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Newman v Melpa Properties Ltd [2017] PGNC 376; N7069 (7 December 2017)

N7069

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 430 of 2017

BETWEEN:

TITUS NEWMAN

Plaintiff

AND:
MELPA PROPERTIES LTD
Defendant

Waigani: Hartshorn J
2017: 8^th November
: 7^th December

Application to transfer proceeding

Cases Cited:
Papua New Guinea Cases

Paula Yayabu v. Lawyers Statutory Committee (2005) N2906

Overseas Cases

National Mutual Holdings Pty Ltd v. Sentry Corporation [1988] FCA 133; (1988) 83 ALR 434

Counsel:

Mr. M. Adadikam, for the Plaintiff
Mr. C. Kos, for the Defendant
7^th December, 2017

1. HARTSHORN J: This is a decision on a contested application for this proceeding to be transferred from the Waigani National Court to the Mount Hagen National Court.

2. The defendant makes application pursuant to Order 10 Rules 2(2) and 11(2) National Court Rules, and Practice Direction No.1 of 1992. It submits that the proceeding should be transferred to Mount Hagen National Court as there are special circumstances which are:

a) the office of the defendant is in Mount Hagen;

b) the property the subject of the proceeding is in Mount Hagen;

c) the residential address of the plaintiff is in Mount Hagen;

d) the parties witnesses are all in Mount Hagen;

e) the cause of action of the plaintiff is in Mount Hagen;

f) no prejudice will be caused to either party if the proceeding is transferred to Mount Hagen National Court and there will not be any delay;

g) there are other proceedings that have been commenced by the defendant against the plaintiff concerning the subject property at the Mount Hagen National Court.

3. The plaintiff submits that the application to transfer should not be granted as:

a) the issue is whether there are urgent and extra ordinary reasons warranting a transfer, and the defendant has not established any;

b) the plaintiff now lives in Port Moresby and has done since this proceeding commenced;

c) there will be delay occasioned if the proceeding is transferred as the plaintiff will have to instruct other lawyers.

Consideration

4. The plaintiff submits that the relevant issue is whether there are urgent and extra ordinary reasons established by the defendant that would warrant the transfer sought. This is based upon what Injia DCJ (as he then was) said in Paula Yayabu v. Lawyers Statutory Committee (2005) N2906 in his consideration of Practice Direction No. 1 of 1992.
5. I note however that in Order 10 Rule 9A National Court Rules, in an unnumbered paragraph under the heading “Purpose” it is stated as follows:

“These Rules include a consolidation of all previous Practice Directions and Notes issued by the Registrar between 1983 to 2004 in relation to call-over and listing of all civil cases, except, for Appeal, Judicial Review, Commercial and Election Petition cases. Those previous Practice Directions & Notes are contained in Civil Jurisdiction Bulletin 2004. As from the date of coming into operation of this these (sic) Rules, those practice directions & notes will cease to apply.”

6. As far as I am aware, the Listing Rules 2005, to which “These Rules” in the above paragraph refer, commenced operation on 27^th September 2005: Civil Procedure in Papua New Guinea: Katter, Gordon and Andersen (2016) 215. Consequently, Practice Direction No. 1 of 1992 no longer applies.

7. In regard to Order 10 Rules 2(2) and 11(2) National Court Rules relied upon by the defendant, Rules 2(1) and (2) are:

“2. Place and mode of trial.

(1) Subject to Sub-rule (2) the trial of proceedings shall take place at such place within Papua New Guinea as is stated in the notice filed pursuant to Rule 4.

(2) Notwithstanding the provisions of Sub-rule (1) the Court may, on the application of a party or of its own motion, appoint some other place within Papua New Guinea for the trial of any proceeding.”

8. Rules 11(1) and (2) are:

“11. Time and place of trial.

(1) Where proceedings have been set down for trial under Division 1 for a specified date, the trial may be held on that or any later date.

(2) Notwithstanding Sub-rule (1) and notwithstanding the setting down of any proceedings for trial under Division 1, the Court may make such orders as it thinks fit for fixing the time and place of trial.”

