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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 87 0F 2005
JOHN FRANCIS IHARI
Appellant
V
MOTOR VEHICLES INSURANCE LIMITED
Respondent
Waigani: Injia DCJ, Batari J, Cannings J
2006: 26, 30 June
PRACTICE AND PROCEDURE – application for adjournment of proceedings – duty of Judge hearing application to accord procedural fairness to the party applying for adjournment – relevant considerations when determining application for adjournment.
The appellant commenced proceedings in the National Court, applying for more time to give notice to the respondent of his intention to make a claim for damages arising out of a motor vehicle accident. During the hearing of the application the appellant's counsel realised that a key affidavit was missing and applied for an adjournment of three days to file an appropriate affidavit. The trial Judge refused the adjournment application and proceeded to dismiss the matter on the ground that the relevant evidence was not before the court. The appellant appealed on the ground that the Judge wrongly exercised his discretion to refuse the application for an adjournment.
Held:
(1) A Judge hearing an application for adjournment of any proceedings is bound by the principles of natural justice to hear the explanation sought to be given by the party seeking the adjournment.
(2) The party applying for an adjournment has the onus of showing why an adjournment should be granted, ie why refusal to adjourn would result in injustice to it.
(3) The court must determine each such application on its merits, after taking into account a range of considerations including: whether previous adjournments have been granted; whether the party seeking the adjournment is doing so for an improper or unethical purpose; whether the adjournment is opposed; whether other parties would be prejudiced by the adjournment; whether the court would be unduly inconvenienced by an adjournment; whether a long or indefinite adjournment is sought; and whether it is in the interests of justice to refuse the adjournment.
(4) In the present case the trial Judge did not give an opportunity to the party seeking the adjournment to explain why it was sought. Nor did the Judge take into account relevant considerations in refusing the adjournment. There was a breach of the rules of natural justice and an error in the exercise of the Judge's discretion. The appeal was upheld and the matter remitted to the National Court.
Cases cited
The following cases are cited in the judgment:
Abiari v The State (No 2) [1990] PNGLR 432
Marcus Amito Cullinan v Australia and New Zealand Banking Group (PNG) Ltd (2004) N2754
Mauga Logging Company Pty Ltd v Southern Pacific Oil Palm Development Pty Ltd (No 2) [1977] PNGLR 467
Melina Limited trading as CN Mercantile v Fred Martens (2001) N2183
Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355
APPEAL
This was an appeal against the dismissal of an action in the National Court, following refusal of the trial Judge to allow an adjournment.
Counsel
R Uware, for the appellant
J Naipet, for the respondent
30th June, 2006
1. BY THE COURT: This case raises the issue of how a court should deal with an application for adjournment of proceedings. It is an appeal against a decision of Jalina J in the National Court, in which his Honour refused to allow a party more time to give notice of his intention to make a claim for damages arising out of a motor vehicle accident. During the hearing of the matter the appellant's counsel realised that a key affidavit was missing and applied for an adjournment of three days to file an appropriate affidavit. The Judge refused the application and proceeded to dismiss the proceedings on the ground that the relevant evidence was not before the court. The appellant appealed on the ground that the Judge wrongly exercised his discretion to refuse the application for an adjournment.
2. The appeal is focussed on the issue of whether the primary Judge erred in refusing the application for the adjournment. The appeal is not about the merits of the substantive matter that was before the National Court, ie whether there was sufficient cause to allow the appellant more time to give notice of his intention to make a claim against the respondent.
THE PARTIES
3. The appellant, John Francis Ihari, claims that he was injured in a motor vehicle accident. He wanted to bring court proceedings against the respondent but did not give notice of his intention to make a claim within the statutory time limit of six months. The respondent, Motor Vehicles Insurance Ltd, is a company established under statute as the country's compulsory third party motor vehicles insurer.
4. The appellant says that on 11 August 2004 he was injured in a motor vehicle accident in Waigani, National Capital District. He says he was a passenger in a car that collided with another car. He obtained a road accident report from the police. He was obliged by the Motor Vehicles (Third Party Insurance) Act to make any claim for damages arising out of the accident against the respondent. And before making the claim he was obliged by Section 54(6) of the Act to give notice of his intention to make a claim within six months after the date of the accident or within such further period allowed by the Insurance Commissioner or the National Court. Section 54(6) states:
No action to enforce any claim under this section lies against the successor company [ie the respondent, the MVIL] unless notice of intention to make a claim is given by the claimant to the successor company within a period of six months after the occurrence out of which the claim arose, or within such further period as—
(a) the Commissioner; or
(b) the court before which the action is instituted,
on sufficient cause being shown, allows.
