Mark Tumu v MVIL

• Jurisdiction: Papua New Guinea
• Judge: Frank J
• Judgment Date: 13 August 2015
• Citation: (2015) N6136
• Court: National Court
• Year: 2015
• Judgement Number: N6136

Full : WS 898 of 2004; Mark Tumu v Motor Vehicle Insurance Limited (2015) N6136

National Court: Frank J

Judgment Delivered: 13 August 2015

N6136

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 898 OF 2004

BETWEEN

MARK TUMU

Plaintiff

AND:

MOTOR VEHICLE INSURANCE LIMITED

Defendant

Mt Hagen: Frank,J

2015: 6, 13 August

COSTS- Review of taxed costs- application of extension of time –principles to apply when considering extension of time

Cases Cited:

Papua New Guinea Cases

Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission of Papua New Guinea [2000] PNGLR 166

Hii v Maribu (12 May 2012) SC1188

John Kombra & 10 Others v Bernard Kipit and National Capital District Commission (2009) N3756

Rundle v MVIT (No 1) [1988] PNGLR 20;

Seravo v Jack Bahafo (2001) N2078

Overseas Cases

Chapman v Chapman [1985] 1A11ER 757

Counsel:

Mr P. Kopunye, for the plaintiff

M. Mr Pokia, for the defendant

RULING ON APPLICATION

13th August, 2015

1. FRANK, J: I heard the defendant’s application referred to herein, and on 13 August 2015, I granted the application with brief reasons and said I would publish my reasons later, which I do now.

2. The defendant applies for orders (amongst others):

(a) That the Certificate of Taxation filed on 26 May 2015 (“Certificate”) be set aside; and

(b) For an extension of time within which to file an application for review of the taxation that resulted in the issue of the certificate.

3. The plaintiff applied by way of a Notice of Motion filed on 15 April 2015 (“Motion”). The application is supported by the affidavit of Muriso Pokia sworn on 10 April and filed on 15 April 2015. In his affidavit, Mr Pokia, on behalf of the plaintiff says, amongst others, that:

3.1 On 18 May 2012, the court issued the following orders by consent:

“THE COURT ORDERS BY CONSENT THAT:

1. Leave is granted to the plaintiff to withdraw the Notice of Motion filed on 26 May 2011.

2. The time set out in Term 2 of the Court Orders of 18 February 2011 is extended by 7 days for the defendant to file and serve its Amended Defence.

3. The costs of the application to extend time is to be paid by the Defendant on a party/party basis.

4. Time is abridged.”

3.2 On 18 July 2014, the defendant’s lawyers received a copy of the Bill of Costs (“Bill”) under the plaintiff’s lawyers letter dated 5 June 2014, and were informed that taxation of the Bill was scheduled for 28 July 2014;

3.3 On 28 July 2014,taxation of the Bill did not proceed;

3.4 The defendant’s lawyers issued two letters to the plaintiff’s lawyers dated 26 September 2014 and 29 October 2014, enquiring when the Bill is scheduled to be taxed;

3.5 On 24 March 2015, the defendant received by facsimile, a copy of the plaintiff’s lawyers letter of that date which advised that taxation had been scheduled for 23 March 2015 but adjourned to 25 April 2015;

3.6 On 25 March 2015,the Bill was taxed. This is evident in the Certificate;

3.7 On 7 April 2015,the defendants lawyers received the plaintiff’s lawyer’s letters:

(a) one dated 14 March 2015 which advised that taxation would be conducted between 23 March and 27 March 2015; and

(b) the other dated 27 March 2015, which had enclosed to it a copy of the certificate.

4. The plaintiff, through the affidavit of Peter C. Kopunye sworn on 25 June 2015 and filed on 30 June 2015, says that (a) all lawyers knew well in advance of the taxation scheduled to take place between 23 March 2015 and 27 March 2015; and (b) the defendant’s lawyers should have made its own enquiries commencing February 2015 to find out when taxation of the Bill is to take place; and (c) Mr. Pokia’s affidavit does not point to an error in the taxation. The defendant’s evidence is, otherwise, not in dispute.

