SC2189

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 71 OF 2020

BETWEEN:
K. K. KINGSTON LIMITED
Appellant

AND:
BILLY TUCKAYO
Respondent

Waigani: Hartshorn J, Kangwia J, Miviri J
2021: 13th December
2022: 18th January

SUPREME COURT APPEAL – appeal on decision dismissing proceedings for lack of evidence – grounds of appeal – whether primary judge fell into error in the exercise of his discretion by permitting the respondent to object to the tendering of the appellant’s affidavit evidence – whether the appellant was required and pursuant to practice, to file and serve a notice to rely on affidavits under s.35 Evidence Act – whether the trial judge failed by applying case authority the facts of which were distinct from this case – whether trial judge failed to consider or give weight to the fact that the respondent had been served with a copy of the appellant’s affidavit and that the court had previously ruled that the subject affidavit be allowed – whether trial judge failed to give a cogent ruling on why the respondents objection to the tendering of the affidavit was upheld  - whether trial judge failed by dismissing the proceeding and by acting unreasonably or plainly unjustly in the circumstances

APPEAL -  primary judge refused an application for an adjournment without considering the interests of justice, in circumstances where he was aware that both parties had filed and were in possession of each other’s affidavits upon which they were likely to rely and so would not have been taken by surprise; was aware that the appellant was ready to proceed on the basis of affidavits filed and in particular the principal affidavit of the appellant together with other documentation which had already been put before the Court - The action of the primary judge in dismissing the proceeding in such circumstances was unreasonable or plainly unjust to the appellant and such that an error can be inferred – three out of the six grounds of appeal upheld – appeal is upheld – costs ordered in favour of the appellant

Cases Cited:

Bean v. Bean [1980] PNGLR 307
Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
Kewakali v. State (2011) SC1091
Boroko Motors Ltd v. Meridian Motors Ltd (2020) SC2028
Special Reference by Morobe Provincial Government (2002) SC693
Fly River Provincial Government v. Pioneer Health Services (2003) SC705 
Isaac Lupari v. Michael Somare (2010) SC1071 
William Maihua (Snr) v. Magdalene Maihua (2012) SC1185
Paru Aihi v. Peter Isoaimo (2013) SC1276
Telikom PNG Ltd v. Kopalye (2021) SC2141
State v. Tamate (2021) SC2132

Counsel:

Mr. J. Mesa, for the Appellant
Mr. E. Asigau, for the Respondent

18th January, 2022

1. BY THE COURT: This is a decision on a contested appeal of a National Court decision which dismissed a proceeding for lack of evidence. The trial of the proceeding had been set for hearing. The appellant was to rely upon a principal affidavit at the trial. The respondent objected to the use of the affidavit by the appellant. The primary judge indicated that the appellant would not be able to tender its affidavit as a notice to rely upon the affidavit had not been given. The appellant unsuccessfully sought an adjournment of the trial. The appellant was unable to produce any evidence at the trial and the primary judge upheld the application of the respondent for the proceeding to be dismissed on the basis that the plaintiff had not produced any evidence in court at the trial.

2. The appellant appeals on grounds that in essence the primary judge fell into error in the exercise of his discretion by permitting the respondent to object to the tendering of the appellant’s affidavit evidence; by accepting that the appellant was required and pursuant to practice, to file and serve a notice to rely on affidavits under s.35 Evidence Act; by applying case authority the facts of which were distinct from this case; by failing to consider or give weight to the fact that the respondent had been served with a copy of the appellant’s affidavit and that the court had previously ruled that the subject affidavit be allowed; by failing to give a cogent ruling on why the respondents objection to the tendering of the affidavit was upheld; by dismissing the proceeding and by acting unreasonably or plainly unjustly in the circumstances.

3. The respondent submits amongst others that grounds of appeal 3(a), (b), (d) and (g) raise issues which were not raised by the appellant before the primary judge and consequently these issues may not be raised in this appeal.

4. As to the remaining grounds, the respondent submits that they do not demonstrate that the primary judge acted upon a wrong principle or allowed extraneous or irrelevant matters to guide or affect him or mistook the facts or failed to take into account some material consideration.

