The Independent State of Papua New Guinea and Others v Mason Pinch

• Jurisdiction: Papua New Guinea
• Judge: Makail,Murray,Berrigan JJ
• Judgment Date: 13 April 2023,20 March 0310,29 April 2021,13 October 2021,10 November 2038,10 November 2021,15 November 2021,06 May 2022,02 May 2022,09 May 2022,13 May 2024,21 May 2024,06 May 2024,10 June 2024,04 August 2024
• Neutral Citation: SC2374
• Citation: SC2374, 2023-04-13,0310-03-20,2021-04-29,2024-05-13,2024-05-21,2021-10-13,2038-11-10,2021-11-10,2021-11-15,2022-05-06,2022-05-02,2024-05-06,2022-05-09,2022-05-09,2022-05-09,2022-05-09,2024-06-10,2022-05-09,2024-08-04
• Counsel: Mr. R. Kepaya, for Applicants,No appearance, for Respondent
• Docket Number: SC REV. NO 19 OF 2022
• Hearing Date: 28 March 2022,13 April 2022
• Court: Supreme Court

SC2374

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO 19 OF 2022

Supreme Court Review Pursuant to Section 155(2)(b) of the Constitution, Application by

Between

The Independent State of Papua New Guinea

First Applicant

and

Papua New Guinea Defence Force

Second Applicant

and

Major General Gilbert Toropo, in his capacity as the Commander, Papua New Guinea Defence Force

Third Applicant

and

LT Col Roderick Noyamefa in his capacity as the Commanding Officer, Papua New Guinea Defence Force Support Battalion

Fourth Applicant

v.

Mason Pinch

Respondent

Waigani: Makail, Murray & Berrigan JJ

2022: 28^th March & 13^th April

SUPREME COURT REVIEW — Review against final judgment following ex parte trial — Explanation for non-appearance at trial — Lack of service of notice of trial — Denial of natural justice — Breach of civil trial process-Possible defence on merit — Constitution — Sections 59 & 155(2)(b)

SUPREME COURT REVIEW — Practice & Procedure — Grounds of review — Grounds raised new factual and legal issues not raised in National Court — Fresh evidence — Leave required to adduce fresh evidence and raise points of law — Requirement to plead decision of National Court sought to be reviewed — Constitution — Section 155(2)(b) — Supreme Court Act — Section 6(1)(a) — Supreme Court Rules — Order 7, rule 55(a)

PRACTICE & PROCEDURE — Civil proceedings — Originating summons — Requirement to file notice of intention to defend — Default in giving notice of intention to defend — Consequence of — National Court Rules — Order 4, rules 9 & 33(b)(i)

Cases Cited:

Abiari v. The State [1990] PNGLR 250

Avia Aihi v. The State [1981] PNGLR 81

Bank South Pacific Limited v. Gibson Nad (2010) SC1278

Ben Kairu v. The State (2005) SC782

John Peng v. The State [1982] PNGLR 331

James Pari v. The State [1993] PNGLR 173

Kumagai Gumi & Co Ltd v. National Provident Fund Board Trustees (2006) SC837

Paga Hill Development Company (PNG) Ltd v. Powes Parkop (2019) SC1877

Rawson Construction Ltd v. Department of Works (2005) SC777

Telikom PNG Limited v. ICCC (2008) SC906

The State v. Toka Enterprises Limited (2018) SC1746

William Chilen v. The State (2011) SC1099

Counsel:

Mr. R. Kepaya, for Applicants

No appearance, for Respondent

Solicitor General: Lawyers for Applicants

Gibson Bon Lawyers: Lawyers for Respondent

JUDGMENT

13^th April, 2023

1. BY THE COURT: This is an application for review pursuant to Section 155(2)(b) of the Constitution.

Summary of Chronology of Events

2. Based on the affidavits in the review book, the chronology of events giving rise to the application for review are uncontested and may be summarised as follows:

• On 20^th March 2020 the respondent expressed an interest to purchase a motor vehicle from the second applicant for K6,000.00. The motor vehicle is described as a Toyota Ten-Seater Bearing Registration No: ZDZ 310. He paid an application fee of K500.00.

• On 29^th April 2021 the Defence Force Board of Survey (“BOS”) approved to write-off and sell three motor vehicles. One of the motor vehicles is the Toyota Ten-Seater. This was the motor vehicle that was the subject of litigation in the National Court.

• According to the Register of Write-Off, the motor vehicle is either a 2012 or 2013 model. The BOS decision was supported by an Equipment Inspection and Sentencing Report certifying that an inspection of the motor vehicle was done and approved for disposal due to wear and tear.

• The BOS accepted the respondent's offer, and the ownership of the motor vehicle was transferred to the respondent.

• By a letter to the BOS dated 13^th May 2021, the third applicant directed the BOS to cease any sale of motor vehicles. The third applicant gave two reasons:

1. Unless there is a fleet of replacement motor vehicles and proper audit done to replace the existing ones.

2. Uncertainty in availability of funds for new fleet of motor vehicles.

• The motor vehicle was impounded by the applicants. On 21^st May 2021, the respondent's lawyers issued a letter of demand to the fourth applicant to release the motor vehicle and it was released to the respondent.

