Paul Bari, Orim Bari and The State v John Raim (2004) SC768

• Jurisdiction: Papua New Guinea
• Judge: Salika J, Mogish J, Cannings J
• Judgment Date: 05 November 2004
• Citation: (2004) SC768
• Docket Number: SCA 100 of 2004
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC768

Full Title: SCA 100 of 2004; Paul Bari, Orim Bari and The State v John Raim (2004) SC768

Supreme Court: Salika J, Mogish J, Cannings J

Judgment Delivered: 5 November 2004

SC768

PAPUA NEW GUINEA

[In the Supreme Court of Justice

SCA 100 of 2004

BETWEEN:

PAUL BARI, ORIM BARI and THE STATE

Appellants

AND:

JOHN RAIM

Respondents

WAIGANI : SALIKA, MOGISH, CANNINGS, JJs

29 September, 05 November, 2004

Supreme Court – Civil Appeals – Practice and Procedure – Section 14(3)(b) of Supreme Court Act – Whether Judgment interlocutory or final – what is the appropriate test.

Cases Cited:

Pato v Julius Chan & Ors – SC 527.

Statutes:

Supreme Court Act.

Mr J Bokomi for the Appellants.

Mr B Boma for the Respondent

BY THE COURT: This is an objection to competency. The objection has been filed by the Respondent applicant John Raim.

To put the application into perspective it is necessary to state the background of the matter.

The Respondent in this matter, John Raim, initiated National Court proceeding styled “WS No 563 of 2003 John Raim v Paul Bari, Orim Kari and The State.” The writ was filed on 7 May 2003 and served on the State on 29 May 2003 . Prior to the writ being filed, the plaintiff gave notice of intention to sue the State for damages caused to his Public Motor Vehicle (hereinafter referred to as a PMV) bus by policemen. This was done to comply with the requirement of s.5 of the Claims by and Against the State Act.

After the writ had been filed the then Acting Solicitor-General, Mr John Kumura filed a Notice of Intention to Defend for and on behalf of the Defendants on 26 June 2003. The defendant through the Acting Solicitor-General failed to file a defence within the prescribed statutory time of 90 days from the date of service.

On 24 October 2003 the plaintiff obtained a default judgment with damages to be assessed.

On the 04 June 2004 the Acting Solicitor-General filed an application to set aside the Default judgment ordered on 24 October 2003 and also to seek leave of the Court to file the Defence out of time within 14 days from the date of hearing of the application. The application was supported by an affidavit. The plaintiff had earlier on the 17 May 2004 filed an application to have the matter set down for assessment of damages. That application was supported by an affidavit too. The two applications were heard by Davani J on 18 June 2004. Upon hearing the application, her Honour refused the application to set aside the default judgment and in so doing also refused to grant leave to the defendants to file their defence out of time. Her Honour, however, granted the plaintiff’s application to have the proceedings set down for trial for assessment of damages.

It is that refusal by Davani J to set aside the default judgment that the defendant now seeks to appeal from. The defendants are now the appellants in these proceedings. They have filed their application for leave to appeal.

It is that application for leave that an objection is being raised to its competency by the respondents to these proceedings.

The appellants filed their Notice of Application for leave to Appeal on 15 July 2004. The respondent filed his Notice of objection to competency on 21 July 2004.

Civil Appeals

Section 14 of the Supreme Court Act provides for Civil Appeals from the National Court to the Supreme Court. It reads:-

14. Civil Appeals to the Supreme Court.

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court –

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.

(2) An appeal does not lie from an order of the National Court made by consent of the parties.

(3) No appeal lies to the Supreme Court without leave of the Supreme Court –

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) from an interlocutory judgment made or given by the National Court except –

(i) where the liberty of the subject or the custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver, or

(iii) in such other cases prescribed by the Rules of Court as re in the nature of final decision; or

(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgment.

The application for leave to appeal in this matter is purported to have been filed pursuant to s.14(3)(b) of the Supreme Court Act. An application for leave to appeal can be filed under s.14(3)(b) of the Supreme Court Act. The primary question that needs to be asked is, whether the judgment that leave is being sought to be appealed from is, an interlocutory judgment? This question was not argued before us. Counsel did not make submissions on this point. A member of the Court, Cannings J, did...