SC2630

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 165 OF 2023 [IECMS]

BETWEEN:
BOROKO 2019 LIMITED
PREVIOUSLY KNOWN AS HEVILIFT LIMITED
Appellant

AND:
BRUCE TOWERS
Respondent

Waigani:   David J, Murray J, Dingake J
2024:  1st August & 3rd September

ENFORCEMENT OF FOREIGN JUDGMENTS - appeal against whole of the judgment of National Court declining to set aside registration of judgment of the Supreme Court of Queensland – jurisdiction of Queensland Court resisted, but overruled – appellant did not walk away, but submitted to jurisdiction by participating fully in all stages of trial up to a finding of liability against the appellant including assessment of damages -  appeal against decision on liability unsuccessful – judgment of the Supreme Court of Queensland not against public policy or injurious to public interest – public policy favours finality in litigation – appeal without merit and dismissed - Reciprocal Enforcement of Judgments Act, Chapter 50, s.5.   

Cases Cited:
Papua New Guinean Cases

Kalyk v Atlas Corporation Pty Ltd (1998) PGNC 76 N1760
Stenhurst Pty Ltd v Golding International Pty Ltd (1995) N1377
Work Cover Authority of NSW v Placer (PNG) Exploration Ltd (2006) N3003
Bexhill Funding Group Limited v Basumel Limited (formerly MBA Limited) (In Liquidation) (2006) N3092

Overseas Cases

Fender v St John-Mildway [1938] AC 1

Counsel:

Dr. Henley D. Katter with Mr. Gibson Geroro, for the Appellant
Mr. Bernard Sinen with Mr. Gideon Pogla, for the Respondent

3rd September 2024

1.	BY THE COURT:  INTRODUCTION: This is our unanimous decision with respect to the Appellant’s appeal in this matter.

2.	The appeal in essence concerns the propriety of enforcing a judgment of the Supreme Court of Queensland in Papua New Guinea (“PNG”).

3.	On or about the 23rd of April 2021, the Appellant, by way of a Notice of Motion applied to the National Court, pursuant to Order 13 Rule 74 of the National Court Rules (“NCR”), and Section 5(1) and (2) of the Reciprocal Enforcement of Judgments Act (Chapter 50) (“REJA”), that the Court Order entered on the 31st of March 2021, registering the judgment of the Supreme Court of Queensland, Australia, (“the Queensland Court”) at Cairns in the proceedings Towers v Hevilift (No. 2) (2020) QSC77, dated 15th April 2020, be set aside on the basis that the Court of the country of original jurisdiction had no jurisdiction to entertain the matter and further that the enforcement of the judgment would be contrary to public policy.

4.	The National Court in a judgment delivered on the 26th of September 2023, (per Kandakasi DCJ) declined to set aside the registration of the judgment of the Queensland Court dated the 15th of April 2020.

The Appeal

5.	The Appellant aggrieved by the aforesaid decision has filed an appeal with this Court, in which it appeals against the whole of the judgment of the National Court referred to earlier, in proceedings styled OS No. 179 of 2020 (IECMS) (CC4).

Grounds of Appeal

6.	The grounds of appeal are captured in the Appellant’s Notice of Appeal filed on the 2nd of November 2023.

7.	The grounds of appeal are unduly detailed and run into nine (9) pages (see pages 1 – 9 of the Appeal Book). Be that as it may, the grounds of appeal, in summary, raised only two (2) issues: (a) whether the Queensland Court had the necessary jurisdiction and (b) whether the enforcement of the Queensland Court judgement is or was contrary to public policy.

8.	It is also important to emphasize that when this matter was argued before us on the 1st of August, 2024, the parties agreed that fundamentally, the issues as stated above are the live issues before this Court – even as the Respondent characterized the “public policy” issue as “secondary”.

Relevant Background & Facts

9.	The relevant background and facts to this appeal are not in controversy and may be stated briefly. These facts are set out in some detail by Kandakasi DCJ in his judgment, appealed against.

10.	The Respondent was at all material times hereto an employee of the Appellant. He was employed by the Appellant as a helicopter pilot in Papua New Guinea. The Appellant operates in the aviation space, providing, inter alia, charter solutions for transportation of personnel and equipment around the world, including Papua New Guinea.

11.	On the 20th of April 2006, the helicopter the Respondent piloted, in the course of his duties, crashed. The Respondent survived but was rendered a complete quadriplegic.

