Madang Timbers Limited v Henry Wasa, Registrar of Titles, Department of Lands & Physical Planning and Benjamin Samson, Deputy Registrar of Titles, Department of Lands & Physical Planning and The Independent State of Papua New Guinea and Zheng Erhung (2012) SC1196

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 24 August 2012
• Court: Supreme Court
• Citation: (2012) SC1196
• Docket Number: SCA NO. 67 OF 2012
• Year: 2012
• Judgement Number: SC1196

Full Title: SCA NO. 67 OF 2012; Madang Timbers Limited v Henry Wasa, Registrar of Titles, Department of Lands & Physical Planning and Benjamin Samson, Deputy Registrar of Titles, Department of Lands & Physical Planning and The Independent State of Papua New Guinea and Zheng Erhung (2012) SC1196

Supreme Court: Davani J

Judgment Delivered: 24 August 2012

SC1196

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 67 OF 2012

BETWEEN

MADANG TIMBERS LIMITED

Appellant/Applicant

AND

HENRY WASA, Registrar of Titles, Department of Lands & Physical Planning

First Respondent

AND

BENJAMIN SAMSON, Deputy Registrar of Titles, Department of Lands & Physical Planning

Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

AND

ZHENG ERHUNG

Fourth Respondent

Waigani: Davani J

2012: 23rd, 24th August,

SUPREME COURT – Application for leave to appeal an interlocutory decision - refusal to grant default judgment and leave to file defence out of time - S. 14 (3) (b) of Supreme Court Act

SUPREME COURT – Application for leave to appeal an interlocutory decision – the principles to consider – there must be a proper exercise of discretion before grant of leave

APPLICATION FOR LEAVE – to appeal an interlocutory decision – appellate Court will not intervene in the exercise of discretion unless the applicant can show that the discretion was exercised on a wrong principle of law or a mistake of fact and that the order will result in injustice.

Facts

The applicant/appellant seeks leave to appeal an interlocutory decision of the National Court of 21st May, 2012, which Court refused to grant default judgment to the Plaintiff, applicant now, and which also gave leave to the fourth defendant, fourth respondent now, to file its Defence out of time. The application is made pursuant to s.14 (3) (b) of the Supreme Court Act.

Issue

What are the principles to be considered when deciding on an application to grant leave to appeal an interlocutory decision of the National Court?

Reason

The Courts must be cautious when deciding whether to grant leave to appeal or not in applications under s.14(3) (b) of the Supreme Court Act. Applications for leave to appeal interlocutory decisions of the National Court is a power that is discretionary and one that must be exercised with caution. The Court hearing the leave application;

1. Need only be satisfied that the judgment challenged will or may have little or no bearing on the final determination of the issues between the parties; and

2. That leave should not be given where, by the rules of Court, there is obvious recourse for further application in the matter; and

3. That leave is within the discretion of the Court and discloses no obvious breach of principles.

4. The other reason the Court of appeal should not easily rush to grant leave is that those interlocutory judgments or orders can be vacated or varied by the Court that issued them. This machinery that is available to parties is often found in the rules of Court and in our case in this jurisdiction, it is found at Order 12, Rule 8. For default judgments more particularly, the relevant rule is O. 12 R. 8 (2) (b) and such applications must be filed before entry of judgment. (see Sir Julius Chan v. Ombudsman Commission of Papua New Guinea [1999] PNGLR 240)

5. In Re – the Will of Gilbert (1946) (NSW) LR318, Jordan J said:

“I am of the opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interferences with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercise of discretion in interlocutory applications from a Judge in Chambers to a Court of appeal.”(my emphasis)

6. Garrard v. Email [1993] 32 NSWLR 662 at 668 where Kirby ACJ said;

“Appellate Courts must pause long and hard before disturbing interlocutory orders and especially in matters of practice and procedure and costs.” Kirby ACJ went on to say that what is required is “a manifestly unreasonable exercise of discretion before the appellant Court should intervene.”

