SC1081

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA No. 61 OF 2009
&
SCA No. 62 OF 2009

BETWEEN:

LORD & CO. LIMITED
Appellant

AND:

TIMOTHY INAPERO 
trading as Gordons Sports & Entertainment Centre
Respondent

Waigani: Sawong, J
2010: 25th August, 03rd September

SUPREME COURT – practice and procedure – application for leave to appeal - principles on grant or refusal of leave applications are settled and discretionary - main principle to be established on an application for leave is that there is an arguable case - nature of case as pleaded demonstrate that issues raised are arguable – application for leave to appeal granted

Facts:

The National Court struck out the Defences filed in two related proceedings and entered judgment against the Appellant for damages to be assessed in each matter. The Appellant then filed separate applications for Leave to Appeal. The Respondent filed separate Objections to Competency to the leave applications but was dismissed for want of prosecution. The leave applications were then heard ex parte as counsel for Respondent did not appear.

Held:

1.	The Defendant had already filed an amended defence and it was entitled to rely on it. It need not file another Amended Defence to the Amended Statement of Claim, if it did not consider it necessary. 

2.	The learned trial judge erred by exercising his discretion improperly. 

3.	A quick perusal of all the materials, in particular the grounds or reasons why leave should be granted, and the nature of the case as pleaded, demonstrate clearly that, the issues raised are arguable. 

4.	Leave to appeal in both matters is granted.

Cases cited:

Sir Julius Chan v. Ombudsman Commission of PNG [1999] PNGLR 240

Counsel:

Mr. F. Griffin, for the Appellant 
No appearance for the Respondent.

RULING
03rd September, 2010

1.	SAWONG, J: On 6th May 2009, the National Court struck out the Defences filed in two related proceedings and entered judgment against the Appellant for damages to be assessed in each matter. 

2.	On 10th June 2009, the Appellant filed separate applications for Leave to Appeal (leave applications). 

3.	On 26th June 2009, the Respondent filed separate Objections to Competency to the leave applications. 

4.	On 30th June 2009, the Respondent filed an Amended Objection to Competency in SCA 61 of 2009.

5.	On 25th August 2010, both the objections to competency and the leave applications were listed for hearing before me. There was no appearance by counsel for the Objector/Respondent and upon hearing Mr. Griffin, counsel for the Appellant, I dismissed the objections for want of prosecutions. I then heard Mr. Griffin on the leave applications. These were heard ex parte, as although counsel for the Respondent had been properly notified, he did not appear. This ruling is therefore in relation to the applications for leave to appeal. 

6.	The principles on grant or refusal of leave applications are settled. The grant or refusal of leave is discretionary. The main principle to be established on an application for leave is that there is an arguable case. Where the decision sought to be appealed from falls within the ordinary interlocutory discretion of the trial judge relating to procedure and practice or costs, in addition to disclosing an arguable case, the applicant may have to demonstrate or show that the decision appealed from prevents agitation at trial of some issue germane to the applicant's case. See Sir Julius Chan v. Ombudsman Commission of PNG [1999] PNGLR 240.

7.	The onus is on the applicant to persuade the Court to exercise the discretion in its favour.

8.	In support of this application Mr. Griffin relied on the Affidavits of Phang Kum Soon sworn and filed 10th June 2009 and a supplementary affidavit sworn and filed 1st July 2009. 

9.	He submitted that when the Court considers the nature of the case, the grounds of the case, the affidavit material and the questions involve, they demonstrate that the Appellant's case is arguable. 

10.	He submitted that the grounds set out in the application for leave are not speculative or spurious but demonstrate that the Appellant has an arguable case. 

11.	The principle reason for the trial judge to dismiss the Defendant's defence was that the Defendant had not filed an Amended Defence to the Amended Statement of Claim. But that is not quite correct, for the Defendant had already filed an amended defence on 17th September 2004 and it was entitled to rely on it. It need not file another Amended Defence to the Amended Statement of Claim, if it did not consider it necessary. I am therefore of the view that the learned trial judge erred on this ground which led him to exercise his discretion improperly. 

12.	A quick perusal of all the materials, in particular the grounds or reasons why leave should be granted, and the nature of the case as pleaded, demonstrate clearly that, the issues raised are arguable. 

13.	For those reasons, I would grant leave to Appellant to appeal in both matters.

14.	I make the following orders: 

1.	The Appellant be granted leave to appeal against the National Court decision of 6th May 2009 in proceeding Nos. WS 246 of 2003 and WS 844 of 2003.

2.	Pursuant to Order 7 Rule 5 of the Supreme Court Rules, the Application for Leave to Appeal be treated as respective Notices of Appeal in both proceedings. 

3.	The Respondents shall pay the Appellants costs, to be taxed, if not agreed.

___________________________________________________
Lawyers for the Appellant  - Young & Williams Lawyers
Lawyers for the Respondent -Parkil