Canisius Karingu v Papua New Guinea Law Society (2001) SC674

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 09 November 2001
• Citation: (2001) SC674
• Docket Number: SCA No 69 of 1996
• Court: Supreme Court
• Year: 2001
• Judgement Number: SC674

Full Title: SCA No 69 of 1996; Canisius Karingu v Papua New Guinea Law Society (2001) SC674

Supreme Court: Kandakasi J

Judgment Delivered: 9 November 2001

SC674

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC NO: 69 of 1996

BETWEEN:

CANISIUS KARINGU

Appellant

AND:

PAPUA NEW GUINEA LAW SOCIETY

Respondent

WAIGANI: KANDAKASI J

2001: 14th June

10th September

9th November

PRACTICE & PROCEDURE — Court order required to entitle a party to costs — Unless otherwise ordered an order for costs means "party and party costs"- Taxing officer has no power to vary a costs order — If in doubt as to what costs have been awarded taxing officer needs to refer it to the Court for determination — Taxing officer is to be guided by whether the costs were necessarily and reasonably incurred for the attainment of justice unless otherwise ordered.

COSTS — Litigant in person's Costs — Entitlement to such costs — includes both legal costs and disbursement necessarily and reasonably incurred for the attainment of justice -–Within Courts discretion whether or not to order costs and at what rate.

LAWYERS COSTS — A person qualified, admitted as a lawyer and issued with a current practicing certificate entitled to render accounts or bill for legal fees — Current practicing Certificate not required if conducting own case and is no bar to recovering legal costs and disbursement necessarily and reasonably incurred for the attainment of justice provided there is no dual again.

WORDS & PHRASES — "Lawyer and client costs" — fees payable by a client to his lawyer — "Party and party costs" — Fees recoverable by a successful party against another — "Costs" — All legal costs and disbursements necessarily and reasonably incurred for the attainment of justice — Costs for litigant in person includes both legal costs and disbursement necessarily and reasonably incurred for the attainment of justice provided there is no dual gain.

Cases Cited

Concord Pacific Limited & Anor v. Paiso Company Ltd & Ors N1981

Clive Wissman v. Collector of Customs [1977] PNGLR 324

Odata Limited v. Ambusa Copra Oil Mill Limited & National Provident Fund Board of Trustees (unreported o6/07/01) N3006

Kimlee Equipment &Spare Pty Ltd v. Santa (PNG) Pty Ltd (unreported judgement of Doherty J) N1312.

Kimlee Equipment &Spare Pty Ltd v. Santa (PNG) Pty Ltd (unreported judgement of Doherty J) N1312.

Kramer Consultants Pty Ltd & Cameron McNamara Pty Ltd Trading as Cameron McNamara Kramer & Associates v. The State [1985] PNGLR 200.

Inakambi Singorom v. John Kalaut [1985] PNGLR 238

PLAR No.1 of 1980 [1980] PNGLR 326.

Norah Mairi v. Alkan Tololo & Ors [1976] PNGLR 125

Ombudsman Commission Investigations of Public Prosecutor [1978] PNGLR 345

Mellor [1974] PNGLR 312,

Kincaid [1974] PNGLR 219,

Godwin Haumu (unreported 06/04/01) N2094.

Karingu [1988-89] PNGLR 276 per Bredmeyer J & Amet, J

Other Cases Cited

Buckland v Watts [1970] 1 QB 2.

Society v Chorley (1884) 13 QBD 872

Hart v Aga Khan Foundation (UK) [1984] 1 All ER 239,

Hart v Aga Khan Foundation (UK) [1984] 2 All ER 439

Ogier v Norton (1904) 29 VLR 536,

Scottish Benefit Society v Chorley (1884) 13 QBD 872 at 877

Penington -v- Russel (1883) 4N.S.W. L.R. (Eq) 4

Counsels:

Canisius Karingu, In person.

K. Kua, for the Respondent

9th November 2001

KANDAKASI J: The appellant ("Mr. Karingu") is seeking a review of a decision of the Deputy Registrar of the Supreme Court in her capacity as taxing officer ("the Registrar"). The Registrar allowed only his out-of-pocket expenses and not his legal costs because he was not acting through a lawyer.

