Mulia (PNG) Limited (1-39641) v Gregory James Sheppard & Harvey Maladina trading as Young & Williams Lawyers and Others

• Jurisdiction: Papua New Guinea
• Judge: Kariko J,Liosi J,Dowa J
• Judgment Date: 24 August 2023
• Neutral Citation: SC2504
• Citation: SC2504, 2023-08-24
• Counsel: No appearance for the Appellants,Mr. I. R. Shepherd, for the Respondents
• Docket Number: SCA NO. 27 OF 2021
• Hearing Date: 22 November 2022,24 August 2023
• Court: Supreme Court

SC2504

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 27 OF 2021

Between

Mulia (PNG) Limited (1-39641)

Appellant

v.

Gregory James Sheppard & Harvey Maladina trading as Young & Williams Lawyers

First Respondent

and

Gloria Salika

Second Respondent

and

Molly Sumbuk

Third Respondent

and

Vanessa Vee

Fourth Respondent

Waigani: Kariko J, Liosi J & Dowa J

2022: 22^nd November

2023: 24^th August

SUPREME COURT — practice and procedure — objection to competency of appeal — appeal against summary dismissal of proceedings in the National Court — the grounds of appeal: not comply with the Supreme Court Rules; raise questions of fact and leave to appeal not sought; raise matters not argued in the National Court.

Facts:

After the Appellant lodged an appeal against the summary dismissal of its claim in the National Court, objection was filed by the Respondents challenging the competency of the appeal alleging non-compliance with the Supreme Court Rules, failure to obtain leave on questions of fact, and raising issues not raised in the trial.

Held:

1. Provided there is one ground of appeal that invokes the jurisdiction of the court, the appeal is competent to proceed to hearing: Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221 referred to and endorsed.

2. The grounds of appeal should inform the respondents of the basis of the appeal so that they can prepare their arguments in response, and the court must be informed of the issues that it is to determine: Haiveta v Wingti (No 2) [1994] PNGLR 189 referred to.

3. The Objection to Competency was dismissed as two of the grounds of appeal properly invoked the jurisdiction of the Court.

Cases Cited:

Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221

Hagahuno v Tuke & Electoral Commission (2020) SC1966

Haiveta v Wingti (No 2) [1994] PNGLR 189

Kuman v Digicel (PNG) Ltd (2017) SC1638

Lovika v Malpo (2019) SC1895

Lucas Dekena v Nick Kuman (2018) SC1715

PNGBC v Jeff Tole (2002) SC694

Rea Joseph v Manau Sereva (2011) SC1152

Yakham & The National v Merriam (1997) PNGLR 555

Legislation:

National Court Rules

Supreme Court Act

Supreme Court Rules

Counsel:

No appearance for the Appellants

Mr. I. R. Shepherd, for the Respondents

Lomai & Lomai Attorneys: Lawyers for the Appellant

Ashurst PNG Lawyers: Lawyers for the Respondents

24^th August 2023

1. BY THE COURT: This is a ruling on the Respondents' Objection to Competency of the Appeal.

2. The Appellant appeals against the whole of the ex tempore decision of the National Court made on 16^th February 2021, in the proceedings WS No. 54 of 2020 – Mulia (PNG) Ltd v Gregory James Sheppard & Others, where His Honour dismissed the entire proceedings for failure to comply with Court orders.

Background

3. On 1^st December 2020 the Court gave directional orders that the parties negotiate and reach settlement by 14^th January 2021. Failing settlement, the parties were directed to settle upon a Statement of Agreed Facts and Legal Issues and come ready to address the Court on matters in dispute for the Court to consider and give a binding opinion or refer the matter for resolution by mediation. The orders were made to return on 4^th February 2021. On 4^th February 2021, the orders of 1^st December 2020 were extended for compliance especially by the Appellant with a proviso that any failure will result in summary determination of proceedings under Order 10 Rule 9 A (15) of the National Court Rules. The proceedings were then adjourned to return on 16^th February 2021.

4. When the matter returned to Court on the morning of 16^th February 2021 it became apparent that the parties had not complied with the directions of 1^st December 2020 and 4^th February 2021. The Court adjourned the proceedings to the afternoon and directed counsel for the Appellant to provide an affidavit explaining why there was noncompliance of the directional orders. Counsel provided an affidavit that afternoon, explaining that they could not comply with the orders because the pleadings were not closed and in the light of the defence raised it seemed improbable for any settlement to be reached and they were into discovery, and it would be premature to discuss settlement.

