National Superannuation Fund Ltd v Yawenaik Holdings Ltd [2018] PGSC 57; SC1709 (5 September 2018)

SC1709

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 3 of 2018

BETWEEN:
NATIONAL SUPERANNUATION FUND LIMITED
Appellant

AND:
YAWENAIK HOLDINGS LIMITED also known as YAWANAIK HOLDINGS LIMITED
First Respondent

AND:
CHRIS MANDA in his capacity as SURVEYOR GENERAL
Second Respondent

AND:
ROMILLY KILA PAT as a delegate of the MINISTER OF LANDS AND PHYSICAL PLANNING
Third Respondent

AND:
HON. BENNY ALLAN in his capacity as MINISTER OF LANDS AND PHYSICAL PLANNING
Fourth Respondent

AND:
HON. POWES PARKOP in his capacity as Chairman and other Members of the NATIONAL CAPITAL DISTRICT COMMISSION PHYSICAL PLANNING BOARD
Fifth Respondent

AND:
BENJAMIN SAMSON in his capacity as REGISTRAR OF TITLES
Sixth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Respondent

AND:
SANAMO GROUP LIMITED
Eighth Respondent

AND:
KEITH LAHUI, Chairman & other Members of the PAPUA NEW GUINEA LAND BOARD
Ninth Respondent

AND:
DELTA CORPORATION LIMITED
Tenth Respondent

AND:
ALLAN BANIYAMAI
Eleventh Respondent

AND:
BARRICK SOMI TEMERI
Twelfth Respondent

Waigani: Hartshorn, Higgins and Frank JJ
2018: 26^th June ,
: 5^th September

Appeal

JUDICIAL REVIEW – failure of counsel to appear – explanation not reasonable – failure not contumelious – appeal having substantial merits – remedy against defaulting lawyers not adequate – no prejudice to respondents – dismissal order set aside

Cases cited:
Papua New Guinea Cases

Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
Mondiai v. Wawoi Guavi Timber (2007) SC886
Barava Ltd v. Giregire Estates Ltd (2008) SC958
Thomas Rangip v. Peter Loko (2009) N3714
Madang Timbers Ltd v. Kambori (2009) SC992
Isaac Lupari v. Sir Michael Somare (2010) SC1071
Ron Napitalai v. PNG Ports Corporation Ltd and Ors (2010) SC1016
State v. Sam Akoita and Ors (2009) SC977
Curlewis v. Yuapi (2013) SC1274
Wawoi Guavi Timber Company Ltd v. John Molu (2016) SC1514

Overseas Cases

Australia Coal and Shale Employees’ Union v. The Commonwealth [1953] HCA 25; (1956) 94 C.L.R. 621

Counsel:

Mr. I.R. Molloy and Mr. M. Tumul, for the Appellant
Mr. P. Waraniki, for the First and Eighth Respondents
Mr. W. Steven, for the Second, Third, Fourth and Sixth Respondents
Ms. C. Manua, for the Fifth Respondent
Ms. A. Nasu, for the Seventh Respondent
Mr. L. Ako and Mr. S. Dewe, for the Tenth Respondent

5^th September, 2018

1. BY THE COURT: This is a decision on a contested appeal from a National Court decision that dismissed the appellant’s application to set aside an order of dismissal of the proceeding.

Background

2. In the National Court the appellant, Nasfund, had commenced judicial review proceedings concerning land at Nine Mile, Port Moresby, described as portion 2123 (Land). Nasfund claims to be the registered proprietor of the Land. The eighth respondent, Sanamo, claims the same interest. The predecessor of Nasfund (Nasfund) was the registered leasehold proprietor of the State lease over the Land. Its lease expired and it applied for a renewal. The Land Board recommended that the lease be granted to Nasfund, and its decision was gazetted. Nasfund followed up the grant. Despite its earlier recommendation, the Land Board informed Nasfund that its application for the Land was refused and that another application had been successful.

