SC2195

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 131 OF 2020 (IECMS)

BETWEEN:
BISHOP VABURI DABADA
Appellant

AND:
NIUGINI OIL PALM LIMITED
Respondent

Waigani: Logan, Dingake and Gora JJ
2022: 22nd February

PRACTICE & PROCEDURE – application for summary dismissal on the basis of default – where National Court made directions extending time for filing and service of an appeal book – where appellant fails to take out formal orders – where appeal book filed and served within time allowed by extended directions – where notice of motion for dismissal was not listed for determination by primary judge – where primary judge proceeded to determine application for summary dismissal – where primary judge proceeded on basis that no extension had been granted – where procedurally unfair to proceed with hearing of application for summary dismissal which was not listed for determination – where appeal ought to have been determined on the merits – appeal allowed  

COSTS – exercise of discretion to award costs – disentitling conduct – where appellant fails to take out formal orders following hearing of application for extension to file and serve an appeal book – where respondent’s conduct in pressing application for summary dismissal contains element of ambush – appellant awarded costs of hearing of summary dismissal application in the National Court – no order as to costs of appeal 

Facts:

Niugini Oil Palm Limited was successful in obtaining orders under the Summary Ejectment Act 1952 in proceedings before District Court at Port Moresby. Those orders required Bishop Vaburi Dabada to vacate certain land occupied by him in Granville, Port Moresby. 

Bishop Dabada appealed the decision of the District Court to the National Court. Orders were made by the National Court in 2019 fixing a date for the filing and service of an appeal book. Those orders were not complied with. Accordingly, Niugini Oil Palm Limited applied to the National Court, by notice of motion, for the proceedings to be dismissed on the basis of noncompliance.

On 31 August 2020, the National Court made orders orally: 

a)	extending the time for Bishop Dabada to file and serve an appeal book to 7 September 2020; 
b)	reserving the right of Niugini Oil Palm to renew its application for dismissal for noncompliance in the event of further default; and
c)	fixing the appeal for hearing on 24 September 2020. 

The National Court’s orders were not translated into formal orders of the Court as a result of a failure to take out those orders by Bishop Dabada. 

On 4 September 2020, Bishop Dabada filed and served an appeal book. This appeal book contained handwritten notes of the magistrate, together with a typed transcription of those notes. It did not however contain a report from the magistrate in first instance to the registrar of the National Court.

The proceedings came before the National Court for final hearing on 24 September 2020. Niugini Oil Palm Limited’s application for dismissal was not listed for hearing. Nonetheless, the National Court heard and determined the application for summary dismissal on the mistaken belief that Bishop Dabada was in default of the Court’s orders as a consequence of the late filing of the appeal book. 

Held:

1.	An appeal from District Court to the National Court is an appeal against the orders made by the District Court and not the reasons of the magistrate. In those circumstances, the magistrate’s report to the registrar of the National Court would go no further than the information already contained in the appeal book filed in the National Court. 

2.	It was procedurally unfair for the National Court to deal with the summary dismissal application when that application had not been set down for hearing. The interests of justice favoured dealing with the substantive appeal on its merits. 

3.	There was an element of ambush in the manner that the respondent raised the application for summary dismissal in the National Court at the time for substantive hearing of the appeal. That conduct justified an award of costs for the hearing in the National Court in the appellant’s favour. 

4.	The appellant’s failure to take out a formal order in respect of the extension granted on 31 August 2020 contributed to the misunderstanding of the National Court that in turn contributed to the making of orders summarily dismissing the proceedings. This conduct justifies no order as to costs on this appeal.  

Legislation:

Constitution of the Independent State of Papua New Guinea 
Summary Ejectment Act 1952

Counsel:

Mr. R Mulina, for the Appellant
Ms. B Kumo, for the Respondent

Oral decision delivered on
22nd February 2022

1.	LOGAN J: On 20 September 2017 in the District Court at Port Moresby, that Court, on the complaint of the present respondent, Niugini Oil Palm Limited, in proceedings against the present appellant, Bishop Dabada, made these orders:

(1)	The Complainant’s Application for eviction of the Defendant and his servants and agents on the portion 1489 Granville, Port Moresby, National Capital District is granted [sic].  

(2)	The Defendant and his servants and agents are to vacate portion 1489, Granville, Port Moresby, National Capital District, within 14 days from the date of this order.  

(3)	Parties to bear their own costs.

2.	Bishop Dabada commenced an appeal against those orders in the National Court within time.  Thereafter, however, there was an unfortunate delay in the preparation, filing and service of the appeal book.  Orders were made in 2019, fixing dates for the filing of that book.  These were not complied with.  An application by notice of motion by Niugini Oil Palm Limited for dismissal on the basis of noncompliance was filed and served.  

