Lady Ni Cragnolini and Others v Henry Leia

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ,David,Yagi,Kassman,Murray JJ
• Judgment Date: 28 September 2023
• Neutral Citation: SC2464
• Citation: SC2464, 2023-09-28
• Counsel: Stanley Liria, for the Appellants,Luwi Dos & Nicholas Tame, for the Respondent
• Docket Number: SCA NO. 192 OF 2022
• Hearing Date: 02 June 2023,28 September 2023
• Court: Supreme Court

SC2464

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 192 OF 2022

Between:

Lady Ni Cragnolini

First Appellant

and

Teddy Tasion

Second Appellant

v.

Henry Leia

Respondent

Waigani: Salika CJ, David, Yagi, Kassman & Murray JJ

2023: 2^nd June & 28^th September

PRACTICE & PROCEDURE — summary dismissal for want of prosecution — failure for parties by themselves or through their lawyers to attend directions hearing on a date fixed by National Court Registry — notice of directions hearing sent by National Court Registry to wrong law firm — matter referred for summary determination for failure to attend directions hearing — specific and expressed rules provided for dealing with judgments or orders made in the absence of parties — absent party is at liberty to apply to the National Court to set aside judgments or orders made in his or her absence — relevant principles applying to setting aside judgments or orders made ex parte to apply — National Court Rules, Order 12 Rule 8(3) and (4).

Cases Cited:

Papua New Guinean Cases

Green & Co. Pty Ltd v Green [1976] PNGLR 73

Barker v The Government of Papua New Guinea (1976) PNGLR 340

The Government of PNG & Davis v Barker [1977] PNGLR 386

George Page Pty Ltd v Balakau [1982] PNGLR 140

Leo Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505

Leo Duque v Avia Andrew Paru (1997) PNGLR 378

Public Offices Superannuation Fund Board v Paraka (2005) N2791

Salamo Elema v Pacific MMI Insurance Ltd (2007) SC1321

Christopher Smith v Ruma Constructions Ltd (2002) SC695

MVIT v Joseph Bure (1999) PNGLR 273

Wawoi Guavi Timber Company Ltd v Molu (2016) SC1514

Inugu v Maru (2019) SC1873

Thomas Barry v Joel Luma (2017) SC1639

Peter Malt v Dean Queen (2009) N3577

Aiwasi v Derari (2017) N6602

Punagi v Pacific Plantation Timber Ltd (2011) SC1153

Kakas v NHC (2020) SC2000

Overseas Cases

Evans v Bartlam [1937] AC 473

Grierson v R (1938) 60 CLR 431

Grimshaw v Dunbar (1953) 1 All ER 350

Bailey v Marinoff (1971) 125 CLR 529

Counsel:

Stanley Liria, for the Appellants

Luwi Dos & Nicholas Tame, for the Respondent

Liria Lawyers: Lawyers for the First and Second Appellants

Nicholas Tame Lawyers: Lawyers for the Respondent

JUDGMENT

28^th September 2023

1. BY THE COURT: INTRODUCTION: This Court of five judges of the Supreme Court was empanelled by the Chief Justice to resolve a conflict of differing opinions of the Supreme Court as to the interpretation and application of Order 12 Rule 8(3)(a) of the National Court Rules (as amended) (the NCR).

2. The appeal is without leave pursuant to Sections 4(1) and 14 (1) (a) and (3) (iii) of the Supreme Court Act as the grounds of appeal are only on questions of law and purportedly from a final decision of the National Court.

GROUNDS OF APPEAL

3. The grounds of appeal are as set out at paragraph 3 of the Notice of Appeal filed on 5 December 2022 and they are as follows:

3.1 The Primary Judge erred in law in reinstating the proceedings that were dismissed for want of prosecution as—

(a) The dismissal of the proceedings for want of prosecution concluded the proceedings and therefore the Notice of Motion filed by the Respondent on 28^th September 2022 was an abuse of process;

(b) The National Court had no jurisdiction to hear the Notice of Motion filed by the Respondent in the proceedings which were dismissed on 6^th July 2022.

BRIEF BACKGROUND FACTS

4. This appeal arises from a decision of the National Court dated 16 November 2022 in proceeding WS No. 1200 of 2011 Henry Leia v National Housing Corporation & Teddy Tasion & Henry Wasa, Registrar of Titles in which the primary court reinstated a proceeding which was dismissed for want of prosecution on 6 July 2022 in the absence of all parties.

