SC1796
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 99 OF 2013

ALBERT PURANE
FOR HIMSELF AND ON BEHALF OF THE
RELATIVES OF THE LATE PARAPU PURANE
Appellant

V

DARIUS KAGA and ORS
Respondents

Waigani:  Logan J, Liosi J, Miviri J
2019: 25 February

PRACTICE AND PROCEDURE – appeal against summary dismissal – where the appellant’s case was summarily dismissed for want of prosecution in the National Court – where appellant was waiting for the respondents to execute a draft consent order – where affidavit disclosing case progression had been filed – whether a miscarriage of justice occurred – whether summary dismissal should be set aside

The appellant’s brother was accidentally killed during an exchange of gunfire between the police and criminals.  The appellant brought a suit against the State, a particular police officer and the Commissioner of Police in respect of damages for wrongful death.

Although properly served in accordance with the Claims By and Against the State Act 1996, the respondents did not file a defence, and judgment was entered by default in respect of liability, with damages to be assessed.  The parties subsequently engaged in negotiations about damages with a compromise being struck between the appellant and the respondents.  While the consequential consent to judgment was drafted by the Solicitor General’s chambers and sent to and executed on behalf of the appellant and returned to the Solicitor General’s chambers, it was never executed on behalf of the respondents or filed by them.  

The appellant’s lawyer filed an affidavit in the National Court, disclosing the progression of the matter.  The affidavit was mischaracterised as an affidavit of service and the appellant’s case was dismissed by the National Court for want of prosecution.  This dismissal was appealed to the Supreme Court.

Held:
(1)	The dismissal of the proceeding in the National Court was a miscarriage of justice.
(2)	Judgment should be entered for the appellant in the terms of the compromise reached by the parties.
Cases Cited:

Takori v Yagari [2008] PGSC3, SC905

Legislation:

Claims By and Against the State Act 1996

Counsel:
J Kumbu for the appellants
No appearance for the respondents

APPLICATION

25th February, 2019

1.	BY THE COURT: This appeal has its origins in a sad and unfortunate incident which occurred on 16 January 2009 in the Ensisi Valley in the National Capital District.  At that time, the late Parapu Purane was killed during an exchange of gunfire between the police and criminals.  Mr Albert Purane is the brother of the deceased.  He instituted proceedings in March 2009 against the State and also a particular police officer and the Commissioner of Police in respect of a claim for damages for wrongful death.  A notice as required by the Claims By and Against the State Act 1996 was duly served prior to the institution of the proceedings.

