|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 481 of 1997
CHRISTOPHER M. SMITH
Plaintiff
RUMA CONSTRUCTIONS LIMITED
Defendant
Waigani : Sakora, J
2000 : 19 July & 2 August
PRACTICE AND PROCEDURE – Summary Judgment – Circumstances for and appropriateness of application for such – Test to be applied in considering such application – Application to set aside such judgment – Ex parte application - National Court Rules O. 2 rr. 37 & 39, O. 4, rr. 5 & 42, O. 12, rr. 8, 37, 38 & 40.
Cases Cited:
The following cases are cited in the judgment:
The Chief Collector of Taxes v. TA Field Pty Limited [1975] PNGLR 144
Green & Co. Pty Ltd v. Green [1976] PNGLR 73.
The Government of PNG & Anor. v. Barker [1977] PNGLR 386
George Page Pty Ltd v. Malipu Balakau [1982] PNGLR 140
Tsang v. Credit Corporation [1993] PNGLR 112.
Dumm v. Sigere & Goroka LGC Unreported N1721 of 1997.
Ray v. Barker (1879) E Ex D 279
Harrison v. Bottenheim (1878) 26 WR 362
Daly v. Egan (1886)
Jacobs v. Booth’s Distillery (1901) 85 LT 262
Codd v. Delap (1905) 92 LT 510
Lawrance v. Norreys [1888] UKLawRpCh 116; (1888) 39 Ch D 213
Burton v. Shire of Bairnsdate [1908] HCA 57; (1908) 7 CLR 76
Dyson v. Attorney-General [1910] UKLawRpKQB 203; [1911] 1 KB 410.
Clark v. Union Bank [1917] HCA 19; (1917) 23 CLR 5.
Cloverdell Lumber Co. Pty Ltd v. Abbott [1924] HCA 4; (1924) 34 CLR 122
Australian Can Co. Pty Ltd v. Levin & Co Pty Ltd [1947] VicLawRp 15; [1947] VLR 332
Dey v. Victorian Railways Commissioners (1948-49) 76 CLR 62
Fancourt v. Merchantile Credits Ltd (1983) HCA 25; (1983-84) 154 CLR 87.
Counsel:
Mr K. Pato for the Applicant/Defendant.
Mr P. Payne for the Respondent/Plaintiff.
2 August 2000
SAKORA J: This is an application by the defendant company to have the summary judgment entered against it on 10 November, 1997 set aside. The application is moved pursuant to a Notice of Motion filed 19 April 2000 seeking orders, firstly, to set aside the judgment, and secondly, have the defendant file its defence within fourteen (14) days; it also seeks directions of the Court for the further conduct of the proceedings.
The application is said to be made under O. 12, r. 8(2)(b) of the National Court Rules (NCR). I think it is convenient and instructive to set out the pertinent parts of the rule in full hereunder:
(a) where the judgment has been entered pursuant to Order 12 Division 3 (default judgment); or
(b) where the judgment has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or
(c) where the judgment has been entered in proceedings for the possession of land pursuant to a direction given in the absence of a party and the Court decides to make an order that the person be added as a defendant.
(3) The Court may, on terms, set aside or vary an order –
- (a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or
- (b) where notice of motion for the setting aside or variation is filed before entry of the order.
(4) . . .
(5) . . .
Background
From the helpful chronology of events in this matter filed by learned counsel for the plaintiff as part of the plaintiff’s written submissions, the following circumstances surrounding the initiation of the proceedings and the present application emerge. And it is noted in this respect that these events are not disputed by the defendant. The plaintiff had issued out of the registry of the National Court a Writ of Summons on 27 May 1997. The Statement of Claim endorsed on the Writ sought specific performance of a sale of land pursuant to an agreement claimed to have been entered into between the parties in April 1996.