5. There were two proceedings in the National Court which concerned a property Allotment 6 Section 42 Granville more particularly described in State Lease Volume 21 Folio 136 (“the property”). The first proceeding was initially commenced on 17 October 2011 as WS No. 1200 of 2011 National Housing Corporation & Henry Leia v & Teddy Tasion & Henry Wasa, Registrar of Titles and was later amended on 4 April 2017 on the filing of an Amended Writ Of Summons pursuant to an order of Kariko J of 22 March 2017 by which National Housing Corporation was removed as the First Plaintiff and was then made the First Defendant (hereafter “the first proceeding”). Though not of any relevance to the issue in this appeal, other orders issued on 22 March 2017 were the refusal of an application to strike out the defence and cross-claim and also refusal of an application to dismiss the proceedings for being vexatious. The second proceeding was commenced on 22 June 2014 as WS No.700 of 2014 Henry Leia v Teddy Tasion, National Housing Corporation, Ni Yumei Cragnolini, Benjamin Samson as Registrar of Titles, Romily Kila Pat as Secretary of the Department of Lands & Physical Planning, Hon Benny Allen as Minister for Lands & Physical Planning, and the Independent State of Papua New Guinea (hereafter “the second proceeding”).

6. The first proceeding and the second proceeding were consolidated on 22 June 2018 where the court ordered “1. The proceedings WS 1200 of 2011 and WS 700 of 2014 are consolidated and will be heard together.” The court also ordered “2. Lady Ni Cragnolini is joined as a party to the proceeding WS 1200 of 2011.”

ISSUE

7. The overarching issue before the Court for determination is whether the National Court has power under Order 12 Rule 8 of the NCR to set aside its own order made in the absence of a party dismissing the proceedings for want of prosecution.

CONSIDERATION

8. The general rule applying to judgments and orders is that once they have been formally recorded or entered, they can only be set aside or varied on appeal: Public Offices Superannuation Fund Board v Paraka (2005) N2791, Grierson v R (1938) 60 CLR 431 per Dixon J at 436, Bailey v Marinoff (1971) 125 CLR 529.

9. The general rule was stated by Sir Garfield Barwick in Bailey v Marinoff (1971) 125 CLR 529 at 530 as follows:

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have power to reinstate a proceeding which it has finally disposed.”

10. An order for dismissal in whatever form it takes terminates the proceedings. The public interest in maintaining the finality of litigation requires great caution in the exercise of powers under Order 12 Rule 8: see Inugu v Maru (2019) SC1873 at [72].

11. An exception to the general rule would be a correction permitted under Order 8 Rule 59 of the NCR where there is a clerical mistake in a minute of a judgment or order or an error in a minute of a judgment arising from an accidental slip or omission.

12. A further exception is where a court may be granted power to set aside or vary judgments or orders by statutory provision either through an Act of Parliament or by rules of court. In the present case, the relevant rules of court of the National Court would be the NCR promulgated by Judges pursuant to s.8 of the National Court Act and s.184 of the Constitution. Order 12 Rule 8 is the relevant rule applying to the setting aside or varying judgments or orders.

13. Order 12 Rule 8 of the NCR provides:

“8. Setting aside or varying judgement or order.

(1) The Court may, on terms, set aside or vary a direction for entry of judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.

(2) The Court may, on terms, set aside or vary a judgment—

(a) Where the judgment has been entered pursuant to Order 12 Division 3 (default judgment); or

(b) Where the judgment has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

(c) When the judgment has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.

(3) The Court may, on terms, set aside or vary an order –

(a) Where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order, or

(b) Where notice of motion for the setting aside or variation is filed before entry of the order.

(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

(5) This Rule does not affect any other power of the Court to set aside or vary a judgment or order.”

14. Order 12 Rule 8 contains detailed provisions for setting aside or varying judgments or orders in a number of circumstances either before and after entry of the judgments or orders.

15. The power under Order 12 Rule 8(1) is separate from those under Order 12 Rule 8(2) and (3) as the latter rules only apply to circumstances where judgments or orders have been obtained in the absence of a party. There is a clear demarcation in that regard.

16. The provisions of Rule 8(3) (a) and (b) appear to be simple and easy to understand and are general in their nature and their application and are wide in our opinion. Order 8 Rule 3(a) refers to an order made in the absence of a party whether a party is in default...