SC1370

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 33 OF 2013

BETWEEN:

THOMAS WAPI
Appellant

AND:

SERGEANT KOGA IALY
First Respondent

AND:

CONSTABLE ROBERT GAFIYE
Second Respondent

AND:

GARY BAKI, Commissioner of Police
Third Respondent

AND

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Respondent

Waigani: Batari, Hartshorn and Sawong JJ.
2014: June 30th,
: July 4th
 
SUPREME COURT APPEAL - Appeal of dismissal of proceeding after default judgment entered and an assessment of damages

Cases cited:

Karl Paul v. Aruai Kispe and Ors (2001) N2085
Smith v. Ruma Constructions Ltd (2002) SC695 
Agiru v. Electoral Commission (2002) SC687
William Mel v. Coleman Pakalia and Ors (2005) SC790 
Jack Pinda v. Sam Inguba and Anor (2009) N4659
Rupundi Maku v. Steven Maliwolo and Anor (2012) SC1171 
Jack Pinda v. Sam Inguba and Anor (2012) SC1181

Counsel

Ms. J. Nandape, for the Appellant
Ms. R. Gelu and Mr. G. Akia, for the Respondents

4th July, 2014

1. BY THE COURT: This is an appeal from a National Court decision that dismissed a proceeding (Dismissal decision). The Dismissal decision was made following a hearing to assess damages. A default judgment had been entered for a failure to file a defence.

2. The grounds of appeal include that in essence the trial judge erred in dismissing the proceeding when default judgment had been entered.

3. On this issue the respondents relied upon amongst others the Supreme Court decisions of William Mel v. Coleman Pakalia and Ors (2005) SC790 and Rupundi Maku v. Steven Maliwolo and Anor (2012) SC1171 for the proposition that although a judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim, there is an exception where the court can revisit the issue of liability if the pleadings do not disclose a cause of action known to law. 

4. In Maku v. Maliwolo (supra), the Supreme Court dismissed an appeal that was against the dismissal of a proceeding. The dismissal of the proceeding was ordered after a hearing to assess damages. Default judgment had been entered by consent and there was no application to set aside the default judgment. The primary judge dismissed the proceeding pursuant to the inherent jurisdiction of the court as he had formed the view that the statement of claim did not disclose a cause of action in law.

5. Mel v. Coleman (supra) was also an appeal against the dismissal of a proceeding after an assessment of damages. That appeal was upheld but not on the issue of whether the primary judge erred in dismissing a claim after judgment had been entered.

6. We are also aware of the recent Supreme Court decision of Jack Pinda v. Sam Inguba and Anor (2012) SC1181 in which the Court dismissed an appeal against what is described as a dismissal of proceedings following an assessment of damages and in which a default judgment had been entered. We note however that the National Court decision appealed was the decision of Hartshorn J., Jack Pinda v. Sam Inguba and Anor (2009) N4659. From a perusal of that decision, it is apparent that His Honour did not in fact dismiss the proceeding. Rather, he refused to award damages following a hearing to assess damages. The default judgment remained.

7. It is accepted that the National Court has inherent jurisdiction and pursuant to s.155 (4) Constitution, is able to control its own processes. In this regard and by way of example, we refer to Agiru v. Electoral Commission (2002) SC687 in which the Supreme Court said:

"Those principles in essence are that, the court's inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court's duty to protect itself by ensuring that vexatious litigants do not abuse the court's process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of process. (see, generally, Ronney Wabia v BP Exploration Operating Co. Ltd & Ors, Unreported National Court Judgment N1697dated 28 March 1998)"

8. We also make reference to the decision of Injia J (as he then was) of Karl Paul v. Aruai Kispe and Ors (2001) N2085 in which His Honour said:

"This Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by Statute. It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case. To this end, it is within the inherent jurisdiction of the Court toscrutinize the form and contents of documents before it. State v. Alphonse Woinangu N966 (1991).

There is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court, (O12 r40) or the documents filed in Court are scandalous, irrelevant or otherwise oppressive (O2 r29), or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O1 r1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party: see Siaman Riri & Anor v. Simon Nusen & Ors N1375 (1995). It is for this reason that I raised the issue of competency on my initiative."

9. That said, this power of the Court should be exercised cautiously and in the clearest of cases.

10. If judgment, including a default judgment, has been entered in a proceeding, this constitutes a determination by the National Court on the question of liability. This determination should not be set aside unless a successful application for that purpose is made.

11. If another National Court dismisses a proceeding in which a default judgment has been entered, it is amongst others, setting aside the judgment and denying the plaintiff of its benefit. It is also, in effect, reviewing the decision to enter default judgment. In that regard we are reminded of the words of Kapi DCJ (as he then was) in Smith v. Ruma Constructions Ltd (2002) SC695 when His Honour, in considering an appeal against a decision to set aside a summary judgment said:

"The approach taken by the trial judge with respect is fundamentally wrong. In essence the learned trial judge reviewed the decision of Woods J. The trial judge had no jurisdiction to do this under an application to set aside judgment under O12 r8 of the Rules. This power belongs to the Supreme Court under the Supreme Court Act or s. 155 (2) (b) of the Constitution."

12. Given the above, we are of the view that where a judgment, be it default or otherwise, has been entered, and a primary judge determines, after concluding a hearing to assess damages, that the plaintiff has not sufficiently proved his loss or that no cause of action is disclosed in the statement of claim or that the pleadings are defective or that the claim is frivolous or vexatious or is an abuse of process, he is entitled to refuse to make an award of damages. This is in accord with him being able to consider the question of liability for the damages claimed. To dismiss the entire proceeding however, in the absence of any application to set aside, as in this case, the effect of which is to review the decision to enter judgment and to set such judgment aside, is in our respectful view, to fall into error.

13. Consequently, we are of the view that this appeal should be upheld. Given this, it is not necessary to consider the other grounds of appeal.

14. As to the orders that this court should make, we are satisfied that given the comments of the primary judge as to the lack of a cause of action, the most appropriate order is for the matter to be referred back to the National Court for an assessment of damages before another judge.

Orders

15. The formal Orders of the Court are: 

a)	The appeal is upheld.

b) 	The matter is remitted to the National Court at Waigani for an assessment of damages before another Judge.

c) 	The respondents' shall pay the appellant's costs of and incidental to the National Court hearing appealed and this appeal which shall, if not agreed, be taxed. 

Nandape & Associates: Lawyers for the Appellant 
Office of the Solicitor General: Lawyers for the Respondent