Kolam v Eoe [2024] PGNC 117; N10780 (26 April 2024)

N10780

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 336 OF 2023

BETWEEN:
JOEL KOLAM AS THE ACTING CITY MANAGER OF LAE URBAN LOCAL LEVEL GOVERNMENT
-First Plaintiff-

AND
PAUL WIWI & 94 OTHER EMPLOYEES OF LAE URBAN LOCAL LEVEL GOVERNMENT
-Second Plaintiff-

AND
HON. SOROI MAREPO EOE, MP AS MINISTER FOR PROVINCIAL & LOCAL LEVEL GOVERNMENT AFFAIRS
-First Defendant-

AND
DEPARTMENT OF PROVINCIAL & LOCAL LEVEL GOVERNMENT AFFAIRS
-Second Defendant-

AND
ROBIN CALISTUS ACTING CHIEF EXECUTIVE OFFICER OF LAE CITY AUTHORITY
-Third Defendant-

AND
LAE CITY AUTHORITY
-Fourth Defendant-

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fifth Defendant-

Lae: Dowa J
2024: 26^th March & 26^th April

PRACTICE & PROCEDURE – Motion to re-open case –Grounds of – not given opportunity to contest the defendant’s affidavits filed and served a day before the hearing- -hearing completed-matter reserved for decision-plaintiff had opportunity at the hearing to object to the use of the affidavits or seek adjournment of hearing – failed to set out the proposed fresh evidence-application did not meet the criteria for trial to be reopened -application amounted to an abuse of the process-refused in the interest of justice.

Cases Cited:
Jace Lundu Yalao -v- MVIL (1995) N1386
Parao Tunboro -v- MVIL [1984] PNGLR 273
Pupu -v- Kupo (2020) N8572
Leo Duque v Avia Andrew Paru [1997] PNGLR 378
Harold v Haro (2004) N2647

Counsel:
J. Alu, for Plaintiffs
N. David, for the Fourth & Fifth Defendants
N Kibikibi, for the First, Second and Third Defendants

DECISION

26^th April 2024

1. DOWA J. The Plaintiff applies for leave to re-open the trial conducted on Tuesday 19^th March 2024.
   

Background

2. By Notice of Motion filed 25^th March 2024, the Plaintiff seeks orders under Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution that:
   
   1. Leave be granted to the Plaintiff to re-open the trial.
      
   2. The trial conducted on Tuesday 19^th March 2024 be declared a mistrial.
      
3. The Plaintiff relies on the affidavit of his lawyer, Mark Alu sworn and filed 25^th March 2024.
   
4. The Plaintiff’s application was contested by the Defendants on the grounds that the trial was concluded, and the matter is now reserved for decision.
   

Background

5. The substantive matter is a class action. The Plaintiffs numbering up to 94 are employees of Lae Urban Local Level Government. A Ministerial Direction has been issued under Section 20 of the Lae City Authority Act by the first Defendant, the Minister for Provincial and Local Level Government, to the Lae City Authority and the City Manager to process and complete a redundancy and termination of the Plaintiffs. The Plaintiffs contend that the Ministerial decision is flawed as their employment terms are governed by the Public Service General Orders and the Public Service (Management) Act. In the substantive proceedings, the Plaintiffs are seeking various declaratory reliefs basically to nullify the decisions and actions taken by the Defendants.
   

Hearing on 19^th March 2024

6. The substantive matter was fixed for hearing on 19^th March 2024 by consent of parties. The hearing proceeded on 19^th March 2024. At the hearing all parties were represented by counsel. The trial proceeded in this manner. The parties agreed to use their respective Affidavits, followed by submissions. The Parties relied on their respective written submissions which have been filed as per earlier directions of the Court. During the hearing, the Plaintiff relied on three affidavits. The first and second Defendants relied on one Affidavit while the third and fourth Defendants relied on six (6).
   
