Talia v Silas [2021] PGSC 71; SC2145 (6 September 2021)

SC2145

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 103 OF 2018

BETWEEN:
ANDREW TALIA
for himself and the aggrieved individual firefighters whose
particulars are contained in the Schedule to the Writ
Appellant

AND:
ISAAC SILAS
in his capacity as the Chief Fire Officer
First Respondent

AND:
MUNARE UYASSI
in his capacity as the Secretary Department of
Provincial and Local-Level Government Affairs
Second Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Gavara Nanu J, Hartshorn J and Collier J
(On the papers)
2021: 6^th September

APPEAL - Practice & Procedure - Decision to set aside default judgment - Dismissal of proceeding - No reasonable cause of action - Abuse of process.

Cases Cited:
Papua New Guinea Cases

PNGBC v. Barra Amevo & Ors (1998) N1726
Christian Life Centre v. Associated Mission Churches of PNG & Ors (2002) N2261
The Papua Club Inc. v. Nusaum Holdings Ltd (No. 2) (2004) N2603
Ben Maoko v. Kevin Ling (2008) N3293
John Manau v. Telikom (PNG) Ltd (2011) SC1146
Soka Toligai v. Sir Julius Chan and Ors (2012) N4842
Idutu Koiari Development Co Ltd v. Tribal Investment Ltd (2017) N7063

Overseas Cases

Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd [1915] AC847

Counsel:

Mr. D. Wayne, for the Appellant
Mr. W. Mapiso, for the Respondents

6^th September, 2021

1. BY THE COURT: This is a decision on an appeal from a National Court decision which set aside a default judgment and dismissed a proceeding.

Background

2. The appellant commenced a proceeding in the National Court in July 2015 on behalf of himself and others as firefighters with the “PNG Fire Fighters”. The appellant/plaintiff pleaded a loss of entitlements and a breach of two memoranda of agreement dated 1994 and 2005. The relief claimed included a declaration that the respondents/defendants were in continuous breach of the memoranda, that the appellant/plaintiff and the persons he represented were entitled to their losses suffered and damages. On 28^th July 2017, default judgment was entered with damages to be assessed. On 28^th June 2018, after an inter partes hearing of the respondents/defendants notice of motion, it was ordered:

“1. Pursuant to Order 12 Rule 1 of the National Court Rules, the defendants are granted leave to withdraw their two Notices of Motion filed on 1^st December, 2017 and 24^th April, 2018.

2. Pursuant to Order 12 Rule 8(3) & (4) and Rule 35 of the National Court Rules, the default judgment entered on 28^th July, 2017 is set aside.

3. Pursuant to Order 12 Rule 40(1) (a) and (c) of the National Court Rules, the whole proceedings are dismissed on the grounds that;

(a) The proceedings disclose no cause of action and amount to abuse of Court process.

4. The applicants have not prayed for a Court Order and I do not grant it.”
(National Court Order)

Grounds of appeal

3. The appellant only appeals against paragraphs 2 and 3 of the National Court Order, being the setting aside of the default judgment and the dismissal of the proceeding.

4. There are five grounds of appeal. In his submissions and reply, the appellant states that he will cover the grounds of appeal in the order that they appear in the notice of appeal however the grounds of appeal are paraphrased and will be addressed as issues. Notwithstanding this, we will consider the submissions made to the extent to which they concern the issues in the grounds of appeal.

5. The appellant has identified the issues in the grounds of appeal as:

a) whether the appellant has standing to sue or enforce the two memoranda of agreement including as a result of “any other person” in s. 57(2) Public Service Conciliation and Arbitration Act (PSCA Act);

b) did the primary judge incorrectly apply the principles enunciated in Albright v. Mekeo Hinterland Holdings Ltd (2014) SC1400, Tedor v. PNG Ports (2011) SC1137 and Motor Vehicles Insurance Limited v. Nominees Niugini Ltd (2015) SC1435;

c) did the National Court review the decision of another National Court.

Grounds of appeal one and two

Standing – PSCA Act

6. In the first two grounds of appeal which are concerned with the finding of the primary judge that the appellant does not have standing to sue upon or enforce the two memoranda of agreement, the primary judge is claimed to have fallen into error as his finding is contrary to s. 57(2) PSCA Act and the definition of “public employee” in s. 1 PSCA Act.

7. Section 57 PSCA Act is:

“57. Powers of National Court as to enforcement of determinations, etc.

(1) The National Court may—

(a) order compliance with a determination proved to the satisfaction of the Court to have been broken or not observed; or

(b) enjoin a public employer, a public service organization or any other person from committing or continuing a contravention of this Act or a breach or non-observance of a determination.

(2) The Attorney-General may, on behalf of the State, and in the public interest, apply to the National Court for an order under Subsection (1), but this subsection does not prejudice any right that any other person has to apply for such an order.”

