Thomas Serowa v Pacific Hires Limited (2016) SC1517

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Collier J, Ipang J
• Judgment Date: 29 June 2016
• Court: Supreme Court
• Citation: (2016) SC1517
• Docket Number: SCA No 34 of 2015
• Year: 2016
• Judgement Number: SC1517

Full Title: SCA No 34 of 2015; Thomas Serowa v Pacific Hires Limited (2016) SC1517

Supreme Court: Cannings J, Collier J, Ipang J

Judgment Delivered: 29 June 2016

SC1517

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 34 OF 2015

THOMAS SEROWA

Appellant

V

PACIFIC HIRES LIMITED

Respondent

Waigani: Cannings J, Collier J, Ipang J

2015: 30 June

2016: 27 & 29 June

PRACTICE AND PROCEDURE – interlocutory order of National Court to refuse motion to dismiss proceedings and refer proceedings for mediation – judicial discretion – whether properly exercised – National Court’s power to order mediation – whether dependent on consent of parties.

The appellant appealed against an order of the National Court in civil proceedings that dismissed the appellant’s motion that the proceedings be dismissed and referred the proceedings to mediation.

Held:

(1) The National Court has discretion whether to grant or dismiss a motion to dismiss proceedings and has power on its own motion to order mediation at any stage of proceedings with or without consent of the parties.

(2) The appellant failed to prove that the discretion and power of the National Court were not exercised in accordance with law.

(3) The appeal was accordingly dismissed.

Cases cited:

There are no cases cited in the judgment.

APPEAL

This was an appeal from an interlocutory order of the National Court, dismissing a motion to dismiss proceedings, and ordering mediation.

Counsel:

T Serowa, the Appellant, in Person

P Kunai, for the Respondent

29th June 2016

1. BY THE COURT: This is an appeal against the interlocutory judgment of the National Court, constituted by Justice Poole, dated 11 March 2015 in WS 1228 of 2003, wherein his Honour dismissed the appellant’s notice of motion to strike out statements of claim filed by the respondent and dismiss the proceedings for want of compliance with Court directions given on 14 August 2014. The appeal lies with the leave of the Court on questions of mixed fact and law, such leave having been granted on 22 April 2015.

2. The appellant seeks final orders – not only that the appeal be allowed, but also orders in the nature of those sought from the trial judge (namely that the proceedings in the National Court be dismissed for want of compliance by the respondent with directions of 14 August 2014) and costs.

BACKGROUND

3. The appellant carried on business as an accountant in Mount Hagen in the Western Highlands Province, and the respondent carried on business in hire cars in Mount Hagen. It appears that on numerous occasions between 24 December 1999 and 19 June 2002 the appellant hired vehicles from the respondent.

4. The respondent filed a writ of summons and statement of claim on 27 August 2003, and an amended statement of claim on 11 May 2011. In summary, the respondent claimed that:

· the total amount of invoices referable to car hire by the appellant was K73,362.24;

· the appellant had made a total payment of K49,761.90 in 12 instalment payments towards the reduction of the debt between 24 January 2000 and 24 May 2000;

· the total amount outstanding on the car hire invoices, including bank charges and dishonoured cheque fees, was K23,635.34.

The respondent claimed further that the appellant had failed or refused to pay that sum, and sought judgment, interest and costs.

5. In an amended defence filed in 2011 the appellant contended, in summary:

· he had been prevented from carrying on business as a result of demolition and detention of his professional practice, such demolition and detention having been undertaken by Melpa Properties Ltd, Wamp Nga Holdings Ltd and Mr Paulus Koim Kunai on 30 November 2002 and 27 March 2003;

· the demolition and detention was effected under the supervision and legal advice of Mr Paulus Koim Kunai of Kunai & Co Lawyers (who acts for the respondent);

· on 11 February 2009 the Court found in OS 505 of 2008 that the appellant’s practice, assets and records had been unlawfully confiscated, impounded and detained, and that his practice, assets and records had been completely destroyed;

· as a result he was unable to carry on business to make money and pay his obligations;

