SC683

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 66 of 2000

BETWEEN

TIN SIEW TAN
Appellant

AND

PAPUA NEW GUINEA ELECTRICITY COMMISSION
Respondent

Waigani	:	Los, Jalina & Sevua, JJ
2001		:	28th August &
2002		:	1st May

Practice and Procedure – Declaratory orders – Whether grant of declaration would resolve dispute between parties – Grant or refusal of declaratory order discretionary.

Cases cited:
Dent v. Thomas Kavali [1981] PNGLR 488.
National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135.

Counsel:
C. Coady for Appellant
S. Kassman for Respondent

26th April 2002

BY THE COURT:	The appellant appeals against the decision of His Honour, the learned Deputy Chief Justice, given on 3rd November, 2000 in relation to National Court proceedings, OS 374 of 2000.

In its originating summons in the Court below, the appellant (plaintiff) claimed the following relief:-

1.	An injunction both interlocutory and permanent to restrain the defendant (respondent) by itself, its servants or howsoever otherwise from disconnecting, interrupting or interfering with the continuous power supply to Installation No. 60-6311-09400 at Allotment 2, Section 143, Tokarara, the property of the plaintiff.

2.	A declaration that the Papua New Guinea Electricity Commission does not have legal authority to back charge a consumer of electricity based upon an estimate by the Papua New Guinea Electricity Commission of electricity consumption.

3.	A declaration that the alleged assessment of electricity to the aforesaid installation at Allotment 2, Section 143, Tokarara, in a amount of K84,066.58 is not a valid charge of electricity to the electrical installation.
4.	Damages

5.	Further or other relief.

The factual background of this claim are contained in the respondent’s letter of 9th February, 1998 to the plaintiff, which is marked Annexure "A" to the affidavits of David Woodly, sworn on 28th September, 2000 and Neil Whiting, sworn on the same day and both filed on behalf of the appellant.

In summary, the respondent carried out a Meter Survey Project in Port Moresby in 1995. During that survey, it discovered that Meter No. EC 87326 on Installation No. 60 – 6311 – 09400 at Section 143, Allotment 2, Tokarara was faulty. The meter was not registering the correct volume of electricity being consumed at that premises. The fault was detected on the Meter Test Block Terminals which had the three phase current links bridged or shorted. It was discovered that although all three phase current link screws were not fully tightened, the meter disc was still rotating and registering power consumption. The result of that was that the loosely fastened screws only permitted a portion of electricity supply from all the three phase supply to flow through the meter to be registered.

Previously, the plaintiff’s shop at that location had five individual meters, which were recording power consumption to five different sections of the shop. Those five individual meters were removed and replaced with the bulk current transfer or CT meter for the whole building on 8th November, 1991. The fault was rectified and subsequent tests conducted showed that the meter was operating normally.

A review of the appellant’s electricity account after the fault had been rectified revealed that the appellant’s power consumption had increased from 346.86 kwh units to 691.84 kwh units during the fault period between 8th November, 1991 and 3rd June 1995. The respondent therefore said it had been under billing the appellant by 344.98 kwh units per day. As a result of the fault, the respondent calculated a back billing for the period 8th November, 1991 to 3rd June, 1995, which period it said, the appellant had been under charged by 451,856 kwh units, which in monetary term, translated to K83,141.54, with sales tax of K925.04, totalling K84,066.85. That amount was forwarded to the appellant to settle.

However, the appellant disputed the undercharge and refused to settle the account resulting in the respondent’s threat to disconnect electricity supply to the appellant’s property, and instituting legal proceedings to recover the sum claimed. The respondent also threatened to prosecute the appellant under s.45(2)(ii) and (iii) of the Electricity Commission Act.

The parties did not reach an amicable settlement therefore the appellant filed the originating summons we have alluded to. His Honour, the Deputy Chief Justice dismissed the summons with costs on 3rd November, 2000, hence this appeal.

The grounds of appeal are:-

1.	The Honourable trial Judge erred in law in failing to find that the provisions of Section 18 of the Electricity Commission (Conditions of Supply) By Laws prohibited the Electricity Commission from rendering an account for electricity consumption:

(a)	other than consumption recorded on a meter installed in connection with the installation in respect of which the account is rendered; or

(b)	based on an estimate of consumption made otherwise than by reference to actual meter readings for the period of consumption.

when the provisions of the Electricity Commission Act and the Electricity Commission (Conditions of Supply) By Laws made mandatory the requirements of accounts to be based on actual meter readings for the period of consumption.

2.	The Honourable trial Judge erred in law in finding that a declaration in the form sought by the appellant and based on undisputed facts would not have resolved the issues in dispute between the parties, as such a declaration would have created an issue estoppel between the parties on the Electricity Commission’s estimate of consumption made contrary to Section 18 of the Electricity Commission (Conditions of Supply) By Laws.

3.	The Honourable trial Judge erred in law in finding that any issue as to the actual consumption at the installation between the period January 1991 to June 1995 arose by reference to Section 20 of the Electricity Commission Conditions of Supply By Laws when Section 20 is only evoked by an application by the Consumer for a reading of the meter under Section 19 of the Electricity Commission (Conditions of Supply) By Laws and no such application was made.