5. On 11 February 2005 the six-month period expired and no notice had been given by the appellant. On 20 February 2005 the appellant approached the Public Solicitor for advice, and on 25 February 2005 the Public Solicitor wrote to the Commissioner requesting more time. On 30 March 2005 the Insurance Commissioner refused to allow more time.
6. On 8 April 2005 the appellant filed an application in the National Court, by originating summons, asking that a further period be allowed under Section 54(6)(b). The application was heard and determined by Jalina J on 8 July 2005. His Honour refused the application and it is that refusal which is the subject of this appeal.
THE NATIONAL COURT PROCEEDINGS OF 8 JULY 2005
7. The application under Section 54(6)(b) was heard amongst a number of other short matters and motions on the morning of 8 July 2005. The transcript shows that it occupied 18 minutes of the court's time. The first half of that period was taken up by the primary Judge satisfying himself that the respondent (then the defendant) had been given proper notice of the hearing. The respondent was not represented, whereas Mr Uware of the Office of the Public Solicitor (also counsel in this appeal) appeared for the appellant (then the plaintiff). Mr Uware commenced his address to the court by saying that the application was to seek an extension of time to comply with the requirements of the Motor Vehicles (Third Party Insurance) Act. He said a number of affidavits supported the application. His Honour asked if the appellant had applied for an extension of time to the Commissioner. Mr Uware replied that yes, an application was made but the Commissioner had refused it and the letter of refusal was annexed to an affidavit. He tried to explain why the Commissioner had refused it. The following exchange ensued between Mr Uware and his Honour:
MR UWARE: Yes. And, your Honour, the main reasoning why the Insurance Commissioner declined the application is simply because he could not verify the name of the plaintiff in the police accident report. I think that is the reason why he declined. And the affidavit---
HIS HONOUR: Well, I mean, the police accident report, he may have done that. The police accident report may specify him as one of a passenger or whoever was injured or was killed. But the real evidence or what needs to be shown is why he failed to give notice within six months.
MR UWARE: Yes.
HIS HONOUR: Now, does he depose to that in his affidavit?
MR UWARE: Well, your Honour, the---
HIS HONOUR: That is the reason. Why did he fail to give notice within six months? Bishop David Hands' affidavit – I have just quickly noted and that only goes to establishing the fact that he was a passenger in the vehicle. The real reason in order to obtain extension of time from this court is to show why he allowed time to expire. Where does he say that? Is there anything in his affidavit? Mr Uware, you might have to hurry up because there are other lawyers waiting.
MR UWARE: Your Honour, in his affidavit he does not depose to anything, but if I ---
HIS HONOUR: Then on what basis do I grant an extension of time. If he does not give me the reason why he failed, on what basis do I grant the extension?
MR UWARE: Well, your Honour, the ---
HIS HONOUR: The defendant – not the defendant but the respondent in the application, MVIL is not saying that he was not injured and all that. They are simply saying he has failed to give notice within the six months so it is for him to establish to the court's satisfaction why he failed to give notice within six months.
MR UWARE: Well, your Honour, there is no explanation by the plaintiff himself, but if I can ---
HIS HONOUR: Then for what reason do I grant the extension? For what reason do I accept that it is a good reason so I should grant the extension?
MR UWARE: Your Honour, perhaps if I can have the matter adjourned to Monday.
HIS HONOUR: No, you have argued it. You have argued it. You are not going to adjourn it because I pointed it out.
MR UWARE: But your Honour, there is a – he has not stated that in his affidavit.
HIS HONOUR: Well, you are the lawyer representing him. It is not him, you are the lawyer. It is for you to have ensured things that should be put before the court to satisfy the court are put before the court in a proper way.
MR UWARE: But your Honour, if I can point out the affidavit by myself, annexure A.
HIS HONOUR: Your affidavit would be hearsay, would it not on this aspect? It would be hearsay on this aspect. It is for him, he was the one who failed to give notice. It is for him to tell the court why he failed to give notice. Who else would give the reason? I can appreciate him saying if he instructed a lawyer before and he says, well I instructed my lawyer and you are the lawyer who is supposed to give notice and why the lawyer did not do it, I do not know. That is understandable, but if this has come first time before the lawyer and the lawyer has failed to do that, to ensure that there is in the applicant's own affidavit reason as to why he failed to give notice then he suffers the consequence. There is nothing? There is no reason there. I have looked at the affidavit of the applicant.
MR UWARE: Yes. Your Honour, perhaps to do justice to this case, perhaps I would ---
HIS HONOUR: Well, justice is a two way street. Justice is a two way street. The other side needs justice too. It is not a one sided thing, justice. Justice has to be done to both sides. It does not have to be done to one side only. So I am afraid Mr Uware, I dismiss your application.
