N8276

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP No. 51 of 2016 (COMM)

BETWEEN

VINCENT ANG
First Plaintiff/First Cross-Defendant

AND:
MARALIZA INVESTMENT LTD (1-26478)
Second Plaintiff/Second Cross-Defendant

AND:
MARALIZA LIMITED
First Defendant/First Cross-Claimant

AND:
BARRY JAMES TAN
Second Defendant/Second Cross-Claimant

AND:
STEPHEN TAN
Third Defendant

AND:
WILLIAM JACKSON
Fourth Defendant

Waigani: Anis J
2019: 27 November
2020: 24 April

NOTICE OF MOTION – request for appointment of an examiner to administer examination under oath – Order 11 Rule 8(a) – National Court Rules – considerations discussed – whether discretion should be based on circumstances of each case – circumstances of the case discussed

Overseas Case Cited:

Coch v, Allcock & Co. [1888] 21 QB 178

Counsel:

Mr I Molloy with counsel assisting Mr S Nutley, Lawyers for the Plaintiffs
Mr I R Shepherd, Lawyer for 1st and 2nd Defendants
Ms Tusais, for the 3rd Defendant
Mr B Frizzell, for the 4th Defendant

RULING

24th April, 2020

1.	ANIS J:	The plaintiffs applied for various relief in an interlocutory application.  Amongst them, was an order for the Court to appoint of an examiner abroad, to administer the evidence of one of its witnesses under oath.  The witness was the first plaintiff.  The notice of motion (application) was moved on 27 November 2019.  The application was contested.  I reserved my ruling to a date to be advised.

2.	Parties have been notified so I will rule on it now.

BACKGROUND

3.	The first plaintiff is suing the defendants for, amongst others, specific performance and breach of contract.  Briefly, he and the second and third defendants were once all shareholders of the first defendant.  He claims that it had been agreed amongst themselves that he would redeem his shares in the first defendant which were worth around K12,000,000 at that time, and in return, that all the shares in the second plaintiff, which was then a subsidiary of the first defendant, would be transferred over to him.  He claims that the real value of the second plaintiff was in a property which he had thought to be owned by the second plaintiff.  The property, he says, was worth around K12,000,000.  After the transactions, he said he found out that the title to the property was in fact in the name of the first defendant.  He said the property was worth about K12,000,000 which was about the same value of the shares that he had redeemed to the first defendant.  He said it was a mistake and that it should have been a matter of correcting it, that is, to have the property transferred to the name of the second plaintiff.  However, he said that attempts by himself to get the first, second and third defendants to facilitate the transfer of the property to the second plaintiff had been unsuccessful.

4.	He was aggrieved and now files this proceeding.

MOTION

5.	The present application was filed by the plaintiffs.  I granted relief 1 and 2 on 25 November 2019.  Essentially, the plaintiffs had sought dispensation of the application and vacation of the trial date.  The 3rd relief, which is the subject of this ruling, was set down for hearing on 27 November 2019.  It reads, 

Pursuant to Order 11 Rule 8(a) and in accordance with Form 48 of the National Court Rules Dr Dominic Katter of Level 35 Santos Place, 32 Turbot Street, Brisbane, Queensland, Australia, be appointed examiner for the purpose of taking the examination on oath of the First Plaintiff/Cross-Defendant Mr Vincent Ang in Brisbane, Queensland, Australia.

ISSUE

6.	The main issue of course is whether there are valid reasons for this Court to make an order allowing examination of a witness, under Order 11 Rule 8(a) of the National Court Rules.

ORDER 11 RULE 8(a)

7.	Order 11 Rule 8(a) reads, and I quote, 

Division 2.—Evidence by Deposition.
8.	Order for examination of witness. (27/1)
The Court may, for the purpose of proceedings in the Court, make orders —
(a)	in Form 47 for the examination of any person on oath before an officer of the Court or before such other person as the Court may in Form 48 appoint as examiner at any place whether in or out of Papua New Guinea; or
……

8.	In this case, the applicant is requesting the Court to make an order for examination under oath of the first plaintiff, and I quote, before such other person as the Court may in Form 48 appoint as examiner at any place whether in or out of Papua New Guinea.  The person proposed to administer examination is one Dr. Dominic Katter who is based in Brisbane, Australia.  The plaintiffs request that he be appointed as an examiner to examine the first plaintiff under oath.

9.	The Court’s power is discretionary under Order 11 Rule 8.  And I note that it is the applicant who would have the burden of proof, that is, to justify or show good reason(s) as to why such a process is necessary instead of in the normal fashion.  I am unable to find any case in this jurisdiction to provide guidance.  Parties through counsel have drawn my attention to the case of Coch v, Allcock & Co [1888] 21 QB 178.  The case, in my view, is relevant for this purpose.  The Court of Appeal held and I quote,

A party is not entitled to a commission ex debito justitiae (as a matter of right) upon shewing that a material witness is resident out of the jurisdiction.  The granting of the commission is a matter of judicial discretion to be exercised according to the particular circumstances of each case.

