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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 113 OF 2017
BETWEEN
KAWASI KUGI
Appellant
AND:
SIMON FOO – Chief Executive Officer of Air Niugini Limited
First Respondent
AND:
NATIONAL AIRLINE COMMISSION trading as Air Niugini Limited
Second Respondent
AND:
NATIONAL SUPERANUATION FUND LIMITED
(formerly known as National Provident Fund)
Third Respondent
AND:
NAMBAWAN SUPER LIMITED
(formerly known as Public Officers Superannuation Fund)
Fourth Respondent
Waigani: Manuhu J, Anis J, Miviri J
2020: 17th & 2nd July
SUBSTANTIVE APPEAL – Questions of law, mixed fact and law – section 14(1)(a) & (b) - Supreme Court Act Chapter No. 37 – dismissal of proceeding based on want of reasonable cause of action and abuse of process – exercise of discretion – whether cause of action time bared – section 16(1) and 18 of the Frauds and Limitations Act 1988 – whether there was error in exercise of discretion by the Court below
Cases Cited
Jimmy Lama v. NDB Investments Ltd (2015) SC1423
Nelulu Land Group Inc. v. Rimbunan Hujau (PNG) Ltd (2019) SC1840
John Hiwi v. Rendle Rimua (2015) SC1460
Anave Ona v. National Housing Corporation and Nambawan Super Limited (2009) SC995
Philip Takori & Ors v. Yagari & Ors (2008) SC905
Counsel:
Mr L Putupen, for the Appellant
Mr D Kamen, for the First and Second Respondent
Mr G Koi, for the Fourth Respondent
2nd July, 2020
1. BY THE COURT: The matter was heard at 1:30pm on Wednesday 17 June 2020. We heard and reserved to a date to be advised.
2. Parties have been notified so we will rule on it now.
BACKGROUND
3. The appellant is a former employee of the second respondent. He began work there on 1 January 1973, as a Weight Master, and had worked there for about 26 years. On 12 March 1999, his position was made redundant and his employment was determined. On 27 February 2017, he commenced proceeding in the National Court, that is, WS No. 149 of 2017. He claimed various relief and damages based on allegations of negligence, unlawful actions and breach of constitutional rights including human rights.
4. The present appeal arises out of a decision of the National Court (the Court) made on 19 July 2017. The Court dismissed the proceeding following an application that had been filed by the first and second respondent. The first and second respondent had, in their application, asked the Court to dismiss the proceeding on the basis of want of reasonable cause of action and time-bar (application to dismiss). The notice of motion is located at page 80 of the Appeal Book (AB). The appellant had also filed an application challenging the competency of the application to dismiss. The notice of motion is located at page 86 of the AB (cross-motion). Both applications were heard together on 14 June 2017. It was decided at the hearing that the appellant’s cross-motion would be dealt with first in time, and depending on the outcome, the Court may proceed to deal with the application to dismiss. This is confirmed in the transcript of proceedings located at pages 116 and 117 of the AB. The Court heard the appellant’s cross-motion and in an ex tempore decision, dismissed it. The Court then proceeded to deal with the application to dismiss. It heard the evidence and submissions of the parties and reserved its ruling on 14 June 2017. On 19 July 2017, the Court delivered its written decision where it upheld the first and second respondents’ application and dismissed the proceeding.
5. The appellant is aggrieved and appeals against the Court’s decision of 19 July 2017.
GROUNDS OF APPEAL
6. The appellant states 5 grounds of appeal. See pages 5, 6 and 7 of the AB. At the hearing, we note that the appellant appeared to have abandoned grounds 3.1, 3.2, 3.4 and 3.5. The respondents, on the other hand, covered all the grounds of appeal in their submissions. For completeness, we will address all the 5 grounds of appeal.
7. The first ground reads, and we quote:
3.1 The learned motions Judge erred in the exercise of His Honour’s Judicial Discretion in dismissing the entire proceedings with costs on the basis that the proceedings disclosed no reasonable cause of action and was an abuse of the process contrary to the Appellant’s pleadings in the Statement of Claim and His Honour’s own findings at paragraph (par) 3 of His Honour’s Court Ruling that the Appellant’s claim relates to his unpaid entitlements from Air Niugini (2nd defendant) and outstanding superannuation from both the third defendant (Nasfund) and the fourth defendant (Nambawan Super) contributions due to him and that the Appellant was alleging negligence against the defendants for not maintaining proper records of superannuation contributions due to him and was seeking damages.
