Sauga Vanimo Forest Products Ltd [2004] PGSC 6; SC755 (22 July 2004)

SC755

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCA 90 of 2004

BETWEEN:

FRANK SAUGA, RICHARD AMBALO,
ANTON ANI, GODFRED PALANGA,
PETER KANAI for and on behalf of
themselves and 569 others
Applicants

AND:

VANIMO FOREST PRODUCTS LIMITED
Respondent

Waigani: Kapi CJ.
15th, 22nd July 2004

APPLICATION FOR LEAVE TO APPEAL – The test is whether there is an arguable case.

COSTS – Awarded against lawyers on indemnity basis

Counsel:
I. Mambei for the Applicants
J. Bradshaw for the Respondent

22nd July 2004

KAPI CJ: This is an application for leave to appeal against interlocutory orders made by the National Court (Davani J) on 16th June 2004. The application for leave to appeal is brought under s 14 (3) (b) of the Supreme Court Act. There is no dispute that the orders sought to be reviewed are interlocutory orders.

The circumstances giving rise to this application may be summarized as follows. The Applicants filed cause of action against the Defendant for damages, particularly for unpaid entitlements under their respective contracts of employment.

Several interlocutory applications were filed by the parties for determination by the National Court. So far as it is relevant for the present purposes, the lawyers for the Respondent filed Notice of Motion to dismiss the proceedings (WS 1145 of 2003) for (a) the Applicants’ failure to file and serve the List of Documents and (b) failure to file Consent and Authority to Act forms.

The National Court did not dismiss the proceedings but instead ordered that:

(a) the Applicants’ List of Documents filed on 5th February 2004 be struck out; and that
(b) each of the Applicants file a List of Documents within 14 days;
(c) the three Consent and Authority to Act forms filed by filed by Applicants be struck out and new ones be filed within 14 days.

The Applicants filed Application for Leave to Appeal against these orders. It is this application which has come before me to determine whether leave to appeal should be granted to appeal against the orders.

It is necessary to set out the background to failure on the part of the lawyers for the Applicants to file List of Documents and Consent and Authority to Act forms.

Lawyers for the Respondent initially filed Notice of Discovery on 8th January 2004. In response, the lawyers for the Applicants filed List of Documents on 5th February 2004.

On 8th March 2004, the parties came before Sevua J. Before his Honour, there were several applications for determination. It is not necessary to set out the full details of these applications for the present purposes. Amongst other things, the Applicants sought an extension of time in which to file a proper List of Documents as well as proper Consent and Authority to Act forms.

The reason for this became apparent before Sevua J on 8th March 2004. Counsel for the Respondent pointed out the defects in the List of Documents as well as in the Consent and Authority to Act forms. After the defects were pointed out to his Honour, the following exchange took place between the Sevua J. and counsel for the Applicants on page 27 of the Transcript of the proceedings:

"HIS HONOUR: What about your list of documents?

MR MAMBEI: That is correct, your Honour. What we have taken is that if the court can concede to give us directions in relation to the list of documents.

HIS HONOUR: No, I am not going to issue directions. I intend to dismiss your application and make orders that you must comply with.

MR MAMBEI: Your Honour if you think---

HIS HONOUR: Because if you are complaining about time, I am going to issue a self executing order. And if you do not comply, the whole proceedings are dismissed.

MR MAMBEI: Thank you Honour. Very well.

HIS HONOUR: You cannot come to court with all these muddled up documentations and come and waste the court’s time in what seems to be not knowing where the head is from the tail.

MR MAMBEI: That is correct, your Honour. What I seek now is that if you can give us all enough time, my friend here and myself---

HIS HONOUR: I am going to direct that you file another amended statement of claim, all right, and you plead everything that is supposed to be pleaded by these 574 plaintiffs. You understand?

MR MAMBEI: That is correct, your Honour. I am not fully aware of how to go about pleading for the 574 in one claim. What I have taken is, since---

................................

HIS HONOUR: All right, the orders I make are that the plaintiffs’ applications is dismissed. The plaintiff is to file and give a new notice of discovery within 14 days. Number three, the defendant shall respond in accordance with the rules of court."

His Honour pointed out the defects in the documents and expressed the need for counsel for the Applicants to correct the defects in no uncertain terms. No formal orders were made, but it was obvious to counsel for the Applicants that he had to rectify the defects.

Subsequent to this hearing, lawyers for the Respondent pointed out to lawyers for the Applicants the need to rectify the defects in the documents. Consistent with this, Lawyers for the Respondent filed a further Notice of Discovery on 18th March 2004 requiring each of the Applicants to give Discovery of Documents. The Applicants were served by way of letter dated 19th March 2004. This did not draw any response from the Applicants.

In letter dated 13th April 2004, lawyers for the Respondent wrote and advised lawyers for the Applicants and drew their attention to the fact that they failed to give proper Discovery of Documents and that no proper Consent and Authority to Act forms had been filed. In the same letter, lawyers for the Respondent gave the Applicants 7 days within which to comply. They warned that if the Applicants did not comply, they would consider making application to court for appropriate orders. When the Applicants failed to comply, lawyers for the Respondent applied to dismiss the Applicants’ action.

This application came before Davani J. The National Court did not dismiss the action but instead gave the Applicant’s further opportunity to file proper List of Documents and proper Consent and Authority to Act forms within 14 days. The Court further ordered that the lawyers pay the costs of the application on an indemnity basis.

The question before me is whether grounds exist to grant leave to appeal against the orders of the National Court. The proper test is, whether, there are any arguable grounds for determination by the Supreme Court. This does not involve determination of the merits of the appeal.

Counsel for the Respondent submits that there are no arguable grounds of appeal. He submits that the defects in the List of Documents and the Consent and Authority to Act forms were pointed out before Sevua J on 8th March 2004 and counsel for the Applicants conceded these defects and he was advised to file new documents in no uncertain terms. He submits that the National Court (Davani J) simply gave the Applicants further time within which to comply.

Counsel for the Applicants on the other hand, submits that the trial judge erred in not giving longer period in which to file the new documents because it is extremely difficult to contact his clients and some of the clients have died.

I find that there is no arguable ground in this case. The Applicants have had plenty of time since 8th March 2004 to file proper documents. Having regard to the circumstances in this case, the trial Judge was generous in giving further opportunity to file the appropriate documents.

Moreover, if counsel for the Applicants requires further time in which to file the documents, counsel could apply for extension of time. No such application has been made.

Having regard to the fact that the lawyers have had since 8th March and the correspondence by lawyers for the Respondent to correct the defects in the documents, there is no basis for appealing against the orders made by the National Court.

Counsel for the Applicants further submits that there are grounds for leave to appeal against the award of costs against the lawyers. I do not find any merit in this submission. Lawyers for the Applicants were made aware of the defects in the documents and they were given sufficient warning to correct the defects. The application by lawyers for the Respondent to dismiss the claim was prompted by the failure of the lawyers for not taking the appropriate action. Their clients should not pay for the costs of the application in the circumstances of this case. I am not satisfied that there are any arguable grounds in this regard.

For all these reasons, I refuse leave to appeal with costs to the Respondent. In the circumstances, the lawyers for the Applicant should bear the costs of this application on an indemnity basis.
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Lawyers for the Applicants: Mambei Lawyers & Consultants
Lawyers for the Respondent: Blake Dawson Waldron