SC2160
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 09 OF 2018

BETWEEN:
RUBEN KANDIU trading as Juka Service Station
Appellant

V

ISAIAH KUMBI
Respondent

Waigani: Geita J, Toliken J, Anis J
2021: 27th August, 12th October

SUBSTANTIVE APPEAL – Appeal against entry of judgment with damages to be assessed – entry based on non-compliance with earlier directional orders including self-executing orders – grounds - not standing the matter down to wait for or call on the appellant’s lawyers to appear but instead permitting the matter to proceed ex parte – not considering to adjourn the matter with cost as a remedy against the defaulting party - whether there was apprehension of bias – whether there was denial of right to natural justice –whether the court’s decision was such that no reasonable tribunal could have reached - consideration – whether decision of the trial Court should be disturbed – whether the trial Judge erred in the exercise of his discretion

Cases Cited:

Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
Rupundi Maku and Ors v. Steven Maliwolo and Ors and The State (2011) SC1171
Ga Kumiye v. The State (2018) SC1693

Counsel:

J. Issack, for the Appellant
Jnr F. Unua, for the Respondent

12th October, 2021

1.	BY THE COURT:  The substantive appeal was heard on 27 August 2021.  We heard and reserved our decision to a date to be advised.

2.	Parties have been notified so we give our decision herein.

BRIEF BACKGROUND

3.	The original claim is for trespass by the respondent against the appellant.  It is currently pending hearing on assessment of damages in the National Court.  The appeal stems from the trial Judge’s decision of 27 December 2017 (appealed decision).  In the appealed decision, the trial Judge dismissed a notice of motion filed by the appellant where the appellant had sought to dismiss the proceeding.  The trial Judge also, in the appealed decision, entered judgment in favour of the respondent with damages to be assessed.  The appealed decision was made ex parte.

4.	The appellant, being aggrieved files this appeal.

GROUNDS OF APPEAL

5.	In the Notice of Appeal, the appellant raised 5 grounds of appeal.  They may be summarised as follows:

Grounds 3.1 & 3.2:	The trial Judge erred in the exercise of his discretion in finding that there was a cause of action when there was none;
Ground 3.3:	The trial Judge erred in the exercise of his discretion by proceeding ex-parte when he knew that counsel was in Court and when he did not have the matter stood down.
Ground 3.4:	There was an apprehension of bias in the exercise of discretion by trial Judge:
(i)	when the trial Judge refused to hear the appellant’s notice of motion since it was filed on 3 March 2017 and then dismissed it without hearing submissions from the parties;
(ii)	when His Honour had called for the appellant to settle the respondent’s claim citing the respondent as a very old man;
(iii)	when His Honour proceeded ex parte and dealt with the matter without having the matter stood down given that it was the first time for counsel to be absent;
(iv)	when His Honour’s behaviour and reactions in Court suggested that he had predetermined the matter in favour of the respondent.
Ground 3.5:	The decision reached was so unreasonable that no proper Court or jury would have handed down such a decision.

ISSUE

6.	The main issue in our view is whether the trial Judge had improperly exercised his judicial discretion on the grounds raised in the appeal when he dismissed the appellant’s notice of motion filed on 3 March 2017 and entered judgment in favour of the respondent with damages to be assessed.  

OUR ROLE

7.	It is settled law that where an appellate Court is asked to consider whether a trial Judge erred in the exercise of his or her discretion, the appellant Court will not interfere with a discretionary judgment on procedural matter within the jurisdiction of the trial Court unless the exercise of discretion by the trial Judge is clearly wrong, or there is an identifiable error, or if the resulting decision made is so unreasonable or plainly unjust that an error can be inferred.  We adopt these from this Court’s decision in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788, where it stated, and we quote:

The grant of summary judgment under O 9 r 15(1)(b) for failure to give discovery is discretionary.  The appellate Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong.  A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion.  Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred.  These principles are well established.  We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p. 627, which was adopted by Clarkson J in Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106 at p.112 – 113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth … the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.  A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.  Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance …”

