SC2490

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO.26 OF 2017

BETWEEN:
HALLE NANGE on his own behalf and members of the
Lapindi Clan of Lyeimi, Enga Provincee
Appellant

AND:
TELIKOM (PNG) LIMITED
Respondent

Waigani:  David, J, Murray, J & Numapo, J
2022:  15th December
2023:  3rd November

CIVIL APPEAL – appeal against decision to dismiss proceedings for being statute-barred – claim seeking damages for trespass and breach of agreement entered between the parties – no error shown – appeal dismissed.

PRACTICE & PROCEDURE – Failure to object to or take issue with evidence led at trial of matters or issues not pleaded entitles a Judge to make judgments on evidence presented despite lack of foundation in pleading – Party affected not entitled to hack back at the lack of pleading. 

PRACTICE AND PROCEDURE – Discretionary powers of National Court to control proceedings before it – a Judge is entitled to raise and determine on own initiative a question of competency at any stage of the proceeding with or without an application by a party.

Cases Cited:

Papua New Guinean Cases
Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386
Jacob Simbuaken v Neville Egari (2009) N3824
PNGBC v Jeff Tole (2002) SC694
Philip Takori v Simon Yagari (2008) SC904
Public Curator of Papua New Guinea v Kara (2014) SC1420 
Habolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549
Sogeram Development Corporation Ltd v Som (2014) N5874
George Kila v Shichun Zhu (2017) N7043
Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 
Motor Vehicles Insurance (PNG) Trust v Etape [1994] PNGLR 596
Michael Keka v. Pius Yafaet (2018) SC1673
Mainao v Akori (2021) SC2090 
Karl Paul v. Aruai Kispe and 2 Ors (2001) N2085

Overseas Cases
Gould and Birbeck and Bacon [1916] HCA 81; (1916) 22 CLR 490 

Counsel:
Aaron Benny, for the Appellant
Sam Kati, for the Respondent

JUDGMENT

3rd November 2023

1.	THE COURT:  INTRODUCTION: This is the decision of the Court in relation to the appellants’ appeal commenced by Notice of Appeal filed on 6 March 2017.  The Notice of Appeal contains five grounds of appeal, and they are set out at paragraph 3 of the notice and restated below. At the hearing, the appellants abandoned the fifth ground and it was dismissed as a consequence. 

2.	The four remaining grounds of appeal are:

“3.1	 His Honour erred in fact and in law by finding that, in the absence of any defence being filed, the respondent could rely on facts giving rise to a defence by way of evidence by affidavit.
3.2	His Honour erred in fact and in law by finding that the court at its own discretion can raise matters not pleaded in the absence of any defence when the circumstances of the case did not warrant the exercise of such discretion.
3.3	His Honour erred in fact and in law by making findings that the proceeding WS No. 1140 of 2009 taken out by the plaintiff was statute barred under Section 16 of the Frauds and Limitations Act when in fact that proceeding was a continuation of an earlier proceeding in WS No. 1797 of 2005 which was filed within the 6 months requirement of Section 16 of the Fraud and Limitations Act and therefore Section 16 was not applicable.
3.4	His Honour erred in fact and in law by deciding that the cause of action for trespass was statue barred under Section 16 of the Fraud and Limitations Act when this was case(sic) of recurring damages over a long period of time up to the present when a time period could not apply to such a case.”

BRIEF BACKGROUND FACTS

3.	The appellants who were plaintiffs in the National Court proceedings namely, Immanuel Kandata on his own behalf and members of the Lapindi Clan of Lyeimi village, Enga Province v Telikom (PNG) Limited, WS 114 of 2009 (the National Court proceedings) commenced the National Court proceedings by writ of summons endorsed with a statement of claim filed on 8 September 2009 (7-13 AB).  After the commencement of the appeal, the lead appellant Immanuel Kandata died and was replaced by one Halle Nange.  The appellants claim that in 1975, the respondent without the prior knowledge or approval of the appellants cleared an area within their customary land at Mt. Burgers in Lyeimi village, Lagaip-Porgera District in Enga Province (the Disputed Land), erected a tower and installed radio communication equipment for its operations. The appellants claim, among others, damages for trespass, environmental loss, breach of constitutional rights and for breach of an agreement entered into between the parties. 

