|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
[Report an error]
[F.A.Q.]
National Court of Papua New Guinea |
[Recent Decisions] [Noteup] [Download] [Help]
PAPUA NEW GUINEA
[NATIONAL
COURT OF JUSTICE]
OS 48 OF
2005
BETWEEN
WORKCOVER AUTHORITY
OF
NSW
Plaintiff
AND
PLACER
(PNG) EXPLORATION
LIMITED
Defendant
LAY
J
PORT MORESBY
13 March 2006
PRACTICE
AND PROCEDURE ─ application to register foreign judgement ─ whether
judgement of declared court ─ whether
voluntary submission to jurisdiction
─ whether debtor had place of business in foreign jurisdiction ─
adequacy of notice
of proceedings contested ─ whether notice of
proceedings accorded with rules of natural justice ─ inconsistent with
public
policy to register judgement ─ Reciprocal Enforcement of Judgements
Act.
Facts:
Mr
Plibersek was stabbed to death in Port Moresby on 4th October 1997. His widow
obtained a workers compensation award of AU$235,350
in the Compensation Court of
NSW against the Defendant although her claim was against Placer Pacific
Management Limited (a company
incorporated in NSW) then called the First
Respondent. The award was paid from the Plaintiff’s fund as the Defendant
was uninsured
in NSW. The Plaintiff obtained an order in the Compensation Court
NSW that it be reimbursed by the Defendant the amount paid out
to the widow. In
accordance with the provisions of NSW legislation the Plaintiff lodged the
certificate of the award from the Compensation
Court in the Registry of the
Supreme Court of NSW and the Registry issued a Minute of Judgement. The
Plaintiff seeks to register
that judgement under the
Reciprocal Enforcement of Judgements
Act. Ch50 (the Act).On the application both the application for
registration and grounds upon which it might be set aside were
argued.
Held:
To qualify
for registration the judgement must be from a court, declared by the Minister
under the Act, which has itself for the first
time heard and finally determined
the matter in proceedings before it. The original judgement was from the
Compensation Court NSW,
which was not a declared court, and the judgement
therefore could not be
registered.
Taylor v McGiffen
NSW Supreme Court (unreported
Wood J 15 July 1985) S3 Reciprocal
Enforcement of Judgements Act Ch50.
The court should refuse
registration of a foreign judgement if on the application for registration it
appears to the court that the
judgement, if registered, is one which on
application by the judgement debtor, the court would set
aside:
Re Word Publishing Co Pty. Ltd
[1992] Qd R 336; Nygh & Davies,
Conflict of Laws in Australia, Seventh
Edition, para 10.7; Sykes &
Pryles, Australian Private International Law, Third Edition,
p129.
The findings of fact recorded in the judgement of the Compensation
Court NSW are not evidence for the purposes of proving those same
facts before
this Court because through error the Defendant was not heard, it was injuriously
affected by the judgement; and it could
not fairly be said it was a party for
the purpose of binding it to those findings in other
proceedings.
Hollington v Hewthorne
& Co Ltd [1943] KB 587 Cr Cross on
Evidence 4th Ed p399., Cross on
Evidence 2nd Australian Ed. by Gobbo, Bryne & Heydon at para
16.26 Mesulam Tomalana v Rabaul Pharmacy
[1991] PNGLR 65, Jacques v Harrison
(1883) 12 QBD 136, Winsor c Chalcraft
[1939] 1 KB 279, Murfin v Ashridge
[1941] 1 All ER 231, Craig v Kansen
[1943] 1 KB 246.
The provisions of s5(2) of the
Reciprocal Enforcement of Judgements
Act Ch 50 are a complete list of the grounds on which jurisdiction may be
found in a foreign court for the purposes of the
Act.
Nygh & Davies Conflict of
Laws in Australia 7th Ed. at para 10.8
Stenhurst Pty. Ltd. v Golding International Pty. Ltd (unreported
3/10/1998) N1377; Kalyk v Atlas Corporation
Pty. Ltd (unreported 31/7/1998) N1760
The Defendant did not
voluntarily submit to the jurisdiction in the NSW proceedings. It was not in a
practical sense represented there
by the First Respondent in those proceedings.
There was no evidence of fraud or sharp practice or that the First Respondent in
the
NSW proceedings was a mere sham or façade for the Defendant. It was
not appropriate in those circumstances to lift the corporate
veil to impute to
the Defendant that it had appeared by the appearance of the First Respondent in
the NSW proceedings.
Odata Limited v
Ambusa Copra Oil Mill Limited (2001)
N2106 Pinbar Development Pty. Limited v TL
Timber Pty. Limited (1999) N1857; New Zealand Company Law and Practice
CCH.
The minimum requirement for adequate notice of proceedings is that
the notice contains a fair statement of the case against the defendant,
the
consequences of a finding against the defendant and that the defendant has an
adequate opportunity to defend the proceedings.
