SC2234

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 2 OF 2022

BETWEEN:
APPLICATION PURSUANT TO SECTION 155(2)(b) OF THE
CONSTITUTION

BY SIX K LIMITED
Applicant

Waigani: Logan J
2022: 4th March

PRACTICE & PROCEDURE – application for leave to review decision of Nation Court pursuant to s 155(2)(b) of the Constitution – where arguable that primary judge erred in assessing loss of business damages in the absence of an evidentiary foundation – where no arguable case that primary judge acted against weight of evidence in assessing value of vehicle – where applicant demonstrates an adequate explanation for delay in applying to the Court, that parties have been served and an arguable case of error exists – leave to appeal allowed in part 

Facts:

Six K Limited (Six K) was the owner of a truck which struck a Land Rover owned by Korugl Angras Trading (Korugl). Six K’s truck was being driven by one of its then employees, Mr John Tukila. 

Proceedings were commenced in the National Court by Mr Jacob Kerenga Bomai and Korugl against Six K and Mr Tukila. In those proceedings, Mr Bomai and Korugl sought damages for the pre-accident value of the Land Rover, loss of business and frustration, disappointment and distress. A then acting judge of the National Court determined that Six K and Mr Tukila were liable for the damage to the Land Rover and subsequently awarded damage in the amount of K108,000. 

Six K did not file a notice of appeal within the time stipulated in the Supreme Court Rules 2012. The reason for this failure was explained by the managing director of Six K as stemming from:

(a)	Six K changing legal representatives during the course of the proceeding to the Public Solicitor’s office at Kundiawa; 
(b)	Six K’s legal representatives failing to keep it abreast of the progress of the National Court proceedings; and 
(c)	Upon it becoming known that judgment had been entered against Six K, Six K taking misconceived steps to challenge that judgment.

Six K then applied to the Supreme Court for leave to review pursuant to s 155(2) of the Constitution to review the aspect of the National Court’s orders relating to the pre-accident value of the Land Rover and the award in respect of loss of business. 

Held:

1.	There is no arguable basis that the learned primary judge erred in law in assessing damages for the loss of a vehicle in circumstances where there was evidence before the primary judge of the write-off value of the relevant vehicle. 
2.	There is an arguable basis that the learned primary judge erred in law in assessing loss of business damages in circumstances where the evidence before the learned primary judge amounted to no more than assertion from the plaintiff that the damage sustained K5,000 per month. Leave to review granted so as to challenge so much of the order as awarded damages for loss of business.

Counsel:

Mr. B Ovia, for the Applicant

Oral decision delivered on
14th March 2022

1.	LOGAN J: On 22 October 2017 in proceeding WS 715 of 2013, which was a proceeding as between Mr Jacob Kerenga Bomai and Korugl Angras Trading (Korugl) and John Tukila and Six K Limited (Six K) a then acting judge of the National Court assessed damages arising from a collision between a truck by an employee of the second defendant, Six K, a Mr John Tukila and a Land Rover operated by Korugl.  
2.	That assessment of damages was a sequel to an earlier judgment in relation to liability given by the court on 30 May 2016.  It appears from the reasons for judgment given by the learned acting judge that the damages his Honour were assessed on the basis that a joint and several liability was imposed.  It is necessary to put that on the basis of appears, rather than a more certain basis, because the applicant, Six K Limited, has not, as it should have, annexed the formal order made by the National Court in respect of damages. 

3.	There were three heads of damages, namely, pre-accident value of the Land Rover, loss of business and frustration, disappointment and distress. 

4.	The time for the filing of a notice of appeal against the orders made in the National Court has long passed.  However, in his affidavits in support, Mr Chris Gena, who is and was at all material times the managing director of Six K has provided a comprehensive explanation for the delay.  It is to be noted that Mr Gena is not fluent in the English language.  His first language is the Kuman language.  Mr Gena deposes that, although Six K was initially represented in the National Court proceedings by Warner Shand Lawyers, the company had difficulty in paying that firm’s costs.  He was, therefore advised by relatives to seek the services of the Public Solicitor’s office at Kundiawa.  

5.	The Public Solicitor did represent Six K at the trial.  It appears, however, that that office did not, as with respect it should have, keep Mr Gena up to date with the progress of proceedings in the National Court.  It was not until Six K came to employ a person who had some knowledge of court work that particular inquiry was made of the Public Solicitor. 

