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Duma v Meier [2007] PGSC 34; SC898 (2 November 2007)

SC898

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 36 OF 2006

BETWEEN

WILLIAM DUMA
Appellant

AND

ERIC MEIER & NEIL MATHESON
AS EXECUTORS OF THE ESTATE OF THE DECEASED,
PETER GOODENOUGH
Respondent

Waigani: Injia, DCJ, Batari & Gabi, JJ
2007: 2 November

PRACTICE AND PROCEDURE – Proceedings commenced by way of Originating Summons – No requirement to file defence – Affidavit evidence to disclose triable issues –Notice of Motion in identical terms as Originating Summons – Abuse of process.

Cases Cited

Bruce Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112
Chief Collector of Taxes v T. A. Field Pty Ltd [1975] PNGLR 144
Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 295
Dep International Private Ltd v Ambogo Sawmill Pty Ltd [1987] PNGLR 117
Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301
John Momis & Others v Attorney-General & Others (2000) N1951
Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299

Counsel

Simon Ketan, for the Appellant
Ian Shepherd, for the Respondents

DECISION

2 November, 2007

1 BY THE COURT: Introduction: This is an appeal against the decision of His Honour, David J., given on 30 March 2006 whereby His Honour dismissed both applications, the appellant’s application for summary judgment and the respondents’ application for dismissal of the proceedings, and ordered the parties to consider pursuing the proceedings on pleadings pursuant to O 4, r 35 of the National Court Rules.

2 The application for summary judgment was refused because the validity of the late Peter Goodenough’s letter dated 19 September 2003 was queried by the Executors of the Estate and that it was an abuse of process.

Background

3 William Duma, the appellant, was until July 2002, a lawyer with Blake Dawson Waldron Lawyers, Port Moresby. The late Peter Goodenough, the deceased, commenced proceedings against the State in proceedings WS No. 524 of 1997 claiming damages for loss of property in Bougainville. On 15 August 2003, the Supreme Court awarded the sum of K21, 191,937.00 plus interest at 8 percent from the date of the issue of Writ to the date of judgment, which amounts to K31, 703,200.00, to the deceased.

4 The appellant alleges that the deceased consulted him on an informal basis with regards to his claim against the State. On 19 September 2003, the deceased undertook to pay the appellant 10 percent of any judgment sum he would receive from his claim for his assistance in pursuing the claim. The letter of 19 September 2003 is in these terms:

"19th September 2003

P O Box 7367, CAIRNS

QLD

Fax 61 740 41 21 68

Mr William Duma

P O Box 850

Port Moresby

National Capital District

Dear Sir

GOODENOUGH – V – THE STATE

I Peter Goodenough wish to acknowledge your kind financial and legal assistance in pursuing my claim for damages against the State for destruction of my business and property in Bougainville.

In return for your continuing assistance in providing legal advice and financial assistance, I hereby unconditionally undertake and agree to pay you 10 percent of whatever final judgement I may receive in my Court case against the State.

Yours faithfully

PETER GOODENOUGH"

5 Ten percent (10%) of the final judgment sum is K3, 170,320.00 and the appellant claims that he is entitled to that amount. The late Peter Goodenough died on 14 November 2004.

6 On 5 May 2005, a public notice appeared in the Post Courier requesting creditors to send particulars of their claim upon the Estate to Blake Dawson Waldron, agents for Messrs. Graham Isles. On 20 May 2005, the appellant submitted details of his claim to Blake Dawson Waldron. On 8 June 2005, the National Court granted a Reseal of the Grant of Probate, which was initially obtained in Queensland, Australia on 25 February 2005. Since April 2005, a number of correspondences have passed between the appellant and lawyers for the Executors of the Estate. In addition, discussions and meetings have taken place between the appellant and the lawyers.

7 On 26 August 2005, the appellant commenced proceedings OS No. 824 of 2005, which was later amended by an Amended Originating Summons filed on 12 September 2005. The appellant claims the sum of K3, 170,320.00 against the Estate of the late Peter Goodenough. On 25 October 2005, the appellant filed a Notice of Motion seeking summary judgment on the basis that the respondents have not filed a defence to the claim. Paragraphs 1, 2 and 3 of the Notice of Motion were in identical terms as the Originating Summons. In other words, the appellant was seeking substantive orders in the application. On 8 March 2006, both applications were heard together and refused on 30 March 2006. His Honour ordered that "the parties are to consider pursuing the proceedings on pleadings pursuant to Order 4 Rule 35."

