Kani v Barrick (Niugini) Ltd (formerly Placer Dome (PNG) Ltd) [2024] PGSC 25; SC2557 (25 April 2024)

SC2557

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 24 OF 2022 [IECMS]

BETWEEN
SERAH MUINGEPE KANI
- Applicant –

AND
BARRICK (NIUGINI) LIMITED
(formerly Placer Dome (PNG) Limited)
- Respondent -

Waigani: Toliken J, Shepherd J & Berrigan J

2023: 27^th July

2024: 25^th April

PRACTICE & PROCEDURE – Application for review under s.155(2)(b) of the Constitution - review sought of oral decision of trial judge to dismiss applicant’s claim – principles relating to pleading of causes of action and particulars – Order 8 Rules 27, 29 & 32, National Court Rules - whether dismissal of claim was breach of natural justice – duties of decision-makers to provide reasons for decision – failure to provide reasons – review upheld and case remitted for re-trial.

Cases Cited:

Amaiu v Yalbees (2020) SC2046
Avei v Maino [2000] PNGLR 157
Avia Aihi v. The State [1981] PNGLR 81
Avia Aihi v. The State (No 2) [1982] PNGLR 44
Electoral Commission v Kaku (2019) SC1866
Giru v Edo (2007) N5032
Golobadana No. 35 Ltd v. Bank of South Pacific Ltd [2013] N5340
Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138
Irafawe v Riwong (1996) N1915
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Kuman v Digicel (PNG) Ltd (2013) SC1232
Laki v Alaluku (2002) N2001
Lerro v Stagg (2006) N3050
Manui v ANZ Banking Group (PNG Ltd (2008) N3405
Mataio v August (2014) SC1361
Micah v Lua (2015) SC1445
Motor Vehicles Insurance (PNG) Trust v Etape [1994] PNGLR 596
Motor Vehicles Insurance (PNG) Trust v Pupune [1993] PNGLR 370
Papua New Guinea Banking Corporation v Tole [2002] SC694
PNG Forest Products Pty Ltd v The State [1992] PNGLR 85
Sigianisi v Aimo (2013) SC1237
Toap v The State [2004] 1 PNGLR 191
Waranaka v Dusava (2009) SC980

Woodbank Pacific Ltd v Paropet (2021) SC2021

Yakasa v Piso (2014) SC1330

Counsel:

Mr Solomon Wanis, for the Applicant
Mr Wilson Mininga, for the Respondent

REASONS FOR JUDGMENT

25^th April 2024

1. BY THE COURT: Before the Court is a substantive review application filed by the applicant Serah Muingepe Kani seeking a review of a decision of the National Court whereby her claim against the respondent was dismissed on 1 July 2022 after a trial on liability. The application is made pursuant to s.155(2)(b) of the Constitution.
   

BACKGROUND

2. The applicant commenced suit against the respondent by the filing of WS No. 1463 of 2018 in the National Court on 20 November 2018.
3. The applicant is a former employee of the respondent company. She was employed as a supervisor at the respondent’s waste water treatment plant at the Porgera mine site. Her employment with the respondent was terminated by email notification on 5 April 2017 under clause 11.2 of her contract of employment dated 12 April 2014.
4. The applicant claimed that during the course of her employment the respondent failed to provide a safe system of work and that this had resulted in her falling ill, ultimately causing her to suffer a miscarriage.
5. The applicant further claimed that her male supervisors and colleagues used profane words against her and that they were discourteous and unprofessional in the manner in which they dealt with her complaints. The applicant has contended that the adverse manner in which she was treated by her male supervisors seriously affected her wellbeing and peace of mind causing her mental anguish and stress, which was a further reason why she had fallen ill and had a miscarriage.
6. There are four causes of action that are pleaded in the applicant’s amended statement of claim:^[1]

(1) tort of negligence;

(2) breach of statutory duty by the respondent;

(3) breach of contract; and

(4) breach of Constitutional rights.

