Bari v Raim [2004] PGSC 17; SC768 (5 November 2004)

SC768

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE

SCA 100 of 2004

BETWEEN:

PAUL BARI, ORIM BARI and THE STATE
Appellants

AND:

JOHN RAIM
Respondents

WAIGANI: SALIKA, MOGISH, CANNINGS, JJs
29 September, 05 November, 2004

SUPREME COURT – Civil Appeals – Practice and Procedure – Section 14(3)(b) of Supreme Court Act – Whether Judgment interlocutory or final – what is the appropriate test.

Cases Cited:
Pato v Julius Chan & Ors – SC527

Statutes:
Supreme Court Act.

Mr J Bokomi for the Appellants.
Mr B Boma for the Respondent

BY THE COURT: This is an objection to competency. The objection has been filed by the Respondent applicant John Raim.

To put the application into perspective it is necessary to state the background of the matter.

The Respondent in this matter, John Raim, initiated National Court proceeding styled "WS No 563 of 2003 John Raim v Paul Bari, Orim Kari and The State." The writ was filed on 7 May 2003 and served on the State on 29 May 2003. Prior to the writ being filed, the plaintiff gave notice of intention to sue the State for damages caused to his Public Motor Vehicle (hereinafter referred to as a PMV) bus by policemen. This was done to comply with the requirement of s.5 of the Claims by and Against the State Act.

After the writ had been filed the then Acting Solicitor-General, Mr John Kumura filed a Notice of Intention to Defend for and on behalf of the Defendants on 26 June 2003. The defendant through the Acting Solicitor-General failed to file a defence within the prescribed statutory time of 90 days from the date of service.

On 24 October 2003 the plaintiff obtained a default judgment with damages to be assessed.

On the 04 June 2004 the Acting Solicitor-General filed an application to set aside the Default judgment ordered on 24 October 2003 and also to seek leave of the Court to file the Defence out of time within 14 days from the date of hearing of the application. The application was supported by an affidavit. The plaintiff had earlier on the 17 May 2004 filed an application to have the matter set down for assessment of damages. That application was supported by an affidavit too. The two applications were heard by Davani J on 18 June 2004. Upon hearing the application, her Honour refused the application to set aside the default judgment and in so doing also refused to grant leave to the defendants to file their defence out of time. Her Honour, however, granted the plaintiff’s application to have the proceedings set down for trial for assessment of damages.

It is that refusal by Davani J to set aside the default judgment that the defendant now seeks to appeal from. The defendants are now the appellants in these proceedings. They have filed their application for leave to appeal.

It is that application for leave that an objection is being raised to its competency by the respondents to these proceedings.

The appellants filed their Notice of Application for leave to Appeal on 15 July 2004. The respondent filed his Notice of objection to competency on 21 July 2004.

Civil Appeals

Section 14 of the Supreme Court Act provides for Civil Appeals from the National Court to the Supreme Court. It reads:-

14. Civil Appeals to the Supreme Court.
    • (1) Subject to this section, an appeal lies to the Supreme Court from the National Court –
      • (a) on a question of law; or
      • (b) on a question of mixed fact and law; or
      • (c) with the leave of the Supreme Court, on a question of fact.
    • (2) An appeal does not lie from an order of the National Court made by consent of the parties.
    • (3) No appeal lies to the Supreme Court without leave of the Supreme Court –
      • (a) from an order allowing an extension of time for appealing or applying for leave to appeal; or
      • (b) from an interlocutory judgment made or given by the National Court except –
        • (i) where the liberty of the subject or the custody of infants is concerned; or
        • (ii) in cases of granting or refusing an injunction or appointing a receiver, or
        • (iii) in such other cases prescribed by the Rules of Court as re in the nature of final decision; or
      • (c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgment.

The application for leave to appeal in this matter is purported to have been filed pursuant to s.14(3)(b) of the Supreme Court Act. An application for leave to appeal can be filed under s.14(3)(b) of the Supreme Court Act. The primary question that needs to be asked is, whether the judgment that leave is being sought to be appealed from is, an interlocutory judgment? This question was not argued before us. Counsel did not make submissions on this point. A member of the Court, Cannings J, did ask Mr Boma if the judgment given by Davani, J in this matter was an interlocutory judgment. Mr Boma’s answer was that because the matter was heard as a motion matter he thought the judgment was an interlocutory judgment. That however is, not the proper test as to whether a judgment is final or interlocutory. The Supreme Court in the matter of SC527 RIMBINK PATO v HON SIR JULIUS CHAN and OTHERS said:-

"The tests are that the court must look at the nature of the application to the Court and not the nature of the Order the Court eventually made. Second the Court must look at whether the judgment or order made finally disposes of the rights of the disputing parties.

This court is not necessarily bound by that Court’s views but there is no reason to depart from the tests expounded in that case. We would apply the same tests in this case to determine whether the judgment is final or interlocutory.

We have considered the nature of the application and the orders of the National Court given on 24 October 2003, granting or awarding a default judgment to the plaintiff, as being an interlocutory application and the orders thereof also to be interlocutory. This is because the defendants had the opportunity to set aside that judgment. The defendants did apply by motion to set aside the default judgment. The application by the defendant to set aside the default judgment was refused and the orders of 24 October 2003 confirmed. The Court also refused the application to file a defence out of time. In our view when those orders were made they became final. This is because in so far as liability was concerned judgment on the liability of the defendants was finally put to rest. The only matter remaining was to assess damages. In that scenario our view is that leave to appeal under s.14(3)(b) is not required because the judgment is final.

The appellants have not covered themselves by filing a notice of appeal within the required time What has happened is that they have not carefully thought about the matter and read the earlier Supreme Court judgments. If they did they might have done the right thing. Here they have not covered themselves and as a result they now find that they are out of time to file their notice of appeal.

The process the appellants have invoked is in our view wrong. Leave was not required. They ought to have filed a Notice of Appeal. They now find themselves out of time to file a Notice of Appeal. The Court cannot assist here.

In the end result, the application for leave is misconceived and the objection to the competency of the application for leave to appeal is sustained. Costs shall be payable by the appellant.
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Lawyer for the Appellants: Solicitor-General
Lawyer for the Respondent: Poro Lawyers