Grounds of Appeal

8 The grounds of appeal and the orders sought are:

"GROUNDS OF APPEAL

1. His Honour erred in law and in fact in dismissing the application for Summary Judgment when there was undisputed evidence of the facts on which the claim was based and there was evidence given by the (Plaintiff) Appellant that in his belief the (Defendants) Respondents had no defence to the claim;
   
2. His Honour erred in law and in fact in dismissing the Appellant’s application for Summary Judgment saying that the application or the case was not a proper or clear case for Summary Judgment when:-
   
   • (a) the application was properly made pursuant to Order 12, Rule 38 of the National Court Rules;
     
   • (b) there was undisputed evidence as to the facts on which the claim was made and based;
   • (c) there was as a matter of fact and law no Defence to the Appellant’s claim;
     
   • (d) the facts on which the Appellant’s claim was based were not contested by the Respondents;
     
   • (e) the Appellant’s claim was acknowledged by the Respondents;
     
   • (f) no reasons were provided for it or given.
     
3. His Honour erred in law and in fact in dismissing the application for Summary Judgment when the Respondents did not raise any Defence against the Appellant’s claim and merely said (which was not true) that the estate was not solvent and its administration was incomplete;
   
4. His Honour erred in law and in fact in dismissing the Appellant’s Application for Summary Judgment when he failed to consider undisputed evidence in respect of the following matters:
   
   • (a) that the Appellant’s claim was restricted to the monies payable from the Judgment Sum of K31,703,200.00 against the State, K10 Million of which was paid and held in the National Court Trust Account;
     
   • (b) that the Judgment Sum of K31,703,200.00 was part of the general residuary estate of the deceased and was therefore uncommitted by the Deceased’s Will;
     
   • (c) that the estate was solvent and could be distributed pursuant to Section 70(2) of the Wills, Probate and Administration Act;
     
   • (d) that the deceased’s Will accommodates all claims and interests of beneficiaries including debts such as the Appellant’s claim;
     
   • (e) the administration of the estate is an ongoing process and involves the determination of claims as and when they are lodged and the administration is not dependent upon the resolution or finalization of the dispute between the estate and the Internal Revenue Commission or the recovery of the Judgment Debt; and
     
   • (f) the Appellant had obtained an order restraining the use of K3,170,320.00 until his claim has been determined and there was therefore, money available to meet his claim which monies (K3,170,320.00) was not part of the main estate covered by the deceased’s Will but part of the residuary.
     
5. His Honour erred in law and in fact in dismissing the Appellant’s Application for Summary Judgment saying it was an abuse of process when he did not provide the reasons for it thereby making the Decision bad and amounting to a miscarriage of justice.
   
6. His Honour erred in law and in fact in dismissing the Appellant’s Application for Summary Judgment when he took into account matters not in evidence before the Court and allowed himself to be influenced by these matters in his Decision.
   
7. His Honour erred in law and in fact in dismissing the Appellant’s Application for Summary Judgment when he, in the proper administration of justice, failed in his duty when he did not provide any written reasons (a written Judgment or a published Decision or reasons) of his Decision or Judgment resulting in a denial of natural justice and giving rise to the conclusion that there were no good reasons for the decision rendering the Decision of the Court bad, null and void.
   

ORDERS SOUGHT

8. The Appellant seeks the following orders:-
   
   • (1) That the Appeal be upheld.
     
   • (2) That the National Courts Order be quashed.
     
   • (3) That pursuant to Section 16(c) of the Supreme Court Act, Summary Judgment for K3,170,320.00 to the Appellant by the Registrar of the Court being the monies current preserved in the hands of the Registrar of the Court.
     
   • (4) That the Respondents pay the Appellant’s costs of the Appeal."
     

9 These grounds fall under 3 categories. Grounds 1, 2, 3 and 4 will be dealt with together as they relate to the principles pertaining to summary judgment. The appellant’s argument is that the Trial Judge erred in fact and in law in dismissing the application for summary judgment. Grounds 5 and 7 concern the reasons for dismissal of the application for summary judgment. Ground 6 relates to considerations influencing His Honour’s decision.

Summary Judgment

10 The application for summary judgment was brought pursuant to O.12, r.38 of the National Court Rules. The principles relating to applications for summary judgment are well settled in this jurisdiction. Summary judgment is a discretionary power and may be granted if there is evidence of facts on which the claim is based and evidence is given by some responsible person that in his belief the defendant has no defence to the claim or part of the claim (see Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301 and Bruce Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112). The discretion conferred on the Court should be exercised in a clear case and with considerable care. Summary judgment should be granted only where there is no serious triable issue of fact or law. If there is no dispute as to fact and there is clear admissions of the claim or part of the claim then judgment must be entered for the plaintiff (see Chief Collector of Taxes v T.A. Field Pty Ltd [1975] PNGLR 144; Dep International Private Ltd v Ambogo Sawmill Pty Ltd [1987] PNGLR 117; Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299; and Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 295).

