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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 50 OF 2020 (IECMS)
BETWEEN:
CASCADE APARTMENTS LIMITED
Appellant
AND:
V
PATRICK’S TRANSPORT LIMITED
First Respondent
AND:
OPH LIMITED
Second Respondent
Waigani: Makail, J, Murray, J & Anis, J
2022: 27th April
2024: 3rd September
SUBSTANTIVE APPEAL – Questions of facts and questions of mixed facts and law – Appeal by way of rehearing – Whether the trial judge erred in finding that the respondents’ lands were in their natural state that required lateral support from the soil or land of the appellant – Whether the appellant’s action in digging its land next to the shared boundaries was extensive in nature – Whether the trial Judge erred in finding the appellant liable under the doctrine of strict liability – Whether the trial Judge erred in not finding the respondents’ liable for trespass and award damages in that regard – Supreme Court Act Chapter No. 37 – ss. 6 and 16
PRACTICE AND PROCEDURES – Whether the trial Judge erred when he accepted the affidavit evidence of the respondents – Alternatively, whether the trial Judge erred when he accepted objectionable evidence based on grounds that included relevance or hearsay – Evidence Act Chapter No. 48 – ss. 24(1)(a) and 35(2)
Cases Cited:
Papua New Guinean Cases
K K Kingston Ltd v. Billy Tuckayo (2022) SC2189
Special Reference by Morobe Provincial Government (2002) SC693
State v. Tamate (2021) SC2132
William Maihua (Snr) v. Magdalene Maihua (2012) SC1185
Overseas Cases
Dubbo Base Hospital v Jones [1979] NSWLR 225
Dalton v. Angus (1881) 6 App Cas 740
Brouwers v. Street [2010] NZCA 463
Xpress Print Pte Ltd v. Monocraft Pte Ltd and Ano [2000] SGCA 37
Counsel:
I.R. Molloy with G Tine, for the Appellant
E. G. Andersen with M. Tusais, for the Respondents
3rd September 2024
1. MAKAIL J: I have read the judgment drafted by my brother Anis J and agree with his Honour’s reasons and conclusion. I also agree with the orders proposed by his Honour that the appeals be dismissed with costs. I have nothing further to add.
2. MURRAY J: I have also read the judgment drafted by my brother Anis J and agree with his Honour’s reasons and conclusion. I also agree that the appeals should be dismissed with costs and have nothing further to add.
3. ANIS J: The substantive appeal was heard in 27 April 2022. We reserved our decision to a date to be advised.
4. This is my ruling.
BACKGROUND
5. The appellant was unsuccessful in its defence and crossclaim in the National Court. The National Court proceeding, OS No. 167 of 2016 (OS 167), was commenced by the respondents. The respondents sued the appellant in tort claiming, amongst others, damages for breach of duty, illegality, and negligence. The appellant denied liability, and in its crossclaim, claimed illegal encroachment, deprivation of use of its property or trespass against the respondents. The primary Court, in its final ruling on 20 May 2020, whose decision is the subject of this appeal, made the following orders:
“a) Judgment is entered for the plaintiffs in the sum of K3,164,566.90 being for payment of invoices from the plaintiffs’ contractors for the engineering work, preparation of reports and the construction of the restraining wall.
6. The appellant and the respondents are business neighbours. Their lands share boundaries and are situated downtown in the city of Port Moresby. The appellant’s land is described as State Lease, Section 8 Allotment 8, Granville, Port Moresby. Its constructed high-rise building therein is called ANG Haus (Appellant’s property/land/ANG Haus). The first respondent’s land is situated directly above the appellant’s northern end on a high slope. The land is described as State Lease, Section 8, Allotment 12, Granville Port Moresby. The first respondent also has a constructed high-rise building there which is called AON Haus (first respondent’s property/land/AON Haus). As for the second respondent, its land is next to AON Haus which is on the same slope slightly below but also at the higher slope to the appellant’s property. It is described as State Lease, Section 8, Allotment 19 Granville Port Moresby. The second respondent also has a high-rise building which is called OPH Building (second respondent’s property/land/OPH Building).
7. The central dispute started in 2010, after the appellant had constructed its car park on the northern side of its land which shares boundaries with the respondents’ lands. The appellant, as found by the primary Court, had dug out a steep slope which measured to about 90 degrees (the Steep Slope). Construction of the carpark began and concluded in 2010 (Carpark Construction). In March of 2015, a landslip occurred at the top of the Steep Slope (the Landslip). The respondents claimed in OS 167 that the Landslip had occurred fundamentally due to the Steep Slope that had been created by the appellant for its Carpark Construction; they claimed the Landslip had exposed the bedrock of the soil as well as the structural foundation of the first respondent’s land. Consequently, they claimed that the Landslip endangered or exposed their lands making them unsafe, weak, and vulnerable to collapse or catastrophe.
8. OS 167 was then filed on 31 March 2016 by the respondents to address the Landslip and exposure or risks they claimed were faced on their lands. The respondents sought various declaratory relief. They requested the Court to also grant them immediate access to the appellant’s land to take remedial measures. This included reconstructing a retaining wall to support or protect their lands on the northern part of the appellant’s land. On 5 May 2016, the primary Court granted them the following orders (Court Order of 5 May 2016):
“1. The First and Second Plaintiff themselves or through their agents gain immediate and full access to the Defendant’s land/property to:
9. Thereafter, on 27 July 2017, OS 167 was converted into pleadings pursuant to Order 4 Rule 35(1) of the National Court Rules. The matter then proceeded to trial and a final decision was reached as stated above.
REHEARING - APPEAL
10. These appeals shall proceed by way of a rehearing. Sections 6 and 16 of the Supreme Court Act Chapter No. 37 (SCA) permit this Court to hear appeals in this manner. The 2 provisions read:
6. APPEAL TO BE BY WAY OF REHEARING.
(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court–
(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
(b) to draw inferences of fact.
(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
......