The notice of the Compensation
Court NSW proceedings served upon the Defendant was misleading; it sought no
order for payment of
money against the Defendant. The fact that the Compensation
Court proceeded to make an order for payment of money against the Defendant
without notice to the Defendant and without amendment and service of the
pleading was not in accordance with the principles of natural
justice. The
judgement if registered would be set aside on the ground that it was against
public policy to enforce it. This was an
additional ground on which the
judgement ought not to be
registered.
Adams v Cape Industries
Pty. Limited [1984] 1Ch 433 (CA); Aronson Dyer Groves,
Judicial Review of Administrative
Action; 3rd Ed. Pp499 and 500 and at
p501; London Passenger Transport Board v
Moscrop [1942] 1 All ER 97; Blay v
Pollard and Morris [1930] 1 KB 628;
Ume More & Ors v University of Papua New Guinea [1985] PNGLR
401.
Representation:
Mr E
Anderson for the Plaintiff
Mr I Molloy for the
Defendant
_______________________________________________
LAY
J: This is an application to register a foreign judgement which is
normally heard ex parte pursuant to
the provisions of National Court Rules
O13 r69(2). On this application by arrangement between counsel and the
Court argument was heard from both parties on the application
for registration,
because registration is opposed, and the parties were also heard on issues to be
addressed on an application to
set aside registration.
Mr. Plibersek was
stabbed to death on or about 4th October 1997 in Port Moresby whilst employed on
a contract with the Defendant Company
in Papua New Guinea. Proceedings were
taken in the Compensation Court of New South Wales. This is a statutory court
established under
the Compensation Court
Act 1984 (NSW). The judges of that court have the "same rank, status and
precedence...as a judge...of the District Court." of NSW (see
s9(5)) of the
Compensation Court Act). The Plaintiff
and the Defendant were each respondents in those proceedings. The Defendant is a
company incorporated in Papua New
Guinea having two issued shares which are
owned by Placer Dome (PNG) Limited.
On 15th November 2002 the
Compensation Court gave judgment relevantly that the Plaintiff pay to the
applicant in those proceedings
(Wendy Meeson, widow of the deceased) out of the
WorkCover Authority Fund AU$235,350 for compensation plus interest and costs.
The
payment was ordered to be made from the Fund on the basis that the Defendant
was not insured in NSW as required by the
Workers Compensation Act 1998 (NSW).
The Compensation Court further ordered that the Defendant reimburse the
WorkCover Authority such amounts as it paid. This latter order
was made pursuant
to the provisions of the Workers Compensation
Act 1987(NSW) Part 6 Div 6─Uninsured Liability and Indemnity
Scheme.
The Workers Compensation
Act (NSW) provides (s23) that a certificate of an award made under the
Act can in some circumstances be filed in the District Court and
the Registrar
of the District Court is then directed to issue a judgement for the amount of
the certificate. However the Workplace Injury
Management and Workers Compensation Act 1988 (NSW) Section 362 provided
that a certificate by the Registrar of the Compensation Court
"that is filed in the registry of a court
having jurisdiction to give judgment for a debt of the same amount as the amount
stated
in the certificate, operates as a judgment." On 2nd November 2004
the Compensation Court judgment was filed in the registry of the Supreme Court
of New South Wales pursuant to
that provision.
There then issued from
the Registry of the Supreme Court of NSW a document entitled "Minute of Order"
which reads
"Pursuant to Section 362 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), judgment be entered in favour of the judgment creditor in the sum of $281,968.65 in accordance with the judgment delivered in the Compensation Court of New South Wales and matter number 1768 of 1999 on 15 November 2002.",
and signed "Senior Deputy Registrar". It is this document which the
Plaintiff seeks to have registered.
Applications for registration of
foreign judgments in Papua New Guinea are made under the
Reciprocal Enforcement of Judgments Act
Ch50 ("the Act"). Section 3 provides:
3. Application for, and effect of, registration of foreign judgements.
(1) Subject to Subsection (3), a person being a judgement creditor under a judgement to which this Part applies, may apply to the National Court-
(a) at any time within six years after the date of judgement; or
(b) where there have been proceedings by way of appeal against the judgement—after the date of the last judgement given in those proceedings,
to have the judgement registered in the National Court.
(2) On any application under Subsection (1) the National Court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgement to be registered.
(3) A judgement shall not be registered if at the date of the application—
(a) it has been wholly satisfied; or
(b) it could not be enforced by execution in the country of the original court.
Ss4-8 omitted.
The Act defines a "judgement to
which this Part applies" as:
S2(2) Any judgement of a superior court of a foreign country to which this Part extends, other than a judgement of such a court given on appeal from a court that is not a superior court, shall be a judgement to which this Part applies if—
(a) it is final and conclusive as between the parties to it; or
(b) there is payable under it—
(i) a sum of money, other than a sum referred to in Subparagraph (ii), not being a sum payable in respect of taxes or other charges of a similar nature or in respect of a fine or other penalty; or
(ii) a sum of money payable in respect of a recoverable tax; or
(c) it is given after the coming into operation of the notice under Subsection (1)(a).
