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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 729 OF 2016
BETWEEN
AMICUS LEGAL LIMITED trading as MAKAP LAWYERS
Plaintiff
AND
HONOURABLE FRANCIS POTAPE
Defendant
Waigani: Linge AJ
2021: 6th December
PRACTICE AND PROCEDURES - Bill of Costs - Objections to Taxation - Non-Compliance with Court Order - Scale of Costs - Application for Dismissal.
COST - Bill of Costs - Taxation of Costs - Certificate of Taxation-Objections to Taxation-Compliance with Order 22 Rule 49 of the National Court Rules.
Facts
Amicus Legal Limited t/a Makap Lawyers sued for unpaid professional legal fees in the sum of K 128, 138.00 it claims is owed to it by Honourable Francis Potape. It obtained summary judgment on liability for that amount however, the Court ordered and referred the matter to the Registrar for Taxing provided the bill of costs is in taxable form. It prepared a bill of costs which Francis Potape objected to for not being in taxable form and for non-compliance with the court order and thus seeks the Court to dismiss or in the alternate struck out the bill of cost.
Held
2. The Revised Bill of Costs does not contain the detailed nature of the work done, the necessity and the complexity of that work, time taken and fees charged and the seniority of the lawyer who did the work.
3. By reason of not in taxable form, it renders the purported bill of costs no bill of costs for the purposes of the Lawyers Act.
Cases Cited:
Papua New Guinea Cases
Belden Nemi v Nokondi Investments Limited [2012] N861
Willie Lalai v Andrew Munana [2017] N6973
Freddy Kave v Fred Yakasa [2014] N5692
Vivso Seravo v Jack Bahafo [2001] N201
John Naile v Sepik Coffee Producers Limited & ors [2004] N2637
Aundak Kupil v the State [1983] PNGLR 350
Emmanuel Solwai Mambei v Johny J Yawari (2017) N6950
Trinity Grammar School v Henry Bale Tomai (2018) N7819
GR Logging Ltd v Pulie Anu Timber Company Ltd (2018) N7600
Jack Livinai Patterson v National Capital District Commission (2001) N2145
Kalinoe v Paul Paraka Lawyers [2014] PGSC 38; SC1366
Overseas Cases
Hordkinson v Hordkinson [1952] A11 ER 567
Counsel:
Mr. L. Yagro, for the Plaintiff
Mr. J. Yawale, for the Defendant
RULING ON MOTION
13th December, 2021
1. LINGE AJ: The Defendant filed a Notice of Motion on the 15 November 2021 seeking dismissal of the entire proceeding for want of prosecution in complying with Terms 3 and 4 of the Court Order of 3 April 2018 pursuant to Order 10 Rule 9A (15) (1) (a) and (2) (c) or Order 4 Rule 36 (1) of the National Court Rules.
2. Orders 3 and 4 of the Court of 3 April 2018 are:
“3. The plaintiff shall amend the bill of costs to taxable form in compliance with Order 22 Rule 49 of the National Court Rules.
4. Following compliance with above order 3, the Plaintiff shall apply for taxation pursuant to the National Court Rules.”
3. In the alternate, the Defendants seeks orders pursuant to Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution that the Plaintiff’s Revised Bill of Costs filed on the 10 July 2018 be struck out for want of form in failing to comply with Order 22 Rule 49 and Schedule 2, Table 1, Scale of Costs of the National Court Rules.
4 I heard the Motion on the 2 December 2021, and this is my Ruling. Counsel for the applicant Francis Potape and counsel for respondent, Amicus Legal Limited trading as Makap Lawyers appeared and made submission.
The Facts
5. The Plaintiff commenced this proceeding on the 2 July 2016. It is a claim for alleged unpaid professional legal fees of K128,138.00
incurred by the Plaintiff for representing Francis Potape in the following proceedings before instructions were withdrawn:
(i) CN No.1156 of 2011: Police v Francis Potape;
(ii) CN No. 1157 of 2011: Police v Francis Potape;
(iii) CR No. 376 of 376 of 2012: State v Francis Potape;
(iv) MP No. 254 of 2012: Francis Potape v The State; and
(v) OS No. 212 of 2013: Francis Potape v The State.
6. Francis Potape was served with Bill of Costs in the amount of K 128, 138.00 on or about the 12 September 2014 after he withdrew instructions to the Plaintiff legal firm to represent him.
