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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 70 0F 2010
MICHAEL KUMAN FOR AND ON BEHALF OF HIMSELF AND 158 OTHER CLAN MEMBERS OF THE AURA GUNUA CLAN
First Appellants
STEVEN DAMA FOR AND ON BEHALF OF HIMSELF AND 416 OTHER CLAN MEMBERS OF THE TOISINOWAI CLAN
Second Appellant
V
DIGICEL (PNG) LIMITED
Respondent
Waigani: Sakora, Cannings & Collier JJ
2013: 2, 9 May
PRACTICE AND PROCEDURE – dismissal of proceedings under Order 12, Rule 40 (frivolity etc), National Court Rules – whether reasonable cause of action disclosed.
This was an appeal against the decision of the National Court to summarily dismiss proceedings under Order 12, Rule 40(1)(a) of the National Court Rules for failure to disclose a reasonable cause of action. The appellants had in the National Court commenced proceedings against the respondent claiming damages for negligence, trespass and breach of constitutional rights arising from the respondent entering their customary land and erecting a telecommunications tower on it without following proper protocols and getting approval from the proper persons. The appellants claimed that the negligent and unlawful actions of the defendant were the cause of a tribal fight involving loss and damage and personal injuries to the appellants. The National Court dismissed the proceedings on the grounds amongst others that the pleadings of the appellants were deficient in that the elements of the tort of negligence, in particular that the respondent owed a duty of care to the appellants, were not sufficiently pleaded.
Held:
(1) Though desirable it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet.
(2) An appellate court should be slow to interfere with the exercise of discretion by the primary judge and must be satisfied that some identifiable error was made by the primary judge.
(3) Here, though the duty of care element was not expressly pleaded, the statement of claim was drafted in sufficiently clear terms to put the respondent on notice that it was required to meet a claim in negligence and also in trespass and breach of constitutional rights. A reasonable cause of action was disclosed.
(4) The primary judge's finding that there was no reasonable cause of action disclosed in the statement of claim was an identifiable error, warranting interference with the exercise of discretion.
(5) The appeal was accordingly allowed, the order of the National Court was quashed and the National Court proceedings were reinstated.
Cases cited
The following cases are cited in the judgment:
Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552
Curtain Bros (PNG) Ltd v UPNG (2005) SC788
Donoghue v Stevenson [1932] AC 562
Ijabiro v Isoi [2008] PGLLC 3
Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950
Michael Kuman & Ors v Digicel (PNG) Ltd, WS No 961 of 2011, 24.05.12 (unreported)
Oio Aba v MVIL (2005) SC779
Philip Takori v Simon Yagari (2008) SC905
Richard Manui v ANZ Banking Group (PNG) Ltd (2008) N3405
Sakaraias Akap v Kenneth Korakali (2012) SC1179
Stephen Punagi v Pacific Plantation Timber Ltd (2011) SC1153
APPEAL
This was an appeal against the summary dismissal of proceedings in the National Court.
Counsel
C M Gagma for the appellants
F Griffin for the respondent
1. BY THE COURT: This is an appeal from a National Court judgment of Justice Hartshorn given on 24 May 2012 in proceedings WS No 961 of 2011, Michael Kuman & Ors v Digicel (PNG) Ltd. His Honour dealt with an interlocutory motion brought by the defendant Digicel (PNG) Ltd ("Digicel"), seeking dismissal of the proceedings. His Honour upheld the motion and dismissed the proceedings in their entirety. The appeal lies without leave under Section 14(1)(a) of the Supreme Court Act as it is an appeal on questions of law against a final (not interlocutory) judgment (Oio Aba v MVIL (2005) SC779, Stephen Punagi v Pacific Plantation Timber Ltd (2011) SC1153).
