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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 27 OF 2021
BETWEEN
MULIA (PNG) LIMITED (1-39641)
Appellant
AND
GREGORY JAMES SHEPPARD & HARVEY MALADINA
trading as YOUNG & WILLIAMS LAWYERS
First Respondent
AND
GLORIA SALIKA
Second Respondent
AND
MOLLY SUMBUK
Third Respondent
AND
VANESSA VEE
Fourth Respondent
Waigani: Kariko J, Liosi J & Dowa J
2022: 22nd November
2023: 24th August
SUPREME COURT – practice and procedure – objection to competency of appeal – appeal against summary dismissal of proceedings in the National Court – the grounds of appeal: not comply with the Supreme Court Rules; raise questions of fact and leave to appeal not sought; raise matters not argued in the National Court.
Facts:
After the Appellant lodged an appeal against the summary dismissal of its claim in the National Court, objection was filed by the Respondents challenging the competency of the appeal alleging non-compliance with the Supreme Court Rules, failure to obtain leave on questions of fact, and raising issues not raised in the trial.
Held:
Cases Cited:
Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221
Hagahuno v Tuke & Electoral Commission (2020) SC1966
Haiveta v Wingti (No 2) [1994] PNGLR 189
Kuman v Digicel (PNG) Ltd (2017) SC1638
Lovika v Malpo (2019) SC1895
Lucas Dekena v Nick Kuman (2018) SC1715
PNGBC v Jeff Tole (2002) SC694
Rea Joseph v Manau Sereva (2011) SC1152
Yakham & The National v Merriam [1997] PNGLR 555
Legislation:
National Court Rules
Supreme Court Act
Supreme Court Rules
Counsel:
No appearance for the Appellants
Mr. I. R. Shepherd, for the Respondents
24th August 2023
Background
The Appeal
“3. The Grounds replied upon are as follows:
3.1 The learned judge in the Court below erred in fat and in law to dismiss the Plaintiffs claims for failure to comply with directional orders issued on December 01, 2020 when;
(a) The formal Orders he relied upon were not made clear in court which would have been taken out by one of the parties as is the usual practice of but instead issued in chamber slater in the date and only upload onto the IECMS system without any advise whatsoever to both parties that the said orders had been uploaded onto the IECMS system and in the absent of such advise without serving the order on either party.
(b) When the parties appeared in court on December 01, 2020 and the learned Judge made the direction orders relied upon he did not specifically forewarn the parties especially the Appellant that failure to comply with the orders to settle out of court before the next return date would result in the proceeding been dismissed.
(c) The learned Judge wrongly rejected the explanation given by the Appellants Lawyer for non-compliance and failed to consider the difficulty to settle out of Court on the basis that the Respondents had denied liability and denied that the Appellant was entitled to the relief claimed which denied was rebutted by the Appellant in its Reply to the Defense making it very obvious that trial was the only way the Appellants claim could be determined.
(d) Upon been made aware that any settlement out of Court needed to be guided by the pleadings filed in court the learned Judged fell into error by failing to consider that the parties could not be forced to settle out of court when settlement out of court was not mandatory and not the only option available to the parties to determine the proceedings and failed to exercise discretion to accept that the orders for settlement out of court were impossible to be complied with which should have been corrected by issuing fresh directions for the further conduct of the case when the facts before him supported such a finding.
(e) The learned judged erred by refusing to accept the explanation that the matter was still at Discovery stage and that without disclosure of relevant documents and either party engaging in Interrogatories if they chose to either party could not meaningfully prepare any statement of agreed and disputed facts and legal issues, and not be able to settle out of court.
(f) The learned judge erred and failed to consider that the orders for settlement out of court may have been issued in error or prematurely after the Appellant explained the difficulty of settlement in the absence of any admittance by the Respondents of liability for part or whole of the Appellant claim which if done would have resulted in the said orders been set aside and fresh directions issued to do justice to the parties.
(g) The learned judge erred by ailing to exercise discretion to set aside the orders of December 01, 2020 and to issue fresh directions for the further conduct of the case after the Appellant’s Lawyer provided the explanation for non-compliance and submitted that issuance of fresh directions would not prejudice the Respondent.
(h) The learned judge erred by failing to consider that the Appellant had complied with the orders of February 04, 2021 in relation to payment of adjournment costs in the sum of K500.00 to the Respondent Lawyers before February 16, 2021 and erred to give more consideration to the failure by the Appellant to settle out of court.
3.2 In dismissing the Appellants claim the learned judge failed to properly consider the following overall facts:
(a) The matter was at discovery state and without either party having documents to be relied upon in their possession they could not be forced to settled out of Court.
(b) The delay to prosecute the case had been caused by the Defendants failure to file their Defense within the period required under the rules for which the learned judge readily granted leave to file their defense out of time against principles for extension of time,
(c) The learned judge misguided himself to hold that the Appellant s case was about defamation when the case was not about defamation but about professional negligence of the Respondents as the Appellants previous Lawyers.
3.3 The Appellant was denied natural justice or the right to be properly heard in the matter before the learned judge wrongly dismissed the Appellants claim preventing the Appellant from having its day in Court.
(a) The orders were not specifically made clear in court on December 01, 2020 and after been issued in chambers later that day not served had been uploaded onto the IECMS system.
