National Capital District Commission v PNG Water Ltd, JC-KRTA Consulting Group (PNG) Pty Ltd and NCD Water and Sewerage Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Los J, Jalina J, Injia J
• Judgment Date: 06 October 1999
• Citation: (1999) SC624
• Court: Supreme Court
• Year: 1999
• Judgement Number: SC624

Supreme Court: Los J, Jalina J, Injia J

Judgment Delivered: 6 October 1999

SC624

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA No. 79 of 1998

BETWEEN:

NATIONAL CAPITAL DISTRICT COMMISSION

(Appellant)

AND:

PNG WATER LTD

(First Respondent)

AND:

JC-KRTA CONSULTING GROUP (PNG) PTY LTD

(Second Respondent)

AND:

NCD WATER & SEWERAGE PTY LTD

(Third Respondent)

WAIGANI : Los, Jalina & Injia JJ

1999: October 6

Supreme Court Act, s.14(3)(b) — Whether an order dismissing action for want of prosecution is an interlocutory judgment.

Cases Cited in judgment:

Shelly v. PNG Aviation Services Ltd [1979] PNGLR 119.

Rimbink Pato v. Sir Julius Chan and Others SC 527 [1997].

North Solomons Provincial Government v. Pacific Architecture [1991] PNGLR 145.

L.A. Jarden Collector Agency & Anor v. Iangalio & Public Curator SC 507 [1998].

Ruma Construction Pty Ltd v. Christopher Smith SC 600 [1999]

Somoday v. Australia Iron & Steel Ltd [1963] 109 C.L.R. 285.

Barclays Bank v. Piacun [1964] Qd R 476.

Hart v. Hall & Pickles Ltd [1968] 3 ALL E.R. 291.

HELD:

(1) An order dismissing an action for want of prosecution is not an

Interlocutory order for which leave is required under S.14(3) (b) of this

Supreme Court Act. L.A. Jarden Collector Agency v. Iangalio & Anor

SC 508 [1998] & Ruma Construction Pty Ltd v. Christopher Smith SC 600

[1999] both followed. Hart v. Hall and Pickles [1968] 3 ALL E.R. 291

distinguished.

(2) Likewise an ex parte default judgment is not an interlocutory

Judgment for which leave is required under S.14(3) of the Supreme

Courts Act. Somoday v. Australian Iron & Steel Ltd [1963] 109 C.L.R.

285, and Barclays Bank v. Piacun [1984] Qd R.476 referred to (obiter

dicta).

Mr S. Ketan for Appellant

Mr Bradshaw for the 1st and 2nd Respondents

Mr A Manase for the 3rd Respondent

6th October 1999

BY THE COURT: This is the respondents' application to dismiss the appeal on the grounds of incompetency. The basis of the application stated in question form is whether the judgment of the National Court, made on 4 September 1998 in relation to proceedings in WS No. 1006 of 1996, dismissing the claim against the respondents' for want of prosecution pursuant to Order 4 Rule 36 of the National Court Rules is an interlocutory judgment for which leave to appeal is required under S.14(3)(b) of the Supreme Court Act (Ch. No. 37).

Mr Broadshaw and Mr Manase, counsels for the respondents/applicants submit that the judgment is an interlocutory one because the judgment did not finally dispose of the rights of the parties. They submit this is so because first, the judgment was of founded on the determination of the merits of the case, secondly, because it was still open for the plaintiffs to institute fresh proceedings against the defendants pursuant to Order 12 Rule 7...