In a case where it is shewn that witnesses were out of jurisdiction and their examination on commission abroad would be much less expensive than bringing them to the trial in England, and there were nothing to shew that their presence in court was essential, the Court of Appeal affirmed the order of the Queen’s Bench Division that the commission should issue.

10.	The bottom line, in my view, is this.  The Court must exercise its discretion based on the particular circumstances of the case.

EVIDENCE

11.	The plaintiffs’ evidence is this.  Mr Ang said that on Saturday, 23 November 2019, he and his wife travelled into Papua New Guinea from Australia, to attend the trial.  He said he was required to give evidence for the plaintiffs at the trial which has been set for hearing for 2 days, that is, from the 25th to the 26th of November 2019.  He said that upon his arrival at the Port Moresby Jackson’s International Airport, he was detained by the immigration officials.  He said he was told that the nature of his detention was criminal in nature.  He said he was detailed and later transferred from the airport to the Bomana Correctional Service.  He said he spent a night there without being charged.  He said he was not formally informed of what charge or crime he was being charged under or was alleged to have committed.  He said on the next day, early on Sunday morning, 24 November 2019, he was taken straight back to the airport from Bomana where he said that he was told to board a flight out to Brisbane.  He said he had to pay an additional ticket fee of K506 for the changes that had been made to the return tickets for both himself and his wife.  Again, he said he was not told of why he had been detained and why he was told to leave the country.

12.	The defendants did not file any evidence to rebut these facts or claim by the first plaintiff.

13.	I have considered the evidence.  I must say at the outset that I find the first plaintiff’s evidence to be credible.  The first reason is this.  Mr Ang’s recollection of the facts of what he said had happened to him on 23 and 24 November 2019 were not challenged by the defendants.  The second reason is this.  Mr Ang’s story is corroborated.  The first is the evidence of Elizabeth Nawason.  She gave evidence which says that she had tried to receive information from the Papua New Guinea Citizenship & Immigration Authority (the Immigration office) regarding the detention of the first plaintiff, but that it had been to no avail.  The second corroboratory evidence is a letter by the plaintiffs’ lawyers Fiocco & Nutley Lawyers.  The letter is dated 26 November 2019.  Evidence shows that the letter had been sent to the Immigration office requesting answers for actions taken against their client, namely, the first plaintiff on 23 and 24 November 2019.  In particular, I note that the plaintiffs’ lawyers had requested the Immigration office to furnish details of the criminal nature of the complaint that the Immigration office had placed or alleged against the first plaintiff.  The letter also requested the Immigration office to relent on the travel ban so that the first plaintiff could be permitted to enter the country.  All these requests and queries it seems went unanswered.  The third reason why I find the first plaintiff’s evidence credible is this.  The plaintiffs’ counsel and other immigration officials are named in the plaintiffs’ evidence.  They appear to have been involved at various times of the incident.  If the defendants had issues with the first plaintiff’s evidence or account of what had transpired, they were at liberty to summon or call these persons to the Court, which they have not.

14.	Let me also say this.  It is not for the plaintiffs or the defendants to second guess the reasons or to try to explain or justify the actions of the Immigration office concerning the first plaintiff.  It appears, based on the evidence adduced, that the first plaintiff and his lawyers have done their best to try to find out why the Immigration office had acted in the manner as it had done to the first plaintiff.  In the meantime, the plaintiffs have their case to pursue.  Whether it be to do with the first plaintiff’s visa or whether processes under the Migration Act Chapter No. 16 (the Migration Act) had not been observed, in my view and with respect, are or would be separate matters.  For this Court to have regard to these considerations, in my view, would be speculative, and perhaps, the Court may also be viewed as venturing outside or beyond the purpose of the present application.

15.	I will however remark that the actions of the Immigration office appear odd or unusual.  I also note that the first plaintiff’s life as well his rights may appear to be at some level of risk or jeopardy by the actions of the immigration officials.  To send someone straight from the airport to be kept at the country’s largest jail or prison facility without being properly notified of the reasons, is something which, for this present application, cannot be treated lightly.  In other words, due regard of the incident must be given in the exercise of the Court’s discretion, in the application.  Let me remind myself that I not making a finding on the correctness or legality of the actions that were taken by the Immigration office.  Like I said, that is something that is not before this Court.

