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Sapuri v The Medical Society of Papua New Guinea [2019] PGSC 135; SC1910 (20 December 2019)

SC1910

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 21 OF 2016

BETWEEN:
MATHIAS SAPURI
First Appellant

AND:
SYLVESTER LAHE
Second Appellant

AND:
THE MEDICAL SOCIETY OF PAPUA NEW GUINEA
Respondent

Waigani: Batari J
2019: 11^th November & 20^th December

SUPREME COURT - Appeals – Costs – Application to review taxed costs

PRACTICE & PROCEDURE – Taxation assessment in absence of lawyer – Whether reasonable excuse for absence.

SUPREME COURT - Practice &Procedure – Bill of Costs – Review of objections – Whether costs charged were fair and reasonable.

Cases Cited
Behrong Beochani v The Independent State (2017) SC1566
Hii Luke v Richard Maribu (2012) SC1188
Joseph Nandi v Curtain Brothers Ltd (2012) SC1483
Luke v Maribu [2012] PNGLR 78
Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962
Tom Abai and Others v. The State (2000) SC632

Counsel
Mr. J. Siki, for the Applicants
Mr. G. Purvey, for the Respondent

20^th December, 2019

1. BATARI J: On 6/10/2016 the Taxation Master (taxing officer) assessed and issued certification of the taxed costs the next day, 7/10/2019. Aggrieved by the decision of the taxing officer, the applicants filed this application pursuant to O.12 r.37 of the Supreme Court Rules (SCR), seeking the following orders as paraphrased in short form:
   1. The applicants be granted leave to review the decision of the taxing officer in taxing the respondent’s Bill of Costs and subsequent Certification of the taxed costs.
   2. The decision of the taxing officer and subsequent certification of the taxed costs be reviewed and quashed.
   3. The respondent’s application filed on 1/8/2016 be reviewed and dismissed.
2. The issues emanating from these are:
   1. Whether the appellants have made out a ground or grounds for leave to review the decision of the taxing officer.
   2. If leave is granted, whether the decision of the taxing officer should be quashed upon review.
3. Order 12 r. 37 of the SCR reads:
   • (1) A Court or a Judge may review the decision of a taxing officer, only if the taxing officer has given a certificate in accordance with that decision.
   • (2) A party aggrieved by the taxed costs may, within 14 days from the date of issue of the certificate of taxation, apply to the Court or a Judge, for leave to review the taxing officer’s decision, such application to be supported by affidavit and shall be served on the other party, 3 clear days before the date of moving the application.
   • (3) The application shall be made by Notice of Motion and supported by affidavit which shall, amongst other things, specify the list of times to which the applicant objects and must state concisely the nature and grounds of each objections.
     
4. Under these procedural provisions for a review of taxation decision, the following requirements must be satisfied:
   1. Both the full Court and a single Judge of the Supreme Court has jurisdiction to review the decision of the taxing officer.
   2. The decision of the taxing officer is reviewable only after taxing officer has issued a certificate in accordance with that decision.
   3. An appeal/review of the taxing officer decision lies with leave. The party aggrieved by the taxation decision must apply to the Supreme Court within 14 days of the issue of the Certificate of Taxation, for leave to review the taxing officer’s decision.
   4. The application must be supported by an Affidavit.
   5. The affidavit(s) must be served on the other party, three (3) clear days before the date of moving the leave application.
   6. The application must be made by Notice of Motion.
   7. The affidavit supporting the Notice of Motion must amongst other things, specify the list of items to which the applicant objects.
   8. The applicant must state concisely, the nature and grounds of each objection.
5. Both parties relied on the case of Luke v Maribu [2012] PNGLR 78. In that case, Injia, CJ in granting leave for review, was satisfied the Respondent had complied with the procedural requirements in O.12 r.37 and articulated the relevant matters attributed to the Respondent’s compliances.

Parties Position

6. The applicants’ contention on the first issue is, that they have fully complied with all the procedural requirements for leave under O.12 r.37 as reflected in the case of Luke v Marimbu (supra). On the second issue, the applicants’ stand is that the taxing officer failed to consider the objections the applicants had raised and further that the applicants were not given the opportunity to be heard on their objection.
7. The Respondent’s position on the issue of procedural compliance is that the relief sought by the applicants for this Court to quash the decision of taxing officer has no jurisdictional basis and that makes the application incompetent. In addition, the affidavit filed by the applicants is not in compliance with the Rules.
8. On the second issue, the respondent’s position is that the taxing officer did not act upon a wrong or mistaken principle of the application for taxation and the applicants have not shown where the taxing officer erred in the exercise of discretion in relation to an item of costs.

Background

9. In SCA No. 21 of 2016, the applicants applied for leave to appeal a National Court decision. A single judge of the Supreme Court refused leave and awarded costs to the Respondent on 13/4/2016. Earlier on, on 20/2/2015, the Supreme Court had refused the applicants’ application for leave to appeal in a related matter in SCA No. 16 of 2015 and awarded costs to respondent.

