Stephen John Rose and John Charles Harrison v The Independent State of Papua New Guinea (2007) N3241

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 09 November 2007
• Court: National Court
• Citation: (2007) N3241
• Docket Number: WS NO. 1371 OF 2006
• Year: 2007
• Judgement Number: N3241

Full Title: WS NO. 1371 OF 2006; Stephen John Rose and John Charles Harrison v The Independent State of Papua New Guinea (2007) N3241

National Court: Gavara–Nanu, J

Judgment Delivered: 9 November 2007

N3241

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1371 OF 2006

BETWEEN:

STEPHEN JOHN ROSE & JOHN CHARLES HARRISON

Plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Waigani: Gavara-Nanu, J

2007: 18 October

& 29 November

JUDGEMENTS & ORDERS – National Court Rules, O 8 r 59 (1) – Correcting a clerical mistake or error – Actual orders at variance with the minute of the actual orders and the Certificate of Judgment – Errors in the minute made deliberately by a party – Subsequent variation of actual orders by the Court made after judgment was entered – Actual orders and the subsequent variation to those orders by the Court made in two different proceedings – Power of the Court to correct clerical mistakes or errors –Consequential orders.

Cases cited

Papua New Guinea Cases

Charles Maino v. Moi Avei SC648

Isidore Kaseng v. Michael Debege N2735

Orogen Minerals Ltd .v. Internal Revenue Commission N2467

Ralph Rakhinand Premdas v The State (SCR No.1 of 1979) [1979] PNGLR 329

Supreme Court Reference No.1 of 1997 SC 526

The State & Ors v. Brian Josiah & Ors SC 792

Wallbank and Mimifie v. The State [1994] PNGLR 78

Overseas cases

Autodesk Inc. Dyason (No.2) (1993) 67 CLR 270

Bailey v. Marinoff (1964) 125 CLR 529

Hall v. Harris (1900) 25 VLR 455

Hatchinson v. Nominal Defendant [1972] 1 NSWLR 443

Hatten v. Harris [1892] A.C 560

Ivanhoe Gold corp. Ltd v. Symonds (1906) CLR 642

Lawrie v. Lees (1881) 7 App Cas 19

Muir v. Jenks [1913] 2 KB 412

R v. Cripps, ex parte Muldoon and Others [1984] 2 All ER 705

Shaddock & Assocs Pty Ltd v. Paramatta City Council (1982) 151 CLR 590

Tauro v. Tauro (1897) 14 WN (NSW) 113

Vitous v. Tuohill [1964] VLR 624

Woods v. Sheriff of Queensland (1895) 6 QLJ 163

Counsel

Plaintiffs – In person

K. Kua, for the defendant

1 gavara-nanu, J: This is an application by the defendant made pursuant to Order 8 r 59 (1) of the National Court Rules seeking orders to correct clerical errors which the defendant says are in the minute of the orders made by Sakora, J on 12 February, 2007, which were entered on 14 February, 2007, for which a Certificate of Judgment was issued by the Registrar of the National Court on 20 February, 2007. The orders of 12 February, 2007 granted default judgment with damages to be assessed. The defendant says as a result of the errors, the minute and the Certificate of Judgment do not reflect the true intention of the actual orders pronounced by the Court on 12 February, 2007.

2 The Certificate of Judgment is Annexure ‘F’ to the affidavit of the Acting Solicitor General, Mr. Neville Devete. The defendant says, the above errors resulted in Mr. Devete being found guilty of contempt of Court on 5 October, 2007. The defendant relies upon two affidavits, one by Mr. Devete and the other by the Secretary for Justice, Ms. Hitelai Polume Kiele, both sworn on 15 October, 2007.

Background facts

3 To better appreciate the issues, it is appropriate that I set out the background facts giving rise to this application. In the Statement of Claim endorsed to the Writ of Summons filed on 22 September, 2006, the plaintiffs claim the following relief:

AND THE PLAINTIFFS THEREFORE CLAIM:-

38. (i) Special Damages of AUD$4,940,125.00

(a) General Damages for hardship, frustration, and stress associated (b) with breach of contract.

(a) Interest pursuant to the Judicial Proceedings (Interest on Debts (b) and Damages Act).

(ii) Such other orders as the Court deems necessary.

4 The plaintiffs’ claims arise out of a claim that the defendant breached a consultancy Agreement entered into between them in about April, 2002. As it can be seen from the relief sought, the plaintiffs claim a liquidated amount of AUD$4,940,125.00 and general damages with interest.

