Peter Sharp v Warwick Andrew (2016) SC1797

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, Yagi & Polume-Kiele JJ
• Judgment Date: 24 October 2016
• Citation: (2016) SC1797
• Docket Number: SCA NO. 165 of 2014
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1797

Full Title: SCA NO. 165 of 2014; Peter Sharp v Warwick Andrew (2016) SC1797

Supreme Court: Hartshorn, Yagi & Polume-Kiele JJ

Judgment Delivered: 24 October 2016

SC1797

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 165 of 2014

BETWEEN:

PETER SHARP

Appellant

AND:

WARWICK ANDREW

Respondent

Waigani: Hartshorn, Yagi & Polume-Kiele JJ

2016: September 1st,

: October 24th

APPEAL – appeal against interlocutory decision of the National Court – application for security for costs – National Court Rules, Order 14 Rule 25(1)(a) – merit of the application dismissed – right of a party to be heard before a decision is made – whether the appellant was given the opportunity to be heard on the merit of the application – principles of natural justice - error of law – miscarriage of justice - appeal upheld – decision to dismiss the application set aside – application remitted for re-hearing.

Cases Cited:

Papua New Guinea Cases

Breckwold & Co. (NG) Pty Ltd v. Groyke [1974] PNGLR 106

The Government of Papua New Guinea and Richard Harold Davis v Stanley Barker [1977] PNGLR 386, SC123

Sir Julius Chan v The Ombudsman Commission of Papua New Guinea [1999] PNGLR 240

Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) PGNC 110, N2106

Jimmy Mostata Maladina v. Posain Polok (2004) N2568

Curtain Bros (PNG) Ltd v. University of Papua New Guinea (2005) SC788

Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd [1995] PGSC 7; (2005) SC 488

Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2006) SC 837 C L Toulik and C L Business Consultants Limited v Andy Kuek and Fincorp Limited (2006) SC 876

Gibson Nad v Bank South Pacific Limited (2010) SC 1278

Ramu Nico Management (MCC) Ltd v Tarsie [2010] PGSC 22; SC 1075

Clive Namuesh, an infant, by next friend Anton Namuesh v Dr. Kisom & Others SCA No. 80 of 2011 & SCA No. 81 of 2011, unreported and unnumbered, (Waigani dated 30 August 2013)

Vanimo Forest Products Ltd v Ossima Resources Ltd (2013) SC1275

Curlewis v Yuapa [2013] PGSC 54 SC1274

Overseas Cases cited

Conroy v. Conroy (1917) 17 SR NSW 681

House v The King [1936] HCA 40; (9136) [1936] HCA 40; 55 C.L.R 499

Australian Coal and Shale Employees Union v The Commonwealth [1953] HCA 25; (1956) 94 C.L.R 621

Will of Gilbert 1946 (NSW) LR 318

Kioa v West (1985) 159 CLR 550

RG v DG [2013] NTSC 66

Russell v Duke of Norfolk [1949] 1 All ER 109

Counsel

Mr. D. R. Copper QC, for the Appellant

Mr. G. Purvey, for the Respondent

DECISION

24th October, 2016

1. HARTSHORN J and YAGI J: This is a decision on an appeal from an interlocutory decision of the National Court that dismissed an application for the respondent to pay security for costs. Leave to appeal was granted on 28th August 2015.

Background

2. On 27th March 2013 the respondent instituted an action for damages against the appellant in the National Court in Waigani alleging that the respondent had been defamed as a result of statements allegedly made by the appellant to a reporter and which were subsequently republished in a daily newspaper.

Grounds of appeal

3. The appellant raised 6 grounds in this appeal claiming errors of law and fact in the decision. The grounds are:

“(A) The National Court failed to exercise its discretion according to law by dismissing the notice of motion with costs in the cause without first hearing the parties with respect to the issues considered by the Court to be relevant in determining if security for costs should be granted, and if so, in what amount.

