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Cragnolini v Leia [2023] PGSC 112; SC2464 (28 September 2023)

SC2464


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCA NO. 192 OF 2022


BETWEEN:
LADY NI CRAGNOLINI
First Appellant


AND:
TEDDY TASION
Second Appellant


AND:
HENRY LEIA
Respondent


Waigani: Salika CJ, David, Yagi, Kassman & Murray JJ
2023: 2nd June & 28th September


PRACTICE & PROCEDURE – summary dismissal for want of prosecution – failure for parties by themselves or through their lawyers to attend directions hearing on a date fixed by National Court Registry – notice of directions hearing sent by National Court Registry to wrong law firm – matter referred for summary determination for failure to attend directions hearing – specific and expressed rules provided for dealing with judgments or orders made in the absence of parties – absent party is at liberty to apply to the National Court to set aside judgments or orders made in his or her absence – relevant principles applying to setting aside judgments or orders made ex parte to apply - National Court Rules, Order 12 Rule 8(3) and (4).


Cases Cited:
Papua New Guinean Cases


Green & Co. Pty Ltd v Green [1976] PNGLR 73
Barker v The Government of Papua New Guinea [1976] PNGLR 340
The Government of PNG & Davis v Barker [1977] PNGLR 386
George Page Pty Ltd v Balakau [1982] PNGLR 140
Leo Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505
Leo Duque v Avia Andrew Paru [1997] PNGLR 378
Public Offices Superannuation Fund Board v Paraka (2005) N2791
Salamo Elema v Pacific MMI Insurance Ltd (2007) SC1321
Christopher Smith v Ruma Constructions Ltd (2002) SC695
MVIT v Joseph Bure [1999] PNGLR 273
Wawoi Guavi Timber Company Ltd v Molu (2016) SC1514
Inugu v Maru (2019) SC1873
Thomas Barry v Joel Luma (2017) SC1639
Peter Malt v Dean Queen (2009) N3577
Aiwasi v Derari (2017) N6602
Punagi v Pacific Plantation Timber Ltd (2011) SC1153
Kakas v NHC (2020) SC2000


Overseas Cases


Evans v Bartlam [1937] AC 473
Grierson v R ([1938] HCA 45; 1938) 60 CLR 431
Grimshaw v Dunbar (1953) 1 All ER 350
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529


Counsel:


Stanley Liria, for the Appellants
Luwi Dos & Nicholas Tame, for the Respondent


JUDGMENT


28th September 2023


  1. BY THE COURT: INTRODUCTION: This Court of five judges of the Supreme Court was empanelled by the Chief Justice to resolve a conflict of differing opinions of the Supreme Court as to the interpretation and application of Order 12 Rule 8(3)(a) of the National Court Rules (as amended) (the NCR).
  2. The appeal is without leave pursuant to Sections 4(1) and 14 (1) (a) and (3) (iii) of the Supreme Court Act as the grounds of appeal are only on questions of law and purportedly from a final decision of the National Court.

GROUNDS OF APPEAL


  1. The grounds of appeal are as set out at paragraph 3 of the Notice of Appeal filed on 5 December 2022 and they are as follows:

BRIEF BACKGROUND FACTS


  1. This appeal arises from a decision of the National Court dated 16 November 2022 in proceeding WS No. 1200 of 2011 Henry Leia v National Housing Corporation & Teddy Tasion & Henry Wasa, Registrar of Titles in which the primary court reinstated a proceeding which was dismissed for want of prosecution on 6 July 2022 in the absence of all parties.
  2. There were two proceedings in the National Court which concerned a property Allotment 6 Section 42 Granville more particularly described in State Lease Volume 21 Folio 136 (“the property”). The first proceeding was initially commenced on 17 October 2011 as WS No. 1200 of 2011 National Housing Corporation & Henry Leia v & Teddy Tasion & Henry Wasa, Registrar of Titles and was later amended on 4 April 2017 on the filing of an Amended Writ Of Summons pursuant to an order of Kariko J of 22 March 2017 by which National Housing Corporation was removed as the First Plaintiff and was then made the First Defendant (hereafter “the first proceeding”). Though not of any relevance to the issue in this appeal, other orders issued on 22 March 2017 were the refusal of an application to strike out the defence and cross-claim and also refusal of an application to dismiss the proceedings for being vexatious. The second proceeding was commenced on 22 June 2014 as WS No.700 of 2014 Henry Leia v Teddy Tasion, National Housing Corporation, Ni Yumei Cragnolini, Benjamin Samson as Registrar of Titles, Romily Kila Pat as Secretary of the Department of Lands & Physical Planning, Hon Benny Allen as Minister for Lands & Physical Planning, and the Independent State of Papua New Guinea (hereafter “the second proceeding”).
  3. The first proceeding and the second proceeding were consolidated on 22 June 2018 where the court ordered “1. The proceedings WS 1200 of 2011 and WS 700 of 2014 are consolidated and will be heard together.” The court also ordered “2. Lady Ni Cragnolini is joined as a party to the proceeding WS 1200 of 2011.”

ISSUE


  1. The overarching issue before the Court for determination is whether the National Court has power under Order 12 Rule 8 of the NCR to set aside its own order made in the absence of a party dismissing the proceedings for want of prosecution.

CONSIDERATION


  1. The general rule applying to judgments and orders is that once they have been formally recorded or entered, they can only be set aside or varied on appeal: Public Offices Superannuation Fund Board v Paraka (2005) N2791, Grierson v R [1938] HCA 45; (1938) 60 CLR 431 per Dixon J at 436, Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529.
  2. The general rule was stated by Sir Garfield Barwick in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530 as follows:

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have power to reinstate a proceeding which it has finally disposed.”


  1. An order for dismissal in whatever form it takes terminates the proceedings. The public interest in maintaining the finality of litigation requires great caution in the exercise of powers under Order 12 Rule 8: see Inugu v Maru (2019) SC1873 at [72].
  2. An exception to the general rule would be a correction permitted under Order 8 Rule 59 of the NCR where there is a clerical mistake in a minute of a judgment or order or an error in a minute of a judgment arising from an accidental slip or omission.
  3. A further exception is where a court may be granted power to set aside or vary judgments or orders by statutory provision either through an Act of Parliament or by rules of court. In the present case, the relevant rules of court of the National Court would be the NCR promulgated by Judges pursuant to s.8 of the National Court Act and s.184 of the Constitution. Order 12 Rule 8 is the relevant rule applying to the setting aside or varying judgments or orders.
  4. Order 12 Rule 8 of the NCR provides:

“8. Setting aside or varying judgement or order.


(1) The Court may, on terms, set aside or vary a direction for entry of judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.
(2) The Court may, on terms, set aside or vary a judgment-

