Covec (PNG) Ltd v Peter Kama representing himself and for and on behalf of Damin Kamin Clan of Kumai Tribe of Kup, Kerowagi District, Simbu Province (2020) SC1912

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ, Kassman & Toliken JJ
• Judgment Date: 04 February 2020
• Court: Supreme Court
• Citation: (2020) SC1912
• Docket Number: SCA No 16 of 2017
• Year: 2020
• Judgement Number: SC1912

Full Title: SCA No 16 of 2017; Covec (PNG) Ltd v Peter Kama representing himself and for and on behalf of Damin Kamin Clan of Kumai Tribe of Kup, Kerowagi District, Simbu Province (2020) SC1912

Supreme Court: Kandakasi DCJ, Kassman & Toliken JJ

Judgment Delivered: 4 February 2020

SC1912

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO.16 OF 2017

BETWEEN:

COVEC (PNG) LIMITED

Appellant

AND:

PETER KAMA representing himself and for and on behalf of DAMIN KAMIN CLAN of KUMAI TRIBE OF KUP, KEROWAGI DISTRICT, Simbu Province

Respondents

Waigani: Kandakasi DCJ, Kassman & Toliken JJ

2017: 29th June

2020: 4th February

APPEALS – Supreme Court – Civil – Judgement on damages reviewed and awarded on claims made in statement of claim after striking out pleading in reply to defence that contradicted certain parts of the statement of claim

APPEALS – Supreme Court – Civil – duty of trial judge to ensure pleadings are settled with clarity so that evidence adduced at trial covers issues raised in the pleadings and will lead to a determination of the issues

TORTS – Claims of conversion defined

RESTITUTION – Claims of unjust enrichment defined

DAMAGES – Trespass and conversion – Assessment of damages – Evidence establishing claim – award by trial court quashed – assessment of value of chattels removed and assessment as to corrections to land to make good adduced at trial - no rebuttal – awarded

PRACTICE & PROCEDURE – A contradiction by a party in its own subsequent pleading – No such pleading permitted by the Court Rules – Offending pleadings struck down – Order 8, Rule 19 National Court Rules.

Facts

The Appellant entered the Respondent’s land, erected a stone crushing plant, extracted sand, gravel and stones from the land and processed that material through the crushing plant and used the products in rehabilitation work on the Highlands Highway. The Respondent successfully obtained judgement in a sum over K25 million for damages for the value of the sand, gravel and stones extracted and used by the Respondent for its economic gain and a further K1 million in exemplary damages.On appeal the Appellant claimed the award of damages was made without foundation in the Respondent’s pleadings or evidence and there was no basis for the award of exemplary damages.

Held:

By the Court:

1. The Respondent made claims of trespass and conversion by the Appellant and provided detailed particulars of the Appellant’s negligent/wilful trespass and detailed particulars of the Appellant’s negligent conversion of the Respondent’s property in the Amended Statement of Claim. Despite so pleading, the Respondent did in fact state in its Reply that its claim “... is not a claim for fraud nor does the pleadings plead negligence, trespass and conversion.”This was a contradiction in the Respondent’s pleading but is cured by Order 8 Rule 18 of the National Court Rules which provides “A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with his own previous pleading.”

2. A plaintiff who desires to make a new or alternative claim must amend his statement of claim: Warnock v Victorian Railway Commissioner (1885) 7 ALT 54; Green v Horne (1888) 14 VLR 220 and the rule does not prohibit a subsequent pleading explaining an earlier pleading (South Suburban Land Co v Hughes (1889) 15 VLR 308), or changing the submission as to the legal effect of the pleaded facts (Re Vanderwells Trusts (No 2) [1974] Ch 269.

3. A reply only answers the defence, it cannot raise a new cause of action or allege any matter inconsistent with the allegation in the statement of claim: see Australian Civil Procedure Tenth Edition by BC Cairns.

4. The actions of the Appellant were acts of “trespass” and “conversion” as the Appellant wilfully entered the Respondent’s land and extracted valuable sand, gravel and stone deposits from the Respondent’s land and processed those materials which were then used by the Appellants in its work on the Highlands Highway. The Appellant dealt with the Respondent’s chattels in a manner inconsistent with the Respondent’s rights and the Respondent deprived the Appellant the use and possession forever of its chattels (followed and applied Salmon on the Law of Torts, 16th Ed., at pp 96-97).

5. The Respondent was entitled to make a claim against the Appellant for restitution of the unjustly gained benefit. Firstly, the Appellant was enriched by the receipt of the benefit being the valuable mineral deposits which were processed in the crusher plant the products of which were then used by the Appellant in its work on the Highlands Highway.Secondly, that benefit was gained by the Appellant at the Respondent’s expense.Thirdly, it is unjust to allow the Appellant to retain that benefit (followed and applied The Law of Restitution by Goff & Jones, Sweet & Maxwell 1998).

