Cragnolini v Constantinou [2023] PGSC 71; SC2421
Practice and procedure – multiplicity of proceedings – whether abuse of process – whether frivolous or vexatious – National Court Rules Order 12 rule 40(1) – deceased estates – whether beneficiary may commence proceeding against administrator – breach of fiduciary duty – Trustees and Executors Act, s 46 – seeking advice of the court – management of trust property – appeal upheld.
Twinza Oil (PNG) Limited v Manau [2023] (unreported, SC, 9 May 2023)
Practice and procedure – – appeal – application for leave to withdraw appeal – Supreme Court Act and Rules – form of appeal - principles.
Frontier Holdings Limited v Lohoro [2022] PGSC 135; SC2334
Objection to competency – raised on substantive appeal – no notice of objection – abuse of process – objection dismissed – natural justice – right to be heard – no opportunity to adduce evidence in National Court – substantive appeal upheld
Application by Justice Foundation for Porgera Limited [2022] PGSC 63; SC2257
Practice and procedure – objection to competency – application under Constitution s 18(1) – whether application signed by application – Supreme Court Rules 2012, Order 4, rules 1 and 3, Form 1. Application incompetent and proceedings dismissed.
L&A Construction Ltd v L&A ILB (PNG) Ltd [2022] PGSC 38; SC2200
Company law – presumption of insolvency – statutory demand – where petitioning creditor substituted – application to stay or dismiss proceedings – inappropriate case for summary disposal – discretion miscarried – appeal upheld.
Aus PNG Research & Resources IMPEX Limited v Bank of PNG (unreported, SC, 31 March 2022)
Practice and procedure - 0bjection to competency – appeal against interlocutory and final judgments – requirement of leave to appeal against interlocutory judgment – appeal against interlocutory judgment incompetent.
Nivani Ltd v Kimbe Nivani Properties Ltd [2021] PGSC 103; SC2185
Civil appeal – practice and procedure – discovery – whether obligation to give discovery limited by statutory document retention periods or availability under statute to shareholders of rights to obtain corporate governance and financial records – where obligation to give discovery delineated by the issues on the pleadings – where apparent from affidavits and other evidence that defendants had misconceived the nature of that obligation – where primary judge had made order for particular discovery against defendants – Order 9, Rule 2 and Rule 7, National Court Rules – whether any error of principle in order – principles relating to grant of leave to appeal in relation to exercise of a judicial discretion with respect to a matter of practice and procedure.
Independent State of Papua New Guinea v Maladina [2021] PGSC 98; SC2180
Judgments and orders – appeal against decision of National Court that was not opposed – grounds of appeal based on points of law not raised in National Court – frivolous and misconceived appeal. Costs – appropriate scale of costs in circumstances where an appeal is frivolous and misconceived – solicitor-client costs.
In the Matter of the Companies Act 1997 and in the Matter of Oil Search Limited (Unnumbered, Tamade AJ, 9 December 2021)
Application under Companies Act s 250(1) for approval of scheme of arrangement – second court hearing – shareholders meeting – - considerations – adequate information -despatch of scheme booklet - scheme approved by majority exceeding 90% - regulatory compliance – Capital Market Act 2015 – Independent Consumer and Competition Commission Act 2002 – court approval.
South Seas Tuna Corporation Ltd v Palaso [2021] PGNC 408; N9290
Declarations – practice and procedure - ss 23 & 19 Goods & Services Tax Act 2003 – whether supply of tuna subject to tax – assessment - Commissioner General - whether amount chargeable is at the rate of zero percent pursuant to s 23(2)(c) and or s 19(1)(a) of GST Act - whether claim abuse of process or breach provisions of the GST Act – interests and rights of the plaintiff – underlying purpose of the proceeding – whether any utility in the relief sought – boundaries and limitations on challenges and objections under Part XI of the GST Act.
In the Matter of the Companies Act 1997 and in the Matter of Oil Search Limited (Unnumbered, Tamade AJ, 11 November 2021)
Application under Companies Act s 250(1) for approval of scheme of arrangement – first court hearing – summons for directions – convening a shareholders meeting – requisite majority approving scheme 75% – notice to shareholders – disclosure – scheme booklet – independent expert report - interlocutory orders - considerations – scheme process.
Cragnolini v Nosrida Ltd [2021] PGSC 68; SC2135
Supreme Court practice and procedure – application for stay – exercise of discretion – principles for exercise of discretion - Supreme Court Act, Section 19 – application for restraining order pending appeal – Supreme Court Act, Section 5(1)(b), Supreme Court Rules, Order 3 Rule 2(b).
Aus PNG Research & Resources Impex Ltd v Bakani [2021] PGSC 59; SC2133
Supreme Court practice and procedure – application for restraining order pending appeal – jurisdictional basis for seeking order to be cited in application - Supreme Court Act, Section 5(1)(b), Order 13 Rule 15 Supreme Court Rules – application for stay – exercise of discretion – principles for exercise of discretion - Supreme Court Act, Section 19.
