|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 154 OF 2017
BETWEEN
MIREBEAN ENTERPRISES LTD
Appellant
AND:
RACHAEL NATHAN in her capacity as the Administrator of the Estate of the deceased NATHAN KAUGLA, died intestate
First Respondent
AND:
NATIONAL GAMING CONTROL BOARD
Second Respondent
Waigani: Salika CJ, Batari & Anis JJ
2020: 16th March & 31st July
APPLICATION TO DISMISS – Order 13 Rule 16(1) of the Supreme Court Rules – Section 155(4) of the Constitution and Section 8(1)(e) and 11 of the Supreme Court Act Chapter No. 37 (Amended to date) – preliminary issues – whether similar grounds had been raised before the Supreme Court – whether decision appealed not based on motion moved by the appellant
SUBSTANTIVE APPEAL – Appeal against exercise of Court’s discretion in refusing to set-aside its earlier decision that granted default judgment – default judgment regularly entered – whether the Court had invoked Order 12 Rule 35 of the National Court Rules before it proceeded to consider the merits of the application to set-aside default judgment – whether want of consideration fatal to the exercise of its discretion – rehearing of application to set-aside Court Order of 7 April 2017 – relevant tests considered - regularly entered default judgment – whether valid reasons disclosed for allowing judgment to be entered by default – reasons for non-attendance – whether application was made promptly – whether defence on merit or meritorious defence disclosed
PRACTICE & PROCEDURES – Order 12 Rule 8(2)(3) and 35 of the National Court Rules – Duty of Court to invoke only the source(s) stated in a notice of motion – whether Court was at liberty to consider Order 12 Rule 8(4) which was not what had been invoked to set-aside default judgment
Cases Cited:
Kitogara Holdings Pty Ltd v. NCDIC and Ors [1988-1989] PNGLR 346
Electoral Commission v. Pastor Bernard Kaku and William Powi (2019) SC1866
Albright Ltd v. Mekeo Hinterland Holdings Ltd (2014) SC1400
Arman Larmer Surveys Ltd v. Chan Consolidated Ltd (2014) SC1609
Leo Duque v. Avia Andrew Paru [1997] PNGLR 378
Counsel:
R J Webb SC with counsel assisting P Tabuchi, for the Appellant
G Pipike, for the First Respondent
D Kipa, for the Second Respondent
31st July, 2020
1. BY THE COURT: This matter was heard on 16 March 2020. We reserved our decision to a date to be advised.
2. Parties have been notified, and as such, we now deliver our judgment.
BACKGROUND
3. The plaintiff who had commenced proceedings in the National Court is deceased (the deceased). His interest in the matter is now being pursued by the first respondent as the administrator of his estate. The deceased’s claim in the National Court was this. On 10 August 2016, the deceased went to gamble (i.e., play pokies) at the business premises of the appellant. The appellant held a permit and operated poker machines which were issued and owned by the second respondent. The deceased paid K100 to the appellant and gambled using machine No. 5. During the course of the game, the machine paid or registered credits that were worth K31, 664,981.32. The appellant paid K1,600 to the deceased. The deceased was aggrieved so on 31 October 2016, he filed a writ of summons and statement of claim (the writ) in the National Court (the Court). He sued defendants which included the appellant and the second respondent, for breach of contract where he claimed damages which included the balance of his winnings, that is, a sum of K31,663,381.32.
4. The appellant and the second respondent did not file their notice of intention to defend and defence. So on 27 March 2017, the deceased applied for default judgment. The application was heard ex-parte before the Court on 7 April 2017. In an ex tempore decision made on the same day, the Court granted default judgment in the sum of K31,663,381.32, interest at 8 percent per annum and costs, against the appellant and the second respondent. The appellant and the second respondent heard of the Court’s decision. On 16 June 2017, they applied to set aside the default judgment order of the Court. The application was heard on 15 September 2017. The Court reserved its ruling to 27 September 2017. On 27 September 2017, the Court dismissed the application to set aside default judgment.
5. The appellant’s appeal stems from that decision.
PRELIMINARY MATTER
6. At the start of the appeal hearing, it was brought to our attention that also pending before us, was an application to dismiss the proceeding filed by the first respondent.