8. Section 57 relevantly concerns orders that may be made by the National Court as to a “determination”. A “determination” is defined in s. 1(b) PSCA Act as an agreement which is registered. It is not pleaded in the statement of claim that either or both of the memoranda are registered under the PSCA Act or at all and there is no evidence of either of the memoranda being registered under the PSCA Act or at all. That the memoranda are not registered appears to be accepted by the appellant given the tenor of his submissions. On the basis that the memoranda are not registered under the PSCA Act, they are not determinations as defined. Section 57(1) does not provide power to the National Court in respect of an agreement that is not a determination. In such circumstance, s. 57(2) cannot be relied upon by anyone to successfully seek relief under s. 57(1) in regard to an agreement which is not a determination.

9. Grounds of appeal one and two which concern standing are therefore otiose. Even if the primary judge’s findings were contrary to s. 57(2) PSCA Act as is claimed in grounds of appeal one and two concerning standing, as the memoranda are not registered under the PSCA Act and therefore are not determinations, the National Court does not have power pursuant to s. 57 PSCA Act in respect of the memoranda.

10. Further, it is noted that it is not pleaded and there is no evidence of, either of the memoranda being published in the National Gazette. Again, the tenor of the submissions of the appellant are to the effect that the memoranda have not been published in the National Gazette.

11. Section 54(1) PSCA Act provides that a determination is of no force or effect until registered and notified in the National Gazette in accordance with the PSCA Act. So even if the memoranda are registered and are determinations, on the basis that they have not been notified in the National Gazette, they are of no force or effect. Consequently, the appellant is unable to rely upon or sue upon the memoranda under any relevant provision of the PSCA Act. The Supreme Court judgment of John Manau v. Telikom (PNG) Ltd (2011) SC1146, which is referred to in the submissions of the appellant, is on point in this regard.

Underlying law

12. In the first ground of appeal, reference is also made to whether the primary judge fell into error in finding that the appellant did not have standing under any laws to sue or enforce the memoranda. We consider this point briefly as the appellant has only made submissions concerning the PSCA Act.

13. It is clear from a perusal of both memoranda that the appellant and the persons he purports to represent, are not parties to either of the memoranda. It is settled in this jurisdiction that pursuant to the doctrine of privity no person can sue or be sued on a contract unless he or she is a party to it. As a general rule a contract cannot confer rights or impose obligations arising under it on any person except the parties to it: Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd [1915] AC847; Christian Life Centre v. Associated Mission Churches of PNG & Ors (2002) N2261; PNGBC v. Barra Amevo & Ors (1998) N1726; The Papua Club Inc. v. Nusaum Holdings Ltd (No. 2) (2004) N2603; Ben Maoko v. Kevin Ling (2008) N3293; Soka Toligai v. Sir Julius Chan and Ors (2012) N4842 and Idutu Koiari Development Co Ltd v. Tribal Investment Ltd (2017) N7063.

14. No exceptions to the doctrine of privity are pleaded. A statute may provide such an exception. In this instance however, any reliance upon the PSCA Act is precluded for the reasons already stated.

15. For the above reasons grounds of appeal one and two are unsuccessful.

Ground of appeal three - setting aside of default judgement

16. In the third ground of appeal, the appellant complains that the primary judge fell into error in entertaining the application to set aside default judgment when a previous application to set aside was withdrawn with leave of the National Court on 7^th November 2017. The complaint is that the primary judge misapplied the principles in Albright v. Mekeo Hinterland Holdings Ltd (2014) SC1400 and that a second attempt at setting aside a default judgment may offend the principle of res judicata.

17. In this ground of appeal, the appellant complains that the primary judge fell into error in hearing a motion to set aside a default judgment when a previous motion seeking the same relief had been withdrawn. No authorities are relied upon for this complaint apart from Albright v. Mekeo (supra). It is submitted that Albright v. Mekeo (supra) is authority for the proposition that only one application to set aside a default judgment may be filed. After a perusal of that judgment, we have been unable to find any reference in support of such a proposition as claimed. We would have been surprised if we had. If an interlocutory application or notice of motion has not been moved or heard and it has been withdrawn, as in this instance, with leave of the Court, there is no fetter upon an applicant filing another such application or motion and it being heard.

18. We note also that a second notice of motion seeking to set aside a default judgment was filed on 1^st December 2017 and that this was withdrawn with leave in paragraph one of the National Court Order the subject of this appeal. Paragraph one of the National Court Order has not been appealed, however.

19. For the reasons given we are not satisfied that there is any merit in ground of appeal three.

20. The appellant makes submissions on whether the National Court reviewed the decision of another National Court. This issue is not contained within any of the grounds of appeal and so we do not consider it.

21. As to grounds of appeal four and five, these have been adequately covered by our consideration of grounds of appeal one and two.

22. Given the above, all of the grounds of appeal are unsuccessful and the appeal should be dismissed.

Orders

23. It is ordered that:

a) This Appeal is dismissed;

b) The Appellants shall pay the costs of the Respondents of and incidental to this appeal.
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Express Legal: Lawyers for the Appellant
Guardian Legal Services: Lawyers for the Respondents