7. Prior to trial, the applicant gave notice to the respondent that she would not be pursuing her claim of breach of contract against the defendant.
8. A trial was conducted on 12 June 2022 before the National Court.
9. The trial proceeded on the basis that the applicant’s substantive claims against the respondent were three causes of action based on (1) negligence (2) breach of statutory duty, and (3) breach of Constitutional rights.
10. The respondent’s defence at trial was that it denied all adverse allegations against it. In closing submissions at the end of the trial it contended that the applicant had not sufficiently pleaded the applicant’s claims for negligence, statutory breach and breach of Constitutional rights. The respondent submitted that the plaintiff’s various causes of action pleaded in her amended statement of claim were convoluted and did not comply with Order 8 Rules 27, 29 and 32 of the National Court Rules (NCR) and that the proceeding should be dismissed.
11. On 1 July 2022 the trial judge delivered a short oral judgment which dismissed the applicant’s proceeding and which in essence agreed with the respondent’s submissions.
12. The trial judge found that the applicant’s amended statement of claim failed to disclose any reasonable cause of action when considered in its entirety or its separate allegations. Her Honour ruled that the applicant’s amended statement of claim was confusing and that it failed to assist the Court to determine the relevant issues for determination, leaving the Court to guess as to the nature of the applicant’s different causes of action.
13. The applicant applied to the Supreme Court for leave for review of the decision of the trial judge. Leave for review was granted on 30 November 2022, the applicant having satisfied the judge who heard the application that there were convincing reasons as to why leave should be granted and that an arguable case for review had been demonstrated.
14. The applicant filed her substantive application for review on 9^th December 2022. The application was listed for hearing by the Supreme Court on 23^rd July 2023, at which time we heard the application and reserved our decision.

RELEVANT LAW ON REVIEW APPLICATIONS

15. We observe at the outset that the matter before the Court is an application for judicial review, not an appeal. The law governing review of decisions of the National Court is well settled.
16. Earlier leading authorities on judicial review are the twin decisions in Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v. The State (No 2) [1982] PNGLR 44 (Kidu CJ, Kearney DCJ, Greville–Smith, Andrew & Kapi, JJ, which make it clear that an applicant must make out a case and the Court must find on the merits of the application that the applicant has demonstrated “exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity”. An insightful discussion of these principles by Deputy Chief Justice Kearney is set out in those cases.
17. Subsequent decisions of the Supreme Court have followed these principles. The decision in Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138 (Kapi DCJ, Bredmeyer & Amet, JJ) referred to applicable case law up to that point and concluded that the discretionary power of the Court should be exercised only where:

(a) it is in the interest of justice;

(b) there are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest or the case is of special gravity; and

(c) there are clear legal grounds meriting a review of the decision.

18. In Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 the following principles fundamental to judicial review were enunciated Kapi DCJ at p. 124:

The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error law, commits a breach of natural justice, reaches a decision which no reasonable tribunal court have reached or abuses its powers.

The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.

19. A clear statement of the difference between the appeal process and judicial review was provided by Supreme Court in Avei v Maino [2000] PNGLR 157 (Hinchliffe, Sheehan, Jalina JJ) where it was said at paragraphs 161-162:

It is common ground that there are fundamental differences between appeals and reviews. They are in fact different jurisdictions.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgment of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the ... Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction of the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision-maker... Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorized to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason.

20. This explanation as to the distinction between appeals and judicial review has been endorsed by the Supreme Court on many occasions: see for example Waranaka v Dusava (2009) SC980 (Kandakasi J as he then was, Lay & Gabi, JJ) and Sigianisi v Aimo (2013) SC1237 (Salika DCJ as he then was, Manuhu & Poole, JJ).
21. In summary, judicial review may be available where a superior court can be satisfied that:

(1) the decision-making authority has abused or otherwise exceeded its powers;

(2) there is an important point of law which clearly has merit or on points of evidence where there is an error clearly manifest on the face of the record;

(3) there has been a breach of natural justice, such as the denial of a party’s right to be heard;

(4) the decision-making authority has made a decision that no reasonable tribunal could have reached.

APPLICANT’S GROUNDS FOR REVIEW

22. The applicant seeks review of the trial judge’s decision on three grounds:

(1) The trial judge erred in law and fact when the claim was dismissed for want of pleadings and for not disclosing a reasonable cause of action whereas the applicant had sufficient pleadings which disclosed three reasonable causes of action, namely:

(a) breach of common law duty of care;

(b) breach of statutory duty;

(c) breach of Constitutional rights.