7. The Plaintiff also filed WS 1053 of 2014, Optimum Management (PNG) Ltd trading as Makap Lawyers v Honorable Francis Potape, essentially claiming the same alleged professional legal fees. That proceeding was withdrawn at the Summary Determination hearing in 2015 with costs awarded to the Defendant which remains unpaid.
8. The Plaintiff issued this proceeding by filing the Writ of Summons endorsed with a statement of claim on the 2 July 2016.
9. The Defendant exclusively deny owing the Plaintiff the amount pleaded in the Statement of Claim and protested that the fees charged as contained in the Bill of Costs is not properly timed charged, vague, and unreasonably excessive and most importantly not in compliance with the Lawyers Act and Order 22 Rule 49 of the National Court Rules.
10. Based on the foregoing, the Defendant filed application for dismissal for disclosing no reasonable cause of action which was refused on the 1November 2016, and on the 2 May 2017, the Plaintiff obtained Summary Judgment on liability for fixed sum of K128,138.00 which was entered against the Defendant and matter referred to the Registrar for Taxation of the Plaintiffs Bill of Costs in Taxable form.
11. Following the Court Order of 2 May 2017, the Plaintiff prepared and filed his Revised Bill of Costs purportedly in Taxable form to which on the 8 June 2017 the Defendant filed his Objection to Taxation.
12. The Plaintiff’s Revised Bill of Costs went for Taxation by the Taxing Officer ex-parte on the 4 December 2017, where the Taxing Officer, after tax, allowed a sum of K97,427.00 as certified costs. The Certificate of Taxation was issued on the 6 December 2017.
13. The Defendant was dissatisfied with the certified taxed costs of K97,427.00 and filed application to review the Taxing Officer’s decision as required under Order 22 Rule 60 of the National Court Rules.
14. On the 3 April 2018, the Defendant’s Review application was upheld, and the Plaintiff’s Certificate of Taxation filed on the 6 December 2017, was set aside. The Court also ordered as per Terms 3 and 4 as follows:
“3. The plaintiff shall amend the bill of costs to taxable form in compliance with Order 22 Rule 49 of the National Court Rules.
4. Following compliance with above order 3, the Plaintiff shall apply for taxation pursuant to the National Court Rules.”
15. The Plaintiff filed its Revised Bill of Costs on the 10 June 2018 as required by Terms 3 and 4 of the set aside Order of 3 April 2018. However, the Defendant considered that the Revised Bill of Costs does not comply with Order 22, Rule 49 of the National Court Rules which entails taxable form to be consistent with Schedule 2, Scale of Costs of the National Court Rules.
16. On the 28 July 2021 Defendant filed its Objection to the plaintiff’s Revised Bill of Costs based on failure by the Plaintiff to comply with the National Court Rules and the Lawyers Act.
Hearing of Motion
17. The application came before me on the 2 December 2021, and ground for the application is to dismiss for want of prosecution in failing to comply with Terms 3 and 4 of the Court Order of 23 April 2018.
18. The Defendant relies on Order 10 Rule 9A (15 (1) (a) and 2(c) and or Order 4 Rule 36(1) of the National Court Rules.
19. In the alternate, pursuant to Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution that the Plaintiff’s Revised Bill of Costs filed on the 10 July 2018 be struck out for want of form in failing to comply with Order 22 Rule 49 and Schedule 2, Table 1, Scale of Cost of the National Court Rules.
Applicant’s/Defendant’s case
20. The Applicant/Defendant relies on the Affidavit of Junior Yawale filed on the 15 November 2021. He contends that even though the Respondent/Plaintiff prepared the Revised Bill of Costs purportedly following the 3 April 2018 Court Order, the Revised Bill of Costs is not in compliance with the said Court Order in as far as not in taxable form required by Order 22 Rule 49 of the National Court Rules in particular with Schedule 2, Table 1, Scale of Costs of the National Court Rules.
21. On the 28 July 2021 the Defendant/Applicant filed his Objection to the Revised Bill of Costs alleging the failure of the Plaintiff/Respondent to comply with the National Court Rules and Lawyers Act 1986, ch. 66.
22. Taxing of the Bill of Costs did not eventuate for some time and on the 19 October 2021, lawyers for parties attended at the Taxing Office only to be advised by the taxing clerk that none would take place due to the unavailability of the Taxing Officer. Parties advised the Taxing Clerk that the Plaintiff would file a Reply and the Defendant would file application for dismissal of entire proceedings for want of prosecution for failure to comply with the Order of 3 April 2018.
