WorkCover Authority of NSW v Placer (PNG) Exploration Limited (2006) N3003

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 13 March 2006
• Court: National Court
• Citation: (2006) N3003
• Docket Number: OS 48 of 2005
• Year: 2006
• Judgement Number: N3003

Full Title: OS 48 of 2005; WorkCover Authority of NSW v Placer (PNG) Exploration Limited (2006) N3003

National Court: Lay J

Judgment Delivered: 13 March 2006

PAPUA NEW GUINEA N3003

NATIONAL COURT OF JUSTICE

OS 48 OF 2005

BETWEEN

WORKCOVER AUTHORITY OF NSW

Plaintiff

AND

PLACER (PNG) EXPLORATION LIMITED

Defendant

LAY J

PORT MORESBY

13 March 2006

PRACTICE AND PROCEDURE-application to register foreign judgement-whether judgement of declared court-whether voluntary submission to jurisdiction-whether debtor had place of business in foreign jurisdiction-adequacy of notice of proceedings contested-whether notice of proceedings accorded with rules of natural justice-inconsistent with public policy to register judgement-Reciprocal Enforcement of Judgements Act.

_____________________________

Facts

Mr Plibersek was stabbed to death in Port Moresby on 4th October 1997. His widow obtained a workers compensation award of AU$235,350 in the Compensation Court of NSW against the Defendant although her claim was against Placer Pacific Management Limited (a company incorporated in NSW) then called the First Respondent. The award was paid from the Plaintiff’s fund as the Defendant was uninsured in NSW. The Plaintiff obtained an order in the Compensation Court NSW that it be re-imbursed by the Defendant the amount paid out to the widow. In accordance with the provisions of NSW legislation the Plaintiff lodged the certificate of the award from the Compensation Court in the Registry of the Supreme Court of NSW and the Registry issued a Minute of Judgement. The Plaintiff seeks to register that judgement under the Reciprocal Enforcement of Judgements Act. Ch50 (the Act).On the application both the application for registration and grounds upon which it might be set aside were argued.

Held

To qualify for registration the judgement must be from a court, declared by the Minister under the Act, which has itself for the first time heard and finally determined the matter in proceedings before it. The original judgement was from the Compensation Court NSW, which was not a declared court, and the judgement therefore could not be registered.

Taylor v McGiffen NSW Supreme Court (unreported Wood J 15 July 1985)

S3 Reciprocal Enforcement of Judgements Act Ch50

The court should refuse registration of a foreign judgement if on the application for registration it appears to the court that the judgement, if registered, is one which on application by the judgement debtor, the court would set aside:

Re Word Publishing Co Pty. Ltd [1992] Qd R 336; Nygh & Davies, Conflict of Laws in Australia, Seventh Edition, para 10.7; Sykes & Pryles, Australian Private International Law, Third Edition, p129.

The findings of fact recorded in the judgement of the Compensation Court NSW are not evidence for the purposes of proving those same facts before this Court because through error the Defendant was not heard, it was injuriously affected by the judgement; and it could not fairly be said it was a party for the purpose of binding it to those findings in other proceedings..

Hollington v Hewthorne & Co Ltd [1943] KB 587 Cr Cross on Evidence 4th Ed p399., Cross on Evidence 2nd Australian Ed. by Gobbo, Bryne & Heydon at para 16.26 Mesulam Tomalana v Rabaul Pharmacy [1991] PNGLR 65, Jacques v Harrison (1883) 12 QBD 136, Winsor c Chalcraft [1939] 1 KB 279, Murfin v Ashridge [1941] 1 All ER 231, Craig v Kansen [1943] 1 KB 246.

The provisions of s5(2) of the Reciprocal Enforcement of Judgements Act Ch 50 are a complete list of the grounds on which jurisdiction may be found in a foreign court for the purposes of the Act.

Nygh & Davies Conflict of Laws in Australia 7th Ed. at para 10.8 Stenhurst Pty. Ltd. V Golding International Pty. Ltd (unreported 3/10/1998) N1377; Kalyk v Atlas Corporation Pty. Ltd (unreported 31/7/1998) N1760

The Defendant did not voluntarily submit to the jurisdiction in the NSW proceedings. It was not in a practical sense represented there by the First Respondent in those proceedings. There was no evidence of fraud or sharp practice or that the First Respondent in the NSW proceedings was a mere sham or façade for the Defendant. It was not appropriate in those circumstances to lift the corporate veil to impute to the Defendant that it had appeared by the appearance of the First Respondent in the NSW proceedings.