6.	In turn, that led to Mr Gena’s ascertaining, in December 2020, that a damages award had been made and that a writ of levy for property had been issued by the National Court.  

7.	In fairness to the Public Solicitor, I should record as Mr Gena has in turn fairly deposed that there was but one lawyer in the Kundiawa office of the Public Solicitor.

8.	Initially, Mr Gena caused Six K to take the misconceived step, via an originating summons, of seeking (amongst other orders) a reduction in the amount of which had been specified in the writ for levy of property.  That proceeding was dismissed on 12 November 2021 as an abuse of process.  He then caused Six K to move promptly to apply pursuant to s 155(2) of the Constitution for leave to review the orders made in the National Court on 22 October 2017 assessing damages.  Six K seeks to review the orders made in respect of the pre-accident value of the Land Rover and loss of business, not the other head of damage.
9.	The proposed grounds of review are: error of law and procedure and unreasonableness.  It is put that as to the amount allowed in respect of the value of the Land Rover that this was against the weight of the evidence. It is also put that no receipt for the purchase of the vehicle was in evidence.

10.	There was, however, in evidence before the learned primary judge on the assessment of damages what is termed a write-off quotation form dated 26 July 2012 in respect of the Land Rover.  That attests that the Land Rover was beyond economic repair because the repair costs would exceed the market value thus the vehicle was regarded as a write-off.  The quotation form specifies that the pre-accident value of the Land Rover would be K108,000.

11.	A party is bound by the conduct of that party’s lawyers in general in respect of a trial.  The write-off quotation form is the obvious evidentiary foundation for the corresponding assessment of damages in respect of the loss of the Land Rover.  I see no arguable case whatsoever of any error of principle in respect of the allowance of K108,000 in respect of the loss of this vehicle.

12.	The position in relation to economic loss is quite different.  The learned primary judge, with respect correctly, identified that a judge must do his or her best on the evidence in respect of assessing damages but that at best must have at least some evidentiary foundation.  The evidence from the plaintiffs as to K5,000 per month in respect of loss of business, arguably at least, amounted to nothing more than mere assertion.  Of course, if there had been costs incurred in the hiring of a replacement vehicle and evidence as to those costs given, that might have formed a basis reasonably to assess damages.  That would however be subject to a duty to mitigate.  

13.	There was evidence before the learned primary judge that the Land Rover had been acquired as a more efficient way of transporting cash in respect of the coffee business of Korugl than a truck hitherto used.  But there was no evidence that the loss of the Land Rover meant that it became impossible alternatively to transport the cash.  It therefore appears to me that Six K has established an arguable case in respect of an error of principle in relation to the allowance of loss of business damages.  To allow such damages without an evidentiary foundation is at least arguably unreasonable. 
 
14.	Being satisfied that an adequate explanation for delay has been given, that the defendants in the proceedings have been named as respondents and served, and that an arguable case of error exists.  I, therefore grant leave to the applicant to review the orders made on 22 October 2017 in National Court proceeding WS 715 of 2013. Leave to review is granted on the limited basis that, to the extent that by the orders made that day damages in respect of loss of business were assessed at K115,000, that assessment was unreasonable in that it was made in the absence of any supporting evidence.  

15.	As I noted to Mr Ovia in the course of an exchange, there was another defendant party in the National Court, namely Mr John Tukila.  Whilst he has apparently not been disposed either to appeal or to seek review, it does appear, as I have indicated, that the damages awarded were on the basis of a joint and several liability.  He does therefore have an interest in any outcome in the Supreme Court. 
 
16.	In those circumstances the leave to review should also be on terms that the order made today be served both on the first and second respondents, Mr Bomai and Korugl Angras Trading respectively as well as Mr John Tukila.  Costs in respect of the application for leave to review be reserved.  

Orders

1.)	Leave be granted to the applicant to review the orders made on 22 October 2017 in National Court proceeding WS 715 of 2015 to the extent that by the orders made that day damages in respect of loss of business were assessed at K115,000, on the ground that assessment was unreasonable in that it was made in the absence of any supporting evidence.
2.)	The order made today be served on the first and second respondents respectively, as well as Mr John Takela.
3.)	Costs be reserved. 
4.)	The orders made today be entered forthwith.  
__________________________________________________________________
Ovia & Associates: Lawyers for the Applicant