So that an applicant for registration must show
that:
1. Judgement was given by a declared court (s3(1);
2. it is final and conclusive between the parties (s3(1)(a);
3. judgement is for a sum of money (s3(1)(b); and,
4. It has not been wholly satisfied (s3(3).
The scheme of the Act
provides for the Minister to gazette the countries and Courts from which he is
satisfied substantial reciprocity
would be obtained in registration of
judgements. By notice in National Gazette No. G60 dated 9 September 1983, a
prior notice was
revoked and it was declared by the Minister that:
"the High Court of Australia, the Federal Court of Australia, The Supreme Court of each State of Australia, the Australian Capital Territory, the Northern Territory and Norfolk Island shall be deemed superior courts of Australia and those territories for the purposes of Part II of the ..." (Act)
Declared
Court
The applicant Plaintiff submits that the judgement to be
registered is the judgment of a declared court because the document "Minute
of
Judgement" issued out of the Supreme Court of NSW, which is a relevantly
declared superior court.
The Defendant submits that the judgement is not a
judgement of a declared superior court because:
1. the original decision was made and judgement given by the Compensation Court NSW, which is not a declared superior court for the purposes of the Act;
2. to say a judgement shall "operate as" a judgement of the Court in which the judgement of the Compensation Court is registered is to acknowledge that it is not such a judgement;
3. the applicant is "registration hopping";
4. to qualify the judgement must be one made by a qualifying superior court in the sense of the court hearing and determining the matter and not just registering the decision of an inferior court;
5. Under s2(2) the decision of superior court on appeal from an inferior court does not qualify for registration. Therefore nor should a decision from an inferior court merely registered in the registry of the superior court;
6. where the legislature has intended to extend the meaning of "judgement" it has done so in clear and specific terms.
First I am not persuaded
that I should pay any particular attention to the wording of the
Workplace Injury Management and Workers
Compensation Act 1998 (NSW) for the purpose of interpreting the Act. It
seems to me that even if the legislature of another state enacted, that for
purposes of execution, all of the judgements of its inferior courts were
judgements of the qualifying superior court, that would
not alter the meaning
intended to be given to "judgement of a superior court" by our Parliament in
enacting the Reciprocal Enforcement of
Judgments Act Ch50. However, that the
Workplace Injury Management and Workers
Compensation Act 1998 (NSW) provides that "a certificate once filed
operates as such a judgement" is an acknowledgment by that Act, that prior to
registration,
the certificate is not a judgement of the registering
court.
I do think it important to look at other provisions of the
Reciprocal Enforcement of Judgments
Act to understand the purpose and effect of the Act and the intention of
Parliament, which is described in the introductory words of
the Act as:
(a) to make provision for the enforcement in Papua New Guinea of judgements given in foreign countries which accord reciprocal treatment to judgements given in Papua New Guinea; and
(b) for facilitating the enforcement in foreign countries of judgements given in Papua New Guinea,
The
exception provisions of s2(2) of the Act are instructive. That section provides
that a judgement of a superior court on an appeal
from a subordinate court, for
example, a District Court, is not a qualifying judgement. Now on such an appeal
there would be a review
of the evidence given in the lower court and submissions
for the parties. The superior court would be constrained by the usual
considerations
of an appellate court interfering in the judgement of a lower
court or by statutory powers to be exercised on appeal. But otherwise
there
would be the full operation of the superior court mechanism presided over by a
judge. The Act makes it plain that such an appeal
proceeding not good enough to
qualify as a judgement of a superior court.
It therefore is difficult to
accept that the Act intended to treat as a judgement of a superior court the
judgement of a court not
relevantly declared, which has been passed over a
declared superior court registry counter, entered in a register, duly stamped
and
signed by the prescribed official without any consideration whatever by a
judge of that court.
In the Supreme Court of NSW in the case of
Taylor v McGiffen (unreported Wood J
15 July 1985) the court dealt with registration of a judgement first obtained in
the Ontario Supreme Court (which
did not have reciprocity with New South Wales).
The judgement was subsequently registered in the Queens Bench of Manitoba, which
did have reciprocity. S6(1) of the New South Wales legislation was in the same
terms as s5(1)(a)(i) of our Act. The proceedings were
to set aside a judgement
already registered pursuant to an ex
parte application. His Honour found that:
"(p2) The application turns essentially upon the question whether a judgement given in a court of a country not declared under the Act can be registered in the Supreme court of New South Wales, by reason of an intervening registration in a declared court of a declared country...(p5/6)...I take the intention (of the act) to be one which would permit registration of a judgement in this court only if it is a judgement finally and for the first time determining the rights in issue, and then only if it is a judgement of a relevantly declared court...(p6)...In the present case, the judgement for registration purposes would be that of the Ontario Court which is not a relevantly declared court."
His Honour largely based that
conclusion on the premise that the Act was designed to facilitate reciprocity of
enforcement of judgements.
Therefore, forum hopping, which would enable
registration of a judgement from a country or court not declared by the Minister
as
providing reciprocity, would be contrary to the intention of the
Act.
