Boi Kawage v Motor Vehicle Insurance Trust Limited (2010) SC1066

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, Davani & Kariko JJ
• Judgment Date: 30 April 2010
• Court: Supreme Court
• Citation: (2010) SC1066
• Docket Number: SCA. No. 36 of 2008
• Year: 2010
• Judgement Number: SC1066

Full Title: SCA. No. 36 of 2008; Boi Kawage v Motor Vehicle Insurance Trust Limited (2010) SC1066

Supreme Court: Kirriwom, Davani & Kariko JJ

Judgment Delivered: 30 April 2010

SC1066

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

S.C.A. N0. 36 0F 2008

BOI KAWAGE

Appellant

-v-

MOTOR VEHICLE INSURANCE TRUST LIMITED

Respondent

Waigani: Kirriwom, Davani & Kariko JJ

2010: 28, 30 April

APPEAL – damages – personal injuries claim – deed of release signed only by the plaintiff – defendant withdrawing its offer to settle - appeal against dismissal of application for enforcement of deed of release – appeal against dismissal of whole of proceedings –whether application for enforcement properly before the court- whether deed of release compromised the whole of the proceedings – failure to ask counsel to address an issue not part of application not a miscarriage of justice.

Cases cited:

Papua New Guinea cases

Vailala Purari Investment Limited & Others –v- Papua New Guinea Forest Authority and Frontier Holdings (2004) N2594

National Capital District Commission –v- Yama Security Services Pty Ltd (2002) SC707

Caltex (Overseas) Limited –v- Douglas Charles Dent [1978] PNGLR 411

Overseas cases

Green v Rozen and Others [1955] 2 All ER 797

Counsel:

D Gonol, for the appellant

K Peri, for the respondent

30 April, 2010

1. BY THE COURT: This is an appeal against the decision of the National Court on 29 April 2008 at Mount Hagen in the proceedings W.S. No. 120 of 2004 (“the Proceedings”) whereby the trial judge dismissed the Proceedings.

Background

2. The Appellant filed the Proceedings on 17 February 2004 claiming damages against the Respondent for personal injuries sustained in a motor vehicle accident on 7th September 2001 along the Okuk Highway between Goroka and Asaro in the Eastern Highlands Province.

3. The Appellant alleged receiving injuries to his head, hands and hip as a result of the accident.

4. On 16 August 2005 and after a request by the Respondent, the Appellant attended the Marian Medical Clinic for a review.

5. Negotiations to settle the claim out of court continued and there was exchange of correspondence between the parties, which included the following:

- On 13 April 2006, the Respondent offered K60,000.00 to the Appellant.

- On 11 May 2006, the Appellant counter-offered K90,000.00 to settle.

- On 20 April 2007, the Appellant followed up on the counter-offer of 11 May 2006.

- On 23 April 2007, the Respondent then replied with its counter-offer of K80,000.00 all up settlement.

- On 9 May 2007, the Appellant accepted the counter-offer but requested that K2,500 in costs be included and requested the appropriate deed of release.

- A deed of release to settle the claim for K80,000.00 in damages and K2,500 costs was prepared by the Respondent (“the Deed”) and sent to the Appellant on 18 May 2007.

- The Deed was executed by the Appellant and faxed back to the Respondent on 1 June 2007.

- The same day, 1 June 2007, the Respondent advised the Appellant that the Deed was rescinded or withdrawn on the basis that the amount offered ought to have read K8,000.00.

6. While the Appellant insisted that there had been an agreement to settle the claim by way of the signed Deed, the Respondent ignored the claim. This led to the Appellant filing a notice of motion on 26 November 2007 to have the Deed enforced and judgement entered in favour of the Appellant for the sum of K82,500.00. This motion was argued on 29 February 2008 and it is the decision of the trial judge arising from hearing this application that gives rise to the present appeal.

Grounds of appeal

7. The grounds of appeal are set out in the Notice of Appeal as follows:

a) His Honour erred in holding that the ground upon which the whole proceedings was dismissed was an issue before the Court as a deed was signed between the parties and that the substantive proceedings be dismissed.

