|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 805 OF 2009
FIRMAN JUNUS
Plaintiff
AND
THE PAPUA NEW GUINEA NATIONAL LAND BOARD
First Defendant
THE MINISTER FOR LAND AND PHYSICAL PLANNING
Second Defendant
THE SECRETARY DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Defendant
THE REGISTRAR OF LAND TITLES
Fourth Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant
DAN KAKARAYA
Sixth Defendant
Mt. Hagen: Sagu AJ
2011: 23rd February
CIVIL PROCEDURE - costs solicitor- client order 22 rule 65 - no defence undue delay when no defence - negligent conduct - solicitor client cost awarded - change of lawyer no excuse
Cases Cited
Don Pomb Polye v Jimson Sauk Papkai [2000] PNGLR 166
Beecraft No. 20 Limited -v- Minister for Lands and the State (2001) N2125
POSF Board v Sailas Imanakuan (2001) SC677
Island Helicopter Servcies Ltd. Trading as Island Nationair –v- Wilson Sagati, The Director, Civil Aviation Authority and the
State (2008) N3340
Timothy Patrict, Benjamin Demasi, Del Regan, Megan Regan for themselves and on behalf of Dulia Land Group v Pepi Kimas Secretary Department
of Lands and Five Others (2010) N3913
Counsel
Mr. Brooks, for the Plaintiff
Mr. Mapiso, for the First - Fifth Defendants
DECISION ON SOLICITOR-CLIENT COST
23rd February, 2011
1. SAGU AJ: This is a Ruling on the application by the Plaintiff for Cost on a Solicitor – Client basis under Order 22 Rule 65 of the National Court Rules. The 6th Defendant has shown no interest from the commencement of these proceedings and has never appeared. After hearing arguments
from both sides on Costs in September 2010, I had reserved my Ruling which I now hand down.
Introduction
2. The Plaintiff is the registered proprietor of State Lease Section 406 Allotments 12 and 13 Hohola (the Land). However, on the 18th September 2008 the 1st and 2nd Defendants caused notice to be published in the National Gazette purporting to forfeit the State Lease without any issuance of notice to show cause to the Plaintiff. The Defendants cancelled all records of the Plaintiff's interest in the Land and caused notice to be published in the National Gazette of the land as available for tender. The Plaintiff filed for Judicial Review seeking declaratory orders to quash and nullify the Defendants decisions to forfeit the land, their decision to advertise the land as available in the National Gazette, an order directing the Registrar of Titles and the other defendants to register and declare the Plaintiff as the registered proprietor of the land and other related decisions and to have him restore back to his original position.
Background
3. The Plaintiff's father Herman Junus was the registered proprietor of State Lease Section 406 allotments 12 and 13 Hohola (the Land) since November 1995. Mr. Herman Junus died in 2006. The Plaintiff inherited the land through a grant of letters of Administration of the estate by this Court on 21st April of 2008. Meanwhile up to the grant and after the grant of administration of the estate, the Plaintiff implemented his developmental plan on the Land by engaging LJ Hooker to prepare valuation report and East Pact Ltd. to start drainage work on the Land. The Plaintiff paid all outstanding land rents on both allotments 12 and 13 of section 406 (the Land) on the 12 August 2008 to a total value of K2,370. Unbeknown to the Plaintiff, on the 18th day of September 2008, the First Defendant had caused to bepublished in the National Gazette a notice purporting to forfeit the land in both allotments. At this time there was no land rent outstanding. There was no show cause notice issued to the Plaintiff.
4. The Plaintiff became the registered proprietor of the land on 3/10/2010. He engaged contractors to prepare site plans, architectural design and costing to develop the land. The Defendants proceeded to advertise the land on the 13th November 2009. Gadens Lawyers conducted a search on the 17 November 2009 and discovered that all records regarding Firman Junus and his father's interest on the land had been cancelled from the Department of Lands and Physical Planning (DLPP) computer records by the Registrar of Titles. Tender notices dated 13th November 2009 were published in National Gazette No.G255 for the land as available. Further search conducted on 4th December 2009 revealed that Notices for forfeiture of the two allotments (the Land) were published in National Gazette No. G168 as mentioned above.