7. It was agreed we would hear both the application to dismiss and the substantive appeal together.
GROUNDS OF APPEAL/APPLICATION TO DISMISS
8. We firstly refer to the Appeal Book (AB). It was filed on 12 November 2019. The original Notice of Appeal had been amended. For our purpose, we refer to the Amended Notice of Appeal (ANoA). It is located at Tab 2 of the AB. There are 7 grounds of appeal. At the start of the hearing, grounds 1, 2 and 3 were abandoned. We set out the remaining grounds herein:
(4) His Honour erred in fact in failing to give weight of evidence that the maximum payout for all pokies machines in the country is K10,000.00 for 5 toea machines and K20,000.00 for 10 toea machines and the total amount won by the First Respondent in the sum of K31,664,981.32 was very excessive and unrealistic figure, yet a default judgement was awarded.
(5) The learned primary judge erred in:
(a) 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 the 27th September 2017.
(b) failing to apply Order 12 Rule 35 of the National Court Rules to set aside the 27th September 2017 judgment;
(6) The learned primary judge erred in failing to find that a satisfactory explanation was given for the judgment to be entered in default.
(7) The learned primary judge erred in finding that there was not a defence on the merits or an arguable case.
9. We next refer to the Application Book. It was filed on 10 October 2019 (Application Book). The application to dismiss the appeal begins at page 3 of the Application Book. That application was subsequently amended. The amended application was filed on 20 May 2019 (the application). It is located at page 6 of the Application Book. We note that no amendments were made to the 3 grounds in the original application and as such, they appear the same. We set out the relief and grounds stated in the application herein in part, as follows:
FOR: -
(a) The entire appeal to be dismissed for being an abuse of process pursuant to the inherent jurisdiction and powers of the Supreme Court and in conjunction with its powers under Section 155 (4) of the Constitution and Sections 8(1)(e) and 11 of the Supreme Court Act 1975.
(b) Alternatively, directions be given under Section 185 of the Constitution, Section 42 of the Supreme Court Act 1975 and Order 11 Rule 9 of the Supreme Court Rules 2012 if the powers and jurisdiction of the Court to dismiss the appeal for abuse of process is unclear, is lacking or is wanting.
(c) Or such other order as the Court may make.
GROUNDS:
(a) This appeal is an abuse of process because the Appellant did not file any application before the National Court to set aside the default judgment order of 7th April 2017 and did not file any affidavit explaining its default or failure to file its defence and furthermore, the Appellant did not file any affidavit annexing a draft defence showing that it had a defence on merit.
(b) This appeal is an abuse of process because it is not brought in good faith as the Appellant was not hurt by the judgement of the National Court which ordered damages to be paid by the Second Respondent and not by the Appellant.
(c) This appeal is an abuse of process because the grounds of appeal seeks to challenge the errors made by the National Court in making or granting the order of 7th April 2017 when this order has been challenged in the National Court and the National Court reviewed that order on the 27th September 2017 and made another order thereby events have overtaken the making of the Order of 7th April 2017.
ISSUES
10. The main issues are:
(i) Whether the appeal filed herein is an abuse of process;
(ii) Whether the Court failed to have regard to Order 12 Rule 35 of the National Court Rules, and if so, whether the said want of consideration affected the jurisdictional basis of the application to set aside the default judgment, and whether the ground is sufficient for this Court to overturn the Court’s decision of 27 September 2017.
(iii) Whether there is evidence of satisfactory explanation given for allowing default judgment to be entered, that is, to the extent that this Court is able to grant the relief that is sought in the ANoA;
(iv) Whether there is evidence of proposed meritorious defence disclosed to the extent that this Court is able to grant the relief that is sought in the ANoA.
ABUSE OF PROCESS
11. We have considered the submissions of the parties in regard to the application. We now address the 3 grounds that are pleaded therein.
12. As to ground (a), the first respondent’s argument is this. She says the appeal is an abuse of process because it was not the appellant’s application that had been dismissed by the Court on 27 September 2017. She says the application to set aside the default judgment, was made by the second respondent. As such, she says the appellant, in appealing against the decision of the Court made on 27 September 2017, amounts to abuse of process because it was not the party that had applied to set aside the default judgment in the first place.
