Mesulam Tomalana v Rabaul Pharmacy (Drug House of Papua New Guinea) [1991] PNGLR 65

• Jurisdiction: Papua New Guinea
• Judge: Ellis J
• Judgment Date: 15 February 1991
• Court: National Court
• Citation: [1991] PNGLR 65
• Year: 1991
• Judgement Number: N957

Full Title: Mesulam Tomalana v Rabaul Pharmacy (Drug House of Papua New Guinea) [1991] PNGLR 65

National Court: Ellis J

Judgment Delivered: 15 February 1991

N957

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MESULAM TOMALANA

V

DRUG HOUSE OF PAPUA NEW GUINEA

Rabaul

Ellis J

19 November 1990

15 February 1991

EVIDENCE — Admissibility — Magistrate's reasons for decision — Use in subsequent proceedings — Evidence Act (Ch No 48), s 44 (a).

EVIDENCE — Admissibility — Examined copy — What constitutes — Evidence Act (Ch No 48), s 44 (c).

EVIDENCE — Judicial notice — Published articles not within — Discussion of generally.

The Evidence Act (Ch No 48), s 44, provides:

"Evidence of:

(a) a judgment, decree, rule, order or other judicial proceeding of:

(i) a court of Papua New Guinea, the High Court or a Federal Court of Australia or a court of a State or Territory of Australia; or

(ii) a Judge, justice or magistrate of any such court; or

(b) an affidavit, pleading or legal document filed or deposited in any such court,

may be given in a court by the production of a document purporting to be a copy of it, and:

(c) proved to be an examined copy of it; or

(d) purporting to be sealed with the seal of the court; or

(e) purporting to be certified as a true copy by a registrar or chief officer of the court."

In proceedings claiming damages for negligence and breach of contract in relation to the consumption of what was thought to be methylated spirits, the plaintiffs sought to tender a copy of the reasons for decision of a District Court magistrate in prior criminal proceedings (in 1978) under the Poisons and Dangerous Substances Act 1952 (PNG). The reasons for decision so sought to be tendered were photocopies of the originals attached to an affidavit of the Chief Archivist.

Held

(1) The reasons for decision of the District Court magistrate were not admissible:

(a) for the purposes of s 44 (c) of the Evidence Act, a document photocopied from the original, supported by affidavit evidence of the person who did the photocopying that it is a true copy of the original may be regarded as an "examined copy";

(b) for the purposes of s 44 (a) of the Evidence Act, reasons for judgment of a magistrate are not a "judgment":

(i) the word "judgment" in s 44 (a) is to be interpreted ejusdem generis with the words "decree, rule, order" as applying to the result of proceedings;

Oscar Tugein v Michael Gotaha [1984] PNGLR 137, considered.

(ii) the subsection should be construed narrowly so as to avoid any manifest injustice;

Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; 6 ALR 271; Commissioner of Taxation (Cth) v Smorgon (1977) 143 CLR 499; 16 ALR 721; Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327; Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees' Federation (1917) 24 CLR 85; Bowtell v Goldsbrough Mort and Co Ltd (1906) 3 CLR 444; Brunton v Acting Commissioner of Stamp Duties (NSW) [1913] AC 747, applied.

(2) An article copied from a published Medical Journal was not admissible either as a matter of which judicial notice might be taken or as a business record pursuant to s 61 of the Evidence Act.

Discussion of the scope of judicial notice.

Cases Cited

Bowtell v Goldsbrough Mort & Co Ltd (1906) 3 CLR 444.

Brilliant Gold Mining Co v Craven (1898) 9 QLJ 144.

Brunton v Acting Commissioner of Stamp Duties NSW [1913] AC 747.

Ketsimur v Morerei [1987] PNGLR 325.

Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327.

Malone v Smith (1945) 63 WN (NSW) 54.

Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees' Federation (1917) 24 CLR 85.

Oscar Iugein v Michael Gotaha [1984] PNGLR 137.

Public Transport Commission (NSW) (formerly Commissioner for Railways v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; 6 ALR 271.

Rosher, Re (1884) 26 Ch D 801.