5. On the 18th December 2009, the Plaintiff filed for Judicial Review of the Defendant's decision to forfeit the land. Leave was granted and interim restraining orders were issued against the defendants from dealing with the Land in any way until this review was determined. The Defendants filed a notice of intention to defend but no defence was filed.
6. The matter was fixed for trial on the substantive issue, however, on the trial date the parties agreed to settle by consent. The Defendants basically consented to all issues raised by the Plaintiff except for the solicitor-client cost. The consent order basically quashed the defendan's decision to forfeit the land and the notice of advertisement for tender and to direct the Registrar of Titles to reinstate the Plaintiff as the Registered owner of the Land, which basically restores the Plaintiff back to his original position prior to the forfeiture notice. The Plaintiff applied for cost on a Solicitor-client basis which was contested by the Defendants.
PARITES SUBMISSIONS
Plaintiff's submission on cost
7. The Plaintiff while acknowledging the final settlement was by consent, submits that he should be entitled to solicitor-client cost on the basis that he had unnecessarily incurred costs due to the Defendants and their solicitor's negligent conduct of this case when they wasted time by causing undue delay when there was no defence available to them, he was unnecessarily caused or put to significant trouble to come to court to protect his interest. The Plaintiff argues that the Defendants consent order came on the day of the trial. He had prepared and completed all that is necessary in the preparation of his witness, affidavits and all necessary documents to bring this matter to trial.
8. Furthermore the Plaintiff argues, that on numerous occasions he had written and attempted to seek an out of court settlement but to no avail. He had also on numerous occasions warned the Solicitor for the Defendants that he would be seeking Solicitor- Client cost if the matter proceeds to trial. The Defendant gave no respond at all. The Plaintiff submits this court should award cost on a solicitor client basis.
Defendants Submission
9. The Defendants contested the application and submit that the final outcome of the substantive cause of action was settled by consent and no trial time was wasted. They further submitted that they did not oppose the leave application in the initial stages. The State Lawyer, however, does concede that the matter could have been settled at the leave application stages. He further submitted that the lawyer who initially had taken carriage of the matter had since left employment of the Solicitor General's office without leaving any proper file brief and counsel in attendance had only recently joined the office after the matter had been fixed for trial. The Defendants submit that the cost should only be considered from the commencement of the proceedings to date of trial which is about a total of nine months and not otherwise.
Law on Solicitor-Cost
10. The Rules relating to Solicitor-Client Cost is provided for under Order 22 Rule 65 of the National Court Rules which reads as follows:-
"65. Personal liability of solicitor for costs
(1) Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a solicitor is responsible (whether personally or through a servant or agent), the Court may, after giving the solicitor a reasonable opportunity to be heard –
(a) Disallow the costs as between him and his client; and
(b) Direct the solicitor to repay to his client costs which the client has been ordered to pay to any other party; and
(c) Direct the solicitor to indemnify any party other than his client against costs payable by the party indemnified.
(2) Without limiting the generality of Sub-rule (1) a solicitor is responsible for default for the purposes of that sub-rule where any proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the solicitor –
(a) to attend in person or by a proper representative; or
(b) to file any document which ought to have been filed; or
(c) to deliver any document which ought to have been delivered for the use of the Court
(d) to be prepared with any proper evidence or account; or
(e) Otherwise to proceed."
11. The Supreme Court in Don Pomb Polye v Jimson Sauk Papkai (2000) PNGLR 166 in discussing the above rule formed the view that it was a restatement of the common law position on solicitors liability and adopted and applied the leading English case of Myers v Elaman (1940) AC 282 1940when it said this:
"The rule may in fact be said to summarize the common law position in relation to a solicitor's liability for wasted cost. The leading decision is that of the English case of Myers v Elaman 1940 Ac 282 which states that in making wasted costs orders the court is exercising a compensatory jurisdiction in cost, rather than a disciplinary jurisdiction over the professional conduct of counsel. The misconduct that may be penalized by such order are the improper, negligent incurring of cost without a reasonable cause, whether by default, negligence or otherwise."