SETTING THE SCENE OF 27 DECEMBER 2017

8.	The appealed decision was made on 27 December 2017 by Kandakasi J, as he then was, at the Wabag National Court.  The main terms of the orders that are the subject of the appeal read:

1.	The Defendants Notice of Motion filed on 3 March 2017 is dismissed if not earlier dealt with.
2.	Pursuant to term 6 of the Orders of 04th May 2017 as extended on 23rd October 2017, Judgment is entered for the Plaintiff with damages to be assessed.
……

9.	The trial Court made the above orders which he said were self-executory or as a consequence to his earlier directional orders made on 23 October 2017.  On that earlier date, His Honour made the following orders:

1.	This matter is adjourned to return on 27th December 2017 at 9:30am or soon thereafter.
2.	The Orders of 4th May 2017 are extended for full compliance by the parties well before next return date.
3.	The Defendant and his lawyer shall take all steps necessary to expedite compliance of these and the previous orders and a final resolution of this matter.
4.	Unless the matter has settled, the Defendant is required to appear with his lawyer on Court prepared to have this matter resolved.
……

10.	There is no copy of the Court Directions of 4 May 2017 in the Appeal Book that is filed.  But we note that both counsel refer to that order in their submissions as well as by the trial Court in its various decisions.  The terms of the orders are captured at paragraph 8 of the respondent’s submission.  And they read:

(1)	This matter is adjourned to the 6th of July 2017 at 9:30am or soon thereafter.
(2)	The parties shall enter into out of court settlement of which purpose they shall first jointly visit the relevant property and establish jointly the defendant’s land boundaries going by the title map.
(3)	If the parties are not able to establish the boundaries, that is physically on the land they shall jointly engage and fund a private surveyor to help establish the boundaries and provide a report which shall be binding.
(4)	Based on the establishment on the correct boundaries with the foregoing orders, the parties shall discuss and resolve this matter.
(5)	Failing any resolution of this matter in accordance with the foregoing orders, the parties shall return to court with draft consent orders for mediation to commence and conclude during the balance of the month of July 2017.
(6)	Any failure by any of the parties to meaningfully take steps to comply with these orders, and achieve their intended purpose, shall result in Judgment or Orders against the defaulting party.
(7)	The time for entry of these orders is abridged to take place forthwith upon the court signing them.
……

11.	So, when the matter returned before the trial Court on 27 December 2017, both counsel were aware and attended, except that counsel for the appellant, for unexplained reasons, failed to appear in the afternoon session when the matter was called.  It is not disputed that both counsel were also present in Court at the last hearing on 23 October 2017 when the orders were made which included the adjournment to 27 December 2017 and the extension of the Court’s earlier directions of 4 May 2017.

CONSIDERATION

12.	In regard to ground 3.3, what the appellant, with respect, is arguing is that when a matter is listed or fixed for hearing on a set time and date, that the Court should still wait for counsel to arrive late before proceeding, and to proceed without counsel’s presence even if counsel had full knowledge of the set date and time of the hearing, is wrong or amounts to an improper use of a trial Judge’s discretion.

13.	The argument, with respect, is nonsensical and perhaps also fall short of contempt of court.  Both counsel knew of the matter and the date that was of its return.  The appellant’s counsel knowingly failed to appear in Court on that day, but now accuses that Court for not delaying the matter so that counsel could appear.  The trial Judge had the matter properly listed before him.  Exercising his discretion to proceed ex-parte with the matter on that day was proper and within his prerogative.  The Court was obliged to start on the scheduled date and time.  It had done so in the morning and then in the afternoon after 1:30pm, that is, on 27 December 2017.  We therefore do not find any error committed by his Honour by his said action and dismiss this ground of appeal.