23. On the 19 October 2021, the Defendant/Applicant received an Affidavit in Response from the Plaintiff, but he contends that it is not a proper Reply to his Objection as the affidavit basically declare that the Defendant did not file his Objection to Taxation of the Revised Bill of Costs, which the Defendant/Applicant refutes.
24. The crux of the Defendant’s/Applicant’s case is that the Revised Bill of Costs does not conform with Order 22 Rule 49 of the National Court Rules in particular with Schedule 2, Table 1, Scale of Costs of the National Court Rules.
25. Also, the Revised Bill of Costs has no significant changes to what has been filed earlier and remains in non-taxable form thus rendering it unacceptable for taxing by the Taxing Officer.
Plaintiff’s/Respondent’s case
26. The Plaintiff/Respondent refers to the Affidavit of Junior Yawale of the Defendant/Applicant, filed on the 15 November 2021 as the evidence summarizing what transpired in the taxation process.
27. He also relies on his affidavit filed on the 24 November 2021 to which he attached and marked as Annexure “A” a copy of the Decision from the Taxation Master dated the 10 November 2021. Paragraph 2 of Annexure “A” reads, “After my examination of the content of the documents filed so far, I note the following:
1. There is an initial decision made by the court for costs the subject of these taxation proceedings.
2. A bill of costs was filed, and a decision being made on the bill and Certificate of Taxation (COT) issued.
3. A review was filed against the decision by taxing officer which review was upheld.
4. A second court order ordered that plaintiff to file a revised bill of costs and to be taxed.
5. After considering the above against the documents on foot, I am of the view that the revised filed later does not conform with the rules of the court.
6. There is no significant change to what has been filed earlier and want of forms as required (by) rules.
7. On that basis, I am giving the opportunity for plaintiff to amend and file a bill as per the court order.
8. This can be done 7 working days from today.
9. Should the plaintiff decides that the revised bill filed is sufficient to proceed, then it must be responded in writing within the 7 days.
10. I will proceed and issue my decision thereon.
11. The respondent can file a review after my decision on taxation is made.
28. He deposes that the taxation matter came before the Taxing Officer Nickson James on the 19 November 2021 wherein the Taxing Officer decided inter alia that the plaintiff be given seven (7) days to amend and file the Bill of Costs as per the Court Order of 3 April 2018.
29. He says that instead of the defendant allowing parties to take this approach, the Defendant went ahead and filed this application seeking to have the matter dismissed for want of prosecution knowing full well that the Taxation process has not been completed.
Submission by Defendant / Applicant
30. Counsel for the Defendant/Applicant points out that the Court’s jurisdiction under Order 4 Rule 36 (1) and Order 10, Rule 9A (15) (1) (a) and (2) (c) of the National Court Rules are similar. He submits that the Court has jurisdiction to dismiss for want of prosecution for breach of or non- compliance with an order or direction of the Court.
31. He cites and relies on the following cases in support of the first limb of the ground for dismissal for want of prosecution. I
will consider these cases and the specific legal propositions relied on therein in my legal summary at the later part of my ruling.
(1) Belden Nemi v Nokondi Investments Limited [2012] N861.
(2) Hordkinson v Hordkinson [1952] A11 ER 567.
(3) Willie Lalai v Andrew Munana [2017] N6973.
(4) Freddy Kave v Fred Yakasa [2014] N5692.
(5) Vivso Seravo v Jack Bahafo [2001] N201.
(6) John Naile v Sepik Coffee Producers Limited & Ors [2004] N2637.
32. In further support of the first limb of the Defendant’s/Applicant’s application, Counsel addressed the five (5) mandatory preconditions enunciated in Viviso Seravo’s case (supra) and added to in John Naile’s case (supra)which he submits must be satisfied:
(1) The Plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim.
Firstly, the Plaintiff’s default is so intentional and unreasonable. The Plaintiff’s Lawyers was present at the material time when the Order was made, specifically to amends it’s Bill of Cost in Taxable Form. Hence, the current Revised Bill is identical and or copy paste to the previous Bill of Cost, subject of the Certificate of Taxation issued on the 6 December 217 which was refused by the Court.
Further, it is almost 40 months, 15 days (3 years 4 months) since the filing of the Revised Bill of Cost and the Plaintiff had not taken any steps to amend same, specifically to ensure it complied with Order 22 Rule 49 of the National Court Rules. Instead, the Plaintiffs’ after filing the Revised Bill of Cost on 10 July 2018 and after numerous adjournments insist for the taxing officer to proceed with Taxation of the incompetent Bill.
