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Wallace v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 84; [1991] PNGLR 341; N1037 (6 September 1991)

N1037

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WALLACE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Lae
Doherty J

29 May 1991
6 September 1991

CONTRACTS - Enforcement - Agreement to settle damages claim on terms - No proceedings in court - Term that statutory interest to be determined by National Court - Right to sue on contract - Parties estopped from denying jurisdiction by terms - Exceptional circumstances warranting entry of judgment and ante-dating thereof - National Court Rules, O 12, rr 1, 3(4).

JUDGMENTS AND ORDERS - Entry of - Such judgment as nature of case requires - Parties suing on terms of settlement - No court proceedings when settlement agreed - Terms not complied with - Judgment entered to enforce terms as to statutory interest - National Court Rules, O 12, r 1.

JUDGMENTS AND ORDERS - Entry of - Power to ante-date - Available where something exceptional in facts - National Court Rules, O 12, r 3(4).

Following a motor vehicle accident a claim lodged with the Motor Vehicles Insurance (PNG) Trust was settled in respect of general damages only in the sum of K100,000, without any admission of liability by either party on terms which were reduced to writing. The terms of the agreement expressly excluded costs and interest on damages and provided that the matters "expressly excluded from this settlement ... shall be referred to the National Court of Justice of Papua New Guinea for final determination". The sum of K100,000 was paid but no agreement was reached on costs and the plaintiff sought by writ of summons to have the settlement made a judgment of the court with interest thereon under the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52).

The National Court Rules, O 12, r 1, provides that the court may "at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process" and r 3(4) permits the court to order that a judgment or order take effect at a date earlier or later than the date fixed in the rules.

Held

(1) In the absence of proceedings in the court before settlement was agreed the plaintiff was entitled to sue on the agreement to settle to enforce the terms thereof as to costs and interest.

Green v Rozen [1955] 2 All ER 797, Cohen v Snelling [1943] 2 All Er 577 and Tomlin v Standard Telephones and Cables Ltd [1969] 3 All ER 201, considered.

Caltex (Overseas) Ltd v Dent [1978] PNGLR 411, distinguished.

(2) As the terms of the agreement conferred jurisdiction on the National Court in respect of costs and interests the parties were estopped from denying that jurisdiction.

President of India v La Pintada Cia Navegacion SA [1984] 2 All ER 773, considered.

(3) In the circumstances judgment should be entered under O 12, r 1 of the National Court Rules for the sum of K100,000 in order to give effect to the terms of the order as to interest under the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52).

(4) The power of the Court to ante-date a judgment under O 12, r 3(4) of the National Court Rules should only be exercised where there is something exceptional in the facts to justify the making of the order.

Belgian Grain and Produce Co Ltd v Cox & Co (France) Ltd [1919] WN 308, adopted and applied.

(5) In the circumstances, the denial of liability whilst agreeing to and paying compensation and freely entering into a contract to confer jurisdiction were to be regarded as exceptional circumstances, justifying the ante-dating of the judgment so entered to the date of the agreement.

(6) Interest at the rate of 8 per cent should be awarded from the date of the accident to the date of the agreement.

Cases Cited

Belgian Grain and Produce Co Ltd v Cox & Co (France) Ltd [1919] WN 317.
Borthwick v Elderslie Steamship Co (No 2) Ltd [1905] UKLawRpKQB 130; [1905] 2 KB 516.
Caltex (Overseas) Ltd v Dent [1978] PNGLR 411.
Cohen v Snelling [1943] 2 All ER 577; sub nom Lubovsky v Snelling [1944] KB 44.
Dutton v Sneyd Bycars Co Ltd [1920] 1 KB 414.
Green v Rozen [1955] 1 WLR 741; [1955] 2 All ER 797.
Parsons v Mather & Platt Ltd [1977] 1 WLR 855; [1977] 2 All ER 715.
Prenn v Simmonds [1971] 1 WLR 1381; [1971] 3 All ER 237.
President of India v La Pintada Cia Navegacion SA [1985] AC 104; [1984] 3 WLR 10; [1984] 2 All ER 773.
R W Miller & Co Pty Ltd v The Ship "Patris" [1975] 1 NSWLR 704.
Tomlin v Standard Telephones and Cables Ltd [1969] 1 WLR 1378; [1969] 3 All ER 201.