14.	As for ground 3.4, apprehension of bias, we note the submissions of the parties.  In regard to ground 3.4(i), where it is alleged that the trial Judge refused to hear the appellant’s notice of motion since it was filed on 3 March 2017 and then dismissed it without hearing submissions from the parties, we find the ground misconceived.  We say this because no such argument was made by the appellant to the trial Judge in the appealed decision that is before us.  Counsel for the appellant never appeared to move the notice of motion for him to then say that the Court had refused to hear the motion.  The appellant we say is raising a ground of appeal or an argument that is simply not supported by facts that would have given rise to the argument; facts which did not occur or exist at the material time.  We dismiss ground 3.4(i).  We move on to consider ground 3.4(iii).  It alleges that His Honour should have had the matter stood down instead of deliberating on it.  We do not find that bias may be perceived by his Honour’s decision to proceed ex parte, and we adopt our reasonings stated above in our deliberation of ground 3.3.  We adopt the same reasonings herein and dismiss this ground of appeal.  

15.	Our dismissal of grounds 3.3 and 3.4(i) and (iii) herein also, we would say and find, nullifies or dismisses the appellant’s reference to and reliance upon his right to natural justice under s. 59 of the Constitution.  With respect, the appellant was not denied of his right to be heard on 27 December 2017.  Counsel for the appellant had ample knowledge because he was present when the return date was set by the Court on 23 October 2017.  Evidence in the Appeal Book also shows that counsel was present in the Court precincts on 27 December 2017 but had left or was not available when the matter was eventually called after 1:30pm on that day.  Counsel had had the opportunity or the right to be heard on 27 December 2017, but he threw that away, so to speak, when he failed to appear in Court.

16.	We proceed to deal with grounds 3.4(ii) and (iv) together.  The appellant states that the trial Judge had referred to the respondent as “a very old man”.  The appellant also alleges that the behaviour and reactions of the trial Judge in Court suggests that he had already predetermined the matter in favour of the respondent.  Counsel drew our attention both in his written submissions as well as by reference to the transcript of proceedings where the words “very old man” were alleged to have been uttered by the trial Judge.  The reference is contained at paragraph 40, page 209 of the Appeal Book.  We observe 2 things.  Firstly, the trial Judge did not utter the words “very old man” as alleged in the ground of appeal.  His Honour’s exact words were, “causing an old person like the plaintiff to go around in circles.”  The words “very” and “man” are absent there and we note that they were inserted by the appellant himself under this ground of appeal.  The next thing we observe which we say is significant is this.  The quotes relied upon by the appellant were uttered not in the appealed decision, but in the earlier hearing of 23 October 2017.  The appellant did not appeal against the said decision (i.e., decision of the Court of 23 October 2017) so he cannot, in our view, raise that herein as a ground of appeal.  We find this ground to be misconceived and baseless, and we dismiss it.  In regard to ground 3.4(iv), again, counsel, in support of this allegations, makes reference to the earlier Court decision of 23 October 2017 that has nothing to do with the appealed decision.  We dismiss this ground of appeal as misconceived and baseless, as it does not relate to matters or the decision that is the subject of this appeal.

17.	We will address grounds 3.1 and 3.2 together.  They refer to the appellant’s claim that there was no reasonable cause of action disclosed so his Honour erred when he proceeded to enter judgment and ordered damages to be assessed.  We observe firstly that a default or failure to comply with a directional order does or should not automatically entitle a party to or the Court to sign, judgment.  The pleadings must disclose a reasonable cause of action that is permitted under the law.  The position is settled by this Court’s decisions including Rupundi Maku and Ors v. Steven Maliwolo and Ors and The State (2011) SC1171 and Ga Kumiye v. The State (2018) SC1693.  We refer to the amended statement of claim filed by the Respondent.  We note that the trial Judge did not draw his mind to and consider whether the pleadings disclosed a reasonable cause of action under law where default or summary judgment may be warranted.  But that said, we also note that the circumstance of the case was special or restrictive given the existence of self-executing orders, that is, when the matter returned that day on 27 December 2017.  The self-executing orders had been issued after delays and want of compliances with Court directions, particularly by the appellant, to negotiate settlement with the respondent.  So, after many inquiries, the trial Judge on 4 May 2017 and 23 October 2017, issued self-executing orders that, amongst others, provided for judgment against the appellant if he continued to default or failed to comply with Court Directions.  So, when the matter returned on 27 December 2017, His Honour was already bound by his earlier self-executing orders, in particular, term 6 of the Court Order of 4 May 2017.  The said order expressly states, Any failure by any of the parties to meaningfully take steps to comply with these orders, and achieve their intended purpose, shall result in Judgment or Orders against the defaulting party.  We note that the respondent had provided evidence of such defaults or failures on the part of the appellant to resolve the matter, to the trial Judge.  As such, His Honour, upon satisfying himself of evidence of non-compliance of the earlier Order of 23 October 2017, was entitled or obliged to confirm or give effect to the self-executing orders of 4 May 2017.  Other directional orders issued on 23 October 2017 also returned for consideration, and His Honour was required to and had considered whether they had been complied with by the parties.  For example, term 4 of the order of 23 October states, Unless the matter has settled, the Defendant is required to appear with his lawyer on Court prepared to have this matter resolved.  The appellant’s counsel was no way in sight on that day to assist the Court address this directional order amongst others.  In our view, the trial Judge was inclined to form the view that judgment could come into effect upon counsel of the appellant or the appellant’s various noted failures.  We therefore find no error committed by the trial Judge and dismiss grounds 3.1 and 3.2.