5. The Court, on hearing parties, considered the Appellant's explanation unsatisfactory and dismissed the proceedings for noncompliance of the directions of the Court pursuant to Order 10 Rule 9 A (15) of the National Court Rules.

The Appeal

6. The Appellant appeals the decision of the trial Judge pleading various grounds of appeal which are set out in paragraphs 3 and 4 of the Notice of Appeal the details of which are reproduced below:

“3. The Grounds replied upon are as follows:

3.1 The learned judge in the Court below erred in fat and in law to dismiss the Plaintiffs claims for failure to comply with directional orders issued on December 01, 2020 when;

(a) The formal Orders he relied upon were not made clear in court which would have been taken out by one of the parties as is the usual practice of but instead issued in chamber slater in the date and only upload onto the IECMS system without any advise whatsoever to both parties that the said orders had been uploaded onto the IECMS system and in the absent of such advise without serving the order on either party.

(b) When the parties appeared in court on December 01, 2020 and the learned Judge made the direction orders relied upon he did not specifically forewarn the parties especially the Appellant that failure to comply with the orders to settle out of court before the next return date would result in the proceeding been dismissed.

(c) The learned Judge wrongly rejected the explanation given by the Appellants Lawyer for non-compliance and failed to consider the difficulty to settle out of Court on the basis that the Respondents had denied liability and denied that the Appellant was entitled to the relief claimed which denied was rebutted by the Appellant in its Reply to the Defense making it very obvious that trial was the only way the Appellants claim could be determined.

(d) Upon been made aware that any settlement out of Court needed to be guided by the pleadings filed in court the learned Judged fell into error by failing to consider that the parties could not be forced to settle out of court when settlement out of court was not mandatory and not the only option available to the parties to determine the proceedings and failed to exercise discretion to accept that the orders for settlement out of court were impossible to be complied with which should have been corrected by issuing fresh directions for the further conduct of the case when the facts before him supported such a finding.

(e) The learned judged erred by refusing to accept the explanation that the matter was still at Discovery stage and that without disclosure of relevant documents and either party engaging in Interrogatories if they chose to either party could not meaningfully prepare any statement of agreed and disputed facts and legal issues, and not be able to settle out of court.

(f) The learned judge erred and failed to consider that the orders for settlement out of court may have been issued in error or prematurely after the Appellant explained the difficulty of settlement in the absence of any admittance by the Respondents of liability for part or whole of the Appellant claim which if done would have resulted in the said orders been set aside and fresh directions issued to do justice to the parties.

(g) The learned judge erred by ailing to exercise discretion to set aside the orders of December 01, 2020 and to issue fresh directions for the further conduct of the case after the Appellant's Lawyer provided the explanation for non-compliance and submitted that issuance of fresh directions would not prejudice the Respondent.

(h) The learned judge erred by failing to consider that the Appellant had complied with the orders of February 04, 2021 in relation to payment of adjournment costs in the sum of K500.00 to the Respondent Lawyers before February 16, 2021 and erred to give more consideration to the failure by the Appellant to settle out of court.

3.2 In dismissing the Appellants claim the learned judge failed to properly consider the following overall facts:

(a) The matter was at discovery state and without either party having documents to be relied upon in their possession they could not be forced to settled out of Court.

(b) The delay to prosecute the case had been caused by the Defendants failure to file their Defense within the period required under the rules for which the learned judge readily granted leave to file their defense out of time against principles for extension of time,

(c) The learned judge misguided himself to hold that the Appellant s case was about defamation when the case was not about defamation but about professional negligence of the Respondents as the Appellants previous Lawyers.

3.3 The Appellant was denied natural justice or the right to be properly heard in the matter before the learned judge wrongly dismissed the Appellants claim preventing the Appellant from having its day in Court.

(a) The orders were not specifically made clear in court on December 01, 2020 and after been issued in chambers later that day not served had been uploaded onto the IECMS system.

(b) No forewarning notice was given to the Appellant on December 01, 2020 or anytime before February 04, 2021 that non-compliance of the order issued in chambers on December 01, 2021 would result in dismissal of the Appellant claim.

(c) The time give to the Appellants Lawyer to prepare an Affidavit setting out a more detailed explanation for non-compliance with court orders involving the period between 10:30 am and 2:00pm on the same day was too short and unreasonable.

(d) The exercise of discretion by the learned Judge to dismiss the Appellant claims was without proper basis and unsupported by the facts before the court which showed that the...