Mirenbean Enterprises Ltd v Kaugla [2019] PGSC 64; SC1826 (1 August 2019)

SC1826

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 154 OF 2017

BETWEEN
MIRENBEAN ENTERPRISES LIMITED
First Appellant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant

AND
NATHAN KAUGLA
First Respondent

AND
NATIONAL GAMING CONTROL BOARD
Second Respondent

Waigani: Salika CJ, Batari, Dingake JJ

2019: 19^th July

SUPREME COURT APPEAL – application to amend notice of appeal - whether the applicant/appellant has made out a case to be granted leave to amend its notice of appeal - the principles applicable to the issue discussed - amendment sought will facilitate a proper ventilation of the dispute between the parties - it is in the interest of justice to allow the amendment sought - amendment sought be granted

Cases Cited:

Charles Bougapa Ombusu v The State (1996) PNGLR 335; SC 496

Counsel:

Mr. Ron Webb (QC) with Mr. P Tabuchi, for the Appellant
Mr. G Pipike, for the First Respondent
Mr. Mal Varitimos (QC) with Mr. J Sioni, for the Second Respondent

1^st August, 2019

1. COURT: This is an application by the appellant to amend its Notice of Appeal that, inter alia, seeks to correct the description of the parties, and to add further grounds of appeal.
2. The proposed further grounds of appeal are as follows:

2.1 The learned primary judge erred in:

1. failing to consider Order 12 Rule 35 of the National Court Rules on the hearing of the Notice of Motion to set aside the judgment given on 27^th September, 2017;
2. failing to apply Order 12 Rule 35 of the National Court Rules to set aside the 27^th September, 2017, judgment.

2.2 The learned primary judge erred in failing to find that a satisfactory explanation was given for the judgment to be entered in default.

2.3 The learned primary judge erred in finding that there was not a defence on the merits or an arguable case.

3. A brief background to this matter is as follows: proceedings WS No. 1042 of 2016 (WS. 1041) were brought against the appellant and the second respondent by Nathan Kaugla, now deceased, and whose estate is represented by the first respondent.
4. In the suit aforesaid, Mr. Kaugla, claimed that he played a poker machine, belonging to the second respondent and hosted by the appellant in its premises and in the process won the amount of K31,664,981.32, which the appellant and second respondent were liable to pay but are now refusing to do so.
5. On the 7^th of April, 2017, default judgment was granted against the appellant and the second respondent in the amount of K31,663,381.32 including interest at the rate of 8 percent per annum.
6. On the 27^th of September, 2017, the National Court refused an application to set aside a default judgment which had been entered against the appellant and the second respondent.
7. The appellant’s appeal against the above decision was filed on the 31^st of October, 2017. It is not disputed that the appeal lies as of right.
8. The appeal has not been set down for hearing as the parties still have to settle all due processes, such as certification of the appeal book, before the matter could be heard.
9. The appellant in its application to amend the notice of appeal does not seek to alter the factual allegations that underpin its case and generate a new cause of action.
10. Against this background, the only issue that falls for determination is whether the applicant/appellant has made out a case to be granted leave to amend its notice of appeal.
11. The principles applicable to this issue have been set out in numerous cases in this jurisdiction.
12. In the case of Charles Bougapa Ombusu v The State (1996) PNGLR 335; SC 496, the Court stated the relevant test in the following terms:
    • “The test ... is whether there are special circumstances in a particular case which would make the case an exceptional case that should warrant the grant of leave to amend the notice of appeal ...”
13. It would not be prudent to seek to enumerate a list of special circumstances contemplated by the Court, suffice to say that each case must turn on its own circumstances.
14. It is trite learning that the grant of leave to amend is discretionary. Such discretion must be exercised reasonably, the focus being to promote the interest of justice, at all times.
15. In addition to the above, the modern trend is that, generally, amendments of the nature sought, are most likely to be allowed if the application is not mala fide or would not result in prejudice on the respondent, which cannot be compensated by costs.
16. In our considered view an amendment that facilitates a proper ventilation of the issues in dispute and causes no prejudice to the respondent should ordinarily be granted.
17. In this case, we are satisfied that there exist special circumstances that warrant this court granting the relief sought.
18. It is sufficient for present purposes to cite only one such circumstance: the judgment sum of K31,663,381.32, is an extra ordinary large amount of money, won in circumstances, in which the legality of the win is at best debatable.
19. The existence of the special circumstances referred to in the preceding paragraph is reinforced by the fact that on the evidence adduced before us there is no prejudice that the respondent would suffer if we allow the appellant to amend the notice of appeal. There is still sufficient time for the respondent to consider the proposed grounds.
20. It seems to us that the amendment sought will facilitate a proper ventilation of the dispute between the parties, and that to that extent, it is in the interest of justice to allow the amendment sought.
21. For the above reasons, the amendment sought ought to be granted.
22. In the result, it is Ordered that:

21.1 The appellant is granted leave to amend its notice of appeal filed 31^st of October, 2017, in terms of Annexure “T1-2” to the affidavit of Thomas Imal sworn and filed 29^th of March, 2019 pursuant to Order 11 Rule 11, Order 7 Rules 25 of the Supreme Court Rules 2012 and Section 5 (1) (a) of the Supreme Court Act 1975 and the inherent jurisdiction of the Supreme Court, and Section 155(2) and (4) of the Constitution.

21.2 Subject to an Order being made in terms of paragraph (21.1) hereof, for the withdrawal of the application to amend notice of appeal filed 25^th of May, 2018 and amended application to amend notice of appeal filed 5^th of June, 2018 pursuant to Order 11, Rule 29 (b) and 30 (1) of the Supreme Court Rules and Section 5 (1) (a) of the Supreme Court Act 1975 and the inherent jurisdiction of the Supreme Court.

21.3 Costs shall be in the cause.
___________________________________________________________
Young & Williams Lawyers: Lawyers for the Appellants
GP Lawyers: Lawyers for the First Respondents
Twivey Lawyers: Lawyers for the Second Respondents