Severinus Ampaoi and James Tauriko v Bougainville Copper Limited (2012) SC1166

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, Mogish & Makail, JJ
• Judgment Date: 01 March 2012
• Court: Supreme Court
• Citation: (2012) SC1166
• Docket Number: SCA NO 20 OF 2003
• Year: 2012
• Judgement Number: SC1166

Full Title: SCA NO 20 OF 2003; Severinus Ampaoi and James Tauriko v Bougainville Copper Limited (2012) SC1166

Supreme Court: Kirriwom, Mogish & Makail, JJ

Judgment Delivered: 1 March 2012

SC1166

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 20 OF 2003

BETWEEN

SEVERINUS AMPAOI

First Appellant

AND

JAMES TAURIKO

Second Appellant

AND

BOUGAINVILLE COPPER LIMITED

Respondent

Waigani: Kirriwom, Mogish & Makail, JJ

2011: 02nd March

2012: 01st March

SUPREME COURT - PRACTICE & PROCEDURE - Application for judgment - Judgment by admissions - Summary Judgment - Distinction of - Principles of - National Court Rules - Order 9, rule 30 & Order 12, rule 38.

SUPREME COURT - PRACTICE & PROCEDURE - Judgment by admissions - Application of - Exercise of discretion - Onus on applicant to show a clear and unanswerable case - Serious issues of law and fact raised in pleadings and evidence - Appeal dismissed - National Court Rules - Order 9, rule 30 & Order 12, rule 38.

Facts

The appellants applied for judgment by admissions or summary judgment in the sum of K1.466 million against the respondent pursuant to O 9, r 30 and O 12, r 38 of the National Court Rules. They alleged, among other reasons, the respondent had made admissions in its defence, and that, there was uncontested evidence that the respondent owed that sum of money. They further alleged the money was compensation in respect of their Special Mining Lease (SML) at Panguna on the island of Bougainville. The National Court refused the application for judgment. They appealed against the refusal of judgment.

Held:

1. An application for judgment by admissions under O 9, r 30 of the National Court Rules and application for summary judgment under O 12, r 38 of the National Court Rules are two distinct applications. Alfred Alan Daniel -v- Pak Domoi Ltd (2009) SC970 and Imawe Bogasi Land Group Inc -v- Bank South Pacific Limited and Toale Hongiri ILG & Ors (2011) SC1102 referred to. (per Makail, J).

2. According to O 9, r 30(1) of the National Court Rules, judgment may be entered against a party where admissions are made by the party in his pleadings or otherwise. The phrase “otherwise” covers other circumstances where admissions are made by the party such as affidavits, letters or answers to interrogatories. Alfred Alan Daniel -v- Pak Domoi Ltd (2009) SC970, John Kul -v- The State (2010) N3898 and TNA Limited -v- Paul Kua & Kongo Coffee Limited (2011) N4225 referred to. (per Makail, J).

3. For judgment by admissions to be granted, an applicant must show a clear and unanswerable case or the admissions must be strong and unambiguous. Alfred Alan Daniel -v- Pak Domoi Ltd (2009) SC970, Imawe Bogasi Land Group Inc -v- Bank South Pacific Limited and Toale Hongiri ILG & Ors (2011) SC1102, TNA Limited -v- Paul Kua & Kongo Coffee Limited (2011) N4225 and Dep International Private Limited -v- Ambogo Sawmill Pty Limited [1987] PNGLR 117 referred to. (per Makail, J).

4. Summary judgment will not be granted where there are serious issues of law and fact raised either in the pleadings or evidence. It will only be granted in very clear cases. Imawe Bogasi Land Group Inc -v- Bank South Pacific Limited and Toale Hongiri ILG & Ors (2011) SC1102 and Chief Collector of Taxes -v- TA Field Pty Limited [1975] PNGLR 144 referred to. (per Kirriwom, J & Makail, J).

5. In the present case, the primary judge properly refused judgment by admissions because the appellants had failed to show a clear and unanswerable case or the admissions were strong and unambiguous. The alleged admissions in the pleadings and evidence of the alleged debt by the respondent were vague and ambiguous. (per Makail, J).

6. Further, the primary judge properly refused summary judgment as there were serious issues of law and fact raised in the pleadings and evidence of parties in relation to the alleged debt by the respondent. (per Kirriwom, J & Makail, J).