7. After the conclusion of the hearing, Mr. Alu, counsel for the Plaintiffs, applied for the adjournment of the hearing so he could cross examine some of the deponents to the affidavits relied on by the Defendants. Mr. Alu submitted that the affidavits were served very late, and his clients did not have the opportunity to respond and that there was a need to cross examine the witnesses. The application was opposed by counsel for the Defendants.
   
8. The Court reserved its ruling on the application until 26^th March 2024. On 26^th March 2024, the Court delivered its decision refusing the application. The Court reasoned that the hearing was concluded, and the matter was to be reserved for decision and that the application came very late procedurally.
9. After the ruling, the Plaintiff proceeded with the current application filed on 25^th March 2024 in anticipation of an adverse ruling. I heard the application and reserved which I now deliver.
   

The Application

10. The Plaintiffs apply for leave to reopen the trial under Order 12 Rule 1 of the National Court Rules. The reasons for application are set out in the affidavit of Mr. Mark Alu, counsel for the Plaintiff, sworn and filed 25^th March 2024.
    
11. Mr. Alu deposes that on the day of hearing, 19^th March 2024, the third and fourth Defendants used affidavits that he was not anticipating. He was not given notice that the defendants would use those affidavits and he was taken by surprise. Mr. Alu says, in the same manner, counsel for the first and second Defendants relied on an affidavit that was filed on 15^th March 2024 but not served on the Plaintiffs and as counsel for the Plaintiff he was also taken by surprise. He says his clients were deprived of the right to reply or respond to the affidavits.
    
12. Mr. Alu complains that the trial proceeded irregularly, did not follow the procedures in the Listing Rules and that Sections 35 and 36 of the Evidence Act were not followed, alleging his clients were denied the opportunity to cross examine the deponents.
    
13. Counsel for the Defendants oppose the application, submitting that the Plaintiffs’ complaints are matters the Plaintiffs’ lawyer had control. He could have objected to the use of the affidavits or applied for an adjournment at the start of the hearing. After allowing the hearing to proceed to a completion it is far too late to complain.
    

Issues

14. The main issue for consideration is whether the Court should allow the Plaintiffs to re-open the case.
    

Law

15. The application is made pursuant to Order 12 Rule 1 of the National Court Rules, and it reads:
    

“1. General relief. (40/1)

The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process.”

16. The Court has a discretion to grant a party leave to re-open his case where it deems necessary to do justice in the circumstances of each case. Refer: Jack Lundu Yalao -v- MVIL (1995) N1386, Parao Tunboro -v- MVIL (1984) PNGLR 273, Harold v Haro (2004) N2647 and Pupu -v- Kupo (2020) N8572.
    
17. The decisions in Yalao v MVIL and Tunboro v MVIL involve the application to re-open trial to call fresh evidence. The relevant considerations for the exercise of discretion set out in Tunboro are:

“(1) the effect of the fresh evidence on the state of the case when made

(2) that the fresh evidence would, if believed, probably affect the result;

(3) that the fresh evidence could not with reasonable diligence have been adduced before;

(4) that the fresh evidence is not merely confirmation of the plaintiffs case

(5) that the fresh evidence was not omitted by inadvertence;

(6) that the fresh evidence was not omitted by deliberate election; and

(7) that it is in the interests of justice that the fresh evidence be admitted.”

18. In Yalao v MVIL (supra), Injia J (as he then was), held that the application of the considerations in Tunboro are neither inclusive nor are they exhaustive. What is important is the nature and importance to the parties of the evidence sought to be led if the case were to be re-opened.
    
19. The present case is not really one for calling fresh evidence. The considerations in Tunboro may not applicable. This is because the Plaintiffs did not indicate what evidence they intend to call. The initial hearing was conducted on 19^th March 2024. They had sufficient time to prepare the evidence they propose to call if the Court were to grant them the application.
    
