Oberia v Charlie [2005] PGSC 26; SC801 (12 October 2005)

SC801

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 96 OF 2005

BETWEEN

MATIABE OBERIA
on behalf of himself and the dependants
Appellant

AND

CHIEF INSPECTOR MICHAEL CHARLIE
COMMANDER OF THE 15 MEMBER POLICE MOBILE
SQUAD OF TARI AND MACGREGOR,
NATIONAL CAPITAL DISTRICT
First Respondent

AND

SAM INGUBA
POLICE COMMISSIONER
Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Lay,J
2005: 7^th and 12^th October

APPEAL ─ application for leave to appeal ─ Supreme Court Act s14(3)(b) ─ proper principles for exercise of jurisdiction.

Cases Cited:
Sir Julius Chan v The Ombudsman Commission (1998) SC607;
The Honourable Andrew Baing and the Independent State of PNG v PNG National Stevedores Pty. Ltd and Bank of South Pacific Limited SC627;
Breckwoldt v Gnoyke (1974) PNGLR 106;
Rimbink Pato v Anthony Manjin & Ors SC622;
Boyepe Peri v Emmanuel Ningi SC711;
Kante Mininga v The State & ors N1458
Bale Kitipa v Vincent Awali & Ors N1773;
Ereari Lanyat v George Wagulo [1997] PNGLR 253;
Dalin More v The Independent State of Papua New Guinea N1736;
Helen Tupi v The State N1654

Facts:

The Appellant sued in the National Court for damages for an unlawful killing. 7 months after service of the writ the Appellant applied for default judgement. The Respondents cross applied for an extension of time in which to file their defence. The application for default judgement was refused and the application for an extension of time was granted. The Appellant appeals from that decision and leave is sought to appeal.

Held:

The tests to be summarised from the cases for the exercise of the jurisdiction are:

1. Is there an arguable or prima facie case or has it been demonstrated that the trial judge was wrong?

2. Does the Appellant have other recourse in the court below?

3. Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?
4. Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?
5. Will substantial injustice be caused by allowing the decision to stand?
6. Has cause been shown that the trial process should be interrupted by an appeal?
   

No arguable case was shown. The Appellant has recourse in the National Court as he may proceed to trial. The ruling was within the discretion of the court and it was not shown that the discretion was wrongly exercised. The decision has no bearing on the final determination of the issues between the parties. No injustice will be suffered by the Appellant if the decision is allowed to stand. No cause has therefore been shown as to why the trial process should be interrupted by an appeal. Application for leave refused.

Counsel:
Mr. Nasil for the Applicant
Mr. Makap for the Respondents

RULING ON APPLICATION FOR LEAVE TO APPEAL

LAY J: This is an application to a single judge of the Supreme Court for leave to appeal pursuant to ss10 & 14(3)(b) of the Supreme Court Act.

The Appellant sued in the National Court for damages for an unlawful killing. 7 months after service of the writ the Appellant applied for default judgement. The Respondents cross applied for an extension of time in which to file their defence. The application for default judgment was refused by Los J and the application for an extension of time was granted. The Appellant appeals from that decision and leave is sought to appeal.

Submissions

The Appellant submitted that all of the pre-requisites to default judgment were met and demonstrated to the Court. It was therefore wrong to refuse the application for default judgment. Next it was submitted that the Respondents did not move their motion for an extension of time to file their defence. Consequently none of the parties made submissions on that issue. It was wrong; it was submitted, to allow an extension of time not sought in court. Lastly it was submitted that if plaintiffs are to be kept to a strict application of the time limit in the Claims by and Against the State Act s5 then the State should be kept to a strict application of the times in s9 which are 60 days to appear and 30 days to defend.

The Respondents submitted that the provisions of O12 r32(1) make it clear that the entry of judgment was in the discretion of the Court. Therefore the Appellant needs to show why the judge at first instance’s discretion was wrongly exercised. They submitted that the grounds of appeal simply repeat that the Appellant had complied with the requirements to entry of default judgment, and that the Respondents had defaulted. Further the application for default judgment was not served on the First and Second Respondents, only on the Solicitor General and the co-defendants would have been at a disadvantage in obtaining instructions. Finally the Appellant still has his remedy at trial.

