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James v James [2024] PGNC 327; N10997 (20 September 2024)

N10997

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 45 OF 2023

BETWEEN:
LEONIE JAMES
-Plaintiff-

AND:
KELVIN IRIA JAMES
- Defendant-

Lae: Dowa J
2024: 13^th & 20^th September

PRACTICE AND PROCEDURE-COSTS -application for judgment on taxed cost-discretion to refuse judgment where taxation is irregular-taxation of costs-taxation proceeded in the absence of Plaintiff-application to set aside- application filed out of time-where no application for extension of time sought-lay man involved- Litigants who chose to represent themselves are expected to know the Court rules and process and thus no special treatment for noncompliance - Where taxed cost is exorbitant and unreasonable, Court on its own volition can set aside taxed costs in the interest of justice -Court refused application for judgment and set aside taxed cost-Court to tax costs to avoid further cost.

Cases Cited:
Papua New Guinean Cases

PNG Power Ltd v Gura (2014) SC1402
Abai v The State (2000) SC632
Karingu v PNG Law Society (2001) SC674
Kumbu v Mann (2018) N7126
Sinaka v Bartels (2024) N10689

Overseas Cases

Slingsby v Attorney General (1918) P236-927(English case adopted and applied)

Counsel:

L James, Plaintiff in person
J Kora, for the Defendant

RULING

20^th September 2024

1. DOWA J: This is a decision on competing applications by the parties. The Defendant is seeking judgment on taxed cost, while the Plaintiff seeks to set aside the Defendant’s cost, taxed and certified by the Taxing Officer on 20^th May 2024

Background Facts

2. The parties come from Watarais, Umi LLG, Morobe Province, By Originating Summons, the Plaintiff filed contempt proceedings against the Defendant for failing to comply with certain District Court Orders from the Ramu District Court made on 3^rd November 2022. The Defendant filed a responding Affidavit denying the claim. On 26^th May 2023, the Plaintiff discontinued the proceedings with leave of Court. The Court ordered the Plaintiff to pay the costs of the proceedings.

3. The Defendant filed a taxable bill in Court and had it taxed. The costs were taxed by the Taxing Officer and allowed same at K 6,005.50. A Certificate of Taxation was served on the Plaintiff. The Defendant has now filed a Notice of Motion seeking conversion of the taxed costs into a judgment under the National Court Rules. In response, the Plaintiff filed an Objection to the Defendant’s Bill of Costs submitting that the taxed costs are exorbitant and unreasonable and be set aside.

The Plaintiff’s Application

4. By Notice of Motion filed 7^th August 2024, the Defendant applies for the following reliefs:

1. Judgment for the Defendant’s taxed cost in the sum of K 6,005.50 as certified by the Taxing Officer dated 20^th May 2024 pursuant Order 22 Rule 62 of the National Court Rules
   
2. Cost of the application be paid by the Plaintiff.
   

5 The Plaintiff opposes the application, arguing strongly that the taxed costs are exorbitant and are unreasonable in the light of the fact that the proceedings were discontinued without much Court activity.

Issues

6. The main issues for consideration based on the arguments raised by the parties are:
1. Whether the Defendant’s taxed cost be reviewed.

2. Whether the application for the grant of taxed costs be granted in the terms in the Notice of Motion.

Evidence

7. The Plaintiff relies on her Affidavit filed 12^th September 2024.The Defendant relies on his Affidavit filed 7^th August 2024
.

Submissions of the Parties

9. The Plaintiff submits that the Defendant’s Taxable Bill of Cost was taxed and certified in her absence. She submits that on the day of taxation, she objected to the Defendant’s taxable bill exceeding K10,000.00. Given that the matter was a fresh matter, and she discontinued the matter only after two brief Court attendances, the taxable bill was excessive especially where the lawyer is based in Lae. The Taxing Officer adjourned the taxation and allowed the parties to discuss and agree on an amount. She says the lawyer for the Plaintiff left and they did not discuss further. When she turned up the next day, there was no taxation. She is surprised to learn sometime later that the bill of cost has been taxed and allowed at K6,005.50 in her absence. She urges the Court to review the Bill and reduce it down to K500.00.

10. In response, counsel for the Defendant, submits that the Plaintiff was present when the bill of cost was taxed. He submits that a substantial portion of the bill was taxed off and urges the Court to convert the taxed cost into a judgment pursuant to Order 22 Rule 62 of the NCRs.