8. We found it difficult at first to understand this ground. But it may be divided into 2 parts. The appellant begins by stating a summary of the National Court’s decision, that is, that: The learned motions Judge erred in the exercise of His Honour’s Judicial Discretion in dismissing the entire proceedings with costs on the basis that the proceedings disclosed no reasonable cause of action and was an abuse of the process. We note that the appellant merely recites the 2 grounds that had been relied upon by the first and second respondents in their application to dismiss. The appellant then simply states that the said decision was made contrary to his pleading which was acknowledged by the Court in its decision. That part of the ground of appeal reads, and we quote, contrary to the Appellant’s pleadings in the Statement of Claim and His Honour’s own findings at paragraph (par) 3 of His Honour’s Court Ruling that the Appellant’s claim relates to his unpaid entitlements from Air Niugini (2nd defendant) and outstanding superannuation from both the third defendant (Nasfund) and the fourth defendant (Nambawan Super) contributions due to him and that the Appellant was alleging negligence against the defendants for not maintaining proper records of superannuation contributions due to him and was seeking damages.
9. We refer to Order 7 Rules 9(c) and 10 of the Supreme Court Rules. The rules state, and we quote:
......
(c) state briefly but specifically the grounds relied upon in support of the appeal;
......
10. This Court has held in the case, Jimmy Lama v. NDB Investments Ltd (2015) SC1423, and we quote:
(1) Order 7, Rules 9(c) and 10 of the Supreme Court Rules impose three requirements for a ground of appeal: (a) the ground must be stated briefly, but specifically (ie the ground must make grammatical and legal sense and be intelligible); (b) if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence; (c) if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law.
11 The appellant, in our view, did not state or plead how the National Court erred in the exercise of its discretion. In our view, the ground fails to meet the pleading requirements under Order 7 Rules 9(c) and 10 of the Supreme Court Rules and the 3 requirements as specified by this Court in Jimmy Lama v. NDB Investments Ltd (supra). With these, we find the first ground of appeal baseless and without merit. We dismiss it.
12. We now turn to ground 3.2. It states, and we quote:
3.2 The learned motions Judge erred in dismissing the entire proceedings with costs in upholding the 1st, 2nd and the 4th respondents’ application after forming the view without any factual and legal basis at para. 5 of the ruling that the Appellant’s claim was statute-barred pursuant to section 16 of the Frauds and Limitations Act 1988 when in actual fact,
(a) The 1st and 2nd Respondents’ Notice of Motion was incompetent for failing to specify with particularity the relevant provision of section 16 of the Frauds and Limitations Act which, deals with time limitation.
(b) The said Notice of Motion was not filed with a supporting Affidavit, thus incompetent.
(c) The only Affidavit of Benneth Kome sworn on 05/05/17 and purported to have filed on 17/05/17 was objectionable in both form and substance.
(c)(d) There was no evidence before the Court for the learned judge to make the finding as to when the statutory time period of 6 years accrued and begin to run and end as against the 1st and 2nd Respondent.
(d)(e) There was no findings of both facts and Law that made the learned Motion Judge to form the view that the Appellant’s claim was statute-bar against the 3rd and 4th Respondents.
13. We begin by making this observation. We note that particulars (a), (b), (c) and (d) are competency arguments or arguments that had been raised by the appellant in the Court below to challenge the first and second respondents’ application to dismiss. They were raised by the appellant in his cross-motion on 14 June 2017. The Court, after hearing the cross-motion, refused it in an ex tempore ruling. The Court’s ruling can be seen in the transcripts of the proceeding, that is, at line 20, page 122 to the paragraph above line 10 at page 123 of the AB. The Court ruled and we quote in part, On all counts therefore, I refuse the application to strike out the motion. I will hear the motion. Yes, Mr Kamen? We note that the appellant’s appeal herein is not against the said ex tempore decision. Rather, and as stated in the notice of appeal, it is against the Court’s decision dismissing the entire proceeding which was made on 19 July 2017. As such, it is not a case as if the arguments are properly before this Court for determination. This Court, faced with a similar situation recently in Nelulu Land Group Inc. v. Rimbunan Hujau (PNG) Ltd (2019) SC1840, stated at paragraph 24 and we quote in part:
The NOA and grounds 3 and 5 are brought under circumstances which the law simply does not allow to happen. We will elaborate. It is not permissible for one to appeal against a decision of a trial Court then proceed to challenge, in the actual grounds of appeal, a separate decision of the trial Court below that was made in a separate application or matter. In the case Coca Cola Amatil (PNG) Ltd v. Marshall Kennedy (2012) SC1221, the Supreme Court stated at paragraph 9, and we quote:
9. The same point was made in respect of a cognate rule in the Federal Court Rules by Jessup J in Zegarac v Dellios [2007] FCAFC 58 at [11] when his Honour observed that an appeal was incompetent within the meaning of that rule if it is brought in circumstances which “the law simply does not allow to happen”.
