Soundarajan v Rajan [2021] PGSC 120; SC2347 (10 December 2021)

SC2347

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 144 OF 2021

BETWEEN:
ELIZABETH SOUNDARAJAN
Appellant

AND:
NOEL RAJAN
First Respondent

AND:
WR CARPENTERS (PNG) LIMITED
Second Respondent

Waigani: Hartshorn J
2021: 8^th & 10^th December

SUPREME COURT – practice and procedure - application for leave to appeal – decision sought to be appealed is an interlocutory judgment which amongst others refused an application by the applicant to be substituted as the plaintiff in place of deceased plaintiff – tests to be applied in considering application for leave to appeal -consideration of – addition of a party in substitution of a deceased party – Order 5 rule 12 (1)(b) NCR – whether applicant has demonstrated she is the wife of the deceased – primary judge fell into error by stating that an applicant applying to join as substitute party shall make an application within three months - likelihood of substantial injustice being caused to the applicant if the decision appealed is allowed to stand – application for leave granted

Cases Cited:

Oberia v. Charlie (2005) SC801

Counsel:

Ms. E. Ngomba, for the Appellant
Ms. A. Narokobi, for the First and Second Respondents

Oral decision delivered on
10^th December 2021

1. HARTSHORN J: This is a decision on a contested application for leave to appeal. The decision sought to be appealed is a National Court interlocutory judgment which amongst others refused an application by the applicant to be substituted as the plaintiff in place of Pradeep Soundarajan (decision appealed). Mr. Soundarajan had commenced a proceeding against his former employer and sought damages. Mr. Soundarajan died on 24^th July 2017 and the applicant applied to replace him as plaintiff pursuant to Order 5 Rule 10 National Court Rules. The applicant gave evidence that she was the wife of the deceased.
   
2. It is apparent from the written reasons for judgment that the primary judge refused the application for substitution because of delay in making the application by the applicant’s lawyer, insufficient evidence of the applicant’s marriage to the deceased and insufficient evidence that by Indian Custom the applicant is the heir to the estate of the deceased.
   

Leave to Appeal

3. The requirement to seek leave is a procedure that ensures that the Supreme Court is not clogged with appeals from every interlocutory ruling of a judge made before the final judgment.
   
4. In Oberia v. Charlie (2005) SC801, Lay J., after a comprehensive review of the authorities, listed the following tests that are to be applied to the facts of each application for leave appeal:
   

a) is there an arguable or prime facie case or has it been demonstrated that the trial judge was wrong?

b) does the appellant have other recourse in the court below?

c) was the ruling within the discretion of the court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?

d) does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?

e) will substantial injustice be caused by allowing the decision to stand?

f) has cause been shown that the trial process should be interrupted by an appeal?

5. The applicant submits that leave to appeal the decision appealed should be granted as amongst others:
   

a) Order 5 Rule 10 National Court Rules does not require an application for substitute to be made within three months;

b) any delay in making the application was not unreasonable;

c) there was sufficient evidence of the applicant’s marriage to the deceased before the National Court and to the extent that the primary judge found otherwise, he fell into error;

d) the applicant has no recourse in the National Court.

e) substantial injustice will be caused if the decision appealed stands.

6. The respondents submit that leave to appeal should be refused as amongst others:
   

a) there is no arguable or prima facie case demonstrated that the primary judge fell into error;

b) the applicant has recourse in the National Court under Order 8 Rule 59 National Court Rules;

c) the decision appealed was not unreasonable and substantial injustice will not be caused if the decision appealed is allowed to stand.

Consideration

7. As to whether it has been demonstrated that the primary judge was wrong, the application was made pursuant to Order 5 Rule 10 National Court Rules. That Rule does not require an application to be made within three months of the death of the relevant deceased.
   
8. There is no time limit referred to in Order 5 Rule 10. The three-month requirement is in Order 5 Rule 12 (1)(b).
   
9. Order 5 Rule 12 (1)(b) provides that if an Order under Rule 10 is not made within three months after the death of a deceased, the Court may dismiss the proceedings, on application by a party. It does not provide that an application under Order 5 Rule 10 must be made within three months. Here, there is no evidence that either of the respondents or anyone else has made application to dismiss the National Court proceedings from which the decision appealed emanates.
   
10. It may be argued therefore, that the primary judge fell into error in finding that there was unreasonable delay in making the application for substitution when there is no time requirement under Order 5 Rule 10 by which an application must be made and no evidence that an application had been made to dismiss the National Court proceeding under Order 5 Rule 12 National Court Rule. I note further, the primary judge’s comments that the respondents did not take issue with the delay in filing the application.
    
11. As to the finding that there was insufficient evidence of the applicant’s marriage to the deceased, from a perusal of the written reasons for judgment the primary judge does not make any reference to the death certificate of the deceased recording the applicant as the wife of the deceased. This fact, together with the applicant’s evidence that she is the wife, gives rise to the argument that the primary judge fell into error in finding that there was insufficient evidence of the applicant’s marriage to the deceased.
    
12. For the above reasons, I find that the applicant has established an arguable and prima facie case that the primary judge fell into error.
    

Other recourse

13. As to the applicant having recourse in the Court below, Order 8 Rule 59 National Court Rules to which reference is made is a “slip rule” provision. The applicant does not have recourse by reliance on this provision as submitted by the respondents as the primary judge did not make a slip. The primary judge clearly made the decision appealed based on his earlier findings. Further, the authority relied upon by the respondents is not binding on this court. The applicant does not have further recourse in the National Court.
    

Substantive rights

14. As to whether the decision appealed has a bearing on the final determination of the issues between the parties if the decision appealed stands, the respondents submit that the primary rights of the deceased are not affected and do not abate. This does not however, address the rights of the applicant. Clearly the applicant’s rights will be affected and, in all likelihood, substantively, if the decision appealed stands as she will not be able to proceed with her claim.
    

Substantial injustice

15. To my mind there is a likelihood of substantial injustice being caused to the applicant if the decision appealed is allowed to stand.
    
16. For the above reasons, I am satisfied that the application for leave to appeal should be granted. Given this, it is not necessary to consider the other submissions of counsel.
    

Orders

17. The Court orders that:

a) The Application for Leave to Appeal filed 2^nd November 2021 is granted.

b) The costs of the said Application for Leave to Appeal shall be costs in the appeal.
__________________________________________________________________
Tamutai Lawyers: Lawyers for the Appellant
O’Briens Lawyers: Lawyers for the Respondents