AUS-PNG Research & Research Impex Ltd v Bakani [2021] PGNC 152; N8879
Practice & procedure – originating summons – notice of motion – statement of charge – affidavit in support – contempt of court – application for – National Court Rules - Order 12 Rule 7 (2) - stay of proceedings until payment costs outstanding – alternatively frivolous and vexatious proceedings – dismissal - Order 12 Rule 40 – motion granted – proceedings dismissed – costs follow event.
Tongayu v Oil Search Ltd [2021] PGSC 58; SC2131
Civil appeal – objection to competency of appeal – capacity of appellants to file appeal - whether second appellant was subject to Attorney-General Act – whether second appellant’s lawyers required instructions from Attorney-General to appear – whether first appellant had capacity to appeal on behalf of second appellant – whether first appellant could appeal in personal capacity - Securities Commission Act 2015, Attorney-General Act 1989.
Sig No. 1 Ltd v Crown Metal Industries Ltd [2021] PGNC 89; N8790
Breach of contract– whether hearsay evidence was admissible - failure to complete work -oral variation to written contract – rule in Browne v Dunn - parol evidence rule – Jones v Dunkel rule – unexplained failure to call relevant witness - necessity to both plead and prove loss - guarantee for completion of contract work – entitlement to claim under guarantee.
Oil Search Limited v Tongayu [2021] PGNC 22; N8785
Originating summons - declaratory orders to affirm approvals and exemptions granted by the Chairman of the Securities Commission of Papua New Guinea - capital raising – offering purchase of shares both within PNG and offshore – approvals and exemptions pursuant to ss 116 and 138, Capital Market Act 2015 – power of Chairman derived from s 10(2), Securities Commission Act 2015 - whether the Chairman was duly appointed at time – whether proceedings should have been by way of appeal pursuant to s 21(5), Capital Market Act – whether cause of action statute-barred pursuant to s 115, Securities Commission Act 2015 – considerations – exercise of discretion – declarations granted.
OPH Limited v China Railway Construction Engineering (PNG) Limited (Unnumbered, Anis J, 16 February 2021)
Application for security for costs of plaintiff/cross-defendant – National Court Rules – Order 14 Rules 25(1)(b) and 26 – whether shareholder is ‘other person’ to benefit from proceeding – whether cross-claimant suing for itself – burden of proof – want of satisfaction of prerequisites for grant of security.
PNG Air Ltd v Custos Ltd [2021] PGNC 7; N8723
Originating summons – application to set aside Creditor’s Statutory Demand – s. 338(1) – Companies Act 1997 – whether s 337(2)(b) or Form 42 has been duly complied with or filled out – whether the issued Creditor’s Statutory Demand is substantially flawed or whether the omissions or errors therein may be regarded as mere defects – whether the substantive relief should be granted. Practice & procedure – compliance with Form 42 – definition of a creditor – whether a creditor, who intends to wind-up a company under the relevant provisions of the Companies Act 1997 and the Companies Regulation 2015, can mean more than one creditor - whether it also includes an agent or a third party acting for or on behalf of a creditor – whether stated debt or debts in a Creditor’s Statutory Demand may include a debt or debts of more than one creditor.
Young v Hebou Constructions (PNG) Limited (Unnumbered, Kandakasi DCJ, 2 February 2021)
Security for costs – application – nature and effect – ground not clearly pleaded in notice of motion – court’s jurisdiction not properly invoked – plaintiff not ordinarily resident in PNG – onus on applicant – no case made out on the facts – application dismissed with costs. Application for summary disposal of defence – principles – lack of principles of defence – tendency to embarrass – summary determination inappropriate – application dismissed with costs.
Infratech Management Consultants Ltd v State [2020] PGNC 336; N8578
Damages – assessment following interlocutory judgment on liability – admissible and credible evidence of loss - assessment of interest – contractual entitlement.
Barrick (Niugini) Ltd v Nekitel [2020] PGSC 81; SC1996
Supreme Court – practice and procedure - application to extend time to lodge an appeal – s 17 Supreme Court Act, Order 7 Rules 1 and 2 Supreme Court Rules.
Geosite Management Ltd v Kavo [2020] PGNC 223; N8439
Practice & procedure - judgments & orders – application to set aside consent orders – relevant principles – National Court Rules Order 12 Rule 8 - fresh proceedings alleging fraud or misrepresentation or lack of authority – National Court Rules Order 4 Rules 4 & 37.
Nivani Ltd v Kimbe Nivani Properties Ltd [2020] PGSC 143; SC2066
Supreme Court – practice and procedure - application for leave to appeal and application for stay.
Ang v Maraliza Limited [2020] PGNC 81; N8276
Practice and procedure – application for appointment of examiner – taking evidence outside PNG – considerations – National Court Rules – Order 11 Rule 8(a).