HISTORY
2. The appellants are from Gunorobaro village, Chuave District, Simbu Province. They are the customary landowners of a land area described as "Mononotu". The first appellants are the clan leaders and clan members of the Aura Gunua Clan. Michael Kuman claims to be principal landowner of Mononotu, having bestowed upon him exclusive rights, by customary law of the people of Gunorobaro village, to deal with Mononotu including the first right of refusal over the usage of that land area. The second appellants are the clan leader and clan members of the Toisinowai Clan. Steven Dama claims to have had custom usage rights over Mononotu since pre-colonial times. The appellants claimed that under their custom both the principal customary landowner and their immediate relatives, and those with communal ownership and usage rights, must be consulted through their village leaders, and consent must be given before any dealings on the land takes place.
3. Digicel is a telecommunications company, registered as a body corporate under the Companies Act 1987. It is licensed under the Telecommunications Act and carries on business as a telecommunications service provider in Papua New Guinea. As part of providing telecommunications services in Papua New Guinea, Digicel constructs satellite communications towers across the country.
4. In late 2007 Digicel personnel visited Mononotu as a proposed site of a communications tower for Digicel, and negotiated with a person, Maina Munom, for the construction of a tower. The appellants claimed that Digicel did not consult them, and that Maina Munom did not represent the true landowners of Mononotu. The appellants also claimed that they contacted Digicel to seek to identify why Digicel had not contacted them, however their enquiries were ignored. Digicel (with the aid of Maina Munom) then commenced construction of a satellite communications tower on Mononotu. It was completed in August 2008, without a resolution of the dispute over land ownership and identity of the rightful beneficiaries.
5. In September 2008 a tribal fight erupted between the two clans. The appellants claimed the fight was caused by the outstanding dispute over the use of Mononotu. The appellants claimed that they suffered substantial losses and damage to their property and well-being.
6. In October 2009 a peace ceremony was held between the disputing appellants. Representatives of Digicel were present at the peace ceremony. The appellants claim that one of those representatives, Digicel's lawyer Mr John Munnull, advised them to compile a valuation report of the damage and losses they had suffered, and to present it to Digicel for possible settlement of claims against Digicel. The appellants also claimed that Mr Munnull made an undertaking to the appellants that Digicel would compensate them for their losses and damage.
THE APPELLANTS' STATEMENT OF CLAIM IN THE NATIONAL COURT
7. The appellants commenced proceedings by writ of summons against Digicel on 19 August 2011. In the statement of claim endorsed on the writ the appellants claimed, inter alia, that:
20. The actions and/or omissions of the employees, servants and/or agents of the defendant company, as pleaded in paragraphs 9, 10, 11, 12, 13 and 14 resulting in the losses and damage suffered through the tribal fight as pleaded in paragraph 22 to 27. The defendant company is vicariously liable for the negligent actions and omissions of its employees, servants and/or agents and for the losses and damage suffered by the plaintiffs as pleaded herein.
PARTICULARS OF NEGLIGENCE
21 The defendant through its said employees, agents, or servants:
(a) failed to carry out a due diligence study and/or investigation to ascertain the true landowners and beneficiaries of the site of the subject tower;
(b) ignored, failed and/or refused to utilize existing government protocols and/or consult officers from the Simbu Provincial Government land administrators, land mediators and/or local level government officials to ascertain proper authorisation in the process of carrying out the construction of the subject tower; and
(c) neglected, ignored, failed and/or refused to address the principal plaintiffs' dispute over ownership of the subject land area or site where the subject tower was constructed and allow the land ownership dispute to be settled before constructing the said tower.
22 The defendant company, through the actions of its employees, servants and/or agents as pleaded herein, trespassed onto the plaintiff's land.
PARTICULARS OF TRESPASS
The defendant through its employees, agents, or servants:
(a) entered the plaintiffs' land without lawful authority and/or consent of the principal plaintiffs as landowners of the subject land area where the subject tower is situated;
(b) caused to be constructed a satellite communication tower on the plaintiffs land without lawful authority;
(c) destroyed the plaintiffs' traditional "haus man" on the subject land area and replaced it with the said satellite communications tower;
(d) deprived all and each of the plaintiffs of their rights to privacy and peaceful enjoyment, and use of the subject land area.
23 By reason of the defendant company's negligence and trespass through the actions and/or omissions of its employees, servants and/or agents, which caused disputes as to the ownership of the subject land leading to a tribal fight amongst the clan members, each and all of the plaintiffs have suffered various losses and damage.