Consideration

Whether the appellant may argue issues which were not raised in the National Court

5. The respondent submits that the appellant is precluded from raising arguments that form the basis of grounds of appeal 3(a), (b), (d) and (g) as they were not raised in the National Court before the primary judge. The appellant did not make submissions on this point. 

6. From a perusal of the transcript of the hearing before the primary judge, the appellant did not raise or argue the issues raised in grounds of appeal 3 (a) and (g). In regard to the issues in grounds of appeal 3(b) and (d) however, they concern amongst others, a consideration of sections 34 and 35 Evidence Act. At p 29 lines 5-10, p 36 lines 3-5 and p 39 lines 29-31 of the transcript in the appeal book, counsel for the appellant, whilst addressing the primary judge, referred to his understanding of the Evidence Act concerning affidavit evidence and sections 34 and 35 Evidence Act. 

	7. The respondent, in support of his submission, relies upon the judgments of this Court in Fly River Provincial Government v. Pioneer Health Services (2003) SC705; Isaac Lupari v. Michael Somare (2010) SC1071 and Paru Aihi v. Peter Isoaimo (2013) SC1276. 52. In Fly River Provincial Government v. Pioneer Health Services Ltd (supra) the Supreme Court observed:
	“It is settled law that, unless a party has raised an issue in the court below, he is not at liberty to raise it on appeal. There are many authorities on point. An example of that is Motor Vehicle Insurance (PNG) Trust v. John Etape [1994] PNGLR 596 at p. 599 which followed and reaffirmed an earlier decision of the Supreme Court in Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 374 to 775.”

This passage was recently reproduced by Collier J. at [52] in Telikom PNG Ltd v. Kopalye (2021) SC2141.

8. As the evidence before this Court does not reveal that the issues in grounds of appeal 3(a) and (g) were raised before the primary judge and in the absence of submissions from the appellant to the contrary, on the authority of the judgments to which reference is made, the appellant is precluded from arguing grounds of appeal 3(a) and (g) and they are dismissed.

Ground of appeal 3(b)

9. This ground of appeal is that the primary judge fell into error in the exercise of his judicial discretion in, “sustaining the respondent’s objection to the appellant’s tendering of affidavits when he accepted that, pursuant to the Court’s directions of 15 June 2020, the appellant was required to file a ‘Notice to Rely on Affidavits’ under s. 35 Evidence Act when:

i)	on 15 June 2020 the direction by the primary judge for the filing and service of affidavits for trial was an order pursuant to s. 34(1) Evidence Act and the primary judge ought to have known that a ‘Notice to Rely on Affidavits’ is only required when no order pursuant to s. 34(1) Evidence Act is made; and

ii)	the primary judge’s directions of 15 June 2020 did not in any way direct parties to file a ‘Notice to Rely on Affidavits’ specifically but instead directed the filing and service of ‘relevant notices under the Evidence Act’, which in the circumstances would only reasonably be understood to mean a notice to cross-examine pursuant to s. 36 Evidence Act.”

10. It is not in dispute that on 15th June 2020 the primary judge ordered that the matter was fixed for trial and amongst others:

“3. The parties shall file and serve on each other any further Affidavits by 30 June 2020.

4. The parties shall file and serve relevant notices under the Evidence Act by 3 July 2020.”
(Court Order)

11. Section 34(1)(a) and (b) Evidence Act is:

“34.	Evidence by affidavit.
(1)	Subject to this section, in any legal proceedings before a tribunal to which this Division applies the tribunal may at any time order that—
(a)	a particular fact or facts may be proved by affidavit; or
(b)	the affidavit of a witness may be read in the proceedings on such conditions as the tribunal thinks reasonable; or….”

12. Section 35 Evidence Act is:

“35.	Affidavit evidence on notice.

(1)	Where a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to use in the proceedings an affidavit by a witness concerning particular facts as to which no order under Section 34 has been made he may, not less than five clear days before the hearing, give notice, accompanied by a copy of the affidavit, to the party or person (if any) against whom it is to be used that he desires to do so.”

