Philip Takori for and on behalf of Ben Komae, Jeff Lita, Tapukali Lita, Yas Lakain, Tom Aipi, Richard Aipi David Timon, Paulus Paliro, William Robert and Andrew Malipu v Simon Yagari as the Commander & Members of Police Mobile Squad 5 & 6 and the Commissioner of Police and Independent State of Papua New Guinea (2008) SC905

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom Gavara - Nanu and Kandakasi JJ
• Judgment Date: 29 February 2008
• Court: Supreme Court
• Citation: (2008) SC905
• Docket Number: SCA 151 OF 2004
• Year: 2008
• Judgement Number: SC905

Full Title: SCA 151 OF 2004; Philip Takori for and on behalf of Ben Komae, Jeff Lita, Tapukali Lita, Yas Lakain, Tom Aipi, Richard Aipi David Timon, Paulus Paliro, William Robert and Andrew Malipu v Simon Yagari as the Commander & Members of Police Mobile Squad 5 & 6 and the Commissioner of Police and Independent State of Papua New Guinea (2008) SC905

Supreme Court: Kirriwom, Gavara - Nanu and Kandakasi, JJ

Judgment Delivered: 29 February 2008

SC 905

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 151 OF 2004

BETWEEN:

PHILIP TAKORI FOR AN ON BEHALF OF BEN KOMAE, JEFF LITA, TAPUKALI LITA, YAS LAKAIN, TOM AIPI, RICHARD AIPI DAVID TIMON, PAULUS PALIRO, WILLIAM ROBERT AND ANDREW MALIPU

Appellants

AND

SIMON YAGARI AS THE COMMANDER & MEMBERS OF POLICE MOBILE SQUAD 5 & 6

First Respondent

AND

THE COMMISSIONER OF POLICE

Second Respondent

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Kirriwom, Gavara - Nanu and Kandakasi, JJ.

2006: 3 March

2008: 29 February

APPEALS – PRACTICE & PROCEDURE – Appeal against dismissal of claim on an interlocutory application – Whether leave to appeal required – Decision appealed against final in nature and within exception for requirement for leave – Leave to appeal not required – Supreme Court Act s.14 (3) (b) (iii).

PRACTICE & PROCEDURE – Application to dismiss for failure to disclose reasonable cause of action – Whether failure to plead with particulars amounts to failure to disclose reasonable cause of action – Failure to disclose reasonable cause of action distinct from failure to plead with particulars – Separate consequences follow – Where a cause of action is pleaded but there is a lack of particulars the proper remedy is request for further and better particulars and amendment of pleadings – Applying to dismiss without requesting for better and further particulars where a cause of action known to law is pleaded amounts to an abuse of the process of the court – National Court Rules O 12 r 40 (1).

JUDGEMENTS AND ORDERS – Power to dismiss a cause of action for failure to disclose cause of action – Discretionary matter for the Court – Court must exercise discretion with care and caution – Discretion can be exercised in the clearest of cases where no cause of action is pleaded – Where one of the parties is not legally represented, court under duty to carefully consider all issues raised before proceeding to judgment – National Court Rules O 12 r 40 (1).

Cases Cited:

Papua New Guinean Cases

The Independent State of Papua New Guinea and Det Sgt Maj Francis Namues and Jimmy Tamate Wala and Hon Andrew Kumbakor MP v. John Talu Tekwie (2006) SC843.

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

Boyepe Pere v. Emmanual Ningi (2003) SC711.

Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677.

Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori & The State (2006) N3950.

PNG Forest Products v. The State [1992] PNGLR 85.

Ronny Wabia v BP Exploration Co Ltd & Ors [1998] PNGLR 8.

Pius Nui v. Senior Sergeant Mas Tauda & Ors (2004) N2765.

Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915.

Jack Livinai Patterson v. National Capital District Commission (2001) N2145.

Eliakim Laki & Ors v. Maurice Alaluku & Ors (2000) N2001.

Mesia Novau v. Nimrod Mark & Electoral Commission [1992] PNGLR 229. Polling v. Motor Vehicles Insurance (PNG) Trust [1982] PNGLR 228.

Bank of South Pacific Limited v. PNG Nambawan Trophy Holdngs Limited & Ors (12/11/04) N2717.

Papua New Guinea Banking Corporation v. Jeff Tole (27/09/02) SC694.

Mudge v Secretary for Lands and Others [1985] PNGLR 387.

Overseas Cases

Dyson v. Attorney General [1911] I KB 410.

Nagle v. Feilden [1966] I AII ER 689 at 697 [1966] 2QB 633

Allen v. Gulf Oil Refining Ltd [1981] 1 All ER 353.