13. During the hearing, we inquired of counsel for the first respondent whether the appellant had, at the hearing of the application to set-aside the default judgment, appeared or made representation to support the application. Mr Pipike in response said that the appellant had not appeared. But Mr Webb, of counsel for the appellant, when presenting his reply, submitted that the appellant was represented at that time. Counsel submitted that Mr Kuvi had instructions from both the appellant and the second respondent to move the application to set aside the Court Order of 7 April 2017 on their behalf.
14. We draw our attention to the notice of motion to set aside the default judgment (set-aside motion). It is located at Tab 13, page 51 of the AB. It was filed on 17 May 2017 by Elemi Lawyers. We note at the bottom of page 2 that Mr Kuvi of Elemi Lawyers signed off as the Lawyers of the Second Defendant. The second defendant is the second respondent herein. That said, we also observe the following. Term 1 of the relief sought in the set-aside motion reads,
Pursuant to Order 12 Rule 8 and 35 of the National Court Rules, that the default judgment entered against the First and Second defendants be set aside;
......
(Underlining is ours)
15. The next thing we observe is at page 185 of the AB. It is a page from the transcripts of proceeding that was conducted on 15 September 2017, that is, the date and time when the set-aside motion was heard. We quote in part as follows, from line 20 at page 185 of the AB:
His Honour: And who do you appear for, Mr Kuvi?
Mr Kuvi: I appear for the first and second defendants, your Honour.
16. We have perused the said transcripts of the said proceeding. We note that Mr Pipike had referred to both defendants in his submissions to the Court. We also note that at no point in time did he object to or challenge Mr Kuvi’s representation capacity as the lawyers for the appellant and the second respondent. So how do we explain the discrepancies in the set-aside motion? It would seem to us that either Mr Kuvi had, after filing the set-aside motion, received instructions to also act for the appellant, or that it was a typing error, that is, in the set-aside application not to include the fact that Elemi Lawyers also acted for the appellant who was also a co-applicant to the set-aside motion. But given that Mr Kuvi had clarified that at the actual hearing, we are satisfied that he was acting for both the appellant and the second respondent at the material time.
17. For these reasons, we find ground (a) baseless. That aside, we will say this. It is settled law that even a non-party or person who is not a party to a proceeding, may appeal a National Court’s decision to this Court. This Court in Kitogara Holdings Pty Ltd v. NCDIC and Ors [1988-1989] PNGLR 346 held, and we quote:
(1) (Los J assuming) Section 14 (2) of the Supreme Court Act operates so as to prevent only "parties" to the proceedings in which the consent order is obtained from appealing.
(2) (Los J not deciding) Section 17 of the Supreme Court Act operates so as to provide a right of appeal to any "person" whose interests are affected by or who is aggrieved by the order of the court and who might have been joined as a party to the proceedings.
18. We will deal with grounds (b) and (c) of the application together. The first respondent firstly says in ground (b) that the appeal is brought in bad-faith because of the fact that in the default judgment order, the Court has only ordered the second respondent to pay the judgment sum and not the appellant. We refer to the default judgment order. It is located at Tab 12, page 49 of the AB. At page 50, it reads in part:
19. We find it hard to accept the bad-faith argument because as it is, there is a judgment that has been entered against both the appellant and the second respondent for this substantial amount of money, namely, K31,663,381.32. There is nothing in the said order that relieves the appellant from the said liability. We say this despite term 3 of the order where the Court has directed the second respondent to pay the judgment sum. We note that term 3 of the Court Order does not in any way whatsoever exclude the appellant from liability. For example, there is nothing stopping the first respondent from applying to vary the orders to seek enforcement against the appellant. Term 2 of the Court Order, in our view, may be interpreted in the normal way in the sense that the judgment is regarded as entered jointly or severally against the appellant and the second respondent. We find the ground baseless and dismiss it for these reasons.