Riyong v Shelley [2020] PGNC 85; N8269
Contracts – oral agreement for provision of cash and property for business investment – whether agreement was an enforceable contract – determination of terms of contract – whether cause of action exists for breach of contract. Land – State lease over government land – pleading of fraud against registered proprietor – principle of indefeasibility of title – exception in the case of fraud – whether plaintiff able to prove fraud warranting setting aside defendant’s title.
Derwent Limited v Pakena (Unnumbered, David J, 21 April 2020)
Real property – claim for declaration that contract for sale binding – specific performance – alternative claims for restitution - cross-claim for declaration of rescission – authority to contract.
National Development Bank Ltd v Noka Builders Ltd [2020] PGSC 44; SC1953
Supreme Court - appeal – appeal against dismissal of appellant’s cross-claim for want of prosecution without considering appellant’s application for consolidation - practice and procedure - respondent objects to competency of appeal – principles on objection to competency – objection to competency of appeal dismissed - primary judge made identifiable errors in the exercise of her discretion in not considering whether the alleged delay was intentional, inordinate or inexcusable - not considering the questions of prejudice to either of the parties - not giving sufficient weight to the established principles concerning an application for dismissal for want of prosecution– appeal upheld.
Yambaki Surveys Ltd v Nambawan Super Ltd [2020] PGSC 1; SC1901
Practice and procedure– objection to competency – Supreme Court Rules 2012; Order 7 Rules 9(c) and 10 – objections must raise issues concerning the jurisdiction of the Court or the validity of the appeal.
Alotau Stevedoring & Transport Limited v Consort Express Lines Limited (Unnumbered, Supreme Court, 24 February 2020)
Appeal – summary dismissal of National Court proceedings – failure to comply with orders – want of prosecution – discretionary judgment – no identifiable error – appeal dismissed.
International Finance Co v KK Kingston Ltd [2019] PGSC 82; SC1872
Supreme Court – civil appeal – appeal against a decision of a primary judge which set aside a statutory demand issued under the Companies Act 1997 – statutory demand issued for the payment of debt – debt being the redemption price for shares in a company – statutory demand issued for a specified amount – whether there exists a substantial dispute as to the debt claimed, Companies Act 1997, ss 338(1) and 4(a) – power of the Court is discretionary – whether the decision of the primary judge was unreasonable or plainly unjust – no identifiable error was manifest in the decision – appeal dismissed with costs.
Baleen No 28 Ltd v Allan [2019] PGSC 91; SC1868
Supreme Court – civil appeal – appeal against decision on an assessment of damages and interest – compensation for value of land – compulsory acquisition of land – value of land assessed based on valuation report – value of unimproved land – Land Act, 1996 – sections 12, 14 and 23(1)(a).
Infratech Management Consultants Ltd v Independent State of Papua New Guinea [2019] PGSC 99; SC1862
Supreme Court – civil appeal – assessment of damages following entry of default judgment – claim for contractual interest – interest accruing on unpaid sum – contractual interest distinct from statutory interest - contractual interest accrues on unpaid principal until date of judgment on damages – Judicial Proceedings (Interest on Debts and Damages) Act 2015 – section 4.
Rimbunan Hijau (PNG) Ltd v Enei [2019] PGSC 73; SC1859
Practice and procedure – appeal – slip rule application – principles – Supreme Court Rules Order 11 Rule 32(1) – costs.
Deputy Commissioner of Taxation of Australia v Yii Ann Hii [2019] PGNC 435; N8169
Insolvency Act Chapter 253 – application for debtor’s summons – procedure – must be applied for in substantive proceeding – application refused.
KK Kingston Limited v International Finance Company [2019] PNGNC 365; N8102
Companies Act 1997 – application to set aside statutory demand – principles - whether substantial dispute that debt due and owing – statutory demand set aside.
Lasco Development (15) Limited v ExxonMobil PNG Limited (Unnumbered, Hartshorn J, 19 July 2019)
Application for stay of proceedings pending arbitration – Arbitration Act Chapter 46 – Compensation (Prohibition of Foreign Legal Proceedings) Act 1995 – meaning of terms –“foreign courts” – “compensation claims”.
South Pacific Post Limited v Augerea ( Supreme Court, Kirriwom, Hartshorn & Nablu JJ, unnumbered, 24 June 2019)
Contempt of court – civil contempt – publication of photograph contrary to specific court order – liability of journalist who took photograph and prepared news article – liability of publisher – reckless or careless disregard – proof of guilt – appeal against convictions allowed.
National Superannuation Fund Ltd v Yawenaik Holdings Ltd [2019] PGSC 10; SC1759
Application for leave to bring a slip rule application – principles.
Kimbe Nivani Properties Ltd v Nivani Ltd [2018] PGSC 75; SC1742
Application for leave to appeal - National Court dismissed the applicant’s claims for breaches by the second respondent as director under the Companies Act 1997 as being time barred. Leave granted.
Melanesian Trustee Services Ltd v Tongayu [2018] PGNC 442; N7547
The decisions of the First and Second Respondents to revoke the Appellant’s Capital Market licence, to remove the Appellant as Trustee of the Pacific Balance Fund, and to appoint the Third Respondent as Interim Trustee of the Pacific Balance Fund, are stayed and the Respondents are restrained from implementing those decisions, until the determination of these proceedings or until further order.