20. Did the Plaintiffs provide good reasons in support of the application. The Court recalls the parties wanted a hearing of the matter as soon as practicable due to the nature of the issues involved. Mr. Alu of counsel for the Plaintiffs applied for a date for hearing on 19^th February 2024. When fixing the date for the hearing, the Court directed the parties to file and serve affidavits they intend to rely on. The latest Affidavit filed is for one Philip Leo on behalf of the second Defendant. This Affidavit was served on the Plaintiffs lawyers on 15^th March 2024, about 4 days prior to the hearing. At the hearing, the Plaintiffs’ counsel did not take issue with any of the Defendants’ Affidavits they introduced and relied on in their submissions. It was only after the parties had all concluded their submissions that the Plaintiff applied for an adjournment of the hearing. Everyone including the Court were surprised at the sudden decision of counsel for making such an application after the hearing was completed. Of course, the Defendants opposed the application for the obvious reason that the matter was just completed. The Court in its ruling on 26^th March 2024, refused the application, citing the Plaintiffs application was an abuse of the Court process.
    
21. The Plaintiffs’ lawyer blames everyone else except himself. He says the trial was rushed. No Notice of Hearing was filed and Sections 35 and 36 of the Evidence Act was not utilized, and his clients were denied the opportunity to cross examine the deponents or file responding affidavits.
    
22. If there is anyone to blame, it should be the Plaintiffs Lawyer himself. He asked for a hearing date. When the date was given, he is responsible for filing and serving a Notice of Hearing. If he wanted to cross examine the deponents to any of the Affidavits, he should have filed the relevant notices under the Evidence Act. If he was not served a copy of the affidavits or was served late, he could have objected to the use of the affidavits or seek an adjournment at the start of the hearing. He allowed the hearing to proceed to a completion and complained after the matter was to be reserved for decision.
    
23. The proceedings did not commence by way of pleadings. It was initiated by Originating Summons under Order 4 Rule 3 (2) of the NCR. The evidentiary matters filed in support of the application were countered by the Defendants in filing their own Affidavits. The substantive matter involves substantially the interpretation and the application of the Public Service (Management) Act, and the Lae City Authority Act and the Memorandum of Understanding executed between Lae ULLG and the Lae City Authority pursuant to Section 4 of the LCA Act regarding staff employment matters.
    
24. The application to reopen did not set out what the Plaintiffs intend to do. Is this an application to call fresh evidence or some rebuttal evidence to the evidence called by the Defendants. They have not filed any affidavit or set out the “fresh evidence” they intend to call should the Court grant them leave. If the Court were informed of the proposed evidence, the Court would consider and determine its utility by applying the considerations set out in the Tunboro case. The Court cannot grant open ended orders allowing the parties to start all over again. That will amount to an abuse of the Court process. There must be finality to litigation.
    
25. In my view. there are no good reasons for the trial to be re-opened. The trial was fixed by both counsel on 19th February 2024, a month back. The matter was fixed for trial on19th March 2024. All parties presented their evidence and submissions.
    
26. The Plaintiffs were not denied their rights to be heard. They were given the opportunity. If the Plaintiffs case did not proceed the way they wanted, that is a matter for counsel involved. A lawyer’s failure to carry out his professional duty resulting in a lost opportunity to object to use of affidavits or apply for adjournment is not a valid reason to re-open the trial. See; Leo Duque v Avia Andrew Paru (1997) PNGLR 378. To reopen the case, after counsel consciously allowed the hearing to proceed to a completion will set a bad precedent. The Court has a duty to protect the Court processes and not subject itself to abuse. It is not in the interest of justice to grant the application sought by the Plaintiffs.
    
27. I will therefore dismiss the application to reopen the case for the purpose of calling evidence. The matter will proceed to a decision on the substantive issues on a date to be advised.

Costs

28. As the application is refused, the Plaintiffs will pay for the Defendants’ cost of the application.
    

Orders

29. The Court orders that:

1. The Plaintiffs’ application to reopen the trial is refused.
2. The Plaintiffs will pay the Defendants’ cost of the application.
3. The substantive matter is reserved for decision on a date to be advised.
4. Time be abridged.
   

_________________________________________________________
Supersonixs & Alu Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the First, Second and Fifth Defendants
David & David Co Lawyers: Lawyers for the Third & Fourth Defendants