Together with the Writ of Summons was filed, on 27 May 1997, a Notice of Motion by the plaintiff seeking interlocutory injunctive order to restrain the defendant "from transferring, leasing or otherwise dealing with the land known as Part Lot 3, Section 27, Granville". The usual undertaking as to damages had also been filed with the application. The order for injunction was made on 30 May and subsequently entered on 5 June 1997.
On 15 July 1997, the plaintiff filed a Notice of Motion seeking specific performance of the alleged agreement for sale of the subject property by the grant of an order requiring the defendant to perform certain specific acts or activities, on its own part. This Court is unable to determine from the file whether or not this Notice of Motion had been duly served on the defendant in accordance with the NCR: O. 4, r. 42 (service not less than three days before the date named in the notice for hearing the motion, which was 23 July 1997). It does not feature in the chronology of events.
In any case, the endorsements on the file demonstrate that the matter came before my brother Acting Justice Batari on 23 July 1997 when it was adjourned to 25 July 1997. Only the plaintiff’s lawyer appeared on that date. On 25 July 1997 the matter came before a different judge, my brother Justice Kirriwom. Once again there was no appearance by or on behalf of the defendant company. Be that as it may, the Court heard the motion and reserved decision till 30 July 1997. It would appear that the order for specific performance was granted on 30 July 1997. In the meantime, the defendant company had filed on its behalf, on 30 July 1997, a Notice of Intention to Defend by the first of its lawyers (Maladinas).
On 8 October 1997 the plaintiff had filed on his behalf a Notice of Motion for summary judgment. That notice designated 10 October 1997 as the day on which the motion would be heard. There is, this time, evidence of service of this Notice of Motion on the defendant company, but only one full day before the nominated hearing date (affidavit of service sworn 9 October 1997 by Waisale Tivuka, deposing to service having been effected on the company’s lawyers at 4.05 pm 8 October).
By a Notice of Change of Lawyers dated 14 and filed 15 October 1997, the firm of Patterson Lawyers became the defendant company’s lawyers in the proceedings. Its former lawyers then formally withdrew from the proceedings by filing a Notice of Ceasing to Act (presumably after being served the notice pursuant to O. 2, r. 38 (1) (a) and (b) NCR; otherwise Maladinas would have had to comply with the requirement for leave of the Court to withdraw, under O. 2, r. 39). The new lawyers then filed a Notice of Intention to Defend on 22 October 1997. Filed as well of even date were the defendant’s Notice of Motion together with the supporting affidavit of one Des Bogaart, sworn 21 October.
It is not clear whether the Notice of Intention to Defend was in respect of the originating process, the Writ of Summons, or the Notice of Motion by the plaintiff seeking summary judgment. The defendant’s notice merely stated: "... the Defendant intends to defend the proceedings herein". In any case, in its Notice of Motion, the defendant sought orders, firstly, to have the 10 October 1997 orders in respect of its assets set aside, and, secondly, for leave to file its Defence.
As noted (supra) the supporting affidavit for the application "to set aside" was sworn by Mr Des Bogaart, the Managing Director of the defendant company. He deposed to the circumstances surrounding, from his perspective, the commencement of the relationship between the parties, and their communications with each other in respect of the subject property. It is a somewhat detailed affidavit consisting of twenty-four paragraphs and has annexed to it (and relies upon) nine documents. The deponent was and is the responsible officer directly and intimately involved in the negotiations and communications in this matter on behalf of the company, and, thus, was "speaking" from his own personal knowledge and information.
The defendant’s affidavit adverted to and dealt with each of the factual issues (assertions) in the plaintiff’s Statement of Claim. These had (have) to do with the well-recognised elements of a legally binding agreement: offer, acceptance and consideration (and associated features in between). For his part, the plaintiff has filed (and relies upon) his own equally detailed affidavit (some twenty-nine paragraphs and eight documents as annexures), sworn 26 May 1997. The assertions in the Statement of Claim are intended to have been substantiated and elaborated upon in and by this affidavit.
