PNG Tropical Wood Products Ltd v Manuel Gramgari (2013) SC1145

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ, David and Logan, JJ
• Judgment Date: 18 December 2013
• Citation: (2013) SC1145
• Docket Number: SCA 11 of 2013
• Court: Supreme Court
• Year: 2013
• Judgement Number: SC1145

Full Title: SCA 11 of 2013; PNG Tropical Wood Products Ltd v Manuel Gramgari (2013) SC1145

Supreme Court: Salika, DCJ, David and Logan, JJ

Judgment Delivered: 18 December 2013

SC1145

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 11 of 2013

BETWEEN

PNG TROPICAL WOOD PRODUCTS LTD

Appellant

AND

MANUEL GRAMGARI

Respondent

Waigani: Salika, DCJ, David and Logan, JJ

2013: 16 and 18, December

APPEAL – Practice & Procedure – Appeal from National Court – Pleadings – Material facts sufficient to ground cause of action in trespass pleaded in statement of claim - trespass

Cases Cited:

Papua New Guinea Cases

Cresseri and Korowi v Halla Resources Corporation [1985] PNGLR 294

Uma More v. University of Papua New Guinea [1985] PNGLR 401

Overseas Cases

Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 32 FCR 379

Dare v Pulham (1982) 148 CLR 658

Konskier v B Goodman Ltd [1928] 1 KB 421

Philip Morris Inc v Adam P Brown Make Fashions Pty Ltd (1981) 148 CLR 457

Counsel:

Mr K J Peri, for the Appellant

No appearance for the Respondent

18th December, 2013

1. BY THE COURT: The National Court Rules, Order 8, rule 8(1) provide that, “A pleading of a party shall contain only a statement in summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved.” In so doing, that rule states for Papua New Guinea’s superior court of general jurisdiction a practice with respect to pleading which has come to prevail throughout the English common law world since the late 19th century Judicature Acts (Supreme Court of Judicature Act 1873 (UK) and Supreme Court of Judicature Act 1875 (UK)) and the rules of court subsequently made following those Acts by the High Court of Justice for England and Wales. This appeal raises an important point of practice and procedure concerning what one might term post-judicature pleading. The question for resolution arises in the following way.

2. Mr Gramgari, the plaintiff below and the respondent to the appeal, pleaded in the statement of claim facts which were sufficient to ground a cause of action in trespass against PNG Tropical Wood Products Ltd (TWPL), one of the defendants below and the appellant in this appeal. By that we mean that the plaintiff alleged that he was the lawful owner of the land in question, that TWPL had entered his land so as to conduct forestry operations, that this entry and those operations occurred without authority either by his permission or by permit under statute and that, in so doing, TWPL had harvested valuable timber and caused environmental damage. He claimed royalties in respect of timber taken and damages. He did not, in terms, use the word, “trespass” in the statement of claim. Instead, he characterised the facts pleaded as giving rise to alleged causes of action against TWPL constituted by contraventions of the Forestry Act 1991 (PNG) and the Environment Act 2000 (PNG).

3. The learned trial judge found that, on the evidence, the two statutes mentioned had been contravened but that neither gave rise to a cause of action maintainable by a private individual, as opposed to liability to a penalty in the event that proceedings were instituted against TWPL by a public official. His Honour also found that each of the elements of a claim in trespass had been proved by Mr Gramgari as against TWPL. He therefore found that liability to damages had been proved and reserved to a later date the assessment of those damages. TWPL now appeals by leave against the judgement in respect of liability. A grant of leave was necessary because the judgement in respect of liability alone was interlocutory.

4. In the National Court TWPL submitted that a failure on the part of Mr Gramgari to refer to trespass in his statement of claim was fatal to his ability to make the company liable in damages for trespass. It is this proposition which grounds the appeal.

5. The trial judge rejected this proposition, holding that a claim for damages in trespass could be inferred from the material facts pleaded in the statement of claim. His Honour stated:

“Despite the absence of the word "trespass" the essence of the plaintiff's claim is unlawful entry by the defendants upon land that he claims is his, damage to that land and consequential pain and suffering by the plaintiff. As Bredmeyer J stated in Cresseri and Korowi v Halla Resources Corporation [1985] PNGLR 294 the function of pleadings is to give fair notice to a defendant of the case which has to be met and to define the issues which the court will have to decide. I agree with Mr Tenige that it would have been preferable for the statement of claim to have expressly referred to trespass and to have spelt out the elements of the cause of action more clearly, but I do not think it can fairly be said that the defendants have been taken by surprise by being required to answer an allegation of trespass. The statement of claim gave fair notice of the case that the defendants had to meet and adequately defined the issues that had to be decided by the court. The defendants' defence addresses the elements of a cause of action in trespass by challenging the plaintiff's ownership of the land and the assertions, that they unlawfully entered the land and interfered in the plaintiff's enjoyment of it. The claim for liability in trespass is properly before the court.

6. In expressing in Cresseri and Korowi v Halla Resources Corporation [1985] PNGLR 294 at 298 the view that, “the function of pleadings is to give fair notice to a defendant of the case which has to be met and to define the issues which the court will have to decide” Bredmeyer J, was expressing a view shared by the other members of the court, Amet and Los JJ. That view was not, as will be seen, idiosyncratic.

7. When it is recalled that the rules require no more and no less than that a pleading must state material facts it can be seen that a pleading serves to put the opposing party on notice as to the factual case that party must meet. In this sense, a pleading serves the end of ensuring a procedurally fair trial. It also gives the opposing party an opportunity to decide, whether that party may be liable in law or, as the case may be, have a good defence on the pleaded facts such that the case ought to be conceded or compromised in some way. A pleading also alerts the court, when read in conjunction with the opposing party’s pleading, to the factual issues which will fall for adjudication. In that adjudication, the court must apply the law to the facts as found. In so doing, the court is not bound by whatever characterisation in law of those facts the party may have incorporated into the pleading. If, truly, the facts pleaded do establish a cause of action known to law then the court is obliged so to conclude.

8. The correct position with respect to post-judicature pleading was stated by Barwick CJ in Philip Morris Inc v Adam P Brown Make Fashions Pty Ltd (1981) 148 CLR 457 at 472-473:

“It is worth observing at this point that in what has come to be known as judicature or fact pleading, it is not necessary for the pleader to set out or to limit himself to a cause or causes of action which he asserts as a basis for the relief he claims. Indeed, he need not specify a cause of action (using that expression in the pre-judicature sense) at all: it is sufficient that he alleges the facts he seeks to prove and the relief he claims. Of course, no pleading will be supportable if those facts cannot support a right...