3.	Eventually, on 31 August 2020, the appeal was mentioned before a judge of the National Court. At that time and by way of something of an indulgence, his Honour granted Bishop Dabada an extension until 7 September 2020 for the filing and service of the appeal book, reserving to Niugini Oil Palm Limited a right in the event of default to renew its application for dismissal on the basis of default.  At that time the hearing of the appeal was fixed for 24 September 2020.  Bishop Dabada, by his present lawyers, filed the appeal book on 4 September 2020 and served it.  On 24 September 2020, notwithstanding that the notice of motion for dismissal for default was not listed for hearing that day but rather only the substantive appeal, the learned primary judge nonetheless entertained, heard and determined an application on behalf of Niugini Oil Palm Limited for summary dismissal on the basis of default.

4.	It is apparent from his Honour’s reasons for judgment that his Honour was operating on the basis of the 2019 directions for the filing of the appeal book and had forgotten the indulgence granted on 31 August 2020.  There was, with respect, every good reason for this having regard to the demands of a busy list. Further, unfortunately, there was no translation of that indulgence into a formal order of the court.  It is of course, inherently likely that had that occurred, as it should have, that his Honour would have been well seized with the true position.  

5.	In respect of today’s appeal, the essence of Bishop Dabada’s case was that there was in substance no default because the appeal book had been filed within the extended time.  For its part, Niugini Oil Palm Limited admitted that there had been an extension but nonetheless pressed that the appeal book remained non-compliant because of an absence of a report from the magistrate constituting the District Court to the registrar of the National Court.

6.	Such a report in the ordinary course would be required. The appeal book contained within it the handwritten notes of the magistrate, together with a typed facsimile thereof apparently prepared by those acting for Bishop Dabada.  Those notes are somewhat cryptic but they do nonetheless reveal that apparently the magistrate granted the order for eviction on the basis of satisfaction that Niugini Oil Palm Limited held a registered lease in respect of the subject land.  An appeal to the National Court from the District Court is not against the reasons of a magistrate but rather against the order made by the District Court.  

7.	This Court is charged under the Constitution with delivering justice according to law.  It seems to me that in fulfilling that duty, we should recognise that it was inherently unlikely that the magistrate’s report to the National Court, even had that been sought and obtained, would have provided little more than confirmation that that was indeed the basis upon which the eviction order had been made. The evidentiary foundation for such an order was well and truly disclosed in the appeal book.  

8.	In these circumstances it seems to me that it was both procedurally unfair, with respect, to deal with a summary dismissal application when that had not been set down and in any event, the interests of justice overwhelmingly favour dealing with the substance of the appeal on its merits.  

9.	I emphasise that that is in no way to voice any view at all as to whether the appeal had merit, as was raised in the course of an exchange with counsel. Prima facie in respect of the lease, there exists a system of title by registration and prima facie that would operate to the exclusion of customary ownership.  Of course, the Summary Ejectment Act 1952 had no application to customary land: see section 2.  But prima facie at least that was not the position which seems to have been evidenced to the magistrate.  However, the evidence before the magistrate did disclose a very long history indeed, extending back well before Independence in respect of the subject land.  Exactly whether the Summary Ejectment Act did or did not apply, was overwhelmingly, a subject which, with respect, ought to have been determined on the merits on the appeal to the National Court against the ejectment order.  For these reasons then, I would allow the appeal.

Costs
 
10.	In relation to costs, the question arises as to what order, if any, ought to be made in substitution of the order for costs made in the National Court, as well as what order for costs, if any, ought to be made in respect of the appeal to this court.  In respect of the proceedings before the National Court on 24 September 2020, there was, as was observed in the course of argument, an element of ambush about them in the raising of a default issue when the listing was in respect of the substantive hearing of the appeal.  In my view, it would address the procedural unfairness to which I have adverted by making an order for costs in favour of the present appellant, Bishop Dabada, in respect of proceedings on 24 September 2020 in the National Court.

11.	As to the proceedings on the appeal, although I have adverted to that procedural unfairness, another influential consideration was that the learned primary judge in operating under a misunderstanding as to the then current directions held that misunderstanding because of a lamentable lapse in the taking out of a formal order in respect of the extension granted on 31 August 2020.  

12.	Of course, the ordinary position is that a costs discretion is judicially exercised by costs following the event.  However, in respect of the appeal, and taking into account the contribution to the misunderstanding of the National Court as to the true position in relation to interlocutory directions in respect of the appeal to that court, my view is that the costs of the appeal should lie where they fall. 

13.	I would therefore make no order as to costs in respect of the appeal.  However, recognising that there was an element of unfairness in respect of the hearing of the entertaining of a summary dismissal application on the basis of default on 24 September 2020, I would also order that the respondent (respondent in the National Court) pay the appellants’ costs (appellants in the National Court) of and incidental to the proceeding before that court on 24 September 2020 to be taxed if not agreed.  

14.	Dingake J. I concur.
 
15.	Gora J. Agree. 

Orders

1)	The appeal be allowed. 
2)	The orders made by the National Court on 24 October 2020 be set aside. 
3)	The respondent (respondent in the National Court) pay the appellant’s costs (appellant in the National Court) of and incidental to the proceeding before that court on 24 September 2020, to be taxed if not agreed.
4)	No order as to costs in respect of the appeal. 

__________________________________________________________________
Hill & Hill Lawyers:	Lawyers for the Appellants
Jema Lawyers:		Lawyers for the Respondents