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Miro v Secretary Department of Justice & Attorney General [2021] PGNC 450; N9208 (23 September 2021)

N9208

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 777 OF 2012


BETWEEN:
LUCY MIRO
Plaintiff


AND:
SECRETARY DEPARTMENT OF JUSTICE & ATTORNEY GENERAL
First Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Miviri J
2021: 23rd September


PRACTICE AND PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 22 Rule 60 (1) (2) & (3) NCR – Section 155 (4) Constitution –Certification and Taxed Costs – Set Aside K 115,028.65 – Order for Conduct Anew of Taxation – Non Compliance of Order 22 Rule 49 (1) (2) (3) & (4) & Rule 46 (1) NCR – Bill of Costs Be Struck Out Order 2 Rule 30 NCR – Material relied Sufficient – Original Order for Costs 25 September 2013 Set Aside – Motion granted to review – cost follow event.


Cases Cited:

Hasifangu v Mauludu [2021] PGNC 53; N8796

Kumbu v Mann [2018] PGNC 50; N7126


Counsel:


No appearance for Plaintiff
J. Kerenge, for Defendant

RULING

23rd September, 2021

  1. MIVIRI, J: This is the Ruling on the defendant’s notice of motion pursuant to Order 22 Rule 60 (1) (2) and (3) of the National Court Rules, “the Rules” to set aside the amount of K 115, 028. 65 of the 14th March 2021 and for parties to be ordered to conduct taxation before another taxing Officer.
  2. Alternatively, the certificate of taxation in the amount of K 115, 028. 65 be set aside pursuant to Order 12 Rule 1 for noncompliance of Order 22 Rule 49 (1) (2) (3) and (4) and Rule 46 (1) of the National Court Rules and bill of Costs be struck out from the Court file.
  3. Further that the certificate of taxation for the amount of K 115, 028. 65 be reviewed and set aside pursuant to Order 12 Rule 1 of the National Court Rules and the application for taxation and the Bill of Costs be struck out for noncompliance of Order 2 Rule 30 of the National Court Rules and Section 155 (4) of the Constitution.
  4. Leave was granted on the 10th August 2021 to review. This is the substantive application in simple for reviewing the bill of costs anew. At todays hearing despite all parties in attendance on the 2nd September 2021 when the matter was initially set for today, there is no appearance by the plaintiff. It is not as if he is now aware of todays hearing so that he is prejudiced in his non-appearance. The records speak his attendance. It is a long outstanding matter that must be dealt with. There are no materials in addition that which are on the record of the proceedings.
  5. Here the defendant place reliance on the affidavit sworn 18th August 2021 filed 19th August 2021 by Lawyer Jacob Kerenge. He is a lawyer employed in the office of the Solicitor General team Leader of the taxation team. The subject taxation was conducted by the taxing Officer without the presence of the defendants by their lawyers. And the subject bill of costs did not conform to the requirements set out by Order 22 Rule 49 (1) (2) (3) (4) which is in the following terms:

49. Bill. (52/49)

(1) A bill shall contain particulars of—

(a) the work done by the lawyer, his servants, and agents; and

(b) the disbursements made; and

(c) the costs claimed for the work done.

(2) In every bill the professional charges shall be entered in a separate column from the disbursements, and every column shall be cast before the bill is left for taxation.

(3) Where it is a clerk who does any work included in a bill and that fact is relevant to the amount of costs allowable for the work, the name and position of the clerk shall be stated in the bill.

(4) Where a liability to make a disbursement has been incurred or a fee to counsel has been incurred and the disbursement or fee would be properly included in a bill if paid—

(a) the disbursement or fee may be included in the bill notwithstanding that it has not been paid; and

(b) the bill shall state that the disbursement or fee has not been paid; and

(c) subject to Sub-rule (5), on taxation, the disbursement or fee shall not be allowed unless Paid before the taxation is completed.

(5) Sub-rule (4)(c) shall not apply where, in proceedings under the Matrimonial Causes Act 1963, on taxation of a bill of a female petitioner or respondent, her lawyer gives a written understanding to the Registrar that all or any fees or disbursements in that bill will be paid by the lawyer out of the first money received by or on behalf of his client in payment of the costs allowed.

(6) The Court or the taxing officer may give leave, on terms, for the amendment of a bill.

(7) A bill must be endorsed with—

(a) the name or firm and business address of the lawyer whose bill it is; and

(b) if the lawyer is the agent of another, with the name or firm and business address of that other lawyer.”

  1. The defendant argues that this is a party/party costs and should not exceed what is set out above. That it is excessive because there is no column for disbursements and all work was billed at a lawyer’s rate, there is no distinction between paralegal or clerical work in the bill. It is lumping all into a lawyer’s rate which is not allowed by the rules set out above. The State was not in attendance at the initial hearing and the amount of K 800 is not within the authority of Counsel representing the State to concede to any order if any. There is no real distinction in the bill made on the basis of what skills are used. Because there is skilled and professional work that a lawyer does as oppose to a Clerk. And there is difference in the amount that is charged pursuant. The Reasons in taxation annexure “C” to the affidavit of the lawyer does not show this out.
  2. It further supports the motion showing that there are drafts to documents that are billed with their costs set out. These are set out from page 1 of the Plaintiffs bill of Costs and run over the second page right to the end page in similar fashion. It is clear documents are charged over as drafts a number of times and then as the final to that document. Which is clear that the mistake of the lawyer should not be the subject of charges or payments. That is not by the rules set out above. It is in similar vein in a number of pages within the same documents are recharged over and over which is acknowledged by the taxing master in his reasons. He does not disclose the attendance of the parties in the taxation.
  3. It cannot for that reason amount to hearing from both sides in the matter. And this is borne out by the bill itself. There is clearly no difference between what an ordinary clerk does and what a lawyer is to have done so as to difference accordingly. It is clear it is a blanket effect summed at the end. That is not in compliance of the rules set out above which calls clearly for separation in the figures according to who discharges. It means the figures arrived at the end do not stand and cannot be allowed in its form against the defendants. The certification must be set aside to ensure the rules are complied with. To allow it in its present form will contravene the rules set out above.
  4. And it is clear overt noncompliance on the record itself of Order 22 Rule 49 (1) (2) (3) (4) of the Rules. This evidence warrants that pursuant to Order 12 Rule 1 of the National Court Rules, the application for taxation and the Bill of Costs is struck out for noncompliance of Order 2 Rule 30 of the National Court Rules and Section 155 (4) of the Constitution fulfills despite a certificate issued after taxation which cannot stand. And this court has in similar circumstances recalled for reassessment and taxation in similar circumstances: Hasifangu v Mauludu [2021] PGNC 53; N8796 (16 April 2021) and also in Kumbu v Mann [2018] PGNC 50; N7126.
  5. It is not signed and accepted especially where it is the Office of the Solicitor General, there is no express authority in writing by the Solicitor General as to witnessing acknowledging the contents of the bill as emanating from the subject proceedings, giving effect to order 2 rule 30 of the Rules. And therefore of heed in law and the rules. The aggregate is that the application has been made out in the terms of the notice of motion. It is granted as pleaded by that notice of motion of the 18th August 2021 filed the 19th August 2021.
  6. The formal orders of the court are:

Orders Accordingly.

__________________________________________________________________

Kipes Law: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants

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