Kawaso Ltd v Oil Search PNG Ltd (2012) SC1218

• Jurisdiction: Papua New Guinea
• Judge: Gavara—Nanu, Kariko & Logan JJ
• Judgment Date: 29 February 2012
• Citation: (2012) SC1218
• Docket Number: SCA 77 OF 2010
• Court: Supreme Court
• Year: 2012
• Judgement Number: SC1218

Full Title: SCA 77 OF 2010; Kawaso Ltd v Oil Search PNG Ltd (2012) SC1218

Supreme Court: Gavara—Nanu, Kariko & Logan JJ

Judgment Delivered: 29 February 2012

SC1218

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 77 OF 2010

BETWEEN:

KAWASO LTD

Appellant

AND:

OIL SEARCH PNG LTD

Respondent

Waigani: Gavara – Nanu, Kariko & Logan JJ

2012: 29 February

PRACTICE AND PROCEDURE – default by appellant in complying with court order to answer interrogatories – intentional non-compliance with that order – principles governing appeal against exercise of judicial discretion in respect of matter of practice and procedure – no error of principle in exercise of discretion – appeal dismissed with costs.

Cases Cited:

Papua New Guinea Cases

Bean v Bean [1980] PNGLR 307 cited

Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC 828 cited

Curtain Brothers (PNG) Ltd v UPNG (2005) SC 78 cited

Telikom PNG Ltd v ICCC (2008) SC 906 cited

Overseas Cases

Attorney-General v Gaskill (1882) 20 Ch D 319 applied

Air Marshal McCormack v Vance [2008] ACTCA 16 cited

Birkett v James [1978] AC 297 not followed

Danvillier v Myer [1883] WN 58 cited

Lyell v Kennedy (1883) 8 App Cas 217cited

Commonwealth of Australia v Lewis [2007] NSWCA 127 cited

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 followed

Legislations Referred to

Supreme Court Act 1975, s14 (3) (b)

National Court Act 1975, s9

National Court Rules 1983, Order 9 rules 21 and 25 (1)

Counsel

Mr. Mann-Rai, for the Appellant

Mr. T Anis, for the Respondent

REASONS FOR JUDGMENT

29 February, 2012

1. BY THE COURT: On 3 June 2010, upon an application by the respondent, Oil Search (PNG) Ltd (Oil Search) pursuant to Order 9, rule 25(1) of the National Court Rules (NCR), the National Court (Hartshorn J), ordered that a proceeding brought in that court by the appellant, Kawaso Ltd (Kawaso) be dismissed in its entirety and that Kawaso pay Oil Search’s costs of and incidental to those proceedings. The basis for those orders was a default by Kawaso in complying with an order made by the National Court on 5 March 2010 requiring it to provide by 17 March 2010 answers to the interrogatories set out in Oil Search’s notice to answer interrogatories dated 3 December 2009.

2. Kawaso has appealed against the order of dismissal. As will be seen, not all of its grounds of appeal engage with that order of dismissal. Further, in the absence of an objection to competency expressly raising the point, we were not called upon to determine whether or not this particular type of order of dismissal is truly to be regarded as final, as opposed to interlocutory. If the latter, a grant of leave to appeal would be required (s 14(3)(b), Supreme Court Act 1975, Chapter 37) and, in the absence of such a grant, the appeal would be incompetent. The point not having been raised, we consider that in this particular case the interests of justice are served by proceeding on the assumption that the order made below is to be characterised as a final judgment of the National Court. In so doing, we expressly leave open, as unnecessary in this case to determine, the correctness of that assumption.

3. The grounds of appeal are as follows:

The learned trial Judge erred in law (or mixed fact and law) when His Honour;

3.1. refused the Appellant’s application seeking leave to dispense with the requirements of three (3) clear days service of the Appellant’s Notice of Motion filed on 15 April 2010 short served on the Respondent’s lawyer on 16 April 2010 before the Respondent’s application seeking dismissal of the proceeding was made in that His Honour failed to consider that there were ample reasons justifying a dispensation of the requirements for service as the Appellant’s Notice of Motion seeking leave to file answers to interrogatories was crucial to the entire proceedings which suffered an order for dismissal;