7. A joinder applicant raising serious allegations of fraud against the appellants in securing consent for representative action by the appellants on behalf of the landowners clearly demonstrated that there was an arguable case to go to trial and therefore had to be joined ( per Kirriwom, J).

8. The appeal was dismissed with costs.

Cases cited:

Bruce Tsang -v- Credit Corporation (PNG) Limited [1993] PNGLR 112

Commissioner for Internal Revenue -v- Bougainville Copper Limited (2009) N3988

CL Toulik and CL Business Consultant Limited -v- Andy Kuek and Fincorp Limited (2006) SC876

Alfred Alan Daniel -v- Pak Domoi Ltd (2009) SC 970

Chief Collector of Taxes -v- TA Field Pty Limited [1975] PNGLR 144

John Kul -v- The State (2010) N3898

TNA Limited -v- Paul Kua & Kongo Coffee Limited (2011) N4225

Imawe Bogasi Land Group Inc -v- Bank South Pacific Limited and Toale Hongiri ILG & Ors (2011) SC1102

Dep International Private Limited -v- Ambogo Sawmill Pty Limited [1987] PNGLR 117

Counsel:

Mr B Ovia, for the First Appellant

No appearance, for the Second Appellant

Messrs E Anderson and M Mukwesipu, for the Respondent

01st March, 2012

JUDGMENT

1. KIRRIWOM, J: The appellants have appealed against the decision of the National Court refusing their application for summary judgment pursued under Order 12, Rule 38 of the National Court Rules. Before the commencement of the hearing it was noted that the second appellant was not present to prosecute the appeal, either in person or by counsel. He is represented by lawyers and the relevant notice for the hearing was duly served on him and his lawyers as per the affidavit of service in the file. His absence without explanation to the Court is hereby deemed that he has abandoned his appeal. The appeal is therefore pursued by the first appellant alone.

2. A preliminary application was moved orally by counsel for the respondent, Bougainville Copper Ltd, seeking the Court’s powers under s. 6(1) (a) Supreme Court Act to introduce in this appeal certain documents that were not part of the proceeding in the Court below at the time of summary judgment application. We gave unanimous decision allowing these affidavits into the appeal for consideration while deliberating on this appeal. Our decision was formally delivered in favour of the respondent and we allowed the application. I reproduce below part of our reasons for so ruling.

“1. There is no evidence to show what the amount is for, to whom it should be paid and for which the respective heads of compensation should it come under. The best the 1991 report shows is the respondent responsibly put away money for its various obligations under its operations of the mine in Bougainville. The report does not say it is for the damages pursued by the appellants in the court proceedings.

2. It is argued that the National Court could not grant judgment based on admission as there is no clear admission of the amount due and owing to the appellants. Any alleged admissions in the pleadings or the 1991 annual report is ambiguous and requires further investigation by the Court.

3. The power to grant summary judgment is discretionary and the court is entitled to refuse the application. In this matter there was more good reason to refuse judgment and allow the other interested parties to be involved especially when the matter involved landowners in Bougainville seeking compensation arising from the mine.

4. Even if court accepts that the appellants were not heard properly on its application for summary judgment the proper course is to remit the matter back to National Court for hearing. It should not grant summary judgment if as the appellants say they were not properly heard in the application for summary judgment.”

Background

3. The background to this appeal can be explained as follows. The appellants were plaintiffs in the proceeding in the National Court commenced by way of originating summons seeking substantially declaratory orders in representative capacities on behalf of themselves and other landowners of the then Bougainville Copper Ltd land where a huge mine then operated prior to its closure in 1989.

4. Their purported authority to act on behalf of these other landowners whose names were contained in a list of names and whose consent are said to be represented by their signatures beside their names. There were also names without signatures besides them.

5. Some years after the commencement of the proceeding under originating summons, the action then took a different shape when a statement of claim was filed setting out the pleadings. The relief sought in the statement of claim changed the nature of proceeding from one of seeking declaratory orders to one of claim to be paid to the plaintiff.

6. In the course of the pleading there appeared to be admission made by the respondent of having set aside K1.466 million as compensation for the landowners after the mine closed which the mining warden was to determine the quantum for each landowners since the issues pending the proceedings were resolved.

7. This understanding was then codified into a consent order signed by the lawyers representing the two appellants and...