National Superannuation Fund Ltd v Yawenaik Holdings Ltd [2018] PGSC 57; SC1709
Appeal – National Court proceedings dismissed – failure of counsel to appear – explanation not reasonable – application to set aside dismissal order – application refused – appeal from refusal to set aside dismissal – failure of lawyer not contumelious – proceedings with substantial merits – miscarriage of discretion – no prejudice to respondents – dismissal order set aside.
Meridian Motors Ltd v Boroko Motors Ltd [2018] PGNC 550; N7699
Commercial lease of part of a property – claim for rent – failure to reinstate premise – assessment of damages.
Infratech Management Consultancy v Independent State of Papua New Guinea [2018] PGNC 293; N7368
Assessment of damages – Breach of Contract- damages that it has suffered and or sustained and what (if any) compensation that it is entitled to receive in damages.
KK Kingston Limited v International Finance Company (Unnumbered, Hartshorn J, 23 August 2018)
Application to set aside statutory demand – Companies Act 1997 ss 338(1) and 4(a) – dispute whether claim due and owing – dispute as to amount claimed – whether redemption properly exercised.
Maladina v State [2018] PGNC 288; N7366
Application for default judgment - liquated sum of K2, 650,000.00 - Order 12 Rule 25 (b) and Order 12 Rule 27 (1) & (2) – National Court Rules - relevant considerations.
Puma Energy PNG Ltd v Paul [2018] PGNC 52; N7114
Interlocutory injunctive orders - restraining the Chief Commissioner of Customs - alleged liability of the plaintiff to pay Goods and Services Tax (GST) on shipments of crude oil - restraining banks from complying with garnishee notices – s 191AA Customs Act.
Nambawan Super Ltd v Independent State of Papua New Guinea [2018] PGNC 96; N7211
Superannuation fund – fund members’ contributions - employers’ contributions – State’s contributions – exit or retirement benefits for fund members – Superannuation (General Provisions) Act, 2000, ss 78 and 79 – Superannuation Regulation 2000, s 7 – State defaulting in paying its contributions towards the fund – default penalty appropriate.
Yii Ann Hii v Deputy Commissioner of Taxation of the Commonwealth of Australia (Unnumbered, Supreme Court, Makail, Kariko & Higgins JJ, 23 February 2018)
Appeal – sequestration order – Insovency Act s 2 – whether debt owed by the debtor to creditor is “property” – no property of the debtor in PNG – application to adduce fresh evidence refused – appeal allowed – order set aside.
Yii Ann Hii v Deputy Commissioner of Taxation of the Commonwealth of Australia [2017] PGSC 29; SC1626
Supreme Court – appeal - application for stay – principles of application for stay – stay refused.
Papua New Guinea Law Society v Cooper [2017] PGSC 10; SC1585
Lawyers Act- application for unrestricted practising certificate made 3 years after restricted practicing certificate expired - whether application is for "renewal" or a fresh application - meaning of "renewal application"- Lawyers Act 1986, ss 39, 40, 41, 44 (1), (2) & (3) - inherent powers to determine appeal on an important point of law.
National Capital District Commission v Yama Security Services Ltd [2017] PGSC 7; SC1575
Constitution ss 59, 169 – whether judges ought to disqualify themselves due to a reasonable apprehension of bias – alleged prior professional association – whether application ought to be heard and determined by full court or by each individual judge the subject of the disqualification application – each application should be considered on the merits and ruled upon by each individual judge.
Re Kimbe Nivani Properties Ltd [2017] PGNC 422; N7696
Application for leave to bring derivative action - minority shareholder of Kimbe Nivani Properties Limited - s 143 Companies Act.
Piokole v Air Niugini Limited (Unnumbered, Kandakasi J, 21 April 2017)
Contract law – employment contract - essential elements of a contract – void and
unenforceable contract - employment under industry based agreement – history and importance of trade union movements – employee’s right to be a member of a union – collective bargaining and collective agreement – employer precluded from approaching employees who are members of a union individually and separately except only through their union - Correct way to legally depart from or terminate an industry based collective agreement – ss 47 and 48(2) of the Constitution - Industrial Organisations Act and Industrial Relations Act.
Deputy Commissioner of Taxation of the Commonwealth of Australia v Yii Ann Hii [2016] PGNC 432; N7379
Application for an extension of time for filing a notice of motion to set aside orders for the registration of a foreign judgment – Order 1 Rule 15 and Order 13 Rule 74 National Court Rules considered.
Tzen Niugini Ltd v Dengo [2016] PGSC 30; SC1512
Supreme Court – practice and procedure – pppeal against dismissal of contempt proceedings – frivolous and vexatious – failure to disclose reasonable cause of action – abuse of process – sufficiency of pleadings – National Court Rules – Order 12, rule 40 - breach of court order – order restraining interference with project and operations of appellant – National Court Rules – Order 14.
