N3003

PAPUA NEW GUINEA

[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 reimbursed 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 registered in the National Court.

(2)	On any application under Subsection (1) the National Court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgement to be registered.

(3)	A judgement shall not be registered if at the date of the application—

(a)	it has been wholly satisfied; or
(b)	it could not be enforced by execution in the country of the original court.

Ss4-8 omitted.

The Act defines a "judgement to which this Part applies" as:

S2(2)	Any judgement of a superior court of a foreign country to which this Part extends, other than a judgement of such a court given on appeal from a court that is not a superior court, shall be a judgement to which this Part applies if—

(a)	it is final and conclusive as between the parties to it; or

(b)	there is payable under it—

(i)	a sum of money, other than a sum referred to in Subparagraph (ii), not being a sum payable in respect of taxes or other charges of a similar nature or in respect of a fine or other penalty; or

(ii)	a sum of money payable in respect of a recoverable tax; or

(c)	it is given after the coming into operation of the notice under Subsection (1)(a).

So that an applicant for registration must show that:

1.	Judgement was given by a declared court (s3(1);
2.	it is final and conclusive between the parties (s3(1)(a);
3.	judgement is for a sum of money (s3(1)(b); and,
4.	It has not been wholly satisfied (s3(3).

The scheme of the Act provides for the Minister to gazette the countries and Courts from which he is satisfied substantial reciprocity would be obtained in registration of judgements. By notice in National Gazette No. G60 dated 9 September 1983, a prior notice was revoked and it was declared by the Minister that:

"the High Court of Australia, the Federal Court of Australia, The Supreme Court of each State of Australia, the Australian Capital Territory, the Northern Territory and Norfolk Island shall be deemed superior courts of Australia and those territories for the purposes of Part II of the …" (Act)

Declared Court

The applicant Plaintiff submits that the judgement to be registered is the judgment of a declared court because the document "Minute of Judgement" issued out of the Supreme Court of NSW, which is a relevantly declared superior court.
The Defendant submits that the judgement is not a judgement of a declared superior court because:

1.	the original decision was made and judgement given by the Compensation Court NSW, which is not a declared superior court for the purposes of the Act;
2.	to say a judgement shall "operate as" a judgement of the Court in which the judgement of the Compensation Court is registered is to acknowledge that it is not such a judgement;
3.	the applicant is "registration hopping";
4.	to qualify the judgement must be one made by a qualifying superior court in the sense of the court hearing and determining the matter and not just registering the decision of an inferior court;
5.	Under s2(2) the decision of superior court on appeal from an inferior court does not qualify for registration. Therefore nor should a decision from an inferior court merely registered in the registry of the superior court;
6.	where the legislature has intended to extend the meaning of "judgement" it has done so in clear and specific terms.

First I am not persuaded that I should pay any particular attention to the wording of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) for the purpose of interpreting the Act. It seems to me that even if the legislature of another state enacted, that for purposes of execution, all of the judgements of its inferior courts were judgements of the qualifying superior court, that would not alter the meaning intended to be given to "judgement of a superior court" by our Parliament in enacting the Reciprocal Enforcement of Judgments Act Ch50. However, that the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provides that "a certificate once filed operates as such a judgement" is an acknowledgment by that Act, that prior to registration, the certificate is not a judgement of the registering court.

I do think it important to look at other provisions of the Reciprocal Enforcement of Judgments Act to understand the purpose and effect of the Act and the intention of Parliament, which is described in the introductory words of the Act as:

(a)	to make provision for the enforcement in Papua New Guinea of judgements given in foreign countries which accord reciprocal treatment to judgements given in Papua New Guinea; and

(b)	for facilitating the enforcement in foreign countries of judgements given in Papua New Guinea,

The exception provisions of s2(2) of the Act are instructive. That section provides that a judgement of a superior court on an appeal from a subordinate court, for example, a District Court, is not a qualifying judgement. Now on such an appeal there would be a review of the evidence given in the lower court and submissions for the parties. The superior court would be constrained by the usual considerations of an appellate court interfering in the judgement of a lower court or by statutory powers to be exercised on appeal. But otherwise there would be the full operation of the superior court mechanism presided over by a judge. The Act makes it plain that such an appeal proceeding not good enough to qualify as a judgement of a superior court. 