5. I deal first with the application for the extension of time. This application is made pursuant to Order 22 Rule 60 (2) and Order 1 Rule 15(1) of the National Court Rules (“Rules”). Any reference herein to an Order or a Rule is, unless otherwise indicated, of the Rules.

6. Order 22 Rule 60(2) provides:

“An application for review of the taxing officer’s decision shall be made within 14 days after the date of the decision objected to or within such further time as the court may allow.”

7. Order 1 Rule 15(1) provides:

(1) The court may, on terms, by order extent or abridge any time fixed by the Rules or by any judgment or order.

(2) ....

8. In an application of this nature, this court has previously held that am applicant must satisfy the following:

1. That there must be a reasonable explanation why costs were taxed in the defendant or plaintiff’s absence;

2. That the application for extension of time must be made promptly and within a reasonable time of the decision becoming known;

3. If there is any delay, whether the reasons for delay are justified under the circumstances;

4. Whether the application has any merits? John Kombra and 10 others v Bernard Kipit and National Capital District Commission (11 September 2009) N3756

9. There is one other factor which, in my view, is relevant to an application for extension of time under Order 22 Rule 60(2). That is the issue of prejudice.

10. In Chapman vs. Chapman [1985]1A11ER 757, the court, in a taxation review, considered this factor and said the issues is whether the paying party has been prejudiced by the receiving party’s inordinate and excusable delay?

In that case, it was submitted that the prejudice suffered there were that:

(a) the paying party had apparently suffered prejudice in that the protracted delay in proceeding with the taxation of costs had caused his health to suffer; and

(b) for the other paying party, its financial position had worsened in the period between the making of the making of the orders for costs and service of bill of costs, a period of 18 months, and

(c) the knowledge and clear recollection of the other paying party of the facts of the case had diminished over the period and he was not in such a strong position as he might otherwise have been to challenge the costs being claimed.

11. With respect to the evidence, the court, at page 766, observed:

“The direct evidence of prejudice could scarcely be less impressive. Not a word further is said about how, or how far, the first defendant’s health has suffered; and counsel for the defendants could add nothing, even on instructions. Not a word further is said about the extent to which the second defendant’s financial position has worsened for any period. The exhibit is an unsigned and undated manuscript document recording the changes in the second defendant’s employment. Probably it was written by the second defendant, though counsel could not tell me why neither the exhibit nor the affidavit said so, or why the affidavit did not verify the exhibit. The second defendant, it seems, had held the positions of chairman and managing director or director in various companies which in early 1981 fell on hard times. In July nor August 1981 the second defendant lost his jobs, his holiday pay entitlement, and his pension rights, as well as his capital in one company, and received only his statutory redundancy payment; and he had to pay up £4,500 on a personal guarantee. In the autumn of 1981 he was unemployed, in November 1981 he obtained a consultancy job with two companies, and in November or December 1982 one of these terminated. In March 1983 he became self employed, though it does not appear what the result of this was. From first to last not a single figure is mentioned, apart from the £4,500 that he had to pay on the guarantee; and there is not a word about his capital resources. Furthermore, on 13 October 1983, some six months after he became self-employed, his solicitors wrote to the plaintiff’s solicitors making an increased offer to pay £8,000 to the plaintiff in order to avoid a taxation of costs. This replaced offers of £6,750 and £7,000 made respectively in January and March of that year.”

12. Further on, the court continued:

“I do not think that it is normally open to the paying party to adduce either no evidence of prejudice or else miserably feeble evidence of it, and then say that from mere delay, however gross and inordinate, the court should infer prejudice, I say nothing of a case in which there are some good reasons (eg,death) why in such a case it may well be right to conclude on the facts that there was prejudice. But where there is no reason why the paying party should not establish just what prejudice from delay. Indeed, from the party’s omission to demonstrate any prejudice. I would infer that there has been none.”

13. Then, at page 767, it said:

“ In the present case, I can see no reason why in an affidavit expressly dealing with prejudice to the defendants, a word or two might not have been said about how the first defendant’s health had been affected, or how the amount of the second defendant’s capital and income had changed, or how it was that the delay had affected the defendant’s solicitors’ recollection of the facts of a case mainly depending on documents so as to impair his ability to contest the question of costs. Something, too, might have been said to explain why any prejudice that arose was not offset by...