This application turns on the slightly different question of whether
a judgement given in a court which is not a relevantly declared
superior court
can be given registration because it has been registered in a court which is a
declared superior court, both courts
being located in a declared country.
However the analysis of the intention of the Act by Wood J still has
considerable relevance
because the Act is clearly intended to give reciprocity
only to those courts declared by the Minister and no subordinate court in
NSW or
for that matter Australia has been afforded that privilege of
reciprocity.
In my view to qualify for registration the judgement must be
from a relevantly declared superior court which has itself for the first
time
heard and finally determined the matter in proceedings before it. Any judgement
which falls short of that test may be a judgement
by reason of the legislative
draftsman’s art in the relevant country, but is not a judgement in the
practical and real sense
intended by the Act. I consider that view is
strengthened by the definition of "judgement" in the Act and the use of the
phrase "original
court" in the Act, for example at s3(3). Judgement is defined
in the Act as:
"judgement" means a judgement or order given or made by a court in any civil proceedings, or a judgement or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party;
The Concise
Oxford Dictionary sets out the meaning of "proceeding" as follows:
proceeding / n.
1 an action or piece of conduct (a high-handed proceeding).
2 (in pl.) (in full legal proceedings) an action at law; a lawsuit.
3 (in pl.) a published report of discussions or a conference.
The second example is the most
appropriate to the circumstances of this case. I find that "proceedings" as used
in the definition
of judgement means legal proceedings, an action at law or a
law suit, an action or suit in which a cause of action is litigated.
The mere
filing of a document in a registry could not be fairly described as such an
action or suit. I hold that such filing is not
a "proceeding" as that word is
used in the definition of the word "judgement" in the Act. There is nothing to
be determined by the
superior court, the filing is a process but not a
proceeding.
"Original court" is defined in the Act as meaning: "
"original court" in relation to any judgement means the court by which the judgement was given;"
The Supreme
Court of NSW did not give judgement in any real sense. There were no proceedings
before it. It did not give judgement
in "proceedings". Its Registry simply
registered the certificate of the award of the Compensation Court. What the NSW
Supreme Court
did is made plain by the wording of the document issued by it.
That form of words makes it clear how the "Minute of Judgement" document
came to
be issued by the Court and serves not confuse it with judgement given by the
Supreme Court in its own original jurisdiction.
Sections 5(1)(a)(ii) and
(iii) provide:
(ii) the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
(iii) the judgement debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or
Those provisions also support
the conclusion that the judgement which is registrable is the one given by the
court which first heard
and determined the matter. As Wood J observed in
Taylor v McGriffen:
"...the provisions...seem...to presuppose a determination on the merits."
Counsel for the Respondent has
referred me to foreign authorities where the legislature has specifically
extended the meaning of "judgement"
to include the decisions of other tribunals
which are not superior courts, such as The
Administration of Justice Act (UK)─see Dicey and Morris on
The Conflict of Laws 12th Ed. Vol.1
p632/633─ which has extended the meaning of "judgement" to include
arbitration awards. Other states and countries
have also extended the meaning of
"judgement", see for example the definitions of "judgement" in s4 of the
Foreign Judgements Act 1973 (NSW) and
s3 of the Foreign Judgements Act 1991
(Cth). I accept that these references are examples of the parliaments of other
states specifically extending the meaning of judgement,
no doubt because there
was a view that other types of decisions were not encompassed by the word
"judgement". I am content to rest
my decision on the basis that the plain and
ordinary and intended meaning of "judgements given in the superior court in any
foreign
country" as used in s2(1) of the Act means, as I have stated above,
judgements given after hearing and determination for the first
time in
proceedings before it by a relevantly declared court.
That is sufficient
to determine the matter and I refuse registration of the judgement on the basis
that the judgement of the original
court was the judgement of the Compensation
Court NSW, which is not a judgement of a declared superior court.
Counsel
made extensive other submission on which I will record some
comments.
Consideration of grounds for
De- Registration on an Application to Register
The Applicant
submitted that the Court ought not to entertain argument on reasons for setting
aside registration, on an application
for registration. I find the practice of
anticipating the argument, which might be made on an application to set aside
registration
of the judgement, is supported by authorities, to the effect that
the court should refuse registration if on the application for
registration it
appears to the court that the judgement, if registered, is one which on
application by the judgement debtor, the
court would set aside:
Re Word Publishing Co Pty. Ltd [1992]
Qd R 336 cited in Nygh & Davies, Conflict
of Laws in Australia, Seventh Edition, para
10.7; Sykes & Pryles, Australian Private
International Law, Third Edition, p129.
Jurisdiction of the NSW
Court
Section 5(2) of the Act sets out the circumstances in which
the original court will be deemed to have had jurisdiction. Referring
to very
similar legislation (s7(2) of the Foreign
Judgements Act, Commonwealth of Australia)
Nygh & Davies Conflict of Laws in
Australia 7th Ed. at para 10.8 says:
"It would seem that the conditions set out are exhaustive, and if the jurisdiction of the foreign court falls outside the statutory definition, it could not be recognised under the Act, even though it would have been recognised at common law."