It therefore is difficult to accept that the Act intended to treat as a judgement of a superior court the judgement of a court not relevantly declared, which has been passed over a declared superior court registry counter, entered in a register, duly stamped and signed by the prescribed official without any consideration whatever by a judge of that court.

In the Supreme Court of NSW in the case of Taylor v McGiffen (unreported Wood J 15 July 1985) the court dealt with registration of a judgement first obtained in the Ontario Supreme Court (which did not have reciprocity with New South Wales). The judgement was subsequently registered in the Queens Bench of Manitoba, which did have reciprocity. S6(1) of the New South Wales legislation was in the same terms as s5(1)(a)(i) of our Act. The proceedings were to set aside a judgement already registered pursuant to an ex parte application. His Honour found that:

"(p2) The application turns essentially upon the question whether a judgement given in a court of a country not declared under the Act can be registered in the Supreme court of New South Wales, by reason of an intervening registration in a declared court of a declared country…(p5/6)…I take the intention (of the act) to be one which would permit registration of a judgement in this court only if it is a judgement finally and for the first time determining the rights in issue, and then only if it is a judgement of a relevantly declared court...(p6)…In the present case, the judgement for registration purposes would be that of the Ontario Court which is not a relevantly declared court."

His Honour largely based that conclusion on the premise that the Act was designed to facilitate reciprocity of enforcement of judgements. Therefore, forum hopping, which would enable registration of a judgement from a country or court not declared by the Minister as providing reciprocity, would be contrary to the intention of the Act.

This application turns on the slightly different question of whether a judgement given in a court which is not a relevantly declared superior court can be given registration because it has been registered in a court which is a declared superior court, both courts being located in a declared country. However the analysis of the intention of the Act by Wood J still has considerable relevance because the Act is clearly intended to give reciprocity only to those courts declared by the Minister and no subordinate court in NSW or for that matter Australia has been afforded that privilege of reciprocity.

In my view to qualify for registration the judgement must be from a relevantly declared superior court which has itself for the first time heard and finally determined the matter in proceedings before it. Any judgement which falls short of that test may be a judgement by reason of the legislative draftsman’s art in the relevant country, but is not a judgement in the practical and real sense intended by the Act. I consider that view is strengthened by the definition of "judgement" in the Act and the use of the phrase "original court" in the Act, for example at s3(3). Judgement is defined in the Act as:

"judgement" means a judgement or order given or made by a court in any civil proceedings, or a judgement or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party;

The Concise Oxford Dictionary sets out the meaning of "proceeding" as follows:

proceeding / n. 

1 an action or piece of conduct (a high-handed proceeding).

2 (in pl.) (in full legal proceedings) an action at law; a lawsuit.

3 (in pl.) a published report of discussions or a conference.

The second example is the most appropriate to the circumstances of this case. I find that "proceedings" as used in the definition of judgement means legal proceedings, an action at law or a law suit, an action or suit in which a cause of action is litigated. The mere filing of a document in a registry could not be fairly described as such an action or suit. I hold that such filing is not a "proceeding" as that word is used in the definition of the word "judgement" in the Act. There is nothing to be determined by the superior court, the filing is a process but not a proceeding.

"Original court" is defined in the Act as meaning: "

"original court" in relation to any judgement means the court by which the judgement was given;"

The Supreme Court of NSW did not give judgement in any real sense. There were no proceedings before it. It did not give judgement in "proceedings". Its Registry simply registered the certificate of the award of the Compensation Court. What the NSW Supreme Court did is made plain by the wording of the document issued by it. That form of words makes it clear how the "Minute of Judgement" document came to be issued by the Court and serves not confuse it with judgement given by the Supreme Court in its own original jurisdiction. 

Sections 5(1)(a)(ii) and (iii) provide:

(ii)	the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

(iii)	the judgement debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or

Those provisions also support the conclusion that the judgement which is registrable is the one given by the court which first heard and determined the matter. As Wood J observed in Taylor v McGriffen:

"…the provisions…seem…to presuppose a determination on the merits."

