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Sinaka v Bartels [2024] PGNC 395; N10689 (15 March 2024)

N10689

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1398 OF 2016

BETWEEN:
RAKA SINAKA
Plaintiff

AND:
KEVIN BARTELS
First Defendant

AND
CHEMCARE GROUP LIMITED
Second Defendant

AND
ISAAC MOL-POLICE OFICER
Third Defendant

Lae: Dowa J
2022: 21^st June
2024: 15^th March

COSTS - practice and procedure--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- Court on its own volition grants extension of time in the interest of justice -application for review set for hearing.

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
Kombra v Kipit (2009) N3756
Tumu v MVIL (2015) N233

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

Counsel:
R Sinaka – Plaintiff in person
J Langah, for the Defendants

DECISION

15^th March 2024

1. DOWA J: This is a decision on an application to set aside the Defendants’ cost, taxed and certified by the taxing Officer on 15^th October 2020.

Background Facts

2. The Plaintiff claims, he was unlawfully terminated from employment on 2^nd October 2014 on allegations of fuel theft. He was also referred to the police and was criminally charged. He was eventually discharged after the state filed a nollie prosequi. He sought damages for unlawful termination of employment, for unlawful prosecution, defamation and for breach of constitutional rights. On 7^th September 2018 the Plaintiff discontinued the proceedings with leave and costs were awarded to the Defendants.

3. The Defendants filed a Bill of Costs which was taxed by the Taxing Officer on 15^th October 2020 ex parte and allowed same at K 19,815.00. The Plaintiff now applies for the review of the Taxing Officer’s decision.

The Plaintiff’s Application

4. By Notice of Motion filed 1^st September 2021, the Plaintiff applies for the following reliefs:

1. setting aside of the taxed costs awarded to the Defendant pursuant to Order 12 Rule 3 of the National Court Rules
   

2. Review of the taxed costs pursuant to Order 22 Rule 60 (1) of the NCR.

5 The Defendants oppose the application submitting that:

1. The application is incompetent

2. The application is filed out of time.

3. The costs were taxed after the Plaintiff was served copies of the taxable Bill and notified of the date for taxation.

Issues

6. The issues for consideration are:

1. Whether the Plaintiff’s application is competent
2. Whether the application is made within time
3. Whether the Court can review the certified costs in its discretion

Evidence

7. The Plaintiff relies on the following Affidavits:

1. Affidavit of Raka Sinaka sworn and filed 1^st September 2021
2. Affidavit of Raka Sinaka sworn and filed 30^th November 2021
3. Affidavit of Raka Sinaka sworn and filed 9^th June2023

8. The Defendants rely on the following Affidavits:

1. Affidavit of Nigel Merrick sworn and filed 18^th November 2021
2. Affidavit of Kusek Dangi sworn and filed 18^th November 2021.

Submissions of the Parties

9. The Plaintiff submits that the Defendants’ Taxable Bill of Cost was taxed and certified in his absence. He submits neither he nor his lawyer were informed of the date of taxation. He submits that after the Bill was taxed, he was not informed and served a copy of the certificate of taxation for him to apply for the review within time. Finally, he submits that the amount taxed and allowed is high or exorbitant especially Part 3 of the Bill.

10. In response the Defendants submit that the Plaintiff’s application be dismissed because:

1. The Plaintiff did not properly invoke the jurisdiction of the Court.
2. The application is time barred, and
3. The Plaintiff’s application is without merit.
   

Consideration of the Issues

1. Whether the Plaintiff’s application is competent

11. The Plaintiff cited Order 12 (3) (a) of the NCRs to set aside the award made by the taxing officer on 15^th October 2020. A perusal of the relevant National Court Rules show that the rule cited in the first leg of the application is incomplete and inappropriate. In respect of the second relief in the application, the Plaintiff did cite the correct jurisdictional basis under Order 22 Rule 60 (1) of the NCRs for the review of the certified bill of costs.

12. In my view the error in citing the correct jurisdictional basis of the application for the first leg of the application is minor and inconsequential in the light of the fact that the second relief is competent. I will allow the application to be considered on its merits subject to meeting the time requirements.

2. Whether the application is made within time

13. The second issue for consideration is whether the application is made within time. Order 22 Rule 60 of the NCRs is relevant, and it reads:

“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.”

14. It is undisputed that the Defendants’ bill of costs was taxed and certified on 15^th October 2020. The current application was filed on 1^st September 2021. Clearly, the application is out of time by eleven (11) months. Although the Rules provide for 14 days, the Court has a discretion under sub rule (2) to allow for the hearing of the application for review provided the Plaintiff has good reasons for allowing the default and that he has an arguable case for the Court to intervene.

15 In the present case the Plaintiff submits he was not aware of the date for taxation and that he was not served a copy of the Certificate of Taxation immediately after the taxation. However, according to the evidence deposed to by Kusek Dangi and Francis Mala on behalf of the Defendants, the Bill of Costs was served on the office of the Public Solicitor, the Plaintiff’s Lawyers on 8^th October 2020.The matter was specifically fixed for 15^th October 2020 at 1.30pm. The Plaintiff has not provided a satisfactory explanation why his lawyers did not attend the taxation and allowed the taxation to be conducted exparte.

