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Independent State of Papua New Guinea v National Lands Commission [2023] PGNC 120; N10239 (28 April 2023)

N10239

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 671, 673, 675, 676, 677, 707, 708, 709, 711 OF 2014


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Applicant


V
NATIONAL LANDS COMMISSION
First Defendant


AND
NATHANIEL MARUM SITTING AS THE COMMISSIONER NATIONAL LAND COMMISSION
Second Defendant


AND
DOUBLE U SQUARE CONSULTANCY SERVICES LTD
Third Defendant


AND
THADEUS KAMBANEI SECRETARY FOR DEPARTMENT OF FINANCE
Fourth Defendant


Waigani: Miviri J
2023: 21st & 28th April


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Application for Review Taxed Certified Costs – Order 22 Rule 60 NCR – 35 Bill of Costs 9 matters – By Lawyers & Consultant – Double Dipping Duplicity of Taxation & Certificates of Taxation – Discretion of Taxing Officer – Whether Power to Vary Order for Costs – Whether Discretion To Extend to Cover Costs of Persons not Lawyers & fully Represented by Lawyers in Court – Necessarily & Properly Incurred – Proper Evidence – Order 22 Rule 35 NCR Costs As Was Necessary or Proper to Attain Justice – Counsel Before Court & Party Before Judicial Review Proceedings Start to End – Confirmation Reference to Transcript of Proceedings Record – Balance Discharged – 35 Bill of Costs of 17th January 2012 Quashed & Set Aside Forthwith – Costs Follow Event.


Cases Cited:


Abai v Independent State of Papua New Guinea [2000] PGSC 5; SC632
Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674
Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126


Counsel:


L. Kandi, for Applicant
No appearance for Respondents


RULING


28th April, 2023


  1. MIVIRI, J: This is the ruling on the Applicants notice of motion of the 20th and the 21st March 2012, invoking Order 22 Rule 60 for review of the taxed and certified costs decisions of the taxing Officer of the 17th January 2012. These are in respect of 35 Bills of Costs in the nine (9) matters set out above. Whereby K3.7 million was awarded to Double U Square Consultancy Services Limited.
  2. Leave was granted in fulfillment of Order 22 Rule 60 (2) to the State on the 15th May and the 05th June 2012 by this Court to move this application, because it had exceeded the required 14 days set therein. And on the 12th September 2012 review books were filed respectively for the nine (9) matters from the total of 52 Judicial review applications there.
  3. The original decision that gave rise to the Costs orders was made by this Court presided by then Deputy Chief Justice Sir Salamo Injia on the 30th November 2006, when he upheld the State’s 52 Judicial Review Applications, quashed all the compensation awards made by the National Land Commission. And remitted the claims back to the National Land Commission for rehearing before a new Commissioner. And as part of that decision, He made the following order as to Costs; “The Plaintiff shall pay the costs, if not agreed then to be taxed, of all respondents including those who were later joined, either as plaintiffs or respondents, but not the costs of the First and Fourth Respondents. Costs include incidental costs incurred by all respondents and other plaintiffs, except the First and Fourth Respondents. The plaintiff shall also pay the Second Respondents costs. Costs must be paid on a solicitor-client basis.”
  4. The matter has dragged and procrastinated from that original decision from 30th November 2006 up to today Friday 28th April 2023. Particularly in the light also of the fact that review was filed 20th and 21st March 2012. And if it was as bad as it has been put here in the various amounts that have been claimed taxed and certified, why wait this long if Government, State funds are paid out in this way. If the office of the Solicitor General was vigilant and alert, it would not have dragged on as it did up to now. Especially where allegation of impropriety going to border on the criminal offence of misappropriation has been raised against, the Registry officers involved as taxing Officers, joining hands with Lawyers and a consultant. It reflects badly on the action by the State to stamp out and bring to Justice this illegal activity. Primarily moneys of the State getting out of the public purse into hands prima facie not by compliance of the law. And here where moneys have exchanged hands between State and Claimant, it is another page to retrieve that money back into the public purse. With the costs of the engagement of counsel to that effect and the drawing on judicial time to bring out. Piecemeal approach has delayed Justice clocking up the expense delaying service to the State. As of today’s date, 28th April 2023, this action will be almost 17 years old, lurking unresolved that public money has been used in this way by public officials under the guise of resolving a costs order. There ought to have been very determined urgency to see out a resolution, an end to this saga by the State.
  5. Part of the contributing factor is in the way materials were placed before the Court to move the matter. Because the Court is driven by the material before it on the matter pleaded. And this is set out in the supporting affidavit of Andrea B. Yauieb sworn of the 16th December 2019 filed of the 18th December 2019. She is a lawyer with the firm of MS Wagambie Lawyers engaged by the State as its Lawyers as far back as when this matter was in the Judicial review proceedings before this Court then. And from which She attests that at paragraph 3, “numerous bills of costs were filed by Individuals claiming to be landowners of Mt Hagen Town. Some of the purported bills of Costs were subjected to proper taxation, whilst in others, duplicated certificates of taxation had been issued to certain law firms and individuals, without being properly taxed.”
  6. And she continues at paragraph 4, “During taxation of some of the purported bills of costs, the State (‘Applicant’) raised objections that the Court Order as to Costs dated 01st December 2006 related to costs of and incidental to the Judicial Review proceedings only, and not the costs that were alleged to have been incurred by third Parties, service providers and so called “consultants” and “advisors” to the customary landowners in the National Land Commission proceedings, prior to the Judicial review action.” And rightly the taxing Officer referred to the National Court for clarification the order it made relating. And to which the Court clarified that, “only the costs incurred in the period between the commencement and to the end of the Judicial review proceedings, and not the period from the commencement of the National Land Commission proceedings up to and including the period of the Judicial review Proceedings.”
