SC1965
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 201 OF 2018

JOHN NUMAPO
Appellant

V

NERRIE ELIAKIM, CHIEF MAGISTRATE
First Respondent

MAGISTERIAL SERVICE
Second Respondent

HON DAVIS STEVEN LLB, MP, MINISTER FOR JUSTICE
& CHAIRMAN, JUDICIAL AND LEGAL SERVICES COMMISSION
Third Respondent

JUDICIAL AND LEGAL SERVICES COMMISSION
Fourth Respondent

DR LAWRENCE KALINOE, SECRETARY FOR JUSTICE
Fifth Respondent

DR KEN NGANGAN, SECRETARY FOR FINANCE
Sixth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Respondent

Waigani: Cannings J, Koeget J, Tamate J
2020: 28th May, 30th June

PRACTICE AND PROCEDURE – appeal against dismissal of proceedings in the National Court on the own motion of the Court, without notice to the plaintiff – whether a proper exercise of judicial discretion – whether dismissal contrary to principles of natural justice.

The appellant was the plaintiff in National Court proceedings against the State and related defendants, claiming unpaid constitutional pension entitlements allegedly due to him. The plaintiff applied by notice of motion to have the proceedings referred to mediation. When the motion came on for hearing, the Judge enquired with the plaintiff’s counsel whether there was evidence of the plaintiff giving prior notice to the State under s 5 of the Claims By and Against the State Act. Despite counsel’s attempts to explain the apparent absence of a s 5 notice and his request to be given time to locate the notice or at least locate evidence of the plaintiff’s negotiations with the defendants and an application made to the Attorney-General for further time to give notice, the primary Judge ruled that the matter was not properly before the Court and dismissed the proceedings forthwith. The plaintiff appealed to the Supreme Court against the order for dismissal on various grounds relating to the failure to properly exercise the discretion of the Judge as to summary dismissal of proceedings on the own motion of the Court and breach of the principles of natural justice. 

Held: 

(1)	If a Court is giving consideration of its own motion to dismissing proceedings, the Court must identify the source of jurisdiction to dismiss the proceedings and identify the considerations relevant to the exercise of discretion and ensure that all the circumstances of the case are carefully considered. This is necessary, to ensure that the significant decision to dismiss proceedings entails the exercise of discretion judicially, and not arbitrarily. 

(2)	If a Court is giving consideration on its own motion to dismissing proceedings it must, in order to discharge its duty to conduct the  proceedings in accordance with the principles of natural justice (the minimum requirements being to act fairly and be seen to act fairly), put the plaintiff on notice that consideration is being given to the question of dismissal. The notice given must be sufficient to enable the plaintiff to fully appreciate the possible consequences and to prepare and make submissions to the Court. 

(3)	Here the Court did not identify the jurisdictional basis of the order for dismissal other than to say that the proceedings were not properly before the Court. The discretion to dismiss the proceedings was exercised arbitrarily without regard to the circumstances of the case.

(4)	The Court did not put the plaintiff on sufficient notice that consideration was being given to the question of dismissal. The plaintiff was consequently not given the opportunity to address the Court on issues pertaining to the question of dismissal. This was a breach of the principles of natural justice. 

(5)	The appeal was allowed and the proceedings were remitted to the National Court.

Cases Cited:

The following cases are cited in the judgment:

Papua New Guinea Cases

Jackson Tuwi v Goodman Fielder International Ltd (2016) SC1500
Kimisopa v Paraka (2009) SC1325
MAPS Tuna Ltd v Manus Provincial Government (2007) SC857
Matario v August (2009) SC1325
Michael Kuman v Digicel (PNG) Ltd (2013) SC1232

Overseas Cases

Mahon v Air New Zealand Ltd [1984] 3 All ER 201

APPEAL

This was an appeal against an order of the National Court which dismissed the entire National Court proceedings.

Counsel

F So, for the Appellant
I Mugugia, for the Respondents

30th June, 2020
1.      BY THE COURT: John Numapo appeals against the dismissal by the National Court of proceedings he commenced against the Chief Magistrate and other defendants including the State.

2.     In WS No 387 of 2018, filed on 18 April 2018, he claimed unpaid pension entitlements allegedly due to him, in respect of his terms as Chief Magistrate from 2001 to 2009, under the Constitution and the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders. The amount of the claim was K1,208, 424.00.

3.     On 14 November 2018, though the defendants had failed to file a notice of intention to defend or a defence, the plaintiff filed a notice of motion to have the proceedings referred to mediation. 

4.    When the motion came on for hearing on 11 December 2018, the primary Judge enquired with the plaintiff’s counsel whether there was evidence of the plaintiff giving prior notice of his intention to make a claim against the State, under s 5 of the Claims By and Against the State Act. Despite counsel’s attempts to explain the apparent absence of a s 5 notice and his request to be given time to locate the notice or at least locate evidence of the plaintiff’s negotiations with the defendants and an application having been made to the Attorney-General for further time to give notice, the primary Judge ruled that the matter was not properly before the Court and dismissed the proceedings forthwith. 