A quick check on the endorsements on the Court file reveals that the plaintiff’s application for summary judgment was finally heard by my brother Woods J on 10 November 1997. His Honour ordered summary judgment to be entered against the defendant on liability and that damages be assessed. As well his Honour ordered (paragraph 3) that the defendant be restrained from removing from the jurisdiction or in any way disposing of or dealing with or diminishing the value of any of its assets. Other associated and consequential orders (to Order 3) followed.
Other steps were taken by both parties to protect and advance their respective positions and interests following the 10 November 1997 orders (which were entered on 12 November 1997). For our present purposes, there is no need to advert to these now, except to note just the following (from the chronology of events, supra). On the very day that summary judgment was ordered, the defendant’s lawyers (Patterson ) filed a Notice of Ceasing to Act; it was dated 8 November 1997. There is no indication that this Notice had satisfied the requirements of O. 2, r. 39 NCR (supra).
Thus, despite the defendant being unrepresented (however the firm of Patterson Lawyers were able to withdraw without leave of the Court as per O. 2, r. 39 NCR), the Court granted the application for summary judgment. It was granted also despite (and in the face of) two Notices of Intention to Defend, a Notice of Motion seeking to set aside the order(s) for specific performance granted 10 October 1997 that had been filed with a supporting affidavit (supra). That affidavit (sworn by Des Bogaart on 21 October 1997) put into issue all of the factual assertions contained in the plaintiff’s Statement of Claim, thereby raising issues of law in respect of the essential elements of a legally binding agreement (supra).
Submissions
The defendant’s main contention here is that the 10 November 1997 summary judgment was obtained "ex parte", it having no legal representation upon its lawyers filing on the very day a Notice of Ceasing to Act (in contravention of the NCR, supra). In support of this contention, learned counsel for the defendant referred the Court to O. 4, r. 5(2) and O. 12, r. 8(2)(b) (supra) NCR, the former of which is in the following language:
Thus, it is argued, as the defendant company was unrepresented on the hearing of the plaintiff’s application, following which the Court directed the entry of summary judgment against it, it is entitled to invoke the provisions of O. 12, r. 8(2)(b) NCR (supra).
It is the defendant’s submissions also that it has demonstrated (through the affidavit of Des Bogaart) that it has a defence on the merits, and that credible explanation has been offered for not having legal representation on the day in question. These matters, it is argued, were not taken into account by the learned judge when considering the plaintiff’s application.
The plaintiff, on the other hand, argues that the learned judge had satisfied himself that there was evidence upon which summary judgment could be directed to be entered. In this respect it is submitted that, in any case, the onus is on the applicant/defendant to satisfy the Court of the following:
And should an applicant such as this defendant fail in discharging its "onus", then the order for summary judgment ought not be set aside, so goes Mr Payne’s argument on behalf of the plaintiff.
Learned counsel then refers the Court to the oft-cited cases in this jurisdiction dealing with the principles regarding setting aside default judgments regularly entered.
The Law
Whilst both counsel seemed to have proceeded before me on the basis that this is an application to set aside a summary judgment directed to be entered pursuant to O. 12, r. 38 NCR, neither addressed me directly on the principles of law on the Court’s power under this rule. Mr Pato merely dwelt on what may be described as "ex parte judgment" in the context of O. 4, r. 5(2) and O. 12, r. 8(2) (b) NCR (supra), with the contention that there is in this case "defence on the merits" which ought to be tried.
Mr Payne treats the defendant’s application as if it were one brought pursuant to O. 12, r. 35, in the way envisaged by the following cases (cited by counsel):
Green & Co. v. Green [1976] PNGLR 73.
PNG v. Baker [1977] PNGLR 386
George Page P/L v. Balakau [1982] PNGLR 140
Dumm v. Sigere and Goroka LGC [1997] N1721.
Rule 35 is located in Division 3 of O. 12, and reads:
The Court may, on such terms as it thinks just, set aside or vary a judgment entered in pursuance of this Division.