That view is supported by
decisions in this jurisdiction. In Stenhurst
Pty. Ltd. V Golding International Pty. Ltd (unreported 3/10/1998) N1377
Andrew J said:
"...I am satisfied that the question of jurisdiction is to be determined solely upon the criteria of s5(2) of the Act and not otherwise."
And in the case of
Kalyk v Atlas Corporation Pty. Ltd
(unreported 31/7/1998) N1760 Kapi DCJ as he then was, said in that case,
which was an application to set aside registration of a foreign
judgement:
"The issue raised here is whether the Supreme Court of NSW is deemed to have jurisdiction under s5(2) of the Act."
In its
written submission the Plaintiff concedes that s5 (2)(a)(i),(ii),(iv) & (b)
do not have any application to this case. The
Plaintiff must mean s5
(2)(a)(ii),(iii),(iv) & (b) as it later submits that s5(2(a)(i) and (v) may
apply.
Before turning to those submissions I should first make some
observations on the evidence relied upon for the Plaintiff. In its submission
the Plaintiff sought to rely upon facts found in the judgement of the
Compensation Court (NSW). No point was taken by the Defendant
on this issue.
However I am of the view that the court should apply the rules of evidence and
base its decision upon evidence which
is properly before it.
In relation
to the facts found by the Compensation Court and contained in its judgement, the
line of cases of which Hollington v Hewthorne
& Co Ltd [1943] KB 587 is perhaps the most well known, hold that a
fact which must have been found in order to convict cannot be placed in
evidence
in civil proceedings to prove that fact against the convicted person as a party
to the civil proceedings, with various exceptions.
In
Cross on Evidence 4th Ed at p399 it is
said that Hollington v Hewthorne
"could probably be cited as authority for the proposition that all
judicial findings are inadmissible as evidence of the facts found
in subsequent
proceedings which are not between the same parties or their privies." In
discussing the rule in Hollington v Hewthorne
in Cross on Evidence 2nd
Australian Ed. by Gobbo, Bryne & Heydon the learned authors state at para
16.26 "the rule under discussion operates to exclude
evidence of judicial
findings in previous civil cases...".
Phipson on Evidence 14th Ed para.
33-04 puts the general proposition as "... judgements are conclusive as to the
facts decided as against parties and
privies...". That proposition does not
apply if a party affected by a judgement was, through some error, not heard:
Jacques v Harrison (1883) 12 QBD 136
(mortgagee not joined), Winsor c Chalcroft
[1939] 1 KB 279 (insurer bound to pay judgement not advised of action),
Murfin v Ashridge [1941] 1 All ER 231
(application to set judgement aside refused, insurer applied in own name when
its contractual right was to use
insured’s name)
Craig v Kansen [1943] 1 KB 246
(service on defendant inadequately proven) and
Phipson on Evidence 14th Ed. Para
33-07. The cases cited are all applications to set aside a judgement which
"injuriously affected" (the words used in
Jacques v Harrison) a party not heard
on the application for judgement. I find below, under the heading Public Policy,
that the Defendant was not heard
in the proceedings in the Compensation Court
NSW because the notice of proceedings served on it did not fairly set out the
possible
consequences of the action. The notice mislead the Defendant into the
belief that no order involving financial consequences for the
Defendant was
being sought against it. Consequently no purpose would be served by its
appearance. As a consequence it did not appear
at the proceedings. It cannot be
fairly said that the Defendant was a party to the proceedings for the purposes
of applying the general
rule that facts found between parties are binding on
them in subsequent proceedings.
Apart from the common law rules, I can
take judicial notice of a judgement of a court of a State of Australia
(Evidence Act
s44(a(i) and the affidavits
from the Compensation Court NSW annexed to an affidavit of the person making the
photocopies can be admitted (s44(b)
but the reasons for judgement of that court
are not a judgement for the purposes of s44(a) of the
Evidence Act:
Mesulam Tomalana v Rabaul Pharmacy
[1991] PNGLR 65 (Ellis J).
I find that the findings of fact in the copy of the lengthy and
learned reasons for judgement of Judge Neilson of the Compensation
Court NSW
annexed to the affidavit of Andrew Mathew Combe sworn 4th April 2005 are not
evidence for the purpose of proving those
facts before this court. Accordingly
any reference to them as fact in the submissions of the Plaintiff is
irrelevant.
Voluntary Submission to the
Jurisdiction of the Foreign Court
Section 5(2)(a)(i) of the Act
provides that the original court will be deemed to have had jurisdiction if
there was a voluntary submission
to the jurisdiction.
It is common ground
that the Defendant made no formal appearance in the proceedings in NSW. However
the Plaintiff submits that the
court should lift the corporate veil and find
that because one subsidiary of the "principal controlling group" appeared in the
proceedings
in NSW another subsidiary, the Defendant, should be deemed to have
made a voluntary submission to the jurisdiction.
The Plaintiff submitted
that "the Second Respondent was represented and was aware of the proceedings
through the First Respondent,"
which was Placer Pacific Management Limited
(First Respondent). And "that the First Respondent performed functions for the
Defendant
in the hearing in the NSW proceedings". It seems to me to be most
unlikely that the First Respondent (PPML) represented the Second
Respondent at
the proceedings. In annexure "O" to the affidavit of Andrew Matthew Combe filed
for the Plaintiff at pp162-175 is the
outline of the First Respondent
counsel’s submissions to the Compensation Court NSW proceedings. Those
submissions clearly
seek to exculpate the First Respondent as employer of the
deceased by emphasising the evidence which tended to establish that the
Defendant was the employer. The First Respondent made submissions against the
interests of the Defendant.
There is no evidence that the First
Respondent in any way appeared for or represented the interests of the Defendant
or performed
functions for it in the Compensation Court NSW proceedings. The
First Respondent’s position was consistent throughout those
proceedings
and indeed prior thereto, as the letter from Placer Pacific Limited to the
Applicant’s then solicitors (page 141
of Mr Combe’s affidavit)
shows, it always contended that the employer was the Defendant.
Next the
Plaintiff submits that "the Defendant and the Second Respondent (I assume this
should read First Respondent, as the Defendant
was the Second Respondent) are
the wholly owned subsidiaries of the parent company Placer Dome." It is not
submitted which Placer
Dome company is intended.
Mr. Combe’s
affidavit annexes at "J" the affidavit of Michael Selinger sworn 10th May 2000,
which at para 6 says "Placer Dome
Asia Pacific Ltd is the new name for Placer
Pacific Ltd...The Respondent Placer Pacific Management Ltd’s shares are
almost
all owned by Placer Dome Asia Pacific Ltd."
The affidavit of
Melchior Togolo sworn 29th March 2005 annexes a company return showing that the
2 issued shares of the Defendant
are owned by Placer Dome (PNG)
Ltd.
There is no evidence of the connection between the two shareholders
although commercial common sense suggests that at some stage in
the corporate
structure there will be a common shareholder.
On the question of lifting
the corporate veil the Plaintiff relied upon the case of
Odata Limited v Ambusa Copra Oil Mill
Limited (2001) N2106 (Kandakasi J), where the Court held it could lift
the corporate veil and hold the controlling shareholder liable for the acts of
the 50% owned subsidiary. The case refers to a number of other decisions of this
court in which the possibility of holding the parent
company liable for the acts
of the subsidiary is acknowledged. It is also acknowledged by those cases that
generally in a contractual
situation there must be some element of sharp
practice or fraud to justify departing from the identity of the corporation -
see Pinbar Development Pty. Limited v TL
Timber Pty. Limited (1999) N1857 Kapi DCJ, as he then was, and
New Zealand Company Law and Practice
CCH extract of principles cited in the
Odata decision, or that the existence
of the subsidiary is a mere façade for the business of the debtor - see
the Cape Case (infra) at pp541F-H, 544A-C
& H 545 B & G 546 A, 547A-D & 549C-D.
There is no need
for me to analyze the principles in great detail. It is sufficient to point out
that there is no evidence of sharp
practice, or fraud or anything approaching
either in this case. Nor is there evidence that the existence of the First
Respondent
was a mere façade for the Defendant. Secondly this is not a
case where it is sought to make a parent company liable for the
acts of its
subsidiary. At its highest the Plaintiff’s proposition could be put as
making one subsidiary of a parent bound
by the acts of another subsidiary, which
has acted against the interests of the first subsidiary. I find no support in
the case law
referred to for that proposition, particularly so in the absence of
anything suggesting some form of sharp practice on the part of
the
Defendant.
In my view the Plaintiff has not established any basis on
which the Court ought to lift the corporate veil. I find that the Defendant
did
not voluntarily submit to the jurisdiction of the Compensation Court
NSW.
Office or Place of Business in
Country of Original Court
Section 5(2)(a)(v) of the Act provides
the foreign court will be deemed to have had jurisdiction if the defendant had
an office or
a place of business in the country of the original court. The
Defendant has filed sworn evidence that it had no such place of business.
Much
of the Plaintiff’s submissions on the issue are founded on facts found in
the Compensation Court NSW proceedings which
I have found are not evidence for
the purposes of this court. There is evidence that the First Respondent acting
on the instructions
of the Second Respondent (the Defendant) drew up and sent to
the deceased the draft contract of employment for his consideration
under cover
of a memorandum on the First Respondent's letterhead. This was done on the
instructions of an officer of the Defendant
so that the Defendant could use the
First Respondent’s expertise. There is evidence that the deceased was in
NSW on 7 occasions
in 1997 before his death. There is no evidence that the
Defendant had established and maintained at its own expense in the other
country
a place of business and had carried on from there its own business for more than
a minimal amount of time through its servants
or agents or through a
representative, which has been regarded as the minimum requirement to treat a
corporation as being present
in a foreign jurisdiction - see
Capes Case (infra) at p530D-G. However
this point was not fully argued in submissions and as it is not necessary to do
so I will not to express
a concluded opinion on
it.
