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Kum v Coral Sea Hotels Ltd [2016] PGNC 49; N6225 (7 March 2016)

N6225

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 714 of 2013

JERRY KUM
Plaintiff

V

GUARD DOG SECURITY SERVICES LTD
First Defendant

AND

CORAL SEA HOTELS LTD
Second Defendant

Kundiawa: Liosi, AJ
2016: 07th March

PRACTICE & PROCEDURE – Application to transfer matter from Kundiawa to Lae- Order 10 Rule 2 (2) National Court Rules – Section 522 (2) (b) Criminal Code Act chp.262 – Onus on Applicants to show Good Cause or compelling reasons.

Held:

1. Decision to transfer is discretionary matter for the courts.
2. Onus on Applicant to show good cause /compelling reasons.
3. No prejudice suffered by Respondent /Plaintiff.
4. Conducting the Trial where the proceedings was filed been a financial burden is a good cause /compelling reason Applicant must show evidence of the expenses involved.
5. Whether Civil/Criminal Trial, Principles are the same.
   

Cases Cited

Mono v. State N4753 (20 June 2012
R v. Cattel [1968] INSWR 156,
R v. Yanner [1998] 2 QR 208
R v. Giddings [1916] ArgusLawRp 51; [1916] VLR 359

Counsel
Miss M. Maburau, for Applicant/Defendant
Mr. M. Yawip, for Plaintiff/ Respondent

RULING

3rd March, 2016

1. LIOSI, AJ: This is a Ruling on Application for Transfer of proceedings from Kundiawa to Lae.

Facts

2. The plaintiff was an employee of PNG Power Ltd. The First and Second defendants are companies incorporated under the Companies Act. The first defendant company is involved in provision of security services. The second defendant is involved in provision of hospitality services and operates Hotels and Motels around the Country. On 7th June 2010, the plaintiff was a Guest at Houn Gulf Motel in Lae, a property owned and operated by Second Defendant. The first defendant provides security services to the second defendant. At around 5 - 6 am, plaintiff who was occupant of Room 108 ran out of the Room when he heard criminals attempting to break into his room. He ran out to ask the dog handler to release the dog. A few minutes later a vehicle owned by the first defendant arrived. The plaintiff whilst running back got shot allegedly by the security officers in the vehicle. The plaintiff was then rushed to Tusa Private Hospital for treatment. Plaintiff being from Kundiawa then filed proceedings in Kundiawa on 8/07/13. Since then the defendants Lawyers have made several trips to Kundiawa to represent the defendants as they are based in Lae.

3. The Applicant argues that given the magnitude of the allegation. The first defendant is going to defend itself vigorously and so it will be calling several witnesses. It will be therefore costly to bring all its witnesses to Kundiawa.

The Law

4. The Law is spelt out under the Relevant Provisions of Order 10 Rule 2 of the National Court Rules and s.522 Rule 2 (2) of the Criminal Code Act Chp: 262. Both provisions give discretionary powers to the courts it appears on the application of a party or of its own volition to transfer a matter for hearing to another location, whether it be a Civil or a Criminal trial.

5. Although few, various case Laws have supported the above proposition that the courts have the discretion to transfer proceedings if and when it is warranted upon good cause or compelling reasons been shown.

6. The Issue then arises as to what constitute good cause on compelling reasons. Agree that the issue of costs is a good cause and a compelling reason for transfer of a matter.

7. There is evidence that both Counsels for the first and Second defendants have made various trips to Kundiawa to attend to the matter and have incurred costs. They will also be calling various witnesses come the trial date as opposed to the Plaintiff which is going to be expensive.

8. In my view the issue of prejudice may be another good cause/ compelling reasons for the transfer. I note the Public Solicitors has a branch office in Lae and transfer of the matter will not prejudice the plaintiff in any way as opposed to the defendants. This is because the Lae Public Solicitors office will take over conduct of the matter. To this end I am unable to see how the respondent will be prejudiced.

9. In the end the application for Transfer is granted. Costs follow the event.
Ruling and orders accordingly,
_________________________________________________
In-house Lawyer GDSS: Lawyers for the Applicant
Public Solicitor: Lawyers for the Respondent