SC663

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

1)	SCA NO.58 OF 2000

BETWEEN:

NATIONAL CAPITAL DISTRICT COMMISSION

AND:

NAMO TRADING LIMITED

2)	SCA NO. 59 OF 2000

BETWEEN:

NATIONAL CAPITAL DISTRICT BUILDING AUTHORITY

AND:

NAMO TRADING LIMITED

Waigani : Los, Injia & Gavara-Nanu, JJ
2001	: February 20, 23

Supreme Court Act s.14(3)(b) – Whether summary judgment "for damages to be assessed" is an interlocutory judgment.

Cases cited in the judgment:
Ruma Construction Pty Limited v. Christopher Smith SC600 [1999]
LA Jarden Collector of Agency Pty Ltd v. Richard Hill & Associates & Others SC597 [1998]
The Electricity Commission of New South Wales v. Lapthorne (1971) 124 CLR 177

Counsel:
K. Yalo, for the Applicant/Respondent
D. Goma, for the Respondent/Appellant

23 February 2001

BY THE COURT:	This is an objection to competency of two separate but similar appeals in SCA 58 & 59/2000 which were lodged against one "summary judgment for damages to be assessed" in respect of WS No. 1328/99 entered against the two Appellants by the National Court at Waigani on 8 September 2000. The principal basis of the objection is that the judgment was interlocutory and leave to appeal was not obtained as required by s.14(3)(b) of the Supreme Court Act (Chapter No.37).

Mr Yalo of Counsel for the Applicant submits that although the terms of the summary judgment in the present case is similar to the terms of the summary judgement in Ruma Construction Pty Ltd v. Christopher Smith SC 600 (1999) ("Ruma") in that both judgments were "summary judgments for damages to be assessed", and the principle enunciated by the Supreme Court in Ruma that a summary judgment is a final judgment for which leave to appeal is not required must be confined to its own facts. He submits the Plaintiff’s main claim in that case was for specific performance of a contract for the sale of land and because the summary judgement on liability was final and dispositive of the Plaintiff’s principal claim, the summary judgment was final. He submits the gist of the Plaintiff’s action in the present case being is one of damages in tort for damage to property, and because the summary judgement was determinitive of the issue of liability only and damages were to be assessed as a matter of course, the summary judgment was interlocutory. He relies on the High Court of Australia, decision in the Electricity Commission of N.S.W. v. Lapthorne [1971] C.L.R. 177. 

Mr Goma of Counsel for the Respondent/Appellant submits that the principle in Ruma is equally applicable to the present case and when adopted and applied, the objection should fail. He submits the Supreme Court in Ruma considered the issue of a summary judgment "for damages to be assessed" and enunciated a principle which is all encompassing and it is applicable to the present case.

In Ruma, the Supreme Court said:

"The issue before us is; whether the summary judgement entered is an interlocutory judgment. The cases have established in determining this issue that there are two tests which may be applied. The tests are first that the court must look at the nature of the application to the court and not the order the court eventually made. Second the court must look at whether the judgment or order made finally disposes of the right of the disputing parties (Shelly v PNG Aviation Services [1979] PNGLR 119; Provincial Government of North Solomons v Pacific Architecture [1992] PNGLR 145; Rimbink Pato v The Hon. Sir Julius Chan and the Hon. Chris Haiveta (Unreported judgment of the Supreme Court dated 6th July 1997, SC527; LA Jarden Collector Agency Pty Ltd v Richard Hill & Associates and Masket Ingalio and Public Curator of PNG (Unreported judgment of the Supreme Court dated 31st August 1998, SC597)…

In the present case, the judgment finally disposes of the issues before the Court and there are no further issues left to be determined. Whether or not the law makes provision for reviewing that decision and whether or not that decision may be discharged or varied does not change the nature of the orders that they are final. We find that the summary judgment in the present case is not an interlocutory judgment and therefore leave is not necessary".