ISSUES:

4.	The main issues that emerge from the four grounds of appeal for determination are:
 
1.	Whether the trial Judge erred in fact and in law by finding that in the absence of any defence filed, the Respondent could rely on facts adduced from affidavit evidence giving rise to a defence?
2.	Whether the trial Judge erred in fact and in law in finding that in the exercise of his discretion, he could raise matters not pleaded in any defence filed?
3.	Whether the trial Judge erred in fact and in law when he found that that the proceedings in WS No.1140 of 2009 were statute-barred under s.16 of the Frauds and Limitations Act when in fact those proceedings were a continuation of an earlier proceedings in WS No.1797 of 2005 which was filed within the 6-year requirement of s.16 of the Frauds and Limitations Act?   
4.	Whether the trial Judge erred in fact and in law by deciding that the cause of action for trespass was statute-barred under s.16 of the Frauds and Limitations Act when this was a case of recurring damages over a long period of time up to the present when a time period could not apply? 

5.	We will address Issues 1 and 2 together as they raise the question: whether in the absence of a defence having been filed, the trial Judge could raise and address a defence that is apparent on affidavit evidence adduced, on his own initiative.

6.	We will also address Issues 3 and 4 together as they relate to the question whether the appellant’s claim was statute barred.

LACK OF PLEADING OF A DEFENCE (Grounds 1 & 2)

The first major issue is: Whether in the absence of a defence having been filed, the trial Judge could raise on his own initiative and address a defence that is apparent on affidavit evidence adduced.

Submissions

7.	With respect to ground 3.1, the appellants submit that, under Order 8 Rule 14 of the NCR, the respondent is required to file its defence which should specifically plead the defences that it will rely on, but it failed to do that. The defence it claimed to have been filed was not filed in accordance with the National Court Rules so it was not properly before the trial Judge.  Hence, it is contended that the trial Judge fell into error when he allowed the respondent to call evidence and make findings based on evidence not supported by pleadings contained in a defence properly before him contrary to the principle on pleadings, ie, that a party cannot obtain relief which has not been sought in the pleadings. Reference was made to Mainao v Akori (2021) SC2090 which adopted the principle on pleadings enunciated in Sogeram Development Corporation Ltd v Som (2014) N5874, Jacob Simbuaken v Neville Egari (2009) N3824, PNGBC v Jeff Tole (2002) SC694 and Philip Takori v Simon Yagari (2008) SC904.

8.	As for ground 3.2, the appellants submitted that the trial Judge erred in fact and in law when he found that he could raise on his own initiative, the defence of time bared which was not pleaded in a defence, as none was filed. It was argued that, the exercise of such discretion was contrary to established principles enunciated in Government of Papua New Guinea and Davis v Barker (1977) PNGLR 386 which warranted a review and the appellate Court in the exercise of its own discretion should substitute its own decision for the trial Judge’s.

9.	The respondent, on the other hand, submits that the trial Judge did not commit any error as alleged by the appellants as:

1.	The respondent was entitled to take further steps in the proceedings by the filing of its Notice of Intention to Defend consistent with Order 7 Rules 2 and 6(1) of the National Court Rules;
2.	Following the filing of its Notice of Intention to Defend, the respondent filed its defence;
3.	The appellants did not take any step to set aside the respondent’s defence prior to going to trial and apply for the entry of default judgment in their favour;
4.	By their conduct, the appellants accepted the filing of the respondent’s defence;
5.	The appellants did not oppose the respondent tendering affidavit evidence at the trial;
6.	The respondent was entitled to rely on its affidavit evidence to raise and substantiate its defence;
7.	The trial Judge’s findings were consistent with the principle that the court is vested with wide powers to screen, analyse and filter cases brought before it and that includes raising a statutory defence under the Frauds and Limitations Act such as, the proceedings were statute-barred for the cause of cation for trespass to land and that proposition is supported by case precedents such as The State v Brian Josiah (2005) SC792, The State v Downer Construction (PNG) Ltd (2009) SC979 and Kauba v Willie (2021) SC2162; and
8.	The appellants have failed to demonstrate any special circumstance that prevented the trial Judge from exercising his wide powers.