  7. Even this clarification of the 21st November 2007 a year after the order was made “flood gates were opened for opportunists claiming to have had customary land which now comprise Mt Hagen Town and law firms claiming to have acted for such individuals, to file dubious bills of costs for taxation whereupon the taxing Officer issued multiples of duplicated certificates of taxation,” paragraph 5 and 6 of the affidavit of Andrea B. Yauieb set out above. And particulars included that on the 16th March 2007, annexure “B”, to the affidavit Poro Lawyers rendered a taxable bill of costs to the Attorney General for endorsement and approval for payment in the matter of OS No. 708 of 2004, paragraph 8 of the affidavit of Andrea Yauieb.
  8. Paragraph 9, “ On the 25th July 2007, annexure “C”, Mawa Lawyers wrote to the taxing officer to reschedule taxation fixed for 25th July, 2007 with respect to taxation of Bills of Costs filed by the law firm in the matters of OS Nos 669, 673, 710, 711, and 719 of 2004” And on the 12th November 2007, annexure “D” a certificate of taxation was issued to George Kaore Lawyers for the taxed amount of K 38, 830.00 in the same matter of OS No. 708 of 2004. And on the 14th December 2007, annexure “E”, a certificate of taxation was issued to B.T. Gobu & Associate Lawyers for the taxed amount of K 51, 156.00 in the same matter of OS No. 708 of 2004, paragraph 11 to the subject affidavit.
  9. Prompting the Solicitor General, annexure “F”, paragraph 12 of the subject affidavit, on the 29th January 2008, to write to the Registrar of the National and the Supreme Court expressing serious concern on the conduct of the taxing officers in the issuance of questionable certificates of taxation. And on the 16th April 2008, annexure “G”, a certificate of taxation was issued to Nasil Lawyers for the taxed amount of K108, 350.00 in the matter of OS No. 707 of 2004.
  10. On the 02nd June 2008, annexure “H”, John Poro Lawyers wrote to the taxing officer advising the same that the costs relating to OS Nos. 708, 667, 676, 707, and 709 had been paid by the State and files relating to these matters be closed. Poro Lawyers provided to the taxing Officer a copy of the Deed of Settlement executed between the parties in those proceedings namely, the State and the Customary landowners of Mt Hagen Town, relating to the payment and acceptance of the amount paid in satisfaction of the costs Order of 01st December 2004. Following on the 13th October 2008, annexure “I”, a certificate of taxation was issued to a Thomas Yaga c/- of Boma Lawyers for the taxed amount of K89, 480.00 in the same matter OS No. 708 of 2004, paragraph 15 of the affidavit Andrea B. Yauieb.
  11. And yet again paragraph 16 of the said affidavit above, “On the 14th November 2008, a certificate of taxation was issued to George Kaore Lawyers for the taxed amount of K 82, 523. 00 in the same matter of OS No. 708 of 2004 and, also similar and identical Certificates of Taxation in Matters OS Nos. 671, 675, 676 and 677 of 2004 issued to George Kaore Lawyers on the same date. Annexure “J” is the copy of that letter dated 29th September 2009 from George Kaore Lawyers and a sealed copy of the certificate of taxation filed of the 14th November 2008.
  12. And on the 04th December 2008, annexure “K”, yet another certificate of taxation was issued to Liosi Lawyers for the taxed amount of K 253, 913.00 in the same matter of OS No 708 of 2004, and similar and identical certificates of taxation issued on the same date to Liosi Lawyers in OS No. 646, 648, 673, 707, 714, 671 and 669 of 2004, per paragraph 17 of the affidavit of Andrea B. Yauieb. And at paragraph 18, “On 02nd October 2009, and subsequent other dates, certificates of taxation were issued to a William Wandaki of Double U Square Consultants Services Ltd for the taxed amount of K 80, 000.00 in the same matter of OS No. 708 of 2004 and issued identical Certificates of taxation for the taxed amount of K 80, 000.00 each, in the matters of OS Nos. 673, 675, 676, 677, 678, 707, 709 and 711 of 2004. Annexure “L” is the letter from Double U Square Consultants Ltd confirming this fact.
  13. On the 09th November 2009, annexure “M”, the Solicitor General wrote to the Registrar of the National and the Supreme Court, raising serious concern over the conduct of the Taxing Officers with respect to the taxation of the Alleged Bills of Costs filed following the Court order. And on the 29th August 2011, annexure “N” one of the customary Landowners of Mt Hagen Town wrote to the Solicitor General advising that a William Wandaki of Double U Square Consultants Services Ltd was paid his service fees for helping him and his tribesmen in the National Land Commission proceedings. But he was not entitled to the payment in those proceedings.
  14. Which was the converse when the Registrar of the National and Supreme Courts wrote on the 26th September 2011, annexure “O”, that William Wandaki of Double U Square Consultants Services Ltd allegedly hired by the third respondent in the National Land Commission proceeding was entitled to his costs following the Costs Order of the 1st December 2006. On the 17th January 2012, annexure “P” a duplicate certificate of taxation was issued to Double U Square Consultants Services Ltd for the taxed amount of K 80, 000.00 in the matter of OS No. 708 of 2004 and similar or identical certificates of taxation in the other 8 matters above besides those issued to George Kaore Lawyers, Liosi Lawyers and other law firms in the same manner.