Coecon Ltd (Receiver and Manager Appointed) v Westpac Bank PNG Ltd [2015] PGNC 242; N6127
Contract – allegations of breach of contract by defendant – plaintiff claims defendant breached banker/client contractual relationship – plaintiff alleges banker failed to take due care when it allowed plaintiff’s managing director to withdraw moneys from plaintiff’s bank account held by the defendant – defendant relying on defence of illegality or ex turpi causa – principles of ex turpi causa considered - negligence – banker-client relationship – plaintiff claims defendant was negligent in the discharge of its duties as the banker – proceedings dismissed.
National Fisheries Authority v New Britain Resources Development Ltd [2015] PGNC 170
Application to set aside judgment on the ground of fraud - allegations and particulars of the fraud not properly and adequately drawn - alleged fraud by non-disclosure or silence – whether a duty of disclosure - whether intention to deceive - particulars consisting of facts consistent with innocence or equivocal. Application dismissed.
JNS Ltd v Lae Builders & Contractors Ltd [2015] PGSC 79; SC1552
Appeal – validity of State Lease – whether exemption from advertisement valid – meaning of “has agreed” – whether exemption notice sufficient to constitute agreement – requirements for agreement – whether non-compliance a serious breach – whether non-compliance constitutes constructive fraud – whether title should be set aside – Land Act, ss 65, 68 & 69 – Land Registration Act, s 33.
Nae Ltd v Curtain Bros Papua New Guinea Ltd (1-1815) [2015] PGSC 87; SC1620
Appeal - from exercise of discretion - proper principles discussed - dismissal of action for abuse of court or failure to disclose a reasonable cause of action - relief pleaded in statement of claim not supported by relief pleaded in originating summons - whether abuse of process- claim founded on Fairness of Transactions Act - whether reasonable cause of action disclosed in the pleadings - relevant considerations in the exercise of discretion.
National Capital District Commission v Virgo No 65 Pty Limited (Unnumbered, Sawong J, 2 February 2015)
Judicial review – land – rezoning – appeal to PNG Physical Planning Appeals Tribunal – whether land reserved from lease for public recreation – “Open Spaces” zoning.
National Capital Ltd v Bakani [2014] PGSC 34; SC1392
Objection to competency – Supreme Court Rules, Order 10 – appeal against refusal by the trial court to grant leave for judicial review – appeal by notice of motion – mandatory requirements of the Supreme Court Rules not complied with – such non-compliance fatal to the appeal. Application to dismiss appeal for abuse of process – Supreme Court Rules, Order 7 r 12 – requirement for a copy of the notice of appeal to be served "without delay" – notice of appeal served almost a month after appeal was filed – whether such delay could amount to an abuse of process
Bank South Pacific Ltd v Tingke [2014] PGSC 49; SC1355
Practice and procedure – National Court - declining to order default judgment pursuant to Order 12 rule 32 (1) of the National Court Rules - Fairness of Transactions Act – pleadings – irrelevant considerations by lower court - the discretion of the primary judge miscarried – appeal allowed.
Pololi v Wyborn (No 2) [2013] PGNC 144; N5395
Costs – whether an order may be made against a non-party
Mainland Plumbing Supplies (NG) Limited v Chow (Sawong J, 15 March 2013)
Practice & procedure – setting aside default judgment – principles – delay – explanation for default – defence on merits – inconsequential irregularities.
Pololi v Wyborn [2013] PGNC 65; N5253
Deceased estate – intestacy – jurisdiction – Public Curator Act – Will Probate & Administration Act – indefeasibility of title – Land Registration Act – Frauds and Limitations Act – powers of Public Curator – proper entity – limitation periods.
Coecon Limited v Westpac Bank Limited [2012] PGNC 292; N5097
Practice & procedure – joinder of defendant – necessary party – against whom no relief sought.
Salngat v National Forest Board [2012] PGNC 259; N4927
Interim injunction – principles – serious question – balance of convenience – adequacy of damages.
Coecon Limited v Westpac Bank Limited [2012] PGNC 221; N4926
Practice & procedure – leave to file cross-claim – discretion – time-bar.
National Capital Limited v Bank of Papua New Guinea (NC 18 December 2011)
Judicial review – application for leave – principles – arguable case – revocation of licence – Superannuation (Special Provisions) Act 2000.
Mann v Bank South Pacific Limited (NC, 31 August 2011)
Claim to term deposit – evidence – limitation period - Frauds and Limitations Act 1988.
Tau Po’o v Guinn (SC June 2011)
Companies Act – liquidator’s powers – effect of appointment – standing of director.
James Geama v OTML Shares In Success Ltd (2011) PGNC 39
Deed of Settlement establishing scheme for the benefit of employees of OTML – whether scheme rules contrary to the purpose of the Deed – whether scheme rules contrary to law.
