Wasis v Elias [2016] PGSC 5; SC1485 (23 February 2016)

SC1485

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 140 OF 2014

BETWEEN

JOHN WASIS, VINCENT POMBO AND JAMES T. RAPULA and other Public Servants and Community Health Workers of Southern Highlands Province as Listed in Schedule 1 of the Writ
Appellants

AND

MARGARET ELIAS as the Secretary for Department of Personnel Management
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: David, Makail & Sawong JJ
2015: 16th December
2016: 23rd February

SUPREME COURT – Appeal against dismissal of proceedings – Conditional or self-executing order – Order for amending of pleadings – Failure to comply with order – Requires further judicial function to perfect conditional order.

Cases cited:

Hon. Andrew Baing & The State v. PNG National Stevedores Pty Ltd (2000) SC627

Counsel:

Mr. N. Gimaia, for Appellants
Mr. M. Akeya, for Respondents

JUDGMENT

23rd February, 2016

1. BY THE COURT: The appellants appeal from a discretionary judgment of the National Court constituted by Kandakasi J given on 08th October 2014, in the proceedings WS No. 472 of 2006 between John Wasis & Ors v. Margaret Elias & The State. His Honour dismissed the proceedings on the ground that the appellants failed to comply with an earlier order requiring them to explain why they did not amend the pleadings in the statement of claim.

Background Facts

2. The appellants are long serving public servants mostly Community Health Workers in the Southern Highlands Province who are claiming unpaid and underpaid salaries, allowances and leave entitlements. On 18th March 2008 they were granted default judgment with damages to be assessed after the respondents failed to file a defence.

3. The matter was listed for directions hearing. On 02nd July 2014 the respondents moved on a notice of motion filed on 05th June 2014 to dismiss the proceedings on the grounds that the pleadings were inadequate and the lead appellants lacked authority to commence the proceedings on behalf of the other appellants. The primary judge did not rule on the motion but adjourned the matter to 05th August 2014 with a direction for parties to discuss and settle the claim.

4. At the directions hearing on 05th August 2014, the respondents informed his Honour that they could not settle the claim because the details of the various heads of claim were inadequate. As a result, they were not able to identify which component of the claim was outstanding and needed to be settled. The primary judge directed the appellants to consider amending the statement of claim by providing further and better particulars of the claim and further consider foregoing the default judgment. The appellants were to report to the Court on the next return date, which was 03rd September 2014.

5. On 03rd September 2014, the appellants informed the Court that they did not amend the pleadings. The respondents made an oral application to have the proceedings dismissed on the ground that the appellants failed to comply with the order of 05th August 2014 pursuant to Rule 15 (2) (c) of the National Court Listings Rules, 2005. The primary judge did not dismiss the proceedings but ordered the appellants to explain, at the next return date, why the order was not complied with and the steps taken to comply with the order. Failing that, the proceedings would be dismissed.

6. When the matter returned for directions hearing on 08th October 2014, the respondents informed the Court that the appellants did not comply with the order of 03rd September 2014 and sought to dismiss it. The primary judge found the appellants' explanation for the default was unsatisfactory and dismissed the proceedings.

Grounds of Appeal

7. The appellants relied on six grounds of appeal. The first ground is that, the primary judge erred in dismissing the proceedings when no motion was filed by the respondents seeking dismissal of the proceedings. The appellants submitted that the order of 03rd September 2014 was conditional, in that, the proceedings would stand dismissed if they did not satisfactorily explain why they failed to comply with the earlier order directing them to amend the statement of claim. In order for the Court to properly exercise jurisdiction, there must be a motion invoking the Court's discretion to dismiss the proceedings. The rest of the grounds alleged estoppel based on the default judgment as the primary judge erred when he revisited the issue of sufficiency of pleadings. In effect, he revisited the issue of liability and this was beyond his power. Finally, the dismissal of the proceedings was a denial of natural justice as they were denied the opportunity to prove their claim at trial.

Conditional or Self-executing Orders

8. The appellants relied on the case of Hon. Andrew Baing & The State v. PNG National Stevedores Pty Ltd (2000) SC627 which they submitted is the authority on conditional or self-executing orders. In that case, the Supreme Court held, amongst other things, that a conditional order by its very nature requires further judicial function of determining that the condition was not satisfied at the specified time. The Supreme Court went on to explain that what is required is for the applicant to apply by way of a notice of motion to seek perfection of the conditional order.

9. From the background facts, there is no dispute that the parties were attending directions hearing to progress the matter to trial on assessment of damages. It was during the directions hearing that the respondents took issue with the sufficiency of the pleadings and representative authority of the lead appellants. In relation to the first issue, the primary judge issued orders to remedy the inadequacies in the pleadings after he found that the pleadings were inadequate.