MR UWARE: As your Honour pleases.
8. To summarise, his Honour dismissed the application to allow further time to give notice to the respondent, as he was not satisfied that sufficient cause to allow further time had been shown. There should have been an affidavit by the applicant himself (not his lawyer) giving an explanation as to why he failed to give notice within six months after the accident. There was an affidavit by the appellant but it did not give any reasons for his delay.
9. As to the application for an adjournment, his Honour reasoned that Mr Uware had argued the application and he could not get it adjourned simply because his Honour had pointed out a problem to him. As the lawyer with carriage of the matter he should have ensured that the necessary material was before the court. His Honour concluded that he had to do justice to both sides – not just one side. Therefore he dismissed the application.
THE APPEAL
10. The two main grounds of appeal are first that the primary Judge wrongly exercised his discretion by refusing the application for adjournment and secondly that his Honour prejudiced the rights of the appellant, who was a victim of a motor vehicle accident.
11. The second ground is a consideration to take into account in the exercise of the primary Judge's discretion. It is not a proper ground of appeal and therefore it is dismissed. The main ground of appeal is simply whether the primary judge erred in law by refusing the application for adjournment. That gives rise, on the facts, to two issues:
APPELLANT'S SUBMISSIONS
12. Mr Uware argued this appeal and drew the court's attention to the transcript of the National Court proceedings which, he submitted, showed that the primary Judge had not given him a chance to explain why the appellant had not given notice within six months. He argued that the interests of justice demanded that the adjournment be granted as the effect of refusing the adjournment was that the appellant lost all his rights to damages arising from the motor vehicle accident. An adjournment of only three days was sought, and the other side was not represented. There would have been no prejudice to anybody by granting the adjournment. On the other hand the appellant was severely prejudiced by not being granted the adjournment sought.
RESPONDENT'S SUBMISSIONS
13. Ms Naipet submitted that the primary Judge had properly exercised his discretion to refuse the adjournment as the appellant's application for more time had already been argued. To allow an adjournment would be to give a party a second chance to do something that it should have done in the first place. The appellant is bound by the way that his lawyer conducted the case in the National Court. The lawyer only realised the mistake that had been made when it was pointed out by the primary Judge. It would not have been in the interests of justice for the primary Judge to grant the adjournment so that the lawyer could cover his oversight.
THE FIRST ISSUE: DID THE PRIMARY JUDGE ACCORD THE APPELLANT THE RIGHT TO BE HEARD ON THE QUESTION OF ADJOURNMENT?
14. Everything that happens inside a courtroom must comply with the principles of natural justice, also known as procedural fairness, enshrined by Section 59 of the Constitution (principles of natural justice), which states:
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
15. There are two aspects of natural justice: the Judge must give a right to be heard to the parties before making a decision that affects their interests and the Judge must not be biased or seen to be biased. These principles apply not only to the major decision that the Judge makes at the end of a case as to who wins and who loses but also to judicial decisions made during the course of a case, eg whether to admit evidence, whether to allow an objection to a question asked during examination of a witness and whether to grant a party an adjournment. An adjournment might be sought for good reason or bad. Whatever the case it is the Judge's duty to give the party seeking it the right to be heard on the question of whether it is to be granted and to listen to what is said in support of the application.
16. In the present case those duties were we respectfully consider not discharged by the learned primary Judge. As soon as the appellant's lawyer mentioned "perhaps if I can have the matter adjourned to Monday" his Honour replied:
No, you have argued it. You have argued it. You are not going to adjourn it because I pointed it out.
17. His Honour did not allow the lawyer to say much else. His Honour was, with some justification, not impressed by the lawyer coming to court without being properly prepared. The key piece of evidence was missing. We can appreciate why his Honour was frustrated by the lawyer's apparent incompetence. Nevertheless, his Honour should have listened to the application. But he did not listen. We conclude that the appellant was denied his right to be heard.
THE SECOND ISSUE: DID THE PRIMARY JUDGE TAKE INTO ACCOUNT ALL RELEVANT CONSIDERATIONS WHEN DETERMINING THE APPLICATION FOR ADJOURNMENT?