16. DECISION, ETC., ON APPEAL.
On the hearing of an appeal, the Supreme Court shall inquire into the matter and may–
(a) adjourn the hearing from time to time; or
(b) affirm, reverse or modify the judgement; or
(c) give such judgement as ought to have been given in the first instance; or
(d) remit the case in whole or in part for further hearing; or
(e) order a new trial.
GROUNDS OF APPEAL
11. The appellant relies on 2 notices of appeals filed. The first was filed 26 June 2020 (First NoA). The first NoA did not require leave to appeal as the grounds raise questions of law and mixed fact and law. It is contained at pp.1 in Appeal Book Volume No. 1 (AB Vol. 1). There are 18 grounds of appeal raised therein. The second Notice of Appeal was filed 9 October 2020 (Second NoA). It raises questions of fact only, and it was filed after leave was sought and granted on 22 September 2020. It is contained at pp. 9 of the AB Vol. 1 and raises 17 grounds of appeal.
12. I restate the 18 grounds of appeal in the first NoA as follows:
(1) The National Court erred in law or mixed fact and law by failing to uphold the Appellant’s objections to the admissibility of the Respondents’ (or First Respondent’s) evidence (or alternatively parts of it) contained in a list of objections provide to his Honour (which) the Appellant will refer to on the hearing of the appeal) including the following:
(a) Affidavit of Leung Chan filed 31 March 2016 (Court Document No 3) including:
Annexures “LC3”, “LC4”, “LC5”, “LC6”, “LC8”, “LC9”, “LC10”, “LC11”, “LC12”, “LC16”, “LC17” (principally hearsay, being reports, letters and other publications from third parties, including expressions of opinion on fact and law.
(b) Affidavit of Leung Chan filed 2 May 2016:
Paragraphs 3, 4, 5 and 6: Relevant only to interim orders, and Annexures “LC1” to “LC6” hearsay.
(c) Affidavit of Leung Chan filed 26 July 2016 (Court Document 21): All irrelevant. Relevant only to obtaining interim orders.
(d) Affidavit of Leung Chan also filed 26 July 2016 (Court Document 22): All irrelevant.
(e) Affidavit of Leung Chan also filed 26 July 2016 (Court Document 23): All irrelevant. Relevant only to obtaining interim orders.
(f) Affidavit of Leung Chan filed 19 July 2018 (Court Document 45): Paragraphs 3, 4, 7, 8, 11 and 13 containing expressions of opinion or conclusions of a lay witness, including on issues of law.
(g) Affidavit of Leung Chan filed 13 September 2018: Paragraphs 6 to 19, and Annexures “LC1” and “LC2”, various expressions of opinion, submission, conclusions, and hearsay.
(2) The National Court erred in law or mixed fact and law in that the slip in or about March 2015 was caused by the work allegedly carried out on the Appellant’s property in 2010.
(3) The National Court erred in mixed fact and law in that it failed to consider and find that there were multiple causes for the slip in 2015 (and the Respondents’ alleged loss and damage) other than the work allegedly carried out on the Appellant’s land in 2010.
(4) The National Court erred in law or mixed fact and law in that it should have found that the Appellant could only be held liable if the work it allegedly carried out on its property would have caused the alleged loss of support to Respondents’ properties in their natural state.
(5) The National Court erred in law in failing to find the Respondents had no right to have the additional weight of buildings on their land supported by the Appellant’s adjoining land.
(6) The National Court erred in law or mixed fact and law in failing to consider and find it had not been shown the work allegedly carried out by the Appellant would have caused the alleged loss of support to either Respondents property on its natural state and without the buildings on their land.
(7) The National Court erred in mixed fact and law in so far as it found the Appellant was negligent in the absence of any or sufficient expert or other evidence to support that finding.
(8) The National Court erred in mixed fact and law in that it failed to consider and find that the Respondents (and each of them) had failed to establish that the slip in 2015 (and their alleged loss or damage) would not have occurred but for the work allegedly carried out on the Appellant’s property.
(9) The National Court erred in law or mixed fact and law in that it failed to address the question whether, but for the work allegedly carried out by the Appellant in 2010, would the Respondents (or either of them) have sustained the loss or damage for which the court awarded damages.
(10) The National Court erred in law or mixed fact and law in that it failed to consider and find that the first respondent had not taken reasonable steps for protection of its property which failure contributed to its alleged loss and damage.
(11) The National Court erred in law or mixed fact and law in that it failed to give any or sufficient consideration to whether all the work carried out by or on behalf of the Respondents (or either of them) was reasonably necessary as result of the alleged work carried out by the Appellant and/or of the slip in 2015.
(12) The National Court erred in law or mixed fact and law in that it failed to consider whether the cost of the work carried out by or on behalf of the Respondents (or either of them) was reasonable.
(13) The National Court erred in law or mixed fact and law in its award of damages in the absence of sufficient expert or other evidence that the cost of the work carried out by or on behalf of the Respondents (or either of them) was reasonable.
(14) The National Court erred in law or mixed fact and law in awarding damages based on the wok and materials allegedly carried out or provided by Fletcher Morobe in circumstance in which First Respondent failed to produce the written contract and scope of works for the same.
(15) The National Court erred in law or mixed fact and law in that it did not consider, and failed to find, the First Respondent had failed to substantiate its claim for damages by sufficient or satisfactory evidence including evidence of the work performed and the material supplied by Fletcher Morobe allowing the court to make an assessment.
(16) The National Court erred in law or mixed fact and law in giving judgment in favor of the Second Respondent when the Second Respondent did not adduce any evidence of loss or damage.
(17) The National Court erred in law or mixed fact and law in failing to find the Appellant had made out its claim for trespass.
(18) The National Court erred in law or mixed fact and law in failing to find the Appellant had made out the quantum of its claim for damages for trespass based on substantially undisputed evidence.
13. I also restate the 17 grounds of appeal in the second NoA as follows:
(1) The National Court erred in fact in finding that the Appellant had conducted extensive excavation work to its property.
(2) The National Court erred in fact as far as it found that the alleged excavation work had been carried out after Appellant’s acquisition of its property.
