Coconut Products Limited v Markham Farming Company Limited (2018) SC1717

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu, Makail & Dingake JJ
• Judgment Date: 10 October 2018
• Court: Supreme Court
• Citation: (2018) SC1717
• Docket Number: SCA No 94 of 2017
• Year: 2018
• Judgement Number: SC1717

Full Title: SCA No 94 of 2017; Coconut Products Limited v Markham Farming Company Limited (2018) SC1717

Supreme Court: Gavara-Nanu, Makail & Dingake JJ

Judgment Delivered: 10 October 2018

SC1717

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 94 OF 2017

BETWEEN

COCONUT PRODUCTS LIMITED

Appellant

AND

MARKHAM FARMING COMPANY LIMITED

Respondent

Waigani: Gavara-Nanu, Makail & Dingake JJ

2018: 3rd May & 10th October

SUPREME COURT – Appeal against entry of judgment and award of damages

JUDGMENTS – Oral judgment – Written judgment – Reasons for decision – Duty to give reasons – Failure to publish detailed reasons – Effect of – Breach of natural justice

CIVIL – Cause of action – Frivolous or vexatious proceedings – Proceedings constituting abuse of process – Actionable tort – Civil malicious prosecution – Tort of abuse of process – A form of tort – Tort part of PNG Underlying law – Constitution – Schedules 2.2 and 2.3

Facts

The appellant occupied a piece of land (“Property”) under a lease agreement with a former proprietor and had discussion with various options to renew the lease and to purchase the property. The property was subsequently purchased by the respondent and registered in its name. The appellant instituted multiple proceedings to set aside the title of the respondent. All of these proceedings were determined in favour of the respondent. The respondent instituted civil proceedings for malicious prosecution and sought damages. The trial judge upheld the claim based on a cause of action of civil malicious prosecution and awarded damages for loss of business and other losses in the total sum of K3,981,000.00. In delivery of his decision, the trial judge gave a brief summary of the decision and delivered the orders. He indicated that he would publish his detailed reasons for decision. No published decision was received by the parties. This was an appeal against that decision.

Held:

1. A trial judge has a duty to provide reasons for decision and if no reasons are given, it leaves open an inference that there are no good reasons for the decision made: Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064, Ombudsman Commission v. Peter Yama (2004) SC 747, Godfrey Niggints v. Henry Tokam & 2 Ors [1993] PNGLR 66 and Mission Asiki v. Manasupe Zurenoc & Ors (2005) SC797 reaffirmed.

2. In order to determine the question whether the trial judge provided reasons for decision, the appellate Court must look at the transcript of the oral judgment and be satisfied that it has sufficient reasons to assist the appellant formulate the grounds of appeal and, vice versa, the respondent to defend them.

3. The appellate Court must be further satisfied that both parties are able to identify the issues borne out by the grounds. If parties are able to achieve these results with ease or less inconvenience, the appellate Court should be able to conclude that the trial judge provided sufficient reasons for decision.

4. In this case the trial judge gave reasons for his decision at the time of delivery of decision and the reasons were sufficient and enabled the appellant to prepare this appeal. No error of law was established and the ground on breach of natural justice was dismissed.

5. The common law recognised the tort of malicious prosecution of civil proceedings or abuse of process. It is one form of tort which is actionable and available to an injured party to seek remedy or redress and formed part of the PNG Underlying law pursuant to Schedules 2.2 and 2.3 of the Constitution: Grainger v. Hill (1838) 4 Bing NC 212 applied.

6. To succeed in establishing the tort of malicious prosecution of civil prosecution or abuse of process, it must be pleaded and proved that the initiation of prior proceedings was done with malice and without reasonable and proper cause.

7. In this case the finding by the trial judge that the respondent was entitled to institute proceedings WS No. 225 of 2013 for tort of civil malicious prosecution to claim damages against the appellant was correct in law and no error of law was established. This ground of appeal was dismissed.

8. The evidence did not support the finding by the trial judge that the initiation of the prior proceedings was done with malice and without reasonable and proper cause. This ground of appeal was upheld.