3. The Minister then rejected an appeal under the Land Act 1996 by Nasfund. Nasfund commenced judicial review proceedings and leave to apply for judicial review was granted on 26^th May 2016. In a decision on various interlocutory applications delivered on 12^th September 2017, the primary judge stated amongst other things, that there was no doubt in his mind that there were serious issues raised in the proceedings and in the interests of justice granted interim injunctive orders. The matter returned to court on 18^th September 2017 and directions were issued. A pre-trial conference was set for 30^th October 2017. On 30^th October 2017 in the absence of Nasfund’s counsel, the matter was called on and the primary judge dismissed the proceedings for want of prosecution. On 6^th December 2017, the primary judge dismissed Nasfund’s application to set aside that dismissal. By notice of motion filed 15^th January 2018 Nasfund appeals the 6/12 decision.

Objections to competency

4. On 8^th February 2018, the first and eighth respondents purported to object to the competency of the appeal. On 14^th February 2018 the 10^th respondent purported to object to the competency of the appeal but then later abandoned its ground 1.1. The seventh respondent does not take any position on the objections to competency. The fifth respondent supports ground two of the objections to competency and the second, third, fourth, and sixth respondents’ support the objections to competency.

5. The appellant submits that both objections to competency are incompetent. This is because they do not cite the correct rule which enables this court’s jurisdiction to be engaged.

Consideration

6. The notice of objection to competency of the 10^th respondent cites Order 7 Rule 15 Supreme Court Rules. It has been held however, that this Rule does not have any application to an appeal by notice of motion under Order 10 Supreme Court Rules as in this case: Mondiai v. Wawoi Guavi Timber (2007) SC886; Barava Ltd v. Giregire Estates Ltd (2008) SC958; Madang Timbers Ltd v. Kambori (2009) SC992. The correct Rule is Order 11 Rule 28 Supreme Court Rules: Pacific Equities & Investments Ltd v. Goledu (2009) SC962; Nandali v. Curtain Bros Ltd (2012) SC1483 and Papua New Guinea Law Society v. Cooper (2016) SC1553.

7. As the objections to competency do not cite the correct jurisdictional basis for making an objection to competency, ( see Order 11 Rule 28 Supreme Court Rules), this court’s jurisdiction has not been invoked. Both objections to competency are therefore incompetent. Further, the objection of the first and eighth respondents’ is plainly not in accordance with form 9, as is required by Order 7 Rule 15(a) Supreme Court Rules, and is therefore incompetent. Given this, it is not necessary to consider the other submissions of counsel concerning the objections to competency.

The Appeal

8. The appellant submits that its appeal should be upheld as the primary judge fell into error in exercising his discretion by not having sufficient regard to:

a) the explanation for the absence of the appellant’s counsel;

b) the explanation as to why a review book had not been filed and served;

c) either default in a) and b) above not being as a result of contumelious disregard or contravention of court orders or process by the appellant;

d) the steps taken by the appellant to have the matter ready for trial.

9. Further, the appellant submits that the primary judge gave disproportionate weight to bringing finality to litigation in circumstances in which the delay was not or not wholly the fault of the appellant and where the parties were in substantial agreement that the National Court proceeding was ready to be allocated a hearing date

10. In addition, the appellant submits amongst other things, that the primary judge in dismissing the proceeding had no or no sufficient regard to the following:

a) orders dismissing the National Court proceedings were disproportionate to the appellant’s default or defaults and more appropriate and proportionate orders could have been made;

b) the respondents did not sustain any or any significant prejudice arising from the appellant’s defaults;

c) the appellant had a substantial prima facie claim which should be heard on the merits;

d) the National Court proceedings raised issues of public administration and importance and there was a public interest in the proceedings being determined on their merits;

e) the appellant is a superannuation fund and the persons ultimately prejudiced by the orders dismissing the National Court proceedings are members of the fund;

f) the appellant itself was not guilty of any default and the appellant’s remedies against its lawyers would not provide a sufficient substitute for the rights claimed and the relief sought by the appellant in the National Court proceeding.

11. The respondents’ submit that the appeal should be dismissed as amongst other things:

a) the primary judge took into account all of the circumstances surrounding the case since commencement of the proceeding on 20^th September 2013;

b) the purpose of judicial review in the National Court is to dispose of cases in a quick, fair and cheap manner and the time in which to do so should be between four to six months;

c) there should be finality in court proceedings.

Consideration

12. This court’s role in an appeal from a discretionary judgment was considered in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788:

“The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 –113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance...”