(3) The National Court erred in fact in finding that the First Respondent’s witness, Mr. Chan, was able to give evidence of the condition of the appellant’s property prior to the Appellant acquiring the property.
(4) The National Court erred in fact in finding that the slippage was caused by the excavation work allegedly conducted by the Appellant.
(5) The National Court erred in fact in failing to find it had not been established the alleged subsidence or loss or support would have occurred without the weight of the buildings on Respondents’ land.
(6) The National Court erred in fact in that it should have found the slippage and any consequent loss or expense sustained by the Respondents were or could have been caused by one or more factors other than excavation allegedly carried out on the Appellant’s land.
(7) The National Court erred in fact in finding that the expenses allegedly incurred by the Respondents (or either of them) were due to some act or omission of the Appellant.
(8) The National Court erred in fact in failing to find it was not established that the expenses allegedly incurred in respect of reports and for work including erecting a retaining wall were reasonable.
(9) The National Court erred in fact in failing to find that a number of matters, related to construction and maintenance of the first respondent’s property or building, could have contributed to the slip and any requirement of construction of a retaining wall or other remedial work.
(10) The National Court erred in fact so far as it is found that the Second Respondent had sustained any loss or damage justifying judgment for the above or any amount in its favor.
(11) The National Court erred in fact in finding that because of the excavation work allegedly carried out by the Appellant, the Respondent (or either of them) incurred loss or expense in rectifying the slip to either of their properties.
(12) The National Court erred in fact in so far as it found the work conducted by the contractor Fletcher Morobe Construction and its charges all related to work and material resulting from the slip and excavation allegedly carried out by the Appellant.
(13) The National Court erred in fact in so far as it found the work conducted by Fletcher Morobe Constructions and its charges for the same were reasonable as a consequence of the excavation allegedly carried out by the Appellant.
(14) The National Court erred in fact in that it should have found the Respondents (and each of them) failed to adduce sufficient evidence to show what work was carried out to substantiate their claim for damages.
(15) The National Court erred in fact in that it should have found the Respondents (and each of them) failed to adduce sufficient evidence to show that the costs they or (either of them) incurred were reasonable.
(16) The National Court erred in fact in failing to accept the Appellant’s evidence that the Respondents (or alternatively the First Respondent) had trespassed onto the Appellant’s property.
(17) The National Court erred in fact in that it should have accepted the unchallenged evidence concerning the loss and damage sustained by the Appellant as a consequence of the alleged trespass onto its land.
PRELIMINARY OBJECTIONS
14. The first preliminary objection is directed to ground 1 of the first NoA. The respondents submit that the appellant cannot object to the decision of the trial Judge in accepting the affidavits of Leung Chan because the appellant did not appeal that decision. The respondents submit that there are two separate decisions by His Honour Hartshorn J. The first one was delivered at trial on 22 October 2018 in relation to the objection to the use of affidavits. The second followed the trial on 20 May 2020 which is the final decision. The present appeals are based only on the final decision of Hartshorn J of 20 May 2020 and not His Honour’s earlier ruling made at the trial on 22 October 2018.
15. I begin by making these observations. Before the commencement of a trial, interlocutory decisions that are made therein, may be appealed separately to the Supreme Court. Such decisions are interlocutory in nature. It is also possible in some cases where decisions that are made in interlocutory applications may be final because they may terminate the proceedings completely, and the only resort left would be for aggrieved parties to appeal to the Supreme Court. However, in a case where after a trial or substantive hearing has commenced, any decision that is made by a trial Judge during the course of the hearing, including decisions on objections to the use of affidavits, may only be appealed together with the final decision of the Court. It is misconceived, in my view, for one to treat or categorise such an interlocutory decision separately from the final decision of the Court; any such ruling that is made at a trial, in my view, is not a separate ruling or interlocutory ruling, but rather, part of the considerations that would lead to a final outcome which, in totality, shall constitute the final decision of the Court. Adopting this view will give a party the opportunity to question such a finding or ruling, like in the present case, that is, one of the grounds is that the trial Judge had erred in accepting the evidence of the respondents where it led the trial Judge to erroneously rule in favour of the respondents thus the appellate Court is being asked to intervene and correct the error.
16. In this instance, the appellant objected to the tender of evidence by the respondents at trial. The submission by the respondents that the objections were made separately and that there was a separate decision made after a short adjournment, is correct but, in my view, inconsequential for the fundamental reason that these had occurred at the trial of the matter. There is also a public policy consideration and reason for holding this view. If this Court endorses the respondents’ argument, it will, with respect, open the floodgates for appeals to be lodged against a same final decision and delay trials in the National Court. Adopting this view will be against public policy or interest and good practices for civil appeals or administration of justice in general.
17. I dismiss this ground of objection by the respondents.
18. I now address the second preliminary ground of objection by the respondents. They submit the appellant did not give the relevant notices of objection under s.35(2) of the Evidence Act Chapter No. 48 (Evidence Act) that they would object to the use of the 7 affidavits filed by the respondents at the trial. Because of lack of prior notice, they argue that those appeal grounds that challenge the trial Judge’s finding in allowing the respondents’ evidence in for consideration, are baseless or without merit and should be dismissed. In countering these submissions, the appellant argues that it was not necessary to give notice under s.35(2) of the Evidence Act because the Court had ordered parties to file affidavit evidence under s.34(1)(a) of the Evidence Act.
19. I note that the parties proceeded to address this matter on the premise that the issue had been considered by the trial Judge. I will therefore proceed on that premise. If I am wrong in this regard, as this is a re-hearing, I will proceed to hear the arguments.
20. Sections 33, 34, 35 and 36 of the Evidence Act states:
Division 2.
Evidence by Affidavit.
33. INTERPRETATION OF DIVISION 2.
In this Division, “tribunal to which this Division applies” means the Supreme Court, the National Court, a District Court or a Judge.
