Lomai v Seal (Manus) Ltd [2008] PGSC 57; SC1326 (31 October 2008)

SC1326

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 74 OF 2006

PHILIP LOMAI
Appellant

V

SEAL (MANUS) LIMITED
Respondent

Waigani: Kirriwom J, Cannings J, Yagi J
2008: 28, 31 October

PRACTICE AND PROCEDURE – self-executing order – non-compliance – perfecting a self-executing order

APPEALS – grounds of appeal that challenge an earlier decision under guise of challenging a later decision

The National Court ordered a plaintiff to produce, by a set date, a copy of a contract, to sustain a breach of contract action, failing which the proceedings would be dismissed. The plaintiff failed to comply with the order, so the defendant applied by notice of motion to perfect the self-executing order and obtain an order of dismissal. The plaintiff filed a cross-motion, seeking an order to vary the original order. The Court dismissed the cross-motion and upheld the defendant's motion and consequently the proceedings were dismissed. The plaintiff appealed against the order of dismissal of the proceedings.

Held:

(1) The National Court did not err in dismissing the proceedings. The appellant failed to comply with a self-executing order and it naturally followed that the proceedings were dismissed.

(2) The argument that the self-executing order was flawed was without merit as the appellant had lost the right to appeal against that order and could not use the appeal against the order of dismissal as a vehicle to appeal against the first order.

(3) The appeal was dismissed, with costs.

Cases cited

Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Hadkinson v Hadkinson [1952] 2 All ER 567
Jack Livinai Patterson v PNG Law Society (2005) SC822

Counsel

S Kende, for the Appellant
A Baniyamai, for the Respondent

31st October, 2008

1. BY THE COURT: Philip Lomai, the appellant, commenced proceedings in the National Court seeking damages for unlawful termination from employment by the respondent, Seal (Manus) Ltd. In the statement of claim the appellant pleaded that he was employed by the respondent under a written contract of employment and had worked for two years with the company when he was unlawfully terminated.

2. The respondent denied ever employing the appellant. That was the sole issue in the case. During the course of pre-trial proceedings it became necessary for the appellant to produce a copy of the written contract of employment but none was produced. On 24 May 2006 Kandakasi J made a self-executing or conditional order directing the appellant to produce the written contract of employment by 7 June 2006, failing which the entire proceedings would stand dismissed with costs to the defendant.

3. This order lapsed without compliance by 7 June 2006, so on 9 June 2006 the respondent filed a motion to perfect the conditional order supported, by an affidavit of Allan Baniyamai sworn 8 June 2006. This motion was returnable in court on 14 June 2006 but in fact was heard by Gabi J on 16 June 2006.

4. On 15 June 2006 the appellant filed a cross-motion seeking dismissal of the respondent's motion of 9 June 2006 and orders setting aside or varying the conditional order of 24 May 2006 and for directions.

5. Gabi J was not distracted, quite rightly so, by the cross-motion belatedly filed in an attempt to detract from the real issue, and insisted upon the appellant producing the written contract or some other evidence of employment with the respondent, if he could not produce the written contract. No such evidence was produced. Two documents purporting to prove this fact were adduced through an affidavit he swore on 19 November, 2004 but they related to different entities called Kawang Timber Limited and Manus Lumber Pty Ltd which have no connection with the respondent. Gabi J dismissed the entire proceedings for non-compliance with the order of Kandakasi J. Against the decision of Gabi J, the appellant appeals.

GROUNDS OF APPEAL

6. There are four:

1. The court erred in dismissing the substantive action on the basis of non-compliance of the direction of 24 May 2006 of Justice Kandakasi when the said court direction was based on an erroneous premise that the appellant's written contract of employment was not in his possession when there was evidence by affidavit of the appellant sworn 19 November 2004 which supported the existence of the contract and there was also a cross-motion filed 15 June 2006 seeking an extension of the self-executing orders or to have the directions set aside as they were granted on misguided facts.
   
2. The court erred in not hearing the cross-motion which could have addressed the erroneous premise on which the conditional orders were issued by Kandakasi J on 24 May 2006.
   
3. The court erred in failing to take into consideration the grounds stipulated therein.
   
4. The Judge erred in failing to distinguish between a "court order" and "court direction" and their meaning and effect.
   

NO DISTINCTION BETWEEN COURT ORDER AND COURT DIRECTION

7. We first address the last ground, the purported distinction between a court order and a court direction. This is really a non-issue, in the same way as ground 3 is. His Honour no doubt considered such arguments irrelevant, as they had the effect of avoiding the real issue, instead of addressing it. The ground of appeal contending a distinction between a "court order" and a "court direction" was not raised in the court below and was never agued; it is being raised for the first time in this appeal.

8. The law has been abundantly stated that issues not raised in the trial court cannot be raised on appeal without the leave of the Supreme Court or agreement/consent of the parties (Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853. The court must not needlessly be drawn into discussing such issues or matters unless the interests of justice required it.

NO ARGUMENT AS TO HOW PRIMARY JUDGE ERRED

9. With regard to ground 3 the appellant has not demonstrated how the primary judge erred in not considering the grounds stipulated therein. It makes no sense on the face of it and we dismiss it. It has been abundantly made clear that the onus is on the appellant to substantiate his grounds with credible argument that the decision of the trial judge is wrong and unless corrected grave injustice will result.

FAILURE TO APPEAL AGAINST ORIGINAL ORDER

10. Grounds 2 and 3 are basically challenging the legality of the orders of 24 May 2006 of Kandakasi, J. The appellant contended that the orders made by Gabi J dismissing the appellant's appeal cannot be allowed to stand because his Honour relied on the self-executing order made by Kandakasi J on 24 May 2006 which the appellant said was wrong.

