SC1035

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 16 OF 2009

Between:

LYONS PUTUPEN AND OTHERS
Appellants

And:

ENGA PROVICIAL GOVERNMENT & 3 OTHERS
Respondents

Waigani: Injia, CJ
2009: 21st May

SUPREME COURT – practice and procedure – application for leave to appeal against interlocutory ruling of National Court – decision to dismiss application to enter default judgment subject of review –allegation of motions Judge not dealing with motions on its merit - motions judge failing to consider whether or not a defence was filed by respondent and if so whether it was filed within time - proposed grounds of appeal, issues raised and reasons given why leave should be given raise fundamental questions about due process, fair hearing and natural justice – whether the circumstances of this case give rise to those fundamental constitutional issues – 37 (11), 59, 154 (4) and 158 (2) Constitution

SUPREME COURT – practice and procedure - main issue to be decided in an application for leave to appeal is whether an arguable case has been demonstrated that there was an error in the exercise of discretion - applicant for leave to demonstrate that there is an arguable case that the exercise of discretion on the face of the record is manifestly unreasonable, or so unreasonable or plainly unjust - constitutional basis relied upon by applicants are not supported by circumstances of case - provisions referred to have no relevance to facts of case - proposed grounds of appeal set out in application for leave not arguable – application dismissed with costs to respondents

Cases Cited:
Papua New Guinea Cases

Matiabe Oberia v Police and the State (2005) SC801

Overseas cases

Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p. 627
Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106
Curtain Brothers (PNG) Ltd v UPNG (2005) SC788

Counsel:

Appellant/Applicant, in person
P Eri, for the respondents 

21st May, 2009

1. INJIA, CJ: This is an application for leave to appeal against an interlocutory ruling of the National Court given on 18th February 2009 in which the motion judge dismissed an application to enter default judgment in a civil claim. The application is contested by the respondents. I have considered submissions made by the parties and material relied upon.

2. A brief background of this application is this. On 22 August 2005, the applicants filed Originating Summons seeking declaratory orders, mandatory injunction and damages against the respondents in relation to a tribal fighting in the Rakamanda area near Wabag which damaged or destroyed properties in the area. The applicants alleged that the Enga Provincial Government failed to bring the fight under control or stop the fight. As a result the fight raged on and properties were damaged or destroyed.

3. On 9th April 2007, the Court directed the proceedings be conducted by pleadings. On 3 April 2007 a Statement of Claim was filed and later served. On 14th August 2007, the applicants filed a Motion seeking default judgment. On 18th October 2007 the respondents filed a cross motion seeking dismissal of the proceedings. On 6th March 2008, the two Motions came before Salika J who heard and dismissed the applicant’s motion. His Honor granted the respondents 14 days to file a Defence. His Honor did not make any orders for service of the Defence. At the time his Honor delivered his decision and announced the orders, neither party, in particular the applicants sought an order for service of the Defence. The National Court records show a Defence was filed within time on 11th March 2008 and it is registered as document no. 30. There is a dispute as to whether the Defence was served on the applicants at all or within time. There is evidence from the respondents which shows that the Defence and other Court documents were served on the principal applicant (Mr Putupen) through someone who rents a trade store situated on Mr Putupen’s residential premises but whether a complete set of those documents including the Defence reached Mr Putupen is in dispute. Mr Putupen says he received copy of only one document from this person sometimes later.

4. On 25th July 2008, the applicants filed Motion seeking orders, inter alia, that Defence be struck and default judgment be entered. On 18th February 2009, the Motion came before Kandakasi J who dismissed it and issued other directions to prepare the matter for trial.

5. In the present application the applicants take issue on the manner in which Kandakasi J conducted the hearing on the motion. The essence of their case is that His Honor did not deal with the Notice of Motion on its merits, did not allow the applicants to move their application, simply took the endorsement on the Court file of the Defence being filed without considering if the Defence was filed within time and if it was, then the failure to serve the Defence. In the process the judge did not consider the applicants’ case that the Defence was not filed within time and therefore it should be struck out and default judgment entered.

6. The proposed grounds of appeal, the issues raised and the reasons given why leave should be given which are set out in the application for leave all raise fundamental questions about due process, fair hearing and natural justice under ss 37 (11), 59, 154 (4) and 158 (2) of the Constitution. But whether the circumstances of this case give rise to those fundamental constitutional issues is another matter.