I) the only issues that were before His Honour to rule on were those in the Notice of Motion filed by the Appellant (then Plaintiff filed 27th November 2007) in the following:

1. the Deed of Release signed between the plaintiff and the Defendant on the 18th may and 01st June 2007, for a sum of K82,500.00 in favour of the plaintiff, be enforced.

2. Judgment be entered in the sum of K82,500.00 in favour of the Plaintiff.

3. Costs of the proceedings be settled by the Defendants.

4. Any other or further orders, the Honourable Court deems fit.

ii) the ground upon which His Honour dismissed the proceedings was never an issue before him to rule on.

iii) the application before His Honour was to enter judgment based on a Deed of Release signed on 01st June 2007 between the parties. There was no application before the Court to dismiss the whole proceedings on the ground that a Deed was signed.

iv) None of the parties, not even the Court raised the issue, that since a Deed was signed, the whole proceedings be dismissed.

v) Because, the issue of Dismissal of the whole Proceedings on the grounds that the Deed was signed was not in issue and not one of the grounds in the Notice of Motion filed by the Plaintiff on 27th November 2007, or even raised by the Court no evidence was produced by all parties and further no submissions were made before His Honour to rule on.

vi) In the circumstances, His Honour erred in that he purported to determine the issue of Dismissal of the whole proceedings based on a Deed being signed which was not in dispute and or was not before him to rule on, thereby denying the appellant a reasonable opportunity to be heard as required by the principles of natural justice.

vii) His Honour erred in failing to restrict his ruling to what was before him rather than making the ruling on an issue which was not before him to rule on.

viii) His Honour when hearing oral submissions on the 29th February 2008 if he thought dismissing the whole proceedings on the grounds that a deed was signed was in issue he failed to enquire with Counsels in court as to whether or not, the whole proceedings be dismissed on that ground.

ix) His Honour erred in that he ventured outside of what was before him and thereby into areas which were not in dispute between parties.

II) His Honour erred in dismissing the application properly before him for judgement in the sum of K82,500.00 holding that since a deed was signed, it was not proper to ask for judgement by way of Notice of Motion for summary judgement, and that be done by way of fresh proceedings to be enforced.

III) His Honour erred in dismissing the whole proceedings, shutting out the appellants right to claim for common law damages. The appellant has a right to choose whether to pursue enforcement of the Deed of Release or proceed with the common law damages, proceedings of which were already on foot.

8. The grounds can be summarised as follows:

1. That the trial judge erred in law in dismissing the application to enforce the Deed; and

2. That the trial judge erred in law in the dismissing the Proceedings because:

(a) There was no application before him to dismiss the Proceedings; and

(b) The question of whether or not the Proceedings ought to be dismissed was not raised with Counsel to give counsel the opportunity to address on the issue; and

(c) The dismissal of the Proceedings has deprived the appellant his right to pursue his common law claim for damages.

9. In the course of hearing the appeal, counsel for the appellant properly conceded that the trial judge correctly ruled that the proper course to have the court enforce the Deed was for the appellant to file a separate action. Mr Gonol therefore concentrated his submissions on the second ground. We consider the first ground abandoned and in any case have no difficulty in finding no error by the trial judge in respect of his ruling to dismiss the application for enforcement.

The application to enforce the Deed

10. The relevant orders sought in the application before His Honour were in these terms:

1. The Deed of Release signed between the Plaintiff and the Defendant on 18th May and 1st June 2007, for a sum of K82,500 be enforced.

2. Judgement be entered for the sum of K82,500.00 in favour of the Plaintiff.

11. The Notice of Motion did not state the provision in the National Court Rules upon which the application was being made.

Ruling on the application

12. In his ruling, the trial judge made two main determinations:

1. That in order for the plaintiff to enforce the Deed, he ought to commence a separate or new action, based on Vailala Purari Investment Limited & Others –v- Papua New Guinea Forest Authority and Frontier Holdings (2004) N2594 following the Supreme Court decision of National Capital District Commission –v- Yama Security Services Pty Ltd (2002) SC707.

2. That the application was an abuse of process and incompetent. His Honour considered the application as one seeking summary judgement pursuant to Order 12 rule 38 but under the guise of an application to enforce a Deed. Again the trial judge relied on National Capital...