Public Policy
Section
5(1)(a)(v) provides that registration shall be set aside where the enforcement
of the judgement would be contrary to public
policy. The Plaintiff submitted
that it is not against public policy to enforce the judgement. The Defendant
submitted that it was
against public policy to enforce the judgement because
public policy required the proceedings to accord with our understanding of
natural justice. This in turn required due notice and a proper opportunity to be
heard, which was not accorded the Defendant because
the notice it received made
no financial claims against it.
In
Adams v Cape Industries Pty. Limited
[1984] 1Ch 433 (CA) (Slade, Mustill and Ralph Gibson L.JJ) ("Cape")
proceedings were taken in the United States against Cape Industries
and another
by 175 plaintiffs, for damages for personal injuries arising out of asbestos
mining. Cape Industries Limited was served
with the proceedings but did not
appear. Since Cape were in default under United States Federal Rules, save in
relation to damages,
the pleadings were taken to be admitted. No judicial
hearing took place. The judge signed a default judgement for over US$15.5
million.
The awards made to individual plaintiffs fell into 4 bands, 67 were
awarded US$37,000 each, 31 US$60,000 each, 47 US$85,000 each
and 61 US$120,000
each. The judge directed that the total award should represent an average award
of US$75,000 per plaintiff. But
it was the plaintiff’s counsel and not the
judge who selected the level of the bands and identified the plaintiffs to be
placed
in each band to produce the directed average award. On appeal to the
Court of Appeal from the judgement of Scott J dismissing the
application to
register the judgement in Britain, the Court said (at p572A):
"A harsh but accurate summing up of what happened, is in our judgement, that those acting for the plaintiffs failed to give prior notice to the defendants of the unusual course which they intended to pursue...the effect on the defendant was, in our view, that they had at no material time knowledge of any basis for seeking relief from the Tyler (USA) Court in respect of the defect which Scott J rightly held to have been demonstrated by them to have occurred in the proceedings in the Tyler court."
Speaking
earlier of the applicable law the Court said at p563A-564C:
"A number of decisions were cited to us in the context of the natural justice issue. However, the most important of them was Jacobson v Franchon 138 L.T. 386 because it was said on behalf of the plaintiffs to establish legal principles which are binding on this court and render the natural justice defence unsustainable on the present facts by limiting that defence to lack of notice and denial of proper opportunity to be heard. Furthermore it was common ground that this is the only case in which the Court of Appeal has considered points relevant to the questions raised in this case under the heading of natural justice issue.
In Jaconson v Franchon this court applied rigorously the principle that our courts will not impeach the judgement of a foreign court having competent jurisdiction on its merits. However the crucial passage in that case particularly relied upon by Mr. Falconer was a statement of Atkin L.J., who after referring to the judgement of Lindley M.R. in Pemberton v Hughes [1899] 1 Ch 781, 790, said at p 392 that a judgement could be impeached "if the proceedings, the method by which the court comes to a final decision" are contrary to English views of substantial justice", and continued:
"The Master of the Rolls seems to prefer, and I can quite understand the use of the expression, ‘contrary to the principles of natural justice’; the principles it is not always easy to define or to invite everybody to agree about, whereas with our own principles of justice we are familiar. Those principles seem to me to involve this, first of all that the court being a court of competent jurisdiction, has given notice to the litigant that they are about to proceed to determine the rights between him and the other litigant; the other is that having given him that notice, it does afford him the opportunity of substantially presenting his case before the court. Both those considerations appear to be essential if they are to be in accordance with natural justice." (Emphasis added.)
We will summarise our conclusions in relation to Jaconson v Franchon as follows:
(1) Atkin L.J. in his judgement was not attempting to make an exclusive or comprehensive statement of the circumstances in which our courts will treat the procedure adopted by a foreign court in reaching its decision as offending against principles of natural justice.
(2) Lord Hamworth M.R. was clearly of the view, at p.390, which we share, that the requirements of due notice and proper opportunity to be heard will, in the majority of cases, which can be expected to arise, sufficiently comprise the concept of natural justice in a procedural context, but he prudently qualified his statement by saying that they "almost, if not exclusively" comprise it.
(3) We therefore reject the contention that the decision of this court in Jacobson v Franchon restricted the defence of breach of procedural natural justice to the requirements of due notice and opportunity to put a case. Scott J. was entitled, in our view, to direct himself by reference to the test stated by Lindley M.R. in Pemberton v Hughes [1899] 1 Ch. 781,790 and to consider whether the procedural defect alleged by Cape was such as to constitute a breach of an English court’s views of substantial justice. The point was not concluded against the defendants merely because they had been given proper notice of the application for default judgement. And would, if they had attended, have been allowed full opportunity to put there case.
(4) However this court in Jacobson v Fanchon, was not required to consider the relevance, if any, of any remedy which might have been available to Jacobsen under the French legal system, whether by way of appeal or by application for the judgement to be set aside, if the hearing in the French court had itself constituted a breach of natural justice."