National Fisheries Authority v New Britain Resource Development Ltd (2011) PGSC 32
Supreme Court - practice and procedure – Order 7 Rule 53 Supreme Court Rules – application to dismiss appeal for want of prosecution – delay in settling index – failure to take further steps after settlement of index.
Re Lihir Gold Ltd [2010] PGNC 102 N4126
Orders pursuant to s. 250 (1) Companies Act 1997 - scheme of arrangement to effect a merger between Lihir Gold and Newcrest Mining Ltd - matters to consider in determining whether to approve scheme of arrangement at the second court hearing.
Oil Search Ltd v Mineral Resources Development Corporation Ltd [2010] PGSC 12 SC1022
Frauds and Limitations Act, section 16 – whether action founded on simple contract or upon a specialty – whether appropriate question to be determined in interlocutory proceedings.
National Fisheries Authority v New Britain Resources Development Ltd [2009] PGNC 231 N4068
Application to amend statement of claim – application to dismiss plaintiff’s claim for relief in proceeding – Order 12 Rule 40(1) National Court Rules - res judicata - abuse of process.
Takoa Pastoral Co Ltd v Dr Temu [2009] PGNC 131 N3739
Practice and procedure – Discovery – Purpose of – Enable parties to know of each other’s cases’ strengths and weaknesses and where possible settle or identify meritorious issues for trial – Application of further discovery on orders of the Court – Further discovery on discovery likely to delay proceedings - No need for further discovery upon discovery – Parties to consider effect of documents disclosed and serious consider settling out of Court or make appropriate applications – Order 9 rr 1, 2, 5, 7, 9 & 25 National Court Rules
Telikom PNG Ltd v ICCC [2008] PGSC 5 SC906
Appeal – whether multiplicity of proceedings amounts to abuse of process – discretion as to consequences of abuse – mode of commencement – circumstances in which Order 16 National Court Rules must be used – res judicata – whether applicable if a previous decision on issues before a court has been made by an administrative tribunal – whether tribunal had determined merits of the issues before the court.
Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886
Supreme Court Rules - Order 10 appeal- objection to competency – whether any provision for Order 11 r11 – adding appellant after 40 days – whether rule constrained by Supreme Court Act s17 – whether leave required for person not a party to appeal - locus standi – meaning of “sufficient interest” National Court Rules 0 16 r 3(5).
Newsat Ltd v Telikom PNG Ltd [2007] PGNC 161 N3452
Practice and procedure – National Court – application to strike out all of parts of an amended statement of claim – National Court Rules, Order 12, Rule 40.
Telikom PNG Ltd v Newsat Ltd [2007] PGNC 159 N3450
Practice and procedure – National Court – leave sought to file amended defence – National Court Rules, Order 9, Rules 51 and 52.
Newsat Ltd v Telikom PNG Ltd [2007] PGNC 158 N3449
Practice and procedure – notice of motion filed by a party but motion not moved on the day set down for hearing – whether motion should be adjourned or dismissed- wide discretion to dismiss ill-timed motions and this was an appropriate case in which to exercise that discretion.
Newsat Ltd v Telikom PNG Ltd [2007] PGNC 156 N3448
Application for stay of proceedings – actions on contracts – arbitration clauses – whether a stay of proceedings should be granted in view of an arbitration clause in a contract – application to dismiss part of claim – whether a reasonable cause of action disclosed – questions of constitutional interpretation and application raised in originating process – whether National Court has jurisdiction to hear or determine constitutional questions – Constitution, Section 18.
Newsat Ltd v Telikom PNG Ltd [2007] PGNC 157 N3447
Contempt – failure to comply with court orders – whether person ordered to do things must be given notice of consequences of failure to comply – whether evidence of non-compliance – standard of proof.
Telikom PNG Ltd v ICCC [2007] PGNC 43 N3144
Practice & procedure – mode of commencement of proceedings – relief sought – seeking declaration that a decision by a public authority as invalid or null and void -originating summons seeking judicial review only proper mode of commencement and maintenance of proceedings under O 16 r 1 of the National Court Rules, which is an exclusive process – issuance of writ of summons an abuse of process of the court – proceedings dismissed for abuse of process of the Court – Order 12 r 40 and Order 8 r 27 National Court Rules.
Telikom PNG Ltd v ICCC [2007] PGNC 41 N3143
Interlocutory injunction – principles governing grant or rejection of – no evidence of irreparable damage – balance of convenience not favouring grant of interim injunction – undertaking as to damages by or for and on behalf of a company – not signed under seal of the company – no proper undertaking as to damages – time of application for injunction a relevant consideration – failure to act promptly may amount to estoppel by conduct – application dismissed.
Pacific Equities and Investment Limited v Melanesian Trustee Services Limited (2007) N3122
Application for interlocutory injunction restraining any action in respect of, or giving any effect to, a resolution of unit-holders of Pacific Balance Fund that applicant be removed as manager - whether serious question or questions to be tried.