34. EVIDENCE BY AFFIDAVIT.
(1) Subject to this section, in any legal proceedings before a tribunal to which this Division applies the tribunal may at any time order that–
(a) a particular fact or facts may be proved by affidavit; or
(b) the affidavit of a witness may be read in the proceedings on such conditions as the tribunal thinks reasonable; or
(c) a witness whose attendance ought to be dispensed with be examined by interrogatories or before an examiner named by the tribunal.
(2) Where it appears to the tribunal that a party to, or a person interested in, the proceedings bona fide and reasonably requires the production of a witness for cross-examination and that the witness can be produced, an order shall not be made under Subsection (1) authorizing his evidence to be given by affidavit.
(3) Nothing in an order under Subsection (1) affects the power of the tribunal to refuse to admit evidence tendered in accordance with any such order if, in the interests of justice, the tribunal thinks it proper to do so.
35. AFFIDAVIT EVIDENCE ON NOTICE.
(1) Where a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to use in the proceedings an affidavit by a witness concerning particular facts as to which no order under Section 34 has been made he may, not less than five clear days before the hearing, give notice, accompanied by a copy of the affidavit, to the party or person (if any) against whom it is to be used that he desires to do so.
(2) Unless a party to or a person interested in the proceedings gives notice, not less than two clear days before the hearing, to the party or the person who gave notice under Subsection (1) that he objects to the use of the affidavit, he shall be taken to have consented to the use of the affidavit, and the affidavit may be used in the proceedings unless the tribunal otherwise orders.
(3) On application of a party or person interested, or of its own motion, the tribunal may order that a subpoena be issued requiring a person who has made or intends to make an affidavit to attend before the tribunal to give evidence on oath or for cross-examination, or both.
36. CROSS-EXAMINATION OF DEPONENTS.
When a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to cross-examine a person who has made an affidavit used or intended to be used in the proceedings–
(a) he may serve on the party or person using or intending to use the affidavit a notice requiring the production of the deponent for cross-examination at the hearing; and
(b) if the party or person served with the notice does not produce the deponent at the hearing, he is not entitled to use or to rely on the affidavit as evidence without leave of the tribunal; and
(c) a subpoena may be issued on the application of the party or person served with the notice for the purpose of summoning the deponent to attend for cross-examination.
[Underlining mine]
21. At the outset, I note that the appellant orally objected in Court to the use of the respondents’ 7 affidavits. All 7 affidavits were sworn by the sole witness Leung Chan (Mr. Chan). At pp 469 of the AB Vol 2, below line 20, counsel for the appellant Mr. Molloy said, and I quote:
Yes , your Honour, there is objection to all of them.
......
They are all substantially hearsay or irrelevant. The case concerns the work that was done on the defendant’s property; what damages it caused, what work was required and the cost of the work and this witness has annexed to his affidavit his various reports of engineers, builders, soil experts, that is all hearsay as well as his other opinions on what is illegal and what is not illegal and so forth so much so that I have prepared a schedule of what the objections are which I will hand up to your Honour to make it easier.
22. There is no dispute that the affidavits were prepared and filed pursuant to the primary Court’s earlier order. As such, it is misconceived, in my view, for the appellant to object to the use of affidavits at the trial by the respondents. The parties had filed and served their respective affidavits earlier and were before the trial Court for the trial. The order for the filing of affidavits was made pursuant to the Court’s power under s.34(1)(a) of the Evidence Act.
23. As to the grounds, it is clear from the notice that the appellant objected to the contents of the affidavits on grounds of relevance and hearsay.
24. The application of ss. 34 and 35 of the Evidence Act was considered by the Supreme Court in the case of K K Kingston Ltd v. Billy Tuckayo (2022) SC2189. The Court, in its decision, also made references to Special Reference by Morobe Provincial Government (2002) SC693, State v. Tamate (2021) SC2132 and William Maihua (Snr) v. Magdalene Maihua (2012) SC1185. The Supreme Court in K K Kingston Ltd v. Billy Tuckayo (supra) stated, and I quote in part:
“16. As to s.34 Evidence Act, s.34(1)(a) provides that a particular fact or facts may be provided by affidavit. No authority was cited for the proposition that this phrase should be limited to specific technical matters or that ‘particular’ should be bestowed a narrow, strict or limited construction. Given that statutory provisions should be accorded a fair and liberal meaning: Special Reference by Morobe Provincial Government (2002) SC693; State v. Tamate (2021) SC2132, without more, in our view, s. 34(1)(a) Evidence Act is sufficiently wide to permit an order to be made that any facts, particular or otherwise, may be proved by affidavit.
17. That this court has recognised that s. 34 Evidence Act may be relied upon to obtain an order to permit the use of an affidavit, is demonstrated in the judgment of William Maihua (Snr) v. Magdalene Maihua (2012) SC1185 at [3] and [11]. There is no reference to such an affidavit having to be confined to specifics.
19. As paragraph 3 of the Court Order was made or may have been assumed to have been made pursuant to s.34 Evidence Act, s.35 Evidence Act was not enlivened. Consequently, it was not necessary for the appellant to give a notice under s.35 Evidence Act. Further, the Court Order does not require the appellant to have given notice under s.35 Evidence Act. Paragraph 4 of the Court Order provides that parties shall file and serve relevant notices under the Evidence Act. A notice under s.35 was not relevant as paragraph 3 of the Court Order had been made or assumed to be made under s.34 Evidence Act.
26. As to the primary judge having directed parties to file relevant notices, we refer to in our comments concerning ground of appeal 3(b). As the Court Order was made or may have been assumed to have been made under s. 34 Evidence Act, s. 35 Evidence Act was not enlivened. A notice under s. 35 was not therefore, a relevant notice as it did not have to be given. Consequently, the appellant was not in breach of s.35 Evidence Act or the Court Order.”