11. This order was never challenged either by application to set aside or by an appeal against it. All that the appellant did was file a motion on 15 June 2006 seeking dismissal of the defendant's motion filed 9 June 2006 or in the alternative, an order for to set aside or to vary Kandakasi J's self-executing or conditional order of 24 May 2006.

12. It was strongly contended before us that these grounds of appeal were misconceived as they were challenging the decisions of Kandakasi J that the appellant was already precluded from raising now when he failed to appeal it or have it set aside at the time it was made. His right to challenge this order was already extinguished with the appeal time already lapsed. He therefore could not use the decision by Gabi J as the basis for his appeal against an earlier appeal. The court was referred to Jack Livinai Patterson v PNG Law Society [2005] SC822 where the Supreme Court was strongly critical of this practice:

The issue in this appeal, is whether the trial judge had erred in dismissing the appellant's appeal before the National Court for failing to comply with the Court's orders for discovery of documents? The appellant's responsibility in this appeal was to demonstrate to the Supreme Court where the trial judge had gone wrong in dismissing his appeal? Why does the appellant say that the trial judge should not have dismissed his appeal although he may not have complied with the court orders for discovery of documents?

The appellant did not address this issue but instead he challenged the orders of 19th November, 2003 under the shadow of the orders of 11 February, 2004. He had already foregone his right of appeal against this judgment by not challenging it earlier and he was already three months out of time. Either by deliberate choice or misunderstanding the appellant wants this court to believe or accept that he had done everything right since lodging his appeal against the decision of the Lawyers Statutory Committee but Justice Kandakasi dismissed his appeal without giving him an opportunity to be heard. He has not once faced the reasons for the dismissal of his appeal squarely, and honestly inform either the National Court or this Court as to why he failed to comply with the order for discovery of documents when the best he presented was that he had provided those documents to the Committee and those were sufficient for the Court to rely on in the hearing of his appeal.

13. We agree with the respondent that the appellant is prohibited by law from couching his grounds of appeal in the way he had phrased them because in reality he is challenging the decision of Kandakasi J although the appeal is against the decision of Gabi J. These grounds are incompetent and must be dismissed.

14. Litigants and especially lawyers representing their clients must take heed of court orders and comply with them. Orders or directions given by the court are to be obeyed by all parties who seek redress through the courts and all persons to whom the order relates. A party may not like an order made but as long as it remains in force, he must obey its command. This has been emphasized many times over in this jurisdiction in reported and unreported cases including Patterson v PNG Law Society (supra) where the Court said when quoting the often cited principle of Hadkinson v Hadkinson [1952] 2 All ER 567 which states (per Lomer LJ) at p 569:

It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham LC, said in Chuck v Cremer [1846] EngR 924; (1846) 1 Coop T Cott 205; 47 ER 820: "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.

15. For future guidance of practitioners of the law in representing the best interests of their clients, we make these observations in the light of a practice adopted in this case that is both negligent and even misleading the court to say the least. The appellant sued the defendant for damages for wrongful termination from employment. The lawyer accepted the client's instructions that there was a written contract of employment between himself and the respondent. No such written contract of employment was produced to the lawyer by the client. Without even satisfying himself that there was such a written contract of employment between the appellant and the respondent, the lawyer drafted the pleadings on behalf of the appellant specifically stating that the employment was governed by a written contract of employment when in fact the lawyer himself did not even know or see if there really was one. The respondent filed a defence denying that it even employed the appellant.

16. When requested by the court to advise whether the contract was governed by a written contract of employment, the lawyers persisted that there was written agreement. But the truth of the matter was that the lawyers never sighted any written contract of employment. They took their client's word for granted that there was a written contract and wanted to call evidence to prove that a written contract was entered into.

17. The appellant through his lawyer contended before us that Gabi, J's dismissal of the entire proceeding denied him the opportunity to call witnesses to prove the existence of this written contract that he insisted was in the custody of the respondent and which the respondent through its appropriate officer denied the existence of such a contract and denied the respondent company having any record of employing the appellant at all.

18. But the fallacy of this argument was that not only was it so shallow, it was also short-sighted. Proof of the existence of contract according to oral testimony of alleged eye-witnesses was one thing, but the proof of the contents of the agreement itself was quite a different thing altogether. It is contrary to common sense and logic pursuing this line of reasoning when the respondent maintained it never employed the appellant and never executed any written contract of employment with him at all. How else did the appellant think he was going to prove his case if he could not produce the written contract of employment that he did not have, let alone a copy of it, in his possession?

SIGNIFICANCE OF FAILURE TO COMPLY WITH CONDITIONAL ORDERS

19. The appellant has failed to demonstrate to the court that Gabi J had fallen into error in dismissing the entire proceeding when the appellant himself had failed to comply with the conditional orders that were made to be obeyed within a certain or specified date. He did not immediately file any application either before or soon after the expiry of the time when the orders were to have been complied with seeking extension of time while cognizant of the difficulty he was faced with. Instead he waited until after the respondent had filed a motion to perfect the conditional order when he belatedly filed a motion seeking dismissal of the respondent's motion or to set aside or vary Kandakasi, J's self-executing order which was also not in breach of Order 4, Rule 42 of the National Court Rules on filing and service of motions.

20. The appeal is dismissed with costs.
_________________________________________________
Lomai & Lomai Lawyers: Lawyers for the Appellant
Baniyamai Lawyers: Lawyers for the Respondent