Consideration & Reasons for decision

10.	There are 2 parts to the first issue which covers grounds 3.1 & 3.2. In accordance with the submissions by the appellants, the first part concerns the learned trial Judge permitting Telikom to raise defences from facts adduced from the 4 affidavits that it relied on. The second concerns the powers of the learned trial Judge. More specifically, whether he can raise a matter or issue on his own initiative.

11.	  Turning now to the first part of the issue. Was the trial Judge wrong when he allowed the respondent to call evidence and make findings based on evidence not supported by pleadings which is contrary to the principle, that a party cannot obtain relief which has not been sought in the pleadings. 

12.	This argument was based on Order 8, Rule 14 of the NCR which reads:

“In the defence or subsequent pleading the party pleading shall plead specifically any matter, for example, performance, release, any statute of limitation, fraud, or any fact showing illegality – 

(a)	Which he alleges makes any claim, defence or other case of the opposite party not maintainable; or 
(b)	Which, if not pleaded specifically, may take the opposite party be surprise; or
(c)	Which raises matters of fact not arising out of the preceding pleadings.

13.	We note from the appeal book, that the respondent filed a defence on 2 December 2009 in response to the appellants’ suit against it which was commenced by writ of summons endorsed with a statement of claim on 8 September 2009 (14-17 AB).  In the defence, the respondent denied liability and pleaded, among others, that; the entire claim was statute-barred pursuant to s.16 of the Frauds and Limitations Act; However, we note further that, the learned trial Judge did not refer to that defence as the basis for finding that, Telikom has defences against the claim by the appellant. Instead, the finding by the learned trial Judge that Telikom has defences was based on the 4 affidavits as the trial was conducted by affidavit evidence. The parties’ affidavits were tendered by consent and without any general or specific objection of the opposing parties and admitted into evidence.  The respondent relied on four affidavits namely, Affidavit of Steven Morodu sworn and filed on 24 October 2014 (Exhibit 1), Affidavit of Mark Puri sworn on 23 October 2014 and filed on 24 October 2014 (Exhibit 2), Affidavit of Sheila Taku sworn on 8 July 2015 and filed on 9 July 2015 (Exhibit 3) and Affidavit of Peter Luso Waip filed on 9 July 2015 (Exhibit 4).  No cross-examination of the deponents of affidavits was conducted by the opposing parties. The trial Judge considered the defences raised by the respondent’s affidavit evidence including whether the plaintiffs’ claims were statute-barred.  

14.	The relevant paragraphs of the trial Judge’s written judgment are set out at paragraphs 5 to 7 and they are as follows:
 
5.	As to the plaintiff’s reliance upon Order 8 Rule 14 National Court Rules and its submission that a defence should be specifically pleaded, the requirements of that rule are acknowledged, and that a defendant is not entitled to give evidence of facts at trial if he has not pleaded those facts on which he intends to rely at trial.:  Sogeram Development Corporation Ltd v Som (2014) N5874, Jacob  Simbuaken v Neville Egari (2009) N3824 and Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694.
6.	In this instance however, counsel for the plaintiff was specifically asked if he took any objection to affidavits being admitted into evidence on behalf of Telikom, and no objection was taken by counsel for the plaintiff to each of four affidavits being admitted into evidence on behalf of Telikom.
7.	I am satisfied therefore that given the above, Telikom is able to raise defences upon the evidence of facts contained in the four affidavits that were admitted into evidence on its behalf without objection being made on behalf of the plaintiff. One of those defences is whether the plaintiff’s claims are statute barred….  

