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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 134 OF 2014
BETWEEN:
HON. NICK KUMAN, MP
First Appellant
AND:
DAING KIL – DISTRICT ADMINISTRATOR OF GUMINE
Second Appellant
AND:
GUMINE DISTRICT ADMINISTRATION
Third Appellant
AND:
SIMBU PROVINCIAL GOVERNMENT
Fourth Appellant
V
JOE KUA, for himself and on behalf of 41 others
Respondents
Waigani: Makail J, Anis J & Miviri J
2020: 23rd November
2021: 26th February
SUBSTANTIVE APPEAL – Appeal against exercise of discretion – refusal to adjourn and dismissal of application to set-aside summary judgment – reason for refusal of adjournment based on Order 4 Rule 49(18)(4) of the National Court Rules – request for an adjournment was made in Court as opposed to findings that it was based on request by correspondence – whether there was error in fact and law – whether these constituted misapplication of the fact and rules - whether the trial court mistook the facts and consequently whether wrong facts and rules were relied upon–whether insufficient weight was given to the evidence that was presented for requesting for an adjournment –request based on cogent medical evidence - consequently, whether the decision appealed should be quashed
Cases Cited:
The Government of Papua New Guinea v. Richard Harold Davis v. Stanley Barker [1977] PNGLR 386
Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
Counsel:
Mr T Sirae, for the Appellants
Mr J Kua, in person for himself and the Respondents
26th February, 2021
1. BY THE COURT: The appellants appeal from a decision of the National Court (trial Court/trial judge) made on 12 September 2014. The proceeding’s description is WS No. 36 of 2010. On 17 July 2014, the trial Court, in an ex parte ruling, ordered summary judgment for a liquidated sum of K1,342,000 together with costs, in favour of the respondents. On 12 August 2014, the appellants applied to set-aside the summary judgment orders (set-aside application). On 12 September 2014, the trial Court dismissed the set-aside application.
2. The appellants are aggrieved and file this appeal. Their Notice of Appeal was filed on 20 October 2014 (NoA). Before we address the grounds of appeal, we begin by setting out the background.
BRIEF BACKGROUND
3. The respondents were plaintiffs in the National Court. They alleged that some of them were former employees of the third appellants. They claimed that together, and between 2000 and 2003, they had outstanding claims of missing wages, allowances and other claims (that were unspecified) which they claimed had accumulated to a sum of K389,000. They said their claims were acknowledged by the appellants and that despite approval and release of funds by the Department of Finance for payment, the funds had been used for other purposes by the appellants. They then commenced their action in the National Court. In total, they sought for liquidated damages in the sum of K3,250,000.
4. And as stated above, the respondents obtained ex-parte summary judgment for a sum of K1,342,000 on 17 July 2014. The appellants’ set-aside application, as stated, was dismissed on 12 September 2014. But what appear, in our view, as the main facts crucial to the appeal were these. Andrew Kongri was engaged and instructed by the appellants to represent them. Mr Kongri then filed the set-aside application. It was set to return for hearing on 12 September 2014. Mr Kongri did not attend Court on that day but instead instructed his town agent, a Mr Punau, to appear and request for an adjournment. Mr Punau made appearances in Court on 12 September 2014 and applied to adjourn the set-aside application. The application for the adjournment was contested. The trial judge heard arguments, and in an ex-tempore ruling on that day, refused to grant the adjournment. In so doing, the trial Judge proceeded immediately after and dismissed the set-aside application for, amongst other reasons or remarks, want of prosecution.
5. The appeal stems from that.
GROUNDS OF APPEAL
6. We now address the grounds of appeal as contained in the NoA. They are 2 in total and they read:
and
(d) if the trial judge had determined the merits of the Appellants’ Notice of Motion filed on 12th August, 2014 His Honour would have set aside the ex-parte judgment of 14th July, 2014 and dismissed the entire proceedings because:
(i) the claim did not disclose a reasonable cause of action; was frivolous or vexatious and/or was an abuse of process;
(ii) there was lack of proper Section 5 Notice given pursuant to the Claims By & Against the State Act, 1996; and
(iii) the claim was statute barred pursuant to Section 16 of the Statutes of Fraud and limitations Act, 1988.
ISSUES
7. The main issues, in our view, are as follows, (i), whether the trial judge erred in the exercise of his discretion when he refused to grant an adjournment and when he proceeded to dismiss the set-aside application, and (ii), subject to the first issue, what relief is warranted and should be granted under the circumstances?
APPEAL AGAINST EXERCISE OF DISCRETION
8. The law is settled in a situation where the Supreme Court is being asked to consider an appealed decision that was made based solely on exercise of discretion. This Court very early on, in The Government of Papua New Guinea v. Richard Harold Davis v. Stanley Barker [1977] PNGLR 386, held in part:
(1) (Per Prentice Dep. C.J. with whom Frost C.J. agreed.) The appeal, being an appeal against the exercise of a discretion, in order for the Appellate Court to substitute its discretion for that of the Judge appealed from (if it has the material for doing so) it must be shown that the Judge appealed from exercised his discretion upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts or did not take into account some matter for consideration; (Lovell v. Lovell [1950] HCA 52; (1950) 81 C.L.R. 513 at p. 518, House v. The King (1936) 55 C.L.R. 499 at p. 504) and it being clearly wrong in its decision; (Australian Coal and Shale Employees' Federation v. The Commonwealth and Others [1953] HCA 25; (1953) 94 C.L.R. 621, or it appearing that otherwise injustice might be done; (Evans v. Bartlam [1937] A.C. 473 at p. 480.)