10. It is trite law that entry of default judgment does not relieve a plaintiff from the burden of proving his losses. It is also trite law that pleadings lay the foundation for the kind of evidence that can be led at trial. The primary judge found that the pleadings were inadequate because the particulars of losses for each appellant were missing. The missing particulars were for salaries, allowances and leave monies. If the matter were to proceed to trial in the current form, objections will be raised at trial in relation to evidence as having no foundation in the pleadings.

11. In order for the appellants to call evidence to prove these losses, it was necessary that the particulars of these losses were pleaded in the statement of claim. It was for this reason that the primary judge directed them to amend the statement of claim or consider foregoing the default judgment. The appellants were to attend to the inadequacies and present the revised pleadings to the Court in the form of an amended statement of claim within a month. In our view his Honour's consideration of the issue of sufficiency of pleadings did not in any way touch on the issue of liability. It is, therefore, incorrect for the appellants to contend that despite the default judgment, his Honour revisited the issue of liability, and found against them and dismissed the proceedings.

12. There is no dispute that on the return date, the respondents did not file a notice of motion nor did they rely on a notice of motion to seek dismissal of the proceedings for want of compliance with the conditional order. However, as was held by the Supreme Court in Hon. Andrew Baing & The State v. PNG National Stevedores Pty Ltd (supra), what is relevant and important is that a conditional order requires further judicial function of determining that the condition was not satisfied at the specified time.

13. We add, a conditional or self-executing order is not one that should be treated lightly. We say this because the order itself puts the party subject of the order on notice that a certain consequence will occur at a specified date in the future if the conditions of the order are not met. Thus, it is of utmost priority that the party required to comply adhere to its terms. Failure may result in an unfavourable consequence.

14. After the primary judge issued the order for the appellants to rectify the inadequacies in the pleadings, the matter was called up for the primary judge to check if the appellants had complied with the order. The primary judge found that they did not. In their affidavits filed in the Court below, the lead appellants explained that the rest of the appellants were located in remote parts of the Southern Highlands Province and communication by mobile phone had been difficult due to lack of mobile phone coverage. The primary judge rejected the explanation as being unsatisfactory.

15. His Honour's reason for reaching this conclusion is that if communication by mobile phone was a problem, there were other ways of communicating with the other appellants such as putting "toksave" on local radio station and on EMTV. His Honour's reasoning is not only reasonable but also based on proper principles of law relevant to the exercise of discretion. As the defaulting party, the onus was on the appellants to provide a satisfactory explanation for the default. It cannot be emphasised enough that the information sought and its provision was so crucial to the case and moreover, it's further progress. For example, the Court must be satisfied that the lead appellants had the authority of the other appellants to commence the proceedings in the National Court. Unless the lead appellants provide evidence of the authority, the case will not progress, or in the worst case, dismissed.

16. The onus is on the appellants to diligently prosecute their claim. There is no point in giving instructions, and then sitting back and expect the leaders to bring home the results. Each appellant had an obligation to work together to achieve a result that is favourable to them. This can only be achieved through progressive updates of the case by the lead appellants and provision of information when required by the Court. The evidence before his Honour fell short of establishing this. For this reason, we are not satisfied that it was not open to his Honour to reach the conclusion he did.

17. In our view as the appellants were the subject of the conditional order and failed to satisfactorily explain the default, in the exercise of his further judicial function, it was open to the primary judge to satisfy himself if the order was complied with. Similarly, it was open to the respondents to seek perfection of the conditional order if the appellants failed to comply with it. The conditional order put the appellants on notice that if they failed to satisfactorily explain why they did not comply with the earlier order, the proceedings would be dismissed.

18. We accept that it is prudent practice to file a motion to seek perfection of the conditional order. However, it was not a ground of appeal nor did the appellants contend that they did not know what the terms of the conditional order were and what was required of them. Thus, it is reasonable to say that they were given sufficient notice prior to the hearing of the conditional order and the absence of the notice of motion was in no way adverse to their defence against the dismissal of the proceedings. Given this, we find it quite unreasonable for the appellants to contend that the primary judge wrongly dismissed the proceedings because the perfection of the conditional order was not supported by a notice of motion.

19. Finally, the ground in relation to breach of natural justice is misconceived and is dismissed because the appellants were heard in their defence throughout the course of the directions hearing. Moreover, the appellants' further contention that they were denied right to have their claim tried is without merit because they failed to comply with the very directions that, had they complied with in the first instance, would have seen them go to trial.

20. We would dismiss the appeal with costs.

Orders accordingly.
________________________________________________________________
Liria Lawyers: Lawyers for Appellants
Solicitor-General: Lawyers for Respondents