15.	The learned trial Judge did acknowledge and consider the requirement of pleadings and the case authorities that support that position, but went on and considered that, the circumstances in this case were different in that, the trial proceeded by way of affidavits from both sides which were admitted into evidence by consent. The Respondent did not object to any of the affidavits tendered by the Appellants. Likewise, the Appellants did not object to any of the affidavits tendered by the Respondent which contained evidence of facts that gave rise to defences which the trial Judge considered were available to the Respondent on the basis that, the Appellant allowed the Respondents’ 4 affidavits to be admitted into evidence. One such defence raised in those affidavits is that, the appellants’ claims are statute barred. The question now is, are the Appellants entitled to argue that, the Respondent cannot raise any defence from facts which have not been pleaded but are contained in affidavits that were not objected to.  

16.	Whilst we accept that, it is trite law that, a party is not entitled to bring in evidence of facts at trial if he has not pleaded those facts on which he intends to rely on at trial, this Court has also clearly stated the legal consequence that should follow in type of situation as in this case. That is,  the Courts have held, if matters not pleaded are raised at a trial without objection, they may be the subject of submissions for relief and an award in damages. That was the position taken in PNGBC v Jeff Tole (2002) SC694 which followed the decision in Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 & Motor Vehicles Insurance (PNG) Trust v Etape [1994] PNGLR 596. In Pupune and Etape, the Courts held that, if a party fails to take objection to evidence being led at the trial of matters not pleaded, it could not later hack back at the pleadings and argue against any awards on such evidence on matters not specifically pleaded.

17.	The Court in Pupune was persuaded to and it did adopt and applied pronouncements of principles as is represented by cases like that of Gould and Birbeck and Bacon [1916] HCA 81; (1916) 22 CLR 490 at pp. 517. The relevant part of that judgment was by Isaacs and Rich JJ in a joint judgement in these terms:

"But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this, even if the matter were required to rest on authority only. See, for instance Nevill v. Fine Art and General Insurance Co (1897) AC 68 at p 76; Browne v. Dunn 6 R 67 at p 75, the relevant passage being quoted fully in Rowe v. Australian United Steam Navigation Co 9 CLR 1, at p 24."

18.	On the strength of those cases referred to, we accept the respondent’s submissions. We find no error in the trial Judge’s decision in finding that, the Respondent was able to raise defences on the evidence of facts contained in the 4 affidavits that were admitted into evidence with no objection by the Appellant. 

19.	The second part of the issue relates to whether the trial Judge can raise a matter or issue on his own initiative. More specifically to this case, is the question, was the trial Judge entitled to raise on his own initiative, the defence of time barred under the Frauds and Limitation Act when no defence had been filed.    

20.	A case directly on point is the decision of this Court comprising of Collier, Neill & Liosi JJ., in Michael Keka v. Pius Yafaet (2018) SC1673. In that case, although, it involved the Section 5 Notice under the CB&AS Act, the trial Judge did what the trial Judge did in this case. The trial Judge raised the issue of s.5 notice on the Court’s own initiative and dismissed the proceedings. Aggrieved by that decision, an appeal was lodged.  

21.	In order to come to its decision on the appeal, the Court had regard to the decision in Karl Paul v. Aruai Kispe and 2 Ors (2001) N2085, where the Court said:
“The Court has wide powers to control the conduct of proceedings before it, subject to jurisdictional limitations fixed by Statute. It is in the inherent jurisdiction of the court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case. To this end, it is within the inherent jurisdiction of the Court to scrutinize the form and contends of documents before it…
There is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court, (O12 r 40), or the documents filed in Court are scandalous irrelevant or otherwise oppressive (O2 r 29), or the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O1 r 9) or competency of proceedings at any stage of the proceedings with or without application by an interested party…”

22.	The relevant part of the trial Judge’s decision dealing with this issue appears at paragraphs 12, 13 & 14 of the Judgement or pages 199 & 200 of the Appeal Book.