12.	The Respondent sued the Appellant in Queensland for negligence, and on the 15th of April 2020, the Queensland Court found in his favour. Judgment in the amount of $5,652,072.74 AUD (about 12,399,517.18 PGK,) was entered against the Appellant.

13.	Before the suit in Queensland was entertained on the merits the Appellant contested the jurisdiction of the Court, but was overruled, and thereafter participated in the trial for liability and assessment of damages. It bears stating at this juncture that the Appellant did not file any appeal against the adverse decision of the Queensland Court.

14.	On the 9th of March 2021, the National Court made orders to register the judgment of the Queensland Court. These are the orders the Appellant unsuccessfully sought to set aside by its Motion filed on the 15th of April 2021.

The Issues

15.	The issue(s) that fall for determination are whether the National Court fell into error when it held that the Queensland Court had the necessary jurisdiction, and that its judgment was not susceptible to being set aside on the basis that it was contrary to public policy.

Submissions

16.	The Appellant submits that the Queensland Court had no jurisdiction and that the National Court (per Kandakasi DCJ) fell into error in holding that Queensland Court had jurisdiction.

17.	The Appellant also submitted that the enforcement of the judgment of the Queensland Court is contrary to the public policy of Papua New Guinea to the extent that the Queensland Court stated that it was applying the law of Papua New Guinea, when in fact, it never did so.

18.	The Appellant contended further that the National Court erred in the reasons of 26th September 2023, from paragraphs 26-31, particularly on the question of law or on the Notice of Motion by the Appellant filed on the 15th of April 2021, to set aside paragraphs 1 and 2 of the Notice of Registration of judgment dated 10th of March 2021, and in ordering costs against the Appellant.

19.	According to the Appellant, public policy requires that the laws of Papua New Guinea be applied correctly. The Appellant argued that the Courts of Papua New Guinea were best suited to deal with the suit initiated by the Respondent since the cause of action arose in PNG and the Appellant company is registered in PNG.

20.	The Respondent on the other hand argued that the Appellant has failed to identify any error committed by the National Court. According to the Respondent the dominant issue before the National Court was whether or not the Queensland Court had any jurisdiction over the suit initiated by the Respondent and that the issue relating to “public policy” was only secondary. Consequently, the Respondent argued that the appeal should fail as it raises issues not fairly raised at the lower Court and also because it does not specifically identify where the Primary Judge had erred in his judgment.

21.	The Respondent argued further that it is ill-advised of the Appellant to attack the judgment of the Queensland Court because the said judgment is not open to appeal in this Court.

22.	According to the Respondent, the Primary Judge correctly found that the Appellant had participated in defending the Respondent’s claims in the Queensland Court during the trial on liability, on appeal and when the matter came before the Queensland Court for assessment of damages.

23.	The Respondent also submitted that the Appellant had the opportunity to appeal the judgment on damages and raise the grounds contained in the appeal but had failed to do so.

24.	It was further argued by the Respondent that the National Court did not err in rejecting the argument that the enforcement of the judgment of the Queensland Court is contrary to the public policy of Papua New Guinea.

Consideration

25.	With respect to the issue of whether the Queensland Court had jurisdiction, we have not been referred, specifically, to any error committed by the National Court.

26.	It is clear from a reading of the National Court decision that the Court was alive to the governing Legislative framework and the case law relevant to the determination of the issues before it.

27.	In our respectful opinion, the Court was correct to depart from the legislative framework set out by the REJA. This Act provides for the basis upon which a judgment registered under it may be set aside.

28.	A party relying on REJA must satisfy its terms relating to the grounds upon which a foreign judgment may be set aside, in order to succeed.

29.	It is not necessary to overburden this judgment with the provisions of Section 5 of the said Act, save to say that the Primary Judge did not fall into error in applying its terms, and neither was such an error specifically identified by the Appellant, to our satisfaction.

30.	Section 5 of REJA has been subject to consideration in a number of cases. (Fancis Kalyk, Anthony John Deegan & Bruce William Hansen v Attas Corporation Pty Ltd (1988) N1760); Stenhurst Pty Ltd v Golding International Pty Ltd (1995) N1377; Work Cover Authority of NSW v Placer (PNG) Exploration Ltd (2006) N3003; Bexhill Funding Group Limited v Basumel Limited (formerly MBA Limited) (In Liquidation) (2006) N3092).

