts certified: questions of liability may not be raised after the certificate of taxation issues.”
15. Given the concession by the plaintiff, there is no contest to the defendant’s motions. I concur with the defendant’s submission that it is entitled to judgment as of right for the costs so taxed and certified.

16. I will enter judgment for the defendant in the sum of K25,003.00 and K31,709.70 respectively.

17. As to interest, I think the relief sought is misconceived. Order 12 Rule 6 of the National Court Rules states:
    

“6. Interest

(1) Where the Court directs the entry of judgement for the payment of money and makes an order for the payment of interest under the Judicial Proceedings (Interest on Debts and Damages) Act 1962, interest shall, unless the order otherwise provides, be payable on so much only of the money as is from time to time unpaid.

(2) The rate of interest for the purposes of sub-rule (1) is, subject to the Judicial Proceedings (Interest on Debts and Damages Act 2015, 8% yearly.”

18. Section 6(1) of the Judicial Proceedings (Interest on Debts and Damages Act 2015 states:

“6. POST-JUDGMENT INTEREST ON DEBTS AND DAMAGES.

(1) Subject to Subsections (2) and (3), where judgment is given or an order is made for the payment of money, interest shall, unless the court otherwise orders, be payable at the prescribed rate from the date when the judgment or order takes effect on such of the money as is, from time to time, unpaid.”

19. Interest will be payable pursuant to Order 12 Rule 6 if the Court makes an order for the payment of interest under the Judicial Proceedings (Interest on Debts and Damages Act 2015 when judgment was entered. No order for the payment of interest under the Judicial Proceedings (Interest on Debts and Damages Act 2015 was made on 10 May 2023 and 21 July 2023 respectively. Consequently, s.6(1) of the Judicial Proceedings (Interest on Debts and Damages Act 2015 will not apply.
    
20. I will refuse to make an order for payment of interest on the certified costs.
    
21. As to costs, the Court’s power to award costs is governed by Order 22 of the National Court Rules: see Rules 4 (Powers of the Court generally), 5, (Time for dealing with costs), 6, (Taxed costs and other provisions) and 8, (Rule for payment).
    
22. The defendant seeks an order for specific amounts of costs to be fixed by the Court and relies on Rule 6(2)(c) as the jurisdictional basis for the relief sought. Order 22 Rule 6 states:
    

“Taxed costs and other provisions (52/6)

(1) Subject to this Order, where, by or under these Rules or any order of the Court, costs are to be paid to any person, that person shall be entitled to his taxed costs.

(2) Where the Court orders that costs be paid to any person, the Court may further order that, as to the whole or any part (specified in the order) of the costs, instead of taxed costs, that person shall be entitled to—

(a) a proportion specified in the order of the taxed costs; or

(b) the taxed costs from or up to a stage of the proceedings specified in the order; or

(c) a gross sum specified in the order instead of the taxed costs; or

(d) a sum in respect of costs to be ascertained in such manner as the Court may direct.”

23. In Pua v Magiten (2005) N2892, from the headnote, Cannings J held:
    

“The National Court has the power to make an order for a specific sum of costs. The court does not have to order that costs be taxed, if not agreed.”

24. I concur with His Honour’s observation and interpretation of the rule. An award of costs can be for a specific sum and that it is not mandatory for all awards of costs to be taxed.
    
25. The Court’s power to award costs is discretionary.
    
26. I have considered the defendant’s draft Bills of Costs and in the exercise of my discretion, I will award costs in the sum of K4,000.00 for each application.
    

MEDIATION

27. The plaintiff seeks an order to refer the proceedings to mediation forthwith. He relies on Order 2 Rules 2(5)(c), 3(3) and or 5 of the Alternative Dispute Resolution Rules 2022 (ADR Rules 2022) as the jurisdictional basis for the motion. His motion is supported by a number of affidavits and they are:
    
    1. Affidavit of Joden Yamai sworn and filed on 26 April 2024;
    2. Affidavit of Service of Richard Geroro sworn and filed on 29 April 2024;
    3. Affidavit of Jorden Yamai sworn and filed on 13 February 2024; and
    4. Affidavit of Service of Kipling Geroro sworn and filed on 14 May 2024.
       
28. Mr. Yamai for the plaintiff in essence submitted that in Bais v Ilius (2022) SC2328, the Supreme Court emphasized the compulsory nature of the mediation process applying to all proceedings filed except for the types of cases not considered appropriate for mediation as articulated in Able Construction Ltd v WR Carpenter (PNG) Ltd (2014) N5636. In addition, he submitted that the plaintiff’s claim which raises allegations of negligence and breach of contract did not fall under any of the types of cases prohibited for referral to mediation.
    