(2) The trial judge erred in law by failing to address and give reasons when dismissing all points of law raised by the applicant, thereby breaching the principle of natural justice and jeopardizing the applicant’s right to be heard.

(3) The trial judge erred in law and fact by failing to deliver a written judgment after reserving the ruling.

AFFIDAVIT EVIDENCE AT TRIAL

23. The evidence for both parties at trial was by way of affidavit material. By agreement between the parties’ respective counsel no cross-examination of deponents was sought by either side.
24. The applicant’s evidence was furnished by her own affidavit, that of a co-worker and that of a doctor as to the cause of her miscarriage. The respondent’s evidence was furnished by an affidavit from the applicant’s immediate supervisor, an officer from its’ Human Resources Department and a doctor challenging the opinion of the applicant’s doctor.

CONSIDERATION

25. We now address the applicant’s three grounds for review, bearing in mind the guiding principles which apply to judicial review.

Ground 1: Whether the trial judge erred when dismissing the claim for want of pleadings and failure to disclose reasonable causes of action

26. Ground 1 of the application for review pleads that the trial judge committed error of law and fact. Ground 1 is couched in terms that are more appropriate to a ground of appeal. However, we address this ground from the perspective of the review jurisdiction of the Supreme Court, not its appellate jurisdiction.
27. Relevant content taken from the transcript of her Honour’s decision is reproduced below:

Having considered the arguments, pleadings and evidence, the following issues arise and I will address them in this order. Firstly, whether the pleadings are concise, clear and disclose a reasonable cause of action known in law?

Secondly, if the answer to the first issue is in the affirmative then whether the plaintiff has proven a case on the balance of probabilities that the defendant is liable.

The law on pleadings in our jurisdiction is well settled. Order 8 rule 27 of the National Court Rules provides that, “Where a pleading discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, the court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.” Order 8 rule 29 provides that the plaintiff shall give particulars of this claim and rule 32 goes on to provide that any claim for damages in tort, a party pleading negligence or breach of statutory duty shall give particulars of the matters pleaded.

28. The trial judge then referred in her decision to several of the leading cases which deal with the principles applicable to the National Court’s rules on pleading, all of which cases relate to the need for a party’s pleadings and particulars to be sufficiently clear to allow the other party a fair opportunity to meet the case against it. The cases briefly referred to in the trial judge’s decision were these: Motor Vehicles Insurance (PNG) Trust v Etape [1994] PNGLR 596, Papua New Guinea Banking Corporation v Tole [2002] SC694, Motor Vehicles Insurance (PNG) Trust v Pupune [1993] PNGLR 370, Kuman v Digicel (PNG) Ltd (2013) SC1232, Amaiu v Yalbees (2020) SC2046 and Manui v ANZ Banking Group (PNG Ltd (2008) N3405.
29. Her Honour continued:

A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to prove its claim. In applying the law and principles of pleadings in this case, I find that the claim is not clearly pleaded and causes of action are convoluted or lumped up together making it more difficult [and] confusing for the Court. Furthermore, the plaintiff has failed to plead all necessary facts and legal elements to establish or prove its cause of action. The effect of which is that the amended statement of claim fails to disclose a reasonable cause of action.

This case can be easily distinguished from the case of Kuman v Digicel, Amaiu v Yalbees and Richard Manui v ANZ because firstly, the pleadings here are too general and vague and the causes of action are lumped together or convoluted. More importantly, the alleged facts do not give rise to a valid cause of action and omit the elements of statutory breach, negligence and breach of Constitutional rights.

Accordingly, I am persuaded by the defendant’s submission that the plaintiff’s amended statement of claim fails to disclose a reasonable cause of action when considered in its entirety or separately. The claim is confusing and fails to assist the court to determine the relevant issues for determination and further leaves the Court to guess the claim. Based on these findings, I answer the first issue in the negative because I find that the pleadings are vague and failed to disclose a reasonable cause of action known in law. The proceedings will be dismissed in their entirety.

