Kerowa v Hargy Oil Palms Ltd [2011] PGSC 60; SC1262 (21 July 2011)

SC1262

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 57 of 2011

Between:

WAINE KEROWA
Appellant

And:

HARGY OIL PALMS LIMITED
Respondent

Waigani: Injia, CJ
2011: 21 July

SUPREME COURT – Appeal – Application for leave to appeal – Appeal against interlocutory judgment in dismissing application for leave to amend writ of summons in National Court proceedings - Applicant has shown cause for the trial process in the court below to be interrupted by this appeal -Application for leave is granted.

Counsel:

Mr Saka, for the Appellant
Mr Mukwesipu, for the Respondent

21st July, 2011

1. INJIA CJ: This is an application for leave to appeal against an interlocutory judgment given by the National Court in dismissing the applicant's application for leave to amend his Writ of Summons in proceedings referenced WS 298 of 2008 of 2006 Waine Kerowa v Hargy Oil Palm Limited.

2. The onus is on the applicant to establish a meritorious case for appeal. He must persuade the Court that there is an arguable case that there is an error in the exercise of discretion and that substantial injustice will be done if the decision is not corrected on appeal. Also relevant to take into account are two other important considerations, which stated in question form are as follows: Does the appellant have recourse in the Court below? Has cause been shown that the trial process should be interrupted by an appeal? (see Matiabe Oberia v Police and the State (2005) SC 801).

3. There is no contest between the parties that amendments to pleadings may be made by leave of the Court at any stage of the proceedings before judgment is given. Pursuant to O 8 r 50 of the National Court Rules, only necessary amendments may be made to the pleadings "for the purpose of determining the real questions raised or otherwise depending on the proceedings, or for correcting any defect or error in any proceedings".

4. The plaintiff commenced an action for damages in 2006 against the defendant for damage to his PMV truck as a result of the alleged negligence driving of a motor vehicle owned by the defendant. In its statement of claim, he pleaded the date, time and place of the accident, the negligent manner of driving of the defendant's vehicle driven by one of its employees, particulars of negligence, particulars of loss suffered and damages. The application to amend the pleadings was brought 4 years after the pleadings had closed.

5. There were two types of amendments sought by the applicant. None of those amendments sought was in the nature of introducing a new party to the proceedings or a new cause of action or to alter the nature of the claim brought against the respondent. If those were the types of amendments sought, they would normally be refused as those types of amendments do not come within the purview O 12 r 50 (2) of the National Court Rules.

6. The first matter for amendment was an amendment sought to include in the pleadings the plaintiff's registered business name "Kikuwa Pundi Trading" and two months after he went into business using his PMV under that business name, the PMV which was the main source of income, was damaged. In the Statement of Claim he did not plead that he conducted his business under that registered business name. The plaintiff did not seek any amendments to join the business as a party to the proceedings or to alter the description of the plaintiff's name in the proceedings to include the registered business name. Also in the pleadings the plaintiff did not seek damages for loss of business income or profit from business conducted under that business name. The trial Judge considered the amendment sought in this respect to be irrelevant to the case because the plaintiff conducted his PMV business under his private name. I tend to agree with the trial Judge and submissions of Mr Mukwesipu of counsel for the respondents that the amendment sought was of no material relevance or consequence to the plaintiff's claim. However I do not see any harm to the respondents if the Court below allowed the amendment on this point, for whatever it is worth.

7. The next series of amendments sought to clarify by way of re-drafting or re-wording of the Statement of Claim with respect to the cause of action in negligence and the particulars of negligence and to particularize the category of damages, so that the claim and issues for purpose of trial became more clearer for the Court and the parties. Amendments to introduce these sorts of matters, it is clear to me, comes within the purview of O 12 r 50. It was in the interest of all parties and the Court such amendments are allowed to be made.

8. The trial judge found that the proposed amendment would not change the scope of the claim and the defendant's defence, that the application was delayed by 4 years and the defendant stood to suffer prejudice to its defence and incur costs.

9. The trial judge's exercise of discretion appears to ignore the fact that the amendments were sought to make it easier, convenient and less costly for everyone including the Court, for improvements to be made to the pleadings at an early stage of the proceedings. I have perused the Statement of Claim and I note that the Statement of Claim is badly drafted and they needed to be improvised either before or during the course of the trial. Therefore, in my view, refusal of the amendment sought served no real purpose. In terms of prejudice to the respondent, they were entitled to file an Amended Defence if they wished to. In the circumstances, the delay in the application should have been more appropriately addressed by an order for costs in favour of the respondent. In the circumstances, I am satisfied that an error in the exercise of discretion has been demonstrated by the applicant and, on the face of the judgment, it is a serious error.

10. Does the interlocutory judgment cause substantial injustice to the applicant in terms of pursuing its claim in the court below? Mr Mukwesipu submits the applicant stands to suffer no prejudice because a fresh application can be made at any stage of the proceedings. In my view, the first application was determined on its merits and this may negate a fresh application to amend the Statement of Claim to introduce the same or similar types of matters, by application of the doctrine of res judicata. Alternatively, I accept Mr Saka's submission that a fresh application made before the same Court may not be treated fairly in the same way as any fresh application to amend pleadings are treated and that such application stands the risk of it being readily dismissed. It is for this reason that the applicant stands to suffer substantial prejudice if the matter continues on the existing Statement of Claim pleadings before the same court.

11. I am also satisfied that the applicant has shown cause for the trial process in the court below to be interrupted by this appeal.

12. For those reasons, the application for leave is granted.

13. In relation to costs of the application, costs should ordinarily follow the event but I will hear counsel on that now.
_____________________________________________
M Saka Lawyers: Lawyer for the Appellant
Gadens Lawyers: Lawyer for the Respondent