25. This issue, in my view, may be addressed this way: If a Court orders parties to file affidavits for trial pursuant to s. 34(1)(a), the parties may be deemed to have forfeited or waived their rights to object to the use of affidavits:
(i) unless the Court, in the exercise of its wide powers under s.34, whether together with or at some other time, also makes a specific order for parties to issue notice of intention to object to the use of affidavit(s); or [first category]
(ii) however or regardless of the above, a party can object to the content of an affidavit if the deponent or the witness is brought in at the trial to testify and is cross-examined whether it be premised on notice that had been given under s. 36 of the Evidence Act or otherwise; when that happens, the Court could either (1), make a determination and either uphold or dismiss the objection(s) immediately, or (2), the Court could note down the objections and ask the parties to summarise them in their closing arguments; should the Court take the latter approach, it may mean that the Court may address objections in its final decision, or it may become a matter of what weight should be placed on the evidence for the Court to arrive at in its final decision. [second category].
26. In the present matter, the issue at hand falls into the second category. The parties were ordered to file affidavits setting out the facts pursuant to s.34(1)(a) which they had done prior to the trial in OS 167. Section 35 has no application because there was already an order in place that was made by the Court pursuant to s.34(1)(a). The appellant had given notice to cross-examine Mr. Chan under s.36 of the Evidence Act. Mr. Chan was called and the appellant cross-examined Mr. Chan at trial.
27. Therefore, I also dismiss the respondents’ second objection.
28. Having dismissed the 2 objections, I now turn to consider, also and as a preliminary matter, the decision or ruling of the trial Judge in accepting the 7 affidavits of the respondents. His Honour had overruled the objections taken by the appellant regarding the use of the respondents’ affidavits and their content. His Honour stated at line 30, pp. 448 of the AB, as follows:
“HIS HONOUR: Very well, I give my ruling on the objections. The defendant has taken objection to numerous aspects of the affidavit of Leung Chan on the grounds of opinion, hearsay or relevance. These objections are opposed by the plaintiffs. If I understand correctly, it was conceded by Mr Molloy that Mr Leung Chan was able to put into evidence the various reports that he had commissioned on behalf of the plaintiff that he had received and upon which the plaintiff had relied and acted upon. This is correct in my view as these are matters within Mr Chan’s knowledge. It was conceded by Mr Andersen that Mr Chan not being an expert was not able to give evidence of the technical aspects contained in the various reports. As stated in the Court of Appeal in the New South Wales in Dubbo Base Hospital v Jones [1979] NSWLR 225 at 227, the interests of finality and judicial economy in a trial without a jury are usually best served by not deciding the question at issue upon an objection to evidence. The evidence can be admitted so that the Court can determine the question at issue.
I propose to adopt that course and so the objection to evidence of the defendant are refused. The evidence shall be admitted and I shall decide what weight, if any, should be given to the evidence.”
29. The case of Dubbo Base Hospital v Jones [1979] NSWLR 225 at 227 has persuasive value which was referred to by His Honour. In my view, His Honour was entitled to have regard to the case to form his view before reaching a conclusion as he did. I see no error committed by the trial Judge. His Honour’s ruling is also consistent with the second category as identified above which was open to him to make. The practice under the second category is a good practice which has been applied by the National Court over the years to this day. Our system of justice practices the adversarial system. A judge under this system is like a referee in a competitive or argumentative process. A plaintiff and the defendant would present their competing evidence of the facts and applicable law, and it is then left to a judge to consider and make a final determination, that is, based on what is presented by the parties. Given its characteristic, it is a practice where Courts may, in the exercise of their discretions, permit evidence to be tendered notwithstanding objections that the evidence is irrelevant or hearsay. This approach by the Courts is not in any way intended to deviate from objections raised and the applicable laws, but rather, to delay their decisions (i.e., on whether to accept or refuse a particular evidence) and have them decided together in their final decisions. A judge may also fix conditions as to how the objections will be addressed in the final decision without dismissing the evidence in totality.
30. To summarise what occurred in the present case, the Court in OS 617 did not make further orders under s.34 for parties to give notice of objection to the use of affidavits. The parties were only ordered to file affidavits under s.34(1)(a). However, consistent with the Dubbo Base Hospital, the Court proceeded to consider and gave its ruling as summarised above which was in favour of the respondents.
31 His Honour did not err in the exercise of his discretion in accepting the respondents’ 7 affidavits where he ruled that “The evidence shall be admitted and I shall decide what weight, if any, should be given to the evidence.”
THE GROUNDS OF APPEALS - GENERAL
32. Having ruled on the admission of evidence of the respondents, I shall now proceed to consider the appeal grounds. I prefer to address the appeal grounds in the 2 notices of appeal together.
APPELLANT’S OBJECTIONS TO THE USE OF RESPONDENTS’ AFFIDAVITS - Ground 1 – First NoA
33. I have addressed the first ground of appeal in the First NoA as a preliminary matter where I have found in favour of the respondents. I therefore dismiss this ground of appeal.
34. I will add that the 7 affidavits of the respondents were properly admitted into evidence and were before the Court for consideration. Premised on my findings above, the issue becomes one of what weight should be given to the evidence and whether the trial Judge was correct when he reached his final decision. This will be addressed in the various grounds of appeals that are raised herein.
WHETHER THE WORK CARRIED OUT BY THE APPELLANT ON ITS PROPERTY IN 2010 MAY BE TERMED AS EXTENSIVE, AND WHETHER IT WAS CARRIED OUT SUBSEQUENT TO THE APPELLANT ACQUIRING THE PROPERTY – Grounds 1 and 2, SECOND NoA
35. Whether the appellant’s Carpark Construction may be described as extensive or not, required evidence of facts that were put before the trial Judge.