Statement of claim

These were proceedings in which the plaintiff sought to recover interest on a damages settlement.

Counsel

D Lidgett, for plaintiff.
R Thompson, for defendant.
Cur adv vult

6 September 1991

DOHERTY J: The plaintiff was injured in a motor vehicle accident which occurred on 17 March 1984 and was rendered a quadriplegic.

The defendant is a statutory body charged with the duty of insuring motor vehicles using public roads.

A claim was lodged by the plaintiff against the defendants following the accident and I presume negotiations proceeded in the normal way.

On 2 April 1987, the parties reached agreement on some, but not all aspects, of the claim. That agreement was reduced to writing and is before this Court.

The defendant made no admissions of liability.

Relevant portions of the agreement are as follows:

"AND WHEREAS the Releasee without admission of liability has offered to settle and compromise such claim as the Releasor may have against it in regard to general damages.

AND WHEREAS the parties have agreed those matters set out in the Second Schedule are expressly excluded from this settlement and shall be referred to the National Court of Justice of Papua New Guinea for final determination.

AND WHEREAS the Releasor has agreed to accept the sum set out in the First Schedule in settlement compromise and discharge of the claims for general damages which he may have against the Releasee or any other person in regard to the accident.

NOW THIS DEED WITNESSES and it is hereby agreed by and between the parties that in consideration of the premises and the amount of ONE HUNDRED THOUSAND KINA (K100,000.00) (which amount expressly excludes the Releasor’s lawyers fees or interest on the sum of damages pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52) this day paid without any admission of liability by the Releasee to the Releasor (the receipt of which sum is hereby acknowledged) in settlement and compromise of all actions, suits, claims and demands upon the Releasee or any other person arising out of the accident in regard to general damages and as set out in the First Schedule hereto, the Releasor for himself, his executors, administrators and assignees DOES HEREBY FOREVER RELEASE AND DISCHARGE the Releasee from and against all actions, suits, claims and demands for general damages including but not limited to a claim made by any other person claiming to be the next friend of the Releasor, which he now has or may hereafter have under any law in force in Papua New Guinea or otherwise in respect of the injuries so suffered by him save expressly for those actions, suits, claims and demands set out in the Second Schedule and the Releasor does HEREBY COVENANT TO INDEMNIFY AND TO KEEP AT ALL TIMES INDEMNIFIED the Releasee against any actions, suits, claims and demands by any other person, firm or corporation whatsoever and howsoever arising in respect of that part of his claim to which this Deed applies."

The sum of K100,000 was duly paid and, I think I can safely infer, negotiations may have continued about costs and interest, because no proceedings were issued between the parties until 22 August 1989 (approximately two years, four months after the signing of the agreement) when a writ of summons was issued.

The writ recited the claim for damages for the injuries sustained, its payments per the agreement and then claimed entry of damages and interest on those damages.

A defence was filed on 20 October 1989 and an amended statement of claim and amended defence were filed on 24 August 1990 and 26 September 1990 respectively.

The statement of claim recites, inter alia:

"On the 2nd day of April 1987 the Plaintiff and the Motor Vehicles Insurance (PNG) Trust agreed to settle the Plaintiffs claim in regard to general damages only without any admission of liability by either party in the sum of K100,000.00.

The Plaintiff acknowledges receipt of the sum of K100,000.00 and makes no further claim for general damages.

It was an express term of the agreement to settle which is set out in the Deed of Discharge (the Deed) dated the 2nd day of April 1987 and signed by both parties that the Plaintiffs claims for legal costs and interest on general damages pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act (Chapter 52) would be excluded from the settlement by the parties and determined at a later date by the National Court of Justice in Papua New Guinea. The Deed will be referred to as to its terms in full at hearing of this matter.

