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Yere v Mamo [2024] PGSC 52; SC2547 (4 April 2024)

SC2547

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 118 OF 2020

BETWEEN:
MOSES YERE
First Appellant

AND:
REMINGTON TECHNOLOGY LIMITED
Second Appellant

AND:
TENI MAMO
Respondent

Waigani: Salika CJ, Anis J & Carey J
2024: 28^th March & 4^th April

SUPREME COURT – Appeal against exercise of judicial discretion by trial judge – Whether Respondent pleading on negligence adequate – Whether Respondent pleading on vicarious liability sufficient – Whether trial judge failed to take into account relevant considerations relating to the requirement to furnish tax returns and audited financial statements in support of claim for loss of business

The Appellants sought to have the decision of the National Court in WS No. 639 of 2017 overturned on the basis that the trial judge erred in law and fact in relation to the exercise of judicial discretion, the Respondent’s pleading on negligence was inadequate, the Respondent’s pleading on vicarious liability was insufficient and the Respondent’s submission on loss of business was inadequate.

Held:

1. The Appellants’ appeal is dismissed.
   
2. The Respondent is to pay tax on the amount awarded in the National Court.
   
3. The Appellants shall pay the Respondent’s costs of and incidental to this appeal, to be taxed, if not agreed.
   

Cases Cited:
Papua New Guinean Cases

Bougainville Copper Limited v Chief Collector of Taxes [2007] SC853
Burns Philp (NG) Ltd v George [1983] PNGLR 55
Chief Inspector Robert Kalasim v Aina Mond & Ors [2006] SC828
Curlewis v Yuapa [2013] SC1274
Kerry Lerro v Phillip Stagg & Ors [2006] N3050
Malewo v Faulkner [2009] PGSC 3; SC960
Mulholland v Westley [1964] PNGLR 30
Patterson Lowa & Ors v. Wapula Akipe and Ors [1992] PNGLR 399
Paulus Kei v Tony Hasu, Sam Inguba and the Independent State of Papua New Guinea [2004] N2743
Peter Goodenough v The State [2001] N2157
PNG Banking Corporation v Jeff Tole [2002] SC694
RD Tuna Canners Ltd v Sengi [2022] PGSC 49; SC2232
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

Overseas Cases

Bonham Carter v Hyden Park Hotel Ltd [1948] 64 TLR 17
Bradshaw v McEwans Pty Ltd, High Court of Australia, Unreported, 27 April 1951
Holloway v McFeeters [1956] HCA 25; [1956] 94 CLR 470
Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298
Doney v R [1990] HCA 51; [1990] 171 CLR 207
Henderson v State of Queensland [2014] HCA 52; [2014] 255 CLR 1

Legislation:

Order 8 Rule 50 (1), (2) and (3) of the National Court Rules
Order 8 Rule 32 of the National Court Rules
The Income Tax Act 1959

Counsel:

Ms. L. David, for the Appellants
Ms. N. Kamjua with Mr. L. Giyomwanauri, for the Respondent

JUDGMENT

4^th April, 2024

1. BY THE COURT: This is an appeal against the decision of the National Court of 8^th September 2020 in the proceeding WS No. 639 of 2017 in which judgment was entered against the Appellants in the sum of K60,480.00 with interest.
   

Background

2. Moses Yere (the First Appellant) was the driver of a Hyundai HD65 Truck registration number LBC 256 (Hyundai Truck) which was owned by Remington Technology Limited (Second Appellant) together referred to as (the Appellants).
   
3. The First Appellant was the driver of the Hyundai Truck which was involved in a motor vehicle accident on 22^nd July 2016 with a Toyota Hiace 15-seater bus registration number P4276J (PMV Bus) which was owned by Teni Mamo (the Respondent).
   
4. The cost of the repair of the PMV Bus, which was K33,808.30 was paid by the insurers of the Second Appellant on or about 3^rd November 2016.
   
5. The Appellants pleaded four grounds of appeal in the Notice of Appeal against the decision of the National Court in which the Respondent took issue.
   

Issue(s)

6. The issues submitted for the Court to consider by the Appellants were whether the trial judge erred in mixed fact and law when he wrongly exercised his judicial discretion to amend the name of the Second Appellant.
   
7. Further, whether the trial judge erred in law or in mixed fact and law when he failed to consider and give sufficient weight and consideration to the Appellants submission in relation to the lack of proper pleadings outlining the loss suffered by the Respondent and no proper pleadings outlining the accident was as a result of the negligence of the Appellants.
   
8. In addition, whether the trial judge erred in law or in mixed fact and law when he failed to take into account and give sufficient weight and consideration to the Appellants’ submission that there was no proper pleading for vicarious liability and further the Second Appellant in the National Court proceedings was not the employer of the First Appellant.
   
9. The trial Judge erred in law or mixed fact and law when he failed to take into account and give sufficient weight and consideration to the Appellants’ submissions that the Respondent had not produced enough evidence supporting his claim for loss of business.
   

Determination

10. To convince the Appellate Court that the trial judge erred in exercising his discretion, the Appellant has to demonstrate that such is the case: Curlewis v Yuapa [2013] SC1274.
    
11. The trial judge has the benefit of the National Court Rules which govern the manner and form in which a National Court trial is convened.
    
12. Order 8, Rule 50 (1), (2) and (3) indicates as follows:
    
    • (1) The Court may, at any stage of any proceedings, on application by any party or its own motion, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.
      
    • (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.
      
    • (3) Where there has been a mistake in the name of a party, Sub-rule 1 applies to the persons intended to be made a party as if he were a party.
      
13. In Malewo v Faulkner [2009] PGSC 3; SC960 the Supreme Court applied the position that Order 8, Rule 50 of the National Court Rules provides the Court with the authority to make orders to amend any document in the proceeding at any time.
    
14. Moreover, leaving an incorrect name for a party to an action and not correcting such could lead to a competency issue. The Court has inherent jurisdiction, on its own volition, to consider jurisdiction or competency issues at any stage of an appeal proceeding. See cases: Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399, Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, and Chief Inspector Robert Kalasim v Aina Mond & Ors [2006] SC828.
    
15. The submission that the trial judge erred in mixed fact and law when he wrongly exercises his judicial discretion to amend the name of the Second Appellant is rejected. Order 8 Rule 50(1) and (3) of the National Court Rules gives the Judge the authority to do so ‘at any stage of the proceedings’.
    
16. Moreover, in Bougainville Copper Limited v Chief Collector of Taxes [2007] SC853:
    

‘Only if this Court finds that the learned trial judge fell into some identifiable error, this Court could interfere with the exercise of the trial judge’s discretion. Such an error could be committed if the learned trial judge acted upon a wrong principle, or he allowed extraneous or irrelevant matters to guide or affect him, or he mistook the facts, or he did not take into account some material considerations. Further, if such errors are not apparent from His Honour’s judgment, it would be sufficient if on the facts it is clear that, the decision is unreasonable or plainly unjust.’

17. This Court does not find that the trial judge had any identifiable error in respect of the exercise of judicial discretion and the Appellants’ argument in this regard fails.
    
18. The second ground of the appeal which suggests that the trial judge erred in law or in mixed fact and law when he failed to take into account relevant considerations relating the Respondent’s pleading on negligence cannot succeed because the Appellants lawyer confirmed at the Court hearing on 5^th November 2019 in the Court transcript on p.5, line 20, that ‘the issue of negligence was established. There is no issue with negligence in this particular issue’.
    
19. Further, the trial judge in his decision having considered Order 8 Rule 32 of the National Court Rules and PNG Banking Corporation v Jeff Tole [2002] SC694 and Kerry Lerro v Phillip Stagg & Ors [2006] N3050, determined that the pleadings outlining the accident was as a result of the negligence of the Appellants and was adequately pleaded and he provided reasons.
    
20. We therefore reject this ground of appeal and endorse the trial judge’s reasons for not accepting what the Appellants contend on the pleadings in relation to negligence.
    
21. The third ground of appeal which relates to the Appellants submission that the trial judge erred in law or in mixed fact and law when he failed to take into account that there was no proper pleading for vicarious liability and that the Second Appellant in the National Court proceedings was not the employer of the First Appellant is inconsistent with the fact that the Second Appellant who would have admitted to vicarious liability when its insurer paid for the damages done to the PMV Bus.
    
22. In Mulholland v Westley [1964] PNGLR 30, it was stated that ‘the Defendant admits liability, and the only issue for me to decide is the question of quantum of damage’. As liability was established by admission as it relates to negligence by the Appellants’ lawyer in the National Court the matter for consideration by this court is to determine the quantum of damage.
    
23. Therefore, we reject the Appellants’ argument the trial judge erred in law or in mixed fact and law when he failed to take into account and give sufficient weight and consideration to the Appellants’ submission that there was no proper pleading for vicarious liability and further the Second Appellant in the National Court proceedings was not the employer of the First Appellant.
    
24. The fourth ground of appeal contends that the trial judge erred in law or mixed fact and law because of failure to take into account and give sufficient weight and consideration to the Appellants’ submission that the Respondent had not produced enough evidence supporting the claim for loss of business.
    
25. In RD Tuna Canners Ltd v Sengi [2022] PGSC 49; SC2232:
    

‘Where a civil claim relies on circumstantial evidence, the party bearing the burden of proof must establish that the more probable inference supports the case alleged. An inference can be drawn provided it is reasonable and definite based on the circumstances appearing in the evidence. The Court cannot draw an inference where the circumstances give rise to conflicting inferences of equal degrees of probability, where the choice between them is a mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then it is not to be regarded as mere conjecture or surmise even though it may fall short of certainty. Burns Philp (NG) Ltd v George [1983] PNGLR 55 adopting and applying Bradshaw v McEwans Pty Ltd, High Court of Australia, Unreported, 27 April 1951; and Holloway v McFeeters [1956] 94 CLR 470. See also Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298, Doney v R [1990] HCA 51; (1990) 171 CLR 207 and Henderson v State of Queensland [2014] HCA 52; [2014] 255 CLR 1’.

26. The circumstances of the case and evidence submitted by the Respondent to ascertain the loss of business is sufficient when applying the balance of probabilities argument as indicated in RD Tuna Canners Ltd. v Sengi [2022] PGSC 49; SC2232.
    
27. In reviewing The University of Papua New Guinea and the Chief Security – Mike Moir Bussy and Operation Commander – Thomas Nigaya v Jerry Duwaino [2011] SC1119, the Supreme Court applied the principle in Bonham Carter:
    

In Bonham Carter v Hyden Park Hotel Ltd [1948] 64 TLR at page 178 Lord Goddard CJ said;

“Plaintiffs must understand that if they bring actions for damages, it is for them to prove their damages, it is not good enough to write down particulars and so to speak, throw them at the hand of the Court saying, This is what I have lost, I ask you to give me these damages. They have to prove it.”

28. Further, in Peter Goodenough v The State [2001] N2157, further applying Bonham Carter, Salika J (as he then was) indicated as follows:

“I adopt these statements, as I am of the view that they are reasonable and logical and should be applied by the courts in Papua New Guinea. Every plaintiff who wishes to be put in the same position as he would have been in had the tort not been committed has an obligation to prove his claim. He has to call evidence relevant to prove his damage. If he fails to provide the relevant evidence, his claim is likely to fail.”

29. Moreover, in Paulus Kei v Tony Hasu, Sam Inguba and the Independent State of Papua New Guinea [2004] N2743:
    

‘The plaintiff however does not show if he is paying any Income Tax to the State. He has not produced any Income Tax Returns as evidence of paying his Income Tax. It therefore appears that while the plaintiff was running a business he was not paying any Income Tax to the State. I suspect there are many other such operators like the plaintiff who do not pay Income Tax to the State. The State Agency responsible for collecting taxes is the Internal

Revenue Commission. It must clamp down on such operators.’

30. The Income Tax Act 1959 under section 11 imposes income tax on all persons earning income in Papua New Guinea with a few exceptions as stipulated in the Act.
    
31. The Respondent is also obligated to pay income tax and in the absence of any evidence to the contrary it is clear that this obligation was not fulfilled.
    
32. The trial judge took into account evidence that was presented and indicated no criticism for lack of tax return as the PMV business had commenced operation in November 2015 and the date for tax lodging had not expired.
    
33. However, income tax would be owed for the period of operation.
    

Conclusion

34. The Appellants did not prove that any of the grounds of appeal should succeed.
    

Orders of the Court

1. The Appellants’ appeal is dismissed.

2. The Respondent is to pay tax on the amount awarded in the National Court.

3. The Appellants shall pay the Respondent’s costs of and incidental to this
appeal, to be taxed, if not agreed.

Ordered accordingly.
_______________________________________________________________
Pacific Legal Group: Lawyers for the Appellants
Office of the Public Solicitor: Lawyers for the Respondent