26. Justice North, whose decision was the majority’s decision in Zegarac v Dellios [2007] FCAFC 58, also stated at paragraph 7, and we quote in part, If the notice is incomprehensible or entirely unrelated to the issues dealt with in the judgment, an appeal may be incompetent. We find the views of North J and Jessup J relevant and persuasive we would adopt them herein. In the present case, it is obvious to us that grounds 3, 5 and also ground 1 which we have addressed above in our judgment, are not related to or cover the decision of the trial Court that was made on 8 January 2018 which the appellant is appealing against, but rather, they apply to an unrelated decision, that is, the trial Court’s earlier ruling of 9 December 2016.
14. With these, we dismiss particulars (a)(b)(c) and (d) of ground 3.2.
15. Before we move on to address ground 3.2(e), we wish to make this clarity with regard to the appealed decision. At paragraph 1 of the Notice of Appeal, despite the fact that the appellant expressly states that his appeal is against the Court’s final decision of 19 July 2017, he also states that the Court’s decision of 19 July 2017 was made in relation to 2 applications, namely, his cross-motion and the application to dismiss. Based on the transcripts of the proceeding and the Court’s written decision, we find the statement made at paragraph 1 of the Notice of Appeal erroneous. As we have explained at paragraph 13 of our judgment, the Court’s decision in relation to the cross-motion was made ex tempore on 14 June 2017. The Court also confirmed that in paragraph 1 at page 1 of its written decision of 19 July 2017. We refer to line 10, page 109 of the AB. The Court said, and we quote in part, In the other application, the plaintiff challenges the competency of the first motion and the affidavit in support of that motion. I ruled against the plaintiff’s application and now rule on the first application. And this. Even if we were wrong with our first ruling concerning ground 3.2(a)(b)(c) and (d), the appellant, amongst other reasons, would be out of time to raise his competency arguments before this Court, as of right. We say this because the Court’s decision that dismissed the appellant’s cross-motion was made on 14 June 2017. The 40th day from 14 June 2017 would be 24 July 2017. The Notice of Appeal was filed well after that on 16 August 2017. This means that the appellant has already lost his primary right of appeal against the Court’s decision of 14 June 2017.
16. Moving on, this leaves us with ground 3.2(e). We note that the said ground and particular (e), are similar to ground 3.3 where they address the question of whether the cause of action was time-barred and if not, whether the Court erred in the exercise of its discretion in dismissing the proceeding. These, we note, were substantially argued before us by the parties. We set-out ground 3.3 here as follows:
3.3 The learned Judge erred in not considering legal principles found in the case of Philip Takor & Ors Vs. Yagari & ors (2008) SC905 and other cases that followed on from thereafter to date and that such dismissal of the entire proceedings would cause undue injustice to the Appellant, in that:
(a) A living person’s claim relating to undisputed terminal benefits, superannuation contributions and such other retirement benefits and entitlements not disputed upon retirement do not come under section 16 of the Fraud and Limitatons Act (FLA).
(b) The Appellant’s superannuation contribution also do not come under section 16 of the Frauds and Limitations Act.
(c) The Respondents to seek relief under Law after sitting on the Appellant’s life time retirement benefits and superannuation contribution without any evidence of payment was contrary to principles considered in Philip Takor case and principles of Equity.
(d) In that, the Court erred in not considering the fact that the respondents were sitting on the Appellant’s retirement benefits and superannuation to date and prefer to hide behind section 16 as a cloak for fraud contrary to one of the maxim in equity “He who come to equity must come with clean hand”.
TIME BAR
17. The main issue before us relates to application of sections 16 and 18 of the Frauds and Limitations Act 1988 (F&L Act). As stated above in our introduction, the appellant’s cause of action as pleaded, was based on the tort of negligence, unlawful conduct and breach of constitution including claims for breach of human rights. These cause of actions, in our view, may be summarized as torts and or actions to recover sums by virtue of an enactment.