Counsel for the Respondent has referred me to foreign authorities where the legislature has specifically extended the meaning of "judgement" to include the decisions of other tribunals which are not superior courts, such as The Administration of Justice Act (UK)─see Dicey and Morris on The Conflict of Laws 12th Ed. Vol.1 p632/633─ which has extended the meaning of "judgement" to include arbitration awards. Other states and countries have also extended the meaning of "judgement", see for example the definitions of "judgement" in s4 of the Foreign Judgements Act 1973 (NSW) and s3 of the Foreign Judgements Act 1991 (Cth). I accept that these references are examples of the parliaments of other states specifically extending the meaning of judgement, no doubt because there was a view that other types of decisions were not encompassed by the word "judgement". I am content to rest my decision on the basis that the plain and ordinary and intended meaning of "judgements given in the superior court in any foreign country" as used in s2(1) of the Act means, as I have stated above, judgements given after hearing and determination for the first time in proceedings before it by a relevantly declared court.

That is sufficient to determine the matter and I refuse registration of the judgement on the basis that the judgement of the original court was the judgement of the Compensation Court NSW, which is not a judgement of a declared superior court.

Counsel made extensive other submission on which I will record some comments.

Consideration of grounds for De- Registration on an Application to Register

The Applicant submitted that the Court ought not to entertain argument on reasons for setting aside registration, on an application for registration. I find the practice of anticipating the argument, which might be made on an application to set aside registration of the judgement, is supported by authorities, to the effect that the court should refuse registration 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 cited in Nygh & Davies, Conflict of Laws in Australia, Seventh Edition, para 10.7; Sykes & Pryles, Australian Private International Law, Third Edition, p129. 

Jurisdiction of the NSW Court

Section 5(2) of the Act sets out the circumstances in which the original court will be deemed to have had jurisdiction. Referring to very similar legislation (s7(2) of the Foreign Judgements Act, Commonwealth of Australia) Nygh & Davies Conflict of Laws in Australia 7th Ed. at para 10.8 says:

"It would seem that the conditions set out are exhaustive, and if the jurisdiction of the foreign court falls outside the statutory definition, it could not be recognised under the Act, even though it would have been recognised at common law."

That view is supported by decisions in this jurisdiction. In Stenhurst Pty. Ltd. V Golding International Pty. Ltd (unreported 3/10/1998) N1377 Andrew J said:

"…I am satisfied that the question of jurisdiction is to be determined solely upon the criteria of s5(2) of the Act and not otherwise."

And in the case of Kalyk v Atlas Corporation Pty. Ltd (unreported 31/7/1998) N1760 Kapi DCJ as he then was, said in that case, which was an application to set aside registration of a foreign judgement:

"The issue raised here is whether the Supreme Court of NSW is deemed to have jurisdiction under s5(2) of the Act."

In its written submission the Plaintiff concedes that s5 (2)(a)(i),(ii),(iv) & (b) do not have any application to this case. The Plaintiff must mean s5 (2)(a)(ii),(iii),(iv) & (b) as it later submits that s5(2(a)(i) and (v) may apply.

Before turning to those submissions I should first make some observations on the evidence relied upon for the Plaintiff. In its submission the Plaintiff sought to rely upon facts found in the judgement of the Compensation Court (NSW). No point was taken by the Defendant on this issue. However I am of the view that the court should apply the rules of evidence and base its decision upon evidence which is properly before it.