(2) There is no reasonable explanation given by the plaintiff for the delay.
There is no reasonable explanation given by the Plaintiff for the delay in non-compliance with terms 3 and 4 of the Court Order dated 3 April 2018. In all the correspondences exchanged between the parties, the Plaintiff was silent on what steps he is taking to amend his Revised Bill of costs to ensure compliance with the Court Order before taxation would commence.
(3) That the delay has caused injustice or prejudice to the defendant.
The delay has caused the defendant great injustice and prejudice in that he had been constantly attending and defending both litigation and taxation proceedings since the filing of the proceeding to this date, a period of three (3) years, four (4) months.
The Applicant had also paid the Plaintiff its legal fees of K12,798.10, which is sufficiently enough to pay off the Plaintiff legal fees during the Criminal Proceeding. To that extent, the Plaintiff did not appreciate the Defendant efforts and instead persist with taxation proceeding. Thus, valuable time and resources have been used and exhausted.
Further, the Applicant Judgment Sum of K11,259.60 in the related proceeding of WS 1053 of 2014, which was instituted prior to this case, had also not been settled by the Plaintiff, while the Applicant is still defending the Plaintiff claim diligently.
(4) The Court should specifically look at the conduct of the parties and their lawyers.
The conduct of the plaintiff is so unreasonable and deliberately done to put the Defendant to too much pain and trouble in defending. Clearly, the Plaintiff has defaulted to comply with the court order dated 3 April 2018 and to this date, no proper or convincing reasons given. The Plaintiff’s must be solely blamed for their own conduct.
(5) The duty of the Court to give paramount consideration to the dispensation of justice.
In the interest of justice, and in light of the above submission, the whole proceeding should not stand, as the conduct of the Plaintiff is so unreasonable, and the delay so intentional with no reasonable explanation given which in effect had caused the Applicant prejudice in terms of cost and time in defending same.
33. Furthermore, Francis Potape’s Counsel submits that Term 3 and 4 of the Court Order of the 3 April 2018, requires the Plaintiff to amend its Bill of Costs in taxable form pursuant to Order 22 Order 49 of the National Court Rules and upon compliance, shall apply for taxation. It follows that as per the Rule, the Plaintiff should be guided by the Second Schedule, Table 1, and Scale of Costs and in so doing would effectively comply with the Court Order.
34. Instead, on the 10 July 2018, the Plaintiff filed the same Revised Bill of Cost; the subject of the Certificate of Taxation issued on the 6 December 2017 which was refused by the court on 3 April 2018. He submits that it is a mere, copy paste of the previous Bill of Cost filed on the 25 May 2017.
35. Counsel submits that the crux of his client’s case is that the Revised Bill of Cost filed on the 10 July 2018 is not in compliance with the Order dated 3 April 2018 specifically Terms 3 and Terms 4.
36. The failure and inability by the Plaintiff /Respondent to revise his Bill of Costs and as highlighted in the Defendant’s/Applicant’s Objections is a clear non-compliance with National Court Rules and Lawyers Act. Counsel for the Francis Potupen submits that the proceeding must be dismissed upon establishments of this material non-compliance.
37. Accordingly, Counsel submits that the Defendant/Applicant has satisfied the conditions justifying the granting of the first arm of the relief sought in the Notice of Motion and consequently, this proceeding must be dismissed for want of prosecution in failing to comply with the Court Order dated 3 April 2018.
38. In the alternate, Counsel submits that should the first leg of the Applicant’s/Defendant’s application be not sustained, which he does not concede, he will proceed to the next issue to assist this honorable court to determine whether the entire proceeding shall stand or be dismissed.
Submission by the Plaintiff/ Respondent
39. The Plaintiff did not make any submission in respect of the first limb of the Defendant’s/Applicant’s application.
Consideration of the First Limb
40. The Law in relation to dismissal for want of prosecution in the context of Order 4 Rule 36 of the National Court Rules (Rules) is settled. In Viviso Seravo’s case (supra) Kandakasi J in 2001 held that the principles governing want of prosecution under Order 10 Rule 5 of the National Court Rules apply to Order 4 Rule 36.
41. The case established 3 preconditions that an application for dismissal of proceeding for want of prosecution must satisfy:
(1) The Plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim.