‘’ 12. 	Although I have already determined that Telikom is able to raise the statute bar issue as referred to above, | also refer to the Supreme Court case of The State v. Brian Josiah (2005) SC792, in which the following concerning the non-pleading of a “limitation” defence was said: 

‘We therefore cannot accept Mr. Dataona’s submission’s that it is a statutory defence which should have been raised in the pleading. Ifa claim is not sustainable at law....... what difference would pleading of statute of Jrauds and limitations make? Can failure to plead cure a clear defect in law? Certainly not” 

13. 	This decision is binding on this court.

14. 	I note also the following comments of Injia J. (as he then was) in Karl Paul v. Awai Kispe (2001) N2085 which were cited with approval in Brian Josiah’s case (supra): 

“there is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose a reasonable cause of action, are Frivolous and vexatious or an abuse of process of the Court, (012 r40) or the documents filed in Court are scandalous, irrelevant or otherwise oppressive (O2 r29), or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions covering — the regularity (O1 r1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party.”

23.	The trial Judge in his decision also cited the case of Karl Paul (supra) which was cited with approval in the Supreme Court case of Brian Josiah (supra) which the trial Judge also cited and applied.

24.	Proceeding on the basis of the above, we are of the view that, the trial Judge was entitled and was within his discretion to raise the issue of time barred under Section 16 of the Frauds and Limitation Act.  No error was made by the trial Judge.

CLAIMS BEING STATUTE BARRED (Grounds 3 and 4)

25.	The second major issue is: Whether the Appellant’s claims are Statute Barred?

Submissions

26.	Mr. Benny for the appellants submitted that the trial Judge erred in fact and in law in finding that the proceedings were statute-barred under s.16 of the Frauds and Limitations Act when:

1.	The proceedings were a continuation of an earlier proceedings filed within time commenced by WS No.1797 of 2005;  
2.	He failed to observe the relevant principles applying to the dismissal of proceedings for being statute-barred discussed in George Kila v Shichun Zhu (2017) N7043, ie, identification of the cause of action, identification of the date on which the cause of action accrued; and categorization of the cause of action whether it is founded on a simple contract or specialty; and
3.	A cause of action in trespass accrues when damage is done especially is a case of recurring damage over a long period of time and not when the negligent act of the wrongdoer is committed in this case in 2001 as was held by the trial Judge relying on Public Curator of Papua New Guinea v Kara (2014) SC1420 and Habolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549.
27.	Mr. Kati for the respondent argues that the third and fourth grounds of appeal have no merit and should be dismissed as:
1.	The proceedings the subject of this appeal namely, those commenced by WS No.1140 of 2009 were correctly adjudged by the trial Judge to be statute-barred under s.16 of the Frauds and Limitations Act;
2.	The previous National Court proceedings may have been filed within time, but they were determined on their own merits and dismissed; and
3.	The Disputed Land was converted to State Land and any claim based on trespass ceased at the time of conversion or acquisition in October 1986 and was statute-barred.  

Consideration & Reasons for Decision

28.	The relevant paragraphs of the trial Judge’s written judgment are set out at paragraphs 9 to 18 and they are as follows:

“9.	Telikom submits that the plaintiff’s claim based upon breaches of the agreement purportedly entered into between the parties (agreement) is statute-barred as:
	
a)	the subject agreement was entered into on 7th June 2001;
	b)	it is pleaded in the statement of claim that Telikom revoked this agreement on 11th December 2001; 
	c)	the cause of action of the plaintiff would have accrued on or about 11th December 2001 and six years from then expired on 11th December 2007;
	d)	this proceeding was commenced on 8th September 2009.

10.	The plaintiff submits that its claim based upon breaches of the agreement is not statue-barred as:

	a)	Telikom’s breach of the agreement occurred sometime after 7th June 2001;
	b)	the initial proceedings being WS 1797 of 2005 was filed on 18th November 2005, well with the six years allowed under s.16(1)(a) Frauds and Limitations Act for simple contracts and this present proceeding is a “continuity from, and resultant of” the initial court case.

11.	As to the plaintiff’s claim for trespass, Telikom submits that this claim is also statute-barred as the cause of action of the plaintiff as pleaded accrued in 1975.  The plaintiff does not specifically address this issue in its extract of argument…. 

