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Towers v Hevilift Ltd [2023] PGNC 369; N10539 (26 September 2023)

N10539


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 179 OF 2020


IN THE MATTER OF RECIPROCAL ENFORCEMENT OF JUDGEMENTS ACT (CHAPTER 50)

AND:
THE APPLICATION OF BRUCE TOWERS
Plaintiff

AND
HEVILIFT LIMITED currently operating under a new name BOROKO 2019 LIMITED
Defendant


Waigani: Kandakasi, DCJ
2021: 20th September
2023: 26th September


ENFORCEMENT OF FOREIGN JUDGMENTS – Application for set aside of foreign judgment registered for enforcement in PNG – Relevant law - Section 5 of Reciprocal Enforcement of Judgments Act (Chp.5) (REJA) – Grounds pleaded - Lack of jurisdiction in foreign court and enforcement of judgment against public policy – Relevant factors for public policy consideration – Application dismissed has having no merit.


Facts


The plaintiff was employed by defendant as a helicopter pilot in PNG. At the material time, the defendant was providing air transport for workers in a mining project in the Southern Highlands Province (SHP). The defendant paid the plaintiff’s salaries partly in PNG Kina and partly in Australian Dollars through an agent based in Brisbane Australia, which also assisted in recruiting the plaintiff to work with the defendant. On one of the trips in the cause of his duties piloting a helicopter transporting workers from camps the helicopter unexpectedly become enveloped in cloud and crashed. The plaintiff suffered serious injuries, rendering him an incomplete quadriplegic. He commenced proceedings in the Qld Supreme Court (QLD Court) against the defendant based on negligence and got judgment with damages awarded in the sum of K12,399,517.18 (the award). The defendant appeared before the QLD Court and unsuccessfully took issue with the court’s jurisdiction. The matter then progressed to trial with the defendant fully participating in its defence. The trial resulted in finding of liability against the defendant, which the defendant unsuccessfully appealed against. A trial on assessment of damages ensured thereafter and the award was arrived at. The judgment was registered in PNG under Reciprocal Enforcement of Judgments Act (Chp.5) (REJA) for enforcement. The defendant applied to have the registration set aside claiming the QLD Court lacked jurisdiction and it did not submit to the jurisdiction of the Court. Also, the defendant claimed public policy in terms:


(a) both the National and Supreme Courts priding themselves as equals with comparable courts of the Commonwealth and others;
(b) if this court allowed the judgment to stand would be countenancing a condescending act against itself and would be belittling its own stature in comparison to the QLD Court; and
(c) a dangerous precedent would be set where litigants would be unwittingly encouraged to legally engineer situations to give jurisdiction to suits in courts other than the competent courts of this country which would ‘open the floodgates’ to copycat litigation in courts elsewhere, which would diminish public confidence in the PNG courts in PNG and foster court shopping elsewhere.

Held:


  1. The QLD Court had the necessary jurisdiction, and the defendant did submit to that court’s jurisdiction by the defendant doing or failing to do the following:
  2. The term “public policy” as used in S.5(1)(a)(v) of the REJA cannot be in clear and definitive terms because the factors that might be relevant for public policy may vary from time to time as societies’ view of what is fair, right, wrong, and or what is acceptable or unacceptable, or what is generally regarded as injurious to the public interest may change as the societies views on these things changes from time to time: Cited Re Nali (No.3) [2003] PNGLR 19 and Francis Kalyk, & Ors v. Atlas Corporation Pty Ltd (1998) N1760,
  3. Several decisions of the National and Supreme Courts establish that the apparent uncertainties, certain factors have been held to present factors against any enforcement of a transaction or a judgment. This includes the following:

(a) illegal contract or transactions if the prevailing view of the public at the relevant time is of that view. See: Rainbow Holdings Pty Ltd v. Central Province Forest Industries Pty Ltd (Provisional Liquidator Appointed) [1983] PNGLR 481; [1983] PNGLR 34.

(b) the defendant has not been duly served and or not given sufficient opportunity to be heard on an issue or matter before final judgment is arrived at. See: Workcover Authority of NSW v. Placer (PNG) Exploration Ltd (2006) N3003, per Lay J and Adams v. Cape Industries Pty. Limited [1984] 1Ch 433 (CA).