29. The motion was contested by the defendant. Mr. Kakaraya for the defendant essentially submitted that the application should be dismissed with costs on an indemnity basis as:
    
    1. The amended notice of motion was incompetent and should be struck out as there was no rule under the National Court Rules allowing for an amended notice of motion to be filed; and
    2. This is not an appropriate case for referral to mediation as the claim is based on the plaintiff’s allegation that he contracted malaria in the course of his employment with the defendant due to the alleged negligence of the defendant and breach of contract in not providing a safe environment at the Mine and it was appropriate for the matter to be judicially determined by the Court for the purpose of setting a legal precedent in view of the fact that malaria is a communicable and transmissible disease for which the Defendant cannot be held liable.
       

Reasons for Ruling

30. As to the competency of the amended notice of motion, I concur with the defendant’s submission. There is no rule in the National Court Rules that allows for an amended notice of motion to be filed: Tovon v Malpo (2016) N6240, Aiwasi v Derari (2017) N6602. The reasons behind this proposition was stated clearly in Tovon v Malpo (2016) N6240 where at [8], His Honorr, Kandakasi J (as he then was) said:
    

"Before proceeding any further, I deal quickly with a preliminary point. This concerns the ready filing, serving and proceeding on the basis of amended notices of motions by many parties through their lawyers. This is procedurally incorrect. Unlike the provisions dealing with amendment of pleadings under O. 8, rr. 50 and 51, there is no such provision in the National Court Rules (Rules) for a party to file and proceed on the basis of an amended notice of motion. What this means is that, should there be a change regarding the basis upon which a particular relief in a notice of motion is sought or the kind of relief sought changes so much so that the motion cannot be moved on the basis of the original notice, the motion should be withdrawn and a new one filed in its stead, incorporating the changes required. Persisting on the current practice of simply filing an amended notice of motion with the tacit approval of the Court is licensing a process that is not authorized by the Rules. I suggest in the strongest term possible that, this practice cease immediately to avoid continuance in irregularity.”

31. The amended notice of motion is not properly before the Court; it is incompetent and is dismissed.
    
32. For completeness, as to the merits or otherwise of the application for referral of the case to mediation, I also accept the defendant’s submission that this is not an appropriate case for mediation.
    
33. Order 2 Rule 2(1) and (2) of the ADR Rules 2022 provide that no further step may be taken in any proceedings after; the filing of a defence; or the time for filing of a defence has expired; or the first appearance in Court (particularly where an originating summons has been used), unless one of the parties has applied for and the Court has granted leave to dispense with mediation. If a party does not apply to dispense with mediation, the Court is obliged to exercise its discretion to determine whether the proceedings should be ordered to mediation pursuant to Order 2 Rule 3 of the ADR Rules 2022. Order 2 Rule 2(3)(b)(i) to (x) of the ADR Rules 2022 set out the categories of cases that are not considered to be appropriate for mediation and these are:
    
    • There are legal issues not previously determined by a court in Papua New Guinea;
    • An out-of-court settlement is not in the interest of national security;
    • There is no reasonable cause of action;
    • It is a case warranting immediate declaratory relief where the facts are not contested;
    • The case has a history of violence;
    • This is a case where a court sanction or order is statutorily required;
    • A party’s state of mind is such that the party is incapable of negotiating for themselves;
    • There is a real dispute over the meaning and application of a particular provision in a contract or an instrument;
    • A public sanction is required as in a criminal case or other case involving public health, safety and good order; and
    • There are threshold issues such as a question on jurisdiction, a condition precedent or a statutory time bar or an immediate protective order such as an injunction is required.
      

34. I have not found any case in this jurisdiction dealing with a claim such as the present case. I am of the view therefore that it would be in the interest of our indigenous or local jurisprudence and the parties that the legal issues emanating from the claim which I think have not been previously determined by a court in Papua New Guinea be determined by the Court.

35. Given the above, it is not necessary to consider other submissions of counsel.

36. As to costs, it is a discretionary matter. The defendant has not made out a case for costs to be awarded on an indemnity basis. Costs shall follow the event, i.e., the plaintiff shall pay the defendant’s costs of and incidental to contesting the application to be taxed, if not agreed.
    

ORDERS

37. The formal orders of the Court are:

1. The defendant’s application for the entry of judgment for the certified taxed costs in the sum of K25,003.00 certified on 7 December 2023 moved pursuant to the Notice of Motion filed on 25 January 2024 is granted.
2. The defendant’s application for the entry of judgment for the certified taxed costs in the sum of K31,709.70 certified on 7 December 2023 moved pursuant to the Notice of Motion filed on 25 January 2024 is granted.
3. No interest is awarded on the certified taxed costs.
4. The plaintiff shall pay the defendant’s costs of the applications for the entry of judgment for the certified taxed costs in the sum of K4,000.00 for each application.
5. The plaintiff’s application to refer the case to mediation moved pursuant to the Amended Notice of Motion filed on 7 May 2024 is dismissed.
6. Costs shall follow the event, i.e., the plaintiff shall pay the defendant’s costs of and incidental to the application to refer the case to mediation which shall be taxed, if not agreed.
7. Time is abridged.

________________________________________________________________
Geroro Lawyers: Lawyers for the Plaintiff
O’Brien’s Lawyers: Lawyers for the Defendant