15.	Although the agreement is described as a “Deed of Agreement,” from a perusal of the document in evidence, I am satisfied that it is not a deed as it does not have the essential characteristics of a deed.  Secondly, the agreement is not pleaded as being a deed or specialty and in his extract of argument, counsel for the plaintiffs refers to the agreement as though it is a simple contract, and not a deed or specialty.  I am satisfied that the agreement is a simple contract for the purposes of s.16(1)(a) Frauds and Limitations Act, in respect of which an action founded upon it shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

16.	As it is pleaded in the statement of claim that Telikom revoked the agreement on 11th December 2001 and that, “as a result of the revocation the Plaintiff contends that he and his clan suffered”, I am satisfied that the plaintiff’s cause   of action accrued on 11 December 2001.

17.	As to the submission by the plaintiff that a previous proceeding, WS 1797 of 2005, sought the same relief as this proceeding, was filed in November 2005, and that this proceeding is a continuation of that proceeding, therefore this proceeding is not statute-barred; this submission is novel but flawed.  The word “action” used in s.16 Frauds and Limitations Act, is a reference to the court proceeding under consideration at a particular time and does not include the previous proceeding which the plaintiff concedes was dismissed.  Consequently I am satisfied that the plaintiff’s claim for breach of the agreement as pleaded in the statement of claim is statue-barred.

18.	As to the plaintiff’s claim for trespass, from the evidence, I am satisfied that the subject land has been the subject of a State Lease since 23rd October 1986 – State Lease Volume 102 Folio 161 being Portion 34 Lagaip, Wabag, Enga Province.  The State Lease was issued to Post & Telecommunication Corporation.  Consequently any claim that the plaintiff had for trespass of what he alleges is his customary land ceased at least at that date as the subject land was no longer customary land.  So even if the plaintiff’s cause of action for trespass accrued in October 1986, as such a claim is founded on tort, such an action shall not be brought after the expiration of six years commencing on the date that the cause of action accrued.  That period of six years would have expired in 1992.  This proceeding was commenced in 2009.  Consequently, I am satisfied that the plaintiff’s claim for trespass as pleaded is statute barred.”  

29.	Turning firstly to the submission by the appellants that the proceedings, (WS No. 1140 OF 2009) the subject of this appeal is not time barred because it is a continuation of a previous proceeding, WS 1797 of 2005 filed within time in November 2005 where similar relief were sought. We find that, that contention lacks any legal foundation, is without merit and grossly misconceived.  The trial Judge did not err when he correctly found that ‘[t]he word “action” used in s.16 Frauds and Limitations Act, is a reference to the court proceeding under consideration at a particular time and does not include the previous proceeding which the plaintiff concedes was dismissed.’  

30.	As to the argument the trial Judge failed to observe the relevant principles applying to the dismissal of proceedings for being statute-barred discussed in George Kila v Shichun Zhu (2017) N7043, it is rejected because this contention has no foundation in the pleadings, ie., this is not raised by any of the grounds of appeal.

31.	As to the argument that a specific time could not be identified in relation to the claim for trespass from which to ascertain when a cause of action in trespass accrued as this was a case of recurring damage occurring over a long period of time, this was addressed by the trial Judge at paragraphs 11 and 18 of his judgment.

32.	At paragraph 11, the trial Judge said:

“The plaintiff does not specifically address this issue in its extract of argument.”  

The appellants’ extract of argument does not form part of the Appeal Book so we can only go by the trial Judge’s word.  The appellants are precluded from raising the point if not raised in the court below.  

33.	Given this, we concur with the trial Judge’s reasoning at paragraph 18 of his judgment for concluding that the claim for trespass was statute-barred.

Conclusion

34.	As we have determined all the issues in favour of the trial Judge’s findings, we have effectively dismissed all the grounds of appeal. 

ORDERS

35.	We make the following orders:

1.	The appeal is dismissed.
2.	The decision of the National Court made on 25 January 2017 in proceedings WS No.1140 of 2009 dismissing those proceedings is affirmed.
3.	The appellants shall pay the respondent’s costs of the appeal on a party/party basis, to be taxed, if not agreed. 

_______________________________________________________________
Niuage Lawyers: Lawyers for the Appellants		
Kandawalyn Lawyers:  Lawyers for the Respondent