(B) The National Court denied the appellant natural justice by dismissing the notice of motion with costs in the cause without first affording the parties the opportunity to make submissions to the Court in respect of whether security for costs should be granted, and if so, in what amount.

(C) Having found that the respondent/plaintiff was ordinarily resident outside of Papua New Guinea and in consequence Order 14 rule 25(1)(a) allowed the court to consider the exercise of its discretion as to whether and what amount of security may be ordered to be paid by the respondent/plaintiff the National Court erred in fact and law in finding that the notice of motion for security for costs had not been made promptly and, inter alia, had been moved eight months after it had been filed when the court ought to have found that the application for security had been made promptly and that it could not be moved for eight months because civil court 4 had failed to convene to hear that notice of motion.

(D) The National Court erred in finding that there had been a delay in moving the notice of motion for eight months when such delay was from the failure of the court to convene.

(E) The National Court erred in law and fact and law in finding that the security sought would nullify the proceedings of the respondent/plaintiff when there was no evidence to justify that conclusion and ought to have considered the amount of security that should be ordered in the circumstances.

(F) The National Court erred in fact and in law in failing to order that security for costs for the future conduct of the proceedings be provided in an appropriate amount.”

Issue

4. From a consideration of the above grounds and upon hearing the submissions on behalf of both parties the main issue presented for determination in this appeal is whether the parties, and in particular the appellant, were denied natural justice in respect to the arguments and submissions relating to the application for security for costs. We consider this issue first.

Submissions

5. The appellant submits that the primary Judge did not accord the parties an opportunity to be heard fully on all issues before determining the application. It is submitted that the parties had agreed at the outset to argue first the issue of whether the respondent was a non-resident of Papua New Guinea. If the Court found that the respondent was ordinarily resident in Papua New Guinea, the application would fail as a pre-condition under O14 r 25 (1) (a) National Court Rules would not have been met. If the Court found that the respondent was a non-resident, it would then proceed to hear further argument from the parties on the other issues that arise in a consideration of the application. The primary judge, being aware of this agreement, heard counsel on the residency issue, found that the respondent was a non-resident, but then proceeded to give his ruling dismissing the application without hearing further argument.

6. The respondent submits that all parties were given an opportunity to be, and were heard fully, on all issues before the primary judge made his decision. Further, the primary judge did not fall into error in the exercise of his discretion.

Consideration

7. Grounds of appeal A and B relate directly to the principle of natural justice whilst the other grounds concerns issues that go to the merits of the application in the Court below.

8. The appellant relied on a number of overseas cases which stand for the proposition that a denial of a right or opportunity by a party to present his submissions constitutes an error of law. The first is a High Court of Australia decision in Kioa v West (1985) 159 CLR 550 in which the following statement of principle was made:

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”

9. The other cases cited dealing with similar principles are RG v DG [2013] NTSC 66, a decision of the Supreme Court of the Northern Territory of Australia which applied the decision of the High Court in Kioa v West (supra) and a decision of Lord Justice Tucker in Russell v Duke of Norfolk [1949] 1 All ER 109.

10. In our view, it is not necessary to look beyond this jurisdiction to find sufficient case authority on the relevant principles of natural justice.

11. In Gibson Nad v Bank South Pacific Limited (2010) SC1278 the Supreme Court held that a failure to provide an opportunity to a party to be heard constitutes a procedural irregularity and a substantial miscarriage of justice. That case involved the failure by the trial judge to accord the parties an opportunity to be heard orally after the filing of written submissions at the conclusion of the trial. The Supreme Court in that case approved and endorsed the National Court decision in Jimmy Mostata Maladina v Posain Poloh (2004) N2568 which was essentially decided on the same principle. In that case a Committal Magistrate failed to give an opportunity to a defendant to be heard orally after the filing of written submissions.

12. The Supreme Court in Gibson Nad (supra) also referred to the Supreme Court decision in Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2006) SC 837. In that case the Court found a breach of natural justice based on very similar...