20. We also note that the argument appears similar to an earlier argument that had been raised by the first respondent before this Court. We refer to the first respondent’s dismissed objection to competency application. It is located at page 61 of the Application Book. We refer to ground 4 at page 63. It reads:
21. In our view, Ground 4 of the notice of objection is similar to ground (b). That being the case, it is our view that the said ground had been considered by this Court earlier, and we would also dismiss it on the basis that it is an abuse of process to raise that again in the application.
22. The first respondent also makes this final argument in ground (c) of the application. She says that because the default judgment decision of 7 April 2017 had been reviewed by the National Court on 27 September 2017, it is an abuse of process to appeal and to ask this Court to revisit the Court’s decision of 7 April 2017. She says that events have overtaken the matter after the Court Order of 7 April 2017.
23. We find this ground misconceived. In other words, the first respondent is saying that a Court of review, which is the National Court, has already reviewed its earlier decision of 7 April 2017 on 27 September 2017 and therefore that it is a final decision that cannot be appealed against to the Supreme Court. With respect, such an argument breaches the fundamental principles of laws that govern both the National and Supreme Courts of Papua New Guinea. In this case, this Court remains as the final Court of appeal or review in this jurisdiction. Section 155(2) of the Constitution states:
(2) The Supreme Court—
(a) is the final court of appeal; and
(b) has an inherent power to review all judicial acts of the National Court; and
(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.
24. The appellant herein had the right to firstly apply to set aside the default judgment which had been made ex-parte against it on 7 April 2017. And when the Court refused its application to set-aside the Court’s order of 7 April 2017, it had the right to challenge that final decision by way of an appeal to the Supreme Court. And we also note this. The ground appears to suggest that the appellant may actually be challenging the default judgment decision of the Court of 7 April 2017 and not 27 September 2017. In our view, the issue can simply be resolved by looking at the ANoA. Term 1 of the ANoA states, and read in part:
25. As expressly stated therein, the appeal is against the decision of the National Court made on 27 September 2017 and not the Court’s decision of 7 April 2017. We also note that the said ground had been raised by the first respondent before this Court at the objection hearing. The argument was dismissed. We refer to page 69 of the Application Book. This Court, in dismissing the objection to competency application, stated at line 10 as follows, It is plain that the Appeal is about the Order of 27 September 2017 and the process whereby the Court arrived at its decision. It follows that the Notice of Appeal is within 40 days of the Order of 27 September 2017 and Mr Kaugla’s Objection is misconceived in seeing the Notice of Appeal as against the Default Judgment of 7 April 2017.
26. With these, we dismiss grounds (b) and (c) of the application.
RULING ON APPLICATION
27. In summary, we dismiss the application. We also order that the first respondent shall pay the appellant’s cost to the application on a party/party basis to be taxed if not agreed.
ORDER 12 RULE 35
28. We will now proceed to deal with the substantive appeal. Ground 5 is a stand-alone ground so we will deal with that first. If the ground fails then we will proceed to consider the other grounds of appeal.
29. The appellant’s contention is that the Court erred in the exercise of its jurisdiction when it failed to invoke Orders 12 Rules 8(2)(3) and 35 of the National Court Rules as the sources of its jurisdiction before considering the merits of the set-aside motion. It submits that because this is a pivotal issue of jurisdiction, this Court should over turn the Court’s decision for want of consideration.
30. The second respondent supports the contentions of the appellant.
31. The first respondent’s submissions in response are as follows, and we will begin with her preliminary submissions. She begins on the premise that the set-aside motion was not the appellant’s notice of motion, but rather, that was made by the second respondent. As such, the first respondent submits that appellant cannot raise ground 5 of the ANoA.
32. We have adequately addressed that issue in our earlier deliberations on her competency application. The first respondent’s submissions are dismissed for being misconceived.
33. The first respondent also believes that ground 5 of appeal is against the default judgment order of 7 April 2017. Hence, she contends, the appellant had failed to amend the ground of appeal to reflect that in the new ground 5 of the ANoA.