13. The transcript of the hearing before the primary judge concerning the respondent’s objection to the proposed tendering of affidavits by the appellant is before this court. It is evidence of what transpired. The respondent objected to the use of affidavit material by the appellant on the basis that the appellant’s lawyers did not file notices to rely on affidavits. Submissions were then made by both counsel on the objection. The primary judge referred to the practice adopted by the courts and stated at p 38 line 23-24 to counsel for the appellant that if he could not produce the deponent, the main witness to the proceeding, “then that affidavit will not be tendered”. Further submissions were made by both counsel. The primary judge at p39 line 35 said, “…. as per the direction of the court, you will have to give notice of intention to use the affidavit”. Counsel for the appellant then sought an adjournment. There were then further submissions on the issue of an adjournment. After a short adjournment, the primary judge gave an oral ruling and refused the application of counsel for the appellant for an adjournment.

14. In the course of the oral ruling the primary judge said at p 45-46 line 40-2, “There was clear direction from the court on 15 June 2020 that any party seeking to rely on affidavit evidence need to file and serve relevant notices under the Evidence Act. The plaintiff failed to do that.”

15. The respondent submits amongst others that the primary judge did not explicitly sustain the respondent’s objection; counsel for the appellant conceded that he needed to file a notice to rely on affidavits; s. 35 Evidence Act specifically requires the appellant to have given notice to rely on affidavit material at the trial of the matter; the appellant did not cite any authority for the contention that he was not required to file a notice to rely on affidavits; that the Court Order was not made pursuant to s.34 Evidence Act and that s.34 Evidence Act only permits an order to be made concerning specific technical matters.

16. As to s.34 Evidence Act, s.34(1)(a) provides that a particular fact or facts may be provided by affidavit. No authority was cited for the proposition that this phrase should be limited to specific technical matters or that ‘particular’ should be bestowed a narrow, strict or limited construction. Given that statutory provisions should be accorded a fair and liberal meaning: Special Reference by Morobe Provincial Government (2002) SC693; State v. Tamate (2021) SC2132, without more, in our view, s. 34(1)(a) Evidence Act is sufficiently wide to permit an order to be made that any facts, particular or otherwise, may be proved by affidavit.

17. That this court has recognised that s. 34 Evidence Act may be relied upon to obtain an order to permit the use of an affidavit, is demonstrated in the judgment of William Maihua (Snr) v. Magdalene Maihua (2012) SC1185 at [3] and [11]. There is no reference to such an affidavit having to be confined to specifics.

18. As to the submission that the Court Order was not made pursuant to s.34 Evidence Act, that the Court Order does not make mention that it was made pursuant to s.34 Evidence Act does not mean that it was not. There is no other provision referred to pursuant to which the primary judge made the Court Order. Further, the purport of paragraph 3 of the Court Order is an order that is likely to have been made pursuant to s.34(1)(a) Evidence Act. We are satisfied that the primary judge made paragraph 3 of the Court Order pursuant to s.34(1)(a) Evidence Act. Even if this was not so, we are satisfied for the above reasons that the appellant was entitled to form the view that paragraph 3 of the Court Order was made pursuant to s.34(1)(a) Evidence Act.

19. As paragraph 3 of the Court Order was made or may have been assumed to have been made pursuant to s.34 Evidence Act, s.35 Evidence Act was not enlivened. Consequently, it was not necessary for the appellant to give a notice under s.35 Evidence Act. Further, the Court Order does not require the appellant to have given notice under s.35 Evidence Act. Paragraph 4 of the Court Order provides that parties shall file and serve relevant notices under the Evidence Act. A notice under s.35 was not relevant as paragraph 3 of the Court Order had been made or assumed to be made under s.34 Evidence Act.

20. In regard to the primary judge not explicitly sustaining the respondent’s objection, from the transcript it is apparent that this is so. What is also clear from the transcript is that the primary judge proceeded on the basis and made it known to counsel that in his view the appellant had to give a notice of intention to use his affidavit, as per the direction of the Court of 15th June 2020, which is the date of the Court Order and that the appellant’s affidavit would not be tendered. The view of the primary judge of this issue concerning a requirement for the appellant to give a notice of intention to rely on his affidavit is confirmed by his comments in his oral decision which refused the application for an adjournment.