Workcover Authority of NSW v Placer (PNG) Exploration
Ltd
(2006) N3003
Application to register foreign judgment under Reciprocal
Enforcement of Judgments Act Ch 50 – award of the
Compensation Court of NSW - certificate of award lodged
in the Supreme Court of NSW – registration refused
- Compensation Court not a declared court – denial
of natural justice.
Curtain Bros (PNG) Ltd v University of Papua New Guinea
[2005] SC788
Appeal from discretionary judgment – Discretion
wrongly exercised - practice and procedure - summary
judgment quashed.
Telikom PNG Ltd v Thomas Tulin [2004] SC748
Supreme Court appeal - practice and procedure - distinction
between summary judgment and default judgment - misconception
of procedure - error in exercise of discretion - summary
judgment quashed.
Matthew Piake Kaen v Telikom (PNG) Limited [2004] SC746
Appeal - contract of employment – breach of implied
term of contract – failure to obey directions of
employer – entitlements under the contract.
Sabatica Pty Ltd v Battle Mountain Canada Ltd [2003] SC709
Appeal – company Law – rights of minority shareholders – cause
of action at common law – cause of action under
Section 152 of the Companies Act 1997.
Lindsay Lailai v Ace Guard Dog Security Services Ltd [2003]
SC708
Appeal – practice and procedure – applications
for default judgment and summary judgment – difference
in nature and substance – order to file further and
better particulars – no time period specified.
National Capital District Commission v Yama Security Services
Pty Limited [2003] SC707
Appeal – judgment on liability for damages to be
assessed – compromise reached – Deed of Release – Inappropriateness
of summary procedure – necessity to institute fresh
proceedings – Public Finances (Management) Act
1995.
Fly River Provincial Government v Pioneer Health Services
Ltd [2003] SC705
Appeal – contract with a provincial government – tender
and ministerial approval under the Public Finances (Management)
Act 1995 not obtained – contract illegal and void – restitution
only remedy.
Mainland Holdings Ltd v Paul Robert Stobbs [2003] N2522
Application to dissolve interlocutory injunction – change
in circumstances – conduct of plaintiff – contract
of employment.
The Honourable Andrew Baing v PNG National Stevedores
Pty Limited
[2000] SC627
Appeal – Application for Leave to Appeal – Proper
principles – Practice and procedure – Application
to strike out defence – Irregular judgment – Setting
aside irregular judgment.
Panga Coffee Factory Pty Ltd v Coffee Industry Corporation
Limited
[1999] SC619
Contract – statutory illegality – deed of arrangement
to settle claim by exemption from levy – powers of
a statutory corporation – no power to exempt exporter
from levy – clause not severable.
Curtain Bros (Qld) Pty Ltd v Independent State of Papua
New Guinea
[1993] PNGLR 285
Appeal - summary judgment – elements to be satisfied
in such an application – evidence of defence – facts/law
may be raised. Contract – when terms of contract
are in writing – no evidence allowed to add to,
subtract from, vary, or qualifyt.
Bruce Tsang v Credit Corporation (PNG) Limited [1993]
PNGLR 112
Application for leave to appeal filed outside the 40
days limit – competency. Summary judgment - variation
of principal contract – whether guarantee also varied
or whether guarantor discharged from liability – whether
summary judgment be set aside.
Emas Estate Development Pty Ltd v John Mea [1993] PNGLR
215
Real property – indefeasibility of registered title – whether
principle applicable to registration under the Land Regulation
Act – effect of irregularities on registered title.
Gladys Kumar v Peter Wama [1993] PNGLR 38
Constitutional law –suspension of provincial government – role
of Administrator. Company Law – incorporation – separate
legal person – corporate personality. Employment
contract – wrongful termination – damages.
Theiss Watkins (PNG) Ltd v Papua New Guinea Electricity
Commission
[1991] PNGLR 316
Building and engineering contract – construction
and interpretation – arbitration clause – pre-conditions
to arbitration – to be exhausted before arbitration
clause invoked.
National Airline Commission trading as Air Niugini v Lysenko
[1990] PNGLR 226
Appeal - estoppel – res judicata – employment
contract – breaches of – claim for failure
to pay redundancy allowances – whether claim determined.
Contract of employment – obligation to re-employ – no
offer within time stipulated – damages.
Rabtrad Niugini Pty Ltd v Abco Pty Ltd [1990] PNGLR 155
Contract – implied terms – contract to store
goods – standard terms of customs contracts not imported
into storage contract by previous dealings. Bailment for
reward – warehousing – loss or damage – negligence – onus
of proof.
Taurama Pharmacy Pty Ltd v Sherwen [1990] PNGLR 127
Contract of employment – restraint of trade – employed
pharmacist – restraint on working within 40km area – whether
reasonable in time and space and in public interest – quaere
applicability in light of protection of employment rights
under Constitution.
Aircair Pty Ltd v Co-ordinated Air Services Pty Ltd [1988-1989]
PNGLR 549
Judgments and orders – setting aside for fraud – relevant
principles – onus of proof – matters for proof – where
application to call fresh evidence – allegations
of false or mistaken evidence.