Taxation, Commissioner of (Cth) v Smorgon (1977) 143 CLR 499; 16 ALR 721.

Statement of Claim

These were proceedings in which the plaintiffs claimed damages for injuries said to have arisen from their consumption of a solution thought to be methylated spirits but which was alleged to have comprised 82 per cent methanol and 18 per cent isopropanol.

Counsel

D Manoka, for the plaintiff, in each action.

R Thompson, for the third defendant, in each action.

Cur adv vult

15 February 1991

ELLIS J: By consent, these 10 matters were heard together in a hearing confined to the issue of liability.

NATURE OF THE PROCEEDINGS

The pleadings suggested that during late May 1978 each of the plaintiffs purchased what was thought to be methylated spirits from the first defendant pharmacy which was at all relevant times under the direction and supervision of the second defendant pharmacist. The substance actually supplied was alleged to have been a solution of 82 per cent methanol and 18 per cent isopropanol, said to have been supplied by the fourth defendant, a Singaporean company, to the third defendant which operated a local paint factory. The subject pharmacy not having any or any adequate stocks of methylated spirits, a container was allegedly obtained from the paint factory with the unintended consequences which gave rise to both significant human suffering and this litigation.

Proceedings were commenced against all four defendants alleging negligence against all defendants and, additionally, breach of contract against the first and second defendants.

HISTORY OF THE PROCEEDINGS

The writs of summons were issued on 22 May 1984, barely within the limitation period, and were served shortly prior to the expiration of two years from that date of issue. Defences were filed a year later in the case of the first defendant and about two years afterwards in the case of the third defendant. Subsequently, the first defendant pharmacy cross-claimed against the third defendant paint factory and its suppliers, the fourth defendant. Soon afterwards the third defendant retaliated by cross-claiming against the first and fourth defendants.

In what may well be a record in this jurisdiction, 11½ years after the transactions in question, the Public Solicitor's Office filed a notice to set down for trial on 22 November 1989. Thereafter the proceedings stagnated until a directions hearing was held on 31 August 1990. Despite advance notice there was no appearance for the plaintiffs on that occasion and orders were made with the view to getting the matters ready for hearing. A thorough search revealed that the present 10 matters are the remnants of 17 matters originally commenced, others having been either discontinued or dismissed. Prior to the hearing on 19 November 1990 it was confirmed by the lawyer for the plaintiffs that the remaining proceedings were not pursued against either the second or fourth defendants thereby leaving only the first and third defendants (that is, the pharmacy and the paint factory) against whom damages were being sought.

Shortly prior to the hearing, the lawyer for the first defendant sought and was granted leave to withdraw. Hence, although the proceedings were pursued against two defendants, only one was represented.

AGREED STATEMENTS OF FACTS

The evidence upon which the plaintiffs relied comprised an agreed statement of facts and two affidavits. I set out in full the contents of the agreed statement of facts, originally dated 2 October 1990 but subsequently amended by agreement between the lawyers at a time when both the first and third defendants were legally represented:

"1. The plaintiffs will come from villages around Rabaul, East New Britain Province such as Rakunai, Vunalaiting, Rapitok No 4, Wairiki No 1, Malmaluan, Napapar No 4 and Vunapalading Settlement.

2. At all material times from 22/5/78 to 28/5/78 each of the plaintiffs and/or their agents purchased from the first defendant a 1 litre bottle containing a liquid solution described as methylated spirits.

3. At all material times the said bottles containing a liquid solution described as methylated spirits were sold by the first defendant and/or its agents over the counter to each of the plaintiffs and/or their agents.

4. The majority of the plaintiffs, apart from two (2) others had on previous occasions purchased from the first defendant either personally or through their agents similar 1 litre bottles containing methylated spirit and consumed it.

5. At the times specified in paragraph 2 hereof the plaintiffs or their agents purchased the 1 litre bottles each containing a liquid solution described as methylated spirits believing same to be methylated spirits, for consumption purposes.

6. At all material times the plaintiffs and/or their agents, whose ages ranged from 20 to 50 years, consumed the purported methylated spirits, sold to them and/or their agents by the first defendant, usually in groups of three (3) or more men at various social gatherings.

7. In all instances...