(3) The Court may, on terms, set aside or vary an order –

(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.
(5) This Rule does not affect any other power of the Court to set aside or vary a judgment or order.”
  1. Order 12 Rule 8 contains detailed provisions for setting aside or varying judgments or orders in a number of circumstances either before and after entry of the judgments or orders.
  2. The power under Order 12 Rule 8(1) is separate from those under Order 12 Rule 8(2) and (3) as the latter rules only apply to circumstances where judgments or orders have been obtained in the absence of a party. There is a clear demarcation in that regard.
  3. The provisions of Rule 8(3) (a) and (b) appear to be simple and easy to understand and are general in their nature and their application and are wide in our opinion. Order 8 Rule 3(a) refers to an order made in the absence of a party whether a party is in default or not of giving notice of intention to defend or otherwise in default. This provision is very general. Rules 8 (3) (b) refers to where a motion is filed seeking to set aside or vary an order made under sub-rule (3) (a). Order 12 Rule 8 (3)(a) does not specifically mention an order “dismissing in part or the entire proceeding “which would effectively determine the life of that proceedings.
  4. Order 12 Rule 8(4) in our opinion is more specific in its nature and in its application. It an additional power given to the National Court apart from those given under sub-rules (1), (2) and (3). In our view, this sub-rule does not apply to judgments or orders made in the absence of a party given under sub-rules (2) and (3) which specifically and expressly make provision for that circumstance: see Inugu v Maru (2019) SC1873 at [71].
  5. We note that the Respondent did not address sub-rule (4) in his submissions. The Appellants did. The Respondent’s counsel has not assisted the Court in that regard. A lawyer’s duty is to research the law and put his or her views through submissions to the Court.
  6. What is common in all the sub-rules under Order 12 Rule 8 is that each of the powers conferred may be exercised “on terms” which enables the National Court to achieve substantial justice in any of the situations covered by the sub-rules by imposing such terms and conditions (if any) as the Court deems appropriate.
  7. The facts of this case are simply the matter was before the Court on a day and the Plaintiff now Respondent and the Defendants now Appellants failed to appear. The Court exercised its powers and dismissed the proceedings for want of prosecution on its own motion. The Respondent later on went to the same Judge and set aside the orders under Order 12 Rule 8(3)(a). That gave rise to the issue before us.
  8. There are two schools of thought on the issue. One view is that the ex parte summary dismissal of a proceeding for want of prosecution finally determines the matter and, there being nothing left for determination in the proceeding, the aggrieved party could only appeal that decision to the Supreme Court. This proposition is supported by Peter Malt v Dean Queen (2009) N3577, Thomas Barry v Joel Luma (2017) SC1639 and Aiwasi v Derari (2017) N6602. In other words, the National Court lacked jurisdiction to set-aside its earlier order. On the other hand, the other school of thought is that the aggrieved party, not present when the proceeding was summarily dismissed, could apply before the National Court to set-aside its earlier ex parte order which summarily determined the proceeding and that is expressly provided by Rule 8(3)(a). That proposition is supported by case precedents of MVIT v Joseph Bure (1999) PNGLR 273, Christopher Smith v Ruma Constructions Ltd (2002) SC695, Salamo Elema v Pacific MMI Insurance Ltd (2007) SC1321, Wawoi Guavi Timber Company Ltd v Molu (2016) SC1514 and Inugu v Maru (2019) SC1873.
  9. All these case precedents attempt to interpret Order 12 Rule 8(3) and (4).
  10. The Supreme Court constituted by Salika CJ, Makail and Berrigan JJ in Kakas v NHC (2020) SC2000 held “1. As to the preliminary issue whether the appellants correctly invoked the Court’s jurisdiction by appealing the refusal order and not the summary dismissal order, as parties agreed at the hearing before the primary judge that the National Court has jurisdiction to hear an application to set aside as ex parte summary dismissal order, the appeal is correctly before the Supreme Court for determination (Obiter dicta). 2. Where there are conflicting lines of authority on the application of a substantive or procedural law, it is advisable and appropriate to leave the issue to the Supreme Court constituted by a greater number of judges to determine on another occasion (Obiter dicta).” In this matter, the Chief Justice accepted the suggestion of the parties that this was an ideal opportunity to consider the issue and so empanelled this bench.
  11. On a closer analysis of sub-rules (2) and (3), they are not made subject to sub-rule (4). Sub-rules (2) and (3) speak for themselves. These sub-rules demonstrate that the party affected by an ex parte order or an order made in the absence of a party has not had the opportunity of being heard.
  12. This principle is explained or clarified in Grimshaw v Dunbar (1953) 1 All ER 350 at 355 where Jenkins LJ said:

“ ...A party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent’s case and cross-examine his opponent’s witness, and he is entitled to call his own witnesses and give his own evidence before the court. If by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is absent should be allowed to come to the court and present his case, no doubt on suitable terms as to costs...”


  1. There is no limitation as to the types of orders that the National Court can set aside under Order 12 Rule 8(3) and they include orders to summarily dismiss proceedings for want of prosecution: Inugu v Maru (2019) SC1873.
  2. In Inugu v Maru (2019) SC1873 at [69], [70] and [73], the Court said:

“69. There is now recent and extensive Supreme Court authority – in particular Elema, Wawoi Guavi Timber Company Ltd v Molu, Ango v Kaluvia and National Superannuation Fund Limited – deciding that the National Court has power under Order 12 rule 8 (3) to set aside earlier ex parte order of the National Court summarily dismissing proceedings for want of prosecution.

