Progress Auto Machinery Ltd v Wintop Investment Ltd [2024] PGSC 97; SC2628 (4 September 2024)

SC2628

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 194 OF 2023

BETWEEN:
PROGRESS AUTO MACHINERY LIMITED
Appellant

AND:
WINTOP INVESTMENT LIMITED
First Respondent

AND:
AWEI INVESTMENT LIMITED
Second Respondent

AND:
HANPAN NO. 28 LIMITED trading as WANG DEE LAWYERS
Third Respondent

AND:
AH MENG BOW
Fourth Respondent

AND:
TRENDS SHOE STEPS LTD 1-48749 trading as GOOD DAY RESTAURANT
Fifth Respondent

Waigani: Salika CJ, Dowa J & Carey J
2024: 1^st August & 4^th September

SUPREME COURT – Appeal against discretionary judgment – Natural Justice – Appeal from discretionary judgment – Questions on exercise of discretion – Question on procedural irregularity.

Grounds of Appeal – Constitution – Section 37 (1) and (11) of the Constitution – National Court Rules – Order 12 Rule 40 (1) and Order 12 Rule 38 (1) of the National Court Rules

PRINCIPLES OF NATURAL JUSTICE — Right to be heard — Constitution, Section 59 — whether the appellant was denied the right to be heard before the order for dismissal of proceedings was made.

Facts:
The Appellant appealed the decision of the National Court on the basis that there was denial of natural justice by the primary judge and that there was an identifiable error in the exercise of discretion. The Respondent surmised that the primary judge did not err in law or fact in relation to the proceeding.

Held:

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

Cases Cited:

The following cases are cited in the judgment.

Papua New Guinean Cases
Application for review pursuant to Section 155(2)(b) of the Constitution; Telikom (PNG) Limited v Kila Rava, Nicholas Paliou, Bernard Sui, Owen Boku and 23 other Ex-Employees of Telikom (PNG) Limited and Ida Basugari Palek and Maria Eginaka and Ravu Taviri and the Independent State of Papua New Guinea [2018] SC1694
Bank South Pacific Ltd v Gibson Nad [2010] SC1278
Church of Jesus Christ of Latter Day Saints Inc v Kimas [2022] PGSC 96; SC2280
Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v University of Papua New Guinea [2005] SC788
Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority - Lae and PNG Forest Authority (2001) N2085
Special Reference Pursuant to Constitution Section 19; Section 365 of the Income Tax Act [1995] PGSC 3; SC482

Overseas Cases:
Hunter v. Chief Constable of the West Midlands Police and Others [1981] UKHL 13; [1982] AC 529.

Legislations:
Constitution
National Court Rules

Counsel:
Mr. Lawrence Giyomwanauri, for the Appellant
Mr. Desmond Kipa, for the Respondents

JUDGMENT

4^th September 2024

1. BY THE COURT: This is an appeal from a judgment of the National Court styled OS No. 166 of 2022 made on the 14th of November 2023 whereby the Appellant’s proceeding was summarily dismissed.
   

BACKGROUND

2. Progress Auto Machinery Ltd (the Appellant) filed this appeal against Wintop Investment Limited (the First Respondent), Awei Investment Limited (the Second Respondent), Hanpan No.28 Limited trading as Wang Dee Lawyers (the Third Respondent), Ah Meng Bow (the Fourth Respondent) and Trends Shoe Steps Ltd 1-48749 trading as Good Day Restaurant (the Fifth Respondent) together (the Respondents).
   
3. In the lower Court proceedings (OS No 166 of 2022), the Appellant brought eviction proceedings against the first, second and third Respondents on the property described as Allotment 20 Section 122, Hohola, National Capital District. The three Respondents were tenants on invitation by the fourth Defendant who apparently had an equitable interest on property Allotment 20 Section 122. The Appellant conveniently chose not to include the fourth and fifth Respondents in the proceedings. The fourth and fifth Respondents were subsequently joined in that proceedings on application.
   
4. It surfaced that the fourth Respondent was part owner or entitled to be registered owner of a portion in a subdivision of Allotment 20, pursuant to a Mediation Order endorsed by the Court in a previous litigation between the Appellant and the Fourth and Fifth Respondents in MP No 7 of 2014. It was clear that the land was to be subdivided into four allotments, and allotment 22 was to be transferred to the fourth Defendant, which is yet to take place. The appellants reason for failing to comply or implement the Mediation Orders is that the fourth Respondent failed to comply with Order No 6 in that he failed to deliver some documents. The lower Court noted that the “documents” referred to by the appellant lacked clarity and particulars.
   
5. In that matter styled MP No. 7 of 2014, the Court noted the Appellant also failed to institute a proceeding for the of non-compliance of the Fourth Respondent to enforce item 6 of the Mediation Orders.
   

GROUNDS FOR REVIEW

1. Whether the learned judge took into account irrelevant factors.
   
2. Whether the learned judge gave sufficient weight to irrelevant factors in granting the relief sought by the Respondents.
   

100. Whether there was an identifiable error in the learned judge’s reasoning in relation to the Appellant being time-barred.
     

4. Whether the learned judge exercised discretion incorrectly without sufficient evidence in reliance to Order 12 Rule 38(1)(b) of the National Court Rules.
   

DETERMINATION

6. The Appellant argues that the primary judge took into account irrelevant factors in arriving at a decision to dismiss the proceedings.
   
