PNG Tropical Wood Products Ltd v Gramgari [2013] PGSC 83; SC1145 (18 December 2013)

SC1145

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 11 of 2013

BETWEEN
PNG TROPICAL WOOD PRODUCTS LTD
Appellant

AND
MANUEL GRAMGARI
Respondent

Waigani: Salika, DCJ, David and Logan, JJ
2013: 16 and 18, December

APPEAL – Practice & Procedure – Appeal from National Court – Pleadings – Material facts sufficient to ground cause of action in trespass pleaded in statement of claim - trespass

Cases Cited:
Papua New Guinea Cases

Cresseri and Korowi v Halla Resources Corporation [1985] PNGLR 294
Uma More v. University of Papua New Guinea [1985] PNGLR 401

Overseas Cases

Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd [1991] FCA 536; (1991) 32 FCR 379
Dare v Pulham (1982) 148 CLR 658
Konskier v B Goodman Ltd [1928] 1 KB 421
Philip Morris Inc v Adam P Brown Make Fashions Pty Ltd (1981) 148 CLR 457

Counsel:

Mr K J Peri, for the Appellant
No appearance for the Respondent

18^th December, 2013

1. BY THE COURT: The National Court Rules, Order 8, rule 8(1) provide that, “A pleading of a party shall contain only a statement in summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved.” In so doing, that rule states for Papua New Guinea’s superior court of general jurisdiction a practice with respect to pleading which has come to prevail throughout the English common law world since the late 19^th century Judicature Acts (Supreme Court of Judicature Act 1873 (UK) and Supreme Court of Judicature Act 1875 (UK)) and the rules of court subsequently made following those Acts by the High Court of Justice for England and Wales. This appeal raises an important point of practice and procedure concerning what one might term post-judicature pleading. The question for resolution arises in the following way.
   
2. Mr Gramgari, the plaintiff below and the respondent to the appeal, pleaded in the statement of claim facts which were sufficient to ground a cause of action in trespass against PNG Tropical Wood Products Ltd (TWPL), one of the defendants below and the appellant in this appeal. By that we mean that the plaintiff alleged that he was the lawful owner of the land in question, that TWPL had entered his land so as to conduct forestry operations, that this entry and those operations occurred without authority either by his permission or by permit under statute and that, in so doing, TWPL had harvested valuable timber and caused environmental damage. He claimed royalties in respect of timber taken and damages. He did not, in terms, use the word, “trespass” in the statement of claim. Instead, he characterised the facts pleaded as giving rise to alleged causes of action against TWPL constituted by contraventions of the Forestry Act 1991 (PNG) and the Environment Act 2000 (PNG).
   
3. The learned trial judge found that, on the evidence, the two statutes mentioned had been contravened but that neither gave rise to a cause of action maintainable by a private individual, as opposed to liability to a penalty in the event that proceedings were instituted against TWPL by a public official. His Honour also found that each of the elements of a claim in trespass had been proved by Mr Gramgari as against TWPL. He therefore found that liability to damages had been proved and reserved to a later date the assessment of those damages. TWPL now appeals by leave against the judgement in respect of liability. A grant of leave was necessary because the judgement in respect of liability alone was interlocutory.
   
4. In the National Court TWPL submitted that a failure on the part of Mr Gramgari to refer to trespass in his statement of claim was fatal to his ability to make the company liable in damages for trespass. It is this proposition which grounds the appeal.
   
