Ketan v Comrade Trustee Services Ltd [2024] PGSC 16; SC2545 (28 March 2024)

SC2545

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 183 OF 2021

BETWEEN:
ROGER KETAN
Appellant

AND:
COMRADE TRUSTEE SERVICES LTD
Respondent

Waigani: Batari, Hartshorn & Carey JJ
2024: 25^th & 28^th March

SUPREME COURT – Appeal against dismissal of proceedings for being an abuse of process for the appellant’s failure to give notice to the Central Bank under Section 66(1) and (2) of the Superannuation (General Provisions) Act 2000 - Whether Respondent was estopped to raise a statutory defence based on section 66(1) and (2) of the Superannuation (General Provisions) Act 2000 – Whether there was breach of Principles of Natural Justice by Trial Judge

The Appellant sought to have the decision of the National Court WS (HR) 43 of 2020 quashed on the basis that notice was not required to pursue the action taken by the Appellant in the National Court and the trial judge erred in law and fact in dismissing the matter.

Held:

1. The appeal is dismissed.
   
2. The National Court has inherent jurisdiction, on its own volition, to consider jurisdiction or competency of any issue such as lack of compliance with statutory conditions at any stage of the proceeding. See cases: Arnold Amet v Peter Yama (2010) SC1064, Michael Keka v Pius Yafaet (2019) SC1673, 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.
   
3. The Appellant shall pay the Respondent’s costs of and incidental to this appeal, to be taxed if not agreed.
   

Cases Cited
Arnold Amet v Peter Yama (2020) SC1064
Chief Inspector Robert Kalasim v. Aina Mond and Ors (2006) SC828
Kerowa v Motor Vehicles Insurance Ltd [2010] SC1100
Michael Keka v Pius Yafaet (2019) SC1673
Patterson Lowa and Ors v. Wapula Akipe and Ors [1992] PNGLR 399
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

Legislation:
Superannuation (General Provisions) Act 2000

Counsel:
Mr F. So, for the Appellant
Mr R. Doko, for the Respondent

JUDGMENT

28^th March, 2024

1. BY THE COURT: This is an appeal against the decision of the National Court of 1^st December 2021 in which the proceeding WS (HR) No. 43 of 2020 was dismissed with costs to the respondent.
   

Background

2. Roger Ketan (the Appellant) pleaded fifteen grounds of appeal in the Notice of Appeal against the decision of the National Court in which Comrade Trustee Services Ltd (the Respondent) took issue.
   
3. The Appellant was previously employed by the Respondent on 3^rd November 2013 and was promoted to Team Leader in March 2019 with a three-month probation period.
   
4. The Respondent initiated disciplinary action against the Appellant between April to July 2019.
   
5. The Appellant was issued a termination notice on 13^th March 2020 and was paid in lieu of notice his full entitlements on 31^st March 2020.
   

Issue(s)

6. The issues submitted for the Court to consider by the Appellant were whether the Trial Judge erred in law and fact in granting the Respondent’s Application and Dismissing the Proceedings on the basis that the proceedings were an abuse of process for the Appellant’s failure to give notice to the Central Bank under Section 66 (1) and (2) of the Superannuation (General Provisions) Act 2000, (The Act).
   
7. Further, whether the Trial Judge erred in law and fact in allowing the Respondent to move its Application to dismiss the Proceedings and rejected the Appellant’s submission to refuse the Respondent’s Application on the basis that the Respondent was estopped to raise a statutory defence based on Section 66 (1) and (2) of the Act both in respect of issue and by conduct at a late stage of the proceedings.
   
8. Additionally, whether the Trial Judge erred in law and fact in dismissing the Proceedings and whether consideration should have been given to the Principles of Natural Justice and if these principles were breached.
   

Determination

9. Having considered the National Court transcript of the proceeding on 1^st December 2021 and the submissions of counsel, we uphold the respondent’s argument that Trial Judge did not err in law and fact in dismissing the Proceedings.
   
10. The Courts have an obligation to ensure that there is no abuse of process through its mechanisms Arnold Amet v Peter Yama (2010) SC1064.
    
11. The statutory requirements of Section 66 (1) and (2) of the Superannuation (General Provisions) Act 2000:
    
    • (1) A person cannot begin or continue a proceeding in a court against a licenced trustee in its capacity as trustee of an ASF or a licenced holder while a statutory manager is in control unless-
      
      • (a) the court grants leave on the ground that the person would be caused hardship if leave were not granted: or
      • (b) the Central Bank consents to the proceedings beginning or continuing.
        
    • (2) A person intending to apply for leave for the court under Subsection (1) shall give the Central Bank at least 10 days notice of the intention to apply, and the Central Bank may apply to the court to be joined as a party to the proceedings for leave.
      

were not complied with.

12. 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.
    
13. We find that the Trial Judge did not err in law or fact in dismissing the application as an abuse of process as the statutory requirement as indicated in paragraph 11 was not followed.
    
14. Reliance by the Appellant on the Respondent being estopped from relying on statutory defence is misconceived as further supported in paragraph 9.
    
15. The National Court has jurisdiction to control its proceedings and can initiate dismissing proceedings for lack of compliance with statutory conditions established Michael Keka v Pius Yafaet (2019) SC1673.
    
16. An estoppel cannot be invoked in regard to a statutory condition precedent as indicated in Kerowa v Motor Vehicles Insurance Ltd [2010] SC1100.
    
17. The Appellant submits that natural justice was denied by the Trial Judge.
    
18. The submission by the Appellant does not demonstrate any breach of natural justice by the trial judge.
    
19. The Trial Judge afforded the Applicant every opportunity based on the court transcript to raise matters related to its position and it would have been a breach of natural justice had the Trial Judge taken the view that non-compliance with a National Court Rule could overrule statutory requirements.
    

Conclusion

20. The Appellant has not succeeded in persuading the court that the appeal has merit.
    
21. Costs will follow the event.
    

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.
________________________________________________________________
Ketan Lawyers: Lawyers for the Appellant
Resolution Legal: Lawyers for the Respondent