9. And later, and in the case of Curtain Bros (PNG) Ltd v. UPNG (2005) SC788, this Court also stated:
The grant of summary judgment under O 9 r 15(1)(b) for failure to give discovery is discretionary. The appellate 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 CLR 621 at p. 627, which was adopted by Clarkson J in Breckwoldt& Co. (N.G.) Pty Ltd v Groyke [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 ..."
DECISION TO ADJOURN – GROUND 1
10. We now consider the first ground of appeal. The relevant transcript of proceeding of 12 September 2014 is located at page 294 of the Appeal Book (AB). Mr Punau who appeared for Mr Kongri on that day informed the Court that Mr Kongri had suffered a broken leg and therefore could not attend Court on that day, and that Mr Kongri had instructed him (i.e., Mr Punau) to request for an adjournment of the appellants’ set-aside application. Mr Punau moved the Court for an adjournment for that reason. In support, he relied on Mr Kongri’s affidavit dated 10 September 2014. The affidavit is located at page 282 of the AB. The affidavit, we note, contains evidence including medical evidence of Mr Kongri’s broken fibula bone on his right leg.
11. The trial judge gave 2 main reasons for refusing to grant the adjournment. He firstly found the request (for the adjournment) to have breached a court rule, and as His Honour states, Number 18(4). This may be seen below line 10 of the transcript of proceeding, at page 299 of the AB. The rule referred to is Order 4 Rule 49(18)(4) of the National Court Rules. It states, No Motion will be adjourned by correspondence addressed to or copied to the Registrar, Clerk or Judge’s Associate. His Honour made this finding after Mr Punau had made submissions to the Court of a letter that had been forwarded by Mr Kongri to him with instructions to make appearances and to request for an adjournment. His Honour also confirmed with then counsel for the respondents Mr Yawip that he (Mr Wawip) had also received a copy of the letter from Mr Kongri. His Honour ruled that such actions or act by Mr Kongri, that is, in sending out correspondence to request for an adjournment, was in breach of sub-rule 18(4) of the Motions Rules.
12. His Honour’s second reason is this. He ruled that the substantive matter had been dealt, that is, in relation to the grant of summary judgment. He said the matter was completed and that the way forward was for the appellants to appeal to the Supreme Court. His Honour said that he had no jurisdiction to deal with the set-aside application.
13. We note the submissions of the parties which were brief.
14. We firstly consider that the second reason relates or appears to concern His Honour’s view of the substantive matter, that is, the set-aside application that was before the Court after he declined the adjournment application. As such and in our view, this reason has nothing to do with the application for adjournment nor can it be regarded as a reason to refuse a request for an adjournment. As such, we regard it irrelevant for this consideration or purpose.
15. In regard to His Honour’s ruling which was based on Order 4 Rule 49(18)(4), we must say that we do find serious errors been committed. His Honour’s finding was based on the premise that Mr Kongri had asked for an adjournment through correspondence, whether it be directly or copied, to the registry and to the then lawyers for the respondents. The correspondence concern was a letter which had been written by Mr Kongri’s law firm. The said letter was not adduced before the trial Court, but rather, it was brought to the attention of the Court through submissions by the parties. This Court, like the Court below, is also disadvantaged in that it does not have the benefit of perusing that letter. But based on the submissions from counsel and from reading from the transcript of proceeding for that day, it is clear to us that the letter was sent by Mr Kongri by facsimile to Mr Yawip. This was confirmed by Mr Yawip in the transcript of proceedings, that is, above line 10 at page 297 of the AB, where it reads in part: “The defendants have engaged Kongri Lawyers and Kongri Lawyers have filed an application. It is now pending. That application is to set aside the court order and yesterday he faxed a letter asking for the motion to be adjourned and we have replied...”. It cannot however be confirmed from the transcript or submissions whether the letter was also faxed to the registry or to the associate of the trial Judge. Therefore, it is also possible that that may very well have occurred.
16. But having said all that, they are, in our view, irrelevant to the material fact. Mr Punau had appeared on instructions from Mr Kongri and had applied for an adjournment before the trial Court. The actual request for an adjournment was made by Mr Punau in Court and not upon reliance on a correspondence or on the letter that had been referred to. That fact was not regarded by the trial Court. In fact, it was not considered at all, and if we may say that quite to the contrary, the trial Judge simply made reference to the letter to say why it breached Order 4 Rule 49(18)(4) of the National Court Rules.