The Facts

It appears from the Appellants letter to the Solicitor General constituting notice under the Claims by and Against the State Act s5, that the Appellant’s claim is that the late Mugu Oberia, whilst walking in the Koroba District in the Southern Highlands accidentally came to the same place as some notorious criminals just as the police arrived to apprehend the criminals. The deceased was rounded up with the criminals and tied up with his hands behind his back. The main party of policemen left. The small number of policemen left guarding the deceased came to realize that the deceased had K10,000 in his pockets so they shot him dead in order to steal the money.

The Solicitor General had entered an appearance for the 1^st and 2^nd Respondents. Service on the Solicitor General was service on those Respondents. The Plaintiff now Appellant had demonstrated that all of the conditions precedent to entry of default judgement had been complied with.

The judge at first instance gave short reasons for his decision to refuse the application for default judgement and extend time to defend in which he expressed the view that “...mistakes could be possible and only a full trial will sort this out. I therefore grant leave to the Defendants to file Defence out of time.”

The Law

The requirement to seek leave is a procedure designed to ensure that the Supreme Court is not clogged with appeals from every interlocutory ruling of a judge made before the final judgement.

“, leave to appeal is therefore unlikely to be given in circumstances where the judgment challenged may have little or no bearing on the final determination of the issues between the parties; leave should not be given where by the rules of the court there is obvious recourse for further application on the matter, nor should leave be given where the ruling is within the discretion of the Court and discloses no obvious breach of principle: Sir Julius Chan v The Ombudsman Commission (1998) SC607 (Kapi DCJ, Sheehan and Jalina JJ) at p11 per Sheehan and Jalina JJ.

Just how this Court will exercise its discretion in granting of leave to appeal or for review varies according to the relevant circumstances. These range from the need to show "exceptional circumstances" in time barred appeal cases starting with Avia Aihi v State (1982) PNGLR 92 and PNG v Albert (1988) PNGLR 138 to the showing of an arguable case, that is one of "cogent convincing reasons on clear legal grounds" in judicial review (Moi Avi & Election Commission & Charlies Maino SCA 584). Of course the judicial review criteria nonetheless relates to substantive decisions effecting parties rights, and even then, remains subject to there being no other remedy open, that is equally effective and convenient.”

The majority (Sheehan and Jalina JJ) also said:

“There has to be cause shown therefore why the ordinary process of trial and determination of the issues should be interrupted by appeal procedure. Simply put there has to be good reason that the court empowered by law to try the issues between the parties should not be allowed to do so and that notwithstanding an order made in the National Court is interlocutory only, it is of such a nature that it requires the intervention of the Supreme Court.”

And at p21:

"So to obtain leave to appeal an interlocutory judgment, it is not simply a matter of asserting there is an arguable case; that there has been some error. It is not the case that every error will affect the outcome of the substantive proceedings. What must be shown is, not only that there has been some patent error, but that the error affects a party's substantive rights or will prevent the determination of the issues. That is, there is an error in the interlocutory judgment that goes to jurisdiction."

This latter passage was relied upon by the Court in The Honourable Andrew Baing and the Independent State of PNG v PNG National Stevedores Pty. Ltd and Bank of South Pacific Limited SC627 (Sheehan, Sawong & Kirrowom JJ).

In Sir Julius Chan v Ombudsman Kapi DCJ(in the minority) said:

“In my view the test should not be any different to application for leave for judicial review where the applicant is required to demonstrate an arguable case.”

