WorkCover Authority of NSW v Placer (PNG) Exploration Limited (2006) N3003

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 13 March 2006
• Citation: (2006) N3003
• Docket Number: OS 48 of 2005
• Year: 2006

Full Title: OS 48 of 2005; WorkCover Authority of NSW v Placer (PNG) Exploration Limited (2006) N3003

National Court: Lay J

Judgment Delivered: 13 March 2006

1 PRACTICE AND PROCEDURE—application to register foreign judgement—whether judgement of declared court—whether voluntary submission to jurisdiction—whether debtor had place of business in foreign jurisdiction—adequacy of notice of proceedings contested—whether notice of proceedings accorded with rules of natural justice—inconsistent with public policy to register judgement—Reciprocal Enforcement of Judgements Act (Ch50).

2 PRACTICE AND PROCEDURE—Judgment entered in New South Wales—application to register foreign judgement—Principles to be applied—Defendant wholly owned subsidiary of company liable to pay compensation—Lifting corporate veil.

3 London Passenger Transport Board v Moscrop [1942] 1 All ER 97, Blay v Pollard and Morris [1930] 1 KB 628, Ume More v The University of Papua New Guinea [1985] PNGLR 401, Adams v Cape Industries Pty Ltd [1990] 1 Ch 433, Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) N2106, Pinpar Development Pty Ltd v TL Timber Development Pty Ltd [1999] PNGLR 139, Stenhurst Pty Ltd v Golding International Pty Ltd (1995) N1377, Francis Kalyk v Atlas Corporation Pty Ltd (1998) N1760, Mesulam Tomalana v Rabaul Pharmacy [1991] PNGLR 65, Jacques v Harrison (1883) 12 QBD 136, Winsor v Chalcraft [1939] 1 KB 279, Murfin v Ashridge [1941] 1 All ER 231, Craig v Kansen [1943] 1 KB 246, Hollington v Hewthorn & Co Ltd [1943] KB 587, Re Word Publishing Co Pty Ltd [1992] Qd R 336, Taylor v McGiffen (NSW Supreme Court, unreported Wood J 15 July 1985) referred to

Facts

Mr Plibersek was stabbed to death in Port Moresby on 4 October 1997. His widow obtained a workers compensation award of AU$235,350 in the Compensation Court of NSW against the Defendant although her claim was against Placer Pacific Management Limited (a company incorporated in NSW) then called the First Respondent. The award was paid from the Plaintiff's fund as the Defendant was uninsured in NSW. The Plaintiff obtained an order in the Compensation Court NSW that it be re-imbursed by the Defendant the amount paid out to the widow. In accordance with the provisions of NSW legislation the Plaintiff lodged the certificate of the award from the Compensation Court in the Registry of the Supreme Court of NSW and the Registry issued a Minute of Judgment. The Plaintiff then sought to register that judgment under the Reciprocal Enforcement of Judgements Act (Ch50). On the application, both the application for registration and grounds upon which it might be set aside, were argued.

Held

To qualify for registration the judgment must be from a court, declared by the Minister under the Act, which has itself for the first time heard and finally determined the matter in proceedings before it. The original judgment was from the Compensation Court NSW, which was not a declared court, and the judgment therefore could not be registered.

Taylor v McGiffen (NSW Supreme Court, unreported Wood J 15 July 1985)

S3 Reciprocal Enforcement of Judgements Act (Ch50)

The court should refuse registration of a foreign judgment if on the application for registration it appears to the court that the judgment, if registered, is one which on application by the judgment debtor, the court would set aside:

Re Word Publishing Co Pty Ltd [1992] Qd R 336; Nygh and Davies, Conflict of Laws in Australia, 7th ed, para 10.7; Sykes and Pryles, Australian Private International Law, 3rd ed, p 129.

The findings of fact recorded in the judgment of the Compensation Court NSW are not evidence for the purposes of proving those same facts before this Court because through error the Defendant was not heard, it was injuriously affected by the judgment, and it could not fairly be said it was a party for the purpose of binding it to those findings in other proceedings.

Hollington v Hewthorn & Co Ltd [1943] KB 587, Cross on Evidence 4th ed p 399, Cross on Evidence 2nd Australian Edition by Gobbo, Byrne and Heydon at para 16.26 Mesulam Tomalana v Rabaul Pharmacy [1991] PNGLR 65, Jacques v Harrison (1883) 12 QBD 136, Winsor v Chalcraft [1939] 1 KB 279, Murfin v Ashridge [1941] 1 All ER 231, Craig v Kansen [1943] 1 KB 246

The provisions of s5(2) of the Reciprocal Enforcement of Judgements Act (Ch50) are a complete list of the grounds on which jurisdiction may be found in a foreign court for the purposes of the Act.

Nygh and Davies Conflict of Laws in Australia 7th ed at para 10.8 Stenhurst Pty Ltd v Golding International Pty Ltd (1995) N1377, Francis Kalyk v Atlas Corporation Pty Ltd (1998) N1760

The Defendant did not voluntarily submit to the jurisdiction in the NSW proceedings. It was not in a practical sense represented there by the First Respondent in those proceedings. There was no evidence of fraud or sharp practice or that the First Respondent in the NSW proceedings was a mere sham or facade for the Defendant. It was not appropriate in those circumstances to lift the corporate veil to impute to the Defendant that it had appeared by the appearance of the First Respondent in the NSW proceedings.

Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) N2106, Pinpar Development Pty Ltd v TL Timber Development Pty Ltd [1999] PNGLR 139; New Zealand Company Law and Practice CCH.

The minimum requirement for adequate notice of proceedings is that the notice contains a fair statement of the case against the defendant, the consequences of a finding against the defendant and that the defendant has an adequate opportunity to defend the proceedings. The notice of the Compensation Court NSW proceedings served upon the Defendant was misleading; it sought no order for payment of money against the Defendant. The fact that the Compensation Court proceeded to make an order for payment of money against the Defendant without notice to the Defendant and without amendment and service of the pleading was not in accordance with the principles of natural justice. The judgment if registered would be set aside on the ground that it was against public policy to enforce it. This was an additional ground on which the judgment ought not to be registered.

Adams v Cape Industries Pty Ltd [1990] 1 Ch 433 (CA); Aronson Dyer Groves, Judicial Review of Administrative Action, 3rd ed pp 499 and 500 and at p 501; London Passenger Transport Board v Moscrop [1942] 1 All ER 97; Blay v Pollard and Morris [1930] 1 KB 628; Ume More v The University of Papua New Guinea [1985] PNGLR 401.

___________________________

Lay J: This is an application to register a foreign judgment which is normally heard ex parte pursuant to the provisions of National Court Rules O13 r69(2). On this application by arrangement between counsel and the Court argument was heard from both parties on the application for registration, because registration is opposed, and the parties were also heard on issues to be addressed on an application to set aside registration.

Mr Plibersek was stabbed to death on or about 4 October 1997 in Port Moresby whilst employed on a contract with the Defendant Company in Papua New Guinea. Proceedings were taken in the Compensation Court of New South Wales. This is a statutory court established under the Compensation Court Act 1984 (NSW). The judges of that court have the "same rank, status and precedence . . . as a judge . . . of the District Court" of NSW (see s9(5)) of the Compensation Court Act). The Plaintiff and the Defendant were each respondents in those proceedings. The Defendant is a company incorporated in Papua New Guinea having two issued shares which are owned by Placer Dome (PNG) Limited.

On 15 November 2002 the...