Mt Hagen Local level Government v Steven Mark

• Jurisdiction: Papua New Guinea
• Judge: Frank, J
• Judgment Date: 23 November 2018
• Citation: (2018) N7588
• Court: National Court
• Year: 2018
• Judgement Number: N7588

Full : WS 543 OF 1999; Mt Hagen Local level Government v Steven Mark (2018) N7588

National Court: Frank, J

Judgment Delivered: 23 November 2018

N7588

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 543 OF 1999

BETWEEN:

MT. HAGEN LOCAL LEVEL GOVERNMENT

Plaintiff

AND:

STEVEN MARK

Defendant

Mt Hagen: Frank, J

2018: 23rd November

CIVIL – Practice and Procedure – Assessment of damages on an Undertaking as to Damages following dismissal of action- Application to set aside ex parte assessment – considerations – National Court Rules, O. 12 r. 8 (3) (a).

Cases Cited:

Papua New Guinea Cases

General Accident Fire & Life v Ilimo Farm[1990] PNGLR 331

Smith v Ruma Construction(2002) SC695

Lee & Song Timber (PNG) Co. Ltd v Burua(2005) N2836

White Corner Investments Ltd v Regina Waim Harro(2006) N3089

Wei Xiang Cheng v Agmark Ltd(2008) N3338

Pastor James Molu v Dokta Pena(2009) N3817

The Government of PNG & Davis v Barker [1977] PNGLR386

Yema Gaiapa Developers Pty Ltd v Lee (1995) SC484

Toll v The State(1989) SC378

Wallbank v The Independent State of Papua New Guinea[1994] PNGLR 78

Chief Collector of Taxes v BCL (2007) SC 853

Overseas Cases

Abbey Forwarding Ltd (In Liquidation) v Hone [2012] EWHC 3525 (Ch.)

Cameron v Cole (1944) 68 CLR 571

Nicholson v Nicholson [1974] 2 NSWLR 59

Counsel:

Mr. D. Gonol, for the Plaintiff

Ms. A. Inia, for the Defendant

23rd November, 2018

1 FRANK, J: The plaintiff applies by notice of motion dated 16 December 2014 and filed 29 May 2015 (“Motion”) for orders under Order 12 rule 35 of the National Court Rules that the orders of this Court made on 13 April 2012 (“2012 orders”) and on 22 November 2013 (“2013 orders”) be set aside. The Motion is supported by the affidavits of Wai Rapa sworn 16 December 2014 and filed 29 May 2015 and John Kagl sworn 22 May and filed 29 June 2015.

2 The 2012 orders dismissed this proceeding for want of prosecution. The 2013 orders awarded damages in the sum of K149,150.00 for the loss and damage the defendant suffered as a result of injunctive orders issued pending trial over a dispute between the parties as to title to a piece of land the subject of this proceeding being Section 42 Allotment 22 Mt. Hagen (“Property”), comprised in state lease Volume 42 Folio 62. Title to the Property is registered in the name of the defendant and of which the plaintiff was the predecessor in title.

Summary of the Facts

3 A brief summary of the facts is as follows:

3.1 Pursuant to a contract for sale and purchase of land (“Contract”) and transfer instrument stamped and dated 29 June 1998, the defendant was registered as proprietor of the Property;

3.2 The sale and purchase under the Contract is said to be the result of a decision of the plaintiff to settle employment entitlements due to the defendant, which Contract and decision are challenged by the plaintiff;

3.3 On 25 February 1999, the plaintiff instituted proceeding by originating summons in OS 105 of 1999, between the parties and in the capacities in which they stand in this proceeding, challenging the validity of the Contract (“Claim”);

3.4 On 21 May 1999 injunctive orders were issued by this Court on the plaintiff’s application restraining the defendant from dealing (including leasing) with his interest as proprietor of the Property;

3.5 The injunctive orders were supported by an undertaking as to damages signed by Mr. Rapa on behalf of the plaintiff;

3.6 on 2 June 1999, this proceeding was filed in which the Claim was prosecuted and the injunctive orders continued;

3.7 on 10 February 2003, the trial in this proceeding commenced before the late Justice Jalina in respect of which a decision was not delivered at the time of his Honour’s passing;