9. Order 10 Rules 2(2) and 11(2) do not place any fetter upon the discretion of the court in appointing some other place or fixing the place for the trial. I note also that there are other National Court Rules that are concerned with the transfer of proceedings. Order 10 Rule 9A(7)(4)(u) provides for this court to consider, amongst other things, “The necessity to transfer the proceedings to a different Court or venue.” This court is permitted to consider the transfer question at a Mention Hearing and also at a Directions Hearing: Order 10 Rule 9A(8)(1). There is no fetter upon the discretion of the court apart from it having to consider the necessity of a transfer.

10. Given the paucity of authority in this jurisdiction on the issue of the transfer of a proceeding, I have had recourse to the Australian Federal Court decision of National Mutual Holdings Pty Ltd v. Sentry Corporation [1988] FCA 133; (1988) 83 ALR 434, a decision of the Full Court of that Court, which is on point. I note that decisions from the Courts of Australia may be of persuasive value in this jurisdiction: Sch 2.12(2) Constitution.

11. At 43, the Court, after commenting that the power conferred on the Court or Judge by s. 48 Federal Court Act was wholly unfettered, said that:

“The factors which the court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the court itself are some of the factors that may be relevant in particular circumstances.

The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the court for an order .... as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the court to such matters before directing that the proceeding should continue at a different place.

The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court? It cannot and should not, in our opinion, be defined more closely or precisely.”

12. Given that there is no fetter upon the discretion of this court in appointing some other place or fixing the place of trial imposed by the Rules under which this application is made and no fetter upon the power of the Federal Court to do likewise, and I am not aware of any circumstances existing in the two jurisdictions that would require a consideration of different factors, I adopt the test enunciated in National Mutual Holdings Pty Ltd v. Sentry Corporation (supra): Where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court?

13. After considering the various factors raised by the defendant, particularly that the cause of action arose in Mount Hagen, that the property the subject of the proceeding, the witnesses of the parties and the addresses of the parties are also there, I am satisfied that these factors constitute a sound reason for there to be a change in venue from Waigani to Mount Hagen.

14. The plaintiff decided to commence this proceeding in Waigani and that decision should carry weight. The plaintiff has not given reasons why he decided to commence this proceeding in Waigani and there is no onus upon him to do so. The defendant has not submitted that, and there is no evidence to the effect that the decision of the plaintiff to commence in Waigani was capricious or for any untoward motive. I note however, that in his evidence the plaintiff deposes that he has been residing in Port Moresby since commencing this proceeding. From his earlier evidence, it is evident that the plaintiff was residing in Mount Hagen before then and for a number of years.

15. To my mind it is apparent that there is no reason why this proceeding was commenced in Waigani as opposed to Mount Hagen, other than for it to be brought at a different venue of the National Court. The National Court in Mount Hagen is well able to deal with a civil proceeding such as this one and there is no evidence from the plaintiff as to why the hearing of this proceeding should not take place at the National Court in Mount Hagen.

16. As to whether any delay will occur if the proceeding is transferred because of the need to instruct other lawyers, in my view it is not necessary to instruct other lawyers. A lawyer can travel to Mount Hagen from Port Moresby for court proceedings as counsel for the defendant presently travels from Mount Hagen to Port Moresby. Even if it would be necessary for the plaintiff to instruct other lawyers in Mount Hagen, there are lawyers practicing in Mount Hagen who are capable of handling a matter of this nature and there would not be any delay occasioned if the new lawyers instructed acted properly and professionally.

17. After considering the above matters, I am satisfied that the balance of convenience is in favour of the proceeding being transferred to Mt Hagen. That is where the case can be continued most suitably, bearing in mind the interests of the parties and the ends of justice in the determination of the issues between them. Further the most efficient administration of the court is served by this proceeding being heard at the National Court at Mount Hagen. The relief sought by the defendant should be granted.

Orders

18. The formal Orders of the Court are:

a) This proceeding is transferred to the Mount Hagen National Court;

b) The costs of the defendant of and incidental to the hearing of its notice of motion filed 26^th October 2017 shall be paid by the plaintiff;

c) The time of entry of these orders is abridged to the time of entry by the Registrar which shall take place forthwith.
_____________________________________________________________
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Plaintiff
Charles Kos Lawyers: Lawyers for the Defendant