Now, Division 3 makes rules specifically in respect of Default Judgment. Upon the default of a defendant, a plaintiff is entitled to avail himself (itself) of the procedural steps set out in rr. 26 –34. These do not include procedure for summary judgment. The Court’s power in respect of application for summary judgment is specifically provided for under O. 12, r. 38 (under Division 4), which reads:
the Court may, by order, direct the entry of such judgment for the plaintiff on that claim or part, as the nature of the case requires.
(2) Without limiting Sub-rule (1), the Court may under that Sub-rule direct the entry of judgment for the plaintiff for damages to be assessed
(3) . . .
Mr Payne suggests that O. 12, r. 8 (2) (b) NCR does not distinguish between a default judgment or a summary judgment. This, in my opinion, is not correct, because Sub-rule (2) (a) does in fact specifically deal with default judgments. Therefore, Sub-rule (2) (b) must only envisage the situation such as this facing the defendant following the Court’s exercise of power under r. 38 of this Order. In any case, there is also a specific rule covering default judgments: r. 35 (supra).
Thus, the principles governing the entry of default judgments and their setting aside are different from those relating to summary judgments, just as the rules for these are different.
The English equivalent of our O. 12, r. 38 NCR is O. 14 (RSC), under which procedure "a plaintiff who takes out a summons for judgment supported by an affidavit verifying the cause of action and stating that there is no defence, may, by order, enter judgment without trial": Osborne’s Concise Law Dictionary (16th ed). The Oxford Dictionary of Law (new ed) defines "summary judgment" as: a procedure enabling a plaintiff in an action for debt or damages to obtain judgment without the defendant being permitted to defend the action. And the procedure envisages a supporting affidavit in which the plaintiff swears he believes there is no defence to the action.
Moreover, the procedure envisages the defendant filing answering affidavits, whereupon, at the hearing, summary judgment may be ordered to be entered for the plaintiff unless the defendant shows that there is an issue or question in dispute that ought to be tried or that there ought, for some other reason, to be a trial. The defendant may then be given leave to defend.
In The Reform of Civil Procedural Law, the learned author (Sir Jack J H Jacob) discusses "summary judgment" in the following way (at 182):
The English system employs a very effective device for disposing, without trial, of cases in which there is virtually no defence. Where the defendant has entered an appearance but the plaintiff properly believes that he has no defence, the plaintiff may apply by summons for summary judgment, supported by an affidavit verifying the facts in the statement of claim and deposing to his belief that the defendant has no defence.
Thereupon unless the defendant can satisfy the Court that there is a bona fide triable issue, so that the case ought to go to trial, the plaintiff will be given summary judgment without trial.
(my underlining).
The learned author emphasises that the exercise of the Court’s power in this summary way ought not be capricious, arbitrary or irregular, and that a party affected ought not be proceeded against without his having due opportunity of being heard (at 226). Furthermore, because the process is "summary, brevi manu as it is called, and replaces the normal ordinary method of trial, the party affected may thereby be deprived of his right to a trial. In other words, the resort to the summary process . . . involves a serious and severe curtailment of the right of a party to have his case on the merits heard by a court of law in the ordinary way at a trial held for the purpose" (ibid) (my underlining).
It is instructive, therefore, to reproduce here what the learned author finally concluded (at 227):
For these reasons, the Court will exercise its coercive powers by summary process . . . to terminate proceedings without a trial only with the greatest care and circumspection and only in the clearest cases.
(my underlining).
I respectfully adopt the foregoing discussions as the proper and correct principles to apply when considering applications under O. 12, r. 38 NCR.
These principles were enunciated as long as 1910 in the authoritative English Court of Appeal decision in Dyson v. Attorney-General, reported in [1911] 1KB 410. Whilst the case was concerned directly with the Court’s power to strike out pleadings as disclosing no reasonable cause of action under O. XXV, r. 4 (English RSC) (equivalent to our O. 12, r. 40 NCR), similar concerns and considerations applied in situations such as the present when the Court was asked to exercise such summary and "coercive" powers. It was held (by Cozens – Hardy M.R., and Lord Justices Farwell and Fletcher Moulton), allowing the appeal against an order of a judge in chambers confirming an order of the Master dismissing the action pursuant to O. XXV, r. 4.