In the later case of Rimbink Pato v Anthony Manjin & Ors SC622 (Sheehan, Sevua & Akuram JJ) the Supreme Court said:

“...we are of the opinion that an application for leave pursuant to s.14(3)(b) should establish some grounds for which leave should be granted. We think more along the lines of the principles in respect of application for review under Constitution s.155(2)(b). It is our view that for leave to be granted, an applicant must advance cogent and convincing reasons or exceptional circumstances. There must be clear legal grounds meriting an appeal, and he must have an arguable case. We hold that these principles be the guiding principles in an application pursuant to s.14(3)(b).”

It is somewhat difficult to interpret that passage as it seems to me to propose at least two quite different tests. The test for a review under Constitution s155(2)(b) is quite clearly a very high threshold for the applicant to meet, because in most circumstances the applicant has already let their rights to apply for leave or to appeal expire without action. Indeed, the expression in the third sentence commencing “It is our view...” sets out a different and higher test to that set out in the following sentence.” “Cogent and convincing” seems to me to be a higher test than “arguable”. Although I am bound by Supreme Court authority I am really unable to say what test that passage lays down. I can only explain it as being a compendious way of referring to the sliding scale test, depending on the nature of the case, referred to by the majority in Sir Julius Chan v Ombudsman. With the greatest respect to the Court in Patot v Manjin, I set it aside from my consideration as not being of assistance in determining the principles which should apply.

In the case of Boyepe Peri v Emmanuel Ningi SC711 (Los, Kandakasi & Mogish JJ) the Court approved the “arguable case” test set out by Kapi DCJ (as he then was) in Sir Julius Chan v Ombudsman without noting that his Honour was in the minority in that case and that the majority, although approving the “arguable case” test in some circumstances also indicated additional tests which should apply.

I am unable to find any later case on the issue of the test to apply. It seems to me therefore that the Supreme Court cases establish that the “arguable case” test is approved generally although:

(a) there are other considerations which must be taken into account after establishing that there is an arguable case; and,

(b) in some circumstances the test may have to be a higher one, for example, in s155(2)(b) applications as the majority in Sir Julius Chan v Ombusdman mentioned in the passage quoted above. As Kapi DCJ pointed out in his minority judgement, a s155(2)(b) review is a completely different jurisdiction from leave to appeal under s14(3)(b) and by referring to both in attempting to compile the principles for exercising jurisdiction in the former, there is the danger that the test will be formulated too high for s14(3)(b).

The onus is on the applicant to show a prima facie case that the decision of the trial judge was wrong and that substantial injustice will be done by leaving the erroneous decision unrevised: see Breckwoldt v Gnoyke (1974) PNGLR 106 (Clarkson, Prentice and Lalor) per Lalor J at p126.

The observations quoted from those cases can be summarized in the following tests to be applied to the facts of the case:

1. Is there an arguable or prima facie case or has it been demonstrated that the trial judge was wrong?

2. Does the Appellant have other recourse in the court below?

3. Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?
4. Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?
5. Will substantial injustice be caused by allowing the decision to stand?
6. Has cause been shown that the trial process should be interrupted by an appeal?
   

Arguable Case

For the reasons I set out below in relation to the exercise of the Court’s discretion I do not consider that it has been established that there is an arguable case.

Other Recourse

The Appellant obviously does have other recourse in the Court below, he can go on to have his cause of action tried in the ordinary way with no loss of or impediment to his rights as a result of the interlocutory decision.

Exercise of Discretion
O12 r 32(1) states that: “...where a Defendant is in default the Court -may on application by the Plaintiff, direct entry of such judgment against the defendant as the Plaintiff appears to be entitled on his writ of summons.” It is clear from that provision that whether or not the Court directs entry of judgement is a matter of discretion. See for example the decisions of Injia DCJ (as he is now) in Kante Mininga v The State & ors N1458 and Bale Kitipa v Vincent Awali & Ors N1773. Of course any judicial discretion must be exercised judicially and not capriciously. Injia DCJ advanced several reason why discretion might be exercised against the direction of entry of judgement.:

a) prejudice to the rights of co-defendants;

b) pleadings too vague;

c) pleadings do not disclose a good cause of action;

d) default judgement cannot be substantiated in law.