  15. Before me at the outset of this proceedings, there has been no appearance by the third respondents, or their lawyers despite service of the proceedings upon them. And submissions were made and I made orders pursuant to effect service by the applicant State on the respondents, in particular counsel if represented to this matter. And so, the Order of 15th March 2023 upon the applicant to serve the third respondents’ lawyers, which order was carried out particulars set out in the affidavit of service deposed to by Andrea Yauieb, sworn of the 05th April and filed the 06th April 2023. There is no injustice to proceed to the hearing of the matter given this fact. Notice has been given of the proceedings and consequences deriving. A right to be heard has been accorded no avail in attendance at the volition of the respondent’s Lawyers served.
  16. It must be set out why this matter is now eventually coming now before me to the hearing on the substantive matter. In this respect the particulars are set out in the affidavit of Andrea B. Yauieb sworn of the 16th December 2019 filed of the 18th December 2019. Relevantly on the 15th May 2012 directional orders were given with an extension granted for time to file the application for Review of the taxed and certified costs in the matter of OS No. 671 of 2004. And the directions were:
  17. Appearance of the 05th June 2012 culminated in directions annexure “Q” to her affidavit. The applicant was granted leave to dispense with the requirements of the rules and was permitted to file and serve the Review Book containing all affidavits to date within 7 days. And pretrial conference was set 18th June 2012 at 9.30am. But then on the 24th June 2012 a notice ceasing to act was filed by George Kaore Lawyers for the third defendants. Then on the 03rd, 06th and 11th September 2012 application was made in this Court presided by Justice Kirriwom for dismissal of the 9 related proceedings for delay in prosecution of them as the matter spanned over eight years by then. That application was made by the third Respondent, and it was refused with the Court remarking that; “One must be careful when claiming against the State. Many people see the State as the Milking cow which is not correct. I would rather that the Judicial review in each of them is heard and determined accordingly.”
  18. Matter was set for pretrial conference on Friday 12th October 2012 at 1.30pm. But it was further adjourned to the 15th October 2012 and then further adjourned to 18th October 2012, for William Wandaki to secure the services of a lawyer to present the views of the third respondent. There also the court with the parties identified two legal issues. Firstly, whether Double U Square Consultants Services Limited is entitled to pursue purported costs in the within proceedings after the third Respondents Lawyers have claimed the same costs and certificates of taxation issued to the lawyers and, secondly, whether the Registrar had power or discretion to vary an order for costs. The Court and the parties also agreed that the parties would elect one of the 9 matters to deal with the above 2 legal issues, first, before dealing with the objections to each of the items allowed in the bill of costs filed by Double U Square Consultants Services Ltd.
  19. On the 15th October 2012 by consent of the parties this Court presided by Justice Kirriwom made the following orders:
  20. From that date to the 22nd March 2019 the matter could not proceed to the substantive hearing one way or the other. And the reasons do not put the ultimate and underlying blame on the State Applicant. It would appear the third Respondents and others also in this proceedings contributed to procrastinating it. And materially outstanding reasons were:
  21. The aggregate of all the evidence set out above is that this proceeding has dragged not the entire fault of the State Applicant. He should not be made to bear entirely any fault in the way it has now come to a hearing. And by the same the other parties to the cause given the length that this matter has spanned to get here, no doubt would want it to conclude and position in law on the questions raised settled.
  22. In pursuit of his cause the Applicant relies on the amended & consolidated Review Books volumes 1, 2 and 3. The decision number N4020 dated the 30th November 2006 and materially the order for Costs, tab 3 of Review Book volume 1. Including the decision of Justice Kirriwom of the 27th September 2012 set out in Tab 19 of the Affidavit of Andrea Yauieb filed of the 18th December 2019. That affidavit in whole and extract of submission filed of the 13th March 2020. He also seeks reliance on decision in State v National Land Commission & ors (2018) N8194.
  23. Because of the way that that the taxing Officer exercised his discretion by Order 22 Rule 36 the following issues arise for the determination of the Court:
  24. At the outset this proceedings has come to where it is by virtue of Order 22 Rule 60 Application for Review of Taxation, which is in the following terms:
  25. Leave has been obtained for this review particulars set out above fulfilling the rule. And the facts here justify in my view a review in respect of the taxed and certified costs decisions of the taxing Officer of the 17th January 2012. These are in respect of 35 Bills of Costs in the nine (9) matters set out above. Whereby K3.7 million was awarded to Double U Square Consultancy Services Limited. At the outset it is acknowledged that the discretion of the taxing master is wide and must be discharged in accordance with correct principles, and the amount allowed must be reasonable. And the Court will not act against that discretion unless it has acted on the wrong principle. In the case of quantum, the Court will be reluctant to argue against. Here it is overt, apparent, and substantive that the discretion is mistaken, or on the wrong principle, and therefore in my view the Court must interject against its exercise: Abai v Independent State of Papua New Guinea [2000] PGSC 5; SC632 (5 May 2000).