Fletcher Moulton L.J., speaking of the summary jurisdiction of the Court to dismiss an action (in the way envisaged by O. XXV, r. 4) said (at 419):
To my mind it is evident that our judicial system would never permit a plaintiff ‘to be driven from the judgment seat’ in this way without any court having considered his right to be heard, except action was obviously bad and almost uncontestably bad.
The Court said this in relation to O. XXV, r. 4 (headnotes):
Order XXV., r. 4 – which enables the Court or a judge to strike out any pleading on the ground that it discloses no reasonable cause of action – was never intended to apply to any pleading which raises a question of general importance, or serious question of law.
Closer to home, all Australian jurisdictions empower the Court to by-pass the normal extended procedures in civil litigation by giving summary judgment for the plaintiff if the plaintiff can show (either on the facts on the law) that his victory is a foregone conclusion: Aronson Reaburn Weinberg, in Litigation: Evidence Procedure (2nd ed) para. 5.02, page 83.
An Australian case directly on point is the oft-cited decision in Australian Can Coy P/L v. Levin & Co P/L, reported in [1947] VicLawRp 15; [1947] VLR 332 (FC). A decision of the Full Court of the Victorian Supreme Court, it was an appeal from the order of a single judge giving liberty to enter final judgment for specific performance of an agreement for sale of land described in the statement of claim, and further ordering that the defendant execute a proper contract of sale of the said land. The application leading to that order was for summary judgment pursuant to Order 14 of the Rules of the Supreme Court (Vic).
Justice Lowe (reading the judgment of himself and Herring CJ) said this:
Judges have in many cases expressed the opinion that the procedure permitted by O. 14 should only lead to summary judgment in a clear case, and that in any other circumstances the normal procedure for obtaining judgment should be followed. (my underlining).
The judgment went on and further stated:
The courts have used varying phrases to describe the circumstances in which on the one hand leave to sign should be granted or on the other leave to defend given.
The Court then proceeded to canvass the case law on these phrases. I respectfully reproduce these in full hereunder. In Codd v Delap (1905) 92 LT510, it is said that to give liberty to sign judgment, there must be "no real substantial question to be tried". In Jones v Stone (1894), it is said that there must be "no reasonable doubt that a plaintiff is entitled to judgment". From the point of view of the defendant, it has been said that he is entitled to leave to defend if there is a "triable issue": Jacobs v Booth’s Distillery (1901) 85 LT 262. In Clark v Union Bank [1917] HCA 19; (1917) 23 CLR 5, the High Court expressed the view that leave to defend should be given to defend if there was "an arguably good defence", and in Cloverdell Lumber Co P/L v Abbott [1924] HCA 4; (1924) 34 CLR 122, Isaacs J approved a prior statement of this Court in Daly v Egan (1886) that such leave should be given "where the defendant has any plausible ground of defence." The matter is rather differently expressed by Brett LJ in Ray v Barker [1879] UKLawRpExch 31; (1879) 4 Ex D 279, where he said that leave should be given to defend if facts were shown leading to "the inference that at the trial of the action he" (ie the defendant) "may be able to establish a defence" while in Harrison v Bottenheim (1878) 26 WR 362 it was said that such leave should be given if the defendant "has shown enough to entitle him to interrogate".
This aspect of the judgment then concluded as follows:
From all this it appears that where there is a real case to be investigated either in fact or law, leave to defend should be given. (my underlining)
Their Honours were of the view also that: "Whatever the language various courts have used, it seems to us that the substance of the criterion to be applied is that after the matter involved has been explained to the judge there must be a real uncertainty without full argument or further investigation of the facts as to the plaintiff’s right to judgment. The granting or refusing of liberty to sign judgment being, as we have said, a matter of discretion, it is inevitable that different Judges may exercise their discretion on the same facts in different ways...."