2.	After the institution of the proceedings, the defendants filed a notice of intention to defend in the National Court on 8 April 2009.  However, they did not subsequently file a defence.  The result of that was that on 19 July 2010, in the National Court, judgment was entered by default in respect of liability with damages to be assessed.  The evidence discloses that, thereafter, negotiations occurred between those acting on behalf of the present appellant, then-plaintiff, and the various defendants, now respondents.  Those negotiations culminated in the making of an offer by the then-defendants for the compromise of the proceedings by consent.
3.	To that end, the Solicitor General’s chambers on behalf of the defendants sent to those acting for the appellant a draft consent order.  In effect, that draft consent constituted an offer on behalf of the defendants for the compromise by agreement of the proceedings in the National Court.  That particular offer was agreed to by the appellants’ lawyers, who executed on behalf of the appellant the consent and sent it back to the Solicitor General’s chambers.  
4.	That particular progression of the proceedings towards the making of consent orders following the agreed compromise was deposed to by Mr Daniel Kop, a lawyer then having the carriage of the proceeding on behalf of the appellants in an affidavit sworn by him on 17 June 2013 which was filed in the National Court that day.  That affidavit became document 12 on the National Court file.
5.	Early the following month, as part of the ordinary administration by the registry of the civil list in the National Court, advertisements were placed in the national newspapers listing particular cases for summary determination on the basis of an apparent absence of prosecution.  The present case was one which was so advertised.  In the result, on 22 July 2013 following those advertisements, an order was made summarily dismissing the proceeding with costs.
6.	It is apparent from the reasons for judgment which, necessarily in the circumstances, were abbreviated that dismissal was ordered on the basis of an apprehension as to lack of progress and that Mr Kop’s affidavit was regarded as an affidavit of service.  It is though rather more than that.  It is apparent from the face of the affidavit that a compromise outcome just described had been reached and that the finalisation of proceeding reflecting that consensual outcome was really at that stage in the lap of the Solicitor General’s chambers.
7.	The present appeal is against the order of dismissal.  We are satisfied that the appeal is one which lies as of right, not requiring the prior grant of leave to appeal by the Court.  That is because the nature of the order made in the National Court is one that had a quality of finality about it in terms of its effect:  see Takori v Yagari [2008] PGSC3 SC905.
8.	We are satisfied that, had the contents of Mr Kop’s affidavit been appreciated in the registry, the case is not one which would have been listed for summary determination.  We are also satisfied that the dismissal of the proceeding was the result of the misunderstanding of Mr Kop’s affidavit and more particularly of the fact that the proceedings had reached a stage of comprise and were awaiting the formalisation of that by the execution and filing by the State and other respondents of the consent which had been sent to and signed on behalf of the appellants.  So it is quite plain that a miscarriage of justice occurred as a result of the misunderstanding of the factual position in relation to the progression of the case in the National Court.
9.	That being so, the appeal is one which must in our view be allowed.  The appellant has had to incur the expense of progressing the appeal to the point of its hearing today.  We are satisfied that notice of today's hearing was given to the State by the service of the notice of hearing on the Solicitor General’s chambers.  The State and the other respondents ought to have been in no doubt that today was the day appointed for the hearing of the appeal.  That notwithstanding, when the appeal was called on, there was no appearance by or on behalf of any of the respondents. We proceeded, though, having been satisfied that notice had been given, to hear the appeal.  It is not necessary in order to comply with the constitutional requirement for natural justice that there be an appearance by the respondents, rather that they have an opportunity to be heard.  
10.	It is unfortunate that it proved necessary for the appellant to progress the appeal to the point of hearing today.  Ideally, and at the very latest upon the service of the notice of hearing, having regard to the prior compromise, what ought to have occurred is that the respondents joined with the appellant to allow the appeal by consent and to promote the giving effect by judgment to the compromise which they had reached.
11.	In this jurisdiction as in other jurisdictions, there is an expectation that the State and emanations of the State, and those acting for the State, will behave as a model litigant.  In our view, a model litigant would have undertaken the course which we have just mentioned.  We make that observation because, whilst there was agreement in relation to the proceedings in the National Court that each party would bear their own costs, we do not consider that that agreement ought to translate into a no order as to costs outcome in respect of the appeal.  In many ways, the time of three judges of the court could have been better deployed in dealing with another case, with the present appeal going consensually by the briefest of appearances.  That is not to say that today is an unnecessary proceeding.  The appellant, given the stance taken by the State, had no choice other than to prosecute the appeal as he has done.
ORDER

12.      For these reasons, we order as follows:

1.	The appeal be allowed.

2.	The orders of the National Court made on 22 July 2013 be set aside.

3.	(a)	In lieu thereof judgment be entered for the appellant (plaintiff below) in the sum of K177,098.10 in full settlement of all claims by the appellant (plaintiff below) against the (defendants) - or against the respondents (defendants below).
	(b)	The judgment sum is to carry interest at the rate of two per cent (2%) per annum from 22 July 2013 until the date of payment.
	(c)	In respect of proceedings in the National Court, the parties bear their own costs.
	(d)	Insofar as the same may be necessary, time be abridged.
	(e)    The respondents pay the appellants costs of and incidental to the appeal to be taxed if not agreed.

Judgment accordingly.
_________________________________________________________________
Dusal & Associates Lawyers: Lawyers for the Applicant		
No appearance for the Respondents