The Defendant has failed to pay to the Plaintiff interest on general damages or legal costs or any part thereof or reach any agreement in regard to that payment since the 2nd day of April 1987.

Further or alternatively there were express or alternatively implied terms of the said agreement inter alia as follows:

(a) that the Plaintiffs original cause of action remained alive for the purposes of the determination by the National Court of Justice of the issues of interest on damages (or notional damages) and costs;

(b) that the defendant would pay to the Plaintiff such sum as he would have recovered for interest on damages as if his original claim against the Trust had been determined by the Court or alternatively would submit to the jurisdiction of the Court to determine the above issues and to make binding orders against the Defendant;

(c) that the Defendant would pay to the Plaintiff such amount for costs as he would have recovered upon a consent Judgment for K100,000.00 on or about the date of the said agreement together with the costs incurred in recovering interests as aforesaid;

(d) that the Defendant would do all things reasonably necessary to see that the terms of the partial compromise agreement between the parties were carried out and would do nothing to prevent performance of the terms of such agreement.

In breach of each of the express or implied terms referred to in the last preceding paragraph the Defendant has failed and refused and continues to fail and refuse to pay any amount for (or in lieu of) interest or costs and, by letters from its lawyers dated 30th January 1990 and 12th March 1990 has evinced an intention not to be bound by the remainder of the said terms."

The plaintiff then claimed:

· Judgment be entered for the plaintiff for damages for personal injuries in the sum of K100,000.

· Interest on the judgment sum of K100,000 be awarded from the date the cause of action arose, namely, 17 March 1984 pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52).

· Such sum as the court may determine is due for (or in lieu of) interest and costs under the aforesaid agreement or alternatively damages for breach of contract.

· Costs.

The defendant denied that the original cause of action remained alive and denied any liability for interest and costs and said in its defence:

"Further or in the alternative, the Defendant says that in or about February 1987 the parties entered into a written Agreement whereby the Plaintiff agreed, inter alia, to accept K100,000.00 in full settlement of all claims by the Plaintiff against the Defendant for damages arising out of the motor vehicle accident, excluding interest and costs.

The said K100,000.00 was paid by the Defendant to the Plaintiff.

In the premises, there was an accord and satisfaction with respect to the Plaintiffs cause of action under the Motor Vehicles (Third Party Insurance) Act.

The Defendant therefore denies that the Plaintiff is entitled to enter judgment for K100,000.00.

Further, the Defendant says that the Court has no jurisdiction under the Judicial Proceedings (Interest on Debts and Damages) Act to award interest to the Plaintiff."

In submission to the Court the defendant says "the plaintiff is not entitled to have judgment entered for K100,000.00". Once a claim has been settled that cause of action has been discharged by the settlement: see Caltex (Overseas) Ltd v Dent [1978] PNGLR 411 and Green v Rozen [1955] 2 All ER 797. The court only has jurisdiction to award interest on the judgment — it does not have jurisdiction to award interest on moneys owing if no judgment is entered. Accordingly, the defendant submits that the court has no jurisdiction to award interest to a plaintiff as no judgment has been entered, and since no judgment can be entered for the plaintiff the Court does not have any jurisdiction to order a judgment for interest, it can only order interest on a sum for which the judgment has been given.

The defendant further argues that the legislation, the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52), s 1, has vested power in a court to order interest only on a sum for which a judgment is given. The Act provides:

"... in proceedings in a court for the recovery of debt or damages the court may order that there be included in a sum for which judgment is given interest, at such rate as it thinks proper, on a whole or part of the debt or damages. ..."

It is argued in this case since there was an agreement to settle on the terms I have recited above that the judgment cannot be entered. Hence, since judgment cannot be entered, the Court cannot order interest in reliance on the Act.

This submission concerning the non-admissibility and lack of jurisdiction appeared to come as a surprise to counsel for the plaintiff as he stated that this was the first time these issues had become clear to him after a period of several years negotiations.

On the question whether judgment can be entered or not counsel for the plaintiff refers to O 12 of the National Court Rules. Order 12, r 1, permits a court "at any stage of any proceedings, on the application of any party [to] direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process".