16. As for the Certificate of Taxation, there is evidence that a sealed copy of the Certificate of Taxation was served on the Public Solicitor’s Office on 27^th October 2020. Again, there is no explanation by the Plaintiff or his former Lawyers why they could not file an application for the review sooner. The Court notes the Public Solicitor has since ceased to act for the Plaintiff, leaving the Plaintiff stranded, so to speak, to fend for himself. It is clear the Plaintiff is acting in isolation from what has transpired between his former lawyers, the Public Solicitors Office, and the lawyers for the Defendants. Be that as it may, what is clear though, is that the Plaintiff filed the current application for review outside of the time prescribed by the Order 22 Rule 60 (2) of the NCRs.

3. Whether the Court can review the certified costs in its discretion

17. The third issue is whether the Court should, in its discretion, allow for the review of the taxed costs in the interest of justice. One of the major complaints of the Plaintiff is that the figures charged were exorbitant and the taxing officer failed to reduce them.

18. 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 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 and Kumbu v Mann (2018) N7126.

19. In the present case the taxable Bill of cost was for K 33,385.00. K 13, 550.00 is taxed off and the balance of K 19,815.00 was allowed and awarded.

20. I have perused the Taxable Bill and note the following:

1. the amounts taxed off under each of the items are not clearly set out. The amounts inscribed on the Bill as taxed off totals K 9,300.00 and cannot be reconciled with the amounts said to be taxed off.
   
2. Part 3 of the Bill contains exorbitant figures. Part 3 relates to charges for Court attendances.
   
3. The charges appear to be on a solicitor/client basis rather than party/party basis contrary to a specific order by the Court.
   

21. Part 3 of the Bill has 14 items for Court attendances. It has charges for 7 Court appearances at the rate of K 2,550.00 per attendance totalling K 17,850. A charge of K 400.00 for seven (7) additional days was billed for the days when there were no sittings due to unavailability of judge or deferrals. This should not have been allowed. The amounts under Part 3 alone amounts to K 20,650.00. The Taxing Officer taxed off K 6,800.00 leaving a balance of K 13,850.00.

22. In my view the amount allowed is unreasonably high. The proceedings were discontinued after some preliminary applications, The Court attendances referred to in the Bill were for attending to Motions or Directional hearings. The Court file shows there about seven (7) Court attendances for those interlocutory hearings. The final Court attendance relates to an uncontested Notice of Motion by the Plaintiff seeking leave for the discontinuance. Those attendances would be for a minimum of 15 minutes to one hour at the most including waiting time in Court. There was no trial on the substantive proceedings. The highest amount of chargeable fee allowed under Schedule 2 of the National Court Rules-Scale of Costs; Part 3 (Court Attendances) is K 350.00. The maximum amount that would have been allowed for the seven attendances would be K 2,450.00 and no more. And for the deferrals, the charges should not have been allowed. Clearly, the Bill does not justify that the cost incurred were necessary and reasonable.

4. Leave to Review

23. As I have found, the Plaintiff’s application is out of time. Although Order 22 Rule 60 (2) of the NCRs allow for extension of time to file an application for review, the Plaintiff has not sought leave for extension. Should the Court then proceed to review the Bill even though the Bill is filed out of time. In my view, it is an abuse of the process to proceed to review the bill without extending the time for the application. Subrule (2) makes it plain that the Court can review a taxed cost within such further time as the Court allows. The principles applicable for granting extension of time are the same as those in applying for extension of time to file a Defence out of time. Refer: Kombra v Kipit (2009) N 3756 and Tumu v MVIL (2015) N 233. Although the Plaintiff’s former lawyers have not provided an explanation for the default and the delay in filing the application, there is merit in the application for the taxed cost to be reviewed in the interest of justice. I will grant leave to the Plaintiff for the review of the taxed cost out of time at the Court’ own volition pursuant to Order 22 Rule 60 (2), Order 12 Rule 1 and Order 1 Rule 15 of the NCRs. This is because the Plaintiff who is not represented by a lawyer failed to follow due process as allowed by the Rules of Court and it is clear from the history of this case that he has not been properly represented by the lawyers he last engaged. The Plaintiff must be given an opportunity to be heard in the interest of justice. Except for the delay, the Defendants will not suffer any prejudice that is greater than the injustice likely to be done to the Plaintiff by a refusal.

24. In the light of my ruling, the substantive review shall be considered after hearing from the parties on the specific items of the Bill to be reviewed.

COSTS
25. The issue of costs will be reserved until the review is completed.

ORDERS

26. The formal orders of the Court are:

1. Leave is granted to the Plaintiff to apply for the review of the Taxing Officer’s decision of 15^th October 2020 granting an award of K19,815.00 in taxed cost in favour of the Defendants.
2. The Plaintiff shall have seven (7) days to file and serve his application for review which is deemed to have been complied with by the Notice of Motion filed herein on 1^st September 2021
3. The matter is fixed for substantive review on 21^st March 2024.
4. The Parties are to come ready with their submissions on the specific items to be reviewed.
5. Cost is reserved.
6. Time be abridged.

________________________________________________________________
Raka Sinaka: Plaintiff in person
Warner Shand: Lawyers for the First and Second Defendants