30. We note that the trial judge correctly refers in her decision to the applicant’s amended statement of claim rather than the applicant’s initial statement of claim. The applicant’s amended statement of claim was filed on 15 October 2020 pursuant to leave of the National Court granted on 14 October 2020. It is the applicant’s amended statement of claim that provides the framework for the pleading of her various causes of action and claims against the respondent.
31. We have perused the applicant’s amended statement of claim. It is a long and unusually prolix document comprising 18 pages. Paragraphs 1 to 88A of the amended statement of claim plead a host of matters in support of the applicant’s allegations of negligence of the respondent in its dealings with her, breach by the respondent of its statutory duty to provide her with a safe workplace and the respondent’s alleged breach of various of the applicant’s Constitutional rights.
32. The applicant’s prayer for relief at paragraph 89 of the amended statement of claim seeks the following orders:

(a) general damages;

(b) damages by way of compensation pursuant to s.58 of the Constitution for breach of Constitutional rights;

(c) interest on damages at 8% [per annum];

(d) any other orders; and

(e) costs.

33. We accept that the amended statement of claim contains a surfeit of alleged facts in support of the applicant’s various causes of action against the respondent. This plethora of facts, much of which verges on pleading of evidence, not facts, is intermingled with unnecessary background material, general assertions, commentary, hearsay evidence and opinion evidence.
34. We find that, putting aside extraneous matters which should not have been pleaded, the trial judge nevertheless failed to consider that there were sufficient alleged facts pleaded in the amended statement of claim to constitute the elements of the applicant’s three causes of action against the respondent, those causes of action having been pleaded at paragraphs 86A, 86B and 87A of the amended statement of claim.
35. The case law as to circumstances in which a pleading can be struck out or dismissed under the Rules for failure to disclose a reasonable cause of action is well established. A summary of applicable principles is set out below.
36. The Court’s jurisdiction to strike out a proceeding under Order 8 Rule 27 NCR should only be exercised where it is plain and obvious that the statement of claim, even if proved, will not entitle the plaintiff to the relief that is being sought. But the procedure should be confined to cases where the cause of action is obviously and almost incontestably bad. The plaintiff should not be driven from the judgment seat unless the case is unarguable: PNG Forest Products Pty Ltd v The State [1992] PNGLR 85 (Sheehan J).
37. If the statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, it should be struck out: Irafawe v Riwong (1996) N1915 (Kirriwom J).
38. If the statement of claim leaves the defendant guessing as to what the plaintiff’s allegations are, it should be struck out: Laki v Alaluku (2002) N2001 (Sevua J).
39. The statement of claim must demonstrate that the plaintiff has a cause of action by pleading the legal ingredients or the elements of the claim and the facts that support each element of the claim: Toap v The State [2004] 1 PNGLR 191 (Cannings J).
40. Order 29 Rules 29 and 32 NCR deal with the function of particulars. It was held by Davani J in Golobadana No. 35 Ltd v. Bank of South Pacific Ltd [2013] N5340, reading from the headnote, that:

The function of particulars is to carry into operation the overriding principles that the litigation between the parties and particularly the trial should be conducted fairly, openly and without surprises and incidentally to reduce costs. This function has been stated in various ways, as follows:

(1) To inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved

(2) To prevent the other side from being taken by surprise at the trial

(3) To enable the other side to know what evidence they ought to be prepared with and to prepare for trial

(4) To limit the generality of the pleadings or of the claim or the evidence

(5) To limit and define the issue to be tried and to which discovery is required

(6) To tie the hands of the party so that he cannot without leave go into many matters not included.

41. Where pleadings are so bad and vague that dismissal is sought, dismissal should nevertheless not be granted by the Court if the defective pleadings can be cured by an opposing party’s request for further and better particulars or by an order for further particulars under Order 8 Rule 36 or by amendment under Order 8 Rules 50 or 51 NCR. Where particulars are lacking or have been so poorly pleaded, this is what was said in Lerro v Stagg (2006) N3050 by Kandakasi J at (as he then was) at para. 14:
    14. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the Rules for requesting and or order for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed with in the interest of doing justice in accordance with O.1 r.7 of the Rules in appropriate cases.
        
42. Although desirable, it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet: Yakasa v Piso (2014) SC1330 (Lenalia, Murray & Logan, JJ).
    
43. In Kuman v Digicel (PNG) Ltd (supra) it was said at paragraph 14 that:
    

Here, the failure of the appellants to unequivocally and specifically claim that the respondent owed them a duty of care does not mean that the statement of claim fails to disclose a cause of action in negligence, as the allegation of a duty of care is sufficiently apparent from the whole of the statement of claim.