34. That contention is obviously baseless. We have already addressed that above in our judgment (see paragraph 25).
35. We now address the first respondent’s response to the main argument to ground 5, that is, concerning Order 12 Rule 35 of the National Court Rules. It is contained at pages 8 and 9 of her written submission filed on 28 February 2020. The first respondent begins by acknowledging the sources that had been relied upon by the appellant and the second respondent in the set-aside motion, that is, Order 12 Rules 8 and 35 of the National Court Rules. She then goes on to address whether the default judgment was a final judgment, and she refers to Order 12 Rule 8(4) of the National Court Rules in her submission. We also note the case authorities that have been cited in support of her submissions. The first respondent submits that whether it be Order 12 Rule 35 or Order 12 Rule 8, that the principles that govern the exercise of discretion therein are the same therefore that the Court did not err when it considered Order 12 Rule 8(4) and refused the set-aside motion.
36. Order 12 Rule 8 and 35 state, and we quote:
8. Setting aside or varying judgement or order. (40/9)
(1) The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgement.
(2) The Court may, on terms, set aside or vary a judgement —
(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or
(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or
(c) when the judgement has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.
(3) The Court may, on terms, set aside or vary an order —
(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or
(b) where notice of motion for the setting aside or variation is filed before entry of the order.
(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.
(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order.
......
35. Setting aside judgement.
The Court may, on such terms as it thinks just, set aside or vary a judgement entered in pursuance of this Division.
37. We have considered both the oral and written submissions of the parties. We have also had the benefit of considering the case law on point that have been referred to and relied upon by the parties in their submissions.
38. The best place to begin, in our view, is to see whether Order 12 Rule 35 is actually pleaded in the set-aside motion. At page 52 of the AB, relief 1 of the set-aside motion reads, and we quote in part, Pursuant to Order 12 Rule 8 and 35 of the National Court Rules....... We note that the appellant did plead Order 12 Rule 35 in its set-aside motion. We also note that the appellant pleaded Order 12 Rule 8 in general, that is, without making any specific references to the sub-rules. But when we consider the written submission and the transcripts of proceeding, Mr Kuvi makes reference to Order 12 Rule 8(2) and (3), that is, together with Order 12 Rule 35 of the National Court Rules. Now, this is where we perhaps get to the turning point or the gist of the appeal or the set-aside motion. We note Mr Kuvi did not ask the Court at any one time, whether it be in the set-aside motion, in his written submission or in his oral presentation, that his clients were also invoking Order 12 Rule 8(4) of the National Court Rules. We see none of that except in the submissions of the first respondent to the Court below. So the sources that had been invoked by the appellant and the second respondent were Order 12 Rules 8(2)(3) and 35 of the National Court Rules. And because Order 12 Rule 8(4) was not invoked, it could not have been, in our view, properly before the Court for consideration. It therefore seems quite obvious to us that the Court fell into error, that is, when it proceeded to address Order 12 Rule 8(4) based only on the submissions of the first respondent.
39. But coming back to addressing ground 5, we ask ourselves this. Did the Court err in the exercise of its discretion when it did not consider Order 12 Rule 35?
40. We would answer in the affirmative. As a start, sub-rule 5 of Order 12 Rule 8 is express. It states, This Rule does not affect any other power of the Court to set aside or vary a judgement or order. And Order 12 Rule 35, in our view, gives the National Court that discretion, that is, to set aside a judgment that is entered by default in circumstances including those described under Order 12 Rule 8(2)(a) and (3)(a). It is obvious in the Court’s decision that no regard had been given to its jurisdiction under Order 12 Rule 35. We may not have an issue, had the Court considered Order 12 Rule 35. However, it had not in this case and thus, it has, in our view, erred in the exercise of its discretion.