There is also a provision in O 12, r 3(4) which permits a court to order that a judgment or order take effect at a date earlier or later than the date fixed in the rules.

From the facts before me it is clear that the sum of K100,000 has been agreed and paid in full settlement of the general damages arising from the injuries inflicted on the plaintiff. It was made without admission of liability but the fact that payment was made was indicative that the defendant considered he was bound by the statutory provisions of the Motor Vehicles (Third Party) Insurance Act (Ch No 295), s 54.

Counsel for the defendant says, once the matter is settled by the payment of those general damages that is the end of the cause of action and the Court no longer has any jurisdiction. The written terms of the agreement recited above settle the whole matter, the defendant having paid the K100,000 has brought an end to the cause of action. The plaintiff cannot now claim judgment and relies on the decision of the National Court in Caltex (Overseas) Ltd v Dent.

In that case the plaintiffs had brought an action to recover K1,434 being two amounts of debt. A writ was issued and a defence filed. The action was entered for trial. Before coming to trial certain negotiations were entered into and a settlement was reached as to the debt but not as to the question of costs. It was agreed to avoid delay and to save costs that the principal sum would be paid to the plaintiff. The plaintiffs solicitor then asked for the entry of a judgment for the sum agreed and costs. The court decided that the rules did not provide for such a situation and referred to the rules then in force. It relied heavily on the case of Green v Rozen and cited the headnote to that decision.

Green v Rozen related to proceedings that had commenced for recovery of a debt which was settled at the date of hearing. The court records showed that it was: "By consent, all proceedings stayed on terms indorsed on briefs. Liberty to either side to apply." The defendant failed to honour part of the agreement and the plaintiff asked for entry of judgment of that part plus an order for costs. The learned judge is cited in the headnote as holding that: "The application must be refused because, the Court having made no order in the action, the agreement compromising the action between the parties completely superseded the original cause of action and the court had no further jurisdiction in respect of that cause of action."

With respect I think that it is important to consider the judgment in Green v Rozen as a whole and not rely solely on the headnote.

Slade J noted that the action was commenced and on the date of hearing he (he was presiding judge on that day also) was informed of settlement by consent — there were no admissions of liability, no judgment was entered. It is recorded that "all proceedings stayed on terms indorsed on briefs...". The terms provided for payment by instalments, costs and other matters. The instalments were not paid and when the matter again came before Slade J he noted (at 799):

"There are various ways in which an action can be disposed of when terms of settlement are arrived at when the action comes on for trial or in the course of the hearing."

He then gives five methods but adds these are not exhaustive. There are:

(1) To have the terms of the compromise made a rule of Court (provided this is a term of the compromise) and to give judgment for the total amount agreed to be coupled with a stay of execution so long as the instalments are paid;

(2) To secure an order of the court by consent that the defendant and, possibly the plaintiff do certain things;

(3) To have the action stayed by consent on terms scheduled which terms cannot be enforced by an application to commit or attach but by injunction or specific performance (a Tomlin order);

(4) To have an order from the court staying all further proceedings on terms agreed;

Fifthly — And this was the situation in Green v Rozen — there is no order of the court at all, the court is just informed that there has been a settlement and the terms.

In this fifth situation, Slade J (at 801) held that there was a new agreement between the parties which superseded the original cause of action and "if the terms of the new agreement are not complied with, then the injured party must seek his remedy on the new agreement".

It will be noted that Green v Rozen, upon which the Caltex (Overseas) Ltd v Dent decision was based, was limited to compromise of actions already commenced and settled after proceedings had issued. The court may not have jurisdiction on the original proceedings but it clearly does on, what Slade J called, "the new agreement".

I consider Caltex (Overseas) Ltd v Dent must be distinguished from the situation before me which is an action on an agreement which provides that matters "shall be referred to the National Court of Justice for final determination". This is not a compromise after proceedings have been initiated. It is not even a "new agreement" compromising an action after proceedings have started.