44. And in Amaiu v Yalbees (2020) (supra) it was held that:
    

Though the duty of care element was not expressly pleaded, the statement of claim was drafted in sufficiently clear terms to put the Second Appellant on notice that it was required to meet a claim in negligence and the elements of that claim.

45. With reference to the present case it is clear to us that the applicant’s three causes of action, especially the tort of negligence, were sufficiently pleaded to the extent that the respondent was put on notice as to the case it was required to meet.
    
46. For the tort of negligence to be established, there are three elements that need to be pleaded and proven by evidence.^[2] They are:

(1) the defendant owed a duty of care to the plaintiff;

(2) the defendant breached that duty of care;

(3) the breach of the duty of care caused damage to the plaintiff.

47. In addition, the plaintiff should by its evidence also prove that:

(4) the type of damage sustained by the plaintiff was not too remote;^[3] and

(5) the plaintiff did not contribute to his or her own injuries, for example by being contributorily negligent or voluntarily assuming risk of injury.^[4]

48. The elements which the applicant alleges constitute the tort of negligence for which the respondent should be liable are expressly pleaded in the amended statement claim. The applicant pleaded in paragraph 86A(4) that the respondent owed her a duty not to cause emotional distress or anxiety leading to accidents and physical injuries as well as a duty to set up and implement a safe system of work. Particulars of the respondent’s breach of those duties of care are set out in paragraph 86B of the amended statement of claim where the applicant contends a range of matters, but specifically (with some paraphrasing by us) that the respondent:

(1) failed to provide a functioning laboratory where testing of water quality from 5 sewerage treatment plants could be carried out;

(2) negligently compelled the applicant to attend at water and sewerage treatment facilities often 10 pm at nights and 2.00 am in mornings in breach of the applicant’s hours of work stipulated in clause 6.3 of her employment contract;

(3) failed to implement a system of work which would have enabled the applicant to cope with her workload;

(4) failed to provide adequate cover for sickness and maternity leave;

(5) generally failed to provide that applicant with a safe system of work.

49. The third element for the tort of negligence that should be pleaded, that of damage flowing from the breach, is provided in paragraphs 83A and 86B of the amended statement of claim where the applicant averred as follows:

83A. The miscarriage was ... a personal injury to the Plaintiff that occurred during the course of her employment at the Defendant’s mine site.

86B The Plaintiff claims that her injuries of emotional distress and mental anxiety leading to and direction causing any injury of birth miscarriage were caused by the Defendant’s named employees ... or the Defendant itself ..

50. As to the applicant’s causes of action founded on breach of statutory duty and breach of certain Constitutional rights, similar analysis of the amended statement of claim filed on 15 October 2020, almost two years before trial on 1 July 2022, indicates to us that these further two causes of action were also sufficiently pleaded to at least put the respondent on notice of the defence it would need to make in order to respond to those causes of action and prepare for trial.
51. The applicant, in paragraph 88A of her amended statement of claim, has pleaded alleged breach by the respondent of the following of her Constitutional rights and freedoms: s.35 (right to life – in respect of the applicant’s unborn child); s. 36 (freedom from inhuman treatment); s.37 (protection of the law); s.41 (proscribed acts); and s.43 (freedom from forced labour.
52. Particulars of the applicant’s pleading in respect of the respondent’s alleged breach of statutory duty are set out in paragraph 86B of the amended statement of claim.
53. We agree with the respondent’s counsel that the structure of the applicant’s amended statement of claim is poor and that certain of the particulars pleaded by the applicant, especially in relation to breach of statutory duty and breach of Constitutional rights, are muddled or out of sequential order. But we do not accept that an overall reading of the amended statement of claim does not make sense or that the elements of the tort of negligence, breach of statutory duty and breach of certain Constitutional rights were so lacking in the pleadings that the respondent did not know the nature of the causes of action alleged against it, thereby forcing the respondent and the trial judge to guess as to what those causes of action might be.
54. We consider that the respondent was on sufficient notice by the applicant’s amended statement of claim as to the case the respondent had to meet at trial. Indeed the respondent’s counsel’s written submissions at trial^[5] at paragraph 16 expressly acknowledge all three of the applicant’s causes of action that it knew it needed to respond to. This is what the written submissions for the respondent state:

16. From the foregoing, the general issues for determination are:

(i) Whether the Defendant:

(a) was in breach of statutory duty?