In relation to the facts found by the Compensation Court and contained in its judgement, the line of cases of which Hollington v Hewthorne & Co Ltd [1943] KB 587 is perhaps the most well known, hold that a fact which must have been found in order to convict cannot be placed in evidence in civil proceedings to prove that fact against the convicted person as a party to the civil proceedings, with various exceptions. In Cross on Evidence 4th Ed at p399 it is said that Hollington v Hewthorne "could probably be cited as authority for the proposition that all judicial findings are inadmissible as evidence of the facts found in subsequent proceedings which are not between the same parties or their privies." In discussing the rule in Hollington v Hewthorne in Cross on Evidence 2nd Australian Ed. by Gobbo, Bryne & Heydon the learned authors state at para 16.26 "the rule under discussion operates to exclude evidence of judicial findings in previous civil cases…". Phipson on Evidence 14th Ed para. 33-04 puts the general proposition as "… judgements are conclusive as to the facts decided as against parties and privies…". That proposition does not apply if a party affected by a judgement was, through some error, not heard: Jacques v Harrison (1883) 12 QBD 136 (mortgagee not joined), Winsor c Chalcroft [1939] 1 KB 279 (insurer bound to pay judgement not advised of action), Murfin v Ashridge [1941] 1 All ER 231 (application to set judgement aside refused, insurer applied in own name when its contractual right was to use insured’s name) Craig v Kansen [1943] 1 KB 246 (service on defendant inadequately proven) and Phipson on Evidence 14th Ed. Para 33-07. The cases cited are all applications to set aside a judgement which "injuriously affected" (the words used in Jacques v Harrison) a party not heard on the application for judgement. I find below, under the heading Public Policy, that the Defendant was not heard in the proceedings in the Compensation Court NSW because the notice of proceedings served on it did not fairly set out the possible consequences of the action. The notice mislead the Defendant into the belief that no order involving financial consequences for the Defendant was being sought against it. Consequently no purpose would be served by its appearance. As a consequence it did not appear at the proceedings. It cannot be fairly said that the Defendant was a party to the proceedings for the purposes of applying the general rule that facts found between parties are binding on them in subsequent proceedings. 

Apart from the common law rules, I can take judicial notice of a judgement of a court of a State of Australia (Evidence Act s44(a(i) and the affidavits from the Compensation Court NSW annexed to an affidavit of the person making the photocopies can be admitted (s44(b) but the reasons for judgement of that court are not a judgement for the purposes of s44(a) of the Evidence Act: Mesulam Tomalana v Rabaul Pharmacy [1991] PNGLR 65 (Ellis J). 

I find that the findings of fact in the copy of the lengthy and learned reasons for judgement of Judge Neilson of the Compensation Court NSW annexed to the affidavit of Andrew Mathew Combe sworn 4th April 2005 are not evidence for the purpose of proving those facts before this court. Accordingly any reference to them as fact in the submissions of the Plaintiff is irrelevant.

Voluntary Submission to the Jurisdiction of the Foreign Court

Section 5(2)(a)(i) of the Act provides that the original court will be deemed to have had jurisdiction if there was a voluntary submission to the jurisdiction.

It is common ground that the Defendant made no formal appearance in the proceedings in NSW. However the Plaintiff submits that the court should lift the corporate veil and find that because one subsidiary of the "principal controlling group" appeared in the proceedings in NSW another subsidiary, the Defendant, should be deemed to have made a voluntary submission to the jurisdiction.

The Plaintiff submitted that "the Second Respondent was represented and was aware of the proceedings through the First Respondent," which was Placer Pacific Management Limited (First Respondent). And "that the First Respondent performed functions for the Defendant in the hearing in the NSW proceedings". It seems to me to be most unlikely that the First Respondent (PPML) represented the Second Respondent at the proceedings. In annexure "O" to the affidavit of Andrew Matthew Combe filed for the Plaintiff at pp162-175 is the outline of the First Respondent counsel’s submissions to the Compensation Court NSW proceedings. Those submissions clearly seek to exculpate the First Respondent as employer of the deceased by emphasising the evidence which tended to establish that the Defendant was the employer. The First Respondent made submissions against the interests of the Defendant.

There is no evidence that the First Respondent in any way appeared for or represented the interests of the Defendant or performed functions for it in the Compensation Court NSW proceedings. The First Respondent’s position was consistent throughout those proceedings and indeed prior thereto, as the letter from Placer Pacific Limited to the Applicant’s then solicitors (page 141 of Mr Combe’s affidavit) shows, it always contended that the employer was the Defendant.

Next the Plaintiff submits that "the Defendant and the Second Respondent (I assume this should read First Respondent, as the Defendant was the Second Respondent) are the wholly owned subsidiaries of the parent company Placer Dome." It is not submitted which Placer Dome company is intended.

Mr. Combe’s affidavit annexes at "J" the affidavit of Michael Selinger sworn 10th May 2000, which at para 6 says "Placer Dome Asia Pacific Ltd is the new name for Placer Pacific Ltd…The Respondent Placer Pacific Management Ltd’s shares are almost all owned by Placer Dome Asia Pacific Ltd."