PROCEEDINGS BEFORE HARTSHORN J
8. On 7 May 2012 the respondent filed a notice of motion seeking dismissal of the proceedings pursuant to Rule 15(2)(d) and (e) of the Listing Rules 2005, Order 12, Rule 40(1) of the National Court Rules and the Court's inherent jurisdiction to control proceedings before it. The motion was supported by affidavits sworn by Mr Munnull, who represented Digicel in the proceedings. His Honour heard the motion on 14 May 2012 and delivered an oral judgment on 24 May 2012. In finding for the respondent his Honour stated:
The defendant Digicel applies to dismiss this proceeding on the grounds that it is an abuse of process, frivolous or vexatious and does not disclose a reasonable cause of action. Digicel relies on amongst others, Order 12, Rule 40(1) of the National Court Rules. The plaintiffs oppose the application. The plaintiffs claimed to be members of two clans that engaged in a tribal fight over the ownership of customary land. They claimed that the tribal fight and damage that occurred as a result was because of the actions of the defendant, Digicel, in constructing mobile communication tower on part of the subject land and its negligent actions in negotiating with incorrect landowners. Further, they claim that Digicel through one of its then employees gave an undertaking to pay for the damages suffered as a result of the tribal fight.
I consider whether the proceeding discloses a reasonable cause of action first. First, the plaintiffs plead in their statement of claim that Digicel by its employees gave an undertaking to pay for damages that occurred as a consequence of the tribal fight. This is denied in the defence. In the plaintiffs' reply, it is pleaded that employees of Digicel advised the plaintiffs to do a proper assessment and valuation before coming to Digicel for negotiations for possible settlement. An undertaking as such is no longer pleaded. The undertaking has been reduced to negotiations for possible settlement. Clearly, this is not the same as an undertaking and cannot lead to any success on this point at trial. The evidence of the plaintiffs also supports that an undertaking was not given as pleaded in the statement of claim. It is the case then that the proceeding does not disclose a reasonable cause of action based on an undertaking.
Apart from the undertaking issue, the plaintiffs' cause of action against Digicel is in negligence. It is pleaded that Digicel failed to perform certain actions and ignored or refused to follow certain protocols that were necessary in determining the two landowners and beneficiaries of the site upon which Digicel was to construct a communication tower. As a result of these purported failures and inactions, a tribal fight occurred between the tribes of the plaintiffs. The tribal fight was purportedly in relation to a dispute over the ownership of the site where the Digicel tower was constructed. The tribal fight resulted in eight persons dying, various personal injuries suffered and other loss and damage to property. I refer to this collectively as damage.
For the plaintiffs to succeed with their claim against Digicel, they must satisfy the elements of the tort of negligence. These are referred to in numerous cases in Papua New Guinea, and I specifically referred to the decision of Cannings J in Kembo Tirima v Angau Memorial Hospital Board (2005) N2779. The elements are: (1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant breached that duty; (3) that the defendant's negligent conduct caused the damage; (4) that the damage was not too remotely connected to the defendant's conduct; (5) that the plaintiff had not contributed to his damage, eg, contributory negligence or voluntary assumption of the risk. As to whether Digicel owed a duty of care to the plaintiffs, it is not pleaded that it did. If it was held that Digicel did owe a duty of care to the plaintiffs and that duty was a duty of care to ensure that none of its actions were likely to cause injury, loss or damage to persons as a consequence of the construction of its tower and if it was further held that Digicel breached that duty, can it be said that the damage that occurred was as a result of Digicel's breach of its duty of care?
It is pleaded that the damage occurred as a result of a tribal fight. A tribal fight consists of individual persons, the plaintiffs, committing independent acts against each other and against property. It is not Digicel, a company, committing these acts and it is not pleaded that any of Digicel's employees or agents committed the damages. There is no causal connection between any alleged breach of duty of care by Digicel and the actual damage allegedly sustained. It cannot be said that any negligence conduct of Digicel caused the damage. If it did, the damage is not remotely connected to Digicel's conduct. It is connected to the conduct of the persons, the plaintiffs, engaged in the tribal fight who performed their independent acts.
Further, the persons engaged in the tribal fight, the plaintiffs, were engaging in acts that are illegal. That is, engaging in a tribal fight and in causing death, personal injury and damaging property; all matters constituting offences or crimes. It has long been held that a claimant cannot succeed if in order to make good his claim he has to rely upon his own illegal conduct. This is based on the principle that the court will not allow its process to be used to further an object which is on its face illegal. I refer to the decisions of the House of Lords in Tinsley v Milligan (1994) 1 EC 340 and Moore Stevens v Stone Rolls Limited (2009) UKHL 39, persuasive decisions in this jurisdiction.
Here the plaintiffs are not entitled to recover as a consequence of their illegal acts. In an application to dismiss a proceeding for not disclosing a reasonable cause of action, the test to be applied has been variously expressed as being so obviously untenable that he cannot succeed and discloses a case which the court is satisfied cannot succeed and is obviously and almost incontestably bad. And I refer to the case of PNG Forest Products Pty Ltd v The State [1992] PNGLR 85.
From my perusal of the pleadings, I am satisfied that the above tests have been met as; it is not pleaded that Digicel owes a duty of care and has breached it. Further, it is doubtful that Digicel did owe a duty of care; even if it did, it was not breached. If it was breached, it did not cause the damage. The damage was not caused by Digicel's actions but by some of the plaintiffs' own independent acts and the plaintiffs cannot succeed as a consequence of their own illegal acts.
I am satisfied that the pleadings do not disclose a reasonable cause of action. Given this finding, it is not necessary to consider the other submissions of counsel.
GROUNDS OF APPEAL
9. The five grounds of appeal are lengthy and can be summarised as follows:
CONSIDERATION
10. His Honour's primary reason for dismissing the proceedings was that no reasonable cause of action was disclosed by the appellants' statement of claim, for the purposes of Order 12, Rule 40 of the National Court Rules, which states:
(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a) no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).
11. His Honour focussed on the appellants' failure to properly plead a cause of action in negligence. His Honour did not address the appellants' claims in trespass and breach of constitutional rights. To that extent there is overlap between grounds of appeal 1, 2, 3 and 4, so it is useful to examine these grounds together.
Grounds 1, 2, 3, 4
12. An authoritative restatement of principles relevant to summary dismissal of claims alleged to be frivolous or vexatious is in Philip Takori v Simon Yagari (2008) SC905. In that case the Supreme Court approved the following principles explained earlier in Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950:
Our judicial system should never permit a plaintiff or a defendant to be 'driven from the judgment seat' in a summary way, 'without a Court having considered his right to be heard'. A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.
At the same time however, the law, such as the Rules under consideration, provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.
The object of these rules are therefore 'to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable'. In other words 'the object of the rule was to get rid of frivolous actions'.
A claim may be frivolous if it can be characterized as so obviously untenable that, it cannot possibly succeed or that, the claim or defence is bound to fail, if it proceeds to trial.
A claim or defence may be vexatious, if the case amounts to a sham or one which, cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.
With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that, there are two parts to the phrase 'cause of action'. First, it entails a right given by law, such as an entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution, commonly referred to as, the 'form of action'. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.
The phrase 'cause of action' could thus be defined in terms of a legal right or form of action known to law with: 'every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.'
A statement of claim or a defence (as the case may be) must therefore, clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and the relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.
These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.
The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is 'obviously and almost incontestably bad.' In other words this discretion can be exercised only in cases that 'are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [or defendant] to what he asks' for.
Further, in Takori v Yagari the Court said:
Going by the arguments of the State, it is clear that, the attack on the appellants' statement of claim is really on the insufficiency of pleadings more than a total failure to disclose a reasonable cause of action. There is provision in the Rules in particular O 8 r 36, r 50 and r 51 to take care of and remedy these kinds of problems. It is not only a good practice but also fair and equitable for a defendant faced with such a bad pleading as might have been the case here, to request for further and better particulars from the party responsible for such poor pleadings or to amend the pleadings and plead with clarity and with all of the appropriate particulars. When such a request is not appropriately responded to or ignored, the party making the request would be entitled to apply to the Court for appropriate orders including remedial orders for any failures to comply with any such orders, at the cost of the defaulting party.