In our view, in Ruma, the Court was dealing with a summary judgment for damages to be assessed which was entered ex parte. The main argument raised there was that because there were provisions in the National Court Rules permitting a Defendant to set aside an ex parte judgment obtained by the Plaintiff, the "summary judgment for damages to be assessed" was interlocutory. The Court’s principle enunciated as it appears in the latter part of the above quote was an answer to the specific issue raised in that case. The issue of whether a summary judgment "for damages to be assessed" was an interlocutory judgment was not considered by the Court because the point was not raised by the parties. We conclude that the principle in Ruma which we consider to be sound, should be confined to cases where the issue is one of whether a summary judgment for damages to be assessed in an action for specific performance of a contract of sale obtained ex parte is interlocutory or final.

In our view, the test to be applied is whether the judgment and order is final in that it "finally disposes of the right of the disputing parties" or "there is no substantive issue(s) afoot that remains to be tried" (La Jarden Collected Agency Pty Ltd v Richard Hill; Ors Supra SC 597 [1998], or "because the order results in the rights of the parties in those proceedings being terminated or extinguished" (NCDC v PNG Water Ltd & Ors SC624 (199). 

The mere fact that a judgment is expressed to be summary is not conclusive of whether that judgment is final or interlocutory. Summary judgment is granted at two levels, summary judgment in respect of liability and damages. It is necessary to consider the nature and effect of the summary judgment in the light of the whole of the proceedings. In that regard it is also necessary to consider the nature of the Plaintiff’s claim(s) and the issue(s) before the Court. If for instance, the gist of the Plaintiff’s action is one for damages in say tort or contract, the issues of liability and damages are almost invariably inseparable. In some cases, judgment on liability and quantum of damages may be determined in the same summary judgment, either by consent or in a separate determination funded on the pleadings or the evidence. Liquidated claims fall into this category of cases. There is no question of the finality of this type of summary judgment. In other cases, where for instance summary judgment is entered and it is one of summary judgment for damages to be assessed, then the summary judgment cannot be said to be final for the judgment is strictly one on liability only and damages is yet to be assessed, as a matter of course. Unliquidated claims fall into this category. The summary judgment in this type of case is interlocutory. 

There is another practical way of looking at this. In the present case, the gist of the Plaintiff’s action was one for damages in tort. If the appeal were to be successful and the summary judgment were set aside, the claim would have to proceed before the National Court to be tried on both issue of liability and damages. If the appeal were to be unsuccessful then the matter will still have to go before the National Court to be tried on damages. The National Court would then make one final decision, once and for all. A party aggrieved by that one final decision will have a right of appeal. It is inappropriate to split up the summary judgment into one in respect of liability and another in respect of damages of course categorize them as either interlocutory or final, for appeal purposes. And so either way one looks at this summary judgment in this case, in the light of the whole case, it can be said that the summary judgment was not finally dispositive of the Plaintiff’s action.

We are fortified in our view by the majority view in the Electricity Commission of NSW case cited to us by Mr Yalo. We agree with and adopt what Chief Justice Barwick said at page 184-185:–

"But the question remains whether so regarding the order of the Court of Appeal as a judgment (entered for the Plaintiff with damages to be assessed) of the Supreme Court, it was a final judgment of that Court. In my opinion, so regarded, it was relevantly to be described as an interlocutory judgment, an appeal from it being competent only by leave of this Court. It did not dispose of the action nor of any part of it. Where damages are of the gist, liability cannot relevantly be divorced from the damages as a separate and independent matter. 

Finally, it seems to me that in a common law system such as prevailed at the relevant time in New South Wales, a judgment entered for the plaintiff in default of appearance or of defence in an action for unliquidated damages is the classical example of an interlocutory judgment. Only after assessment of damages could a final judgment, as upon verdict, be entered. I am unable to accept the conclusion, if applied to such a situation, that because an order for the assessment of damages was intended to be a judgment for the plaintiff for damages to be assessed, the order was a final order within the meaning of s.35 of the Judiciary Act".

For these reasons, we conclude that the summary judgment in the present case was an interlocutory judgment for which leave was required. As no leave was obtained, the two appeals are incompetent. Having arrived at this conclusion, it is not necessary to consider the other grounds of objection which were raised by the Respondent and argued before us. We strike out both appeals with costs to the Respondent.

Lawyer for the Applicant/Respondent: Karl Yalo & Associates
Lawyer for the Respondent/Applicant: Ketan Lawyers