(2) There is no reasonable explanation given by the plaintiff for the delay.
(3) That the delay has caused injustice or prejudice to the defendant.
42. In 2004 Judge Cannings in his ruling in John Naile’s case (supra) added 2 more preconditions to those in the Viviso Seravo’s case and these are:
(4) The Court should specifically look at the conduct of the parties and their lawyers.
(5) The duty of the Court to give paramount consideration to the dispensation of justice.
43. The National Court has consistently applied the 5 preconditions equally to the Court’s jurisdiction under Order 4 Rule 36 (1) and Order 10, Rule 5 of the National court Rules. I apply the same 5 considerations to this case and endorse the submissions by the Defendant’s/Applicant’s Counsel in respect of same
44. As to application of the same principles to application for dismissal pursuant to Order 10 Rule 9A 15 (2) (a) and (c) of the Rules it must be noted that Order 10 Rule 9A 15(2)(a) and (c) are part of the Listing Rules of 2005 and empower the Court on its own initiative or by application determine or summarily dispose of a matter for various situations listed therein.
45. In the case of Belden Memi v Nokondi Investment Limited (supra), a case which invoked Order 10, Rule 9A (15)(2) (c) where the lawyer for the defendant failed to comply with court directions to endorse and forward the pleading book within the 14 days to the plaintiff’s lawyer, judgment in default was entered against the defendants.
46. The case of Hodkinson v Hodkinson (supra) which is referred to in Belden Memi’s case by the Defendant places an obligation on any person against whom the order is made to obey such order unless and until the order is discharged.
47. In Freddy Kave’s case (supra) Murray J, even though she dismissed the application for non-compliance with Court Order, she observed that the terms of Order 10 Rule 9A 15 (2) (a) and 2 (c) are almost in the same terms as Order 4 Rule 36 of the National Court Rules and consequently the principles discussed in Order 4 Rule 36 are appropriate.
48. A similar ruling was made in the Willie Lalai’s case (supra) where the National Court per Justice Polume Kiele at paragraph 20 stipulates, “All orders or directions are to be obeyed by all parties who seek redress through the court and applies to all persons to whom the orders or directions relates. Whether or not a party accepts or likes the order, it is an order of a court and remains in force. It must be obeyed until discharged.”
49. I have considered the Court’s jurisdiction contained in Order 4 Rule 36 (1), Order 10 Rule 5 and Order 10, Rule 9A (15) (1) (a) and (2) (c) of the National Court Rules to be co-joint and having similar outcomes.
Consideration of the Second Limb
50. While I consider this application may be dismissed and or determined under the first limb of Notice of Motion filed on the 15 November 2021, I am equally satisfied that entry of judgement may be ordered in the context of the second limb of the said application especially when parties have made submissions accordingly.
51. Order 12, Rule 1 of the National Court Rules
General relief (40/1)
“The Court may, at any state of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.”
52. Section 155 (4) of the Constitution reads:
“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”
53. Order 12 Rule 1 of the Rules vests to the National Court’s general powers to make Orders at any stage of the proceedings as the nature of the case requires. Section 155 (4) of the Constitution, on the other hand, enables the National Court to tailor its remedies to the circumstances of an individual case to ensure that the primary rights of a party are protected where “necessary to do justice in the circumstances of the case”: Aundak Kupil v the State [1983] PNGLR 350, judgement of Bredmever J.
54. In Trinity Grammar School v Henry Bale Tomai (2018) N781019, Davani J, discussed clearly in her interlocutory ruling at para [13] that:
“It is settled law that Section 155(4) is not the source of primary jurisdictional power and can only be relied on to protect primary rights of parties where there is a vacuum in law that had to be filled or in the absence of other relevant law”.
55. Hence, the combine effect of Order 12, Rule 1 and Section 155(4) of the Constitution is that it gives a party right or a remedy where there is no clear jurisdictional basis to enforce such rights under the Laws or the Rules. However, the Rule and Section should not be relied upon where there is a Rule that specifically gives jurisdiction to the court to grant the relief sought: GR Logging Ltd v Pulie Anu Timber Company Ltd (2018) N7600.
56. In Emmanuel Solwai Mambei v Johny J Yawari (2017) N6950, the Court dealt with a similar application premised on Order 12 Rule 1 and Section 155(4) of the Constitution, to have the Applicant’s Bill of Cost and the Certificate of Taxation issued thereto be struck out for want of form and failure to comply with Section 62(4) (a) (i) and (ii) of the Lawyers Act 1986. That is that the Applicant’s Bill of Cost was not signed by the Applicant before submitting for taxation and subsequently, issuing of the Certificate of Taxation. Hartshorn J. inter alia, at Para [24] struck out the bill of cost and with cost.