Lysenko v National Airlines Commission trading as Air
Niugini
[1988-1989] PNGLR 69
Estoppel – res judicata – employment contract – claim
for failure to pay redundancy allowances – disputed
terms within one clause – separate causes of action – no
estoppel.
Fletcher Morobe Construction Pty Ltd v Minister For Lands
[1988-1989] PNGLR 25
Appeal – state lease – compensation for improvements – lease
granted under repealed legislation – expiration under
new legislation – preservation of accrued rights – right
to compensation potential only – compensation under
new legislation.
Fletcher Morobe Construction Pty Ltd v Minister For Lands
[1988] PNGLR 53
Real property – state lease – compensation
for improvements – refusal to renew lease – compensation
claimable pursuant to repealed Act under which lease granted – Land
Ordinance 1911 – Land Act.
Straits Contracting (PNG) Pty Ltd v Branfill Investments
Ltd [1988] PNGLR
Evidence – admissibility – fresh evidence – re-opening
case – discretion of court – relevant considerations.
Appeal – leave to appeal – from discretionary
interlocutory ruling – from leave to adduce fresh
evidence.
Pung Nimp v Robi Rumants [1987] PNGLR 96
Breach of trust – sale of shares held in trust – trustees
directors of proprietary company – company holding
traditional land – shares held in trust for clans – duty
to consult with beneficiaries – proper “consultation” – consent
of beneficiaries – breach established – Constitution,
s 255.
Woodward v Woodward [1987] PNGLR 92
Specific performance – defences – uncertainty – vagueness
of terms – deed of indemnity guaranteeing mortgage
to be entered into – terms acted upon – intention
that deed to have legal effect – specific performance
available.
National Airline Commission trading as Air Niugini v Valerian
Lysenko [1986] PNGLR 323
Contract of employment – construction and effect – termination
of services – no reason given or required – redundancy
clause – redundancy pay dependent on objective
of facts at date of dismissal.
Independent State of Papua New Guinea v Keboki Business
Group Inc
[1985] PNGLR 369
Contract with State – supply and tender procedures – authority
to contract includes power to authorise signatures – Government
Contracts Act – Minister’s (Delegation) Act
(Ch No 35) – Public Finances (Control and Audit)
Act.
Angelo Cresseri v Halla Resources Corporation [1985] PNGLR
294
Contract – guarantee – Statute of Frauds – not
specifically pleaded – raised at trial – where
defendant taken by surprise.
Watkins (PNG) Limited v Richard Herbert Boyne Wood
[1985] Unreported, Barnett J
Construction contract – agency – proper party
to agreement – company – director/shareholder
agent – personal liability of individual – dual
liability of company and individual.
Robinson v National Airlines Commission [1983] PNGLR 476
Injunctions – interlocutory injunctions – when
available – preservation of status quo – justice
and convenience – discretion to refuse – action
for wrongful dismissal – damages adequate remedy.
Placer Holdings Pty Ltd v Independent State of Papua New
Guinea
[1982] PNGLR 16
Appeal – extension of time for lodging – Extension
applied for outside time limited – Court has discretionary
power to grant – statutes – interpretation – purposive
or literal approach – Land Act 1962.
Seafood Marketing Pty Limited v Robert Laurie (NG) Pty
Limited
(1981) Unreported, Miles J
Bailment – frozen seafood – failure to maintain
constant temperature – onus of proof – damages.
New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek [1980]
PNGLR 205
Shipping and navigation – admiralty jurisdiction – jurisdiction
of National Court – claim for necessaries supplied
to foreign ship – law applicable – Colonial
Courts of Admiralty Act 1890 no longer in force in Papua
New Guinea – no action in rem for necessaries – common
law of contract applicable to supply of goods and services.
Re the Judgments Enforcement (Reciprocal Arrangements)
Act 1976, ex parte Van Der Kreek and Van Der Kreek [1979]
PNGLR 185
Appeal - private international law – enforcement
of foreign judgments – registration of “judgment” – order
of Supreme Court of Queensland – jurisdiction exercised
under Family Law 1975 (Cth) – order for cash sum
by way of property settlement – whether judgment
given in action in rem or in personam.
Re Judgments Enforcement (Reciprocal Arrangements) Act
1976 ex parte Frantz Van Der Kreek and Patricia Van Der
Kreek [1978] PNGLR 398
Private international law – enforcement of foreign
judgments – registration of “judgment” – order
of Family Court of Australia for cash sum by way of property
settlement – whether “judgment or order” made
in “civil proceedings”.
Finch v Seafreight Pty Limited [1976] PNGLR 440
Carriage of goods by sea – action for loss in transit – onus
of proof – measure of damages - limitation of liability – protective
provisions of Sea-Carriage of Goods Act 1951.
Barker v Government of Papua New Guinea [1976] PNGLR 340
Application to set aside judgment by default – practice
rules to be complied with – explanation for default – promptness
of application – no reference to defence on merits – application
refused.