APPEAL 

5.     The plaintiff appealed to the Supreme Court against the order for dismissal on various grounds relating to (a) the failure to properly exercise the discretion as to summary dismissal of proceedings on the own motion of the Court and (b) breach of the principles of natural justice. 

PRINCIPLES OF PRACTICE AND PROCEDURE 

6.     This appeal requires consideration of two important principles of practice and procedure: (a) the principle that the discretion of the Court to dismiss proceedings must be exercised carefully and judicially; and (b) the principles of natural justice.

(a)	Discretion to dismiss proceedings must be exercised judicially

7.     If a Court is giving consideration of its own motion to dismissing proceedings, the Court must identify the source of jurisdiction to dismiss the proceedings and identify the considerations relevant to the exercise of discretion and ensure that all the circumstances of the case are carefully considered. This is necessary to ensure that the significant decision to dismiss proceedings entails the exercise of discretion judicially, and not arbitrarily. The exercise of the discretion to summarily dismiss a proceeding ought to be exercised sparingly (MAPS Tuna Ltd v Manus Provincial Government (2007) SC857, Kimisopa v Paraka (2009) SC1325, Michael Kuman v Digicel (PNG) Ltd (2013) SC1232, Jackson Tuwi v Goodman Fielder International Ltd (2016) SC1500). 

(b)	Principles of natural justice must be complied with

8.     If a Court is giving consideration on its own motion to dismissing proceedings it must, in order to discharge its duty to conduct its proceedings in accordance with the principles of natural justice (the minimum requirements being to act fairly and be seen to act fairly), put the plaintiff on notice that consideration is being given to the question of dismissal (Mahon v Air New Zealand Ltd [1984] 3 All ER 201). 

9.     The notice given must be sufficient to enable the plaintiff to fully appreciate the possible consequences and to prepare and make submissions to the Court; and the notice would normally be expected to include a reference to the jurisdictional basis on which an order for dismissal might be made (Mataio v August (2009) SC1325).

THIS CASE

(a)	Exercise of discretion re dismissal 

10.     The primary Judge did not identify the jurisdictional basis of the order for dismissal other than to say that the proceedings were not properly before the Court. No mention was made, for example, of the power of the Court on its own motion to dismiss the proceedings under Order 12, Rule 40 (frivolity etc) of the National Court Rules for disclosing no reasonable cause of action, or to summarily determine the proceedings under Order 10, Rule 9A(15) (summary disposal) of the National Court Rules on competency grounds. It was not sufficient to say that the matter was not properly before the Court. 

11.     No consideration was given to the evidence that was before the Court of the appellant’s concerted efforts to discuss with the defendants the significant constitutional issues he wished to raise, prior to commencing the proceedings. The primary Judge also failed to take into account the application to the Attorney-General for a further period in which to give notice to the State. Nor was consideration given to the fact that there was no reply from the Attorney-General. The fact that the defendants had no objection to referral of the proceedings to mediation was another important consideration that required careful and specific attention before making the significant decision to dismiss the proceedings. 

12.     In these circumstances we find that the learned primary Judge erred in law by exercising the discretion to dismiss the proceedings arbitrarily without regard to the circumstances of the case.

(b)	Natural justice 

13.     The primary Judge did not put the plaintiff on notice that consideration was being given to the question of dismissal. The plaintiff’s counsel was caught off-guard as he had come to Court with what he thought was an uncontested motion for referral of the proceedings to mediation. He was not prepared for an interrogation from the bench about the absence of a s 5 notice. He tried to explain the background of the matter and the significance of the constitutional issues involved and he asked for time to find the s 5 notice and the requests that had been made to the Attorney-General for further time. He was cut off by the primary Judge.

14.     This meant that there was a denial of natural justice. The National Court did not act fairly and was not seen to act fairly.

CONCLUSION

15.     This appeal must be allowed as the National Court proceedings were dismissed (a) arbitrarily without a careful and judicial exercise of discretion and (b) unfairly, without adherence to the principles of natural justice. The proceedings will be reinstated in the National Court. Costs will follow the event.

ORDER 

(1)	The appeal is allowed.

(2)	The order of the National Court of 11 December 2018 in WS No 387 of 2018 is quashed.

(3)	The proceedings WS No 387 of 2018 are reinstated and remitted to the National Court for directions.

(4)	Costs of the appeal shall be paid by the respondents to the appellant on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
_____________________________________________________________
Ketan Lawyers:  Lawyers for the Appellant	
Solicitor-General:  Lawyer for the Respondents