13. Having regard to those principles we consider that a reasonable cause of action in negligence was disclosed by the appellants' statement of claim and that his Honour erred in drawing the opposite conclusion. We have formed that view for the following reasons.
14. First, though desirable, it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet. Here, the failure of the appellants to unequivocally and specifically claim that the respondent owed them a duty of care does not mean that the statement of claim fails to disclose a cause of action in negligence, as the allegation of a duty of care is sufficiently apparent from the whole of the statement of claim. At the hearing before this Court Mr Gagma for the appellants submitted that the statement of claim disclosed a duty of care owed by Digicel to the appellants to undertake a due diligence study and/or an investigation to ascertain the true landowners and beneficiaries of site of the tower. We accept this submission. That the appellants claim this duty of care was owed to them by the respondent is apparent from, inter alia, paragraph 21 of the statement of claim.
15. Secondly, a key factor in determining whether a duty of care exists is whether the absence of reasonable care will result in an injury to the person's life or property (Donoghue v Stevenson [1932] AC 562). In this case the statement of claim clearly contains allegations that the consequences of the failure of Digicel to identify the true landowners (including acting upon an incorrect identification of the landowner) could cause damage to the true landowners, including to life and property. The statement of claim also contains detailed particulars of the basis of the appellants' claims, and the loss and damage suffered. To that extent we consider apposite the following observations by Gavara-Nanu J in Richard Manui v ANZ Banking Group (PNG) Ltd (2008) N3405:
Even if particulars of negligence may not have been properly or sufficiently pleaded in the statement of claim there were further particulars provided by the plaintiff regarding defendant's alleged negligence. Thus the defendant had been fully informed of the claim of negligence against it and the basis of such claim. This overcomes any insufficiency in pleading negligence in the statement of claim by the plaintiff.
16. The absence of the specific phrase "duty of care" from the statement of claim raises a technical (albeit important) question of pleading. However in our view this is a case where as in Takori v Yagari the attack on the appellants' statement of claim was really on the insufficiency of pleadings rather than a total failure to disclose a reasonable cause of action. As the High Court of Australia has observed, the conventional form of pleading in an action of negligence will not necessarily reveal the alleged duty with sufficient clarity for a Court considering an application for summary termination of the proceeding to be sure that all of the possible nuances of the plaintiff's case are revealed by the pleading (Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552). Any finding about duty of care will often depend upon the evidence which is given at trial, of which a Judge in an interlocutory proceeding does not have the full benefit.
17. Thirdly, we do not consider that there was a proper basis for his Honour, at an interlocutory stage, to conclude that there was no causal connection between the alleged breach of duty of care by Digicel and the actual damage sustained. It may well be that, on careful examination of the evidence at trial, the Court will reach that conclusion. However, we are not satisfied that the appellants' claim that the breach of duty by Digicel caused the loss and damage is "obviously and almost incontestably bad", such that it deserved to be summarily dismissed. We note the extensive evidence adduced by the appellants in support of their claim, which would require comprehensive evaluation in a trial.
18. Finally, we note the finding of his Honour that the damage allegedly sustained by the appellants was a result of their own illegal acts, and that accordingly no reasonable cause of action is possible on the face of the statement of claim. The appellants argued that his Honour failed to consider that tribal fights in the Highlands are a common and traditional way of resolving disputes. It is not appropriate for this Court, at this stage of the proceedings, in the absence of comprehensive argument, to express a concluded view on such an argument. The question again, however, is whether the pleading is obviously and almost incontestably bad. In our view, while perhaps somewhat startling as a general proposition, there is some authority which potentially forms the basis for the appellants' submission (see, for example, Ijabiro v Isoi [2008] PGLLC 3). We do not consider that this aspect of the appellants' claim is so unarguable that it ought to result in dismissal of the proceedings.
19. It follows that a reasonable cause of action in negligence was disclosed by the statement of claim. We find that his Honour erred in finding that no reasonable cause of action was disclosed.