12. The Supreme Court also applied the English case of Holden & Co v Crown Prosecution Service (1990) @QB 262 in saying that:
"there is a punitive element in that the solicitor is having to pay a bill which would otherwise have to be met by one of the parties to the litigation. There is also necessarily an element of deterrence in that solicitors will wish to avoid the expense and adverse publicity that the exercise of the court's jurisdiction entails"
13. The Supreme Court went further and applied yet another English case in Court of Appeal in Ridhalfgh v Hosesfied (1994) ALLER 848 which provides the three tests to be applied in considering the issue of solicitor client cost:
14. In N3340 Island Helicopter Services ltd. Trading as Islands Nation Air v Wilson Sagati Director CIA (2008) Injia DCJ (as he was then) after giving a summary of the decided cases in which the National and Supreme Court have awarded solicitor –client cost provided four categories in which solicitor-client cost can be awarded and I quote:-
"There are many cases in the National Court and Supreme Court in which costs have been awarded on lawyer-client basis in different kinds of cases. These include the following:
(a) Abuse of Court process by invoking Court's review jurisdiction without reasonable cause by pursuing an hopeless application: Polye v Sauk [2000] PNGLR 168; the application for review was filed without basis at all, it was mischievous, unmeritorious and a clear abuse of process: PNG Waterboard v Gabriel M Kama (2005) SC821; or by bringing a proceeding which is vexatious and abuse of Court process: Gulf Provincial Government v Baimuru Trading Ltd [1998] PNGLR 311, Jacob Sarapel v Fred Kulumbu (2003) N2405.
(b) Running a defence case on complete lack of defence, the claim could be settled but which was delayed by the defendant and as a result, caused the plaintiff unnecessary litigation and expenses: POSF Board v Sailas Imanakuan (2001) SC677; or the defendant took a position at the trial when it had no basis on the facts or the law: Benny Balepa v Commissioner of Police (1994) N1374; or where the defendant's conduct in terminating the plaintiff's contract of employment was harsh and oppressive, the defendant had no good defence to the claim, the claim could be settled but the plaintiff was put to unnecessary expense in litigating the claim: Peter Aigilo v Morauta (2001) N2102; or defending a claim by a charitable organization on complete lack of defence: Salvation Army (PNG) Property Trust v Ivar Jorgenson and Rex Vagi (1997) N1644; or wanton, deliberate and unprovoked wrongful assault by the defendant: Alex Latham and Kathleen Marie Latham v Henry Peni [1997] PNGLR 435;
(c) Wilful and deliberate defiance of Court Order: Bishop Brothers Engineering Pty Ltd v Ross Bishop (1989) N705.
(d) The respondents' lawyers failed to appear at the hearing of an Appeal:
Willie Mel v Coleman Pakalia (2005) SC790;
Mision Asiki v Manasupe Zurenuoc (2005) SC797.
15. In this case the Defendant has not produced any real defence other than a notice of intention to defend. There is no defence filed and the Defendants agree to most of the facts in the agreed and disputed facts. They concede that the forfeiture of the lease was illegally carried out contrary to section 122 of the Land Act.
16. If there was no real defence then why did it allow the Plaintiff to proceed this far to prepare to bring the proceedings to trial. The case of Beecraft No. 20 Limited -v- Minister for Lands and the State (2001) N2125, is a case on point where the Plaintiff's land was found by the court to be illegally forfeited contrary to section 122 of the Land Act. The court ordered cost in indemnity on the basis that there was no legal defence, and the defendant had allowed the proceedings to trial. It was held that the Defendant had no basis either in fact or law to issue the forfeiture notice.