3.8 On 31 May 2010, the defendant filed a notice of motion to dismiss this proceeding (“motion for dismissal”);

3.9 On 2 July 2010, this motion for dismissal was served on Warner Shand, the plaintiff’s lawyers;

3.10 On 13 October 2011, Warner Shand filed a notice of ceasing to act, although, it appears from the Court file, this notice of change was filed without a supporting affidavit as required under Order 2 rule 39 (3);

3.11 On 10 April 2012, the motion for dismissal was served on the plaintiff at its office on one Felix Punum, an officer of the plaintiff, with a note of it being returnable on 13 April 2012;

3.12 On 13 April 2012, on the application of the defendant, this Court granted the 2012 orders;

3.13 On 25 June 2012, a minute of the 2012 orders was served on the plaintiff;

3.14 On 15 March 2013, the defendant filed a notice of motion for damages pursuant to the plaintiff’s undertaking as to damages (“motion for damages”);

3.15 On 29 April 2013, the motion for damages was served on the plaintiff;

3.16 On 10 May 2013, when the motion for damages came before this Court, the plaintiff was represented by Mr. Gonol, when the motion for damages was fixed for hearing on 17 May 2013;

3.17 On the morning of 17 May 2013, Mr. Gonol of counsel, appeared for the plaintiff, and Mr. Mathew Tamutai appeared for the defendant. I will return to what might have occurred on this date and subsequently;

3.18 On 29 November 2013, a minute of the 2013 orders was served on the plaintiff at its office;

3.19 On 30 April 2014, the defendant’s lawyers received a letter from the plaintiff’s lawyers enquiring as to the status of the motion for damages; and

3.20 On 7 May 2014, the plaintiff’s lawyer was served with an advice and a minute of the 2013 orders.

The 2012 orders - should these be set aside

4 With respect to the 2012 orders, the requirements which the plaintiff must satisfy for this Court to favourably consider the relief it seeks against it are:

4.1 An explanation why the 2012 orders were made in its absence;

4.2 The Motion is filed promptly or a reasonable explanation for any delay in so doing; and

4.3 Where there has been delay, it will not give rise to a substantial risk of a fair trial that it is not possible to have a fair trial of the issues in the action or is such as is unlikely to cause or has not caused serious prejudice to the defendant: General Accident Fire & Life v Ilimo Farm[1990] PNGLR 331, 333.

5 As to why the 2012 orders were allowed to be sought and granted in the plaintiff’s absence, the plaintiff says that in 2012 and 2013, Mr. Rapa had been on the campaign trail for the Local Level Government (“LLG”) elections and so was not served with the documents upon which those orders were sought and granted. Mr. Kagl does not address this issue. Even if Mr. Rapa had not been served, it is clear from the defendant’s evidence (see [3.9] to [3.11]), which I accept, that the plaintiff had been served with the motion for dismissal and thus was aware of it. There is therefore no explanation for allowing the 2012 orders to be sought and made in its absence.

6 As to delay, a period of about 11 months had lapsed (see [3.13] and [3.16]) since a minute of the 2012 orders was served on the plaintiff before it reacted by its counsel’s appearance in Court on 10 May 2013 for the defendant’s motion for damages. The plaintiff says that in this period it was not able to do anything as the 2013 LLG election results were declared as having failed and the Provincial Government controlled all its functions and funding until the Minister responsible for it directed that the pre-2013 LLG election officers of the plaintiff were to remain in the positions which they held and perform the functions associated with those positions. The evidence in this respect is vague with reference to the period of campaign, polling, declaration of results, declaration of the elections as having failed and the resumption of duties. Further, there is no evidence of any communication with the Provincial Government concerning assistance the plaintiff might have required to prosecute its Claim or of any exchange with the defendant pointing out its predicament. There is no evidence of such options having been considered and taken. In these circumstances, I am not satisfied that a reasonable explanation has been provided.

7 As to a fair trial not being possible or serious prejudice having been caused or is likely to be caused, neither counsel addressed this. The facts, matters and circumstances upon which the plaintiff seeks to challenge the defendant’s title to the Property go back to 1999. At the time of the filing of the Motion, a period of 15 years had lapsed. The Contract was allegedly part of an agreement by which the employment entitlements of the defendant arising from his employment with the plaintiff for about 18 years since 1979 had been settled. A substantial period has lapsed since the events of those periods of delay, during which witnesses will have moved on and memories will have...