Causes of action in trespass and for breach of Constitutional rights: grounds 1 and 4
20. The respondent submits that, notwithstanding that other causes of action were pleaded in the statement of claim (namely trespass and breach of constitutional rights) his Honour correctly found that the appellants could not recover damages as a consequence of their illegal acts (that is, the inter-tribal fighting). In light of our observations on the submissions of the appellants in relation to inter-tribal fighting and illegality, we consider that his Honour failed to consider the causes of action in trespass and for breach of constitutional rights pleaded by the statement of claim, and to that extent erred such that the present appeal ought to be allowed.
Undertaking to pay damages: ground 5
21. On this ground of appeal Mr Griffin for the respondent referred to the transcript of the hearing before his Honour where the following exchange took place between Mr Gagma for the appellants and the Bench:
HIS HONOUR: So is that the only evidence of this alleged undertaking?
MR GAGMA: Yes, there is no written documents specifying but there was response ----
HIS HONOUR: I said that is the only evidence that you have got?
MR GAGMA: Also Michael – Steven Dama's affidavit.
HIS HONOUR: But there is no undertaking there. It is just a round table discussion for possible settlement.
MR GAGMA: Yes.
HIS HONOUR: How is that an undertaking? Did it come close to being an undertaking? That would go against your client I would have thought. So what are you submitting to me now? You are submitting to me in respect of which point?
MR GAGMA: In respect of the representatives – representatives and also the power of attorney.
22. In light of the apparent concession by Counsel at the hearing that, in fact, no undertaking was given by the respondent to the appellants as claimed, his Honour's findings concerning the absence of an undertaking is not surprising. In our view there is no basis upon which those findings ought to be disturbed.
Additional issues raised by the respondent
23. The respondent also submits that the appeal before this Court should be dismissed because, in their notice of appeal, the appellants raise various matters which were not raised or put to his Honour for which leave is required and has not been obtained. The respondent submits that grounds 4 and 5 inclusive of the notice of appeal are not proper grounds of appeal because they raise issues of fact, for which leave is required under Section 14(1) of the Supreme Court Act. We do not accept these submissions.
24. As to the respondent's contention that the grounds of appeal raise issues not before his Honour, it is apparent from the transcript of the hearing before his Honour that Mr Gagma for the appellants made submissions concerning (inter alia) negligence in dealing with customary land, reasonable cause of action, duty of care, tribal fighting and the claimed undertaking to pay compensation for damages. The appellants in their written submissions in reply list, in detail, transcript references to these issues at the hearing, which we need not repeat.
25. As to the respondent's contention that grounds of appeal 4 and 5 raise issues of fact for which leave of the Court is required, the appellants submit that:
26. We accept the appellants' contentions. Leave was not required in respect of these grounds of appeal.
CONCLUSION
27. There is ample authority for the proposition that a party should not be excluded from litigation in a summary way without a Court having considered its right to be heard. To that extent, the exercise of the discretion to summarily dismiss a proceeding ought to be exercised sparingly. Equally there is ample authority for the proposition that an appellate court should be slow to interfere with the exercise of a discretion by the primary judge (for example, Curtain Bros (PNG) Ltd v UPNG (2005) SC788, Sakaraias Akap v Kenneth Korakali (2012) SC1179). The appellate court must be satisfied that some identifiable error was made by the primary judge in the exercise of discretion. In this case we are satisfied that his Honour erred in dismissing the proceedings in WS No 961 of 2011 on 24 May 2012.
ORDER
(1) The appeal is upheld.
(2) The order of the National Court in WS No 961 of 2011 of 24 May 2012 is quashed.
(3) WS No 961 of 2011, Michael Kuman & Ors v Digicel (PNG) Ltd, is forthwith reinstated in the National Court.
(4) Costs of and incidental to this appeal shall be paid by the respondent to the appellants, to be taxed if not otherwise agreed.
Judgment accordingly.
_____________________
Sirae & Co Lawyers : Lawyers for the appellants
Young & Williams Lawyers : Lawyers for the respondent
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