Ronald Emanuel Jordan v Glen Hamilton Edwards [1979] PNGLR 420

• Jurisdiction: Papua New Guinea
• Judge: Kearney J:
• Judgment Date: 05 September 1979
• Court: Supreme Court
• Citation: [1979] PNGLR 420
• Year: 1979
• Judgement Number: SC162

Full Title: Ronald Emanuel Jordan v Glen Hamilton Edwards [1979] PNGLR 420

Supreme Court: Prentice CJ, Raine DCJ, Kearney J

Judgment Delivered: 5 September 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RONALD EMANUEL JORDAN

V

GLEN HAMILTON EDWARDS

Waigani

Prentice CJ Raine DCJ Kearney J

3 September 1979

5 September 1979

COSTS — Taxation of costs — Particular items — Counsel's fees — Second or overseas counsel — Relevant considerations — Supreme Court Rules 1977, O. XCI, r. 81ASee headnote.1.

Order XC1, r. 81A of the Supreme Court Rules provides:

"81A. SECOND OR OVERSEAS COUNSEL

(1) The fees, costs and expenses of:

(a) a lawyer appearing as second counsel; or

(b) overseas counsel, may be allowed on taxation only if, and to the extent that, they are certified for by the trial judge, or in a matter in the Supreme Court, by the Supreme Court.

(2) In this Rule 'overseas counsel' means a barrister or solicitor or barrister and solicitor who is not resident in the country and normally carries on practice outside the country."

Held

(1) When considering whether an exception should be made in terms of O. XC1, r. 81A of the Supreme Court Rules, the principal matters for consideration are:

(a) the difficulty of the case (in particular whether it involves complex matters of law);

(b) the nature and extent of the rights involved;

(c) the expertise reasonably required for the nature of the particular action;

(d) whether the smallness of the profession and of the community might cause embarrassment to the employment of resident counsel in the particular case;

(e) the need to keep costs as low as possible, and

(f) the need to keep access to advice as wide and even as possible.

Semble

where construction of the Constitution of the Independent State of Papua New Guinea is involved foreign counsel should not normally be required.

(2) On an appeal in the Supreme Court, and in the circumstances, including the briefing of the same counsel as appeared before the National Court (before r. 81A was introduced), the complex nature of the case, and the fact that the plaintiff having ceased to reside in Papua New Guinea briefed available counsel and solicitors in his own State of Australia, fees for overseas counsel should be allowed.

(3) In general such costs should include the costs of a return air fare to the nearest place where suitable counsel can be obtained, reasonable hotel and incidental expenses in the place of trial during trial, and other necessary expenses.

Reservation of Costs

This was a matter in which the question of what counsel's fees should be allowed on taxation was reserved for consideration of the Supreme Court under O. XCI, r. 81A of the Supreme Court Rules.

Counsel

J. Monahan and I. R. Molloy, for the appellant.

D. W. Kendall, for the respondent.

Cur. adv. vult.

5 September 1979

PRENTICE CJ: The question of counsel's fees to be allowed in this case was reserved in accordance with the recently introduced r. 81A of O. 91. I think it advisable that something be said that may be of assistance to the taxing master and the profession. (It was thought that each of us should say something on the principles which will guide us on such a matter.) Traditionally the judges in Papua New Guinea have had little to do with questions involving taxation of costs. From what little we have seen recently, we are alarmed at the bills which are being brought in. In my opinion it is necessary that this be closely watched lest in a small community of practitioners it be thought that mutual agreement was being arrived at not to challenge one another's costs.

I consider that the situation has now arrived where more and more nationals in this Independent State become involved in litigation, that the cost of importation of foreign counsel should usually be borne by the party briefing him. And it should be kept in mind that the institution of Queen's Counsel is not recognized in our legal framework, and that fees on such a scale should not be allowed.

When considering whether an exception should be made in terms of the court's Rule — the court, I believe, should take into account as the principal factors — the difficulty of the case (in particular whether it involves complex matters of law); the nature and extent of the rights involved; the expertise reasonably required for the nature of the particular lis; whether the smallness of the profession and of the community might cause embarrassment to the employment of resident counsel; and above all the necessity of keeping costs as low as possible and access to advice as wide and as even as possible.

One would I believe, consider that where construction of the Constitution of the Independent State of Papua New Guinea is involved, foreign assistance would not normally be required.

The instant case was a difficult one — but not outstandingly so. It did not involve an expertise which cannot fairly readily be encompassed by non-specialists. But K23,000 was involved, and both sides had engaged foreign counsel on the original hearing which took place before the enactment of the rule concerned. The same counsel were briefed on the hearing as had appeared in the National Court. Because the plaintiff had ceased to reside in Papua New Guinea at the time the action was brought on and had become a resident of Victoria, it was I believe reasonable for him to brief Victorian practitioners, to have conferences with them there...