The affidavit of Melchior Togolo sworn 29th March 2005 annexes a company return showing that the 2 issued shares of the Defendant are owned by Placer Dome (PNG) Ltd.

There is no evidence of the connection between the two shareholders although commercial common sense suggests that at some stage in the corporate structure there will be a common shareholder.

On the question of lifting the corporate veil the Plaintiff relied upon the case of Odata Limited v Ambusa Copra Oil Mill Limited (2001) N2106 (Kandakasi J), where the Court held it could lift the corporate veil and hold the controlling shareholder liable for the acts of the 50% owned subsidiary. The case refers to a number of other decisions of this court in which the possibility of holding the parent company liable for the acts of the subsidiary is acknowledged. It is also acknowledged by those cases that generally in a contractual situation there must be some element of sharp practice or fraud to justify departing from the identity of the corporation - see Pinbar Development Pty. Limited v TL Timber Pty. Limited (1999) N1857 Kapi DCJ, as he then was, and New Zealand Company Law and Practice CCH extract of principles cited in the Odata decision, or that the existence of the subsidiary is a mere façade for the business of the debtor - see the Cape Case (infra) at pp541F-H, 544A-C & H 545 B & G 546 A, 547A-D & 549C-D.

There is no need for me to analyze the principles in great detail. It is sufficient to point out that there is no evidence of sharp practice, or fraud or anything approaching either in this case. Nor is there evidence that the existence of the First Respondent was a mere façade for the Defendant. Secondly this is not a case where it is sought to make a parent company liable for the acts of its subsidiary. At its highest the Plaintiff’s proposition could be put as making one subsidiary of a parent bound by the acts of another subsidiary, which has acted against the interests of the first subsidiary. I find no support in the case law referred to for that proposition, particularly so in the absence of anything suggesting some form of sharp practice on the part of the Defendant.

In my view the Plaintiff has not established any basis on which the Court ought to lift the corporate veil. I find that the Defendant did not voluntarily submit to the jurisdiction of the Compensation Court NSW.

Office or Place of Business in Country of Original Court

Section 5(2)(a)(v) of the Act provides the foreign court will be deemed to have had jurisdiction if the defendant had an office or a place of business in the country of the original court. The Defendant has filed sworn evidence that it had no such place of business. Much of the Plaintiff’s submissions on the issue are founded on facts found in the Compensation Court NSW proceedings which I have found are not evidence for the purposes of this court. There is evidence that the First Respondent acting on the instructions of the Second Respondent (the Defendant) drew up and sent to the deceased the draft contract of employment for his consideration under cover of a memorandum on the First Respondent's letterhead. This was done on the instructions of an officer of the Defendant so that the Defendant could use the First Respondent’s expertise. There is evidence that the deceased was in NSW on 7 occasions in 1997 before his death. There is no evidence that the Defendant had established and maintained at its own expense in the other country a place of business and had carried on from there its own business for more than a minimal amount of time through its servants or agents or through a representative, which has been regarded as the minimum requirement to treat a corporation as being present in a foreign jurisdiction - see Capes Case (infra) at p530D-G. However this point was not fully argued in submissions and as it is not necessary to do so I will not to express a concluded opinion on it.

Public Policy

Section 5(1)(a)(v) provides that registration shall be set aside where the enforcement of the judgement would be contrary to public policy. The Plaintiff submitted that it is not against public policy to enforce the judgement. The Defendant submitted that it was against public policy to enforce the judgement because public policy required the proceedings to accord with our understanding of natural justice. This in turn required due notice and a proper opportunity to be heard, which was not accorded the Defendant because the notice it received made no financial claims against it.

In Adams v Cape Industries Pty. Limited [1984] 1Ch 433 (CA) (Slade, Mustill and Ralph Gibson L.JJ) ("Cape") proceedings were taken in the United States against Cape Industries and another by 175 plaintiffs, for damages for personal injuries arising out of asbestos mining. Cape Industries Limited was served with the proceedings but did not appear. Since Cape were in default under United States Federal Rules, save in relation to damages, the pleadings were taken to be admitted. No judicial hearing took place. The judge signed a default judgement for over US$15.5 million. The awards made to individual plaintiffs fell into 4 bands, 67 were awarded US$37,000 each, 31 US$60,000 each, 47 US$85,000 each and 61 US$120,000 each. The judge directed that the total award should represent an average award of US$75,000 per plaintiff. But it was the plaintiff’s counsel and not the judge who selected the level of the bands and identified the plaintiffs to be placed in each band to produce the directed average award. On appeal to the Court of Appeal from the judgement of Scott J dismissing the application to register the judgement in Britain, the Court said (at p572A):