7. The appellate Courts will not intervene in the exercise of discretion within a jurisdiction unless the applicant can show that such a discretion was exercised on a wrong principle of law or a mistake of fact and that the order will result in injustice. (see Hadmor Productions v. Hamilton [1982] 2 WLR 322 (HL); Metropolitan Properties Co. Ltd v. Purdy [1940] 1ALL ER 188 CA; Bradford Buildings Society v. Borders [1939] 3ALL ER 29 at 33).

Held

1. Application for leave to appeal is refused.

2. The applicant shall pay the fourth respondent’s costs of the application, to be taxed if not agreed.

Counsel:

Mr T. Anis, for the Applicant/Appellant

Ms M. Peipul, for the fourth Respondent

No appearance for and on behalf of the first, second and third Respondents by the Office of the Solicitor General

DECISION

24th August, 2012

1. DAVANI J: Before the Court is Application for Leave to Appeal filed on 20th June, 2012 by Bradshaw Lawyers for and on behalf of the Appellant/Applicant (“Applicant”).

2. The application for leave is opposed by the fourth Respondent. The first, second and third Respondents did not make appearance either by themselves or by their lawyer, the Office of the Solicitor-General. I should state for the record that the Office of the Solicitor-General was advised in writing of today’s hearing but chose not to appear.

Affidavits filed

3. The application is supported by the affidavit of Thomas Anis, lawyer, sworn on 15th June, 2012 and filed on 20th June, 2012.

4. Also before the Court is the affidavit of Mayambo Piepul, lawyer, sworn on 10th August, 2012 and filed on 14th August, 2012. Ms Peipul, of Ketan Lawyers, appears in this application for and on behalf of the fourth Respondent.

Decision appealed against and on which leave is sought.

5. The application for leave to appeal is made against the National Court’s decision of 21st May, 2012 in proceedings OS 351 of 2011.

6. The proceedings were converted to pleadings by order of the National Court on 23rd December, 2011. Those orders read;

“1. Zheng Erhung is given leave to join as a Defendant in the proceedings.

2. The Plaintiff has leave to name other Defendants when the Writ of Summons and Statement of Claim is filed as provided for in Order 3 hereunder.

3. The proceedings are now converted to a Writ of Summons and Statement of Claim to allow the Plaintiff to comply with Orders 1 and 2 herein and which must be filed and served within 21 days on or before 10 January, 2012.

4. Thereafter, the named Defendants have leave to file and serve their Defences within a further 21 days on or before 30 January, 2012.

5. The matter returns to this Court on 7 February, 2012 at 9:30am for the Court to be appraised of the status of the matter.”

7. Because the named Defendants did not file their Defences within the time ordered by the Court on 23rd December, 2011, the appellant then applied for default judgment on 25th April, 2012. On 10th May, 2012, the fourth Respondent filed a cross-motion seeking extension of time to file his Defence out of time. On 21st May, 2012, the National Court heard both applications and ordered the following:

“1. The Plaintiff’s application for default judgment is refused;

2. The fourth Defendant’s application for confirmation of his Defence is refused as not proper;

3. The Defendants are allowed a further 14 days in which to file their Defence;

4. Plaintiff’s costs to be paid by Defendants;

5. Time for orders to be abridged.”

8. The Appellant applies for leave to appeal this decision.

Ground of Appeal

9. The grounds of appeal as pleaded in the application for leave to appeal are as follows:

“(1) the trial Judge erred in mixed fact and law when he firstly failed to find and rule that the Respondents have defaulted in relation to the Appellant’s application for default judgment after default was proven by the Appellant;

(2) the trial Judge erred in mixed fact and law when he rejected the Appellant’s application and granted time to the Respondents to file their Defences out of time when the Respondents have failed to discharge their burden of proof with regard to their application, that is, the trial Judge failed:

(i) to consider and find that the Respondents did not promptly apply to seek an extension of time to file their defences out of time;

(ii) to consider and find that the Respondents did not file any evidence giving valid reasons for not filing their defences within time;

(iii) to consider and find that the Respondents did not file any valid evidence whether from themselves or from responsible persons...