17. When we look at the material fact, we note that the said rule could not have been relevant where it could have been breached by the appellants. And that is because of the fact that the appellants had appeared, through their town agent, and had requested for an adjournment, in Court. The trial judge should have dealt with the request for adjournment on that basis. If he had, he would not have relied upon Order 4 Rule 49(18)(4) and found the said rule to have been breached. So, because His Honour had relied upon a wrong fact or presumption, he also, in our view, had erroneously relied upon and found Order 4 Rule 49(18)(4) to have been breached by the appellants. As a result, it cannot be said, in our view, that His Honour’s application of discretion was based on proper facts and law; His Honour, with respect, erred in mixed fact and law.
18. We therefore find that an identifiable error occurred in the exercise of His Honour’s discretion when he dismissed the request for the adjournment on 12 September 2014. The said decision would have to be set aside or quashed. We will also say this. Had the Court not refused the adjournment or granted it, the set-aside application would not have been dismissed and a new date would have been set for its hearing. As such, our finding herein also affects or impacts upon the exercise of His Honour’s discretion to also dismiss the set-aside application, which would also have to be set aside or quashed.
19. There is another reason why ground 1 of the appeal should be upheld, which is this. We consider the reason given by the appellants for requesting an adjournment to be valid, that is, it was supported with cogent evidence. When we say that, we refer to Mr Kongri’s affidavit that had been relied upon by Mr Punau in his application for adjournment. Mr Kongri had carriage of the file and he had broken a leg. Amongst the evidence were a referral letter from the Paradise Hospital and a medical certificate from the Port Moresby General Hospital. When we look at the transcript, we note that His Honour had inquired whether there was medical evidence filed to support Mr Kongri’s claim of a broken leg. Mr Punau said ‘yes’ and referred to Mr Kongri’s affidavit. However, His Honour upon being informed, turned his attention to the purported breach of Order 4 Rule 49(18)(4). His Honour also stated that when a person engages a lawyer, that he or she engages the law firm and not the lawyer. His Honour however did not elaborate further with this assertion and it seems that it was made as a remark.
20. We therefore also find that the trial Court did not give due regard or sufficient weight to the argument and evidence that had been adduced before him, and in particular, the affidavit evidence of Mr Kongri. It seems to us that Mr Kongri had followed due process when he engaged the town agent to make appearances on his behalf to make a formal or oral application for an adjournment in Court, before the trial judge. Notices of Mr Kongri’s intention to request for an adjournment was conveyed the previous day by facsimile to the lawyers on record for the respondents, and perhaps also copied to the registry. And Mr Kongri swears an affidavit where he deposes and explains why he could not travel to attend Court in Kundiawa on 12 September 2014, and he attaches various medical reports to support his claim. In our view, had sufficient weight been given by the trial Court, His Honour would have granted the adjournment and not refuse it in the manner has had been done in this case.
21. For these reasons, we would uphold the first ground of appeal.
DISMISSAL OF SET-ASIDE APPLICATION – GROUND 2
22. In regard to ground 2 of the appeal, we are of the view that our findings in relation to ground 1 are sufficient to overturn or nullify subsequent decisions that had followed or were made by the trial judge, including the decision to dismiss the set-aside application. Both decisions were made by the trial Court at the same time or one after another. His Honour refused the appellants’ request for an adjournment to pave way for him to then dismiss the set-aside application on the basis of want of prosecution. If His Honour had granted the adjournment, he would not have dismissed the set-aside application, and the parties would have had a new date in Court to argue it. In upholding ground 1of the appeal, it also means that we have granted the appellants’ request for an adjournment. So, consequently, the set-aside application, in our view, must be re-instated for it to be argued at a later date.
23. We will also say this. It would be pre-mature to address the second ground of appeal for to do so would effectively mean for us to consider the merits of the set-aside application which will now be pending a full hearing before the National Court, that is, given our findings in general. Issues concerning the set-aside application should and will be left to a new trial Court judge to hear.
RELIEF
24. In the NoA, the appellants plead their relief as follows:
4. Orders sought
(1) The decision of the trial judge of 12th of September, 2014 refusing to adjourn the Appellant’s Notice of Motion filed on 12th August, 2014 and dismissing it be brought up and quashed.
(2) The Appellant’s Notice of Motion filed on 12th August 2014 be remitted back to the National Court to be fully argued.
(3) Alternatively:
(i) the ex-parte summary judgment of 14th July, 2014 in the sum of K1,342,000.00 against the Appellants be set aside/ or quashed; and
(ii) the National court proceedings under reference, WS No. 36 of 2010: Joe Kua & Orders –v- Nick Kuman & 5 others be dismissed:
(a) for showing no reasonable cause of action being frivolous or vexatious and / or being an abuse of process; or
(b) for want of Section 5 Notice under the Claims BY and Against the State Act, 1996 or
(c) for being time-barred pursuant to Section 16, Claims By and the state are required.
25. We are inclined to grant relief 1 and 2 as proposed by the appellants. Given that, it is not necessary for us to consider the alternative relief. But that said, we would remark that the alternative relief cannot be granted since the set-aside application was never dealt with on its merit.
SUMMARY
26. The substantive appeal is granted. We will order cost to follow the event on a party/party basis to be taxed if not agreed.
ORDERS OF THE COURT
27. We make the following orders:
________________________________________________________________
McGregor & Associates: Lawyer for the Appellants
Joe Kua, Respondent in Person
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