Jacob Sanga Kumbu v Dr Nicholas Mann

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 14 September 2012
• Citation: (2012) N4784
• Court: National Court
• Year: 2012
• Judgement Number: N4784

Full : OS (JR) NO 8 of 2009; Jacob Sanga Kumbu v Dr Nicholas Mann, Chairman, Council Appeal Committee, University of Papua New Guinea and University of Papua New Guinea and the Independent State of Papua New Guinea (2012) N4784

National Court: Cannings J

Judgment Delivered: 14 September 2012

N4784

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 8 OF 2009

JACOB SANGA KUMBU

Plaintiff

V

DR NICHOLAS MANN, CHAIRMAN, COUNCIL APPEAL COMMITTEE, UNIVERSITY OF PAPUA NEW GUINEA

First Defendant

UNIVERSITY OF PAPUA NEW GUINEA

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Cannings J

Madang: 7 September 2012

Waigani: 14 September 2012

COSTS – basis of costs order: whether costs on a solicitor-client basis justified – self-represented litigant: whether costs should be restricted to out-of-pocket expenses.

The plaintiff, after being granted an application for judicial review, applied by motion for costs on a solicitor and client basis. Two issues arose: (1) whether the awarding of costs on a solicitor and client basis was justified by the circumstances in which the application for judicial review was granted; (2) whether the fact that the plaintiff (a law student) represented himself was relevant to the basis on which the order for costs should be made.

Held:

(1) An order for costs on a solicitor and client basis is intended to signify the court’s disapproval of the conduct by a party of court proceedings and is justified where, for example, there has been a rejection of a settlement which would, if accepted, have resulted in a better outcome than that which was obtained, or where the conduct of a party, either before or during the proceedings, can be said to warrant such an order or there are special or unusual circumstances.

(2) Here, ordering costs on a solicitor and client basis was as a matter of principle justified as the plaintiff had succeeded emphatically at the trial, exposing numerous errors of law by the defendants which he had previously drawn to their attention, the defendants had been a party to three previous judicial proceedings in which similar errors of law had been exposed, the defendants had made no serious attempt to settle the matter and the effect of prolonging the proceedings for three years after the granting of leave for judicial review was to cause unnecessary hardship to the plaintiff.

(3) That the plaintiff was not a lawyer admitted to practise and that he represented himself in the proceedings do not make it inappropriate to order that his costs, in addition to out-of-pocket expenses, be paid to him (Canisius Karingu v Papua New Guinea Law Society (2001) SC674 followed).

(4) The first and second defendants shall pay the plaintiff’s costs on solicitor-client basis, which shall if not agreed be taxed.

Cases cited

The following cases are cited in the judgment:

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

Don Pomb Polye v Jimson Sauk Papkai [2000] PNGLR 166

Hii Yii Ann v Canisius Karingu (2003) SC718

Island Helicopter Services Ltd v Wilson Sagati (2008) N3340

Jacob Sanga Kumbu v Dr Nicholas Mann, UPNG & The State (2012) N4746

John Kombra v Bernard Kipit (2009) N3756

Joshua Giru v Willie Edo OS No 281 of 2007, 25.07.07 (unreported)

Karen Mek v Mann, UPNG & The State OS (JR) No 392 of 2009, 17.01.11

Kely Kerua v Council Appeal Committee of the University of Papua New Guinea (2004) N2534

Kila Tutura v Joseph Ng (2005) N2924

Kramer Consultants Pty Ltd v The State [1985] PNGLR 200

Peter Kama v Council Appeals Committee of the University of Papua New Guinea (2010) N3829

PNG Aviation Services Pty Ltd v Geob Karri (2009) SC1002

PNG Ports Corporation Limited v Canopus No 71 Ltd (2010) N4288

PNG Waterboard v Gabriel M Kama (2005) SC82

Rex Paki v MVIL (2010) SC1015

Smith v Buller (1875) LR 19 Eq 473

Tolom Abai v The State (1995) N1402

NOTICE OF MOTION

This was an application for costs after judgment.