  26. Because here each file OS No. 671 of 2004 and the eight (8) other related proceedings (OS Nos 673, 675, 676, 677, 707, 708, 709 and 711 of 2004 will have on the record of the Court appearance by Counsel. That record will eliminate the bill of costs submitted by any other person other than that Counsel on the record of the proceedings. The record of the Court on appearance by counsel in each file will eliminate duplication of bill of costs levied levelled upon the office of the Taxing officer. He is confined for his purposes to the record of appearance formally on the transcript on each matter. He will not go outside that record and transcript to entertain and bring forth Counsel or parties not formally before the Court. In this regard any bill of Costs submitted for taxation and certification is of Counsel appearing before the Court in the respective files set out above. Not anyone else outside of the transcript and the record of appearance in the matter.
  27. This is the Judicial review proceedings and that is what the audio will have on the transcript of the proceedings. It will not have the National Land Commission proceedings on that audio and transcription. The Judicial Review proceedings arose from that proceeding. By itself it is a separate proceedings and cannot constitute costs incidental to and arising out of the Judicial Review Proceedings. It therefore cannot be the subject in a prepared costs to be taxed and certified submitted to the taxing Officer. And therefore, the costs for taxation and certification will not include that fact. Costs are against Parties immediately before the Court who may pay naturally for what they have brought about or be penalized for their conduct leading to and in what they have done in the proceedings: Paki v Motor Vehicle Insurance Ltd [ 2010] PGSC 2; SC1015 (9 February 2010).
  28. Here obviously the taxing officer has gone outside of his discretion and acted outside. He has acted on a wrong principle in so doing. He has exceeded his discretion in so doing. His discretion does not extend to the power to vary an Order for Costs. Nor does it extend to cover the costs of persons who are not Lawyers and were fully represented by Lawyers in the Court Proceedings instant. He did not have the discretion to tax and certify the costs of the Lawyer George Kaore Lawyers and Double U Square Consultants Limited for the same file in the Judicial Review proceedings. And this view is applicable to any other duplication evidenced out above. In so doing he duplicated and caused double dipping by taxing and certifying for both the lawyer and the client, and any others similarly evidenced out above. That is a wrong exercise of discretion and in principle was wrong outright. It would be the same way there are a number of lawyers named out similar, Liosi Lawyers and Poro Lawyers together with George Kaore Lawyers.
  29. I will not repeat the evidence as there has been duplication in the taxation and certification of the files set out above in its costs. And in my view if the record or transcript of the proceedings do not show appearance by the claimant, counsel or otherwise, then a false taxation and certification has been made out by the taxing officer. Who has repeatedly breached the law even in the face of the records the subjects for taxation and certification had been paid off with, in some instances deeds of payment shown produced him. There cannot be two three or more Lawyers acting on a particular file as here. It must be settled as to who has appearance on the file by the Notice of appearance on the record of the proceedings. That is the person, Lawyer entitled to submit a bill of costs for taxation and certification. And it follows that there is no taxation and certification of the costs other than that of he who has appeared in the matter and carried out the file to the end of the proceedings. In this regard if the third respondent has been represented by counsel, George Kaore Lawyers in the within Judicial review proceedings, he will submit the costs for taxation and certification. Double U Square Consultants Limited will be confined only to time when they in person prosecuted or defended the matter. Once counsel is engaged with a notice of appearance formally on the record of the proceedings, they cannot lodge costs to be taxed and certified. Because that is analogous to the offence of Misappropriation under section 383A of the Criminal Code. Here that is evident by the evidence set out above in the affidavit of Andrea Yauieb filed of the 18th December 2019.