70. In relation to the submission of the third respondents that the orders made ex parte on 24 October 2018 were final in nature such that the proper course for the appellants was to appeal, we note that there is no limitation in Order 12 rule 8 (3) as to the type of orders which the National Court can set aside, if the relevant orders were made in the absence of a party. Whether the ex parte orders were “final” or not, is irrelevant for the purposes of Order 12 rule 8 (3) and the powers granted by that Rule....

73. As explained in Wawoi Guavi Timber Company Ltd v Molu, Order 12 Rule 8(3) provides a specific alternative in the National Court Rules to the avenue of appeal in circumstances where an order is made ex parte. Once an application is made to the National Court pursuant to Order 12 Rule 8(3) to set aside an ex parte order, and the Court makes its decision on that application, the process in Order 12 Rule 8(3) is exhausted. If a plaintiff applies to the National Court [to] have those ex parte orders set aside, any decision of the National Court in respect of that question is final within the terms explained in Punangi, and may be the subject of appeal to the Supreme Court without leave.”


  1. In our opinion, Order 12 Rule 8(4) covers circumstances not specifically and expressly covered by sub-rules (1), (2) and (3). The Court has quite rightly taken this position already. In commenting on Order 12 Rule 8(4) and the principle of finality of litigation, the Court in Inugu v Maru (2019) SC1873 at [71] and [72] said:

“71. We note the terms of Order 12 Rule 8(4), which appears to prevent the National Court, inter alia, setting aside an order for dismissal of proceedings. However this rule is specifically qualified by the preamble “In addition to its powers under Sub-rules (1), (2) and (3)”. To that extent Order 12 rule 8 (4) does not apply to setting aside of any orders, including orders for dismissal of proceedings, which are made in the absence of a party (which is the subject of powers under sub-rule (3)).

72. Notwithstanding that there is authority at high level ruling on the nature of “final” orders of the National Court – and we particularly note in this regard the Supreme Court in Steven Punagi v Pacific Plantation Timber Ltd [2011] SC 1153 – for the reasons we have explained, the principle of finality articulated in Punagi is irrelevant to the issues in the present case. We reiterate that Order 12 rule 8 (3) of the National Court Rules applies, and is limited to, circumstances where orders – including for orders for summary dismissal for want of prosecution – are made in the absence of a party. Order 12 rule 8 (3) is not concerned with the question whether such an order, made in the absence of a party, was final or interlocutory. The regime in Order 12 rule 8 (3) empowers the Court to set aside an ex parte order, and is outside the appeal process established by the Supreme Court Act.


29. The appellants’ strongest point of contention in the appeal before us is grounded on the decision of the Supreme Court in Thomas Barry v Joel Luma (2017) SC1639 where Yagi, J, who is a member of this Court, was a member. The case of Thomas Barry v Joel Luma (2017) SC1639 is clearly distinguishable from the facts of the present case. In that case the respondents applied to dismiss the proceeding under Order 12 Rule 40 of the NCR. The application was heard “on its merit”, albeit ex parte, after the Court was satisfied that rules and principles governing due process and procedural fairness were duly observed or complied with and consequently made an order dismissing the substantive proceeding on the basis that no reasonable cause of action had being disclosed in the pleadings. The appellants applied to set aside the ex parte order pursuant to Order 12 Rule 8 of the NCR, however, the National Court refused the application for the reason that the substantive proceeding had been determined. Consequently, the appellants appealed against the refusal and were unsuccessful again. In the present case, it is abundantly obvious that the rules relating to due process and procedural fairness were circumvented or not observed and the respondents’ fundamental right to a fair hearing was denied completely. Moreover, the merits of the substantive proceeding were not part of the consideration for the making of the ex parte order. In that regard, it is apparent on the face of the record in this case that a gross miscarriage of justice had been occasioned.


