SC1628

  PAPUA NEW GUINEA
 [IN THE SUPREME COURT OF JUSTICE]     

SCA NO. 113 OF 2015

BETWEEN:
PHILIP ANGO
Appellant

AND:
MATTHEW KALUVIA the Chief Executive Officer, Kundiawa General Hospital
First Respondent

AND:
KUNDIAWA GENERAL HOSPITAL
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Salika DCJ, Higgins J & Lindsay J
2016: 29th June
       2017: 3rd November

PRACTICE & PROCEDURE – Dismissal of proceedings for want of prosecution – failure to comply with Court directions alleged – directions in fact complied with – power to set aside ex parte orders – dismissal order sought and made irregularly – lack of notice thereof and failure to inform the Court that orders were complied with – single judge has power to set aside ex parte orders for good cause.

Cases Cited:	

Christopher Smith v Ruma Constructions Ltd (2002) SC 695
Elema v Pacific MMI Insurance Limited [2007] PGSC 52
Green & Co Pty Ltd [1976] PNGLR 73
Kewakali v The State (2009) SC 1091
Wasis v Elias &anor (2016) PGSC 5
Wong v Haus Bilas Corporation [1988–89] PNGLR 42

Counsel:	

Ms. P. Tamutai, for the Appellant
Mr K Akeya, for the First, Second & Third Respondent

APPEAL 

03rd November, 2017

1.	BY THE COURT:	 This is an appeal against orders made by Kandakasi J in the National Court at Wabag on 14 August, 2015.

2.	His Honour on that day dismissed an application on behalf of the appellant which requested the setting aside of an order made ex parte to dismiss the proceedings. That dismissal was not based on any lack of merit in the application but rather on the basis that there was no power in the Court to set aside such an order.

3.	The matter has a somewhat convoluted history. The claim is for compensation to relatives arising out of the death following child birth of Beth Nedley then aged 26 years. Her father is the plaintiff and sues in a representative capacity. It is alleged that the death of the deceased was caused or contributed to by negligently performed medical and nursing care on the part of employees of the Kundiawa General Hospital in Chimbu Province, PNG. By virtue of s.1&2 of the Wrongs (Miscellaneous Provisions) Act 1975 the State is vicariously liable for such negligence.

4.	The Writ of Summons was issued on 17 May, 2010. The State filed Notice of Intention to Defend on 29 September, 2010.

5.	On 28 June, 2011, the State sought further and better particulars of the claim. The deceased died on 18 April, 2008. On 23 February, 2011, the plaintiff deposed that he had been unable to obtain from the Hospital the names of the attending medical and nursing staff.  That was in response to a request for information by the State.

6.	A letter from the plaintiff‘s lawyers to the Hospital dated 1 October 2010 was sent to the Hospital.  As at 2 December 2011, the plaintiff’s lawyer deposed, there was no response despite repeated requests for that information.

7.	On 28 April, 2011, the Solicitor General wrote to the plaintiff’s lawyers requesting that information from the plaintiff and foreshadowing the application of 28 June, 2011, threatening, in default, to apply:

“… to have the proceeding dismissed for failure to disclose a reasonable cause of action.”

8.	For this reason, no doubt, the Chief Executive Officer of the Hospital was joined as a defendant.

9.	This should been unnecessary. It was pointless albeit that the decision of Kewakali  v The State (2009) SC1091  seems to have required some steps of that kind to create a “nexus” with the State. It is highly unlikely that the CEO would be regarded as primary tortfeasor in the case of negligent treatment by hospital staff. That is another reason why that decision is and was defective and should not be followed. There is nothing in the Wrongs (Miscellaneous Provisions) Act 1975 which obliges a plaintiff to join an employee of the employer vicariously liable for the acts or omissions of its servants and agents as parties. However, only a person who is alleged to be a tortfeasor may be joined as a defendant though that may be at the request of the plaintiff or the defendant. To make the State liable it is necessary only to prove that a servant or agent or officer of the State negligently caused the death complained of whilst acting or purporting to act in that capacity. The identity of that person otherwise is not a matter material to the imposition of liability on the State.

10.	On 15 October, 2014, Kandakasi J, was obliged to order the CEO to produce the relevant hospital records with leave to the plaintiff to amend his Statement of Claim, presumably to include more proximate tortfeasors. Even the Solicitor General seemed unable to persuade the CEO to provide that information although she may have overstated the consequences by writing:

“if you do not comply, fatal consequences may follow” (letter 24 November, 2014)

11.	The time for compliance with the orders of Kandakasi J, was extended to enable the parties to meet to discuss settlement.

12.	The correspondence within the Hospital clearly indicates that someone was avoiding production of the relevant records.