(c) the foreign judgment is not from a declared court under REJA. See: Workcover Authority of NSW v. Placer (PNG) Exploration Ltd (supra).

(d) the proceeding proceeded with judgment arrived at against a company that is in liquidation without the consent of the liquidator. See: Bexhill Funding Group Limited v. Basumel Limited (2006) N3092.

(e) the foreign judgment though legal according to the foreign judgment country but is illegal as in the case of a contract for prostitution or an illegal activity in the enforcing country. See: O’Dwyer v. Derks (2007) N3226; Stern v. National Australia Bank [1999] FCA 1421 and Vervaeke v. Smith [1983] AC 145.


  1. The points raised by the defendant were unsubstantiated and, in any case, were matters already considered and resolved by REJA and not open for reconsideration by any person or court. The defendant’s application also offended the doctrine of judicial comity.
  2. The application was therefore dismissed with costs to the plaintiff.

Cases Cited:


Papua New Guinean Cases
Re Nali (No.3) [2003] PNGLR 19
Francis Kalyk, & Ors v. Atlas Corporation Pty Ltd (1998) N1760
Rainbow Holdings Pty Ltd v. Central Province Forest Industries Pty Ltd (Provisional Liquidator Appointed) [1983] PNGLR 481; [1983] PNGLR 34
Workcover Authority of NSW v. Placer (PNG) Exploration Ltd (2006) N3003
Bexhill Funding Group Limited v. Basumel Limited (2006) N3092
O’Dwyer v. Derks (2007) N3226
Rimbunan Hijau (PNG) Ltd v. Enei (2017) SC1605
Aihi v. Isoaimo (2013) SC1276
Jeffery Dean Kennedy v. Adam Chin Cheah (2021) N8890
Keith Kenneth Kingston v. Judith Merilyn Kingston & Anor (2020) SC2021


Overseas Cases
Adams v. Cape Industries Pty. Limited [1984] 1Ch 433
Stern v. National Australia Bank [1999] FCA 1421
Vervaeke v. Smith [1983] AC 145
Mast, Foos, & Co. v. Stover Mfg. Co. 8 [1900] USSC 107; 177 U. S. 485, 488 (I900)
Hilton v. Guyot [1895] USSC 185; 159 U.S. 113, (1964)


Counsel:
Mr. A. Mana, for Defendant/Applicant
Mr.G. Polga, for the Plaintiff/Respondent


DECISION ON APPLICATION


26th September 2023

  1. KANDAKASI DCJ: Hevilift Limited (Hevilift), the defendant is applying for a set aside of a judgment in the sum of K12,399,517.18 by the Queensland Supreme Court (Qld Court), which was registered for enforcement in Papua New Guinea (PNG) under the Reciprocal Enforcement of Judgments Act (Chp.5). Two grounds, namely the Qld Court having no jurisdiction to arrive at the judgment and an enforcement of the judgment in PNG would be contrary to public policy are advanced as the basis for the application. The Plaintiff, Bruce Towers (Towers), argues to the contrary.