  30. And this Judicial review proceedings initiated and closed in the order of costs that was attained 30th November 2006. And the Costs of the Judicial Review proceedings not of the National Land Commission hearing. The latter is a different proceeding and cannot be the subject of the claim for taxed and certified costs submitted to the taxing officer. Who is an officer of the National Court employed by the National Judicial Staff Services to discharge that function. His responsibilities are to serve the National Court. So, he will be confined to the costs of the proceedings in the National Court the Judicial Review proceedings not the National Land Commission proceedings. And here where he has taxed and certified costs that include the National Land Commission proceedings right into the National Court, up to the 30th November 2006, that is clearly a wrong exercise of discretion not warranted by, and in so doing the taxing Officer acted on the wrong principle. They are two different matters in Law. Each has governing Legislation that sets it apart, one from the other. Both come out of their respective legislation and cannot be lumped into one for Costs. And here the action of the taxing officer in compounding both together to work out the costs to be taxed and certified issued by Parties who have made and submitted multiple of the same is an illegal exercise of discretion. Because a party to the Court shall be entitled to costs by an order of the Court not without, Order 22 Rule 8 of the NCR.
  31. In this regard the items contained in the purported bill of Costs filed by the Consultant pages 116-122; 187 -194; 284-291 of the Review Book volume 1 is one such example of the many in the Review which evidence clear improper exercise of discretion. And compounded in the evidence in Volume 2 and 3 of the Review Book particulars I set out above, is gravely unethical and improper. And would constitute unreasonableness on the part of the discretion of the taxing officer. He has acted illogically, and his decision cannot be allowed to stand because it was not based on law. What he has done is to vary an order of the Court. Which is only the responsibility in law of the National Court on application, not an officer of the Court. Hence the only place to vary that order is in Court by an application not without: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). There is no evidence that he has varied the original costs order to warrant what he has done here.
  32. In the aggregate there cannot be any doubt that this application has discharged the balance that the review must be upheld in all frontiers presented. That is evident and apparent so much so that, the only call is to quash that decision forthwith of the 17th January 2012, by the Taxing Officer in the purported taxation and certification issued in the 35 Bills of costs totalling K 3.7 million awarded to Double U Square Consultancy Services Limited, and any others set out by the evidence here in the 9 matters set out above. And in moneys that have been paid as result evident by all I have set out above, the State must do all within the law to institute proceedings to recoup back that money into the public purse. In addition, this is a criminal action that must be immediately referred to the police against the persons who have been named and identified by the evidence here. These are the Lawyers including the Consultant William Wandaki of Double U Square Consultancy Services Limited, and primarily and fundamentally the taxing officers in the Registry to answer to the law. If they are still in the registry at the date of this Judgement, they ought to be immediately suspended administrative proceedings taken out to ensure the full force of the law is accorded all implicated named in whatever role they played.
  33. The Registry of the Court be it the National Court or the Supreme Court with its Staff serve the State to bring the rule of law and Justice to all, who come before eventually to the Court. Any member of the Registry or Staff who has been prone to this behaviour and action is not above the law. And its rule will be circumvented to ensure the third Arm of the Government, the Judiciary serves and maintains the pillar of Justice for the people and the Constitution. There is no room for cohesion conspiracy to defeat Justice and the Rule of Law there. It will be stamped out with vigour and swift determination.
  34. In the case of Lawyers, the same work will draw the same measure in renumeration. And on the part of the taxing Officer, he can only allow costs which were reasonably necessary eventually to the disposal of the matter. It was incurred so that Justice would be served in the plea before the Court, Order 22 Rules 34 & 35 of the NCR. And in this regard the lawyer is expected to know his work to charge the client accordingly for work performed, and not earning for business unrelated to the cause of the client. Because there is Order 22 Rule 35 by which the reasonableness of a figure charged can be considered by the taxing officer. And particularly because particulars of work are to be provided under Order 22 Rule 49 of the Rules. And in this regard therefore there must be supporting evidence for the taxing officer to exercise his discretion Order 22 Rule 36 (5) NCR. All compounded will warrant the taxation and certification that will follow: Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674 (9 November 2001). Here in my view the evidence speaks otherwise against the discretion of the taxing officer. And for all the reasons set out above will be quashed forthwith as prayed in the reviews filed.
  35. Costs will follow the event forthwith against the third Respondent.
  36. The formal orders of the court are:

Orders Accordingly.
__________________________________________________________________
M S Wagambie Lawyers: Lawyer for the Applicant

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