13.	On 27 January, 2015, the OIC of the Hospital’s records section deposed:

“On the 7th October, 2010, at around 9:30 someone (male relative) walked in and out of the medical Records and the office of the Director Medical Services and later said, Dr Tonar wanted the medical record of late Beth Philip [the deceased] to write the medical report so I signed the Records of Movement form and released the Record of late Ms Philip to him[male relative] knowing that Dr.Tonar is a busy person and would not have time to come to Medical Records and signed the Records Movement form.” (per Michael Umba)

14.	Dr Tonar denied the Medical Record ever reached him or that he asked anybody for it. (Affidavit 27 January, 2015.) 

15.	The Writ was amended on 19 February, 2015 naming the CEO of the Hospital as a defendant as well as the Hospital itself. Pursuant to s.6 of the Public Hospitals Act 1994 the Board of a public hospital established by the State is a body corporate able to be sued in its corporate name. The CEO is not. Doctors and nurses employed by the Board act on its behalf and render it vicariously liable for tortious acts performed by them in that capacity.

16.	The present matter arises out of Orders made in the National Court at Wabag. This matter came before Kandakasi J, for directions on 15 October, 2014. Those directions, relevantly, included a direction that the plaintiff name the doctor who treated the deceased once the Hospital CEO identified that person. The matter was further adjourned to 9 December, 2014. The Hospital had not by then complied. It was given until 23 January, 2015.  The Solicitor General’s office responded with the affidavits referred to above. The effect of those affidavits is that the Hospital had no record disclosing the identity of the treating doctor.

17.	On 4 February, 2015 Tamutai Lawyers briefed Yallon & Associates to advise the National Court of the development and file the Amended Writ naming the CEO and Hospital as defendants.

18.	The matter was mentioned on 5 February, 2015 and Kandakasi J directed that the Amended Writ of Summons be filed and served by 12 March, 2015.

19.	It next returned, apparently, on 13 March, 2015, by which time the Amended Writ had been filed and served.  Orders were, however, made in the absence of the plaintiff’s lawyers that if the plaintiff failed to comply with orders of 5 February, the matter would stand dismissed.

20.	On 8 May, 2015 the matter returned before Kandakasi J. Counsel for the State erroneously told his Honour that the orders had not been complied with. His Honour ordered:

“… dismissal of the proceedings for want of prosecution, as well as failure to comply with court orders.”

21.	The matter in fact returned on 14 August, 2015 on a motion to set aside those exparte orders. Mr Inia for the plaintiff explained that his firm had not been advised of the adjourned dates after 5 February. Reference was made to the letter from the Solicitor General’s office which had advised of the order to file the Amended Writ and commence negotiations. The plaintiff’s lawyers had done so and indeed, had received, by 13 March, 2015, no response to their offer. They were not advised of the adjourned date.

22.	In response to a question from his Honour, Ms Balen, for the State stated:

“we have nothing to settle on because the matter has been dismissed.”

23.	It will be apparent that the plaintiff had an overwhelmingly strong case to set aside the order of 13 March, 2015. Indeed, it was surprising that the State had not disclosed to his Honour, that the Amended Writ had been filed and a settlement offer made to the State. Of course, it was also apparent that the plaintiff’s lawyers failed to enquire as to the next hearing date. Nevertheless, the case for reinstatement of the action was strong.

24.	However, his Honour held that he had no jurisdiction to set aside the order of dismissal. He held that the dismissal ended the action so only the Supreme Court could set aside that order.

25.	There is some logic to the view that if the action is dismissed no application can be made in the matter. However, that seems inconsistent with Order 12 rule 8(3) which provides:

 “The Court may, on terms, set aside or vary an order – 
(a)	where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order.”

25 A.  The principles to be applied are the same as those relevant to setting aside a default judgment (Christopher Smith v Rume Constructions Ltd (2002) SC 695). That principle applies not only to default judgments but to other orders obtained ex parte.

26.	Further, it is well settled that a judgment entered irregularly may be set aside.  This judgment could only have been entered for failure to comply with the orders of 5 February, 2015 – see Green & Co Pty Ltd [1976] PNGLR 73, Wong v HausBilas Corporation [1988–89] PNGLR 42.

27.	Attention should be paid to the decision in Elema v Pacific MMI Insurance Limited [2007] PGSC 52 per Batari, Mogish & Cannings JJ. It was also an order for dismissal of proceedings for want of prosecution.  The Court emphasised, at [17], that a party moving the Court ex parte has a duty to alert the Court so all matters known so that party relevant to the matter. Had the lawyer for the State alerted Kandakasi J to the substantive compliance by the Plaintiff’s lawyers with the orders of 5 February, 2015, his Honour would not have allowed activation of the self executing orders.

28.	A further defect is that no notice was given of the proposed application for dismissal (see Wasis v Elias & Anor (2016) PGSC 5). The order dismissing the proceedings was irregularly made for the reasons already given. 

29.	The appeal is allowed. Case remitted to the National Court for trial if not settled. Respondent should in the circumstances pay the costs of the appeal and in the National Court in respect of costs of the applications to dismiss the matter for want of prosecution and to set aside that order.
_______________________________________________________________
Tamutai Lawyers:   Lawyers for the Appellant			
Solicitor General’s Office:   Lawyers for the First, Second & Third Respondents