Carter v Korobosea Developments Pty Ltd, Davara House Pty Ltd and Davara Motel Kieta Pty Ltd [1986] PGLawRp 352; [1986] PNGLR 157 (30 July 1986)

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[1986] PNGLR 157 - Michael John Carter v Korobosea Developments Pty Ltd, Davara House Pty Ltd and Davara Motel Kieta Pty Ltd�

PRACTICE - Supreme Court - Reservation of points of law - National Court - Where dependent on disputed facts - Reservation not appropriate - Need to advance or dispose of litigation - Supreme Court Act (Ch No 37), s 15.

The Supreme Court Act (Ch No 37), s 15, provides that a Judge of the National Court �may reserve any case or any point in a case for the consideration of the Supreme Court ...�.

On the reservation for determination of the applicability of the provisions of the Employment Act 1978, to a party as a non citizen, in proceedings involving determination of the conditions of a contract of employment:

N1>(1)�� A preliminary point of law dependent on disputed questions of fact should not be reserved under the Supreme Court Act (Ch No 37), s 15.

N1>(2)�� A point in a case which may be reserved under the Supreme Court Act (Ch No 37), s 15, should be one which will advance the litigation or effectively dispose of the matter.

This was the hearing of a point reserved by a Judge of the National Court pursuant to the Supreme Court Act (Ch No 37), s 15.

WOODS BARNETT WILSON JJ: This is a reservation made by a judge of the National Court under s 15 of the Supreme Court Act (Ch No 37) for a determination of the applicability of the provisions of the Employment Act No 54 of 1978 to the plaintiff as a non-citizen. The defendant has objected to the reservation as it did before the trial Judge. Counsel for the defendant has submitted before us that the Supreme Court should not consider the question.

We upheld the defendant�s submissions and declined to consider the question and we now publish our reasons.

The action before the National Court involves the determination of the conditions of a contract of employment. The plaintiff appears to be a non-citizen. We have none of the factual evidence before us, only the decision of the Judge on the reference which sets out the contested paragraph in the defence. The defendant had pleaded certain matters in his defence and the plaintiff sought to strike out certain clauses in that defence and in doing so raised the question of the relevance of the Employment Act to the contract of employment and to the parties.

Counsel for the defendant has submitted to us that the isolation by the Judge of the question as to the applicability of the Employment Act is misconceived and is hypothetical. Whether or not it applies in general is irrelevant as the question here is �does it apply to these parties?� The answer to that question will depend on facts not yet before the court including for instance, the actual terms of the contract. Any decision by this Court on the question might be of no effect, and even erroneous, depending on the view of facts yet to be found by the National Court.

This is not a case where the parties have come before a judge early in the proceedings and agreed to argue a point of law separately after agreeing on certain facts nor are the questions squarely raised before the trial Judge on facts before him. It is a question that has been raised by the plaintiff on a preliminary application to strike out certain clauses in the defence.

The case from which the reservation arises is a matter of a dispute regarding rights between parties under a contract which is not before this Court. Parties in contractual matters can incorporate any principles or rules or law they want in their relations. They could for instance even have agreed that the provisions of the Employment Act should apply to their contract.

Difficulty often arises when the Supreme Court is requested to decide matters of law before the fact situation has been investigated. This Court should not be asked to decide a preliminary point of law if it is dependent, as it will be in most cases, on disputed questions of fact.

As has been said by Lord Denning MR in Carl Zeiss Stiftung v Herbert Smith and Company [1969] 1 Ch 93 (at 98) �I quite agree that in many cases the facts and the law are so mixed up that it is very undesirable to have a preliminary issue�.

We find there are no sufficient facts decided in this particular case which would allow the isolation of the question of law raised. In such a case, involving contractual rights, it is unwise and possibly not relevant to isolate such a question of law until all the facts and evidence have been brought before the court which would then be in a position to determine the issue if, after the factual determination, it is still relevant.

In addition to this concern this Court should also ensure that the reservation of any point in a case will advance the litigation or effectively dispose of the matter. Criteria such as the overall convenience to the parties and the court, and whether the course of action will save expense, also need to be borne in mind and will be particularly important where the decision on the reference will determine the fate of the litigation. In this case it is clear from the defendant�s submission that a decision on this reservation will not advance the litigation in any way.

Although it was not a question necessary for this Court to determine we are of the view that the original application to strike out pars 2 and 13 of the defence should be refused and the case be sent to trial, whereupon the relevance of the application of the Employment Act to the facts of the case can be properly determined by the trial Judge.

Counsel for the defendant has requested that this Court certify for overseas counsel. We decline to do so in respect of this application. The arguments put forward are largely those advanced by counsel before the trial Judge. While the Court was assisted by counsel�s presentation, the matters argued were not in our view of such a complex or difficult nature that overseas counsel�s fees should be certified.

As to the costs of the application, the Court orders that each party bear their own costs as it appears from the judgment of the Judge who referred the matter that he, as he is entitled to do under the Supreme Court Act, was a major proponent of the course of action taken in referring the matter.

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Papua New Guinea Law Reports

Carter v Korobosea Developments Pty Ltd, Davara House Pty Ltd and Davara Motel Kieta Pty Ltd [1986] PGLawRp 352; [1986] PNGLR 157 (30 July 1986)

Papua New Guinea Law Reports - 1986