Relevant Issues


  1. Hence, the relevant issues for this Court to determine are:

Relevant Background and Facts


  1. The factual background giving rise to these issues is straightforward. Hevilift is a leading fixed and rotary wing aviation services operator providing charter services for the transportation of personnel and equipment in a variety of fields around the world including PNG. Towers was employed by Hevilift as a helicopter pilot in PNG. At the material time, Hevilift was providing air transport for workers in a mining project in the Southern Highlands Province (SHP) of PNG. It paid Towers his salaries partly in PNG Kina and partly in Australian Dollars through an agent of Hevilift, Aviation Services Pty Ltd, based in Brisbane Australia, and which recruited Towers to work with Hevilift.
  2. On 20 April 2006, the Plaintiff was instructed to transport workers from one of the camps, Camp 57, to various work sites around the mining area in the SHP. He was piloting a helicopter in the direction of Camp 57 when the helicopter unexpectedly became enveloped in cloud and crashed. He suffered serious injuries which rendered him an incomplete quadriplegic. He eventually commenced proceedings in the Qld Court under reference [2016] QSC267, against Hevilift based on negligence for damages. He alleged that Hevilift failed to adequately warn of the danger of rapid cloud envelopment in the locality of the crash.
  3. The trial court in the Qld Court found Hevilift liable with damages to be assessed. Hevilift appealed against that decision to the Queensland Court of Appeal (QCA). On 11 May 2018 the QCA dismissed the appeal and affirmed the decision on liability with costs. On 15 April 2020, Tower obtained an order for judgment against Hevilift in respect of damages for negligence. The judgment was entered in the amount of AUD$5,652,072.74, which is equivalent to K12,399,517.18.
  4. On application of Tower, this Court on 9 March 2021 made orders to register the judgment of the Qld Court in the National Court for enforcement purposes (registration of judgment). A sealed notice of registration of judgment was served on Hevilift’s lawyers via email on 1 April 2021. On 15 April 2021, Hevilift filed and served a notice motion together with an Affidavit in Support of Paul Booij. That motion was heard and reserved for a decision.
  5. With this factual background, I will turn to a consideration of the issues presented starting with the first issue first.
  6. This issue can be resolved by reference to the relevant law and facts. Turning first to the law, the starting point is the Reciprocal Enforcement of Judgments Act (Chp.5) (REJA). This Act provides for the registration and set aside of foreign judgments registered for enforcement in PNG. Section 5 of the Act is the most relevant provision. It provides for all the basis on which a judgement registered under the REJA can be set aside. The most relevant parts of s. 5 stipulates:

“5. Cases in which registered judgements shall, or may be set aside

(1) On an application duly made by any party against whom a registered judgement may be enforced, the registration of the judgement–

(a) shall be set aside if the registering court is satisfied that–

(i) ...

(ii) the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

...

(v) the enforcement of the judgement would be contrary to public policy in the country of the registering court; or

...

(2) Subject to Subsection (3), for the purposes of this section the courts of the country of the original court shall be deemed to have had jurisdiction–

(a) in the case of a judgement given in an action in personam–

(i) if the judgement debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for the purposes of–

(A) protecting, or obtaining the release of, property seized, or threatened with seizure, in the proceedings; or

(B) contesting the jurisdiction of that court; or

....

(v) if the judgement debtor, being a defendant in the original courts had an office or place of business in the country of that court and the proceeding in that court were in respect of a transaction effected through or at that office or place...”


  1. This provision has been the subject of consideration and application in a few cases already. A case that is almost on all fours is the decision of Kapi DCJ (as he then was) in Kalyk v. Atlas Corporation Pty Ltd (1998) N1760, cited by the Tower’s learnt counsel. That case also concerned an application for a set aside of registration of a foreign judgment. The judgment was obtained in the Supreme Court of New South Wales (NSW). An unpaid solicitor’s legal fees out of a contract formed in PNG was the subject matter. The defendant in the proceeding relied on two grounds; (a) that Supreme Court of NSW did not have the jurisdiction in the matter (b) that the registration of the judgment in PNG was against public policy.
  2. One of the key considerations was an interpretation and application of the phrase “submit to the jurisdiction of the court of the country of the original court by voluntarily appearing in the proceedings” under s. 5 (2) of REJA.
  3. In determining whether the actions taken by the defendant fall within the meaning of that phase, the learnt Deputy Chief Justice noted there was no dispute that the subject action was “an action in personam.” There was also no dispute that the Supreme Court of NSW otherwise had jurisdiction to adjudicate on the matter under NSW law. What was in issue was “whether the Supreme Court of NSW was deemed to have jurisdiction under s 5 (2) of REJA. The relevant legal issue then was “whether the actions taken by the defendant fall within the meaning of the words “submit to the jurisdiction of the court of the country of the original court by voluntarily appearing in the proceedings.”
  4. Counsels appearing before his honour failed to assist with any case authority on the meaning of the phrase in question. Unaided as he was, his Honour held:

“I interpret the words ‘appearing’ to mean personal appearance or by a legal representative in the proceedings. If the legislature had intended a meaning to cover filing of pleadings as an act of submission it would have used words to give effect to this intention. I find that the word ‘appearing in the proceedings’ can only relate to personal appearance or by legal representative in the proceedings.”


  1. Then turning to the case at hand, his honour went on to note that the relevant proceeding before the NSW Supreme Court was the second cause of action before that Court. Counsel for the defendant relied on the fact of his client contesting the jurisdiction of the Court and when the Court ruled against its application, his client’s subsequent withdrawal from further participation in the proceedings.
  2. Counsel for the plaintiff relied on several factors from which the court was asked to conclude that the defendant submitted to the jurisdiction of the Supreme Court of NSW. Those factors included:

“1. The issues in these proceedings be defined by pleadings.

  1. The Plaintiffs file and serve a Statement of Claim on or before 28th May 1993.
  2. The Defendant file and serve a defence on or about 18th June 1993.
  3. The Plaintiffs file and serve any affidavits on or before 2 July 1993.
  4. Liberty to either party to approach the Registrar to specifically fix the Defendant’s and Plaintiff’s motion for hearing.
(c) The defendant’s lawyers filed an amended notice of motion on 20 July 1993 and in September 1993 filed a further notice of motion and affidavits.

(d) By letter dated 17 August 1994, the defendant’s lawyers requested the plaintiffs’ lawyers asking them to consent to a vacation of the date of the hearing of the defendant’s notice of motion.

(e) It also appeared the defendant’s lawyers appeared before the Deputy Registrar on 10 November 1994, regarding directions in the matter.

(f) On the 13 February 1995, the defendant’s lawyers filed a defence in the matter.

15. Given these factors, the learnt Deputy Chief Justice dismissed the ground of lack of jurisdiction. His honour concluded and determined the issue in these terms:


“I conclude from these facts that the defendant by its lawyers appeared in the proceedings on several occasions. The solicitors subsequently ceased to act for the defendant. This did not affect the fact that the defendant had already submitted to the jurisdiction of the Court. The fact that the defendant failed to appear again in the proceedings and ultimately at the trial is irrelevant. The matter simply proceeded in its absence. I dismiss this ground.”


  1. Earlier in Stenhurst Pty Ltd v. Golding International Pty Ltd (1995) N1377 Andrew J., arrived at an opposite decision, upholding the defendant’s application for a set aside of a registered foreign judgment. That decision turned on the defendant appearing in the foreign court only to contest that court’s jurisdiction to deal with the matter. Thereafter the defendant took no further step in the proceeding. Judgment against the defendant was thus arrived at in the absence of the defendant. In the circumstances, his honour found the defendant did not submit to the jurisdiction of the foreign court within the meaning of S. 5(2) of REJA.
  2. Later in WorkCover Authority of NSW v. Placer (PNG) Exploration Ltd (2006) N3003, Lay J., dismissed an application for a registration of a foreign judgment. Amongst other grounds, his honour found the defendant did not make any appearance nor take any step in its defence in the foreign court. Given those facts his honour found the defendant did not voluntarily submit to the jurisdiction of the foreign court within the meaning of s.5 (2) of REJA. Hence, his honour was of the view that, any registration of the judgement would be liable for a set aside under s.5 (2) of REJA.
  3. Finally in Bexhill Funding Group Limited v. Basumel Limited (formerly MBA Limited) (In Liquidation) (2006) N3092, her honour, late Devani J., found amongst others that, the defendant did not submit to the jurisdiction of a foreign court. The only steps, the defendant took in those proceeding was in relation to a challenge on the question of the foreign court’s jurisdiction to deal with the matter. In that regard, the defendant filed, a conditional appearance and unsuccessfully raised the issue of jurisdiction. Having lost at the primary level, it appealed which was also unsuccessful. Thereafter in response to summary judgment applications, the defendant filed two applications. One was for an application for non-party discovery against a third party, and another an application for pre-summary judgment discovery against the plaintiff. Subsequently, however, the defendant chose not to pursue those applications and withdraw from further participating in the proceeding.
  4. The foregoing decisions are consistent with the dictates of s.5 (2) (i) of the REJA.