18. Sections 16(1) and 18 of the F&L Act read:
(1) Subject to Sections 17 and 18, an action—
(a) that is founded on simple contract or on tort; or
(b) to enforce a recognisance; or
(c) to enforce an award, where the submission is not by an instrument under seal; or
(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,
shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.
......
Section 16 does not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief.
(Underlining ours)
19. We were somewhat puzzled with the submissions on point by counsel for the appellant. His main oral argument before us is this. He submits that the appellant’s cause of action that was dismissed was for specific performance, and as such, he submits that there was no time limitation; that this was permitted under section 18 of the F&L Act. Therefore, counsel submits that the National Court erred when it found that the cause of action was time barred under section 16 of the F&L Act. We then asked counsel to point to the specific pleading and particulars for the relief, specific performance, that is, to assist us follow his argument that the claim fell under section 18 and not under section 16. We note that counsel was unable to draw our attention to the specific pleading in regard to his assertion. Other references that counsel made also did not assist with his argument. The writ of summons and statement of claim (writ) is located at page 38 of the AB. We have had the benefit of perusing the writ. We cannot see any pleading therein for the relief, specific performance, being sought. With that, we would refer to this Court’s earlier decision in John Hiwi v. Rendle Rimua (2015) SC1460. This Court held, amongst others, this:
Actions only fall within Section 18 if the relief being sought is confined to specific performance, injunction or other equitable relief. Here, though the appellant sought specific performance of the three agreements, he also sought payment of K74.5 million (presumably as a debt) and damages for breach of contract and general damages, so the action did not fall within Section 18. It was caught by Section 16(1)(a)
20. We also commented and made reference to this Court’s earlier decision, that is, in the case of Anave Ona v. National Housing Corporation and Nambawan Super Limited (2009) SC995. We inquired with counsel whether he had considered the case and whether it may be of assistance. The appellant’s counsel said in reply that the case was relevant and applicable to this appeal. Counsel said that it was an oversight on his part for not making reference to it. But we note that when counsel for the fourth respondent responded to the issue, he submitted that the case was not relevant and that it does not assist the appellant. We have had the benefit of considering the case of Anave Ona and the submissions of the parties. We uphold the fourth respondent’s submission. Essentially, the Supreme Court in the case held that an employee’s right to sue under tort for outstanding entitlements that may be due to him or her against Nambawan Super Limited, arises or accrues only after when the employee leaves or ceases employment and not before or whilst he or she continues to be employed.
21. In this case, it is not disputed by the parties and we note that it was also pleaded in the writ, that the appellant ceased employment with Air Niugini Ltd on 12 March 1999. The appellant’s cause of action had accrued since that time. We note that the substantive claim in the writ was mainly for negligence. The National Court had also noted that in its decision. The Court, having reached that conclusion, and in view of the fact that the cause of action had accrued since 1999, found the action to be time-barred within the meaning of section 16 of the F&L Act.
22. The appellant in this case and in support of ground 3.3, also refers to the case of Philip Takori & Ors v. Yagari & Ors (2008) SC905. The appellant submits that the National Court did not take into account the principles that were held in the said case as well as other related cases, before dismissing the proceeding. We refer to the Court’s decision concerning this submission by the appellant. It is located at page 110 of the AB. The Court held at paragraph 7, and we quote:
I am mindful that a plaintiff or claimant should not be easily driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power to summarily dismiss proceedings; Kerry Lerro v Phillip Stagg & Ors (2006) N3050 and Phillip Takori & Ors v. Yagari & Ors (2008) SC905. But this is a case where clearly the plaintiff’s claims are statute-barred. The claim by the plaintiff that he has been going back and forth to the defendants seeking his outstanding entitlements is no reason to overlook the fact that the claims are now statue-barred by law, as they arose upon the termination of his employment in March of 1999.