Odata Limited v Ambusa Copra Oil Mill Limited (2001) N2106 Pinbar Development Pty. Limited v TL Timber Pty. Limited (1999) N1857; New Zealand Company Law and Practice CCH.

The minimum requirement for adequate notice of proceedings is that the notice contains a fair statement of the case against the defendant, the consequences of a finding against the defendant and that the defendant has an adequate opportunity to defend the proceedings. The notice of the Compensation Court NSW proceedings served upon the Defendant was misleading; it sought no order for payment of money against the Defendant. The fact that the Compensation Court proceeded to make an order for payment of money against the Defendant without notice to the Defendant and without amendment and service of the pleading was not in accordance with the principles of natural justice. The judgement if registered would be set aside on the ground that it was against public policy to enforce it. This was an additional ground on which the judgement ought not to be registered.

Adams v Cape Industries Pty. Limited [1984] 1Ch 433 (CA); Aronson Dyer Groves, Judicial Review of Administrative Action; 3rd Ed. Pp499 and 500 and at p501; London Passenger Transport Board v Moscrop [1942] 1 All ER 97; Blay v Pollard and Morris [1930] 1 KB 628; Ume More & Ors v University of Papua New Guinea [1985] PNGLR 401.

Representation

Mr E Anderson for the Plaintiff

Mr I Molloy for the Defendant

_______________________________________________

LAY J: This is an application to register a foreign judgement which is normally heard ex parte pursuant to the provisions of National Court Rules O13 r69(2). On this application by arrangement between counsel and the Court argument was heard from both parties on the application for registration, because registration is opposed, and the parties were also heard on issues to be addressed on an application to set aside registration.

Mr. Plibersek was stabbed to death on or about 4th October 1997 in Port Moresby whilst employed on a contract with the Defendant Company in Papua New Guinea. Proceedings were taken in the Compensation Court of New South Wales. This is a statutory court established under the Compensation Court Act 1984 (NSW). The judges of that court have the “same rank, status and precedence…as a judge…of the District Court.” of NSW (see s9(5)) of the Compensation Court Act). The Plaintiff and the Defendant were each respondents in those proceedings. The Defendant is a company incorporated in Papua New Guinea having two issued shares which are owned by Placer Dome (PNG) Limited.

On 15th November 2002 the Compensation Court gave judgment relevantly that the Plaintiff pay to the applicant in those proceedings (Wendy Meeson, widow of the deceased) out of the WorkCover Authority Fund AU$235,350 for compensation plus interest and costs. The payment was ordered to be made from the Fund on the basis that the Defendant was not insured in NSW as required by the Workers Compensation Act 1998 (NSW). The Compensation Court further ordered that the Defendant reimburse the WorkCover Authority such amounts as it paid. This latter order was made pursuant to the provisions of the Workers Compensation Act 1987(NSW) Part 6 Div 6-Uninsured Liability and Indemnity Scheme.

The Workers Compensation Act (NSW) provides (s23) that a certificate of an award made under the Act can in some circumstances be filed in the District Court and the Registrar of the District Court is then directed to issue a judgement for the amount of the certificate. However the Workplace Injury Management and Workers Compensation Act 1988 (NSW) Section 362 provided that a certificate by the Registrar of the Compensation Court “that is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, operates as a judgment.” On 2nd November 2004 the Compensation Court judgment was filed in the registry of the Supreme Court of New South Wales pursuant to that provision.

There then issued from the Registry of the Supreme Court of NSW a document entitled “Minute of Order” which reads

“Pursuant to Section 362 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), judgment be entered in favour of the judgment creditor in the sum of $281,968.65 in accordance with the judgment delivered in the Compensation Court of New South Wales and matter number 1768 of 1999 on 15 November 2002.”,

and signed “Senior Deputy Registrar”. It is this document which the Plaintiff seeks to have registered.

Applications for registration of foreign judgments in Papua New Guinea are made under the Reciprocal Enforcement of Judgments Act Ch50 (“the Act”). Section 3 provides:

3. Application for, and effect of, registration of foreign judgements.

(1) Subject to Subsection (3), a person being a judgement creditor under a judgement to which this Part applies, may apply to the National Court—

(a)at any time within six years after the date of judgement; or

(b)where there have been proceedings by way of appeal against the judgement—after the date of the last judgement given in those proceedings,

to have the judgement...