7. There was a Mediation Order in place from another proceeding MP (Comm) 7 of 2014 which the Appellant failed to implement Item No. 6 of that Mediation Order.
   
8. The Appellant contends that this reference to the Mediation Order is contrary s.37 (1) of the Constitution and the National Court Rules.
   
9. The argument by the Respondents is that there was no breach of the Appellant’s right to full protection of the law as outlined in s.37 of the Constitution.
   
10. Section 37(1) Protection of the Law states:
    

“Every person has the right to the full protection of the law, and succeeding provisions of this section are intended to ensure that that right is full available, especially to persons in custody, or charged with offences.”

11. The application of in Special Reference Pursuant to Constitution Section 19; Section 365

of the Income Tax Act [1995] PGSC3; SC482 does not support the argument proffered by the Appellant.

12. Further, compliance of Court Orders including mediation orders are not discretionary but mandatory. Therefore, for the Appellant to disregard item no. 6 of the Mediation Order has relevance in the proceeding.
    
13. As such the Appellant’s argument as to whether the primary judge took into account irrelevant matters in factoring item No. 6 of the Mediation Order from the different proceeding fails.
    
14. In the Church of Jesus Christ of Latter-Day Saints Inc. v Kimas [2022] PGSC 96; SC2280, it states at paragraph 14:
    

“I am also of the view that the learned trial judge’s decision went against another well settled legal position. An expression of that clear legal position is in the National Court Rules Order 1, rr.7 and 8. These provisions empower the Court in appropriate cases to dispense with strict compliance of the rules to do justice on the substantive merits of each case. Relevant decisions of the National and Supreme Court make this position by their clear views that the rules are only a means to an end and not an end in themselves..”

15. The primary judge did not commit an identifiable error in relation to application of the National Court Rules which are not a means unto themselves but focused on doing justice in matters.
    
16. The Courts have an obligation to ensure that there is no abuse of process through its mechanisms. See Arnold Amet v Peter Yama [2010] SC1064.
    
17. Further, the Court has inherent jurisdiction to dismiss proceedings summarily where there is an abuse of process. See Application for review pursuant to Section 155(2)(b) of the Constitution; Telikom (PNG) Limited v Kila Rava, Nicholas Paliou, Bernard Sui, Owen Boku and 23 other Ex-Employees of Telikom (PNG) Limited and Ida Basugari Palek and Maria Eginaka and Ravu Taviri and the Independent State of Papua New Guinea [2018] SC1694.
    
18. In Hunter v. Chief Constable of the West Midlands Police and Others [1981] UKHL 13; [1982] AC 529 it states:
    

“This is a case about abuse of the process of the High Court. It concerns the inherent power which any Court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; ......... It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.”

19. The primary judge did not err in law in exercising discretion to summarily determine a matter even on a Notice of Motion when relying on Order 12 Rule 40 (1) (a), (b), (c) of the National Court Rules.
    
20. In Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority—Lae and PNG Forest Authority [2001] N2085, it states:
    

“..This Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by statute. It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case. To this end, it is within the inherent jurisdiction of the Court to scrutinise the form and contents of documents before it. The State v Alphonse Wohuinangu [1991] N966.”

21. We see no evidence where the principles of natural justice as enunciated in s.59 of the Constitution is breached by the primary judge.
    
22. In Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v University of Papua New Guinea [2005] SC788, it states:
    

“The appellate Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of the discretion is clearly wrong. A discretionary judgement may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred...”

23. The Appellant fails to persuade this Court as to an identifiable error in the primary judge’s reasoning on the matter being time barred.
    
24. The Appellant also argues that there was a contravention of s. 37(11) of the Constitution.
    
25. In particular, s.37(11) states:
    

“A determination of the exercise or extent of a civil right or obligation shall not be made except by an independent and impartial Court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.”

26. We do not see the relevance nor accept the argument applying case law to there being a constitutional breach by the primary judge of the Appellant’s rights to having been fairly heard.
    
27. This argument is flawed and has no basis in fact or law as the primary judge afforded the Appellant the right to be heard.
    
28. In Bank South Pacific Ltd v Gibson Nad [2010] SC1278, the failure of the trial judge to afford parties the opportunity to make oral submissions amounted to the denial of their right to be heard.
    
29. The Appellant in this matter were afforded a right to be heard and the argument that they were not heard fails.
    
30. The Appellant also contends that the primary judge erred in mixed fact and law through applying the Court’s jurisdiction under Order 12 Rule 38 (1) of the National Court Rules when there was no evidence from the Respondents.
    
31. There was affidavit evidence of the Fourth Respondent and Sembeko Pind which indicated that the Appellant did not have a valid cause of action and the proceeding was an abuse of process based on the number of proceedings previously filed.
    
32. In this regard, we do not accept the argument by the Appellant that there was an error by the primary judge in application of the Court’s discretion under Order 12 Rule 38(1) of the National Court Rules.
    
33. The National Court under s. 155(4) of the Constitution states:
    

“(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

34. The clarity in the preceding paragraph is such that res ipsa loquitur. However, to ensure that there is no confusion, the National Court has jurisdiction to make orders that seem just and according to law.
    

CONCLUSION

34. The appeal fails on all grounds.

ORDERS OF THE COURT

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

Ordered accordingly.

________________________________________________________________
Young & Williams Lawyers: Lawyers for the Appellant
Wang Dee Lawyers: Lawyers for the Respondents