36. The trial Judge had 7 affidavits that were all deposed by Mr. Chan for the respondents. Mr. Chan was the Operations Manager of the first respondent. He had been employed by the first respondent for 27 years. Mr. Chan deposed that the first respondent acquired the AON Haus in 2003. Mr. Chan deposed that since that time, that he had been managing or overseeing the AON including the material times in 2010 and 2015. Mr. Chan deposed of his involvement in 2010 where he stated that he had observed appellant dug the Steep Slope beneath the gradient of the adjoining boundary walls of the appellant and the first respondent’s properties. Mr. Chan deposed evidence where he also attached the various reports from experts that he had engaged since 2010 to investigate into the matter, more particularly, as regards to the stability of the land where the first respondent’s property was situated. The reports, on top of what he had observed, stated that extensive work had been carried out on the areas of concern or on the boundary of the land of the appellant. Mr. Chan stated when he was cross-examined that it was true that he would not have any knowledge of any work that may have been carried out at the northern boundary by the previous owner of the appellant’s land prior to 2010. However, Mr. Chan maintained that he witnessed the Carpark Construction and the creation of the Steep Slope, which he said had involved extensive work. Mr. Chan’s account of the use of a stone breaker machine was also confirmed by Johnson Tia (Mr. Tia) when Mr. Tia was cross-examined. Mr. Chan also gave evidence that Mr. Tia or the appellant, at no time since 2010 when the issue had arisen, complained, or put in their argument that the alleged extensive work on their car park had been carried out by the previous owner. In other words, Mr. Chan was implying that the explanation could have been a recent invention by the appellant.
37. As for the appellant, its only material affidavit was that filed by Mr. Tia. Mr. Tia is the Managing Director of the appellant. Mr Tia is a businessman by profession. Mr. Tia deposed his affidavit on 21 August 2018. Mr. Tia attaches only one document to his affidavit, which is a copy of the Title to the appellant’s land. The Title shows that the appellant acquired its land on 24 March 1999. The only relevant depositions refuting the respondents’ claim that the appellant’s Carpark Construction caused the landslip are those contained in paras. 7 and 8 in his affidavit where he said:
“7. When the property was first acquired, it was never a virgin land. It was fully excavated and developed, only requiring landscaping exercises for complete improvement and full use of the land.
38. The trial Judge, in addressing the 2 crucial evidence of the 2 witnesses, stated at paras. 22, 23 and 25:
“22. As to which evidence should be preferred, as submitted by the plaintiff, the behaviour of the Mr. Chan in 2010, after observing the work carried out by the defendant in 2010, in engaging a Consulting Geologist and Geotechnical Engineer to do a geotechnical assessment and give recommendations, and instructing lawyers to write on behalf of the first plaintiff, is behaviour that is consistent with someone who has observed something significant and worrying. It is not behaviour that is consistent with someone who has observed work carried out that could be described as negligible landscaping.
......
39. The trial Judge weighed up the evidence of the parties to decide which one to accept. In weighing up the evidence, he took into consideration the credibility of the evidence of the parties. Mr. Chan had been managing the first respondent’s property since 2003. He also appeared to be in a better position and was a suitable witness, to qualify to testify in the matter. In so doing, His Honour chose Mr. Chan’s evidence over Mr. Tia’s. Significantly, Mr Chan’s evidence included various reports attached to his affidavits. These reports were by experts. One of them is the Stratatek Reports. They verify what he had observed as a lay person about the boundary dispute from 2010 to 2015. The reports contained matters that he had sought and obtained from, for and on behalf of the respondents. I note that the appellant had objected to the reports to be tendered on the basis that they were prepared by a third party and that Mr. Chan was not the appropriate person to tender them. However, I note that the parties had agreed and had obtained orders from the Court to file affidavits. Where the appellant disputed the veracity of the reports, it was open to it to give notice of objection to the respondents including summoning the authors of the reports to appear for cross-examination. It did not do that. Mr. Chan in this instance had attached the expert reports, particularly the Stratatek Reports. He was not, when he attached the reports to his affidavit, giving any expert opinion on the content of the reports. He was simply attaching the reports that he had commissioned which were provided to him. The appellant, on the other hand, did not provide any expert reports or call any expert witnesses to refute the reports, particularly the Stratatek. It follows that there was no valid basis for objecting to these expert reports and it was open to His Honour to reject the objection and rely on the reports. For these reasons, I am not inclined to disturb His Honour’s findings in that regard, whether it be on a question of fact or mixed fact and law. I dismiss grounds 1 and 2 in the Second NoA.
WHETHER WITNESSS LEUNG CHAN WAS ABLE OR CAPABLE OF GIVING EVIDENCE ON THE CONDITIONS OF THE APPELLANT’S PROPERTY PRIOR TO THE APPELLANT ACQUIRING IT – Ground 3, Second NoA,
40. This ground of appeal was answered by Mr. Chan during cross-examination. Mr. Chan told the Court that he could not have been aware thus could not give evidence on the state of conditions of the appellant’s property prior to 1999.
41. But Mr. Chan also made it clear in his evidence as well as during cross-examination, that he had observed the extensive excavation that was undertaken by the appellant in 2010 and had acted on that to protect or stabilize the land foundations of the properties of the respondents.
42. This issue and ground of appeal are inconsequential, thus is dismissed.
WHETHER THE WORK THAT WAS CARRIED OUT BY THE APPELLANT ON ITS PROPERTY IN 2010 WAS THE CAUSE OF THE 2015 LAND-SLIP –Grounds 2, 3, 8, and 9, First NoA – Grounds 1, 2, 3. 4, 5. 6, and 8, Second NoA
43. Evidence that were adduced by both parties before the trial Judge have shown that the 2015 Landslip could have also been caused by the inactions of certain remedial work that had been recommended in the Stratatek Reports to the first respondent.
44. Mr. Chan, during cross-examination, acknowledged that in part when he stated that remedial work that had been recommended to the first respondent had not been complied with. However, he strenuously denied that the remedial work was the cause of that the Landslip. He maintained that the Landslip had occurred not from within the boundaries of the respondents’ lands, but rather, on from the side of the appellant’s property which included part of the reserved land area.
45. As noted from the earlier grounds, it was open to the trial judge to rely on Mr Chan’s evidence and the reports as credible evidence. The evidence and reports point to the extensive work that was carried out by the appellant in 2010. The appellant did not tender any expert report or call any expert witness to refute Mr Chan’s evidence and the expert reports. The totality of the evidence of the respondents outweighed the appellant’s argument that its Carpark Construction did not cause the Landslip and that it was not responsible for it. Contrary to the appellant’s contention, the evidence point to the appellant’s own extensive work in its Carpark Construction as the underlying cause for the Landslip. The findings by the trial Judge were supported by this evidence.