17. This case fall into the second category where the defence had given notice to defend when there was a complete lack of defence established in POSF Board v Sailas Imanakuan (2001) SC677. The claim could have been settled quickly but for the defendant's delay which caused the Plaintiff unnecessary litigation and expense. The contention by the defendant that the matter did not proceed to trial is displaced particularly in that the defendants had no defence either in fact and had they exercised due diligence in the conduct of the case they would have been able to settle early without causing the plaintiff to incur unnecessary cost in the preparation for trial. They Plaintiffs were prepared up to trial day when the defendants agreed to settle by consenting to almost all issues sought by the Plaintiff except for cost.
18. The Plaintiff after the grant of leave on numerous occasions as disclosed on the statement of agreed and disputed facts attempted to reach an outside settlement and further warned the Defendant of their intention to seek indemnity cost if the matter proceeds to trial. This fact is not disputed by the defendant. Furthermore, the file notes indicate that the Defendants failed to comply with the court order of 10th June 2010 requiring both parties to file their affidavits they propose to rely on during trial.
19. I do not accept the defendant's reason that there was a change of lawyers who had carriage of the case having left the office without proper brief. While I appreciate the lawyer having the carriage of the case today has only recently joined the Solicitor Generals Office, he is an employee on the Solicitor General who is on record as the Lawyer for the First-Fifth Defendants. Whether there is a change of the lawyer in employment in that office as to who and at what stage one takes carriage of a file does not relief the Solicitor General from consequences resulting from his employed lawyers negligence in the conduct of any cases. It is the solicitor's employer's responsibility as part of his administrative duty to ensure that his employed lawyers exercise due diligence in the conduct of the case files allocated to him or her.
20. The Defendants solicitor did almost nothing to close of the file when there was no defence either on facts or law. He did not decide to determine or close the case under those circumstances but kept it active without useful progress. Under such circumstances the Solicitor acted improperly and was negligent. This resulted in the plaintiff incurring unnecessary costs to prepare its case up to the trial day. The First to the Fifth Defendants are responsible.
21. For all the above reasons I have discussed, I hold that the defendant's Lawyer acted improperly, and was unreasonable and negligent in that they did not have a defence and could have settled but the undue delay by them caused the plaintiff unnecessary litigation and expense. In all the circumstances, I grant the Plaintiff's application and order that the First to the Fifth Defendants bear the costs on an indemnity basis from the time of the filing of the originating summons. I make no order for cost against the sixth defendant as he was never interest from the beginning.
22. Before I close I wish to make mention of the appropriate procedural requirement in making an application under Order 22 Rule 65 developed by this Court in the case of The National Court in Island Helicopter Services Ltd. Trading as Island Nationair –v- Wilson Sagati, The Director, Civil Aviation Authority and the State (2008) N3340 which ruled that such an application should be brought by proper pleading by the filing of a motion with supporting affidavit with service and sufficient notice and warning to the other party. It went further to say that an order under the rule is a serious matter with adverse effect on the lawyer and that he or she must have an opportunity to be heard. However, the court also observed that there are those situations where the court is aware after parties having appeared before it that it may proceed on the basis of an oral application.
23. I also note that a differing view is expressed in Timothy Patrick, Benjamin Demasi, Del Regan, Megan Regan for themselves and on behalf of Dulia Land Group v Pepi Kimas Secretary Department of Lands and Five Others (2010) N3913 where Gavara-Nanu J forms the view that the requirement of such a application by motion would attract other processes relating to motion to the extend where it may be open to filling cross-motions with supporting affidavits and so on.
24. This application for cost was made orally from the bar table after the parties agreed to settle by consent but for the issue of cost. The parties appeared on trial day and a short adjournment was granted by the parties consent as they anticipated a real possibility of an outside settlement by consent. On return the parties advised that the matter was settled by consent except for issue of the solicitor-client cost sought by the Plaintiff. The Plaintiff then made its oral submission for cost which the Defendants contested.
25. The oral application was allowed to proceed on the basis that the Plaintiff had provided sufficient warning to the Defendant of its intention to apply for solicitor –client cost as disclosed in the agreed and disputed statement of facts and further more the defendants do not dispute any facts nor the law.
_________________________________
Gadens Lawyers: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2011/11.html