(b) No forewarning notice was given to the Appellant on December 01, 2020 or anytime before February 04, 2021 that non-compliance of the order issued in chambers on December 01, 2021 would result in dismissal of the Appellant claim.
(c) The time give to the Appellants Lawyer to prepare an Affidavit setting out a more detailed explanation for non-compliance with court orders involving the period between 10:30 am and 2:00pm on the same day was too short and unreasonable.
(d) The exercise of discretion by the learned Judge to dismiss the Appellant claims was without proper basis and unsupported by the facts before the court which showed that the Appellant had not been forewarned that failure to comply with the order to settle its claim out of court before the next return date would result in dismissal of the proceeding.
(e) No consideration or proper consideration was given to the Appellants explanation and submission that in the absent of any admittance by the Respondents of the part or the whole of the Appellant claim the parties could not be forced or compelled to settle out of court.
(f) Before dismissing the Appellants claims the learned judge erred and failed to consider that the Appellants was not asked on December 01, 2020 if settlement was likely or unlikely before making the orders for out of court settlement when the learned judge had in mind that any failure to settle out of court before the next return date would result in the proceedings been dismissed.
(g) Before dismissing the Appellants claim the learned judge failed to consider or properly consider that the Appellant had complied with the order for payment of adjournment costs before February 16, 2021.
(h) The order for settlement out of court was directed at both parties but the learned judge did not compel the Respondents on February 04, 2021 to provide their explanation by way of an Affidavit that day or on February 16, 2021 for the failure to comply with court orders whereas he did that to the Appellant on February 16, 2021 and unfairly put all the blame on the Appellant for not settling or attempting to settle the claim out of court whereas the Appellants claim was clearly pleaded in a Statement Claim and that it was the Respondents who needed to advise whether part or whole of the claim would be settled out of court or not.
(i) By failing to compel the Respondents to provide their explanation by way of Affidavits on February 04, 2021 and again on February 16, 2021 for non-compliance with court orders the learned judge erred when he failed to consider striking out the Respondents Defense and to enter judgement for the Appellant which was an option available to him and such failure was unfair to the Appellant.
(j) The learned judge did not consider or properly consider that the matter was still at discovery stage and not ready for trial and erred by proceeding to dismiss the Appellants claim without any proper basis thereby denying the Appellant its day in court.
3.4. There was actual and seeming apprehension of bias by the learned judge toward the Appellant when exercising the discretion to dismiss the Appellants claim without any proper and valid basis;
(a) The learned judge had readily granted leave to the Respondents to file their Defense out of time on November 02, 2020 after defaulting to file their Defense on the basis that the Respondents had Defense on the merit but without any proper and valid basis then contradicts himself, by dismissing the Appellant’s claim which had great merit.
(b) The learned judge failed to compel the Respondents on February 04, 2021 and again on February 16, 2021 to provide an explanation by way of Affidavit for non-compliance with court orders the same way he compelled the Appellant to produce an Affidavit on February 16, 2021.
(c) The learned judge failed in his duty and role as a judge to act and be seen to act just and fairly by disclosing to the Appellant on his own volition that he was a former partner of Young & Williams Lawyers the law firm that was been sued through its partners and employed lawyers and to disqualify himself from further dealing with the case to avoid any actual and or seeming apprehension of bias.”
Objection to Competency of Appeal
(a) Failure to comply with Order 7 Rules 9 (c) and 10 of the Supreme Court Rules.
(b) Failure to obtain leave to raise questions of fact pursuant to section 14 (1) (c) of the Supreme Court Act.
(c) Raising issues on appeal that were not raised in the trial.
Law
“9. The notice of appeal shall—
(a) state that an appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal; and
(b) state whether the whole or part only and what part of the judgment is appealed from; and
(c) state briefly but specifically the grounds relied upon in support of the appeal; and
(d) state what judgment the appellant seeks in lieu of that appealed from; and
(e) be in accordance with form 8; and
(f) be signed by the appellant or his lawyer; and
(g) be filed in the registry.
“14. CIVIL APPEALS TO THE SUPREME COURT.
(1) Subject to this section, an appeal lies to the Supreme Court from the National Court–
(a) on a question of law; or
(b) on a question of mixed fact and law; or
(c) with the leave of the Supreme Court, on a question of fact.”
“...A failure to strictly meet the requirements of the Supreme Court Act and the Supreme Court Rules as to the correct form, pleading grounds of an appeal and the relevant and correct procedure amounts to a failure to properly invoke the jurisdiction of the Court. Consequently, the proceedings would not be correctly before the Court by reason of which they would be dismissed for being incompetent.”
“.... Coca Cola Amatil remains good law and, to the extent that there are conflicting lines of authority on the question of whether an appeal that has just one proper ground of appeal is competent, we would endorse Coca Cola Amatil as being correct and more authoritative than the alternative line of authority reflected in the dissenting opinion of Kandakasi DCJ in Kuman v Digicel (PNG) Ltd (2017) SC1638 ...”.
Consideration of the objections
Ground 3.1
Grounds 3.2
Ground 3.3
Ground 3.4
Ground 4
Conclusion
Costs
Orders
29. The Court Orders that:
___________________________________________________________________
Lomai & Lomai Attorneys: Lawyers for the Appellant
Ashurst PNG Lawyers: Lawyers for the Respondents
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