6. The appeal is partly upheld and partly dismissed. Damages are assessed and awarded in favour of the Respondent against the Appellant. The award of damages of K25,680,064 to be paid by the Appellant to the Respondent is set aside. The Appellants shall pay the Respondent damages for trespass and conversion in the amount of K3,939,032.57.

7. Kandakasi DCJ dissenting: Where are party who is in possession or who is able to adduce the most direct and relevant evidence fails to produce it, the Court is entitled to act on the basis of the evidence before it. In this case, the Appellant was in a position to adduce the relevant evidence, but it failed, and the learned trial judge was entitled to act on the unopposed evidence adduced by the Respondent.

8. Kandakasi DCJ dissenting: The evidence adduced by the Respondent without the Appellant’s objection formed the foundation for the learned trial judge’s decision to award damages of K25,680,064 for trespass and conversion or unjust enrichment.

9. The Appellant shall pay the Respondent interest on the award of damages now awarded of K3,939,032.57 at the yearly rate of 8% per annum from 1 May 2009 to the date of this decision.

10. Kandakasi DCJ dissenting: The Appellant shall pay interest at the rate of 8% per annum from the date of issue of writ until full satisfaction of the judgment.

11. The award of exemplary damages of K1,000,000 in favour of the Respondent is not disturbed. The award of exemplary damages had foundation. There was no error in the learned trial Judge’s exercise of discretion to order and award damages for exemplary damages.

12. The Appellant shall pay the Respondent post judgement interest at the rate of 8% per annum from the date of this decision to the date of payment in full on the total sum of: (a) damages now ordered of K3,939,032.57; (b) interest now ordered in paragraph 4 above; and (c) exemplary damages of K1,000,000.

13. Kandakasi DCJ dissenting: The Appellant shall pay the Respondent’s costs of both the Appeal and the National Court proceedings; which costs shall be taxed if not agreed.

14. The Appellant shall pay the Respondent’s costs of the National Court proceedings and the costs of this appeal, such costs shall be assessed on a party and party basis be taxed if not agreed.

Cases Cited:

Papua New Guinea Cases Cited:

PNGBC v. Jeff Tole (2002) SC 694

MVIL v. KaunaKiangua (2015) SC1476

ManiosaYakasa v. David Piso (2014) SC1330

MVIT v. John Etape [1994] PNGLR 596

RimbunanHijau (PNG) Limited v. Ina Enei (2017) SC1605

MVIT v. SalioTabanto [1995] PNGLR 214

Public Officers Superannuation Fund Board v. SailasImanakuan (2001) SC677

Henry ToRobert v. Mary Torobert (2012) SC119

NCDC v. Yama Security Services Pty Ltd (2003) SC707

Curtain Bros (PNG) Ltd v. UPNG (2005) SC788

Media Niugini Ltd v. Anderson PawaAgiru (2012) SC1203

Rex Paki v. MVIL (2010) SC1015

Kanga Kawira&Ors v. Kepaya Bone &Ors

Mathew Pok v The State (2007) SC864.

Madiu Andrew v. Mineral Resources Development Co Ltd (2004) N2601

Papua New Guinea Banking Corporation v. Tole (2002) SC694

MVIL v. John Etape [1995] PNGLR 214

MVIL v. James Pupune [1993] PNGLR 370

ManiosaYakasa v. David Piso (2014) SC1330

Buna v. The State N2696

Wahad v Wilkinson [2006] PGNC 94

Overseas Cases Cited:

Lamb & Anor v. Kincaid & Anor (1907) [Vol. XXXVIII] Supreme Court of Canada 516

Blay v Pollard and Morris [1930] 1 KB 628

London Passenger Transport Board v Moscrop[1942]1 All ER 97

Livingston v Rawyards Coal Co (1880) App. Cas. 25

PeruvianGuano Co. v. Dreyfus Bros. & Co.

Lamb v Kincaid (1907) 38 S.C.R

Jegon v Vivian (1871) L.R. 6 Ch. App. 742

Wood v Morewood (1841) 3 Q.B. 440

Wilson v Robinson (London) Ltd [2006] EWCA

Fairfax Gerrard holdings Ltd v Capital Bank Plc [2007]

Hall v Barclay [1937] 3 All E.R. 620

Greening v Wilkinson (1825) C. & P. 625

Sachs v Miklos [1948] 2 K.B. 23

Martin v Porter (1839) 5 M. & W. 352

Wood v Morewood (1841) 3 Q.B. 440 at 441

Porter v Mercer

Jegon v Vivian (1871) L.R. 6 Ch. App. 742

Kuddus v Chief Constable Leicestershire [2002] A.C. 122

Rookes v Barnard [1964] AC 1127

Broome v Cassell &...