Fugo Transport Ltd v Carpenter Automotive & Transport (trading as Boroko Motors) [2023] PGSC 120; SC2467 (29 September 2023)

SC2467

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 132 OF 2022

BETWEEN:
FUGO TRANSPORT LIMITED
Appellant

AND:
CARPENTER AUTOMOTIVE & TRANSPORT trading as BOROKO MOTORS
Respondent

Waigani: Toliken, Anis & Carey JJ
2023: 25^th & 29^th September

SUPREME COURT – Appeal against dismissal of proceedings for being statute-barred and abuse of process - Whether cause of action and right of action from negligence claim appropriately addressed – Statute barred defence properly pleaded

Held:

1. The appeal is dismissed.
2. The Appellant shall pay the Respondent’s costs of and incidental to this appeal, to be taxed if not agreed.
   

Cases Cited

Motor Vehicles Insurance Limited v Kiangua [2015] SC1476
Oil Search Ltd. V Mineral Resources Development Corporation Ltd [2010] SC1022
PNGBC v Jeff Tole [2002] SC694
Public Curator of Papua New Guinea v Kara [2014] PGSC 58; SC1420
Lowa and Ors v. Wapula Akipe and Ors [1992] PNGLR 399
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Chief Inspector Robert Kalasim v. Aina Mond and Ors (2006) SC828

Legislation:

Section 14 of the Supreme Court Act Chapter No. 37
Section 16 of the Frauds and Limitations Act
Order 7 Division 3 and Order 13 of the Supreme Court Rules 2012 as amended
Order 8 Rule 14 of the National Court Rules

Counsel:

Mr I David, for the Applicant
Mr N Ako, for the Respondent

JUDGMENT

29^th September, 2023

1. BY THE COURT: This is an appeal against the decision of the National Court of 19 July 2022 in which the proceeding was dismissed with costs to the respondent.
   

Background

2. Fugo Transport Limited (the Appellant) pleaded four grounds of appeal in the Notice of Appeal against the decision of the National Court in which Carpenter Automotive & Transport Limited trading as Boroko Motors (the Respondent) took issue.
   
3. The Appellant entered into an agreement with the Respondent to purchase six new Kenworth Trucks at a cost of K6,199,050.00.
   
4. The Respondent delivered the first truck on 4 March 2013 and over a period of six months delivered the other trucks with final delivery being made on 7 September 2013.
   
5. The Appellant also entered into a loan arrangement with Westpac Bank Limited to purchase the six new Kenworth Trucks and asserts that due to the negligence of the Respondent it suffered damages which is continuing and resulted in its business being put into receivership.
   

Issue(s)

6. The issues submitted for the Court to consider by the Appellant were whether the Primary Judged erred in law and fact in failing to find that the injury suffered by the Appellant from the negligence of the Respondent was continuing on and from 4 March 2013, and so the cause of action and right of action?
   
7. Further, whether the Primary Judge erred in law and fact in failing to hold that the Respondent had not properly pleaded the defence of statute-barred in its defence filed on 10 May 2022.
   

Jurisdiction

8. The Respondent belatedly raised a jurisdictional issue challenging on competency of the notice of appeal and has invited this Court to exercise its inherent jurisdiction in that regard. It claims that para. 2 in the notice of appeal where it states “The appeal lies without leave” fails to also plead s.14(1)(b) of the Supreme Court Act Chapter No. 37 as its jurisdictional basis therefore the appeal is incompetent and should be dismissed.

9. This Court has inherent jurisdiction to, on its own volition, consider jurisdiction or competency issues at any stage of an appeal proceeding. See cases: Patterson Lowa and Ors v. Wapula Akipe and Ors [1992] PNGLR 399, Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, and Chief Inspector Robert Kalasim v. Aina Mond and Ors (2006) SC828.

10. We however find the ground of objection to be misconceived. We observe that a notice of appeal is a substantive appeal proceeding that is filed as of right under Order 7 Division 3 of the Supreme Court Rules (SCR) and further, that its mandatory prescribed form is Form 8. We observe that para. 2 of the Appellant’s notice of appeal is in par with para. 2 of Form 8 where the Appellant has pleaded that the appeal lies without leave. Reliance by the Respondent on a provision(s) of Order 13 as basis for objecting is, with respect, misconceived for the stated reason. Further, Order 13 deals with General Listings or interlocutory processes of appeals or reviews that are on foot.

Consideration

11. The test to apply with regard to an application to dismiss a proceeding for being statute barred is enunciated in Oil Search Ltd. v Mineral Resources Development Corporation Ltd [2010] SC1022.
    
12. The trial judge considered this test and went into great detail to explain how the decision was reached with respect to the matter being statute barred.
    
13. A review of the submissions does not indicate that the pleadings of the Respondent were non-compliant with Order 8 Rule 14 of the National Court Rules.
    
14. Further, in examining the Pleadings of the Respondent filed 10^th May 2022 (i.e., its amended defence) there is no inconsistency with the expectation as indicated in Motor Vehicles Insurance Limited v Kiangua [2015] SC 1476.
    
15. The Respondent has submitted that pleadings buttress the evidence as indicated in PNGBC v Jeff Tole [2002] SC694.
    

Conclusion

16. The trial judge determined that the Appellant’s cause of action accrued on 4^th March 2013. This Court has determined that the cause of action accrued on 7^th September 2013.
    
17. In the Public Curator of Papua New Guinea v Kara [2014] PGSC 58; SC 1420 at para. 86 the Supreme Court there said:
    

“Firstly, where there is a legal duty to do an act and so long as that duty remained undischarged, time does not run. The second principle is that in cases where there is successive or ongoing breach, each successive breach constitutes a fresh or new cause of action”.

18. Applying this in this case, the duty owed to the Appellant by the Respondent was discharged on 7^th September 2013 and we endorse the trial judge’s reason for not accepting what the Applicant contends is the date that the cause of action accrued on 9^th April 2014.
    
19. However, even with the cause of action being accrued on 7^th September 2013, the proceeding was filed on 11 May 2020 which exceeds the 6-year period of limitation as a claim in negligence as specified in section 16 (1) (a) of the Frauds and Limitations Act. The Appellant also argued that it had furnished the proceeding to the National Court Registry for filing as early as 19 March 2020, but it was the Registry that had delayed in sealing the documents. The Appellant therefore submits that the filing date of the proceeding, for purposes of computing time, should be 19 March 2020 and not 11 May 2020. Even if we are to accept the earlier date, we note that it would make no difference as the proceeding would still be regarded as filed outside the 6-year period and would be statute-barred under s.16(1)(a) of the Frauds and Limitations Act.
    
20. As such, the decision of the trial Judge in determining the cause of action to have been accrued on 4^th March 2013 is not fatal to the Respondent’s claim that the proceeding was statute barred.
    
21. This Court determines that the Applicant’s proceeding was statute barred and properly pleaded.
    

Orders of the Court

1. The Applicant’s appeal is dismissed.
   
2. The Appellant shall pay the Respondent’s costs of and incidental to this appeal, to be taxed, if not agreed.
   

Ordered accordingly.
________________________________________________________________
Akia & Associates Lawyers: Lawyers for the Applicant
O’Briens Lawyers: Lawyers for the Respondent