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Kotape v McConnell Dowell Construction PNG Ltd (Company No 1-12873) [2019] PGNC 473; N8338 (27 November 2019)

N8338

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1196 OF 2013

BETWEEN:
JOHN KOTAPE and members of IMINI clan, HETABE KIAMBE, OLABE KAMBE and members of his PEPE clan, URULU HATAPI (Cr) and members of his PARUKA clan and 434 other clan members residents of the Tumbi Quarry landslide disaster area whose name and particulars all appear in Schedule 1 attached to this Writ all acting for themselves
Plaintiffs

AND:
McCONNELL DOWELL CONSTRUCTION PNG LIMITED (Company No. 1-12873) trading as MCJV under PNG LNG Project EPC 5B Contract for Komo Airfield
First Defendant

AND:
CONSOLIDATED CONTRACTORS PNG COMPANY LIMITED (COMPANY NO. 1-70137) TRADING AS MCJV UNDER PNG LNG PROJECT EPC 5B CONTRACT FOR KOMO AIRFIELD
Second Defendant

AND:
PETER GRAHAM, Managing Director ESSO HIGHLANDS LIMITED
Third Defendant

AND:
ESSO HIGHLANDS LIMITED
Fourth Defendant

Waigani: Hartshorn J,
2019: 27^th November

TAXATION - Application for the review of a taxing officer’s decision – whether application filed within time – whether review has been instituted under the correct rules to invoke the courts jurisdiction - Order 22 Rule 60 (2) National Court Rules makes it mandatory by use of the word, “shall” that an application for review shall be made within 14 days after the date of the decision objected to - not within 14 days of the applicant being served the certificate of taxation - there has been delay in filing the review application within the required 14 day time period – no correct rules of court has been invoked – application for review dismissed -

Counsel:

Mr. E. Komia, for the Plaintiffs and Robert Mai & Company Lawyers
Mr. M. Tumul, for the Third and Fourth Defendants

27^th November, 2019

1. HARTSHORN J: This is a decision on a contested application for the review of a taxation decision by the Deputy Registrar (review application).

Background

2. On 12^th January 2015 this Court ordered Robert Mai & Company Lawyers (applicant) to pay the costs of the third and fourth defendants (respondents) of and incidental to the proceeding on a solicitor client basis (costs order).

3. A bill of costs of the respondents filed 3^rd April 2017 was taxed by the taxing officer, the Deputy Registrar, for the sum of K470,933.60 inclusive of GST. The certificate of taxation was issued by the Deputy Registrar on 17^th August 2018.

4. The applicant filed this review application on 10^th September 2018.

Preliminary

5. The respondents raise the following objections to the review application:

a) the review application was filed on 10^th September 2018. Order 22 Rule 60(2) National Court Rules provides that an application for review of a 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. The taxing officer’s decision was made on 7^th August 2018 and he issued a certificate of taxation on 17^th August 2018. The review application was filed more than 14 days after the decision objected to was made and more than 14 days after the certificate of taxation was issued;

b) no application was made requesting the Court to exercise its discretion and allow further time within which the review application could be made and no such application has been made in the review application;

c) the reference to the Court’s jurisdiction in the review application is incorrect as those Rules, Order 22 Rules 1 and 2, do not provide this Court with the jurisdiction to review a taxing officer’s decision;

d) the applicant has applied by application and not by notice of motion as is required by Order 22 Rule 60(1) National Court Rules;

e) the applicant has not served upon the respondents’ a copy of his objections as is required by Order 22 Rule 60(4) National Court Rules.

6. The applicant submits that:

a) the applicant was not served with the certificate of taxation until 6^th September 2018. He only became aware of the subject decision on that date and so the 14 days runs from then;

b) the Rules relied on in the application and the application itself instead of the motion, are mistakes and the applicant should not be penalised because of them in the interests of justice.

Consideration

7. Order 22 Rule 60 (2) National Court Rules makes it mandatory by use of the word, “shall” that an application for review shall be made within 14 days after the date of the decision objected to - not within 14 days of the applicant being served the certificate of taxation. The applicant was aware of the taxation by being present and should have made regular enquiries of the taxing officer/Deputy Registrar as to when his decision was to be made.

8. The applicant also had the option of applying for an extension of time under Order 22 Rule 60(2), when he became aware of the decision as he submits, or within the review application. He did not. Further, the jurisdiction relied upon in the review application and the review application not being a motion, are plainly errors.

9. As a consequence of the review application being filed out of time, the incorrect jurisdiction being relied upon, in an incorrect form, and in not obtaining an extension of time within which the review application could be filed, the applicant has failed to successfully engage the requisite jurisdiction of this Court for the relief that he seeks.

10. As to the interests of justice, this Court takes into consideration the interests of justice according to law. Here, the applicant has failed to engage the correct jurisdiction of this Court according to law. Further, the respondents are entitled in the interests of justice, to the law being interpreted and applied correctly according to law.

11. Consequently, the application of the applicant should be dismissed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

12. It is ordered that:

1. The application for review of taxation filed 10^th September 2018 of the plaintiff/Robert Mai & Company Lawyers filed by Robert Mai & Company Lawyers is dismissed;
2. Robert Mai & Company Lawyers shall pay the costs of the third and fourth defendants of and incidental to the said application;

c) Time is abridged.
__________________________________________________________________
Robert Mai & Company Lawyers: Lawyers for the Plaintiff/ Robert Mai &Co Lawyers
Allens Lawyers: Lawyers for the Third and Fourth Defendants