In Dey v. Victorian Railways Commissioners (1948-49) 78 CLR 62, Dixon J felt so strongly about the matter that he would have allowed the appeal simply on the ground that difficult questions of law should not be determined in summary proceedings (I respectfully adopting the words of the learned authors of the text cited, supra, at 87). His Honour said this: "... once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process" (at 91, judgment).
Later the learned judge referred to "... the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose ..." (at 92, ibid) (underlining mine).
As noted earlier, because both counsel did not deal with the specific power of the court under O.12, r.38 NCR, they were unable to assist this Court with discussions on any case law on the subject. My research unearthed only two reported cases that have directly considered O.12, r.38 NCR. More often than not, the rule has been accorded only passing reference when considering applications to set aside default judgments regularly entered (pursuant to O.12, r.35, or O.12, r.8 (2) (a)).
The Supreme Court case of Tsang v Credit Corporation [1993] PNGLR 112 (Kapi DCJ, Sheehan & Brown JJ) considered the proper application of the rule. The Court said that there are two elements involved in this rule, and this were (at 117):
(a) evidence of the facts proving the essential elements of the claim;
and
(b) that the plaintiff or some responsible person gives evidence that in his belief there is no defence.
Their Honours found that there was no issue in relation to the first element. As to the second element, the Court held that: the plaintiff must show in absence of any defence or evidence from the defendant that, in his belief, the defendant has no defence. And the Court stated further (ibid):
If a defence is filed or evidence is given by the defendant ... the plaintiff must show that, upon the facts and/or the law, the defendant has no defence. The plaintiff will not be entitled to summary judgment if there is a serious conflict of fact or law. Whether a case should go to trial on these issues will be determined on the facts of each cases. However, the authorities show that the summary jurisdiction should only be invoked in a clear case.
And the Court referred to the 1975 decision of Raine J (as he then was) in the case of The Chief Collector of Taxes v TA Field Pty Limited reported in [1975] PNGLR 144, which held, while granting leave to enter judgment under the former Rules of Court O.XVIII, r.1 (summary judgment), that the summary jurisdiction conferred by the Rules should only be invoked in clear cases.
In Tsang’s case, their Honours considered the defence that had been proposed, and determined it could not be successful, so proceeded to dismiss the appeal against summary judgment.
As with the principles enunciated in the English and Australian cases discussed here, for the proper exercise of this summary jurisdiction, I respectfully adopt the same principles that have been adopted and applied in the two PNG cases.
Thus, the appropriate circumstances, the test(s) and the principles that emerge from the foregoing discussion of the cases can be conveniently summarised as follows. All jurisdictions provide for an application for judgment without proceeding to trial (either from the respective rules of court or the inherent jurisdiction of a common law court to stop or prevent the abuse of its process when the power is employed for groundless claims).
Either party may apply for summary judgment as provided for under O. 12, rr. 38 and 40 NCR, the former rule enabling the plaintiff (supra) and the latter the defendant. The latter rule is in the following terms:
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
Most jurisdictions talk of the defendant’s opposition to an application for summary judgment as being an application for leave to defend. It is envisaged, therefore, that an application for summary judgment (by either party) will not be heard/dealt with ex parte.
Under our NCR, if the power (to direct the entry of summary judgment, for either party) has been exercised ex parte, such direction or order is liable to be set aside pursuant to O. 12, r. 8(2)(b). When the power has been exercised when both parties have been present, the direction or order is a final order, and the other party can only challenge it on appeal, pursuant to s. 14 Supreme Court Act (SCA). Sub-section (4) emphasises this by saying:
(2) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgment..
By the same token, if the application (by a plaintiff for summary judgment) is not granted, such refusal is an interlocutory order requiring leave of the Court to challenge.
As summary judgment denies the other party the right to a trial in the proceedings, the applicant for summary judgment (under the NCR: O. 12, rr. 38 or 40) must comply with the rules.