I have also considered the English case of Cohen v Snelling [1943] 2 All ER 577 dealing with an action on an agreement to settle a claim for damages arising out of an accident. It is not on all fours with the case before me but it is persuasive as it is indicative of the English courts’ attitudes to agreements to settle claims.

A man and child were killed and injured respectively in a "running down" accident. The widow/mother claimed, through her solicitors against the insurers of the vehicle. The insurance company had admitted liability and agreed to pay damages but subsequently pleaded the Statute of Limitations when a writ was issued.

The plaintiffs solicitors had issued proceedings in the name of the administratrix of the deceased person killed in a motor vehicle accident but subsequently withdrew the action because the letters of administration had not been granted although they had recited this in the writ. Withdrawal was for this technical reason only. When they issued a second writ after a grant of administration had been obtained it was outside the period of limitation set by the Fatal Accidents Act (1846) (UK) and when the matter came on for hearing the defendant/insurance company pleaded the limitation period and denied liability on this basis. The evidence showed that they had, prior to that defence, been negotiating on a "basis of admission of liability".

Scott LJ stated (at 578):

"The plain meaning of that agreement was that liability in damages to the appellant ... was once and for all definitely accepted by both the respondent and his insurers; and both of them were thereafter precluded from putting forward any defence whatever which would impeach that liability. It was just as much a contract not to plead s 3 of the Act, as if that undertaking had been put in words; [... and] that the insurance society should instruct their solicitor to take the action they did and cause s 3 of the 1846 Act to be pleaded shocks me more than I can say. The continuing endeavour at the trial to evade liability, whilst calling no witness to challenge the solicitor’s evidence, makes their conduct worse."

The court considered this an actionable agreement between the parties.

In Tomlin v Standard Telephone and Cables Ltd [1969] 3 All ER 201, solicitors for an injured employee and solicitors for his employers insurance company had come to an arrangement that liability for injury would be accepted on a 50 per cent basis. This was referred to throughout correspondence between the two solicitors. In subsequent proceedings it was submitted that the agreement, referred to in letters headed "without prejudice" was not a binding agreement at all. After reviewing the facts Danckwerts LJ said (at 204):

"I come to the conclusion that the proper construction is that there was a definite and binding agreement on a 50/50 basis and that, although certain negotiations were entered into for the purpose of trying to agree the amount of the damages, the agreement as to the 50/50 basis stands and the plaintiff is entitled to hold onto that agreement which was reached."

It is clear, in my view, from the case law that a distinction arises between an agreement reached before the cause is instituted and an agreement to settle reached in the course of a case that has already been set down for trial or where trial has commenced which is not the subject of an order by the Court.

I suggested to counsel for the defendant that the defendant having signed an agreement made at arms length which specifically recited that certain matters "shall be referred to the National Court for final determination would now be estopped from saying that the National Court had no jurisdiction. Ms Thompson, who had researched the issues in a most thorough and competent manner, said that, despite the contract, jurisdiction per se could not be conferred on the court and referred me to Dutton v Sneyd Bycars Co Ltd [1920] 1 KB 414 and President of India v La Pintada Cia Navegacion SA [1984] 2 All ER 773, a most interesting and pertinent case.

Dutton deals with the claim for workers compensation for a worker injured by a disease that was not a scheduled industrial disease under the Workmen’s Compensation Act 1906 (UK). Although it was not a scheduled industrial disease payments had been made. The matter went to court. The case did not deal with voluntarily conferring of jurisdiction by agreement upon a court but with the issue of estoppel by conduct, viz, the previous payment and for that reason I do not find it persuasive. Of relevance is the other case President of India v La Pintada Cia Navegacion SA. A dispute arose in May 1977 concerning a voyage charter dated January 1975 between the vessel owner and the sub-charterer. After long negotiations and preliminary refusal the owners agreed upon a settlement amount which both parties acknowledged represented the principal due for freight and demurrage in January 1981. The contract had an arbitration clause and this agreement was reached prior to arbitration. The agreed principal was paid and the matter went to arbitration on the question of interest and costs. The umpire ruled in May 1982 that compound interest was awarded for various periods between 1975 to the date of the award. The sub-charterer appealed and the court in the first instance upheld the arbitrator’s authority and his award. This decision was appealed to the House of Lords.