Examples in my own experience which not infrequently occur are attempts to obtain default judgment where the statement of claim discloses a time bar applies, or where the Plaintiff has not strictly complied with service requirements.

On the hearing of motions in the Waigani National Court the volume of work is so great that the judge cannot be expected to explicitly enunciate every consideration which might operate on his mind in making an interlocutory order. In my view all of the matter which would support the order made should be taken into account in weighing whether the order is arguably wrong or unreasonable. In this case very serious allegations of cold blooded wilful murder are made. It is not unreasonable that a judge would take the view that where an allegation of serious criminal behaviour is made as the basis of liability in civil proceedings the issue ought to go to trial where, even belatedly, the Defendants indicate a willingness & desire to defend. As his Honour said “...mistakes can be made...” Those mistakes could go to identification of the murderers, none of whom is a named Respondent.

One could go further and say that some doubt could be harboured as to whether vicarious liability extended to the Respondents at all on the facts (see for example the observations in Ereari Lanyat v George Wagulo [1997] PNGLR 253 and N1736 Dalin More vThe Independent State of Papua New Guinea (Injia J as he then was) and the last paragraph of N1654 Helen Tupi v The State (Kapi DCJ as he then was)) and that the issue of vicarious liability should go to trial. Counsel were not given the opportunity to address on that issue and I cite it only as an example of the many issues which may operate on the judge’s mind, and not as a reason for my decision.

In relation to enlarging the time for filing the defence the Court has wide powers under O4 r31 which provides:

“31. Directions. (5/7)

(1) The Court may exercise its powers under this Rule at any time after the commencement of the proceedings.

(2) The Court shall give such directions as are convenient for the just, quick and cheap disposal of the proceedings.

(3) Without limiting the generality of Sub-rule (2), the Court may—

(a) make orders for defining the issues by pleading or otherwise; and

(b) direct that the whole or any part of the evidence be given on affidavit or orally; and

(c) make any orders relating to the conduct of the proceedings which it might make on motion by a party.”

O4 r31(3)(c) supports the proposition, if any were needed, that the judge could make an order extending the time for defence, even if there was no motion filed.

The Appellant has demonstrated that all of the conditions precedent to entry of default judgement have been met. However he has not demonstrated an arguable case as to why the judge’s exercise of discretion was wrong or arguably so. The Appellant did not put the pleadings into evidence in this application. It would be very difficult to demonstrate that there had been a wrong exercise of discretion without the pleadings.

I conclude that the decision was within the discretion of the court and it has not been demonstrated that the exercise of the discretion was arguably wrong, unreasonable or based on a wrong principle of law or mistaken fact. The refusal to enter judgement, by itself, is not an error of fact or law.

Bearing on the Final Determination

The decision has no bearing on the final determination of the issues between the parties. It has simply deprived the Appellant of the opportunity to deprive the Respondents of the opportunity to Defend.

Substantial Injustice

No substantial injustice will be suffered by the Appellant if the decision is allowed to stand. He will be able to exercise all of his rights to have a trial of the issues. It is true that the Appellant will have to meet the costs of a trial, but that cannot be called an injustice because the costs of trial are the usual incidents of conducting litigation.

Claims by and Against the State Act ss5 & 9

Turning for a moment to the Appellant’s submission that if plaintiffs are strictly held to the time limit in s5 of the Act the State should be held strictly to the times in s9; I observe that just as the State may apply under the Rules of Court to enlarge the time for filing a defence, so may a plaintiff apply to the Court under s5(2) to enlarge the time to give a s5 notice. So that argument does not demonstrate some form of discrimination against plaintiffs. Both parties have the right to apply to the Court to enlarge time.

I am therefore of the opinion that it has not been demonstrated that the trial process should be interrupted by an appeal. For those reasons I refuse the application for leave to appeal.
_____________________________________________________________________
Lawyer for the Applicant : Nasil Lawyers
Lawyer for the Respondents : Paul Paraka Lawyers