3.2. refused the Appellant’s alternative application to adjourn the matter including the Appellant’s Notice of Motion filed on 15 April 2010 and the Respondent’s Notice of Motion seeking dismissal of the proceeding to a later date to be dealt with concurrently when there were ample reasons advanced justifying an adjournment as the Appellant’s claim was a genuine claim which warranted a full hearing by trial on its merits;

3.3. finding that there were no reasonable excuse for not providing the answers to the interrogatories when there were ample reasons disclosed in that the Managing Director of the Appellant Mr. Kossy Sosoro had been away on very important customary obligations due to a death of a very important member of his clan the late Mr. Kapi Nato and as such the delay in complying with the court order and or directions was not intentional so as to attract a severe consequence of dismissal of the proceeding under Order 9 Rule 25 National Court Rules;

3.4. finding that the circumstances existed showed a lack of good faith on the part of the Appellant in its compliance with the interrogatory procedure and the court order when there were genuine and ample reasons justifying the delay and as such the dismissal of the proceeding under Order 9 Rule 25 National Court Rules;

3.5. finding that the circumstances existed showed a lack of good faith on the part of the Appellant and dismissing the entire proceedings when the Respondent and or their lawyers had themselves on more than one occasions failed to comply with previous court directions to this effect and as such the proceedings should not have been dismissed under Order 9 Rule 25 National Court Rules;

3.6. finding that there was non-compliance with the orders and or directions of the Court by the Appellant without allowing the defaulting party (Appellant) any or any real opportunity to give an explanation as to the default or non-compliance when such explanation would have been genuine and reasonable in the circumstances and as such the proceeding should not have been dismissed under Order 9 Rule 25 National Court Rules;

3.7. dismissed the Appellant’s proceeding at the National Court when the answers to the interrogatories sought after by the Respondent were ready and available at all material times and or were already within the knowledge of the Respondent and as such the interrogatory procedure commenced or instigated and insisted upon the Respondent were unnecessary. [sic]

4. Before turning to the merits of these grounds it is necessary to make reference to the nature of the proceeding brought by Kawaso in the National Court and to relevant events in the course of that proceeding leading up to the order of 3 June 2010.

5. Kawaso commenced the proceeding by writ on 5 March 2009. In that proceeding it sought damages in the total sum of K5,413,506.00 in respect of alleged underpayment over the period 2002 to 2008 of successively annually renewed contracts with Oil Search for the performance of janitorial services. Having regard to the pleadings and apart from limitation of action, proper law and contractual construction issues, there was an issue on the pleadings as to the rates which were from time to time applicable to the services performed under the annual contracts.

6. It was common ground on the hearing of the appeal that the following chronology, offered by the learned primary judge in his reasons for judgment (para 4), was accurate and material:

· 3 December 2009	- Oil Search’s notice to answer interrogatories is served upon the lawyers for Kawaso,
· 12 December 2009	- Kawaso’s lawyers request an extension of time,
· 21 December 2009	- the time for Kawaso to provide answers expires,
· 12 & 13 January 2010	- Kawaso’s lawyers request copies of Oil Search’s discovered documents,
· 28 January 2010	- Oil Search informs that if answers are not received within 5 days, an application to dismiss the proceeding will be made,
· 15 February 2010	- Oil Search files motion for answers to be provided,
· 16 February 2010	- motion is served upon Kawaso’s lawyers,
· 5 March 2010	- after 2 adjournments for non-attendance of counsel for Kawaso, Kawaso is ordered to provide its answers by 17 March 2010 and the motion is adjourned to the 17 March 2000,
· 17 March 2010	- there is no appearance on behalf of Kawaso and no answers are filed,
· 19 March 2010	- the present motion seeking dismissal is served upon Kawaso’s lawyers.

[sic]

7. To this chronology, the following additional events should be added, having regard to the grounds of appeal. On 15 April 2010 Kawaso filed a notice of motion seeking leave to file answers to interrogatories and a related abridgement of the time prescribed by the NCR for the service of such a notice of motion. That notice of motion was not served until 16 April 2010, which was the adjourned return date, to which the parties had consented on 26 March 2010, for the hearing of Oil Search’s dismissal application. Also on 16 April 2010 and in the alternative, Kawaso sought...