11 Counsel for the appellant argued that the respondents’ have no defence to the claim and summary judgment ought to have been granted. Were the respondents required to file a defence? If not, do the affidavits of Messrs William Duma and Ian Shepherd raise triable issues of fact and law?

12 There is no requirement for defence to be filed in proceedings commenced by Originating Summons unless directed or ordered by the Court. The Court may for purposes of "just, quick and cheap" disposal of proceedings direct that issues be defined by pleading or order that proceedings continue on pleadings by filing statement of claim or other pleadings (see Order 4, Rules 31 & 35 of the National Court Rules). Unless directed or ordered by the Court, there are no pleadings in proceedings commenced by way of Originating Summons.

13 We agree with both counsels that there is no prohibition on an application for summary judgment in proceedings commenced by way of Originating Summons (see Division 4 of Order 12 of the National Court Rules). In this case the application for summary judgment was properly before the Court.

14 Although the respondents had not filed a defence, the affidavit evidence before the Court clearly indicates that there were serious triable issues. It is clear that the appellant’s claim was in dispute (see pages 8 to 92, 97 to 100 and 129 to 135 of the Appeal Book). The issues disclosed by the affidavit evidence include the following matters: (i) whether the appellant was briefed in his personal capacity or in his capacity as a partner in Blake Dawson Waldron Lawyers; (ii) whether the appellant could provide legal services as a lawyer; (iii) who prepared the letter dated 19 September 2003, the circumstances in which it was signed and the meaning of the last sentence where the deceased used the words receive and judgment; and (iv) that the administration of the estate could not be completed due to the dispute between the Estate and IRC with respect to the unpaid income tax assessments and the question of solvency of the estate. These matters were considered by the Trial Judge. He said:

"As to the application for summary judgement by the plaintiff, the evidence before the court is that the validity of the deceased’s letter has been queried by the first defendants. Questions have been asked as to the author of the deceased’s letter; in what circumstances it was signed and the meaning of the words received and judgement used in the last paragraph of the deceased’s letter.

I concede that this is not a clear case for summary judgement to be entered. In addition to that I also agree with Mr Shepherd’s submissions that the plaintiff’s application is an abuse of process."

15 Furthermore, at the time of the application the estate’s debt to IRC had not been determined or satisfied and it was misconceived and irregular for the appellant to seek payment in full in priority to IRC. We agree with the Trial Judge that this is not a clear case for summary judgment.

16 We dismiss grounds 1, 2, 3 and 4.

Reasons

17 Grounds 5 and 7 raise the argument that the Trial Judge gave no reasons for dismissal of the appellant’s application for summary judgment. His Honour’s reasons appear from pages 140 to 144 of the Appeal Books. The Trial Judge was of the view that the appellant’s application was an abuse of process.

18 Paragraphs 1, 2 and 3 of the Notice of Motion are in identical terms as the Amended Originating Summons (see pages 93 to 96 and 125 to 127 of the Appeal Book). The appellant was seeking substantive orders in an interlocutory application. In John Momis & Others v Attorney-General & Others (2000) N1951, the orders sought by the applicants in their Notice of Motion were "in exactly the same terms as the originating summons." Kapi DCJ (as he then was) said:

"Once a party chooses the procedure by way of originating summons, the matter should proceed to hearing in accordance with the Rules. I suspect that these orders are sought in the notice of motion to determine the issues raised in the originating summons in a speedy manner. In my opinion, this is an abuse of the process of the court and I would dismiss the balance of the motion on this basis."

19 The application was an abuse of process. We agree with counsel for the respondents that there is no miscarriage of justice.

20 We dismiss these grounds as well.

Irrelevant considerations

21 The argument in ground 6 is that the Trial Judge erred in taking into account matters not in evidence. The transcript of reasons clearly shows that the matters taken into account by the Trial Judge were in evidence before him.

22 We dismiss this ground of appeal.

23 We make the following orders:

1. The appeal is dismissed and the ruling of the Trial Judge is

affirmed;

2. The substantive matter is remitted to the National Court for

hearing;

3. The parties file pleadings in accordance with Order 4 Rule 35 of

the National Court Rules.

____________________________________________________

Ketan Lawyers: Lawyers for the Appellant
Blake Dawson Waldron: Lawyers for the Respondents