4.	The Honourable trial Judge erred in law in failing to find that the Declarations sought were appropriate relief in the circumstances and ought to be made and he took into account inappropriate matters and failed to take into account all appropriate matters whereby the Judge’s direction was miscarried.

PARTICULARS

(a)	Taking into consideration at a late stage of the proceedings an alleged intention of the respondent to commence criminal prosecution for tampering when such prosecution was time barred by Section 36 of the District Courts Act;

(b)	Taking into consideration that the proceedings could and or should be dealt with by a writ of summons at the suit of the respondent when –

1.	The Respondent had for over five years failed or neglected to commence such an action nor to commence a cross claim in the proceedings appealed from;

2.	The Respondent was barred from such a proceeding by Section 18 of the Electricity Commission Conditions of Supply By Laws.

(c)	Failing to take into consideration:

1.	The Respondent’s (Defendant’s) failure to adduce any evidence;

2.	The Respondent’s failure to respond by appearance to a summons to witness to produce documents and give evidence;

3.	The Respondent’s (Defendant’s) failure to respond to a notice for discovery;

4.	The provisions of the Electricity Commission Act and all the By Laws made thereunder which rendered the Electricity Commission solely responsible for under recording a meter by a fault in the meter or associated equipment.

(d)	Failing to take into consideration the overall delay in the Respondent (Defendant) giving rise to latches having regard for an error allegedly occurring in 1991 and discovered in June 1995 and failure by the Respondent (Defendant) to move to adjudicate its claim.

The orders sought by the appellant in this appeal are therefore:-

1.	That the appeal be allowed;

2.	That the decision of the National Court whereby the applications for declaration was refused, be quashed and that in lieu thereof the declarations sought in the Originating Summons be made whereby:

(a)	For a declaration that the Papua New Guinea Electricity Commission does not have legal authority to back charge a consumer of electricity based upon an estimate by the Papua New Guinea Electricity Commission of electricity consumption.

(b)	For a declaration that the alleged assessment of electricity to the aforesaid installation at Allotment 2, Section 143, Tokarara in an amount of K84,066.58 is not a valid charge of electricity to the electrical installation.

3.	That the Respondent pay the costs of and incidental to the appeal and in the proceedings in the Court below.

4.	Further or other relief.

Having heard counsel on this appeal, it appeared from the outset that the appeal involves technical issues, which seem to complicate the issues. However, upon a careful consideration of the submissions by both parties, and a close scrutiny of the issues involved, we are of the opinion that this appeal does not involve the more complicated technical aspects of the case. We think that the appeal ought to be determined solely on the basis of the exercise of the discretion of the National Court.

It is obvious that the appeal revolves around the underlying fact that the respondent had back-charged the appellant’s electricity account with the sum of K84,066.58, which the respondent claimed, represented under-consumption of electricity supply by the appellant at its Tokarara premises.

At the hearing before the trial Judge, the appellant confirmed its claim in paragraphs 2 and 3 of the summons on the premise that the respondent had given some undertakings. Paragraph 2 and 3 of the summons are stated:

"2.	A declaration that the Papua New Guinea Electricity Commission does not have legal authority to back charge a consumer of electricity based upon an estimate by the Papua New Guinea Electricity Commission of electricity consumption.

3.	A declaration that the alleged assessment of electricity to the aforesaid installation at Allotment 2, Section 143, Tokarara, in an amount of K84,066.58 is not a valid charge of electricity to the electrical installation."

The trial Judge was of the view that the declarations sought by the appellant raised the issue, whether the respondent has any entitlement under the law to charge a consumer for electricity, which was consumed but not recorded.

We note that both in the National Court and this Court, the appellant had based several issues of law arising from the provisions of the Electricity Commission Act and other subsidiary By Laws under that Act. These provisions are Sections 23 and 49 of the Act, and Sections 12, 18, 20 and 44 of the Electricity Commission (Conditions of Supply) By Laws.

Mr Coady, counsel for the appellant submitted that there are two issues pertaining to the Statute of Limitations. Firstly, counsel submitted that the respondent’s cause of action arose on 30th June 1995, however a writ of summons for the amount claimed by the respondent has not been issued and a period of more than 6 years has passed since the fault was detected, therefore the respondent is statute barred in bringing an action to claim the sum of K84,066.58.

Secondly, Mr Coady referred to s.36 of the District Courts Act and submitted that the respondent’s threat to prosecute the appellant under s.49 of the Electricity Commissions Act is also time barred as s.36 of the District Courts Act only permits a time limit of 6 months.

Counsel then referred to the trial Judge’s comments at page 178 of the Appeal Book and quoted the following:

"I would not make the declaration for the reason that it would amount to multiplicity of proceedings as it would not resolve all the issues. The parties may now settle the issues. If this is done, it will save legal costs to the parties. If it is not settled the Defendant may issue proceedings and the Court may determine all the issues."