13. This passage was also cited with approval by Gabi J and Hartshorn J in their judgments in Isaac Lupari v. Sir Michael Somare (2010) SC1071 and in the Supreme Court decisions of State v. Sam Akoita and Ors (2009) SC977 and Ron Napitalai v. PNG Ports Corporation Ltd and Ors (2010) SC1016.

14. The appellant submits that whilst applying the above principles, the Supreme Court has considered the circumstances in which a court may dismiss proceedings for default and recently in Curlewis v. Yuapi (2013) SC1274 said at [35]:

“35. Whether a non compliance relates to the requirements of a rule or directions of the court, dismissal of a case without trial ordered on the basis of such non compliance in our opinion should only be in clearest of cases where the failure is recurrent and that the party moving would or is likely to suffer irredeemable or serious prejudice as a result of such non compliance and that the party moving cannot be sufficiently compensated by costs; or where the failure is persistent and deliberate thus making the failure extra ordinarily serious thus resulting in irredeemable or serious prejudice to the party moving and where non-compliance is symptomatic of the failure to prosecute the proceeding:”

15. At the beginning of his decision the primary judge accepted that the National Court has jurisdiction to set aside an order made ex parte, which dismissed a proceeding. His Honour made reference to Wawoi Guavi Timber Company Ltd v. John Molu (2016) SC1514 in that regard. In that decision, favourable reference was made to Thomas Rangip v. Peter Loko (2009) N3714. In Rangip (supra), the National Court held that it has jurisdiction to set aside its own ex parte order that dismisses a proceeding for want of prosecution. The onus is on the applicant to satisfy the Court:

a) why the judgment or order was allowed to be entered in the absence of the applicant;

b) if there is a delay in making the application to set aside, a reasonable explanation as to the delay; and

c) that there is a reasonable explanation for the proceeding not being prosecuted with due diligence.

16. As to why the judgment or order was allowed to be entered in the absence of counsel for the appellant, the primary judge did consider the non-attendance of counsel, that he had been in court earlier, but that he was not in court at the critical time. We are satisfied that the primary judge was correct in his consideration of the non-attendance of the appellant’s counsel. There is no excuse for non-attendance by counsel in court. If counsel must leave a court room when the court is sitting and the case in which that counsel is to appear has not been dealt with, he or she must obtain the permission of the court to leave the court, or have another counsel stand in for him or her or to take his or her place. This did not occur here. The explanation for counsel’s non-attendance is not reasonable.

17. As to delay in applying to set aside the dismissal order, we are not satisfied that there was any.

18. In regard to the primary judge’s consideration of whether the judicial review proceeding had been prosecuted with due diligence, in September 2017, in a decision which he delivered that had been reserved for about 11 months, His Honour had concluded that there was no doubt in his mind that there were serious issues raised on behalf of the appellant such that it was in the interests of justice that interim injunctive orders be granted. This is in proceedings concerning a dispute that had its genesis when the appellant’s lease expired in 1999 and in which proceedings were commenced in 2013 with leave for judicial review being given in May 2016. To consider that a proceeding should be dismissed for want of prosecution in such circumstances, primarily because of the necessity for finality in litigation, one a half months after stating that there was no doubt in his mind that serious issues were raised and that it was in the interests of justice that interim relief be granted is, with respect, open to question.

19. We are satisfied that in such circumstances, and with the statement in [35] of Curlewis (supra) in mind, the 6/12 decision, being the decision not to set aside the dismissal of the judicial review proceeding, may be categorised as being unreasonable or plainly unjust such that, using the words of Kitto J. in Australia Coal and Shale (supra), this Court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

20. Consequently, this appeal should be allowed and, in lieu of the orders made on 6^th December 2017, the orders of the National Court made on 30^th October 2017 should be set aside. The respondents which made appearance in the hearing of the appeal shall pay the appellant’s costs of and incidental to the appeal such costs to be taxed if not agreed.
____________________________________________________________
Allens: Lawyers for the Appellant
Waraniki Lawyers: Lawyers for the First and Eighth Respondents
Kawat Lawyers: Lawyers for the Second, Third, Fourth and
Sixth Respondents
NCDC Legal Division: Lawyers for the Fifth Respondent
Office of the Solicitor General: Lawyers for the Seventh Respondent
Jema Lawyers: Lawyers for the Tenth Respondent