31.	In our considered opinion the case of Kalyk (supra) is similar in many respects with the present case. In the said case, an application to set aside the registration of a judgment obtained in the Supreme Court of New South Wales (NSW) was not successful. The Defendant in the said proceedings argued that the Supreme Court of NSW did not have jurisdiction in the matter and the registration of the judgement in Papua New Guinea was contrary to public policy.

32.	The Court in Kalyk (Supra) per Kapi DCJ, in determining whether the actions taken by the Defendant fell within the meaning of the words: “submit to the jurisdiction of the country of the original Court by voluntarily appearing in the proceedings” under Section 5(2) of the Act, remarked that:

“There is no dispute that the subject action is an action in personam. There is also no dispute that the Supreme Court of NSW has jurisdiction to adjudicate on the matter under NSW law. The issue raised here is whether the Supreme Court of NSW is deemed to have jurisdiction under s 5 (2) of the Act. The question is whether the actions taken by the defendant fall within the meaning of the words “submit to the jurisdiction of the court of the country of the original court by voluntarily appearing in the proceedings.” under s 5 (2) of the Act. Counsel have not referred to any authority on the meaning of these words. The case referred to by counsel, Stenhurst Pty Ltd v Golding International Pty Ltd (supra) involved a default judgement in the original court. The case does not discuss the meaning of the words in question. I interpret the words “appearing” to mean personal appearance or by a legal representative in the proceedings. If the legislature had intended a meaning to cover filing of pleadings as an act of submission it would have used words to give effect to this intention. I find that the word “appearing in the proceedings” can only relate to personal appearance or by legal representative in the proceedings.”

33.	In the result, the Court dismissed the ground of lack of jurisdiction, because it was satisfied that the Defendant had submitted to the jurisdiction of the Court.

34.	The question that then arises with respect to the current matter is whether the Appellant submitted to the jurisdiction of the Queensland Court. 

35.	It is common cause that the Appellant had resisted the jurisdiction of the Court but was overruled. After being overruled the Appellant did not walk away but participated fully in all other stages of the trial, including assessment of damages. More significantly, the Appellant elected not to appeal the adverse holding against it on jurisdiction, liability and damages.

36.	We agree with the Primary Judge in his findings that the Appellant did the following:

a)	Contested the jurisdiction of the Queensland Court, which contest, was dismissed.

b)	Did not appeal against the decision of the Queensland Court on jurisdiction.

c)	Participated in the substantive trial in the Queensland Court which led to a finding of liability against the Appellant with damages to be assessed.

d)	Unsuccessfully appealed against the decision of liability.

e)	Proceeded to defend the claim against it and participate in the substantive trial on assessment of damages.

f)	Made submissions on damages before the final judgment was delivered.

37.	In our view all the above supports our conclusion that the Appellant submitted to the jurisdiction of the Queensland Court.

38.	We turn now to consider whether the enforcement of Queensland Court Judgment was contrary to public policy.

39.	It is trite law that public policy is not amenable to precise definition. It is a fluid concept whose applicability to any case is dependent on the circumstances of each case. (Fender v St John-Mildway [1938] AC 1). The term, in the Court’s mind, involves some element of public harm, which has not been demonstrated in this case.

40.	We agree with the submission of the Respondent that the judgment of the Queensland Court is not against public policy in that:

i)	It does not recognize an illegal contract or transaction.

ii)	The Appellant was given full opportunity to be heard before the final judgment was issued.

iii)	The Supreme Court of Queensland is a declared Court under the REJA.

iv)	The Judgment was not against a company in liquidation requiring the consent of the liquidator.

v)	The Judgment is not injurious to public interest.

41.	We are also of the considered view that public policy favors finality in litigation. This matter has been dragging on for years, with the risk that the Respondent may not fully enjoy the fruits of the Judgment pronounced in his favor.

42.	We consider that it is not necessary to traverse the issue of judicial comity that the Primary Judge discusses in the closing pages of his judgment.

Conclusion

43.	In the result, we find that the appeal is without merit and liable to be dismissed.

44.	Accordingly, the Court orders that:

(a)	The appeal is dismissed with costs – such costs to be agreed or taxed.
________________________________________________________________
Geroro Lawyers: Lawyers for the Appellant 
Leahy Lewin Lowing Sullivan Lawyers:  Lawyers for the Respondent