Oio Aba v Motor Vehicles Insurance Limited (2005) SC779

• Jurisdiction: Papua New Guinea
• Judge: By the Court:
• Judgment Date: 04 March 2005
• Court: Supreme Court
• Citation: (2005) SC779
• Docket Number: SCRA 147 of 2003
• Year: 2005
• Judgement Number: SC779

Full Title: SCRA 147 of 2003; Oio Aba v Motor Vehicles Insurance Limited (2005) SC779

Supreme Court: Injia DCJ, Sawong J, Lay J

Judgment Delivered: 4 March 2005

SC779

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 147 OF 2003

OIO ABA

Appellant

AND

MOTOR VEHICLES INSURANCE LIMITED

Respondent

INJIA DCJ SAWONG J AND LAY J

PORT MORESBY

2005: 28th February and 4th March 2005

SUPREME COURT ACT – s14 - objection to competency – whether application should be struck out when unnecessary – whether s14(3)(b)(iii) can have any application in the absence of Supreme Court Rules relating thereto –whether judgement is final or interlocutory tested by nature of application or effect of the decision.

Boyepe Pere v Emmanual Ningi SC711 applied

North Solomons Provincial Government v Pacific Architecture Pty. Ltd [1992] PNGLR 145 followed;

Shelley v PNG Aviation Services Pty. Limited [1979] PNGLR 119 doubted.

Counsel

Mr Uware for the Appellant

Mr Titus for the Respondent

RULING ON OBJECTION TO COMPETENCY

The Appellant has filed an Application for Leave to Appeal, without filing a Notice of Appeal; and the Respondent has filed a Notice of Objection to Competency. The Appeal is from an order of the National Court striking out the proceedings for failure to show a good cause of action because the plaintiff had not given notice of intention to claim pursuant to s54(6) pf the Motor Vehicles (Third Party) Insurance Act.

The first ground of the Notice of Objection to Competency is that the Application for leave to Appeal is contrary to s14 of the Supreme Court Act. It is submitted that leave is not required because the order made by the Court below was “in the nature of final decisions” and it argues that the Supreme Court Act s14(3)(b)(iii) permits an appeal in those circumstances without leave. Therefore the Respondent says, as leave is not required, leave cannot be granted and the Application for Leave cannot be converted to a Notice of Appeal; or no further time can be given to the Appellant to file a Notice of Appeal. No Notice of Appeal has been filed therefore there is no appeal on foot.

The Appellant relies upon the case of Boyepe Pere v Emmanual Ningi

1 SC711 Los, Kandakasi and Mogish JJ

1 and submits that whilst leave was not required, the Appellant shows grounds of appeal that have merit and the Court should use its discretion to grant leave in accordance with the principle in that case.

Our Reasons

The Supreme Court Act s14(3)(b)(iii) provides:

“No appeal lies to the Supreme Court without leave of the Supreme Court—

(a) …; or

(b) from an interlocutory judgement made or given by the National Court except—

(i) …

(ii) …

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions;

…”

The same words appeared in s20 of the pre independence Supreme Court Act. It was recognized then, as now, that the Supreme Court Rules do not prescribe for cases “…as are in the nature of final decisions”. In Breckwoldt

2 [1974] PNGLR 106 Clarkson Prentice and Lalor JJ

2vGnoyke& Co (N.G. Pty. Limited Clarkson J, said:

However for reasons I discuss later I do not think anything turns on the distinction here and I treat the application as one for leave to appeal against an interlocutory order which has not been prescribed under s. 20 (3) (b) (iii) of the Supreme Court (Full Court) Act as being in the nature of a final order.

The Court went on to decide the case on a point not relevant here.

The legislature has clearly set out the criteria for discovering the class of decisions of a final nature under s14(3)(b)(iii). When there are no such criteria the provision simply becomes irrelevant. There is no provision in the Supreme Court Rules prescribing cases in the nature of final decisions for the purposes of s14(3)(b)(iii); that paragraph can therefore not have any application to this or any other matter. It is a simple matter of construction of an act of the Parliament. As the Supreme Court said in Christian Revival Crusade v Eyo Taviviya & Ors

3 SC610 Kapi DCJ Jalina and Injia JJ

3:

“It is trite principle of statutory interpretation that if “the words of a statute are themselves precise and unambiguous, then no more is necessary than to expound those words in their ordinary and natural sense.” Wemas –v- Kepas Tumdual {1978] PNGLR 173 at 176 per Wilson J. adopted in SCA No. 6 of 1984 Re Provocation [1985] PNGLR 31.”