30. On the basis of this fundamental distinction the Court in Thomas Barry v Joel Luma (2017) SC1639 found that the proceeding was determined on the merits and therefore going by the authoritative decision in Steven Punagi v Pacific Plantation Timber Ltd (2011) SC1153 the merits of the claim had been brought to finality hence the appropriate recourse was by an appeal process. In other words, the gist of the decision in Thomas Barry v Joel Luma (2017) SC1639 stands for the proposition that where an order dismissing a substantive proceeding is made on merits, that proceeding is brought to an end or finality and therefore cannot be restored by an interlocutory process.


  1. In this regard, we note that the principles of setting aside an order obtained ex parte, irrespective of whether the ex parte order was made by the Judge hearing the motion to set it aside, are now well settled in this jurisdiction: Green & Co. Pty Ltd v Green [1976] PNGLR 73; Barker v The Government of Papua New Guinea (1976) PNGLR 340; The Government of PNG & Davis v Barker [1977] PNGLR 386; George Page Pty Ltd v Balakau [1982] PNGLR 140; Leo Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505; Leo Duque v Avia Andrew Paru (1997) PNGLR 378; MVIT v Joseph Bure (1999) PNGLR 273; Christopher Smith v Ruma Constructions Ltd (2002) SC695 and Salamo Elema v Pacific MMI Insurance Ltd (2007) SC1321. The jurisdiction exercised under either Order 12 Rule 8 is in the discretion of the Court. The Court has an unfettered discretion: Evans v Bartlam [1937] AC 473. The rule gives the Court express power to set aside its own judgments or orders. These principles apply in applications to set aside default judgments or orders made in the absence of one of the parties in proceedings commenced by writ of summons as well as those commenced by originating summons: MVIT v Joseph Bure (1999) PNGLR 273; Christopher Smith v Ruma Constructions Ltd (2002) SC695.
  2. In order to be successful, it is incumbent upon the applicant to satisfy the Court:
    1. why the judgment or order was allowed to be entered in his absence;
    2. if there is any delay in making the application to set aside, provide a reasonable explanation as to the delay; and
  3. by affidavit stating material facts disclosing a defence on the merits or there is an arguable case.
  4. In Kakas v National Housing Corporation (2020) SC2000, the Court also applied the principle of interests of justice.
  5. In the present case, the application to set aside the order to dismiss the National Court proceedings for want of prosecution made on 6 July 2022 was moved on 16 November 2022 pursuant to a notice of motion filed on 28 September 2022 (199-200 AB) principally relying on Order 12 Rule 8(3)(a). The application was supported by two affidavits, one by Kevin Kil sworn on 23 September 2022 and filed on 28 September 2022 (201-210 and 230 AB) and the other by Thompson Kama sworn on 26 September 2022 and filed on 28 September 2022 (211-216 and 230 AB). The respondent or his lawyers did not attend court through no fault of theirs. Notice of the date for directions hearing dated 30 March 2022 fixing the matter to go before Makail J on 3 May 2022 at 09:30 am was sent to the wrong firm namely, Kopunye Lawyers and that was affirmed by the affidavits of Messrs Kil and Kama (210 AB). After hearing the parties’ submissions, the trial Judge granted the application having been satisfied with the explanation provided, listed the matter for directions hearing on 6 December 2022 at 9:30 am and ordered that costs be in the cause (242-243 AB).
  6. In the circumstances of this case, the order to dismiss the proceedings for want of prosecution was made in the absence of the parties. That decision or order was open to challenge to be set aside under Order 12 Rule 8(3). Order 12 Rule 8(4) has no application here given the specific rules governing applications to set aside orders made ex parte or in the absence of parties: see Inugu v Maru (2019) SC1873 at [71].
  7. Consequently, the trial Judge had jurisdiction to reinstate the proceedings that had been dismissed for want of prosecution.

ORDER


  1. We make the following orders:
    1. The appeal is dismissed.
    2. The decision of the National Court made on 16 November 2022 to reinstate the National Court proceedings WS No.1200 of 2011 and WS No.700 of 2014 (Consolidated) is affirmed.
    3. The appellants shall pay the respondent’s costs of the appeal on a party/party basis, to be taxed, if not agreed.

Judgment accordingly.


____________________________________________________________________

Liria Lawyers: Lawyers for the First and Second Appellants
Nicholas Tame Lawyers: Lawyers for the Respondent

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