41. We must also add that no reason was given in the Court’s decision of why it had decided not to invoke or consider Order 12 Rule 35. It is our firm view that if an applicant invokes a source or jurisdictional basis in his or her notice of motion, the Court is duty bound or should be obliged to proceed on that basis, and if for whatever reason the Court is unable to do so or to proceed under the said source, that it should, in our view, give its reason(s) or explanation. Otherwise, its decision may also be regarded as flawed or otherwise wanting in natural justice. See case of Electoral Commission v. Pastor Bernard Kaku and William Powi (2019) SC1866. This Court at page 58 stated, and we quote in part:
Natural justice in terms of proceedings that are before a Court or a judicial authority, extends, unless the law does not otherwise permit, to the right to receive or be informed of a ruling or a decision which should show that the Court or the judicial authority has considered the argument(s) or issues that had been raised. I say this strongly and particularly in a Court hearing setting. It is one thing to present one’s case to the Court, which may be regarded as the first leg. And it is another thing or the second leg to actually receive, be informed or be notified of a decision after it is heard by the Court or by the judicial authority. So if a person has presented his or her case but none of what he or she has said was ever considered, covered or captured by the Court in its decision or reasoning, this could, in my view, amount to breach of natural justice.
42. We therefore uphold ground 5 of the appeal. The decision is sufficient, in our view, to uphold the appeal and overturn the Court’s decision of 27 September 2017. But when we refer to the relief sought in the ANoA, the appellant asks that this Court set aside the Court Order of 7 April 2017, something which had been sought but denied by the Court on 27 September 2017.
43. To determine that, we would have to re-hear the set-aside motion. Can we do that? The answer to that is, “yes”. Section 6 of the Supreme Court Act Chapter No. 37 states:
(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court—
(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
(b) to draw inferences of fact.
(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
(Underlining ours)
CORRECT TESTS
44. The case law is settled in an application to set aside a default judgment that is regularly entered. This Court in Albright Ltd v. Mekeo Hinterland Holdings Ltd (2014) SC1400 said at paragraph 28, and we quote:
28. There are ample case authorities in this jurisdiction that relate to setting aside of regularly entered judgments. The same case authorities that were cited before the National Court in this case are relevant. They are:-
Green & Co Pty Ltd v Green [1976] PNGLR 73, Barker v The Government of Papua New Guinea & Ors [1976] PNGLR 340; the Government of PNG & Davis v Barker [1977] PNGLR 386; George Page Pty Ltd v Malipu Bus Balakau [1982] PNGLR 140; Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145; Hannet and Hannet v ANZ Banking Group (PNG) Ltd 91996) SC505P; Leo Duque v Avia Andrew Paru [1997] PNGLR 378; Danny Totamu v Small Business Development Corporation (2009) N3702 and Yamanka Multi Services Ltd v National Capital District Commission (2010) N3904.
All the above case authorities support the proposition that he court has jurisdiction to set aside default judgments even where it is regularly entered. This position thereby throws out the res judicate argument.
45. And this Court in Arman Larmer Surveys Ltd v. Chan Consolidated Ltd (2014) SC1609, confirmed the 3 requirements required of an applicant in an application to set aside a regularly entered judgment. They are, (i), the application must be made promptly within a reasonable time (ii), there must be reasonable explanation(s) why judgment was allowed to be entered in default, and (iii), there must be an affidavit stating facts showing a defence on the merit. This Court also held in that case that regard should be had to this other consideration, and we quote:
46. Default judgment in this case was regularly entered on 7 April 2017. The appellant and the second respondent filed their set-aside motion on 17 May 2017. There was a delay of 20 days as argued by Mr Kuvi before the Court (see page 199 of the AB). Counsel for the deceased did not take any issue on delay (see page 200 of the AB). But regardless, we do find that the set-aside motion was filed within reasonable time.
47. We turn to the next requirement concerning the reason(s) as to why default judgment was entered in the absence of the appellant and the second respondent. We begin with this remark. We notice from the transcripts of proceeding a general trend of interjections by the Court to Mr Kuvi. We observe with respect that given the interjections, that Mr Kuvi was not able to complete his sentences or submissions. Evidence of that may be seen by reading from the transcripts of proceeding at page 186 onwards in the AB.
48. That said, we have considered the written submissions of the parties to the set-aside motion which are contained in the AB. We have also perused the submissions on point that had been presented by both counsel to the Court on 15 September 2017. We have also considered the evidence that had been relied upon by the parties at that time. Of relevance for this purpose would be the affidavit of Turai Elemi (see page 119 of the AB) filed on 17 May 2017, affidavit of Nora Kipma (see page 97 of the AB) filed on 17 May 2017 and the affidavit of Kila Auani (see page 103 of the AB) filed on 17 May 2017. As for the deceased, we refer to his own affidavit (see page 141 of the AB) filed on 11 July 2017 and the affidavit of Gordon Pipike (see page 158 of the AB) filed on 5 September 2017.