In view of the fact that the Electricity Commission had not commenced any legal proceedings despite suggestions in the trial that it would, the appellant submitted that the trial Judge erred in law in his decision as the declarations sought would have created an issue estoppel and an interpretation of the law to the effect that the Electricity Commission was not entitle to render an account for electricity consumption by referring to an estimate.

We consider that the issues relating to time limit arising from the Statute of Limitations Act, which the appellant’s counsel has raised in this appeal is immaterial. These issues were not pleaded in the appellant’s summons. They were not the relief the appellant sought in its summons. We consider that the appellant cannot raise these issues here when they were not the primary issues in the Court below.

The declaratory orders sought by the appellant did not relate to these issues at all. We consider that these issues would be relevant and would arise if the respondent had issued a writ claiming the sum of K84,066.58. These issues would be appropriately raised in that proceeding and be determined accordingly. While we note from the transcript that counsel for the appellant did raise these issues before the trial Judge, we are of the opinion that they were not issues relating to the principal relief claimed by the appellant in the National Court. We conclude therefore that those are issues to be considered and determined in proceedings instituted by a writ of summons. It is trite law that a plaintiff is not entitled to a relief he has not claimed in his pleadings.

We consider that the appellant’s claim for declarations in the National Court was clearly an attempt to shut out the respondent from exercising its right to sue for what it claimed, was an amount for consumption of electricity by the appellant which was under-billed. Whether the respondent was entitled to that amount or whether it is statute barred were not the issues in the proceedings before the National Court.

After making references to various provisions of the Electricity Commission Act in respect of the issues of under charge, the trial Judge said at the bottom of page 176 of the Appeal Book, "If the plaintiff’s argument succeeds, that would be the end of the matter. If the argument by the defendant succeeds, the question of the right amount would arise for consideration. These proceedings do not deal with this issue. That would have to be determined in another proceeding if it is not settled."

The trial Judge then alluded to the issue of whether the present proceeding is the appropriate action and referred to s.155(4) of the Constitution and Dent v. Thomas Kavali [1981] PNGLR 488; and National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135; pertaining to declaratory order jurisdiction. Then His Honour went on to discuss what we consider to be crucial to the proceedings before him, which the appellant’s counsel, with respect, has not addressed in his submissions to this Court.

We consider that the central issue in this case is the sum of K84,066.58. All other issues raised by the appellant in the Court below and in this Court are collateral to it. In our view, it is inappropriate for the appellant to insist that these issues be determined in an originating summons seeking declarations. We agree with the learned trial Judge that the application for declaration was unusual. His Honour found that both parties had an arguable case however, the issues raised could not be appropriately determined in the application for declarations. We see no error in that finding and we uphold the trial Judge’s finding.

In our view, this appeal relates to the exercise of discretion although, we appreciate that the original central issue was the back charge of K84,066.85. We agree with the trial Judge that declaratory orders are discretionary, and because of that, the appellant has the onus of establishing how or where the trial Judge erred in the exercise of his discretion in refusing the declaratory orders sought.

We are of the opinion that the trial Judge did not err in reaching the decision he made. It is our view that the trial Judge was correct in holding that the issues raised before him could not appropriately be resolved by the grant of declarations sought by the appellant. We consider that the appellant had, "jumped the gun", so to speak, in issuing its originating summons and seeking declarations, when all the issues it raised could have appropriately been determined in an action commenced by writ of summons by the respondent. We think that in proceeding in the manner it did, the respondent had attempted to stop the respondent in it’s trade so that it will have no recourse to exercising its right to sue if the amount in question is not settled. That is tantamount to the appellant "short circuiting" the respondent’s right.

Indeed, Mr Coady submitted that, "the declarations sought would have created an issue estoppel" if granted, however as the trial Judge did not grant the declarations he had erred in law. We do not accept that proposition. Seeking redress from the Courts is a right that is available to every individual and corporate citizen. We do not consider it fair in a democratic society where justice and fair play are integral mechanisms of democracy for a litigant to prevent its opponent in the manner proposed by the appellant. A person or corporation ought not to be shut out from the halls of justice because its opponent has, by declaratory orders prevented it from exercising its right to seek redress.

We are in agreement with the learned trial Judge’s view in National Capital District Interim Commission v. Bogibada Holdings Pty Ltd (supra) that an action for declaration could not resolve all the issues between the parties. Certainly, in the present case, we consider that the declaratory orders sought by the appellant could not have appropriately resolve all the issues that arose in the Court below.

As we alluded to above, the appellant has not shown how or where the trial Judge erred in the exercise of his discretion. That is a fundamental aspect of this appeal that has not been addressed by the appellant. We are satisfied that the trial Judge did not fall into error in the exercise of his discretion.

Finally, while we think that the trial Judge erred in fact in referring to multiplicity of proceedings, we are of the view that, that alone does not affect his whole judgment so that, that error alone could render the whole decision erroneous.

For these reasons, we order that the appeal is dismissed with costs.
_________________________________________________________
Lawyer for Appellant		:	Henaos Lawyers
Lawyer for Respondent	:	Kassman Lawyers