9. The appeal was allowed in part and the decision and orders of the National Court were, accordingly, set aside.

Cases cited:

Papua New Guinea Cases

Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064

Ombudsman Commission v. Peter Yama (2004) SC 747

Godfrey Niggints v. Henry Tokam & 2 Ors [1993] PNGLR 66

Mission Asiki v. Manasupe Zurenoc & Ors (2005) SC797

Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8

Titi Christian v. Rabbie Namaliu (1995) SC1583

Telikom PNG Ltd v. ICCC (2008) SC906

MVIL v. Kauna Kiangua (2005) SC1476

Peter O’Neil v. Nerrie Eliakim (No 1) (2016) SC1522

Peter O’Neil v. Nerrie Eliakim (No 2) (2016) SC1539

Overseas Cases

Carlson v. King (1947) 64 WN (NSW) 65

Pettitt v. Dunkley [1971] 1 NSWLR 376

Hanrahan v. Ainsworth (1985) 1 NSWLR 370

Crawford Adjusters & Ors v. Sagicor General Insurance (Cayman) Ltd & Anor [2013] UKPC 17

Corbett v. Burge (1932) 48 TLR 626

Gasing Heights SDN BHD v. Aloyah Abd Rahman & Ors [Civil Suit No: 22-187-91] - 2 August 1996

Grainger v. Hill (1838) 4 Bing NC 212

Goldsmith v. Sperrings Ltd [1977] 1 WLR 478; [1977] 2 All ER 566

Speed Seal Ltd v. Paddington [1985] 1 WLR 1327

QIW Retailers Limited v. Felview Pty Ltd [1989] 2 QdR 245

Williams v. Spautz (1991-92) 174 CLR 509

Ballina Shire Council v. Ringland (1994) 33 NSWLR 680

Bhagat v. Global Custodians Ltd [2000] NSWSC 321

Johnston v. Australian and New Zealand Banking Group Ltd [2001] NSWSC 238

Quartz Hill Consolidated Gold Mining Co v. Eyre (1883) 11 Q.B.D. 674

Ballina Shire Council v. Ringland (1999) NSWSC 110

Gregory v. Portsmouth City Council [2000] 1 AC 219

Counsel:

Mr. M. Goodwin with Mr. A. Pru, for Appellant

Mr. I. Molloy with Ms. E. Suelip, for Respondent

JUDGMENT

10th October, 2018

1. BY THE COURT: This is an appeal against the decision of the National Court of 26th May 2017 wherein the trial judge entered judgment for the respondent and awarded damages for loss of business and other losses in the total sum of K3,981,000.00, with 8% interest and legal costs.

BACKGROUND FACTS

2. The appellant occupied a piece of land described as Allotment 11, Section 2, Buka passage, North Solomons Province (“Property”) and entered into a lease agreement with the former proprietor, Kokonas Industri Koporesen (“KIK”) and had discussion with various options to renew the lease and to purchase the property.

3. On or about 2nd November 2009 the respondent purported to purchase the property from KIK and the appellant disputed the sale. The appellant being aggrieved by the purported sale of the property to the respondent, instituted proceedings, WS No. 622 of 2011: Coconut Products Limited v. KIK Prestine Co. No. 101 Limited and Henry Wasa as the Registrar of Titles. There were several proceedings following the events of WS No. 622 of 2011 proceeding one of them being CIA No. 170 of 2011.

4. All of these proceedings were determined and judgment entered in favour of the respondent with costs. Subsequent to this, the respondent instituted further proceedings, WS No. 225 of 2013 against the appellant, claiming damages purported to accrue from those previous proceedings. It claimed damages for loss of business, special damages and other losses. This is the proceeding giving rise to the decision which is the subject of this appeal.

NATIONAL COURT PROCEEDING

5. In the National Court, the appellant presented brief evidence of the nature of each prior proceedings and the orders made in those proceedings in the affidavit of Bobby Nutley sworn and filed on 28th October 2013. It was asserted by Mr. Nutley that the issues were limited to the specific relief that the defendant (appellant) was seeking to protect its interest in the property from which it had been operating a successful business for many years. The contentious facts were that, firstly none of the orders made in the prior proceedings made a finding that the action is dismissed for being frivolous, vexatious or an abuse of process.

6. Secondly, no evidence was presented in the National Court proceeding of the evidence in each prior proceeding, or even of the full facts, pleadings, nature and detail of each proceeding. The only evidence before the Court was that of the appellant outlining for the assistance of the Court the outcome of each order in the prior proceedings.

7. Finally, there was no evidence of malice or frivolous and vexatious conduct by the appellant in the prior proceedings in the National Court proceeding. The orders in each prior proceeding only found in favour of the respondent and awarded the usual costs on a party/party basis to the respondent, except for the order in CIA No. 170 of 2011.

8. On 11th November 2014 final addresses were made by counsel for the parties and the trial judge reserved his decision to a...