• On 13^th October 2021 the respondent arranged for the registration of title in his name at the Motor Vehicles Insurance Limited (“MVIL”).

• On 10^th November 2021, the respondent commenced proceedings at Waigani National Court styled OS No 38 of 2021. In the originating summons, he sought a declaration that the third and fourth applicants are illegally impounding the motor vehicle and an order that it be returned to him.

• The respondent served the originating summons with other court documents including his affidavit in support filed 10^th November 2021 on the first applicant by leaving copies with a Miss Tau Embara the acting executive assistant of the Solicitor General's Office on 12^th November 2021.

• He also served the originating summons with the same court documents and his affidavit in support on the second, third and fourth applicants by leaving copies with Mape Vise the legal clerk at the office of these applicants on 15^th November 2021.

• The originating summons stated that the applicants are to give a notice of intention to defend within 30 days after service.

• The applicants did not file a notice of intention to defend within 30 days after service of the originating summons, but the respondent's lawyers continued to serve court documents and letters on the applicants on the progress of the matter.

• The matter was given a trial date of 6^th May 2022.

• On 2^nd May 2022 the respondent's lawyers served a notice of trial under cover letter of 29^th April 2022 on the fourth applicant. They did not serve any on the first applicant at the Solicitor General's Office.

• On 6^th May 2022 Mr Fehi a legal officer from the Legal Directorate of the second applicant attended to the matter at Waigani National Court, but the presiding judge was unavailable, and the matter was stood over to the Registry for a new date to be given. He enquired with staff at the Registry but was not informed of the next trial date.

• The matter was relisted for trial on 9^th May 2022 at 9:30 am. None of the applicants was notified of the next trial date.

• On 9^th May 2022 Mr Kumbu appeared on brief from Mr Bon of Gibson Bon Lawyers for the trial. There was no appearance by counsel on behalf of the applicants. Trial commenced and concluded.

• A judgment was entered in favour of the respondent. The orders were, a declaration that the respondent was the legal owner of the motor vehicle, a further declaration that the third and fourth applicants illegally impounded the motor vehicle and, an order that the applicants returned it to the respondent.

• The order of the National Court of 9^th May 2022 was served on the applicants by leaving a copy with the Legal Directorate on 24^th May 2022.

• After becoming aware of the order of 9^th May 2022 the second respondent relied on Section 70 of the Defence Act and issued a notice to the respondent to “requisitioned the motor vehicle” to make it available for the Defence Force Medical Services as an ambulance.

• The motor vehicle was removed from the respondent and returned to the Taurama Army Barracks.

• The application fee of K500.00 was refunded to the respondent.

• On 10^th June 2022 on behalf of the applicants, the Solicitor General filed a notice of intention to defend. As they were outside the time limitation period, no leave was sought and granted to file this notice.

• On the same date, the Solicitor General filed a motion and sought an order to set aside the judgment of the National Court of 9^th May 2022. This motion was struck out for want of prosecution.

• Subsequently, on 4^th August 2022 the Solicitor General filed another motion seeking the same order. On 22^nd August 2022, the National Court refused the motion.

• As they were outside the time limitation of 40 days to file an appeal, on 25^th August 2022, on behalf of the applicants, the Solicitor General filed an application for leave to review.

• On 12^th September 2022 a single judge of the Supreme Court granted leave to the applicants, to file an application for review. On 13^th September 2022 the presiding judge granted an order to stay the National Court proceedings generally.

• On 20^th September 2022 the applicants filed the application for review.

Review of National Court Decision

3. According to the application for review the applicants are not seeking review of the ruling of the National Court of 22^nd August 2022 which refused the motion seeking an order to set aside the judgment of 9^th May 2022 but the final judgment of 9^th May 2022.

Grounds of Review

4. At paragraph 4 of the application for review, the grounds of review are:

“(a) The Learned Trial Judge erred in law in failing to give the Appellants (Applicants) an opportunity to be heard on the 9^th of May 2022 for trial thereby breaching the principles of natural justice.

(b) The Learned Trial Judge failed to satisfy herself that the Appellants (applicants) were given reasonable notice and opportunity to be heard on the 9^th of May 2022.

(c) The Learned Trial Judge erred in law when it (sic) conducted a trial without the respondent's Lawyers filing and serving the relevant notices under the Evidence Act s. 35.

(d) The Learned Trial Judge erred in law in hearing the respondent's application pursuant to the Constitution s. 155(4) when it was actually a contract enforcement proceeding. The Constitution s. 155(4) provision is to be relied upon to protect the primary rights of parties in the absence of other relevant laws.

(e) The Learned Trial Judge erred in fact and law when it (sic) made a finding that the respondent had lawfully acquired the vehicle ZDZ 310 through the Board of Survey process when there was a lawful directive given that cancelled the board of survey process through a directive no. 12 of 2021.

(f) The Learned Trial Judge erred in fact and law when it (sic) found that the respondent was the lawful owners...