18.	Finally, ground 3.5 states that no reasonable tribunal would have entered judgment and allowed the matter to proceed to assessment of damages.  We note that this ground was argued by the appellant premised on the trial Judge’s decision to proceed without standing the matter down the list; without hearing the appellant’s notice of motion first; and instead of dismissing the notice of motion, the trial Judge should have adjourned the matter and awarded costs of the adjournment to the respondent.  We note that we have covered these above when rejecting these arguments by the appellant under grounds 3.3 and 3.4 of the appeal.  We repeat our reasonings herein.  As we have stated, the matter was fixed with express directional orders issued.  When the matter returned on 27 December 2017, the parties’ first order of business was to brief the Court on whether the earlier directions had been complied with.  The Court then proceeded to hear the matter on the scheduled date and time.  Matters such as whether the Court should have heard the motion or had the matter stood down the list, or if not, whether the Court should have adjourned the motion or the matter to another time, were all within the discretion of the trial Judge.  We note that no prior arrangements had been made by both counsel to have the matter stood down the list or adjourned to another time.  These are some of the factors that a trial Judge may have to consider if presented by the parties.  But in the end or regardless, it would still be within the trial Judge’s sole discretion to decide.  In this case, the trial Judge chose to proceed to hear the matter when the matter was called after 1:30pm on 27 December 2017.  We find no apparent error committed by the trial Judge.

19.	We therefore dismiss ground 3.5 of the appeal.

SUMMARY

20.	Since we have dismissed all the grounds of the appeal, the appeal will obviously fail.  The matter will be remitted back to the National Court where it shall be set down for trial, if not settled, on assessment of damages whereby the respondent as the plaintiff shall be required to prove his losses that he may be entitle to under law.

21.	We will end our decision with these general remarks.  It is not the role of the National Court or any Court, to impose upon any party or parties to settle on a dispute or matter that has been filed that is properly before the Court for hearing.  And settlement proposal or attempts should always remain voluntary.  It must come primarily from the parties themselves to the dispute.  And if a party refuses to settle, that should be within his or her prerogative to do so, and the matter should be trialled on its merit regardless of what chances he or she may be perceived to have in the matter.  Notwithstanding what we have said above, we wish to also restate here that a self-executing order remains a valuable remedy that may be sought or issued against a litigant who repeatedly fails to comply with procedural rules or orders of court.

COST

22.	We will order cost to follow the event on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

23.	The final orders of the Court are as follows:

1.	The appeal is dismissed in its entirety.

2.	The matter is remitted to the National Court for hearing on assessment of damages.

3.	The appellant shall pay the respondent’s cost of the appeal on a party/party basis which may be taxed if not agreed.
________________________________________________________________
Lawama Lawyers: Lawyers for the Appellant
Public Solicitor:  Lawyers for the Respondent