The Court
of Appeal agreed with Scott J and found that the defendants should have been
able to rely upon the USA court observing the
requirements of its own rules. The
procedure adopted by the judge in making the award of damages was outside those
rules; it was
an unexpected course of which the defendants had no notice. It was
a course not consistent with an English court’s understanding
of natural
justice that such a course be pursued without notice. Consequently the judgement
could not be registered.
Cape’s
Case illustrates that the public policy ground for setting aside
registration includes natural justice and that it is fundamental to the
general
understanding of natural justice that due notice, including due notice of any
proposal to depart from the regulated practice
of the court, and a proper
opportunity to be heard, are given to the defendant in any proceedings, although
that is not an exclusive
statement of either natural justice or public
policy.
"Notice and the opportunity to be heard before a decision is made, are generally regarded as fundamental...the major requirement is to notify the subject matter and potential consequences": Aronson Dyer Groves, Judicial Review of Administrative Action; 3rd Ed. Pp499 and 500 and at p501:
At the heart of the courts’ approach to the content of notice is the well known proposition of Lord Denning that, if a right to be heard is worth anything, it must carry with it the right to know the case that has to be met: Kanda v Government of Malaya [1962] AC 322 at 337 (PC)."
And of course on our understanding of natural justice a
party cannot obtain relief which has not been sought or requested in the
pleading─see
London Passenger Transport
Board v Moscrop [1942] 1 All ER 97 per Lord Russel of Killowen at p105;
and cases must be decided on the issues on the record and the record must
be
amended if it is desired to raise other issues─see
Blay v Pollard and Morris [1930] 1 KB
628 at 634 per Scrutton LJ. Both cases were cited by Pratt J in the Supreme
Court in Ume More & Ors v University of
Papua New Guinea [1985] PNGLR 401 at 405.
In the case before me it
is uncontested that the last pleading with which the Defendant was served is
described as the Second Further
Amended Application in which the Defendant is
named as the Second Respondent. The only order sought against the Defendant in
that
document was in the following terms:
"ordering the Second Respondent to cause payment of the compensation and costs awarded against the First Respondent to be made out of the WorkCover Authority Fund established under section 34 of the Workplace Injury Management and Workers Compensation Act 1988."
As I have said,
the Defendant was the Second Respondent. The Third Respondent was the WorkCover
Authority. It would be reasonable
to believe that the Defendant had no ability
to effect the terms of the order sought against it and that the reference to the
Second
Respondent was mistaken and should have been a reference to the Third
Respondent.
No relief was sought against the Defendant whereby it would
become liable to pay any money. The case for the Applicant disclosed in
the
pleading in the action before the Compensation Court NSW was that the First
Respondent, Placer Pacific Management Limited, was
the employer, not the
Defendant.
A perusal of the judgement of the Compensation Court reveals
that during the course of the judgement it was found that the employer
was the
Defendant, the Second Respondent. It is not apparent how judgement was then
given, and I find that it was so given, against
the Defendant without notice to
the Defendant of the change in the Applicant’s case to claim an order for
the payment of money
against the Defendant. Right from the opening words of the
judgement, whether or not the worker was an employee of the Defendant
(Second
Respondent) was identified as a live issue to be decided. Having found that the
worker was employed by the Defendant the
court proceeded to make an award for
payment of money against it without reference to the fact that the
Applicant’s application
sought no award for payment of money against the
Defendant.
No doubt had the Defendant appealed in NSW the oversight
would have been rectified. However, paraphrasing the observations of the
Court
in the Cape Case in numbered para.4
last quoted above, this Court is not required to examine what remedy was
available to the Defendant in the country
of the original court if the hearing
itself, constituted a breach of natural justice, which I find it did.
As
in the Cape Case the Defendant ought
to have been able to rely upon the notice which was served upon it as proper
notice of the claim, which was made
against it, and the relief which was sought
against it. Indeed a fortiori in this
case because, whereas in
Cape the defendants were content to
let the court make assessments of damages against them in accordance with the
rules of the court,
without appearing; in this case, on the notice it received,
the Defendant should have been able to be content that no order of a
financial
nature for substantive relief at all would be made against it.
The
notice of the proceedings with which the Defendant was served was not just
inadequate; it was positively misleading in relation
to the ultimate
consequences of the case. The Defendant did not receive adequate notice of the
possible consequences of the action.
The enforcement of the judgment is against
public policy. If the judgement was registered, registration would be set aside
on this
ground. This is an additional ground for refusing registration of the
judgement.
Costs follow the
event.
ORDERS:
1. The Plaintiff’s action for registration of the foreign judgement is dismissed;
2. The Plaintiff is to pay the Defendant’s costs of and incidental to the proceedings.
____________________________________
Lawyers
for the Plaintiff : Gadens
Lawyers for the Defendant : Allen Arthur
Robinson
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback|
Report an error
URL: http://www.paclii.org/pg/cases/PGNC/2006/47.html