SC2665
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 2 OF 2020

PNG POWER LIMITED
Appellant

V

GRANT HOFFMEISTER
Respondent

Waigani: Cannings J, Bona J, Eliakim J
2024: 25th & 29th November

SUPREME COURT – PRACTICE AND PROCEDURE – whether leave to appeal is required – Supreme Court Act, s 14(3) – whether a default judgment on liability with damages to be assessed is an interlocutory judgment, requiring leave of the Court to appeal against it – objection to competency of appeal on ground that leave to appeal against interlocutory judgment was not granted.

Facts

The appellant was defendant in the National Court and appealed against an order that “default judgment is entered for the plaintiff against the defendant on liability with damages to be assessed”. At the hearing of the appeal the respondent raised orally (having given notice to the appellant of his intention to do so) an objection to competency of the appeal on the ground that the order of the National Court was an interlocutory judgment and therefore an appeal against it could only be made with leave of the Supreme Court under s 14(3) of the Supreme Court Act, and as leave had not been granted, the appeal was incompetent and should be dismissed. 

Held: 

(1)	To determine whether a judgment of the National Court is an interlocutory judgment it is necessary to consider the nature and effect of the order and assess whether it finally determines the rights of the disputing parties and whether there are any substantive issues yet to be tried.

(2)	Here, the order did not finally determine the rights of the disputing parties as it only determined the issue of liability and did not determine the substantive issue of the amount of damages, if any, awarded to the defendant.

(3)	Further, as the order entered default judgment against the defendant, it could have been set aside by the National Court under Order 12 rules 8 or 35 of the National Court Rules, and this reinforced the conclusion that it was an interlocutory judgment and leave of the Supreme Court to appeal against it was required.

(4)	As leave to appeal was not granted, the appeal was incompetent and was dismissed. It was unnecessary to consider the merits of the appeal. The order of the National Court was affirmed.

Cases Cited
Daniel v Pak Domoi Ltd (2004) SC736
NCDC v Namo Trading Ltd (2001) SC663
Albright Ltd v Mekeo Hinterland Holdings Ltd (2014) SC1400
Green & Co Pty Ltd v Green [1976] PNGLR 73
Monave v Nauga (2024) SC2596
Punagi v Pacific Plantation Timber Ltd [2011] 2 PNGLR 92

Counsel
E Goina, for the Appellant
N Ako, for the Respondent

29th November 2024

1.          BY THE COURT: We have heard an appeal by PNG Power Ltd against the order of the National Court of 28 November 2019 to enter default judgment against it, with damages to be assessed, in proceedings WS 269 of 2019 in which a former employee, Grant Hoffmeister, the respondent, claimed that he was owed long service leave entitlements after 36 years of employment with PNG Power Ltd or its predecessor, Elcom.  

2.         We also heard an oral objection by the respondent to competency of the appeal on the ground that the order of the National Court was an interlocutory judgment and therefore an appeal against it could only be made with leave of the Supreme Court under s 14(3) of the Supreme Court Act, and as leave had not been granted, the appeal was incompetent and should be dismissed.

3.             Ample notice of the oral objection to competency was given to the appellant, which did not object to our hearing it. We will determine it first, before addressing the merits of the appeal.

ORDER OF THE NATIONAL COURT

4.      The order appealed against was made on a motion by the respondent for summary judgment on a liquidated sum. The primary judge, however, did not order summary judgment for a liquidated sum. Instead her Honour ordered:

1.	The defendant’s defence is struck out for there being no defence on its merits and for pleading the general issue.
2.	Default judgment is entered for the plaintiff against the defendant on liability with damages to be assessed.
3.	The defendant shall pay the plaintiff’s costs, to be taxed if not agreed.

5.      One of the grounds of appeal is that the judge erred in law when entering default judgment as the respondent did not seek default judgment and the appellant was denied the opportunity to address the court on whether default judgment could be entered. However, we are uninterested at this stage in the merits of the appeal. Our present interest is confined to the question whether the judgment of the National Court was interlocutory. This is the critical question due to s 14(3)(b) of the Supreme Court Act, which provides:

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 judgement 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 are in the nature of final decisions. [Emphasis added.]

6.     To determine whether a judgment of the National Court is interlocutory it is necessary to consider the nature and effect of the judgment and assess whether it finally determines the rights of the disputing parties and whether there are any substantive issues yet to be tried (NCDC v Namo Trading Ltd (2001) SC663, Daniel v Pak Domoi Ltd (2004) SC736, Punagi v Pacific Plantation Timber Ltd [2011] 2 PNGLR 92).

7.     Here, the order did not finally determine the rights of the disputing parties as it only determined the issue of liability and did not determine the substantive issue of the amount of damages, if any, awarded to the defendant. 

8.     Further, as the order entered default judgment against the defendant, it could have been set aside under Order 12 rules 8 or 35 of the National Court Rules (Green & Co Pty Ltd v Green [1976] PNGLR 73, Albright Ltd v Mekeo Hinterland Holdings Ltd (2014) SC1400, Monave v Nauga (2024) SC2596). This reinforces our conclusion that it was an interlocutory judgment and leave of the Supreme Court to appeal against it was required.

9.     As leave of the Court was neither sought nor granted, the appeal is incompetent.

CONCLUSION 

10.     We uphold the objection to competency. The appeal must be dismissed. It is unnecessary to consider the merits of the appeal. As to costs, the objection has been made orally and late, so it is not appropriate that the respondent be awarded costs. The parties will bear their own costs. 

ORDER

(1)	The objection to competency of the appeal is upheld.

(2)	The appeal is dismissed.

(3)	The order of the National Court of 28 November 2019 is affirmed.

(4)	WS 269 of 2019 is remitted to the National Court for continuation of proceedings. 

(5)	The parties shall bear their own costs of the appeal. 
__________________________________________________________________
Dentons Lawyers: Lawyers for the Appellant	
O’Briens Lawyers: Lawyers for the Respondent