Counsel

J S Kumbu, the plaintiff, in person

S Phannaphen, for the third defendant

14 September, 2012

1. CANNINGS J: The plaintiff, after being granted an application for judicial review, applied by motion for costs on a solicitor-client basis. Two issues arise: (1) whether the awarding of costs on a solicitor-client basis is justified by the circumstances in which the application for judicial review was granted; (2) whether the fact that the plaintiff (a law student) represented himself is relevant to the basis on which the order for costs should be made.

(1) IS THIS AN APPROPRIATE CASE FOR AN AWARD OF COSTS ON A SOLICITOR-CLIENT BASIS?

2. The National Court has a wide discretion whether to make an order for costs and as to the terms of a costs order. The discretion must be exercised judicially, not arbitrarily. Costs usually ‘follow the event’: the successful party is awarded their costs, but this is always subject to the discretion of the Judge (PNG Ports Corporation Limited v Canopus No 71 Ltd (2010) N4288). A party has no entitlement to costs except under an order of the Court (National Court Rules, Order 22, Rule 8). The Court usually states the basis on which costs are awarded, which means that if the parties cannot agree on the amount of costs the party in whose favour an order for costs has been made is entitled to their “taxed costs”. The costs to which they are entitled will be calculated and determined by an officer of the Court called a taxing officer in accordance with Divisions 22.3 and 22.4, whose decisions are subject to review under Rules 60 and 61. Costs will be taxed on the basis prescribed by the Court’s order.

3. Order 22 of the National Court Rules recognises several different bases of calculating and taxing costs:

(a) Party and party basis (Rules 23-24): the party in whose favour an order has been made “shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights” of that party (Rule 24(2)). Such costs include only the bare costs necessarily incurred (Smith v Buller (1875) LR 19 Eq 473). This is the most common basis on which costs are to be calculated. Awarding costs on a party-party basis is the most common form of a costs order; and if the court does not specify on what basis costs are to be calculated, it is presumed that the order is only for party-party costs.

(b) Common fund and trustee bases (Rules 31- 33): applicable only where costs are to be paid out of a fund or where a person is entitled to be paid costs out of a fund which he holds in the capacity of trustee. These are more generous bases for calculating costs than the party and party basis.

(c) Solicitor-client basis (Rules 34-35): all costs actually incurred are allowed except if they are of an unreasonable amount or of an unusual nature and have been incurred without the approval of the client. This is the most generous basis on which an order for costs is made; it is intended to mark the court’s disapproval of the conduct of a party in litigation (Tolom Abai v The State (1995) N1402). The practice appears to have developed of also referring to solicitor and client costs as costs on an indemnity basis; the terms have been used interchangeably in numerous cases, eg PNG Waterboard v Gabriel M Kama (2005) SC821. In PNG Aviation Services Pty Ltd v Geob Karri (2009) SC1002 the Supreme Court suggested that it may be appropriate to make award costs on a solicitor and client basis where, for example, there has been a rejection of a settlement which would, if accepted, have resulted in a better outcome than that which was obtained, or where the conduct of a party, either before or during the proceedings, can be said to warrant such an order or there are special or unusual circumstances. In PNG Ports Corporation Limited v Canopus No 71 Ltd (2010) N4288 Kandakasi J held that an unsuccessful party who has failed to make good faith efforts towards resolving a dispute out of court should be subject to an order for costs on a solicitor-client basis.

4. Order 22, Rule 65 (personal liability of solicitor for costs) also provides for a costs order to be made against a lawyer, as distinct from an order against a party, “where costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default”. Such an order marks the court’s disapproval of the conduct of a lawyer (Don Pomb Polye v Jimson Sauk Papkai [2000] PNGLR 166, Island Helicopter Services Ltd v Wilson Sagati (2008) N3340, Joshua Giru v Willie Edo OS No 281 of 2007, 25.07.07 (unreported)).

5. In the present case the plaintiff applies for an order for costs on a solicitor and client basis against the defendants (not against the defendants’ lawyers). He does so pursuant to my orders of 20 July 2012, which as well as granting his application for...