SC1992

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 73 OF 2018

REVIEW PURSUANT TO s.155(2)(b) CONSTITUTION

BETWEEN:
NELSON SAROA
Applicant

AND:
BABAGINI NOGANA
Respondent

Waigani: Salika CJ, Hartshorn J, Berrigan J
2020: 24th & 27th August

SUPREME COURT - Application for review – review decisions on liability and award of damages –applicant denied natural justice – applicant or his counsel not given opportunity to be heard at the hearing of the remainder of the part heard trial as to liability as they were not informed of the hearing date -  applicant denied natural justice – application to review granted

Cases Cited:

Curtain Bros (PNG) Ltd v. University of Papua New Guinea (2005) SC788
Peter Sharp v. Warwick Andrew (2016) SC1797
Kuso Maila Anda Ltd v. United Pacific Corporation Ltd (2019) SC1894

Counsel:

Mr. P. Harry, for the Applicant
Ms. E. Wurr, for the Respondent

27th August, 2020

1.BY THE COURT: This is a decision on a contested application made pursuant to s. 155(2)(b) Constitution, to review two National Court decisions made against the applicant, one on liability and the other which awarded damages.

2. The applicant was granted leave to make this application on 20th February 2017.

Background

3. The respondent (Mrs. Nogana) commenced a proceeding against the applicant (Mr. Saroa) to enforce her human rights following her eviction from where she was residing, in September 2012. Mrs. Nogana:

a) 	had been residing on customary land pursuant to a purported agreement;
b) 	claims to be a member of the clan that owns the customary land;
c) 	claims that Mr. Saroa and others unlawfully evicted her from the customary land and breached her human rights.

4. Following a trial, Mr. Saroa was adjudged liable and following an assessment was ordered to pay certain damages. 

5. Mr. Saroa seeks to review the two decisions on the grounds that both orders were irregular and defective. He also claims that he was denied proper representation and was denied natural justice. We consider the natural justice ground first.

6. After the human rights application was filed it then proceeded by way of pleadings. A trial commenced on 20th May 2016. Both parties were represented. After the parties had tendered their evidence, the trial was adjourned part heard to 16th June 2016 for submissions. The matter was then adjourned on a number of occasions. On 13th October 2016, the matter was called. There was only an appearance by counsel on behalf of Mrs. Nogana. The court ordered that the part heard trial be adjourned to Thursday, 20th October 2016 at 9:30 a.m. for submissions and that Mr. Saroa would pay the costs of the adjournment in the fixed sum of K300.00.

7. On 20th October 2016, the matter was called. There was only an appearance by counsel on behalf of Mrs. Nogana. The primary Judge stated that:

“Well, the matter has been adjourned on several occasions and last Thursday, I adjourned because there was a letter from Raurela Lawyers saying that their lawyer with carriage of this matter, Mr. Asan was sick. There is nothing else from the court file. So, you may proceed.”

8. The hearing of the part heard trial proceeded with counsel for Mrs. Nogana making submissions. The primary judge then ruled on the matter by delivering an ex tempore decision. He ordered amongst others, that Mrs. Nogana had established causes of action in negligence and human rights and that there would be a trial on assessment of damages.

9. Mr. Saroa claims that he and his lawyer were not informed that the part heard trial had been adjourned for hearing to 20th October 2016. Counsel for Mrs. Nogana informed the court from the bar table that Mr. Saroa’s lawyer was informed. There is however, no evidence of this in the application book. Further, the transcript of the hearing on 20th October 2016 does not disclose the primary judge stating that he was satisfied that the lawyer for Mr. Saroa or Mr. Saroa had been informed of the time and date to which the part heard trial had been adjourned for hearing, or that he was satisfied that they were aware by other means of the said adjourned hearing time and date. As mentioned, counsel for Mr. Saroa or Mr. Saroa were not present in court on 13th October 2016 when the matter was adjourned to 20th October 2016.

10. Mr. Saroa relies upon s. 59(2) Constitution which is:

“The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

11. In Peter Sharp v. Warwick Andrew (2016) SC1797, the Supreme Court by majority (Hartshorn J and Yagi J), after consideration of case authority in this jurisdiction and overseas on relevant principles of natural justice, held that the appellant was denied natural justice in that he or his counsel were not given the opportunity to fully argue the merits of an application and that this denial constituted an appealable error of law and vitiated the decision of the primary judge in the court below, even if that decision was made pursuant to a discretion conferred upon the primary judge with respect to a matter of practice or procedure.The Court relied on the decisions of Conroy v. Conroy (1917) 17 SR NSW 681, at 682-683 and RG v. DG [2013] NTSC 66 at [17]-[24].This was in an appeal from a decision in which the primary judge had determined an entire notice of motion, notwithstanding that the primary judge had only heard submissions on a preliminary issue and had reserved his decision only on the preliminary issue. Sharpe v. Andrew (supra) was recently followed by this Court in Kuso Maila Anda Ltd v. United Pacific Corporation Ltd (2019) SC1894.

12. In this instance, in circumstances where counsel for Mr. Saroa or Mr. Saroa were not present in court when the hearing time and date for the remainder of the part heard trial were set, by proceeding to hear the remainder of the part heard trial in the absence of counsel for Mr. Saroa or Mr. Saroa, without first determining and stating that he had determined that counsel for Mr. Saroa or Mr. Saroa had been informed or were aware that the part heard trial had been adjourned for hearing to the particular hearing time and date, and thereby that Mr. Saroa had been given an opportunity to be heard by being informed of the said hearing date and time, the primary judge in our respectful view, fell into error.

13. In our view, Mr. Saroa was denied natural justice in that he or his counsel were not given the opportunity to be heard at the hearing of the remainder of the part heard trial as to liability as they were not informed of the hearing date of 20th October 2016. This constitutes an appealable error of law and vitiates the decision of the primary judge. It is an identifiable error which has occurred in the exercise of the primary judge’s discretion: Curtain Bros (PNG) Ltd v. University of Papua New Guinea (2005) SC788.The application should therefore be allowed and the decisions on liability and also as to quantum should be set aside. Given this it is not necessary to consider the other submissions of counsel.

Orders

14.  The Court orders that:

a)	The application is allowed;
b)	The orders made on 20th October 2016, entered on 26th October 2016 and the order made on 6th April 2017, entered on 24th April 2017 in National Court proceeding HR 76 of 2012: Babagini Nogana v. Nelson Saroa (HR 76 of 2012) are set aside;
c)	HR 76 of 2012 is remitted to the National Court at Waigani for a rehearing before another judge;
d)	The respondent shall pay the applicant’s costs of and incidental to this application on a party to party basis to be taxed if not agreed.
__________________________________________________________________
Harry Lawyers: Lawyers for the Applicant
Office of the Public Solicitor: Lawyers for the Respondent