Lyons Putupen and Others v Enga Provicial Government & 3 Others (2009) SC1035

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 21 May 2009
• Court: Supreme Court
• Citation: (2009) SC1035
• Docket Number: SCA NO. 16 OF 2009
• Year: 2009
• Judgement Number: SC1035

Full Title: SCA NO. 16 OF 2009; Lyons Putupen and Others v Enga Provicial Government & 3 Others (2009) SC1035

Supreme Court: Injia, CJ

Judgment Delivered: 21 May 2009

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) SC 801

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) SC 788

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...