SC1521

                                                 PAPUA NEW GUINEA	
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 11 OF 2015

BETWEEN

AMBASSADOR PETER MAGINDE
Appellant

AND
THE STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Lenalia, Geita, Pitpit JJ.
2016: 	22nd February, 30th June

LEGISLATION –

Papua New Guinea Cases Cited:

Ambassador Peter Maginde v The Independent State of Papua New Guinea, WS 893/2013
Bean v Bean [1980] PNGLR 307
Curtain Brothers (PNG) Ltd v UPNG (2005) SC 78 
Telikom PNG Limited v ICCC (2008) SC 906

 Overseas Cases Cited:

None

Legislation Cited:

Supreme Court Act 
Wrongs (Miscellaneous) Provisions Act (Chapter 297)

Counsel:

Mr. Geoffrey Purvey, for the Appellant
Ms. Irene Mugugia, for the Respondent

30th June 2016

1.   BY THE COURT:	This is an appeal pursuant to s 14 (1) (b) Supreme Court Act. Civil appeals lies to the Supreme Court from the National Court on a question of law or on a question mixed law and facts.
2.	The appellant appeals against part of the decision of His Honour Sir Bernard Sakora given on 8 December 2014 in WS 893/2013: Ambassador Peter Maginde v The Independent State of Papua New Guinea.
3.	The National Court orders in contention include the following: (1) The Court erred in mixed fact and law when it proceeded to dismiss the proceedings in its entirety in circumstances where no application for dismissal was before the court; (2) The Court erred in mixed fact and law when it proceeded to dismiss the proceedings in its entirety in circumstances where no opportunity was accorded to the Appellant to address any issues it may have had which may give rise to its decision to dismiss the proceedings; (3) The Court erred in mixed fact and law in holding that the claim was based on vicarious liability when in fact the claim related to non-payment of entitlements owed to the Appellant under a contract of employment between the State and the Appellant; (4) The Court erred in mixed fact and law in holding that the State can only be named as a party to the proceedings as a nominal defendant where vicarious liability is in issue when in fact the issues based on non-payment of salaries and entitlements based on a contract between the Appellant and the Respondent; (5) The Court erred in mixed fact and law in holding that the pleadings were defective because the Heads of Departments of the appropriate departments were not named as parties and the parties and the phrase “vicarious liability” was not used in the pleadings; (6) The Court erred in law in its application of Section 1 of the Wrongs (Miscellaneous) Provisions Act (Chapter 297) in circumstances where the claim did not raise issues of vicarious liability rather it raised issues related to non-payment of entitlements under a contract of employment between the Appellant and the Respondent.
4.	The law is well-settled that an appellate court should be slow to interfere with the exercise of a discretionary power by the lower court unless the appellate court is satisfied that the court below:
a)	acted upon a wrong principle, or
b)	gave weight to extraneous or irrelevant matters, or
c)	failed to take into account relevant consideration, or
d)	made a mistake as to the facts,
and even where there is no identifiable error, the appellate court can infer such an error if the resulting judgment is “unreasonable or plainly unjust”. Leading case authorities establishing these principles include Bean v Bean [1980] PNGLR 307; Curtain Brothers (PNG) Ltd v UPNG (2005) SC 78; and Telikom PNG Limited v ICCC (2008) SC 906.
5.	In the matter before this Court it is clear that only two matters were argued before the court below on 23 October 2014 and reserved for ruling to 28 October 2014. They include the following:
a)	The Respondent’s application to file defence out of time and;
b)	The Appellant’s application seeking default judgment.
6.	The Appellant has complained that the lower court’s exercise of discretion to dismiss the proceedings in its entirety was erroneous as no such application was put before him. This in essence is a summary of grounds 1 and 2 of the appeal.
7.	The Court transcripts shows that the primary Judge’s discourse with Lawyers and his eventual ruling makes no mention of disposition on the two matters raised before him. Furthermore none of the Lawyers were invited to address him on the issue of ultimate disposition of the Writ of Summons.
8.	Therefore the Appellant’s contention that primary Judge failed to rule on his default judgment application and that he was denied natural justice when not invited by the Court to address it on dismissal has merit.  
9.	It is clear that the primary Judge gave weight to extraneous or irrelevant matters and that he failed to take into account relevant considerations. We are therefore satisfied that there was an error in the trial Judges exercise of discretion.
10.	Accordingly we uphold grounds 1 & 2 of the appeal.
11.	Grounds 3, 4 & 5 all raise issues of the court erring in directing its mind to irrelevant considerations.
12.	The Appellant says that the question before the Court was breach of employment contract under s 1 Wrongs (Miscellaneous) Provisions Act (Chapter 297) and not vicarious liability.
13.	It is clear from the Appellants Writ of Summons that the thrust of his argument was based on breach of contract by the Respondent. The primary judge has to his credit acknowledged the significance of the appellant’s writ however has misdirected his mind to holding that such writ was defective in that only the State was named as the respondent.   His Honour has correctly identified that the State was a nominal defendant and cannot be sued on its own.  The State Agencies contained in the writ were omitted hence the principle of vicarious liability invoked.  However that was not the law pleaded.  The appellant pleaded breach of contract pursuant to s 1 Wrongs (Miscellaneous) Provisions Act (Chapter 297.)  The trial judge has gone into great lengths to establish the flaws in the appellant’s writ of summons based on a principle of law that was not pleaded before him. 
14.	In our view the trial judge erred in acting upon a wrong principle of law. Overall we consider that properly directed the trial judge would have found that he was yet to rule on two outstanding issues before him prior to launching into dismissing the writ in its entirety.  Hence the need for great care when considering a party’s right to a fair trial.
15.	The Respondent concedes that there was no application before the court for the proceedings to be dismissed however advanced that the court’s exercise of inherent jurisdiction to dismiss was based on improper pleadings. Might we add here that the respondent’s reply to this appeal grossly flawed. The primary issue before the trial judge was the ruling on two motions: First was the respondent’s application to file their defence out of time and secondly the appellant’s application to secure a default judgment. In our view the respondents were partly to be blamed for their haphazard manner in their handling of this case and their failure to assist Court in the way the trial judge ruled.
ORDERS:
a)	The appeal is upheld
b)	The judgment entered on 8 December 2014 is quashed
c)	The proceedings WS No. 893 of 2013 is reinstated and returned to		The Registry for rehearing
d)	The respondent will pay the appellant’s costs of this appeal.

_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Appellant
Solicitor-General:	Lawyers for the Respondent: