Rakatani Mataio v Jack Avu August and The Independent State of Papua New Guinea and Robert Volo (2014) SC1361

• Jurisdiction: Papua New Guinea
• Judge: Waigani: Cannings J, Gabi J, Hartshorn J
• Judgment Date: 04 July 2014
• Court: Supreme Court
• Citation: (2014) SC1361
• Docket Number: SC1361SCA NO 83 0F 2013
• Year: 2014
• Judgement Number: SC1361

Full Title: SC1361SCA NO 83 0F 2013; Rakatani Mataio v Jack Avu August and The Independent State of Papua New Guinea and Robert Volo (2014) SC1361

Supreme Court: Waigani: Cannings J, Gabi J, Hartshorn J

Judgment Delivered: 4 July 2014

SC1361

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 83 0F 2013

RAKATANI MATAIO

Appellant

V

JACK AVU AUGUST

First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

ROBERT VOLO

Third Respondent

Waigani: Cannings J, Gabi J, Hartshorn J

2014: 2, 4 July

PRACTICE AND PROCEDURE – dismissal of proceedings on own initiative of National Court – whether Court obliged to put plaintiff on notice of Court’s consideration of question of dismissal – principles of natural justice – whether Court obliged to state jurisdictional basis of order for dismissal of proceedings.

The plaintiff in National Court proceedings applied by notice of motion for default judgment on the ground that the defendants failed to file a defence. The Court, after hearing the motion, refused the application for default judgment and dismissed the entire proceedings for three reasons: (a) as being incompetent for non-compliance with Section 5(2) of the Claims By and Against the State Act, (b) as being statute-barred under Section 16(1) of the Frauds and Limitations Act and (c) as the pleadings were incontestably bad. The plaintiff appealed to the Supreme Court against the order for dismissal on two grounds: (1) failure to give him an opportunity to be heard as to why the proceedings should not be dismissed; (2) error of law in finding that the Claims By and Against the State Act was not complied with and that the claims were statute-barred.

Held:

(1) If a Court is giving consideration on its own motion to dismissing proceedings it must, in order to discharge its duty to conduct its proceedings in accordance with the principles of natural justice (the minimum requirements being to act fairly and be seen to act fairly), put the plaintiff on notice that consideration is being given to the question of dismissal (Mahon v Air New Zealand Ltd [1984] 3 All ER 201).

(2) The notice given must be sufficient to enable the plaintiff to fully appreciate the possible consequences and to prepare and make submissions to the Court; and the notice would normally be expected to include a reference to the jurisdictional basis on which an order for dismissal might be made.

(3) Here the Court did not put the plaintiff on notice that consideration was being given to the question of dismissal. The plaintiff was consequently not given the opportunity to address the Court on issues pertaining to the question of dismissal. This was a breach of the principles of natural justice. Ground (1) was upheld and that was a sufficient basis on which to allow the appeal.

(4) It was unnecessary to consider the second ground. The appeal was allowed and the proceedings were remitted to the National Court.

Cases cited

Papua New Guinea Cases

Bernard Steven Philipae v Atio Igaso (2011) N4366

John Yula Andma v Timothy A Morasa (2013) N5224

Overseas Cases

Mahon v Air New Zealand Ltd [1984] 3 All ER 201

APPEAL

This was an appeal against an order of the National Court which dismissed the entire National Court proceedings.

Counsel

N Kera, for the appellant

T Tanuvasa & V Vate, for the respondents

4th July, 2014

1. BY THE COURT: Rakatani Mataio appeals against the dismissal by the National Court of proceedings he commenced against the Chief Magistrate, the State and a Police officer.

2. In WS No 1096 of 2011 the appellant claimed damages for unlawful termination from employment, malicious prosecution, defamation and breaches of human rights. He applied by notice of motion for default judgment on the ground that the respondents failed to file a defence. The Court, on 7 July 2013, refused the application for default judgment and dismissed the entire proceedings (a) as being incompetent for non-compliance with Section 5(2) of the Claims By and Against the State Act, (b) as being statute-barred under Section 16(1) of the Frauds and Limitations Act and (c) as the pleadings were incontestably bad. The following order was entered:

1 The plaintiff’s application for default judgment is refused.

2 The proceeding is dismissed.

3 The plaintiff pay the defendants’ costs.

4 Time is abridged.

THE APPEAL

3. The appellant appeals against order Nos 2 and 3. He does not challenge order No 1, refusal of the application for default judgment, or order No 4. He appeals on two grounds (1) failure to give him an opportunity to be heard as to why the proceedings should not be dismissed; (2) error of law in finding that the Claims By and Against the State Act was not complied with and that the claims were statute-barred.

NATURAL JUSTICE

4. It is undisputed that the National Court, along with all other courts in the National Judicial System, is obliged to conduct its proceedings fairly, in accordance with the principles of natural justice (Bernard Steven Philipae v Atio Igaso (2011) N4366, John Yula Andma v Timothy A Morasa (2013) N5224). This is a fundamental obligation arising not only under the underlying law but also because it is one of the Basic Rights conferred by Section 37(11) (protection of the law) of the Constitution, which states:

A determination of the existence 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. [Emphasis added]

5. The duty of a court to accord natural justice to parties and to conduct its proceedings fairly is reinforced by Section 59 (principles of natural justice) of the Constitution, which states:

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

6. The principles of natural justice and procedural fairness must be given practical effect in every court proceeding. In the present case, this simple but fundamental practice, emphasised by the Privy Council in Mahon v Air New Zealand Ltd [1984] 3 All ER 201, should have been invoked: if a court (or tribunal or a commission of inquiry, as in Mahon) is considering, on its own motion, making any finding, order or other decision adverse to any of the parties to the proceedings, it must put the party on notice that consideration is being given to such a decision so...