16.	So given the uncontested evidence as presented by the first plaintiff, I see that this is a case where I may be in position to exercise my powers, that is, under Order 11 Rule 8(a) of the National Court Rules.  It seems clear that the first plaintiff, for reasons only known to the Immigration office, had been prevented from entering the country.  What was at stake was the trial, which had been fixed for 2 days from the 25th to the 26th of November 2019.  The first plaintiff had flown into the country for that, but he was unable to attend the trial to give evidence due to his detention and eventual expulsion from the country.  Evidence adduced shows various attempts by his lawyers who have unsuccessfully tried to seek clarification from the Immigration office regarding their client.

17.	I note the submissions of the first and second defendants.  One in particular is this.  Counsel argues that the 1st plaintiff has not exhausted the processes, and that he should do that first.  Counsel submits that that also may include the option for judicial review to challenge the actions of the Immigration office against the first plaintiff, or otherwise exhaust other processes that are set out under the Migration Act.  I will add this to what I have already stated above.  Whilst these may be valid options which the plaintiffs may choose from, applying under Order 11 Rule (8)(a) is also an option that is available to them to take or choose from.  And they have invoked that in the present application.  The plaintiffs, in my view, are entitled to do so.  In fact, the option appears to be sensible or appropriate under the circumstances of the case.  This matter was ready for trial but had been vacated, so it appears that the option by the plaintiffs also takes into consideration the need for an expedited hearing.

18.	Another concern raised by the first and second defendants is this.  They argue that the first plaintiff is a crucial witness; that the matter of contention at trial, namely, the alleged agreement, is oral in nature which is why, they submit, that it is important that Mr Ang’s demeanor be observed by the Court during examination in chief and cross-examination.  As such, they oppose the application.  In my view, witness demeanor may be relevant.  But it is one and not all what the Court would be required to consider, that is, whether it be from the said witness or from the evidence in its entirety.  I also note that the plaintiffs’ counsel has indicated that examination may be recorded and that the recorded evidence may be before the Court for consideration.  That is an option that may be looked at and agreed upon by the parties, or that is something that may be left to the discretion of the examiner to decide.

19.	The final consideration argued by the parties relates to cost.  The first and second defendants argue that it will be an expensive exercise if the Court were to order examination of the first plaintiff’s evidence under oath to be administered in Brisbane, Australia.  The plaintiffs’ submit otherwise.  I have noted the arguments.  I will say this.  For the reasons that I give above, I find that the costs that will be incurred for this exercise, are necessary under the circumstances of this case.  Costs will also be minimal since Brisbane is closer than say if I were to order administration in jurisdictions that are further away from this jurisdiction.

SUMMARY

20.	When I weigh all these, I will say that I am inclined to exercise my discretion and grant term 3 of the relief sough in the application. 

FORM 48

21.	I will issue an order in accordance with Form 48 with modification to the extent that it will involve exercise of my power to make an order for the examination of the first plaintiff on oath before such other person as the Court may appoint as examiner at any place out of Papua New Guinea.  In this instance, I will appoint Dr. Dominic Katter to be the examiner who will conduct the examination of the first plaintiff under oath in Brisbane, Australian under times to be set by the examiner, that is, as I will indicate below in accordance with the particulars of Form 48.

22.	I will also issue an order for the parties to apply for further directions or variation if required.

COST

23.	In relation to cost for the application, I will order cost as sought in the application, which is that cost will be ordered in the cause.

THE ORDERS OF THE COURT

24.	I will make the following orders:

1.	I grant relief 3 in the plaintiffs’ notice of motion filed on 26 November 2019.

2.	I make the following orders:

(i)	Pursuant to Order 11 Rule 8(a) and in accordance with Form 48 of the National Court Rules, Dr Dominic Katter of Level 35 Santos Place, 32 Turbot Street, Brisbane, Queensland, Australia, is appointed examiner for the purpose of taking the examination on oath of the First Plaintiff/Cross-Defendant Mr Vincent Ang in Brisbane, Queensland, Australia, in accordance with the rules of this Court (but without the power to compel a witness to attend, if this is required by a convention).

(ii)	That the plaintiffs shall give to each other interested party (7) days' notice in writing of the date on which the plaintiffs propose to send the minute of this order to the examiner.

(iii)	That not less than (4) days after that notice has been given, each party shall give to the other the name of his agent at a place to whom notices may be sent.
(Complete as in general form of minute of order under Order 12 Rule 18).

3.	Parties are at liberty to apply for further directions or orders upon giving 3 clear days’ notice. 

4.	Cost of the application shall be cost in the cause.

5.	Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

The Court orders accordingly.

_______________________________________________________________
Fiocco & Nutley Lawyers:	Lawyers for the 1st and 2nd Plaintiffs
Ashurst PNG Lawyers:	Lawyers for the 1st  and 2nd Defendants
Danton PNG Lawyers:	Lawyers for the 3rd Defendant
WarnerShand Lawyers:	Lawyers for the 4th Defendant