Lahari v Koloma [2019] PGSC 27; SC1794 (28 February 2019)

SC1794

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 152 of 2016

WILLLIE LAHARI
Appellant

v

ROKO KOLOMA
NATIONAL STATISTICAL OFFICE
JOHN KALI AND
THE STATE
Respondents

Waigani : Batari J, Logan J, Bona J
28 February 2019

PRACTICE AND PROCEDURE – appeal against a decision of the National Court to strike out a claim – where proceedings instituted by originating summons – whether proceedings ought to have been instituted by a writ of summons – where National Court dismissed proceedings accordingly without asking for submissions on the dismissal – whether breach of natural justice occurred – whether National Court could have used its discretion to convert the originating summons to a writ of summons – appeal allowed

The appellant was employed by the National Statistical Office between 1988 and 2011, upon which time he was retrenched. Although the National Statistical Office calculated his retrenchment and repatriation payments and forwarded them to the Department of Personnel Management, the appellant was never paid these sums.

After numerous enquiries, the appellant brought proceedings in the National Court in 2015 against the respondents, seeking payment of those sums. In 2016, he brought a notice of motion for summary judgment in his favour. In hearing that notice of motion, and without hearing submissions from the parties on this question, the learned National Court judge dismissed the proceedings entirely as they had not been brought in the appropriate mode, a writ of summons.

Held:

(1) The learned National Court judge had a duty to comply with the principles of natural justice. By failing to give the parties the opportunity to make submissions on the ground on which her Honour dismissed the proceedings before dismissing them, her Honour did not afford the parties natural justice.
(2) Although the proceedings were commenced with an originating summons, the learned National Court judge had the discretion to effectively convert that into a writ of summons.

Cases Cited

Masive v Okuk [1985] PNGLR 105
Phillip Takori v Simon Yagari [2008] PGSC3 SC 905

Legislation:

Constitution s 59
Claims By and Against The State Act s 5

APPLICATION

This was an appeal against a judgment of the National Court which dismissed the appellant’s case as it was commenced in the wrong mode.

Counsel

Mr S Wanis, for the Appellant
Ms S Tiankin, for the First Respondents

28^th February, 2019

1. BY THE COURT: The appellant was a Senior Officer within the National Statistical Office from 25 May 1988 to 25 May 2011. At that time he was retrenched. At the time of retrenchment there was a calculation made of final retrenchment payments by the National Statistical Office. As so calculated, those payments comprised:
   • (a) Retrenchment Payments of K106,008.47; and
   • (b) Repatriation Costs of K7,980.

The evidence in the National Court disclosed that these calculations have been forwarded by the National Statistical Office to the Department of Personnel Management for payment.

2. Though the appellant made enquiries on several occasions, he was informed only to check again later. This having occurred over a period of some years, the appellant decided to commence proceedings against the present respondents: the National Statistician, first respondent; the National Statistical Office, second respondent; the Secretary to the Department of Personnel Management, third respondent; and the State, fourth respondent. On 22 February 2016, he filed a notice of motion seeking summary judgment. That notice of motion was heard on 19 October 2016 in the National Court. At that time, not only was the notice of motion dismissed but also the entire proceedings. It is apparent from the course of the proceedings on the hearing of the notice of motion that a controversy emerged as to whether or not the appellant had in the circumstances complied with s 5 of the Claims By and Against The State Act.
3. That particular controversy was not resolved as part of the judgment dismissing both the notice of motion and the proceeding. Instead, without offering an opportunity to make submissions on this point either to the appellant or the State parties, the learned primary judge chose to dismiss the proceeding on the basis that “[t]he appropriate cause of action should be instituted by way of a writ of summons and not an originating summons.”
4. The obligation found in s 59 of the Constitution to comply with the principles of natural justice applies both to the judicial and executive branches of government. The precise content of compliance with the requirements of natural justice is necessarily dependent on the circumstances of the particular case. Usually though, in the exercise of judicial power, it entails the offering of an opportunity to be heard in respect of a potentially adverse issue. In this case, the question as to whether it was ever apt to have commenced the case by originating summons, such that it ought to be dismissed, was an issue which was, with respect, obviously potentially adverse to the appellant. It was also an issue in respect of which the State parties were entitled to make a reply after an opportunity had been extended to the appellant. This did not occur.
5. It is also a case where the opportunity was not one in respect of which there was nothing to be said on behalf of the appellant such that its violation really amounted to naught in the circumstances. That there was something to be said was neatly highlighted in the submissions made on behalf of the appellant by reference to Masive v Okuk [1985] PNGLR 105. In that case, there was a controversy as to whether or not it was apt to have commenced the proceeding by way of originating summons.
6. Mr Justice Pratt observed at page 106:

“As has been pointed out, it is possible for the court to convert an originating summons into what amounts to a writ with its concomitant pleadings (O 4, r 31 and r 35). I am not absolutely convinced that a writ is appropriate in such a case as the present”.

7. On the evidence before her Honour as to the circumstances (and that evidence was contained in affidavits read on behalf of the appellant only; there was no contradictory evidence at that stage by way of affidavit read on behalf of the State) it was not readily apparent that there was a dispute as to the facts. That said, it did become apparent for reasons we have mentioned in the course of the hearing that there may be some dispute as to facts and certainly as to the application of the Claims By and Against The State Act against facts as found.
8. Had her Honour had the benefit, as a result of having extended an opportunity to be heard of the submissions such as those we heard today on behalf of the appellant, it is inherently likely that a direction for continuance of the proceeding on pleadings would have been made. It is also likely that the notice of motion would have remained dismissed on the basis at least that there was apparent a triable issue in relation to the application or otherwise of the Claims By and Against The State Act. It may readily be accepted that this Court on appeal would not lightly interfere with the exercise of a discretion by the National Court, particularly a discretionary value judgment in respect of matters of practice or procedure: see for example, Phillip Takori v Simon Yagari [2008] PGSC 3 SC 905. But in this case there has been, with all due respect to the primary judge, a denial of an opportunity to be heard in relation to a matter which required a ruling in relation to practice and procedure. That being so, the case is one where this court ought to interfere with the result in the National Court, that is because there has been a substantial miscarriage of justice to the appellant.
9. We also consider that the case is one which requires us to make the following observation. It is elementary that the State and its various emanations has a duty to conduct proceedings in the courts of the nation as a model litigant. The State did not occasion the appellant the denial of natural justice by way of a denial of an opportunity to be heard. However, that such a denial did occur ought to have become apparent at the very latest when the appellant filed his notice of appeal, or at least by the time when the appellant lodged the extract of argument. It was always open to the State, having considered the circumstances, to have conceded the appeal. It is unfortunate in this case that that did not occur.
10. The notice of motion has already been dismissed in the National Court. For reasons which we have given, there was a triable issue at large so that order of dismissal ought not to be disturbed.
11. However, the proceedings ought not to have been dismissed. Instead, we propose to make an order which would see its continuance on pleadings. That will allow the material facts to be identified and also for the State parties to raise, if so advised, and the appellant to meet by way of reply, a controversy in relation to the application, if any, of the Claims By and Against The State Act. Nothing we have said in these reasons for judgment is intended to prejudice either the State parties’ right, if so advised, to raise such a controversy or, for that matter, for the appellant to meet it much less to make any ruling upon the merits of any such controversy, if raised. For these reasons, the appeal must be allowed.
    

ORDER

For these reasons, we order as follows:

1. The appeal be allowed.
   
2. The orders of the National Court made on 19 October 2016 dismissing with costs the proceedings, be set aside.
   
3. In lieu thereof pursuant to order 4 rules 31 and 35 of the National Court Rules, it is directed that the proceedings continue as pleadings.
   
4. For that purpose, the appellant file and serve a statement of claim within 28 days from the date hereof.
   
5. Thereafter, subsequent pleadings be filed in accordance with the provisions of the National Court Rules.
   
6. The matter be remitted to the National Court for the further hearing and determination according to law.
   
7. Costs of and incidental to the notice of motion to be taxed if not agreed. Save as aforesaid, the costs of the proceedings be reserved.
   

Judgment accordingly.

_________________________________________________________________
Warner Shand Lawyers : Lawyers for the Appellant
Office of the Solicitor-General : Lawyers for the Respondents