46. On the other hand, Mr. Tia had unwittingly admitted to the claim that the appellant had cut into the gradient where it had created
the Slope, which is at a 90-degree angle. At para. 8 in Mr. Tia’s affidavit quoted above, Mr. Tia stated that his activities
in 2010 had only involved negligible landscaping exercise that were intended to improve and extend the car park area. Given the
enclosed and limited carpark area within the area concerned, I note that the only way whereupon the appellant could have extended
its carpark, as explained by Mr. Tia, would be to cut or dig inward into the gradient towards the shared northern boundary which would then create the Slope or the 90-degree decline. Mr Tia’s explanation further
reinforces the respondents’ evidence that it was the landscaping exercise for the Carpark Construction that had caused the
landslip. It follows that the trial judge did not commit any error to warrant me to disturb the said findings. [Underlining mine].
47. I will answer the issue therein in the affirmative in favour of the respondents.
WHETHER WORK CARRIED OUT BY THE APPELLANT IN 2010 WOULD HAVE CAUSED THE ALLEGED LOSS OF SUPPORT TO THE RESPONDENTS’ LANDS IN THEIR NATURAL STATE – Grounds 4, 5 and 6, First NoA,
48. Turning to the issue of whether the Carpark Construction would have caused alleged loss of support to the respondents’ lands in their natural state, the main issue of contention for this purpose is land in its natural state.
49. First, it is important to describe the natural state of the land of the respondents before determining the issue under consideration. The natural state of the adjourning land of the respondents were gradients that were not steep, that is, a slow or medium decline from the respondents’ properties onto the land boundary of the appellant, and the slope had continued into a portion of the appellant’s boundary. The respondents’ and appellant’s buildings were erected many years back along the side slopes of the hill. I observe that it is natural for lands that are on higher ground in their natural state to require or depend on lateral support from lands or soils that are lower or at declining end. In the present case, the appellant’s land happens to be situated at a lower or declining end of the mountain whereas the respondents’ lands are situated at much higher levels.
50. I am making these observations because there is no actual evidence adduced by the parties that would give me an accurate picture of what the natural state of their respective lands were before human occupation or interventions. If we are going to observe the natural state of a land or land in its natural state, in the true sense of the word or phrase, then we are talking about the state of the land at a time before any form of human activities or occupation on the land; we will be referring to the said land’s landscape or its topography that had existed 50 to 100 years ago. In my view, it is not necessary for one to go far back in time to show the natural state of a land because it is not an accurate way of determining the issue. The natural state of a land in a case like this, in my view, should be determined by reference to the status of the land in question (i), at around the time or period when a boundary or land dispute arises, or (ii) from or at the time or period when a cause of action concerned accrues.
51. Secondly, where the natural state of the land has been altered or tampered with, it is necessary to explain how the parties restored it to its natural state. The Court Order of 5 May 2016 was granted to permit the respondents to build a retaining wall, not necessarily premised on any reserved land or boundary between the respondents’ and the appellant’s lands, but rather, from where the appellant had dug from within its boundary that that caused the slope to rise to a 90-degree angle. The Court order of 5 May 2016 was obtained to cure that deficiency which respondents did in 2016, that is, by engaging their contractors to construct the retaining wall from within the soil area of the appellant’s land next to and towards the common shared boundaries of the parties.
52. It follows that the natural support that the respondents’ land had which was taken away by the appellant, as found by the trial Judge [para. 27, pp 451, AB], would have also come from or included soil from within the appellant’s land. His Honour’s decision was thus consistent with Dalton v. Angus (1881) 6 App Cas 740. His Honour found and I quote, the defendant has taken away by its excavation part of the natural support that the first plaintiff’s uphill land has. His Honour’s finding recognized the already enforced right of the respondents to lateral support from the adjourning soil of the appellant’s land. His Honour, having reached that conclusion, found the appellant liable in tort under the doctrine of strict liability and referred to cases of persuasive value, namely, Brouwers v. Street [2010] NZCA 463 and Xpress Print Pte Ltd v. Monocraft Pte Ltd and Ano [2000] SGCA 37.
53. As already found above, there was overwhelming and uncontroverted evidence adduced by the respondents, particularly the expert reports, that showed that the action of the appellant in relation to its Carpark Construction had exposed and endangered the competency of the bedrock of the land boundaries concerned. For example, the report by Stratatek Ltd in 2010 [pp 63 and 64,Vol 1, AB], stated in part:
(b) Bedrock – competency
The calcareous mudstone and the chert modules and boulders belong to the Port Moresby Beds and locally known as the “Paga Beds”. The main rock types of the Paga Beds are Calcareous and siliceous mudstone, with lenses of limestone, cherty boulders/nodules, and minor friable mudstone as the primary bedrock. These units have been tightly folded and faulted, hence exhibits a tendency to fret readily when exposed to the atmosphere on exposed surfaces.
The exposed bedrock on site is considered incompetent due to the high degree of factures. The bedrock is highly folded and fractured and hence any sizeable rock slide or wedge slippages along uncontrollable plane of weakness (slickenslide) or fault gouge may cause major stability concern on neighbouring properties.
(c) Near Vertical Cut –
A near vertical cut (85% incline) made on site will require proper designed better protection measures, as at its current exposed state the material will over time become unstable and collapse. A sign to watch out for during such excavation of the bedrock is the direction of the bedding plane due to intense fracturing and faulting.
54. Remedial actions were then taken in 2016 where the Court ordered the retaining wall to be built on the boundary or within the land area of the appellant. The respondents had 2 high rise buildings that stood erected above the appellant’s land which still exist to this day. The risk of the appellant’s soil giving way because of the Carpark Construction was real, and had it occurred, the consequences would have been catastrophic. For these reasons, I am not satisfied that the trial Judge erred in his finding on strict liability, and I see no reason to rule otherwise.