Lord Brandon of Oakbrook considered the case involved a wider question of what remedies the House of Lords should hold, at that stage of English legal history, were available to a creditor for delay in payment of the debt.

It is not clear to me in reading the judgments and the headnote whether the acceptance of the settlement amounts was reduced to an agreement which included an arbitration provision or as, is more likely, the arbitration was in pursuance of the charter party of 1975. I consider the distinction an important one when applying the President of India case to the situation before me.

Lord Roskill succinctly (at 775-776) sets out the history and some case law on the matter and, clearly, the legislation binding on the English situation is decisive.

Lord Brandon reviews the law. He says (at 778):

"First, the area of the common law. It had been decided by your Lordships’ House in London Chatham and Dover Rly Co v South Eastern Rly Co [1893] UKLawRpAC 41; [1893] AC 429 that at common law, in the absence of any agreement or statutory provisions for the payment of interest, a court had no power to award interest, simple or compound, by way of damages for the detention (ie the late payment) of a debt. That decision was regarded as applying to any form of damages, and it was not until long afterwards, in cases to which I shall refer later, that the question whether it applied to special, as well as general, damages came to be considered."

He then refers to admiralty law (which does not apply here) equity and statutory law. The statute law is, obviously, English statute law but it is pertinent to note that the wording of the legislation quoted, is in very similar terms to our Judicial Proceedings (Interest on Debts and Damages) Act. Both provisions vest a discretionary power to award interest on a sum for which judgment is given. The English legislation requires "proceedings tried in any Court", our legislation refers to "any proceedings".

Much emphasis in the judgment is on powers to award compound interest and interest on interest neither of which arises here. Of relevance is the interpretation of the common law which notes the need to have either an agreement or an enabling statute.

In the case before me there is an agreement which categorically states that matters shall be referred to the National Court. In a preliminary matter on the plaintiffs right to bring evidence about the contract Ms Thompson submitted that the law was "an agreement which spoke for itself" and I upheld this submission following Prenn v Simmonds [1971] 3 All ER 237; the defendant cannot rely on that rule in one instance before this Court and then say the same court has no jurisdiction when the clear words of the agreement made at arms length by two legally advised persons clearly say they shall refer the matter to the National Court.

I consider the defendant has by its own agreement conferred this jurisdiction and it is now estopped from denying that jurisdiction. On the facts of this agreement I distinguish the ratio in President of India v La Pintada Cia. I do not go as far as Scott J in Cohen v Snelling and speak of this argument in the terms of censure he did but I find it puzzling that an insurance corporation having voluntarily agreed to refer the matter should now say the Court has no jurisdiction.

Having decided I have jurisdiction what do I do with it? The common law has made the distinction between interest which may be awarded following agreement between parties and those on settlement in course of trial where the plaintiff tries to rely on the original pleadings (Caltex (Overseas) Ltd v Dent). The statute law in Papua New Guinea takes precedence over common law by virtue of Sch 2.2 of the Constitution and I agree with Ms Thompson that it empowers the Court to award interest on judgments only.

This appears then to bring us to an impasse and to the powers in the Court under the rules referred to by counsel for the plaintiff.

I note in the agreement and throughout the pleadings in this case that the defendant has continued to deny liability for any damages at all to the plaintiff. Even after making payment and by its defence it has continued to deny liability. It was always open to the plaintiff therefore to bring the defendant before the court to have liability determined and quantum decided. If it did so then the Court would have powers vested by statute to award interest on the damages.

The defendant continues to deny liability despite payment of the damages in the sum of K100,000 having been made some years ago. The agreement’s clear meaning is that the parties could not agree on interest and decided to ask the court to decide. If liability had also been referred the parties would have been involved in the additional expense of calling witnesses and a hearing.