(b) was negligent?

...

(d) committed any breach of the Plaintiff’s constitutional rights?

55. Counsel’s written submissions in connection with the three causes of action pleaded by the applicant did not address any of the applicant’s affidavit evidence at all but merely stated at paragraph 32:

32. The Defendant denies that it was negligent and submits that:

(i) it owed a general duty of care toward the plaintiff (as an employer towards its employee);

(ii) the Defendant did not breach the general duty of care owed to the Plaintiff (employee); and

(iii) as such, the alleged injury or harm suffered by the Plaintiff was/were not the result of the Defendant’s breach of its duty of care.

56. There is no evidence before us that prior to trial the respondent by its lawyers:
    • made any interlocutory application for summary dismissal of the applicant’s proceeding under Order 12 Rule 40 NCR on the ground that no reasonable cause of action had been disclosed in the applicant’s amended statement of claim; or
    • had requested the applicant’s lawyers to furnish further and better particulars of the applicant’s causes of action pleaded in the amended statement of claim; or
    • had applied to the Court under Order 8 Rule 36 NCR in accordance with the principles and guidance given in Lerro v Stagg (supra) that the applicant be required to give further and better particulars of her causes of action pleaded in the amended statement of claim; or
    • requested the applicant’s lawyers to further amend the applicant’s amended statement of claim under Order 8 Rule 50 NCR to give better clarity to the causes of action referred to in that pleading.
57. Instead the respondent waited until submissions at close of the trial to challenge the defects it had identified in the applicant’s amended statement of claim and at that late stage of the litigation then sought to have the applicant’s claim dismissed on the ground that the amended statement of claim was confusing, convoluted and that it had allegedly failed to disclose any reasonable cause of action.
58. Having regard to the principles of law on point, we consider that the amended statement of claim adequately disclosed not only the three causes of action the applicant was pursuing but also the facts and matters on which the applicant was relying in support of those causes of action. The respondent acknowledged through its counsel’s own written submissions that it was well aware of those causes of action and the applicant’s material in support.
59. We consider that instead of dismissing the applicant’s case, her Honour should have ruled against the respondent’s submissions and then proceeded to analyse the affidavit evidence of both parties adduced at trial to assess whether the applicant had either proven or had failed to prove on the civil standard of proof the various elements of the tort of negligence, breach of statutory duty and breach of Constitutional rights pleaded in her amended statement of claim.
60. In this instance we have found that the applicant’s pleadings, while wanting in many respects, were nevertheless reasonably straightforward and were sufficient to put the respondent on notice as to what they had to defend. The applicant alleged, among other things, that the respondent owed her a duty of care to provide a safe workplace, that the respondent failed to provide that safe working environment and in consequence the applicant had suffered emotional and physical distress resulting in a miscarriage.
61. The respondent clearly understood the claim. At trial the respondent did not deny that it owed the applicant a general duty of care but it led affidavit evidence in response, including an affidavit from the applicant’s immediate supervisor and a doctor, to counter causation.
62. In the result, we find that the trial judge erred when dismissing the applicant’s proceeding. It is plain to us that given the applicable principles of law on pleading of causes of action and particulars in support, the trial judge fell into error of law in the subject decision by failing to properly apply those principles to the case at hand. We consider that no reasonable decision-maker would have reached the ruling made by the trial judge. The decision is unsustainable because error in procedural law was made that is clearly manifest on the record. The applicant should not have been driven from the judgment seat by reason of the trial judge’s decision: PNG Forest Products Pty Ltd v Genia (supra). The review jurisdiction of this Court has therefore been properly invoked by the applicant. The justice of the case requires that we uphold Ground 1 of the application for review.
63. We emphasise that we express no opinion as to the merit or otherwise of any of the causes of action pleaded. That is an entirely different question from the one before us on this review.

Ground 2: Whether the trial judge erred in law by failing to give reasons for dismissal of points of law raised by the applicant, thereby breaching natural justice and jeopardizing the applicant’s right to be heard.