Consideration of the Issues

1. Whether the Plaintiff’s request is competent

11. The Plaintiff’s objection to the application for judgment on the taxed cost and the request for reduction of the taxed is akin to an application for review of the taxed cost under Order 22 Rule 60 of the National Court Rules. The Plaintiff did not file an application for review of the taxed cost. Should the Court entertain her request in the absence of a formal application. While it is understandable that the Plaintiff is appearing in person, it is not an acceptable practice for the Court to grant her request. A person has a Constitutional right and the protection of the law generally to institute proceedings and make appearances either in person or by a lawyer. If a person chooses to conduct Court proceedings in person, it is expected of that litigant to know and follow Court rules and processes. If he falls short, there shall be no special treatment given for any such lack of procedural knowledge of the Court processes as that is the risk he takes.

12. Having that said, I am of the view that the arguments raised by the Plaintiff are meritorious and sound. Her arguments can be subsumed in my ruling on the next issue of whether judgment should be entered for the Defendant on the taxed cost.

2. Whether judgment be entered for the Defendant on the taxed cost.

13. The second issue for consideration is whether judgment should be entered for the Defendant for the taxed cost. The application is made pursuant to Order 22 Rule 62 of the NCR. Order 22 Rule 62 of the NCR is relevant, and it reads:

“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. Rule 62 gives the Court the discretion whether to grant judgment on taxed costs. The Defendant’s cost was taxed and allowed at K6,005.50 from an initial taxable sum of K10, 320.42.

15. In the light of objections raised by the Plaintiff, it is prudent to state the law. The law on taxation of costs is settled. A Taxing Officer has a discretion to tax and allow a party’s bill of costs and will not be disturbed unless the Court is satisfied that the Taxing Officer acted on a wrong or mistaken principle, or the amount taxed and allowed is manifestly wrong or exorbitant. Refer: Slingsby v Attorney General (1918) P236-927, (English case adopted and applied), PNG Power Ltd v Gura (2014) SC1402, Abai v The State (2000) SC632, Karingu v PNG Law Society (2001) SC 674, Kumbu v Mann (2018) N7126 and Sinaka v Bartels (2024) N10689.

16. At the outset, I note the Defendant’s Bill of Cost is high. So is the taxed cost especially in the light of discontinuance at its infant stage with just two to three brief Court appearances lasting five to ten minutes on each occasion.

17. There is also a second issue of concern. There is no certainty as to when the Bill was taxed. The Certificate of Taxation says it was taxed on 20^th May 2024 and entered on 19^th June 2024. The defendant who deposed an affidavit in support of this application, says in paragraph 9, that the taxation did not proceed on 20^th May 2024 but on the 16^th of June 2024. Mr Nalawaku who filed an affidavit deposes the same facts. This evidence lends credence to the Plaintiff’s contention that taxation did not take place on 20^th May 2024. Rather, it seems it may have proceeded on 16^th June 2024 in the absence of the Plaintiff although Mr. Nalawaku deposes otherwise. If the taxation was adjourned, why did the Taxing Officer state in the Certificate of Taxation that it was taxed on 20^th May 2024. If the taxation took place on 16^th June 2024, why was it not recorded on the Certificate of Taxation. I perused the taxable bill filed in Court and note the Taxing Officer did not sign nor date the bill after the taxation. I also checked the file and note that the Taxing Officer did not place a note on the file of his taxing activities.

18. There is no evidence that the Plaintiff was advised of the new date for taxation. I find the taxation was conducted contrary to the principles of natural justice as enshrined in Section 59 of the Constitution. Had the taxation conducted in the presence of the Plaintiff, she would have presented her objections in person as she had filed a detailed Objections to the Bill. To the extent that the taxation was conducted in breach of the principles of justice, it is irregular. In the circumstances, it is not just and equitable to grant the orders sought. I will therefore refuse entry of judgment on the taxed cost.

19. As a further consequence of its irregularity, I will set aside the Certificate of Taxation. The taxable bill can either be referred for taxation by the taxing officer or be taxed by the Court. To save further cost and inconvenience, the Court will proceed to reviewing the taxable bill and have it taxed in Court.

Costs

20. Cost is discretionary. The Defendant is at fault in failing to notify the Plaintiff of the new date for taxation and allowing taxation to proceed in her absence. The Defendant will pay the cost of the application.

Orders

21. The Court orders that:

1. The Defendant’s application for judgment is refused.
2. The Certificate of Taxation dated 20^th May 2024 and entered 19^th June 2024 is set aside.
3. The Defendant’s Taxable Bill of Cost shall be taxed in Court.
4. The Defendant shall pay the cost of the application.
5. Time be abridged.

________________________________________________________________
Leonie James: Plaintiff in person
Namani & Associates: Lawyers for the Defendant