· although destroyed, the appellant admitted to hiring motor vehicles for use and in connection with operating his business, but because his assets have been unlawfully confiscated, does he not know whether he hired the 11 motor vehicles alleged;

· there was no formal contract between the appellant and the respondent in respect of the hire of the motor vehicles, as hiring was on a random basis;

· each invoice was a separate contract, and payments were made to offset each contract invoice before or after the use of each motor vehicle and they were settled;

· he denied that he paid K49,761.90 as part payment or instalments or deposits to offset the amounts claimed by the respondent because there was no contractual obligation for such an amount to be reduced and the amounts claimed could not be bulked;

· he admitted he paid various amounts for each contractual invoice, but because he could not access his records he could not verify the amounts paid;

· in their original statement of claim the respondent claimed that the appellant had paid a total of K20,000.00 as deposits (that is K5,000.00 deposit in respect of the first car hire and K15,000.00 as deposit in respect of the second car hire) but these payments were not included in the amended statement of claim.

NATIONAL COURT DIRECTIONS OF 14 AUGUST 2014

6. On 14 August 2014 the primary Judge gave the following directions:

1. The matter is transferred to the Listings List for fixture of a hearing date.

2. All affidavit materials to be relied upon to be filed and served by the 28/11/2014.

3. Parties are to file and serve a Statement of Agreed/Disputed facts and issues by the 31/01/2015.

4. Pleading books are to be filed and served by the 20/02/2015.

5. The parties are at liberty to apply.

NOTICE OF MOTION FILED BY THE APPELLANT

7. On 23 February 2015 the appellant filed a notice of motion seeking the following orders:

1. Pursuant to National Court Additional Listing Rules for Trial 2005, item No 15(2)(c) and pursuant to Order 10, Rules 5 and 24(b) and (c) of the National Court Rules, the cause of action filed by the plaintiff be struck out and the entire proceeding be dismissed for non-compliance with Court Direction Orders and for want of prosecution.

2. Pursuant to Order 22, Rules 5(1) and 11 of the National Court Rules, all costs of the proceedings, including all incidental costs related thereto [sic] the proceedings, following the event shall be paid by the plaintiff to the defendant and to be taxed if not agreed.

3. Time abridged to settlement of the orders herein.

8. In support of this notice of motion on 23 February 2015 the appellant filed an affidavit in which he deposed, in summary:

· in respect of the directions of 14 August 2014 it was the duty of the respondent’s lawyers to take the lead in complying with those directions;

· the appellant had visited the National Court Registry on 23 February 2015 and conducted a file search to establish if the respondent had complied with the directions of 14 August 2014 and none of the orders had been complied with;

· the pleadings had closed and the respondent had not set down the matter for trial;

· the matter had been before the Court for 12 years without the respondent identifying factual and legal issues for judicial determination in a trial;

· the matter should be dismissed for default in compliance with directions, and want of prosecution.

The appellant submitted further that no affidavit material had been filed by the respondent evidencing the invoices, no statement of agreed and disputed facts and legal facts had been drafted or filed, and no pleadings books had been compiled or filed.

DECISION OF PRIMARY JUDGE

9. In the appeal book before the Court there is what appears to be a set of orders made by the primary Judge on 11 March 2015, certified by the primary Judge’s associate. Those orders are as follows:

1. The defendant’s motion filed 23/2/15 is dismissed.

2. Pursuant to Section 7B(2) of the National Court Act & Rule 5(2)(a) of the ADR Rules, this matter is referred to mediation by an accredited internal mediator.

3. His Honour, Justice Kandakasi, an accredited mediator, is appointed to conduct the mediation with a provisionally accredited mediator assigned to the Acting Assistant Registrar-ADR no later than 24th March 2015.

4. The parties shall pay in equal proportions the Court Mediation Services fee per Schedule 3 of the ADR Rules and provide by (both facsimile & email) a copy of the receipt to the Acting Assistant Registrar-ADR and deliver the original to the mediators at the commencement of the mediation process.

5. The parties shall pay in equal proportion, the internal mediation fees by the 24th of March 2015, into an account nominated by the internal mediator.

6. The mediation...