Attorney General of the Duchy of Lancaster v. London and North Western Railway Co. [1892] 3 Ch 274.

Read v. Brown (1888) 22 QBD 128.

Hubbuck & Sons Ltd v. Wilkinson Heywood & Clark Ltd [1899] 1 QB 86; [1895-9] AII ER Rep 244.

Counsel:

The Appellants in Person.

T. Anis, for the Respondent.

29 February, 2008

1. BY THE COURT: This is an appeal by Philip Takori and the others (the Appellants) against a decision of the National Court (per David AJ, as he then was) dismissing their claims. The dismissal was for failure to disclose a reasonable cause of action and lack of authority in Mr. Takori to represent himself and the other Appellants. The Appellants claimed damages against the State for torts allegedly committed against them in an alleged police raid conducted by members of the Police Force, then under the command and control of Simon Yagari, the First Respondent.

2. The Appellants claim that the dismissal of their claim was erroneous because Mr. Takori did have the requisite authority and that their pleadings did disclose a reasonable cause of action though they may not have done so with sufficient particulars, which can be cured by an amendment of the pleadings. They also claim that, the National Court erroneously allowed the State and the other defendants (the State) to successfully make the application without first complying with the requirements for filing and serving of their notices of intention to defend and then secure leave of the Court to make the application. That error they argue, prevented the trial judge from considering their application for summary judgment against the State and sign judgment against the State, which they now argue this Court must do if we uphold their earlier arguments.

3. The State takes issues with the competency of the appeal saying, the Appellants should have sought leave to appeal because the decision, the subject of the appeal, was out of an interlocutory application. The State also argues that the National Court was correct and as such, this Court should uphold that decision.

Relevant Issues

4. Going by the arguments of the parties, it is clear to us that the following issues arise for our determination:

(1) Whether leave is required for an appeal against a decision dismissing a claim in a writ of summons on an interlocutory application?

(2) Did the State comply with the requirements for the filing and serving of its notice of intention to defend in order to properly make its application?

(3) If the answer to issue (2) above is in the negative, was the State at any liberty to apply as of right for a dismissal of the claim against it and its servants?

(4) Subject to an answer to issues (2) and (3) above, did the Appellants statement of claim fail to disclose a reasonable cause of action and one that could not be cured by amendment of the pleadings?

(5) Subject to an answer to all of the foregoing issues, have the Appellants made out a case for summary judgment?

5. Clearly, the first question can be considered and resolved on its own. It goes into the competency of the appeal. If that issue is determined in the affirmative, it might spell the end of the appeal. If however, that issue is determined in the negative, we will have to deal with the remaining issues. So we will deal with that issue first. The second and third questions can be dealt with together and thereafter the remaining issue on its own if need be.

Issue 1 – Leave to Appeal

6. The law on whether leave is required for an appeal against the kind of decision the subject of this appeal is now well settled in our jurisdiction. The most recent decision of the Supreme Court in The Independent State of Papua New Guinea and Det Sgt Maj Francis Namues and Jimmy Tamate Wala and Hon Andrew Kumbakor MP v. John Talu Tekwie,

1 (2006) SC843.

1 reviewed almost all of the cases on point. That started with the decision of the Supreme Court in Shelley v. PNG Aviation Services Pty. Limited

2 [1979] PNGLR 119.

2 and ended with the decision of the Supreme Court in Boyepe Pere v. Emmanual Ningi.

3 (2003) SC711.

3 These authorities make it clear that, where the decision, the subject of an appeal, finally determines an issue between the parties, that would entitle a party, aggrieved by such a decision to appeal as of right under s. 14 (3) (b) (iii) of the Supreme Court Act.

4 Chapter 37.

4 That is the case, even if the decision in question comes out of an interlocutory application. Thus the authorities make it clear that, it is to the nature of the orders, judgment or decision to which one must look upon to see whether it is a final decision to determine whether there can be an appeal as of right under s. 14 (3) (b) (iii) of the Supreme Court Act, and not the process leading to the order, judgment or decision.

7. In the present case, the decision, the subject of the Appellant’s appeal, dismissed their claim under a writ of summons with a statement of claim endorsed thereto. Whilst the process leading to that decision was an interlocutory application by way of a notice of motion, the final out come on that application finally ended the Appellants claim. Without their right of appeal, they have no other remedy. Their rights and interests in the proceedings that were dismissed came to an end as a result of the decision in question. They are thus, within their rights to appeal as of right under s.l4 (3) (b) (iii) of the Supreme Court Act....