7. The main issue to be decided in an application for leave to appeal is whether an arguable case has been demonstrated that there was an error in the exercise of discretion. The application for leave in this case relates to exercise of discretion on a procedural matter within the Court’s jurisdiction in a civil case. When the Court is determining an application for leave to appeal against such decision, it is important for the Court dealing with the application for leave to be reminded of the strong presumption of correctness which attaches to the decision involving exercise of discretion in a civil case on a procedural matter within the Court’s jurisdiction. Such an applicant does have a harder roe to hoe, so to speak, compared with an applicant who seeks leave to appeal against other types of interlocutory judgments. Therefore, such an applicant for leave must demonstrate that there is an arguable case that the exercise of discretion on the face of the record is manifestly unreasonable, or so unreasonable or plainly unjust: These principles are well established: see Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p. 627, which was adopted by Clarkson J in Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106 at p.112. Also see Curtain Brothers (PNG) Ltd v UPNG (2005) SC 788.

8. The principles on grant of leave to appeal are canvassed in a recent judgment of Lay, J in Matiabe Oberia v Police and the State (2005) SC 801. Justice Lay summarized the main principles discerned from case authorities on grant of leave. The main test is whether the applicant has shown that there is a prima facie case that the decision was wrong and that substantial injustice will be done by leaving the erroneous decision unrevised. In determining this test, the relevant considerations stated in question form are:- 

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

2.	Does the appellant have 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 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? 

9. I adopt these principles and apply them to this case in the following manner. On the face of the National Court file, a Defence was filed within time. A copy of the Defence was placed inside the file and it appears it was always there. The document is properly registered on the Court file in chronological and numerical order and it is allocated a sequential number, which is No. 30 out of some 42 documents filed in the proceedings. Any Judge looking at the file cover endorsement and seeing a copy of the Defence inside the file would have rejected any suggestion that it was not filed or filed out of time as being baseless. For the same reasons, I do not think the proposed grounds of appeal relating to this point are arguable. 

10. The applicants concede that no specific order was made for service of the Defence but they submit that it is normal practice for the Defence to be served and it should have been served. Service of the Defence was not part of the Court order of Salika J. Thus it left the door open for the Defence to be served at any time. The pleading in this case did not follow the normal course of pleading in a Writ of Summons where time limits for filing and service is prescribed by the Rules. The applicants chose to commence and conduct proceedings by Originating Summons where filing and service of pleadings are subject to the direction of the Court. The respondents cannot be obliged to do any more than what the order says. Therefore, the grounds of appeal which raise issues as to the Defence not being served at all or out of time are not arguable on appeal.

11. The manner in which the judge may have conducted the hearing may have been prompted by the nature of the orders sought and the jurisdictional basis of the orders sought as pleaded in the motion. For instance, the first order sought states: 

"1. Paragraph 2 of the order of 6th March 2008 entered on 13th March 2008 be varied or set aside pursuant to Order 12 Rule 35 and Order 13 Rule 10 (a) of the National Court Rules in light of Court Order of 12th December 2007 by His Honor Justice Kandakasi".

12. Paragraph 2 of order of 6th March 2008 says "The Defendants shall file their defence within 14 days from 6th March 2008". This order was made inter partes. Order 12 rule 35 applies to setting aside ex parte orders for default judgment. It has no relevance to this case. Also the order of 6th March was made inter partes after full argument by parties. Matters affecting this order such as order of Kandakasi J of 12th December 2007 should have been addressed at that time. 

13. In respect of Order 13 Rule 10 (a), this rule states:

"10. Non performance of condition. (42/11)

Where a person is entitled under a judgement subject to the fulfilment of a condition, and there is a failure to fulfil the condition, then, unless the Court otherwise orders—

(a)	he shall lose the benefit of the judgement; and

(b)	any other person interested may take any steps which—

(i)	are warranted by the judgement; or

(ii)	might have been taken if the judgement had not been entered or the order had not been made."

14. Order 13 relates to enforcement of judgments given after a trial or by default. There was no judgment to the credit of the respondents in this case for this provision to be invoked by the applicants.

15. The orders sought by the applicants clearly lacked proper jurisdictional basis. The applicants did not satisfy the requirements for a hearing on the merits of the motion when the orders lacked jurisdictional basis to begin with. The applicants, or any applicant similarly placed for that matter, bring it upon themselves to be prevented by the Court from bringing and advancing frivolous, vexatious and spurious motions and motions which are lacking in proper jurisdictional foundation in the Rules of Court or in law or disclosing no reasonable cause in law, so that Court’s time is not wasted and Court process is not abused by busybodies.

16. The constitutional basis relied upon by the applicants are not supported by the circumstances of the case. Some of the provisions referred to have no relevance to the facts of the case such as breach of s 155 (4) of the Constitution.

17. For these reasons, I am satisfied that all the proposed grounds of appeal set out in the application for leave are not arguable. I dismiss the application with costs to the respondents.

_______________________________________
Applicants in person
Stevens Lawyers: Lawyer for the Respondents