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Vele v Henao [2014] PGNC 304; N5884 (7 October 2014)

N5884

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 1140 OF 2006

BETWEEN:

WARI VELE
Plaintiff

AND:

LOANI HENAO
First Defendant

AND:

JOHN EGGINS
Second Defendant

AND:

PACIFIC STAR LIMITED trading as THE NATIONAL
Third Defendant

AND:

JULIA DAIA BORE
Fourth Defendant

AND:

POST COURIER LIMITED
Fifth Defendant

AND:

MEDIA NIUGINI LIMITED trading as EMTV, a division of FIJI TV LIMITED
Sixth Defendant

Waigani: Kariko, J
2014: 6th & 7th October

COSTS –application by plaintiff to allow taxed costs against him reviewed – application for review filed out of time – plaintiff seeks extension of time to file review – applicant must have reasonable explanation why costs were taxed in the applicant's absence, application must be made promptly and within a reasonable time of the decision becoming known, applicant must show there are justifiable reasons if there has been delay in making the application, applicant must show application for review has merits – plaintiff has not shown that his application fulfils those requirements - application for extension of time to apply for review of the taxation of costs declined - O.22 r.60 (2) and O.1 r.15 National Court Rules.

Cases cited:
Joe Tipaiza v James Yali (2006) N2971
John Kombra v Bernard Kipit (2009) N3756
Peter Dixon Donigi v. Base Resources Ltd [1992] PNGLR 110
Rueben Kaiulo v John Yaluma (2008) N3507
Sharline Sion v Headmaster of Tavui Primary School (2011) N4587
Vivisio Seravo v Jack Bahafo (2001) N2078

Counsel:
Mr B Lai, for the plaintiff/applicant
Mr R Puka, for the second and third defendants/respondents

RULING

11th November, 2014

1. KARIKO, J: This is an application by the plaintiff for an extension of time to apply for taxed costs against him to be reviewed pursuant to O.22 r.60 (2) and O.1 r.15 National Court Rules.
   

Brief background

2. The substantive proceeding WS No. 1140 of 2006, an action for defamation was dismissed for want of prosecution and costs were ordered in favour of the defendants upon the dismissal of the proceeding. The first and second defendants' costs were taxed in the plaintiff's absence on 17th December 2013 and the amount of K128, 312.80 was allowed. A sealed copy of the Certificate of Taxation was served on the plaintiff on 31st January 2014.
   

The law

3. Pursuant to O.22 r.60 (1) a party aggrieved by the taxation of costs may apply to the Court to have the taxation reviewed. Rule 60(2) states that the application for review shall be filed within 14 days of the taxation or such other time extended by the Court. Order 1 r.15 allows the Court to extend time that is fixed by the Rules.
   
4. In support of his client's application, Mr Lai for the plaintiff cited the case of Rueben Kaiulo v John Yaluma (2008) N3507 a decision by Makail, AJ (as he then was) who held that on an application for extension of time under O.22 r.60(2), the applicant must satisfy the Court:
   
   • (1) That there is a reasonable explanation why the application was not filed within the prescribed time;
     
   • (2) That he has arguable grounds for the review;
   • (3) That the other party will not be prejudiced by the late application.
     
5. Similar considerations apply in other applications for extension of time such as:
   
   • (1) application to file a defence out of time (see Joe Tipaiza v James Yali (2006) N2971);
   • (2) application to appeal out of time (see Vivisio Seravo v Jack Bahafo (2001) N2078); and
   • (3) application to give section 5 notice to the State out of time (see Sharline Sion v Headmaster of Tavui Primary School (2011) N4587),
     

and I believe his Honour had these comparable applications and principles in mind in deciding Rueben Kaiulo v John Yaluma (supra).

6. In John Kombra v Bernard Kipit (2009) N3756 Davani, J dealt with an application to review a taxation that had been decided in the absence of the applicant. Her Honour held that similar considerations to those in deciding whether or not to set aside ex parte default judgement applied. These considerations are:
   
   • (1) There must be a reasonable explanation why costs were taxed in the applicant's absence;
     
   • (2) The application must be made promptly and within a reasonable time of the decision becoming known;
     
   • (3) There are justifiable reasons if there has been delay in making the application; and
     
   • (4) The application for review has merits.
     
7. To my mind the principles pronounced by Makail, AJ (as he then was) are appropriate in the case where the applicant attended taxation whereas the principles pronounced by Davani, J are more relevant where the taxation was conducted in the applicant's absence.
   
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 taxation 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 for review "within 14 days after the date of the decision being objected to", then he must also have a good explanation why he did not apply for review within the stipulated time.
   
9. The cited cases confirm that the Court's power to extend time under O.22 r.60 (2) is discretionary and is to be exercised according to proper principles. In my view, it is clear from those cases that an application for extension of time may be granted if:
   
   • (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) That the other party will not be prejudiced by the late application.
     

Application of the considerations

10. Mr Lai for the plaintiff informed the Court that neither his client nor any legal representative attended taxation. There is no evidence before me why this was so.
    
11. If the court vacation period is discounted, the relevant 14 days period would have lapsed on or about 12th February 2014. The present application was filed some 8 months later which I consider inordinate. The applicant says that the delay in seeking a review of the taxation was for two reasons:
    
    • (1) He no longer resides in Port Moresby as he is now the President of the Rigo Coast LLG; and
      
    • (2) His former lawyers did not release his file to him earlier to allow him to instruct new lawyers on the matter.
      
12. I do not accept that being resident in Rigo is a reasonable explanation for failing to file an application for review within time and for the undue delay in filing the application for extension of time. The applicant is not a simple villager and there is no evidence of any issues relating to travel by road to and from Port Moresby. The negligence or the wrongful conduct of a lawyer is of course not a good reason for an extension of time to be granted; Peter Dixon Donigi v. Base Resources Ltd [1992] PNGLR 110.
    
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.
    
14. I am also satisfied that the defendants would be prejudiced by the late application now before this Court. The substantive matter was filed in August 2006, over 8 years ago. The costs were ordered in October 2008, 6 years ago, taxation occurred just under a year ago. The respondents are still awaiting settlement of their costs. As noted earlier, the issue of costs ought not to be unnecessarily prolonged.
    

Conclusions

15. In all the circumstances, the application for extension of time to apply for review of the taxation of costs must be declined. The applicant shall pay the respondents' costs of this application, to be taxed if not agreed.

_____________________________________________________________
B S Lai Lawyers: Lawyer for the Plaintiff/Applicant
Henaos Lawyers: Lawyer for the First and Second Defendants/Respondents