Rex Manga Wapalin Holdings Ltd v Levi [2019] PGSC 79; SC1837 (3 July 2019)

SC1837

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 188 OF 2018

BETWEEN:
REX MANGA WAPALIN HOLDINGS LIMITED,
Applicant

AND:
INSPECTOR NOEL LEVI Jnr,
Station Commander, Port Moresby Police Station
First Respondent

AND:
SUPERINTENDENT MICHAEL TILAE,
Operations Commander, National Capital District
Second Respondent

AND:
GARRY BAKI,
Commissioner of Police, Royal Papua New Guinea Constabulary
Third Respondent

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J.
2019: 11^th April & 3^rd July

APPLICATION FOR LEAVE TO APPEAL

Cases Cited:
Papua New Guinea Cases

Moses Mewayo v. Mark Sakai (2018) SC1747
Oberia v. Charlie (2005) SC801

Overseas Case:

Adam P Brown Mail Fashions Pty Ltd v. Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
National Mutual Holdings Pty Ltd v. Sentry Corporation [1988] FCA 133; (1988) 83 ALR 434
Sir Frederick Jordan in Re Will of F.B. Gilbert (dec’d) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318

Counsel:

Mr. M. Maitang, for the Applicant
Mr. E. Tagu, for the Respondents

3^rd July, 2018

1. HARTSHORN J. This is a decision on a contested application for leave to appeal an interlocutory judgment of the National Court that refused an application for default judgment and granted leave to file a defence out of time (appealed decision).

Background

2. The applicant is a licensed liquor retailer and operates three liquor shops. It alleges that during the 2018 Easter period, the National Capital District Commission issued a liquor restriction notice for that period. Liquor retailers, including the applicant who were holders of club licenses were exempt. On 1^st April 2018, a group of police officers raided the applicant’s premises and liquor shops at 5 Mile, White House, Port Moresby, and confiscated all of the applicant’s stock in trade liquor and cash and caused damage to the liquor shops and other property.

3. The applicant commenced proceedings in the National Court against the respondents seeking damages for trespass to land, trespass to chattels, negligence and the cost of repairs. The respondents by the Solicitor General, filed their notice of intention to defend but failed to file their defence. The National Court refused an application for entry of default judgment and allowed the respondent’s time to file their defence.

Leave to appeal

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

5. In Oberia v. Charlie (2005) SC801, Lay J., after a comprehensive review of the authorities, listed the following tests that are to be applied to the facts of each application for leave to appeal:

a) Is there an arguable or prime facie case or has it been demonstrated that the trial judge was wrong?

b) Does the appellant have other recourse in the court below?

c) 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?

d) 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?

e) Will substantial injustice be caused by allowing the decision to stand?

f) Has cause been shown that the trial process should be interrupted by an appeal?

6. As I did in Moses Mewayo v. Mark Sakai (2018) SC1747, I also make reference to the following decisions which are persuasive in our jurisdiction: In Re Will of F.B. Gilbert (dec’d) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318, Sir Frederick Jordan stated the following at 323 which was cited with approval in Adam P Brown Mail Fashions Pty Ltd v. Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177 and National Mutual Holdings Pty Ltd v. Sentry Corporation [1988] FCA 133; (1988) 83 ALR 434 at 440:

“.... I am of opinion that, .... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges at first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a Court of Appeal.”

Consideration

7. From a consideration of the evidence and the submissions of the applicant, I am not satisfied that the applicant has shown that the appealed decision was not within the discretion of the Court or that its exercise was manifestly unreasonable.

8. If the primary judge did fall into error, the appealed decision only refuses to enter judgment and allows time for the filing of a defence. It does not have a bearing on the final issues between the parties, and it does not determine any of their substantive rights. The applicant is able to continue with its National Court proceeding against the respondents and will be entitled to costs and damages if it succeeds. The respondents are the State or representatives of the State and so the ability to recover any such costs and interest in time is not an issue. I am not satisfied that any injustice has been caused to the applicant that is not able to be remedied by a costs order. Further, cause has not been shown in my view, why the trial process should be interrupted by an appeal.

9. The application for leave to appeal should be refused. Given this it is not necessary to consider the other submissions of counsel.

Orders

10. It is ordered that:

a) The application for leave to appeal filed 27^thNovember 2018 is dismissed;

b) The applicant shall pay the costs of the respondents of and incidental to the said application for leave to appeal.
__________________________________________________________________
Holingu Lawyers: Lawyer’s for the Applicant
Office of the Solicitor General: Lawyers for the Respondents