Jurisdiction of the Court to review Taxation for Costs

10. Order 12 Rule 37 gives the full Court or a Judge, jurisdiction to review the decision of a taxing officer. In addition to seeking that jurisdiction of this Court, the applicants also pray that this Court quash or dismiss the taxation. I agree with Mr. Purvey for the respondent that the Court has no jurisdiction to quash or dismiss the decision of the Taxation Master. Order 13 Rule 15 of the Supreme Court Rules requires all applicants for interlocutory orders to contain a concise statement of the Court’s jurisdiction to grant the orders being sought. Technical flaws in non-compliance with O.13 r.15 of the Rules are enough in themselves to warrant dismissal for want of competence: Pacific Equities & Investments Ltd v Teup Goledu (2009) SC 962. See also, Joseph Nandi v Curtain Brothers Ltd (2012) SC 1483; Behrong Beochani v The State (2017) SC 1566.
11. The applicants in this case have not contested the respondent’s contention. It is open for this Court to conclude the application for review is incompetent for want of form. This abuse is however, not critical against the application for review.
12. There two (2) other matters the respondent has raised. The first concerns time compliance under O.12 r.37 (2) of the SCR. The applicants filed their Notice of Motion outside the required 14 days of issue of the Certificate of Taxation. There is some explanation for the delay, Mr. Aku, lawyer assisting the applicants then attempted to file the Notice of Motion on 18/10/2016 but was told by a clerk of the Supreme Court Registry to file by way of Application. After his further attempts failed, he was told to return on Monday, 24/10/2016. He then found out the Notice of Motion had been registered on Friday, 21/10/2016.
13. I do not except the explanation by the applicants. The mode or nature of application is a matter for the Court to decide. The Registry Clerk has no power to decide if the proper mode is invoked by a party commencing a cause. Their role is to simply facilitate commencement of a Court action.
14. Further, the applicants’ having run out of time, had the option to apply for dispensation with the rules. They failed to do that. I accept that the application is not properly before this Court. It is time barred and the applicants have not applied to waive the Rules.
15. The second matter concerns compliance with the provision of O.12 r.37(3) of the SCR. The applicant is required to file together with the Notice of Motion, supporting affidavit(s) which amongst other things must specify the list of items to which the applicant objects. I accept the respondent’s contention that the affidavit the applicants rely on does not specify the costs to which there is an objection under Or.12 r.37(3).
16. The cumulative effective of these procedural deficiencies renders the application before this Court, incompetent.
17. Going past these procedural matters, the applicants’ contention is that this Court has jurisdiction to review the decision of the taxing officer as the taxed sum in excess of K11,035.13 is excessive and unreasonable. The taxing officer unfairly disallowed only K2,565.00 from K13,600.00 claimed by the respondent. The second leg of the applicants’ submission is, that the taxing officer denied lawyers for the applicants the right to be heard.
18. I deal first with the issue of right to be heard. It is common fact that the date and time of 6/10/2016 set for taxation was at the request of the applicants. On the other hand, lawyers for the respondent had strongly protested against any further adjournment after 27/9/2016.
19. On the appointed date of 6/10/2016, the applicants’ lawyers did not attend the taxation. The lawyers also did not inform the respondents’ lawyers of their intention to ask the taxing officer for a further adjournment. The lawyers took those chances to the detriment of their client’s case. They have other lawyers to attend taxation to avoid running between venues. They have not shown how the taxing officer failed to hear from them. On the face of the records, the taxing officer in fact took into account the objections the applicants’ lawyers had raised in the correspondence outlining the objections to the taxation items, albeit served out of time.
20. On whether the taxing officer acted on wrong principles, I am reminded that Taxation Officer has a very wide discretion to assess costs and that the Court will not usually interfere with the exercise of discretion except in cases where the taxing officer acted on wrong or mistaken principles. The case in Luke v Maribu(supra)made this point at p.82;
    • “It is also well established principle that the Taxing Officer has a very wide discretion to assess costs. Usually, the Court will not interfere with the exercise of that discretion except in cases where the Taxing Officer acted on wrong or mistaken principle. The exercise of discretion on quantum of costs power each time of costs or the global amount for all items is almost non-renewable except in very exceptional circumstances, such as where the discretion was exercised in a manner that was manifestly wrong or the amount allowed or disallowed is exorbitant.”
21. It is trite then that the taxing officer’s exercise of discretion in relation to general assessment on quantum of costs per each item of costs or the global amount for all items is almost non-reviewable. There must be in existence, a very exceptional case before the Supreme Court reviews the decision. The onus is on the applicant to show the exercise of the very wide discretion by the taxing officer was manifestly wrong or the amount allowed or disallowed is most unreasonable because:
    • (i) The taxing officer exercises his/her discretion in a manner not within his/her discretion.
    • (ii) The discretion was exercised on wrong principles.
    • (iii) There has been some great loss occasioned by someone by a clearly erroneous exercise of his discretion: Tom Abai and Ors v. The State (2000) SC632.
22. In this case, the applicants’ main contention is, that the taxing officer disallowing only K2,565.00 for costs claim at K13,600.00 is unreasonable.
23. I am not persuaded to accept that contention. I accept the respondent’s contention that the applicants have not shown how the taxing officer acted upon wrong or mistaken principle. It is not disputed, the bill of costs was largely reduced in respect of the items purported to have been objected to in the applicants’ letter dated 22/9/2016. I am not satisfied the taxing officer fell into error in the exercise of her discretion.
24. Therefore, the application for leave to review the decision of the taxing officer is unmeritorious.
    
25. The orders of the Court are that:
    • (1) The application for leave to review is refused.
    • (2) The decision of the taxing officer to allow the costs of K11,000.00 is affirmed.
    • (3) The total costs assessed are to be paid by the applicants in equal portions.
    • (4) Each party shall pay their own costs of the review.
    • (5) Time is abridged.

_________________________________________________________
Greg Manda Lawyers: Lawyers for the Applicants
Young & William Lawyers: Lawyers for the Defendant