"A harsh but accurate summing up of what happened, is in our judgement, that those acting for the plaintiffs failed to give prior notice to the defendants of the unusual course which they intended to pursue…the effect on the defendant was, in our view, that they had at no material time knowledge of any basis for seeking relief from the Tyler (USA) Court in respect of the defect which Scott J rightly held to have been demonstrated by them to have occurred in the proceedings in the Tyler court."

Speaking earlier of the applicable law the Court said at p563A-564C:

"A number of decisions were cited to us in the context of the natural justice issue. However, the most important of them was Jacobson v Franchon 138 L.T. 386 because it was said on behalf of the plaintiffs to establish legal principles which are binding on this court and render the natural justice defence unsustainable on the present facts by limiting that defence to lack of notice and denial of proper opportunity to be heard. Furthermore it was common ground that this is the only case in which the Court of Appeal has considered points relevant to the questions raised in this case under the heading of natural justice issue.

In Jaconson v Franchon this court applied rigorously the principle that our courts will not impeach the judgement of a foreign court having competent jurisdiction on its merits. However the crucial passage in that case particularly relied upon by Mr. Falconer was a statement of Atkin L.J., who after referring to the judgement of Lindley M.R. in Pemberton v Hughes [1899] 1 Ch 781, 790, said at p 392 that a judgement could be impeached "if the proceedings, the method by which the court comes to a final decision" are contrary to English views of substantial justice", and continued:

"The Master of the Rolls seems to prefer, and I can quite understand the use of the expression, ‘contrary to the principles of natural justice’; the principles it is not always easy to define or to invite everybody to agree about, whereas with our own principles of justice we are familiar. Those principles seem to me to involve this, first of all that the court being a court of competent jurisdiction, has given notice to the litigant that they are about to proceed to determine the rights between him and the other litigant; the other is that having given him that notice, it does afford him the opportunity of substantially presenting his case before the court. Both those considerations appear to be essential if they are to be in accordance with natural justice." (Emphasis added.)

We will summarise our conclusions in relation to Jaconson v Franchon as follows:

(1)	Atkin L.J. in his judgement was not attempting to make an exclusive or comprehensive statement of the circumstances in which our courts will treat the procedure adopted by a foreign court in reaching its decision as offending against principles of natural justice.

(2)	Lord Hamworth M.R. was clearly of the view, at p.390, which we share, that the requirements of due notice and proper opportunity to be heard will, in the majority of cases, which can be expected to arise, sufficiently comprise the concept of natural justice in a procedural context, but he prudently qualified his statement by saying that they "almost, if not exclusively" comprise it.

(3)	We therefore reject the contention that the decision of this court in Jacobson v Franchon restricted the defence of breach of procedural natural justice to the requirements of due notice and opportunity to put a case. Scott J. was entitled, in our view, to direct himself by reference to the test stated by Lindley M.R. in Pemberton v Hughes [1899] 1 Ch. 781,790 and to consider whether the procedural defect alleged by Cape was such as to constitute a breach of an English court’s views of substantial justice. The point was not concluded against the defendants merely because they had been given proper notice of the application for default judgement. And would, if they had attended, have been allowed full opportunity to put there case.

(4)	However this court in Jacobson v Fanchon, was not required to consider the relevance, if any, of any remedy which might have been available to Jacobsen under the French legal system, whether by way of appeal or by application for the judgement to be set aside, if the hearing in the French court had itself constituted a breach of natural justice."

The Court of Appeal agreed with Scott J and found that the defendants should have been able to rely upon the USA court observing the requirements of its own rules. The procedure adopted by the judge in making the award of damages was outside those rules; it was an unexpected course of which the defendants had no notice. It was a course not consistent with an English court’s understanding of natural justice that such a course be pursued without notice. Consequently the judgement could not be registered.