21. Given the comments above, to the extent that the primary judge proceeded on the basis referred to, the primary judge, respectively, fell into error. Further, by the actions of the primary judge, counsel for the appellant was placed in the position that he required an adjournment of the trial to be able to comply with the views of the primary judge, albeit incorrect views, if the appellant was to be able to properly prosecute his case at trial.

22. For the above reasons, this ground of appeal is upheld.

Ground of appeal 3(e)

23. This ground of appeal is that the primary judge fell into error in the exercise of his judicial discretion in, “sustaining the respondent’s objection to the appellant’s tendering of affidavits when he failed to consider or give weight to the fact that:

i)	the respondent had been served with the appellant’s affidavits well in advance of trial and would have undoubtedly known what evidence the appellant intended to lead at trial; and

ii)	the parties had previously argued over the inclusion of the substantive affidavit by the appellant; the Court ruled that the affidavit be allowed and the said affidavit was served on the respondent well prior to trial.”

24. The respondent submits amongst others, that this ground of appeal ignores that the primary judge had directed parties to file and serve relevant notices under the Evidence Act by 3rd July 2020; that such notices included notices to rely on affidavits; that the appellant was in breach of s. 35 Evidence Act and Court directions; that it was not an issue that the appellant’s affidavits were served prior to trial date - the issue was that s. 35 Evidence Act required the appellant to give notice of its intention to rely on its affidavits.

25. In regard to the primary judge sustaining the respondent’s objection, from a perusal of the transcript the primary judge did not explicitly sustain the respondent’s objection. We refer to and repeat our comments on this point concerning ground of appeal 3(b). Consequent upon the expressed views of the primary judge, counsel for the appellant was placed in the position that he required an adjournment of the trial to be able to comply with the incorrect views of the primary judge that he was required to file a notice of intention to rely on his affidavit if the appellant was to be able to properly prosecute his case at trial.

26. As to the primary judge having directed parties to file relevant notices, we refer to in our comments concerning ground of appeal 3(b). As the Court Order was made or may have been assumed to have been made under s. 34 Evidence Act, s. 35 Evidence Act was not enlivened. A notice under s. 35 was not therefore, a relevant notice as it did not have to be given. Consequently, the appellant was not in breach of s.35 Evidence Act or the Court Order.

27. As to it not being an issue that the appellant’s affidavits had been served prior to the trial date, as the appellant’s affidavits had been served upon the respondent well in advance of the trial date, the respondent was aware of their content and therefore would not have been surprised by the appellant seeking to tender and rely upon them. 

28. In circumstances where the Court Order had been made by the primary judge for all affidavits to be filed by a certain date; where the parties had complied with the Court Order in that regard; where the parties would have been aware of the affidavits and their content and upon which each party was likely to rely and would not have been taken by surprise; for the primary judge to form and express the view that the appellant was not entitled to tender such affidavits due to a non-specific notice in the Court Order not being given, in our view was an incorrect exercise of the court’s discretion and not in the interests of justice. As a consequence, the primary judge fell into error. This ground of appeal should be upheld.

Ground of appeal 3(h)

29. This ground of appeal is that the primary judge fell into error when he, “Acted unreasonably or plainly unjustly in the circumstances”.

30. The appellant submits amongst others that it was not treated fairly by the primary judge and that the primary judge’s ruling in ultimately dismissing the National Court proceeding was plainly unjust; the appellant had sought an adjournment in the interests of justice as it had prepared for trial and had a right to be heard; the primary judge did not address the interests of justice in his refusal of the application for an adjournment and the primary judge did not consider the material of the appellant already on record.

31. The respondent submits that the appellant was the author of the circumstances it found itself in on the day of the trial; that the primary judge’s view of ‘notices’ in the Court Order meant notices to rely on affidavits and notices to cross-examine which the appellant misconstrued; that no supporting authority was cited by the appellant; that the respondent correctly anticipated that the appellant intended to object to parts of the respondent’s affidavit but the appellant did not anticipate that the respondent would object; the primary judge allowed the appellant to call witnesses notwithstanding his refusal to vacate the trial date.