49. We make the following observations. The appellant was served with the writ on 9 November 2016 whilst the second respondent was served with the same on 1 November 2016. The deceased, as submitted by his counsel, had allowed the defendants 90 days to file their notice of intention to defend and the defence (see line 40 page 179 of the AB). If we compute time from there, excluding the court vacation period, the notice of intention to defend and defence would have been due on or about 14 March 2017 and 22 March 2017 respectively. Evidence shows that the appellant and the second respondent forwarded their notice of intention to defend on 8 December 2016 and their defence on 2 February 2017, respectively by courier mails to the Assistant Registrar of the Mt Hagen National Court for sealing. Evidence shows that there was a failure on the part of the Registry to seal and return sealed copies of the same documents. Evidence also shows various exchanges between Elemi Lawyers and the Court Registry. The appellant’s evidence shows that assurances had been given by the staff at the Mt Hagen National Court Registry that they would seal the documents on the dates at which they had been received or lodged. Evidence also shows that the defendants’ lawyers had been under the impression that there would be no issue given the fact that they had forwarded the court documents within the pleading period or within the extended period, for filing. But when it became apparent that the documents had not been sealed, Mr Elemi who was counsel acting at that time, tried to but was unable to book a flight to Mt Hagen from Port Moresby in time to attend the hearing on 7 April 2017.
50. The main arguments raised by the deceased were as follows. He firstly submitted that the defendants’ lawyers should have personally attended to the filing of the documents or that they should have engaged a city agent to attend to filing personally; that they were negligent when they sent the documents via courier mails for filing. In support, counsel relied on Order 7 Rule 3 and Order 8 Rule 4 of the National Court Rules. Counsel also referred to the case of Leo Duque v. Avia Andrew Paru [1997] PNGLR 378. The next argument by the deceased was that there were several flights that operated between Port Moresby and Mt Hagen on a daily basis at the material time. As such, he submitted that Mr Elemi could have easily travelled in to Mt Hagen to attend the hearing on 7 April 2017.
51. Firstly, we find that the notice of intention to defend and the defence were forwarded for filing well within time which included the extended period that had been allowed by the deceased. Secondly, we do not consider the practice of forwarding court documents to the National Court Registry by courier mail for filing, as unusual or negligent. Rather, such a practice is permitted and is allowed by the Court Registry and has been the case for many years. There is nothing that prevents a person from forwarding court documents for filing via letters or correspondence. Furthermore, we make mention here that the judiciary is presently putting in place a system where e-filing will replace the conventional filing of accepting documents at the Court Registry counters. The system is called Integrated Electronics Case Management System or IECMS. It is already at its trial stage this year and litigants and lawyers are already using that to file documents including originating processes.
52. We have considered Order 7 Rule 3 and Order 8 Rule 4, and the case of Duque v. Paru (supra) which was referred to us by Mr Pipike. We firstly note this. Both rules do not say that it is not permitted to mail or post court documents in for filing or that a notice of intention to defend and defence must be personally filed. Order 7 Rule 3 of the National Court Rules in fact expressly permits posting of a notice of intention to defend for filing at the National Court registry. Sub-rule (1) reads and we quote in part, A notice of intention to defend may be given by filing it in or by posting it to the Registry. We refer to the case of Duque v. Paru (supra). We note that the deceased had relied on the case in the context of alleged negligence by the defendants’ lawyers. We have addressed that herein. As such, the case cannot be of assistance.