55. I therefore answer this issue in the affirmative in favour of the respondents.
WHETHER THERE WAS SUFFICIENT EVIDENCE TO HOLD THE APPELLANT NEGLIGENT – Ground 7, First NoA, – Ground 7, Second NoA,
56. As to this issue, based on my decisions on the other grounds of appeals above, I answer the issue in the affirmative in favour of the respondents. I should add that the trial Judge found the appellant liable in the first instance based on the doctrine of strict liability, and the findings by the trial Judge of negligence was in the alternative.
WHETHER THERE WAS CONTRIBUTORY NEGLIGENCE – Ground 10, First NoA – Ground 9, Second NoA
57. As to this issue, again, based on my earlier findings and answers to the grounds of appeals, I answer this issue in the negative in favour of the respondents.
WHETHER THE WORK CARRIED OUT BY THE RESPONDENTS ON THE 2015 LANDSLIP WERE PREMISED ONLY ON OR AS A RESULT ONLY OF THE CONSTRUCTION WORK CARRIED OUT BY THE APPELLANT IN 2010 – WHETHER THE WORK CARRIED OUT BY THE RESPONDENTS WAS REASONABLY NECESSARY; AND WHETHER THE RESPONDENTS HAD ESTABLISHED EVIDENCE OF REMEDIAL WORK CARRIED OUT TO BE AWARDED THEIR COSTS - Grounds 11, 12, 13, 14, 15 and 16 – First NoA - Grounds 8, 10, 11, 12, 13, 14 and 15, Second NoA
58. I answer the first 2 issues in the affirmative in favour of the respondents, and I repeat my earlier reasonings and findings herein.
59. As to the third issue, whether the respondents had established evidence of remedial work carried out to be awarded their costs, again I answer that in the affirmative in favour of the respondents. The respondents had adduced evidence of the work that was carried out before the trial Judge. The trial Judge had the discretion to consider and make a determination which he did.
60. I find no reason to disturb His Honour’s findings.
WHETHER THE RESPONDENTS WERE LIABLE IN TRESSPASS; WHETHER DAMAGES FOR TRESSPASS SHOULD HAVE BEEN FOUND AND AWARDED AGAINST THE RESPONDENTS – Grounds 17 and 18, First NoA – Grounds 16 and 17, Second NoA
61. To address the 2 issues, I refer to paras. 7 and 8 of the cross-claim which read:
62. For the appellant to succeed on its cross-claim for trespass, first it must be established that the respondent entered its land and secondly, it was without its approval or consent. With respect, based on the evidence adduced and the Court Order of 5 May 2016, the above pleadings are factually incorrect. There was no pretext of access as alleged therein. The respondents, by virtue of the Court order of 5 May 2016, were granted access onto the appellant’s land. The access onto the appellant’s land was sanctioned by the National Court. Secondly, the claim that the respondents had encroached onto the Cross-defendant’s land to build a retaining wall, again was sanctioned by the National Court by its order of 5 May 2016. The Court order of 5 May 2016 is restated with added emphasis as follows:
“1. The First and Second Plaintiff themselves or through their agents gain immediate and full access to the Defendant’s land/property to:
63. Significantly, at the trial, the respondents were able to establish that their lands, in their natural states, had had the benefit of lateral support from the adjourning soil, which was the soil on the appellant’s land that had been
removed to make way for its Carpark Construction. Consequently, the work that was ordered by the Court Order of 5 May 2016 was to
restore those deficiencies and restore the respondents’ right to lateral support from the appellant’s soil. Not only
that, but the relief was also confirmed in the Court’s final decision of 20 May 2020 when the Court found the appellant liable
under the doctrine of strict liability.
64. For these reasons, I dismiss these grounds of appeals.
65. But assuming that I am wrong (which I say otherwise), I first refer to the trial Judge’s decision on the matter. At para. 30 of the decision [line 30, pp. 452 of the AB], His Honour states:
“30. Given the above, and considering the evidence and submissions, I am not satisfied that there is any merit to the defendant’s cross-claim.”
66. The decision against the cross-claim followed soon after His Honour found the appellant strictly liable for its action. Further or in the alternative, His Honour stated that if he had to also consider the respondents’ claim of negligence, that he would have found the appellant liable, and His Honour gave his reasons therein. It is clear that while His Honour’s decision on the cross-claim was brief, when it is considered in its full context the trial Judge after having found that the appellant did not adduce relevant evidence to establish its claim, concluded that the appellant failed to establish its claim for trespass. His Honour states in part, and I quote, “Given the above, and considering the evidence”, and further, concluding that there was no merit in the cross-claim. (Underlining mine).
67. I do not see any reason to disturb His Honour’s findings on the evidence. I therefore answer the 2 issues in the negative in favour of the respondents.
68. Finally, the trial Court had ordered the retaining wall to be built on the appellant’s land on 5 May 2016. If the appellant had any issues with the said order, it should have taken steps to set it aside or appeal it. It had not done so, and the retaining wall was constructed soon thereafter in that year, in 2016. The wall remains to date. There was evidence of complaints by the appellant that the Court order of 5 May did not specify the extent or boundaries of where the retaining wall was to commence and end; whether the retaining wall was to be erected on the reserved land or partially onto the appellant’s land that had been dug out. There is also evidence of attempts made by the respondents to hold the appellant liable for contempt of court for not allowing them access to construct the retaining wall. However, there is no evidence to establish what had become of the contempt application. Nonetheless, the decision of 5 May 2016 authorized the respondents to undertake the construction of the retaining wall, and their actions was not illegal or amounted to trespass.
69. I therefore answer the issues and grounds herein in the negative in favour of the respondents.
SUMMARY
70. In summary, these appeals shall fail with costs against the appellant.
ORDERS OF THE COURT
71. The Court orders:
________________________________________________________________
Adam Ninkama Lawyers: Lawyers for the Appellant
Dentons Lawyers: Lawyers for the Respondents
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