National Capital District Commission v PNG Water Ltd [1999] PGSC 27; SC624 (6 October 1999)

Unreported Supreme Court Decisions

SC624

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO. 79 OF 1998
BETWEEN: NATIONAL CAPITAL DISTRICT COMMISSION
(APPELLANT)
AND: PNG WATER LTD
(FIRST RESPONDENT)
AND: JC-KRTA CONSULTING GROUP (PNG) PTY LTD
(SECOND RESPONDENT)
AND: NCD WATER & SEWERAGE PTY LTD
(THIRD RESPONDENT)

Waigani

Los Jalina Injia JJ
6 October 1999

SUPREME COURT ACT, s.14(3)(b) – Whether an order dismissing action for want of prosecution is an interlocutory judgment.

Cases Cited

Shelly v. PNG Aviation Services Ltd [1979] PNGLR 119.

Rimbink Pato v. Sir Julius Chan and Others SC 527 [1997].

North Solomons Provincial Government v. Pacific Architecture [1991] PNGLR 145.

L.A. Jarden Collector Agency & Anor v. Iangalio & Public Curator SC 507 [1998].

Ruma Construction Pty Ltd v. Christopher Smith SC 600 [1999]

Somoday v. Australia Iron & Steel Ltd [1963] HCA 50; [1963] 109 C.L.R. 285.

Barclays Bank v. Piacun [1964] Qd R 476.

Hart v. Hall & Pickles Ltd [1968] 3 ALL E.R. 291.

HELD

(1) An order dismissing an action for want of prosecution is not an Interlocutory order for which leave is required under S.14(3) (b) of this Supreme Court Act.

L.A. Jarden Collector Agency v. Iangalio & Anor SC 508 [1998] & Ruma Construction Pty Ltd v. Christopher Smith SC 600 [1999] both followed. Hart v. Hall and Pickles [1968] 3 ALL E.R. 291 distinguished.

(2) Likewise an ex parte default judgment is not an interlocutory Judgment for which leave is required under S.14(3) of the Supreme Court Act.

Somoday v. Australian Iron & Steel Ltd [1963] HCA 50; [1963] 109 C.L.R. 285, and Barclays Bank v. Piacun [1984] Qd R.476 referred to (obiter dicta).

Counsel

Mr S. Ketan for Appellant

Mr Bradshaw for the 1^st and 2^nd Respondents

Mr A Manase for the 3^rd Respondent

6 October 1999

LOS JALINA INJIA JJ: This is the respondents’ application to dismiss the appeal on the grounds of incompetency. The basis of the application stated in question form is whether the judgment of the National Court, made on 4 September 1998 in relation to proceedings in WS No. 1006 of 1996, dismissing the claim against the respondents’ for want of prosecution pursuant to Order 4 Rule 36 of the National Court Rules is an interlocutory judgment for which leave to appeal is required under S.14(3)(b) of the Supreme Court Act (Ch. No. 37).

Mr Broadshaw and Mr Manase, counsels for the respondents/applicants submit that the judgment is an interlocutory one because the judgment did not finally dispose of the rights of the parties. They submit this is so because first, the judgment was of founded on the determination of the merits of the case, secondly, because it was still open for the plaintiffs to institute fresh proceedings against the defendants pursuant to Order 12 Rule 7 of the National Court Rules and thirdly, because the judgment did not affect the rights of other defendants in the same proceedings. We are referred to two tests established in earlier cases such as Shelley v. PNG Aviation Services Ltd [1979] PNGLR 199; Rimbink Pato v. Sir Julius Chan and Others SC 527 [1997]; and North Solomons Provincial Government v. Pacific Architecture [1991] PNGLR 145, which were applied last year by the Supreme Court in L.A. Jarden Collector Agency Pty Ltd & Anor v. Iangalio & Anor SC 507 [1988] and more recently applied by the Supreme Court in Ruma Constructions Pty Ltd v. Christopher Smith SC 600 [1999]. The two tests are first, the Court must look at the nature of the application to the Court and not the order eventually made, and the second, the Court must look at whether the judgment or order made finally disposes of the rights of the disputing parties.

In L.A. Jarden Collector Agency and Ruma Construction, the Supreme Court did not develop any new tests rather than to simply affirm and apply the two tests consistently established in the earlier cases. The majority in applying the two tests in L.A. Jarden Collector Agency, decided that whilst the appellant had other statutory avenues open under the Insolvency Act to challenge an adjudication order made by the National Court, that is a distinct and separate issue, the point being that the judgment was final in that there was no substantial issue afoot in those proceedings that remained to be tried. In Ruma Constructions, the Supreme Court accepted and applied the majority view in L.A. Jarden Collector Agency and decided that a summary judgment made by the National Court in the absence of the defendant which the defendant could apply to set aside before the same court under the National Court Rules was a final decision. The Supreme Court said at page 5:

“Whether or not the law makes provision for reviewing that decision and whether or not that decision may be discharged or varied does not change the nature of the orders that they are final.”

We should also venture to say that we see no reason why the principles in L.A. Jarden Collector Agency and Ruma Construction should not equally apply to ex parte default judgments: See Somoday v. Australia Iron and Steel Ltd [1963] HCA 50; [1963] 109 C.L.R. 285 at 297, Barclays Bank v. Piacun [1984] Qd 476 at 477 - 478.

Attempts were made by counsels for the respondents to distinguish the Ruma Construction and L.A. Jardens Collector Agency cases on the basis that in those cases, the judgment were founded upon a determination of the merits of the case. Counsel for the First and Second Respondents cited the English House of Lords decision Hart v. Hall and Pickles Ltd [1968] 3 ALL ER 291 at 293 where Lord Denning stated that an order dismissing an action for want of prosecution was not a final judgment because there being no finding on the merits, it was open for the plaintiff to commence fresh proceedings if the action was not defeated by the Statute of Limitations. In our view, this principle is limited to the narrow issue of whether a tortfeasor may be relieved from any further liability upon a fresh action instituted by the plaintiff after his first action is dismissed for want of prosecution. That is not the same issue in this appeal. The different issue in this appeal is a broader one of whether an order dismissing the proceedings for want of prosecution finally disposes of the rights of the parties in those set of proceedings, for purposes of instituting an appeal against that decision, as a matter of right. The issue of whether the plaintiff has available other procedural or legal avenues to re-institute the same action is entirely another matter. In our view, an order dismissing an action for want of prosecution is in the nature of a final order because it results in the rights of the parties in those set of proceedings being terminated or extinguished.

In our view, the general principles stated in L.A. Jarden Collector Agency and Ruma Construction are equally applicable to an order dismissing an action for want of prosecution. The fact that there exists procedural provisions in the rules of the Court to allow a plaintiff whose action is dismissed for want of prosecution to institute fresh proceedings does not change the final nature of the order. Applying these principles, we are quire clear that the judgment in the present case is a final judgment for which leave to appeal unders.14(3)(b) of the Supreme Court Act is not required.

Having arrived at the above conclusion, it is not necessary to determine other procedural issues raised by the parties.

We dismiss the objection to competency with costs to the appellants.

Lawyer for the Appellant: Blake Dawson Waldron

Lawyer for the 1^st and 2^nd Respondents: Peter Pena & Associates

Lawyer for the 3^rd Respondent: Pato Lawyers