53. In regard to non-attendance by Mr Elemi on 7 April 2017, we do not find his reasons unreasonable. Mr Elemi’s law firm is based outside of Mt Hagen and he deposes that he was unable to travel on the 6th of April because the flights were fully booked. We note Mr Pipike’s assertion that there were several flights in and out of Mt Hagen at the material time. We note the availability of more flights per day to Mt Hagen but at the same time, we also note that it does not mean or guarantee that there will always be seats available for passengers to travel. This is a case where we will have to decide whom to believe. We are inclined to accept the explanation by Mr Elemi. It was incumbent upon the deceased to provide evidence that may prove contrary to the claim or to the evidence that has been deposed to by Mr Elemi or the defendants, that there were infact seats available from 1 or more of the flights that he alleged were available. To assert a general claim in evidence that there were several fights and that counsel could have travelled is too broad and difficult in our view to contemplate.
54. We are therefore satisfied that the appellant has met the second test.
55. The next requirement relates to defence on merit. We refer in particular to the affidavit of Emelda Agon (see page 53 of the AB) filed on 17 May 2017. Ms Agon was the Chief Executive Office of the second respondent at the material time. The first proposed defence is that the deceased did not exhaust the administrative process under regulation 31 of the Gaming Machines Regulation before he filed the proceeding. Regulation 31 reads, and we quote:
31. Pay outs.
(1) A site owner or holder of a gaming machine permit shall only be liable to pay a wining bet won on any authorised gaming machine by a patron or player in accordance with the price table displayed on the gaming machine.
(2) When a win by a patron or player on an authorised gaming machine and the credits won exceed the corresponding winning credits displayed on the price table due to an error or faulty machine, the win is void and cannot be claimed by a patron or player.
(3) Notwithstanding Subsection (2), the site owner or holder of a gaming machine permit shall be liable to pay the equivalent of the winning credits displayed on the price table that ought to have appeared on the concerned gaming machine.
(4) When a dispute arises between a patron or player and the holder of a gaming machine permit, the dispute must be referred to the Board for determination as soon as practicable and the decision of the Board shall be final and binding.
56. She deposes at paragraphs 16 and 17 of her affidavit as follows:
57. We have considered this evidence and others that had been relied upon at the set-aside motion by both parties. We find this proposed defence valid because firstly, we note that the deceased did not plead in the writ that he had exhausted that process. His evidence does not say whether regulation 31 of the Gaming Machines Regulation had been exhausted before he filed the proceeding.
58. Ms Agon also deposes that the machine that the deceased had used was a 1 toea machine. She says that in the case of a 1 toea machine, the maximum payout where one can win at any one time is K5,500. She says after she received the writ, she instructed her officers to conduct an inspection on the machine. Her exact words at paragraphs 18 and 19 of her affidavit read:
59. We find this reason cogent and note that it could easily be converted into a reasonable defence. A better way to illustrate it is this. There is a gaming machine which is programmed to pay a maximum win of K5,400 at any one time. The deceased plays the said machine and the machine shows a maximum win of about K31 million. Any reasonable minded person looking at this, in our view, will say that there is or may be something that is not right about the winnings because it appears to exceed the maximum programmed amount that is payable by the machine. It would be different if the machine is programmed to pay K31 million or a sum that exceeds K31 million. If that were to be the case, we may not be persuaded by the evidence of the appellant or the second respondent. However, that is not the case here as explained.
60. For these reasons, we find valid defence on merit demonstrated herein.
61. We remark in closing that the test for irreparable prejudice that a plaintiff may suffer is conditioned on the premise of inordinate delay in setting aside the default judgment as held in Arman Larmer. This test is inapplicable herein in our view given that there had been no delay in the filing of the set-aside motion.
SUMMARY
62. In summary, we uphold the appeal and grant the relief, except cost, as sought in the ANoA. It is our firm view that this matter should be properly trialed before the National Court.
COST
63. Awarding costs is a discretion. We are of the view that the parties should bear their own costs in relation to the substantive appeal. We note that whilst the appellant is successful in the appeal, that the fault may be with the registry for not sealing the documents within the time as required under the National Court Rules. We also note that the deceased and now his estate, which is represented by the first respondent, were entitled to take the steps in the manner as they had done in the Court below as well as in this appeal.
THE ORDERS OF THE COURT
64. We make the following orders:
_______________________________________________________________
Young and Williams Lawyers: Lawyers for the Appellant
GP Lawyers: Lawyers for the First Respondent
Twivey Lawyers: Lawyers for the Second Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2020/70.html