One school of thought would suggest that, no summary judgment should be granted ex parte, except in a clear case (upon an application pursuant to O. 12, r. 38 NCR). And a "clear" case would be, in my opinion, where the defendant’s liability was not in doubt, such as where, for instance, there had been admissions or acknowledgements of the debt or negligent action or omission. Whilst this suggestion seems logical and sensible, it does seem to clash with the right to have "set side" under O. 12, r. 8(2) (b). As stated above, the discussions of the English and Australian cases demonstrate that the exercise of the power (to grant leave or liberty to enter judgment or file a defence, or indeed, defend) does not take place ex parte.
Perhaps there is no conflict between the suggested application of O. 12, r. 38 and O. 12, r. 8(2)(b) NCR. In my opinion, it would be reasonable to argue that, in a "clear" case as already given example of (supra), there would be no need to avail of the right under O. 12, r. 8(2)(b); that it would be foolish, if not an attempt at abuse of the process of the Court, to seek to have "set aside" a summary judgment after having made well-documented admissions of liability on previous occasions. Similarly, where, in Sir Jack J H Jacob’s words, there was "virtually no defence". Therefore, ex parte exercise of summary power in this respect is permissible in a "clear" case of admitted liability. I would suggest that the concept of a "clear" case would be demonstrated by circumstances where there was either no real substantial question (of fact or law) to be tried or no real doubt that a plaintiff would be entitled to judgment. In all other cases, both parties must be present in order for the Court to hear and determine an application under O. 12, r. 38 NCR. Otherwise, the defendant is entitled to avail of the relief provided by O. 12, r. 8(2)(b) NCR.
All other cases, described in the various terms and phrases used in the foregoing case law, envisage the following steps to be taken:
If the Court has been satisfied in respect of (1) and (2), then the onus is on the respondent to:
However, this is not a heavy onus, as Dixon J made clear in Dey v. Victorian Railways Commissioners (supra). Indeed, it is clear that a "question to be tried" may be established or demonstrated even though a defendant has "not succeeded in positively establishing a defence": Fancourt v. Merchantile Credits Ltd (1983) HCA 25; (1983-84) 154 CLR 87. But the defendant must produce some evidence of a defence.
It is instructive to, finally and respectfully, cite from two more cases to re-emphasise the principles discussed in the cases already here. In the Australian High Court case of Burton v. Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, O’Connor J said this (at 92):
Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving of those rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.
His Honour Higgins J observed in the same case (at 192) that:
It is my opinion that the Full Court were led, by a very natural process I admit, to take a wrong attitude. They dealt with the matter as if they were deciding it on the merits whereas they had merely to decide whether there was anything in fact, or law that was fairly triable or arguable. (my underlining).
In the old English case of Lawrance v. Norreys [1888] UKLawRpCh 116; (1888) 39 Ch D 213, Lord Herschell said this:
It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the Court. It is a jurisdiction which ought to be very sparingly exercised and only in very exceptional cases. (my underlining).
Conclusion
At the hearing of the plaintiff’s application for summary judgment, the learned judge had before him the following situation:
Thus the learned judge had before him real and serious issues of fact and law. The circumstances here, therefore, could hardly be said to have presented to the Court a "clear" case for granting, let alone entertaining, the plaintiff’s application pursuant to O. 12, r. 38 NCR. All of the well-recognised constituent elements of a legally binding agreement (offer, acceptance and consideration) were in dispute.
Applying the principles that have been enunciated in the case law discussed here, it is abundantly clear to me that the learned judge fell into error in proceeding to hear the application and granting the summary relief sought.
It is the judgment of this Court that the order of my brother Woods J of 10 November 1997 directing the entry of summary judgment against the defendant company should be set aside on the basis that:
The Court, therefore, makes the following orders:
____________________________________________________________
Lawyers for the Plaintiff: Blake Dawson Waldron
Lawyers for the Defendant: Warner Shand
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2000/35.html