Cape’s Case illustrates that the public policy ground for setting aside registration includes natural justice and that it is fundamental to the general understanding of natural justice that due notice, including due notice of any proposal to depart from the regulated practice of the court, and a proper opportunity to be heard, are given to the defendant in any proceedings, although that is not an exclusive statement of either natural justice or public policy.

"Notice and the opportunity to be heard before a decision is made, are generally regarded as fundamental…the major requirement is to notify the subject matter and potential consequences": Aronson Dyer Groves, Judicial Review of Administrative Action; 3rd Ed. Pp499 and 500 and at p501:

At the heart of the courts’ approach to the content of notice is the well known proposition of Lord Denning that, if a right to be heard is worth anything, it must carry with it the right to know the case that has to be met: Kanda v Government of Malaya [1962] AC 322 at 337 (PC)."

And of course on our understanding of natural justice a party cannot obtain relief which has not been sought or requested in the pleading─see London Passenger Transport Board v Moscrop [1942] 1 All ER 97 per Lord Russel of Killowen at p105; and cases must be decided on the issues on the record and the record must be amended if it is desired to raise other issues─see Blay v Pollard and Morris [1930] 1 KB 628 at 634 per Scrutton LJ. Both cases were cited by Pratt J in the Supreme Court in Ume More & Ors v University of Papua New Guinea [1985] PNGLR 401 at 405.

In the case before me it is uncontested that the last pleading with which the Defendant was served is described as the Second Further Amended Application in which the Defendant is named as the Second Respondent. The only order sought against the Defendant in that document was in the following terms:

"ordering the Second Respondent to cause payment of the compensation and costs awarded against the First Respondent to be made out of the WorkCover Authority Fund established under section 34 of the Workplace Injury Management and Workers Compensation Act 1988."

As I have said, the Defendant was the Second Respondent. The Third Respondent was the WorkCover Authority. It would be reasonable to believe that the Defendant had no ability to effect the terms of the order sought against it and that the reference to the Second Respondent was mistaken and should have been a reference to the Third Respondent.

No relief was sought against the Defendant whereby it would become liable to pay any money. The case for the Applicant disclosed in the pleading in the action before the Compensation Court NSW was that the First Respondent, Placer Pacific Management Limited, was the employer, not the Defendant. 

A perusal of the judgement of the Compensation Court reveals that during the course of the judgement it was found that the employer was the Defendant, the Second Respondent. It is not apparent how judgement was then given, and I find that it was so given, against the Defendant without notice to the Defendant of the change in the Applicant’s case to claim an order for the payment of money against the Defendant. Right from the opening words of the judgement, whether or not the worker was an employee of the Defendant (Second Respondent) was identified as a live issue to be decided. Having found that the worker was employed by the Defendant the court proceeded to make an award for payment of money against it without reference to the fact that the Applicant’s application sought no award for payment of money against the Defendant. 

No doubt had the Defendant appealed in NSW the oversight would have been rectified. However, paraphrasing the observations of the Court in the Cape Case in numbered para.4 last quoted above, this Court is not required to examine what remedy was available to the Defendant in the country of the original court if the hearing itself, constituted a breach of natural justice, which I find it did.

As in the Cape Case the Defendant ought to have been able to rely upon the notice which was served upon it as proper notice of the claim, which was made against it, and the relief which was sought against it. Indeed a fortiori in this case because, whereas in Cape the defendants were content to let the court make assessments of damages against them in accordance with the rules of the court, without appearing; in this case, on the notice it received, the Defendant should have been able to be content that no order of a financial nature for substantive relief at all would be made against it. 

The notice of the proceedings with which the Defendant was served was not just inadequate; it was positively misleading in relation to the ultimate consequences of the case. The Defendant did not receive adequate notice of the possible consequences of the action. The enforcement of the judgment is against public policy. If the judgement was registered, registration would be set aside on this ground. This is an additional ground for refusing registration of the judgement.

Costs follow the event.

ORDERS:

1.	The Plaintiff’s action for registration of the foreign judgement is dismissed;

2.	The Plaintiff is to pay the Defendant’s costs of and incidental to the proceedings.
____________________________________
Lawyers for the Plaintiff		:	Gadens
Lawyers for the Defendant		:	Allen Arthur Robinson