18. The considerations a court should take into account when dealing with an application for adjournment were canvassed by Kapi DCJ, as he then was, in Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355. His Honour was dealing with an application for adjournment of a complex trial, and stated:
Where a date has been fixed well ahead of time, the matter should proceed on that date. The reason is obvious; all parties would make arrangements towards the commencement of the trial on that date. Therefore, the onus is on the applicant to show why an adjournment should be granted. Or, to put the matter differently, the applicant must show why a refusal to adjourn would result in injustice to him. In considering the interest of the applicant, the court must also weigh the interest of the respondent. The question arises whether to grant an adjournment would result in injustice to the respondent. The applicant must show actual prejudice and not merely speculative prejudice. That is to say, the applicant must demonstrate from evidence the nature of the prejudice. A party whose interest may be prejudiced by the trial going ahead on the date of the hearing must make the application for adjournment promptly. This is important not only for the opposing party but also important for the court to readjust its calendar should the application be successful.
19. Similar considerations have been expressed in a number of other National Court cases. In Mauga Logging Company Pty Ltd v Southern Pacific Oil Palm Development Pty Ltd (No 2) [1977] PNGLR 467 Kearney J stated that the question to be kept in mind is: what is expedient in the interest of justice? The party making the application must show some reasonable cause. The absence of a particular lawyer who has carriage of the matter would not by itself amount to a reasonable cause. The adjournment application was refused. In Melina Limited trading as CN Mercantile v Fred Martens (2001) N2183, Kandakasi J refused an adjournment application after a non-complex civil trial was set down one month in advance but on the day of the hearing the lawyers for both parties agreed that the case be adjourned. His Honour held that the court was not bound by the lawyers' agreement and noted the dangers of granting adjournments too freely:
It has also become common practice for some lawyers and parties to turn up on the eleventh hour and apply for adjournments and in some cases, with the consent of the parties. They often forget the trouble and the expenses the Courts are put through to allocate its scarce time for the hearing of a particular matter which could have been better utilized on another matter. When parties do not get themselves organized and ready to proceed with a trial, it unnecessarily wastes the Court's time and takes up time that could have been allocated to other matters which could have been listed on that day and help minimize the growing list of cases.
20. In Marcus Amito Cullinan v Australia and New Zealand Banking Group (PNG) Ltd (2004) N2754 Gavara-Nanu J granted an adjournment application, after taking this approach:
Thus, the test to be applied when deciding whether to grant adjournment to the party seeking adjournment is, whether the refusal of the application would be in the interest of justice. If the refusal of the application would result in injustice to the applicant, then the refusal would not be in the interest of justice. The interest of the respondent would be considered and taken into account in the process and as a matter of course.
21. In Abiari v The State (No 2) [1990] PNGLR 432 there was a sharp divergence of views amongst three members of the Supreme Court on the question of whether an adjournment should be granted to the State to allow witnesses to arrive from out of town to give additional evidence in the course of an appeal. The majority (Kapi DCJ and Los J) refused the application for adjournment, while Amet J strongly dissented. There was, however, agreement as to the considerations the court should take into account: the conduct of the parties and their lawyers; the effect of an adjournment on the administration of justice; whether an open-ended adjournment or an adjournment to a fixed date and time was sought.
22. From all of these cases it is possible to discern general principles that any court should adopt when a party applies for an adjournment. The onus of satisfying the court that an adjournment should be granted rests on the party applying for it. The overriding consideration is whether an adjournment would be in the interests of justice. Determination of that question is a matter of discretion, which must be exercised judicially after weighing relevant considerations, the main ones being:
23. The above considerations have been couched so that an affirmative (yes) answer favours granting an adjournment, while a negative (no) answer will work against granting it. The considerations should be weighed against each other in the exercise of the court's discretion.
24. In the present case, the learned primary Judge focussed on consideration No 9: he considered that the adjournment application was occasioned by the negligence of the applicant's lawyer. However, his Honour failed to take the other considerations into account. Had he done so he would, we feel, have exercised his discretion differently. The considerations would probably have been assessed as follows:
25. Ten of the suggested considerations would have favoured granting the adjournment. Only two would have worked against it. This suggests that the interests of justice strongly favoured granting the adjournment. By failing to consider a number of relevant considerations his Honour erred in the exercise of his discretion.
REMEDIES
26. There was a breach of the rules of natural justice and an error in the exercise of the Judge's discretion. The appeal will therefore be upheld and the matter remitted to the National Court for further hearing.
COSTS
27. The general rule is that costs follow the event, ie a successful party has its costs paid for by the losing party. The question of costs is a discretionary matter. We will make no order for costs in this case as the appeal was necessitated by the failure of the appellant's lawyer to bring the necessary evidence before the National Court.
JUDGMENT
28. The Supreme Court will direct entry of judgment in the following terms:
Judgment accordingly.
______________________________________
Public Solicitor: Lawyer for the Appellant
Mirupasi Lawyers: Lawyers for the Respondent
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