Defendant’s /Applicants Submission
57. Counsel for Francis Potape submits that the Plaintiff should file a fresh MP proceeding as a matter of course, to claim for its cost of all the proceeding and not to resurrect the current proceeding which deems to be completed when the Orders were made both on the 2 May 2017 and 3 April 2018.
58. Counsel also submit that the Plaintiff’s Revised Bill of Cost stemmed from the Court Order of 3 April 2018 which requires the plaintiff to prepare its itemized Bill of Cost strictly based on Order 22 Rule 49 and the Schedule 2, Table 1, Scale of Cost of the National Court Rules.
59. In Jack Livinai Patterson v National Capital District Commission (2001) N2145, Kandakasi J (as he then was) discussed Order 22, Rule 49 of the National Court Rules in the following: “Rule 49 of that Order provides that a bill of costs must contain particulars of the work done, by the lawyer whose bill it is, his servant or agents together with disbursements and the amount of costs claimed for each item. Sub-rule 2 of this rule provides that, each item of costs or disbursements must be set out separately in separate columns with provisions for tax offs and allows.”
60. The National Court in Kalinoe v Paul Paraka Lawyers [2014] PGSC 38; SC1366 (10 July 2014) at paragraph 33 states:
“(2) The bill of costs in taxable form must give sufficient details of the kind or nature of work down, the necessity for that, time taken, and the fees charged. Anything falling short of that renders a purported bill of costs no bill of costs for the purposes of the Act and lawyer to sue upon.”
61. Counsel for Francis Potape submits that the current Revised Bill of Cost is out of context and contrary to Order 22, Rule 49 and Schedule 2, Table 1, Scale of Cost and the established cases authorities. That is, the Revised Bill of Costs does not contain the detailed nature of the work done, the necessity and the complexity of that work, the seniority of the lawyer who did the work. Consequently, the bill of costs falls short or failed to meet the mandatory requirements, and so it is not a Bill of Cost within the ambit of Order 22 Rule 49 of the National Court Rules.
62. Accordingly, Counsel for the Defendant/Applicant submits that the Bill of Cost is bad in form and must be struck out with cost pursuant to Order 12 Rule 1 of the National Court Rule and Section 155(4) of the Constitution.
Plaintiff’s/ Respondent’s Submission
63. Plaintiff submits that even if there is a fresh Objection to Taxation being filed, it will be in similar contexts; capturing issues already raised in the initial Objections to Taxation which have been exhaustively heard and determined by the Court.
64. The Defendant submits that the application by the Defendant is premature and an abuse of process and be dismissed.
65. He submits also that the matter has been dealt with and there is no basis for the matter to be dismissed and that the process of taxation be allowed to be completed as per the decision of the Taxation Master.
Findings
66. I have considered submissions of Counsels in respect of both limbs of the application and while the Defendant/Applicant is at liberty
to have the matter dismissed for want of prosecution, or summarily disposed or determined for non-compliance, it is my considered
view that the Bill of Costs including the Revised version is bad in form against Order 22 Rule 49 and the Schedule 2, Table 1, Scale
of Cost of the National Court Rules.
67. Even the Taxing Officer holds the view that the bill of costs is not in conformity with the rules of court. He states at paragraph
4, 5 and 6 of his Decision of 10 November 2021 in the following:
“ 4. A second court order ordered that plaintiff to file a revised bill of costs and to be taxed.
68. It is clear from the case authority cited that a bill of costs that fall short and not in taxable form, renders that purported bill of costs no bill of costs for the purposes of Order 22, Rule 49 and Schedule 2, Table 1, Scale of Cost of the National Court Rules and Section 62 (4) (a) (i) and (ii) of the Lawyers Act 1986.
69. In the exercise of the Court’s inherent and discretionary power pursuant to Order 12 Rule 1 of the National Court Rule and Section 155(4) of the Constitution, I rule accordingly.
70. I order that:
2. Costs be in the cause.
3. Time is abridged.
__________________________________________________________
Amicus Legal Limited t/a Makap Lawyers: Lawyers for the Plaintiff
Haiara’s Legal Practice: Lawyers for the Defendant
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