Kalang Advertising Limited v Visvanathan Kuppusamy (2008) SC924

• Jurisdiction: Papua New Guinea
• Date: 31 July 2008
• Citation: (2008) SC924
• Docket Number: SCA NO 62 0F 2006
• Court: Supreme Court
• Year: 2008

Full Title: SCA NO 62 0F 2006; Kalang Advertising Limited v Visvanathan Kuppusamy (2008) SC924

Supreme Court: Kapi CJ, Gavara–Nanu J, Cannings

Judgment Delivered: 31 July 2008

PRACTICE AND PROCEDURE – conditional orders – failure to comply with conditions set by the National Court.

PRACTICE AND PROCEDURE – summary judgment – whether summary judgment can be entered on the own initiative of the National Court – Listing Rules 2005, Rule 15: summary disposal.

Facts

The respondent (then the plaintiff) commenced proceedings against the appellant (the defendant) in the National Court, claiming damages for breach of contract. The matter was set down for a directions hearing but only the plaintiff’s lawyer appeared. The Listings Judge adjourned the matter and made a conditional order, that:

Unless the defendant turns up in court and provides reasonable explanation for not turning up in court and assisting at directions hearing for today … the defence shall be struck out and judgment entered for the plaintiff with damages to be assessed.

The defendant’s lawyer appeared on the appointed day and gave an explanation to the Listings Judge, but the Listings Judge was not satisfied with the explanation, which was also not supported by affidavit, and struck out the defence and entered judgment against the defendant with damages to be assessed. The defendant appealed, arguing that the Listings Judge erred in making both the conditional order and the order for summary judgment.

Held:

(1) The conditional order was a proper exercise of judicial discretion.

(2) r15 of the Listings Rules 2005 permits the National Court to summarily determine a matter on its own initiative if a party or its lawyers fail to appear at a directions hearing.

(3) The lawyer’s explanation for not appearing in court was not supported by affidavit and the Listings Judge properly formed the opinion that the explanation was unsatisfactory.

(4) The Listings Judge properly concluded that the conditions to avoid striking out the defence and entry of summary judgment were not complied with.

(5) The appeal was accordingly dismissed.

Cases cited

The following case is cited in the judgment:

Andrew Baing v PNG National Stevedores Pty Ltd (2000) SC627

APPEAL

This was an appeal against a decision of the National Court to strike out a defendant’s defence in a civil action for damages and to enter summary judgment on liability against the defendant.

1. BY THE COURT: This is an appeal against a decision of the National Court to strike out a defence in a civil action for damages and to enter summary judgment on liability against the defendant.

2. The respondent, Visvanathan Kuppusamy, was employed by the appellant, Kalang Advertising Ltd, as their chief engineer for several years under a written contract of employment. The contract was completed but not renewed and Mr Kuppusamy claims that he was not paid all that was due to him under the contract. He commenced proceedings (as plaintiff) against Kalang (the defendant), claiming damages for breach of contract.

3. Kalang filed a defence and the matter was set down for a directions hearing in accordance with the Listings Rules 2005. Unless stated otherwise the dates referred to below are in 2006.

4. On the appointed day, 11 May, Mr Kuppusamy’s lawyer, Ms Nidue, appeared. But there was no appearance for Kalang. The Listings Judge, Kandakasi J, adjourned the directions hearing to 19 May, and made a conditional order, that:

Unless the defendant turns up in court and provides reasonable explanation for not turning up in court and assisting at directions hearing for today … the defence shall be struck out and judgment entered for the plaintiff with damages to be assessed.

5. On 19 May the matter was stood over to 23 May.

6. On 23 May Ms Nidue again appeared for Mr Kuppusamy and Mr Mapiso appeared for Kalang. His Honour drew Mr Mapiso’s attention to the order of 11 May and asked for his explanation. Mr Mapiso said that he was at the court that day but when the matter was called he happened to be outside the courtroom. The courtroom was packed and it was hard for him to get inside. Also there was a bit of confusion over the list and there was another matter concerning Kalang on the motions list before another Judge. He submitted that Kalang had been penalised sufficiently by having a costs order against it for the 11 May proceedings and it would be unfair if Kalang were stopped from having its defence heard.

7. His Honour observed that Mr Kuppusamy’s...