23. So we note that the National Court did in fact consider the case law, including Phillip Takori & Ors v. Yagari & Ors (supra) before arriving at its decision. The appellant filed his action in the National Court on 27 February 2017. Computing time from when he ceased employment, which was in 1999, to 2017 when he filed the Court proceeding, will be a total period of 18 years. The cause of action expired on or about March of 2005, which was the 6th year. Beyond that period was barred under section 16(1) of the F&L Act. Although we note that the National Court may not necessarily have discussed these in detail, we are satisfied that in making reference to the date of termination of the appellant, which was in March of 1999, the National Court correctly indicated when the cause of action would have accrued, where based upon which it held that the claim was time barred under section 16 of the F&L Act. We also refer to the transcript of proceedings and note that the appellant’s counsel conceded in Court that the claim was time-bared. The recording is contained at page 128 of the AB. We quote in part as follow:
HIS HONOUR: Okay, because it is statute barred, the entitlements are statute barred.
MR PUTUPEN: Our submission, your Honour is that, yes, times have lapsed but in terms of his retirement benefits, it is Air Niugini that has to provide the basic records. They do not have records for our client. ...
24. We therefore do not find any error in the exercise of the National Court’s discretion as alleged in grounds 3.2(e) and 3.3. We dismiss these grounds.
25. The next ground is ground 3.4. It reads:
3.4 The Learned Motion Judge erred in not considering the facts that the Respondents had filed and served their respective Defence and the pleadings were yet to be closed.
26. We do not regard this to be a valid ground of appeal. We note that existence of a pleading such as a defence or the fact that pleadings have not been completed, do not prevent a party from applying to dismiss or summarily determine a proceeding. And we also note that the ground does not show how the National Court erred in the exercise of its discretion. The ground is also vague thus breaches Order 7 Rules 9 (c) and 10 of the Supreme Court Rules 2012 and also the principles held in the case Jimmy Lama v. NDB Investments Ltd (supra). We dismiss this ground of appeal.
27. The final ground of appeal is ground 3.5. It states, and we quote:
3.5 All in all, His Honor was apparently bias in dismissing the proceedings without any legal basis at all, in that:
(a) His Honor entertained a purported Affidavit of the 4th Respondent that was not filed and served on all parties at all material times.
(b) His Honor did not consider the appellant’s both written submission tendered in Court and verbal submissions made in open Court.
(c) His Honor did not fairly consider the case Laws that supported the Appellants case; especially the rulings in Philip Takori & ors Vs. Yagari & Ors (2008) SC 905 and other cases submitted in open Court for the purpose of consistency.
28. We make our findings as follows. We do not see, based on what is before us, that the National Court was biased in dismissing the proceeding without any legal basis as alleged. In fact, we have already determined herein that the National Court had duly exercised its discretion when it dismissed the proceeding. Essentially, the Court found that the appellant’s action was time barred under section 16(1) of the F&L Act. We found that the trial Court did not err in that regard. The National Court’s decision was discretionary and it was made based on sound reasoning in both fact and law.
29. We refer to particulars (a), (b) and (c) of ground 3.5. We note that particular (a) attempts to address a competency argument or arguments that had been raised in the appellant’s cross-motion. As we have stated above, the National Court handed down its decision to the appellant’s cross-motion, ex-tempore on 14 June 2017. That decision of the National Court is not the subject of this appeal. We therefore find this particular baseless. In regard to particular (b), we can see that it is vaguely pleaded. The particular fails to state what issue(s) or matter(s) was or were submitted where the Court may not have considered in the exercise of its discretion in its ruling. The particular also appears baseless. We refer to the transcripts of the proceeding. It is located and begins at page 113 of the AB. Counsel for the appellant was given opportunities to respond and present his submission which commenced at page 126 of the AB. The National Court reserved its ruling after that and reconvened on 19 July 2017 where a written decision was delivered. And finally, we refer to particular (c). The particular refers to want of consideration of the principles held in the case Philip Takori & ors v. Yagari & Ors (supra). We note that we have already addressed this in our judgment which is that the Court did consider the case in its decision or prior to the exercise of its discretion. We therefore dismiss particular (c) of ground 3.5.
SUMMARY
30. In summary, given our findings in that we have dismissed all the grounds of appeal, the appeal will fail.
COST
31. Cost is of course discretionary. In this case, we are inclined to and will award cost to follow the event. The appellant will be ordered to pay the costs of the first, second and fourth respondents on a party/party basis which may be taxed if not agreed.
THE ORDERS OF THE COURT
32. We make the following orders:
_______________________________________________________________
Lyons Putupen Lawyers & Associates: Lawyers for the Appellant
Kamen Lawyers: Lawyers for the First and Second Respondent
Nambawan Super Limited: Lawyers for the fourth Respondent
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