5. The trial judge rejected this proposition, holding that a claim for damages in trespass could be inferred from the material facts pleaded in the statement of claim. His Honour stated:
   

“Despite the absence of the word "trespass" the essence of the plaintiff's claim is unlawful entry by the defendants upon land that he claims is his, damage to that land and consequential pain and suffering by the plaintiff. As Bredmeyer J stated in Cresseri and Korowi v Halla Resources Corporation [1985] PNGLR 294 the function of pleadings is to give fair notice to a defendant of the case which has to be met and to define the issues which the court will have to decide. I agree with Mr Tenige that it would have been preferable for the statement of claim to have expressly referred to trespass and to have spelt out the elements of the cause of action more clearly, but I do not think it can fairly be said that the defendants have been taken by surprise by being required to answer an allegation of trespass. The statement of claim gave fair notice of the case that the defendants had to meet and adequately defined the issues that had to be decided by the court. The defendants' defence addresses the elements of a cause of action in trespass by challenging the plaintiff's ownership of the land and the assertions, that they unlawfully entered the land and interfered in the plaintiff's enjoyment of it. The claim for liability in trespass is properly before the court.

6. In expressing in Cresseri and Korowi v Halla Resources Corporation [1985] PNGLR 294 at 298 the view that, “the function of pleadings is to give fair notice to a defendant of the case which has to be met and to define the issues which the court will have to decide” Bredmeyer J, was expressing a view shared by the other members of the court, Amet and Los JJ. That view was not, as will be seen, idiosyncratic.
   
7. When it is recalled that the rules require no more and no less than that a pleading must state material facts it can be seen that a pleading serves to put the opposing party on notice as to the factual case that party must meet. In this sense, a pleading serves the end of ensuring a procedurally fair trial. It also gives the opposing party an opportunity to decide, whether that party may be liable in law or, as the case may be, have a good defence on the pleaded facts such that the case ought to be conceded or compromised in some way. A pleading also alerts the court, when read in conjunction with the opposing party’s pleading, to the factual issues which will fall for adjudication. In that adjudication, the court must apply the law to the facts as found. In so doing, the court is not bound by whatever characterisation in law of those facts the party may have incorporated into the pleading. If, truly, the facts pleaded do establish a cause of action known to law then the court is obliged so to conclude.
   
8. The correct position with respect to post-judicature pleading was stated by Barwick CJ in Philip Morris Inc v Adam P Brown Make Fashions Pty Ltd (1981) 148 CLR 457 at 472-473:
   

“It is worth observing at this point that in what has come to be known as judicature or fact pleading, it is not necessary for the pleader to set out or to limit himself to a cause or causes of action which he asserts as a basis for the relief he claims. Indeed, he need not specify a cause of action (using that expression in the pre-judicature sense) at all: it is sufficient that he alleges the facts he seeks to prove and the relief he claims. Of course, no pleading will be supportable if those facts cannot support a right to relief and, in that sense, perhaps a looser sense than the pre-judicature sense, support a cause of action. If it does not it will be susceptible of being struck out, be demurrable in the language of more formal days.

In these days of free and ready amendment it may not be fatal if the facts alleged would not, if proved, entitle the plaintiff to the particular relief he claims, provided that the facts would entitle him to some relief within the jurisdiction of the court, though in strictness a pleading amendment may be necessary. It was otherwise in common law pleading. In that system the pleader would assert his cause of action in conventional form rather than the facts upon which he relied to establish it. But, although we are still accustomed to speak of a cause of action set up by a judicature pleading, such a statement is in truth somewhat of an anachronistic description”.

9. TWPL’s challenge really amounted to a solicitation to return Papua New Guinea, notwithstanding the rule of court we have mentioned, to a pre-judicature pleading system with all of the formality and pedantry that entailed. That is not to suggest that if, for example, the facts pleaded in a statement of claim do not disclose a cause of action known to law that the statement of claim may not be struck out. If, however, as here, the facts as pleaded do disclose a cause of action in trespass then it is nothing to the point that a plaintiff may have chosen to characterise those facts as giving rise to a different cause of action, in this case a breach of alleged statutory duties.
10. This point is illustrated by Konskier v B Goodman Ltd [1928] 1 KB 421. In that case, the plaintiff/respondent framed his pleading in negligence against the defendant/appellant, which had carried out certain building demolition work on a block of land adjoining that which the plaintiff/respondent had come to own. The plaintiff/respondent was not in occupation of the premises at the time of the demolition work, but came to occupy the premises at a time when debris from the demolition which remained on those premises occasioned her loss and damage. The trial judge found for the plaintiff/respondent on the basis of negligence, which reflected the way in which counsel for the plaintiff/respondent had opened the case at trial. On appeal by the defendant/appellant, the Court of Appeal accepted its submission that there could be no continuing negligence without a continuing duty. The appeal was nonetheless dismissed and the judgment below was allowed to stand on the basis that, on the undisputed facts, a cause of action in trespass was made out. The presiding judge, Scrutton LJ, at 427, stated:

[A] plaintiff is not now bound to state the legal effect of the facts on which he relies; he is only bound to state the facts themselves, and we cannot see that the respondent has suffered any injustice in the way of being shut out from giving evidence which he might have given if the action had been treated as an action in trespass.

The other members of the Court of Appeal, Sargant and Greer LJJ, each delivered short concurring judgments.

11. The following observations by a Full Court of the High Court of Australia in Dare v Pulham (1982) 148 CLR 658 at 664 with respect to the functions of pleadings and particulars state, accurately, not just a position which prevails in Australia but also, given analogous provision in the National Court Rules, in Papua New Guinea as well:
    

“Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) (1916) 22 CLR 490, at p 517; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron (1936) 54 CLR 572, at pp 576-577; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195, at p 207). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at pp 111, 112, 27), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437, at p 446; 50 ALJR 666, at p 668)”.

12. This was not a case where the parties at trial departed from the pleadings. Mr Gramgari not only pleaded but also proved to the trial judge’s satisfaction the very facts he alleged in the statement of claim.
    
13. The appellant particularly relied upon Uma More v. University of Papua New Guinea [1985] PNGLR 401, especially the observation made, at 405, that, "a party cannot obtain relief which has not been requested or sought in the pleadings." In that case, the National Court had granted injunctive relief against persons in circumstances where those persons were not named as parties in the proceedings. The Court further stated at 405:

"... in civil proceedings it is essential to observe and follow established practice and procedure if or no other reason than to avoid confusion, uncertainty and consequences which are either unexpected and or unsought."

14. As a general statement this observation is, with respect, true but, if applied uncritically and out of context, it is apt to mislead the reader in relation to the position which prevails with respect to post-judicature pleadings. Unlike Uma More v. University of Papua New Guinea, this is not a case where the court granted relief against a person not named as a party to the proceedings, only against a person who was named and who had the benefit, via the statement of claim, of the factual case Mr Gramgari sought to make against him. The rules with respect to pleadings are meant to be the servants of justice, not its master. When a member of the Federal Court of Australia, French J (as the present Chief Justice of Australia then was), observed, in Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd [1991] FCA 536; (1991) 32 FCR 379 at 391:
    

“The substantive goal of this Court is to do justice between parties according to law. That objective is not to be compromised by undue rigidity in the application of the procedural requirements which are its handmaidens”.

The same is true of the National Court in Papua New Guinea. Its “substantive goal” is to do justice according to law.

15. When, in the proceeding under appeal, the learned trial judge gave judgment for Mr Gramgari on the basis of his finding that facts alleged in the statement of claim sufficient to establish a cause of action were proven, he did no more than or no less than do justice according to law. Further, prior to his Honour’s reserving judgment, TWPL was offered an opportunity to make submissions as to why it was that it was not liable in trespass, having regard to the facts pleaded and proved. It was therefore not denied natural justice.
    
16. For these reasons, the appeal must be dismissed. Mr Gramgari, as is his right, having chosen not to appear on the hearing of the appeal or earlier to file any written submission, there should be no order as to costs.
    

Orders

17. The Orders of the Court are:
    
    1. The appeal is dismissed.
    2. There be no order as to costs.

__________________________________________________________
Peri Lawyers: Lawyers for the Appellant