I do not consider it fair and equitable that a plaintiff entering into the agreement he did, thereby saving the parties costs and expenses and knowingly conferring jurisdiction on this Court, should not be left without a remedy.

I have distinguished the case of President of India v La Pintada Cia Navegacion SA on the facts and I do so further by noting that this is a situation of interpretation of Papua New Guinea statute and not of common law which forms part of our underlying law.

Counsel have referred me to O 12 of the National Court Rules (see above). Counsel for the plaintiff (who as I have already indicated seemed unaware of the legal stance the defendant took) sought to have judgment entered for K100,000 and interest thereon relying upon O 12.

Order 12, r 1 permits a court "at any stage of any proceedings, on the application of any party, [to] direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process". There is also a provision in O 12, r 3(4), which permits a court to order that a judgment or order take effect at a date earlier or later than the date fixed in the rules.

I have not been referred to any case law on this provision in Papua New Guinea nor have I been able to find any myself.

There are English and a New South Wales case; they are not on all fours with this case. The New South Wales courts considered, in R W Miller & Co Pty Ltd v The Ship "Patris" [1975] 1 NSWLR 704, that interest runs from the date of the entry of the final judgment and not before. They distinguished the English case law while acknowledging that in ordinary circumstances interest should be awarded dependent on the facts. I note distinctions in admiralty for interest on different accounts (demurrage or repairs to a ship) referred to in President of India v La Pintada. The English case of Parsons v Mather & Platt Ltd [1977] 2 All ER 715 reviews the case law and relates, on its facts, to legislation which provides differently from Papua New Guinean statute. However I consider the statement (at 719) of Ackner J pertinent:

"The view which I have expressed above seems moreover to accord with the commonsense of the matter. ‘The giving of interest is not by way of penalty, but is merely doing the plaintiff full justice, by having his debt with all the advantages properly belonging to it. It is in truth a compensation for delay’ (per Pollock CB) in Newton v Grand Junction Railway Co [1846] EngR 1049; (1846) 16 M & W 139 at 144."

The judgment also notes Borthwick v Elderslie Steamship Co (No 2) Ltd [1905] UKLawRpKQB 130; [1905] 2 KB 516 at 521, where the court acknowledged its power to ante-date judgments (on an appeal) but decided on the facts not to do so. Of relevance is the attitude adopted by the court in Belgian Grain and Produce Co Ltd v Cox & Co (France) Ltd [1919] WN 317 distinguishing on the facts Borthwick v Elderslie Steamship Co (No 2) the decision delivered by Bankes LJ stated:

"I do not think that we ought to grant this application. If we were to accede to it there would be few cases which we could refuse. Borthwick v Elderslie Steamship Co shows that the court has jurisdiction to make the order, but that it ought to be exercised with great caution, which indicates that there must be something exceptional in the facts to justify the making of the order. I do not think that there is anything exceptional in the facts of this case, and the order ought not to be made."

Hence the case law in other jurisdictions acknowledges the court’s powers to ante-date but stresses the need to exercise great caution, there is an attitude against a "flood-gate" situation arising if a court ante-dates orders.

There must be something exceptional on the facts. I strongly agree with respect, that ante or post-dating must be done in exceptional circumstances dependent solely on the facts.

I consider the facts before me — the denial of liability whilst agreeing quantum and freely entering into an agreement to vest jurisdiction are unusual, and I trust after this decision unlikely to recur. In these circumstances, I have decided to enter judgment for the sum of damages; I would not feel empowered to do so if liability had been admitted and damages accepted on the basis of such an admission.

The plaintiff accepted his damages by agreement dated 2 April 1987, he was estopped from arguing the question of quantum from that time forward. I ante-date the judgment to 2 April 1987.

Both counsel conceded in argument that if the Court finds it has jurisdiction then the relevant rate of interest is 8 per cent as per the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52).

I award interest at 8 per cent from the date of the accident 17 March 1984 to 2 April 1987.

Judgment entered.

Interest awarded on judgment.

_____________

Lawyer for the plaintiff: Warner Shand.
Lawyer for the defendant: Young & Williams.