5 Following default by the defendant to file its Notice of Intention to Defend and Defence by 25 January, 2007, the plaintiffs filed a Notice of Motion seeking default judgment. The Notice of Motion came before Sakora, J on 12 February, 2007, and after hearing the plaintiffs, his Honour granted orders for default judgment to be entered with damages to be assessed at a later time. It is to be noted that before the grant of these orders, the lawyer for the defendant, Mr. Markus Nandape applied for an adjournment to 1.30pm on the basis that he did not have the carriage of the matter and he did not have his office file with him. The adjournment was to allow him to make representation on the plaintiffs’ application, but his Honour refused the application. The lawyer for the defendant was therefore not heard on the plaintiffs’ application. Thus, the orders were made without the defendant being heard.

6 The relevant parts of the transcript of the proceedings on 12 February 2007, appear in Annexure ‘D’ to Mr. Devete’s affidavit, more particularly at pages 5 to 9. It is noted from the transcript that Mr. Nandape made a determined application for an adjournment. It is noted that one other reason given by Mr. Nandape for his application for adjournment was that he knew nothing about the case, and that an adjournment would give him time to look at his file and be in a position where he could properly assist the Court in deciding the plaintiffs’ application. He also told the Court that an adjournment would not prejudice the plaintiffs. After refusing Mr. Nandape’s application, his Honour granted the orders and the gist of those orders appears at page 8 of the transcript, where his Honour said:

“…The Court grants the order sought, that is for entry of default judgment pursuant to O 12 r 25, r26 and r 28, Mr. Rose and Mr. Nandape. There has to be assessment of damages, gentlemen. But judgment on liability is ordered to be entered and all those matters you claim, Mr. Rose, will have to be – unfortunately, you have to go to Court to put material evidence before the court for assessment.

7 These orders were immediately queried by Mr. Rose, who appeared for the plaintiffs on the Notice of Motion. The exchange of comments that followed between Mr. Rose and his Honour appear at pages 8 and 9 of the transcript and they appear as follows:

MR ROSE: Your Honour could I ask this. The unliquidated part of this claim that the State has failed since 2002 is AUD$4,900,000 and I think $40 plus interest at 8 per cent per annum which is about-----

HIS HONOUR: Hold on. Let me have a look at the -----

MR ROSE: I think that is the liquidated claim and I think the State should pay that.

HIS HONOUR: Your writ of summons. Where are we? 4,940,125?

MR ROSE: Yes that is right. That is correct, your Honour.

HIS HONOUR: What are those damages in respect of?

MR ROSE: Damages. That was monies that were spent by myself and my partner and also monies that are owed to us on consultancy fees. And the interest was 8 per cent per annum. But I ask your Honour that they are liquidated and the unliquidated as assessed or as agreed.

HIS HONOUR: Al right, with respect, Mr Rose, I would differ with that because even if you have got a liquidated amount there, you would have to produce evidence of the expenses that were incurred, the performance of the consultancy or the contract; all of those would have to be proven. And it is appreciated you claimed a liquidated amount but those have to be established by evidence or agreed to together with all those other unliquidated sums that come under rule 28. But you got the judgment for liability and it is a matter of putting together your evidence and getting a trial date. So, the last order that goes with that order for entry of judgment is that, damages be assessed at the time convenient to the parties. And you can write to the Registrar, prevail upon him to set the matter down for hearing on assessment of damages.

MR ROSE: Okay. Thank you.

HIS HONOUR: Mr. Nandape, now you have got news to tell back at the office whoever is responsible for the file that there is an entry of judgment and the next step is assessment of damages and if you got no evidence then the plaintiff will go through as a matter of course.

MR NANDAPE: Thank you, your Honour.

HIS HONOUR: Thank you, gentlemen.

MR ROSE: Thank you.

8 It can be seen from this that the orders of 12 February, 2007 were not made with just brief remarks. They were made with fully considered reasons.

9 Following the grant of the orders, Mr. Rose then took out the Orders (the minute). The relevant parts of the minute appear in paragraph 2 of the minute. The minute is Annexure ‘E’ to Mr. Devete’s affidavit and paragraph 2 appears as follows:

2. The Default Judgment is entered against the Defendant for:-

(a) Special Damages in the sum FOUR MILLION NINE HUNDRED NINE HUNDRED FORTY THOUSAND ONE HUNDRED TWENTY FIVE AUSTRALIAN DOLLARS (AUD$4,940,125.00). (correction initialled)

(a) Interest pursuant to the Judicial Proceedings (Interest on Debts and Damages Act) at equivalent to ONE HUNDRED SIXTY THOUSAND TWO HUNDRED FORTY NINE AUSTRALIAN DOLLARS FIFTY THREE CENTS ($160,249.53 as at 31ST January, 2007). (correction initialled)

(a) The amount in (a) and (b) be paid out forthwith by the defendant (correction initialled)

(a) The amount in (a) and (b) be paid out forthwith by the defendant.

(a) General Damages for hardship, frustration and distress, as agreed or as assessed.

(a) Costs and expenses as...