SC1368

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 143 OF 2009

BETWEEN:

ISAAC MINICUS
Appellant

AND:

TELIKOM PNG LIMITED
Respondent

Waigani: Salika DCJ, Cannings and
: Hartshorn JJ
2014: February 24th and 27th

Appeal 

Cases cited:

Don Polye v. Jimson Papaki & Ors (2000) SC637 
Simon Mali v. The State (2002) SC690 
Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765
Simon Mali v. Independent State of Papua New Guinea (2008) N3442
Network Construction Ltd v. Independent State of Papua New Guinea (2010) N4045
Infratech Management Consultants Ltd v. Kimmins (2011) N4276 
Reverend Andrew Moime v. National Housing Corporation (2012) SC1191 

Counsel:

Mr. N. B. Kubak, for the Appellant 
Mr. C. A. Kuira, for the Respondent

27th February, 2014

1. BY THE COURT: This is an appeal from a National Court decision that dismissed a proceeding (Dismissal decision). The Dismissal decision was made following a hearing to assess damages after a consent judgment for default in filing a defence had been ordered.

2. The grounds of appeal include that in essence the trial judge erred in dismissing the claim when default judgment had been entered and was admitted.

3. On this issue the respondent relied upon the Supreme Court decisions of Don Polye v. Jimson Papaki & Ors (2000) SC637 and Reverend Andrew Moime v. National Housing Corporation (2012) SC1191 for the proposition that an appeal can be refused by an exercise of the court's inherent jurisdiction and that in this instance this Court should refuse this appeal as no reasonable cause of action is disclosed in the statement of claim.

4. This submission fails to take into account that in this instance, a consent judgment was ordered. The respondent admitted liability. It is not merely a default judgment. If the trial judge determined after concluding the hearing as to an assessment of damages that the plaintiff had not sufficiently proved his loss, he was entitled to refuse to make an award of damages. By dismissing the proceeding however, the trial judge has set aside the judgment to which the respondent consented.

5. There was however, no application before the Court to set aside the consent judgment. If there had been, the defendant (the respondent in the present appeal) would have had the onerous task of persuading the Court that such an order should be made. In this regard we refer to the following decisions: Simon Mali v. The State (2002) SC690; Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765; Simon Mali v. Independent State of Papua New Guinea (2008) N3442; Network Construction Ltd v. Independent State of Papua New Guinea (2010) N4045 and Infratech Management Consultants Ltd v. Kimmins (2011) N4276. 

6. By dismissing the proceeding as distinct from refusing to make an award of damages, we are satisfied that the trial judge fell into error.

7. Consequently the appeal should be allowed. As it is apparent that the trial judge has also formed views concerning the appellant's alleged loss, the hearing of the assessment of damages should be before another judge. Given the above it is not necessary to consider the other submissions of counsel.

Orders

8. The Orders of the Court are:

a) This appeal is upheld.

b) The matter is remitted to the National Court at Lae for an assessment of damages hearing before another Judge.

c) The respondent shall pay the appellant's costs of and incidental to the National Court hearing appealed and this appeal which shall, if not agreed, be taxed.

_____________________________________________________________
Norbert Kubak & Co: Lawyers for the Appellant 
Telikom PNG Limited: Lawyers for the Respondent