Mr. Karingu contends that, the Registrar was wrong in her decision because the Supreme Court ordered all of his costs. The Supreme Court ordered "Costs of the Appeal is awarded to the Appellant". The Registrar was therefore wrong in effect in varying the Supreme Court orders to cover disbursements only and that was outside her powers.

He also argues that, in so doing, the Registrar acted contrary to her own ruling that, she would tax the appellant's bill of costs in accordance with O.22 r.8 of the National Court Rules ("Rules"). That rule reads:

"Order of payment (52/8)"

Subject to this Order, a party to the proceedings in the Court shall not be entitled to recover any costs of or incidental to the proceedings from any other party to the proceedings except under an Order of the Court".

The argument is that, since the Supreme Court made an order covering all of his costs, the Registrar acted outside her powers to allow only out of pocket expenses. It was therefore contrary to O.22 r.8.

The Respondent ("the Law Society") argues that the Registrar did not err in her decision. It argues that, since Mr. Karingu was not a lawyer issued with a certificate to practice law in the country under the Lawyers Act 1986, ("Lawyers Act"), he could not get his full costs of his successful court action. He was only entitled to recover his reasonable out of pocket expenses.

This presents a number of legal questions for determination. They are as follows:

1. Whether a successful litigant in person is entitled to recover all of his costs inclusive of any out-of-pocket expenses incurred on account of his litigation?

2. Where a court orders costs in favour of a party, is the taxing officer at any liberty to effectively vary it to mean only disbursements?

3. Is a failure to obtain a certificate under the Lawyers Act to practice as a lawyer a bar to recovering costs at a professional level in ones own successful court action?

The relevant facts are these. Mr. Karingu is an admitted lawyer. Under O.S. 162 of 1996, Mr. Karingu as a plaintiff, applied for a review of a decision of the Council of the Papua New Guinea Law Society not to issue him with an unrestricted practicing certificate. The National Court dismissed that application on the basis that, he did not proceed by way of a judicial review. He appealed against that decision and was upheld by the Supreme Court.

Mr. Karingu acted in person all the way to the Supreme Court using his skills and knowledge as a trained and otherwise qualified lawyer but without a current practicing certificate. Following his successful appeal, the Supreme Court ordered costs in his favour. Based on that, he applied for a taxation of his costs. When his application went before the Registrar, most of his costs were disallowed except only for his out-of-pocket expenses. Application was then made to the Supreme Court for a review of the Registrar's decision but the Chief Justice directed that the review application be heard by the National Court at the first instance. The matter came before me and was argued on the 14th June 2001.

The general rule regarding costs is that, costs follow the event. In other words, a successful plaintiff or defendant is entitled to recover his costs from the losing party. Whether or not costs should be ordered is a matter entirely within the discretion of the Court, which must be exercised in accordance with judicial principles. This is clearly expressed in O. 22 rr. 4, 5, and 11 of the Rules. For case authorities on this, see for example Concord Pacific Limited & Anor v. Paiso Company Ltd & Ors N1981 and Clive Wissman v. Collector of Customs [1977] PNGLR 324 at page 325(although in the context of the District Courts Act, s. 236).

Of course, there are at least two kinds of often-talked about costs a court can order at the end of a case. The first is "lawyer and client costs". This kind of costs comprises of the proper remuneration payable to a lawyer by his client for legal work performed by the lawyer for his client. It includes disbursements necessarily and reasonably incurred by the lawyer on behalf of his client in the course of his employment. In most cases, this type of costs is referred to as "solicitor client costs". Order 22 rr. 34 and 35 of the Rules govern this type of costs.

The second type of often-talked about costs is "party and party costs". This type of costs is the opposite of "solicitor client costs" and is governed by O.22 rr. 23 and 24 of the Rules. It comprises of the proper costs, charges and expenses reasonably and necessarily incurred by one party to a litigation to enable him to successfully, either complete or in part or in whole the prosecution of a claim or the defence of a claim. This is the kind of costs usually ordered against a losing party. The amount of costs that can be recovered under this type of costs order is usually less than the amount that can be recovered under a "solicitor and client costs". Most authorities suggest the amount recoverable under this type of costs order is about two thirds (2/3) of the costs incurred on a solicitor client basis. This expression is apparent in the context of an application for security for costs....