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Uriap v Tokivung [2008] PGNC 170; N3515 (23 October 2008)

N3515

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 543 OF 2008

BETWEEN:

BERNARD URIAP in his capacity as
the clan leader for and on behalf of Rongol
Clan of HIMAU & PORONBUS villages,
Namatanai District, New Ireland Province
Plaintiff

AND:

SIMON TOKIVUNG in his capacity as the
Clan leader of ANTALIS CLAN OF HIMAU
Village, Namatanai District, New Ireland Province
First Defendant

AND:

TUTUMAN DEVELOPMENT LIMITED
Second Defendant

AND:

RAKUBANA DEVELOPMENT PTY LTD
Third Defendant

AND:

THE PAPUA NEW GUINEA FOREST AUTHORITY
Fourth Defendant

Kokopo: Paliau AJ
2008: 17th & 23rd October

PRACTICE AND PROCEDURE – Application for Security for costs – Whether premature – Right of Review of Costs after Taxation yet to be exercised.

Cases cited:
No Cases cited.

Counsels:
Mr. W. Donald, for the Plaintiff/Applicant
Mr. R. Asa and Mr. M. Maraleu, for the Defendant/Respondent

23rd October, 2008

1. PALIAU, AJ.: This is an application by the Plaintiff/Applicant (the Applicant) seeking orders by Notice of Motion pursuant to Order 12 Rule 1 and Order 14 Rule 29:
   
   • (1) for the Second Defendant/Respondent (the Respondent) to pay K 500, 000 for security for costs towards further conduct of this proceedings;
     
   • (2) for preventing the Second Respondent from taking any further steps or making further applications to the Court unless the Applicant’s taxed costs in the sum of K 154, 000.00 have been paid; and
     
   • (3) for allowing the Applicant to charge interest on a daily rate on the taxed sum of K 154, 000.00 in accordance with the Interest on (Debts & Judicial Proceedings) Act.
     
2. The Affidavit of the Applicant in support of the application deposed to the effect that when costs were to be taxed by the taxation officer as ordered by the Court, the second respondent’s lawyer did not attend. After about at least 2 or 3 failed attempts to have the costs taxed, the costs were taxed on the 25th September 2008 without the second respondent’s lawyer’s attendance.
   
3. The lawyer for the second respondent in his affidavit in response deposed to the effect that the second defendant’s lawyer attended twice at taxation. He deposed that it is the responsibility of the Court Registrar to send Notice of Adjournment in writing to the respective lawyers and this did not occur. Taxation proceeded on the 25th September 2008 without proper notice ex parte. He denied having received the letter of 24th September 2008 from the Applicant’s lawyers.
   
4. The certificate of taxations were served on the respondents lawyers on the 2nd October 2008 and they have made their intentions known to the Court’s Registrar in their letter of 16th October 2008 for a review of the certificates of taxation.
   
5. I have considered the application by the applicant and the response by the respondents and I am of the view that the application by the applicant is premature. Basically because the respondents still have to exercise their right of review under Order 22 Rule 60 of the National Court Rules.
   
6. Under Order 22 Rule 60 of the National Court Rules, Sub-rule (1) states that 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.
   
7. Sub-rule (2) of Order 22 Rule 60 states that an application for review of the taxing officer’s decision shall be made within 14 days.
   
8. It is evident that the Lawyer for the respondents has made their intentions known for a review to the Registrar. This was made within 14 days but if it is not I will exercise my discretion under Sub-rule (2) to extend time for another 7 days.
   
9. The application by the Applicant is refused and costs be in the course.
   
10. My formal orders are:
    
    • (1) Application is refused;
    • (2) Application for review of taxation by the Respondents be filed and served on the Applicant within 7 days of this order if not already done so;
    • (3) Respondents to deliver to the taxing officer objections in writing specifying the list of items to which the applicant objects and state concisely the nature and grounds of each objection within 7 days of this Order, if not already done so;
    • (4) Respondents serve a copy of the objections on the Plaintiff/Applicant and any other party who attended the taxation of those items and any other person whom the taxing officer directs, if not already done so;
    • (5) This motion for review be set down for hearing on the 7th November 2008; and
    • (6) Costs be in the cause.
      

Ordered accordingly.

Donald & Co Lawyers: Lawyer for the Plaintiff/Applicant
Warner Shand Lawyers: Lawyer for the Defendants/Respondents