32. As to the submission that the appellant was the author of the circumstances it found itself in on the day of the trial, we refer to our previous comments concerning the Court Order being made pursuant to section 34 Evidence Act or it being able to be assumed that it had been made pursuant to that provision. Counsel for the appellant was entitled to proceed to trial on the understanding that the trial was to be by way of affidavit evidence and that he was not required to give a notice pursuant to section 35 Evidence Act or the Court Order.

33. The view of the primary judge of ‘notices’ may have been as submitted by the respondent, but the Court Order does not portray that view. As to there not being any case authority cited by the appellant, this is not an unusual occurrence and is not fatal to an applicant’s case. In any event, the issue concerning whether a notice to rely upon an affidavit was required was ultimately a question of statutory interpretation of sections 34 and 35 Evidence Act.

34. As we commented in considering ground of appeal 3(b), what is clear from the transcript of the hearing before the primary judge is that the primary judge proceeded on the basis and made it known to counsel that in his view the appellant had to give notice of intention to rely upon an affidavit pursuant to the Court Order. This view was with respect, wrong, as it incorrectly interpreted sections 34 and 35 Evidence Act and did not reflect what was contained in the Court Order. By the primary judge proceeding as he did, counsel for the appellant was placed in the position that he had to seek an adjournment of the trial to be able to comply with the views of the primary judge if he was to be able to properly prosecute his case at trial.

35. In his consideration of the adjournment application, although he referred to a number of factors, the primary judge did not refer to the interests of justice. It may be assumed that he did not consider the interests of justice notwithstanding that the interests of justice were referred to by both counsel in their submissions to the primary judge.

36. After refusing the application for an adjournment, the primary judge requested counsel for the appellant to continue with the calling of witnesses. Counsel for the appellant was unable to call any witnesses and was unable to tender affidavit evidence because of the express views of the primary judge. A request for a further adjournment of at least half an hour was made by counsel for the appellant for him to determine the whereabouts of the appellant. This request was refused by the primary judge. The primary judge then, at the request of counsel for the respondent dismissed the National Court proceeding for lack of evidence.

37. In this instance, in our view, the dismissal of the proceeding eventuated as a result of the incorrect views expressed by the primary judge that counsel for the appellant was required to give notice to rely on affidavits pursuant to the Court Order. As a result of the expressed views of the primary judge an application for adjournment was made and refused, made again and refused and then the proceeding was dismissed. These applications for adjournment would not have been necessary but for the incorrect expressed views of the primary judge. We repeat our comments referred to in paragraph 28 above. 

38. Further, the primary judge refused an application for an adjournment without considering the interests of justice, in circumstances where he was aware that both parties had filed and were in possession of each other’s affidavits upon which they were likely to rely and so would not have been taken by surprise; was aware that the appellant was ready to proceed on the basis of affidavits filed and in particular the principal affidavit of the appellant together with other documentation which had already been put before the Court. The action of the primary judge in dismissing the proceeding in such circumstances was unreasonable or plainly unjust to the appellant and such that an error can be inferred. We refer to the judgments of Bean v. Bean [1980] PNGLR 307; Curtain Bros (PNG) Ltd v. UPNG (2005) SC788; Kewakali v. State (2011) SC1091 and Boroko Motors Ltd v. Meridian Motors Ltd (2020) SC2028 in this regard.

39. As we have found in favour of the appellant on three grounds of appeal, the appeal should be allowed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

40. It is ordered that:

a)	This appeal is allowed.

b)	The orders of the National Court given at Lae on 15th July 2020 whereby the 	Court dismissed the National Court proceeding, is quashed.

c)	The objection to the tendering of the appellant’s/plaintiff’s affidavits in the 	National Court proceeding is overruled.

d)	The National Court proceeding shall be listed for trial in Lae before another 	judge.

e)	The respondent shall pay the costs of the appellant of and incidental to this 	appeal.
__________________________________________________________________
Corrs Chambers Westgarth. Lawyers for the Appellant
Pacific Legal Group: Lawyers for the Respondent