Applying the law to facts


  1. Applying the law as discussed above, the question in the present case is, what did Hevilift do in relation to the proceedings before the Qld Court? The evidence filed in this proceeding demonstrate the defendant did or failed to do the following:
  2. From these factors, it is obvious that, the defendant participated in the Qld Court proceeding from the beginning to the end. Instead of appealing against the decision on jurisdiction and or withdraw from any further appearance and participation, it accepted the decision on jurisdiction and proceeded onto participating fully in directions and interlocutory steps through to trial and decision on liability against it with damages to be assessed. The defendant then unsuccessfully appealed against that decision. After failing in the appeal, the defendant fully participated at the trial on assessment of damages, which included, making submissions on the question of damages to be assessed before final judgment.
  3. As the cases have elaborated, participating in proceeding in a foreign court beyond raising the issue of jurisdiction of such a court constitutes a deemed submission to the jurisdiction of that court. The ground of lack of jurisdiction for set aside of a registered judgment under s.5 (1) (i) and (2) (a) (i) (B) of the REJA is available in cases where a defendant does not personally appear or appears only for the purpose of raising the issue of jurisdiction and nothing more. Hence, if a defendant does something more than that, would amount to voluntary submission to a foreign court’s jurisdiction.
  4. In the present case, based on the factors noted above, I find the defendant did in fact submit to the jurisdiction of the Qld Court from it taking issue with that court’s jurisdiction through to the processes leading to the respective judgments on both liability and quantum. Having thus participated, it was open to the defendant to appeal to the appellant court in Queensland against the decision on damages, in much the same way as it did against the decision on liability. But for reasons only known to the defendant, it failed to appeal. This raises the question of can such a defendant be entitled to take issue with the final judgment and its enforcement. In my view, this is a public policy or interest issue that would operate against the defendant. The defendant is precluded from raising the issues it raised in the Qld Court and or failed to raise by way of an appeal against the registered judgment. Public policy requires finality in litigation subject only to ones right of appeal. See: Rimbunan Hijau (PNG) Ltd v. Enei (2017) SC1605, per Salika DCJ, Kandakasi J (as we then were) and Toliken J and Aihi v. Isoaimo (2013) SC1276, per Kandakasi (as I then was), Yagi and Hartshorn JJ. The Qld Court considered all the relevant matters and came to its final decision on liability and damages. If the defendant wished the QLD Court not to assume jurisdiction over it, it should have immediately withdrawn from further participating in the proceedings. The fact is, it fully participated in the way it did.

Would enforcement of the Qld Court judgment be contrary to public policy?


  1. Turning to the second issue, I note s. 5(1)(a)(v) of the REJA is the basis for this issue. The provision in simple terms states that a foreign judgment cannot be enforced if its enforcement will be contrary to “public policy”. This phrase has received a fair bit of judicial consideration, both in the National and Supreme Courts in a few contexts, including REJA. The relevant decisions emphasis difficulty in giving a precise and definitive meaning to the phrase. This is because the factors that might be relevant for public policy may vary from time to time as societies’ view of what is fair, right, wrong, and or what is acceptable or unacceptable, or what is generally regarded as injurious to the public interest may change as the societies views on these things changes from time to time. For cases on point see: Re Nali (No.3) [2003] PNGLR 19, per Gavara-Nanu J (chairman) and senior magistrate members, Manue and Monouluk); Francis Kalyk, Anthony John Deegan, and Bruce William Hansen v Atlas Corporation Pty Ltd (1998) N1760, per Kapi DCJ (as he then was).
  2. Despite that apparent uncertainty, certain factors have been held to present factors against any enforcement of a transaction or a judgment. This includes the following:

Application of the law to the facts


  1. In the present case, Hevilift submits:

“It is against Public Policy to allow this judgement to stand for the following reasons:

  1. The National and Supreme Courts of this country pride themselves as equals with comparable courts of the Commonwealth and others;
  2. In all the circumstances, if this court was to allow such a judgement to stand, it would be countenancing a condescending act against itself; it would be belittling its own stature in comparison to the Supreme Court of Queensland;
  1. A regrettable and dangerous precedent would be set where litigants would be unwittingly encouraged to legally engineer situations to give jurisdiction to suits in courts other than the competent courts of this country;
  1. It will most certainly ‘open the floodgates’ to copycat litigation in courts elsewhere; and
  2. Naturally, it will diminish public confidence in the courts of this land and foster court shopping elsewhere.”
  1. In support of that submission, Hevilift has not cited any decision of this Court or that of the Supreme Court or any other court. Not only is this submission not supported by any case precedent, but the submission goes against a well-accepted principle of law namely, international judicial comity. In my decision in Jeffery Dean Kennedy v. Adam Chin Cheah (2021) N8890, I noted that a United State Court’s decision by Justice Brown in Mast, Foos, & Co. v. Stover Mfg. Co. 8 [1900] USSC 107; 177 U. S. 485, 488 (1900), stated the relevant principles in these terms:

“Comity is not a rule of law, but one of practice, convenience, and expediency. It is something more than mere courtesy, which implies only deference to the opinion of others, since it has a substantial value in securing uniformity of decision and discouraging repeated litigation of the same question. But its obligation is not imperative. ... Comity persuades; but it does not command. It declares not how a case shall be decided, but how it may with propriety be decided. It recognizes the fact that the primary duty of every court is to dispose of cases according to the law and the facts; in a word, to decide them right. ...”


  1. I then commented:

“As will be apparent from the above statement of the principle, judicial comity is not a rule of law but is one of practice, convenience, and expediency. Through this practice, courts in different countries extend the courtesy of recognizing the powers and functions of each other in any given case and always try to avoid taking any step or action that might amongst others, amount to an interference with or otherwise adversely affect proceedings already commenced and pending in another court. This could result in a dismissal or a stay of proceedings pending the hearing and conclusion of the proceedings that are pending in the other court. This is necessary to possibly secure uniformity of decisions, discourage repeat litigation of the same question or issue, avoid taking much of the courts time and increased costs to the parties and the courts.”


  1. In the context of the present case, I conducted further research on the doctrine of judicial comity. That led me to the decision of the Supreme Court in Keith Kenneth Kingston v. Judith Merilyn Kingston & Anor (2020) SC2021. There the National Court, amongst other reasons for declining an application for leave to amend pleadings applied the doctrine of judicial comity. That it did without stating and discussing the doctrine. The Court reasoned that if the amendment was allowed it would allow for two different courts, one in Australia and another in PNG dealing with the same issue. On appeal against that decision the Supreme Court, per Anis J with whom Batari and Tamate JJ agreed held:

“I find that His Honour has correctly applied his discretion in that regard. The relief-property settlement was already pleaded by the first respondent in the Australian Family Court proceeding for determination. I must comment that this is perhaps a rare but fitting situation whereby I see judicial comity or international judicial comity being rationally exercised by the courts of both jurisdictions. And this is where the Courts of both jurisdictions are at, that is, after having considered and exercised judicial comities over the proceedings that are before them. An overturn of the primary judge’s decision by this review Court would, in my view, have the effect of breaching the already existing judicial comity rulings or regards as had been observed or exercised by the courts of both jurisdictions.”


  1. My further research has led me to a few more cases of the US Supreme Court, which includes its landmark decision in Hilton v. Guyot, [1895] USSC 185; 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895). There the Court stated the principle in these terms:

“No law has any effect . . . beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call the ‘comity of nations.’ Comity, in the legal sense, is neither a matter of absolute obligation on the one hand, nor a mere courtesy and good will upon the other. But it is a recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of persons under the protection of its laws.”


  1. In my view REJA, by written law, codifies and provides the basis upon which a foreign judgment can be registered for enforcement in PNG. REJA also provides for the basis on which a registration of a foreign judgment for enforcement in PNG may be set aside. In so doing, in my respectful view, Parliament having consider all things and more, so the very points or issues raised by Hevilift, enacted REJA. Consequently, I find Hevilift is raising points or issues already considered and determined by Parliament through the REJA and are therefore none issue. This renders the submission by Hevilift without any merit.

Final decision


  1. Based on the foregoing reasons, I find Hevilift’s application is without any, merit. Accordingly, I order a dismissal of the application. Additionally, I order costs to follow the event against the Hevilift to be taxed, if not agreed.

________________________________________________________________

Corrs Chambers Westgarth: Lawyer for the Defendant/Applicant

Leahy Lewing Sullivan: Lawyers for the First Respondent


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