In our opinion until the judges make rules in terms of s14(3)(b)(iii) of the Supreme Court Act the paragraph cannot be applied. That disposes of the Section 14(3)(b)(iii) argument. The facts of the Application do not come within any of the other exceptions to the requirement for leave in that subsection.

However the question then remains, is the judgment interlocutory within the meaning of s14(3)(b), thus requiring leave? In Re Moresby Northeast Election Petition; Patterson Lowa v Goasa Damena

4 [1977] PNGLR 429 @ 431 Prentice DCJ Williams J and Pritchard J

4 Prentice J, expressed the view that

“It does not appear to me that a ruling during the course of the hearing of a case (though sometimes for convenience called such) is an “interlocutory judgment” within the meaning of s. 14 of the Supreme Court Act. Such an “interlocutory judgment”, in my opinion, is one which gives a decision upon a particular motion or summons before the Court.”

In referring to that case in 1999

5 SC607 The Rt. Hon Sir Julius Chan v The Ombudsman Commission of PNG Kapi DCJ Sheehan and Jalina JJ

5 Kapi DCJ reserved his opinion on whether Prentice DCJ’s statement was correct, as he noted that there had been no reference by the Court to the definition of “judgment” in the Supreme Court Act” which provides that

"judgement" includes a finding, decree, order, rule, conviction, verdict and sentence, a decree, order or rule nisi, and a refusal to make a finding, decree, order or rule;”

Both of those cases were concerned with arguments attempting to distinguish interlocutory “ruling” from a “judgment” in order to conclude that no appeal could lie. We distinguish both cases as not being on point for the purposes of this case.

The meaning of “interlocutory judgement” was extensively discussed in the judgment of Prentice CJ in the case of Shelley v PNG Aviation Services Pty. Limited

6 [1979] PNGLR 119 Prentice CJ Rain and Pritchard JJ

6. In that case a defence was struck out as showing no reasonable cause of action and leave granted for judgment to be entered for the plaintiff. His Honour referred to a number of English authorities, all of which held that where an action had been brought to an end by reason of an order made by a Court on an interlocutory application that was an interlocutory judgement. The specific instances referred to in the cases cited by Prentice CJ involved actions being dismissed because (1) they were frivolous and vexatious, (2) disclosed no reasonable cause of action, (3) an order for security for costs was not complied with, (4) want of prosecution, (5) an order refusing an application for a new trial. His Honour also referred to a decision of the High Court of Australia where an appearance and defence were struck out and leave to enter judgment granted, and that was held to be an interlocutory judgement because it occurred as a result of an interlocutory application. Raine DCJ specifically agreed with the observations by Lord Denning in one of the cases cited by Prentice CJ, Salter Rex and Co Re Ghosh

7 [1971] 2 QB 597 @ 600

7

“If the application for a new trial were granted it would clearly be interlocutory. So equally, when it is refused, it is interlocutory.”

Pritchard J agreed with both Prentice CJ and Raine DCJ. The court held that where, on an interlocutory application, the National Court had struck out the defence and granted leave for judgement to be entered, that was an interlocutory judgment. It should be noted that the head note in the report is incorrect in stating the reverse proposition.

The cases cited and the result in Shelley v PNG Aviation Services Pty. Limited clearly support the proposition that one looks at the nature of the application and not the result, to determine whether or not a judgment is interlocutory. This test has been criticised as not founded in logic but in a long tradition of practice, and approved by the House of Lords as the cases cited show.

There was a long conflict of opinion notwithstanding the line of authority cited in Shelley v PNG Aviation Services Pty. Limited. In North Solomons Provincial Government v. Pacific Architecture Pty. Limited

8 [1992] PNGLR 145 Amet, Woods and Doherty JJ

8 this Court approved and applied a different line of authority as follows

The Privy Council in Haron bin Mohd Zaid v Central Securities (Holdings) Bhd [1982] 2 All ER 481 sets out some of the conflicts that have arisen in the past in other common law jurisdictions. Their Lordships agreed that the sound and convenient test is that advanced by Lord Alverstone CJ in Bozson v Altrincham UDC [1903] 1 KB 547, namely:

"Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my...