64. Ground 2 of the application poses the question as to whether the trial judge’s decision was such that it amounted to a breach of the applicant’s right to natural justice, in particular the applicant’s right to be heard.
65. Section 59(2) of the Constitution states that the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly. The rules of natural justice require that a person be provided with a reasonable opportunity of being heard and presenting his or her case in a fair manner.
66. The challenge to the pleadings was raised at trial during final submissions, without notice and in the absence of a motion. Nevertheless, the applicant was given an opportunity to be heard and, it appears, was heard, on the issues raised as well as on the substantive proceedings. The trial judge’s decision for dismissing the proceedings was wrong for the reasons outlined above but there was no denial of natural justice. Ground 2 is dismissed.

GROUND 3: Whether the trial judge erred in law and fact by failing to deliver a written judgment

67. It is an entrenched principle of law that all public officials, judges included, have a duty to give reasons for their decisions when those decisions affect the rights of persons. This principle of natural justice was explained by the Supreme Court in Micah v Lua (2015) SC1445 (Cannings, Makail, Higgins JJ) at paragraph 22 in these terms:

It cannot be emphasised enough that the duty to give reasons is now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official’s decisions: Joe Ponau v Teaching Service Commission Disciplinary Committee (2006) N3059. If a decision-maker has a duty to accord natural justice, there is a duty to give reasons; and if no reasons are given, that means there are no good reasons and the decision-maker will have acted in excess of jurisdiction. If there is no express duty give reasons, the duty will be implied. Those principles were applied by the Supreme Court in Ombudsman Commission v Peter Yama (2004) SC747 and Mision Asiki v Manasupe Zurenuoc (2005) S797. The National Court has applied the same principles, some of the cases were Niggints v Tokam [1993] PNGLR 66; Yawip v Commissioner of Police [1995] PNGLR 93; Wena v Tokam (1997) N1570; Graham Kevi v Teaching Service Commission Disciplinary Committee [1997] PNGLR 659 and Michael Anis Winmarang v David Ericho and the State (2006) N3040.

68. The duty of a judicial officer is to provide reasons for their decision but there is no duty for those reasons to be written.
69. The trial judge gave an oral decision outlining her reasons for the decision. The decision was affected by error but there was no error in the fact that it was given orally.
70. Ground 3 is misconceived and is dismissed.

CONCLUSION

71. We are satisfied that the applicant has shown convincing reasons for the exercise of this Court’s inherent jurisdiction under s.155(2)(b) of the Constitution to review the decision of the trial judge.
72. Although we have dismissed Grounds 2 and 3 of the application for review, we have upheld Ground 1. As one of the three grounds for review has been upheld, the application for review has in turn been successful and will be upheld.
73. The Court will accordingly order that the decision and order of the National Court in WS No. 1463 of 2018 delivered on 1 July 2022 are quashed and the matter is to be remitted to the National Court for re-hearing at trial on all substantive issues before another Judge and that it is to be listed on the next available date for directions hearing by that Judge.

COSTS

74. The applicant has sought her costs of this application for review. We see no reason to depart from the usual order as to costs. Costs will follow the event. The respondent is to pay the applicant’s costs of the review on a party/party basis, such costs to be taxed if not agreed.

ORDER

75. The formal terms of the Court’s order are as follows:

(1) This Review is upheld.

(2) The decision and order of the National Court made in WS No. 1463 of 2018 on 1 July 2023 are quashed.

(3) The matter is remitted to the National Court for re-hearing at trial before another Judge on all issues and is to be listed on the next available date for directions hearing by that Judge.

(4) The Respondent shall pay the Applicant’s costs of and incidental to this Review on a party/party basis, such costs to be taxed if not agreed.
________________________________________________________________
Solomon Wanis Lawyers: Lawyers for the Applicant
Bradshaw Lawyers: Lawyers for the Respondent

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^[1] The applicant’s amended statement of claim is at tab 21 of the Review Book.
^[2] Maku v Maliwolo (2012) SC1171 (Lenalia, Makail & Kariki, JJ)
^[3] Government of Papua New Guinea v. Moini [1978] PNGLR 184 (Prentice CJ, Kearney & Pritchard, JJ)
^[4] Tirima v Angau Memorial Hospital (2005) N2779 (Cannings J)
^[5] The written submissions of counsel for the respondent at trial are at tab 20 of the Review Book.