Provincial Government of North Solomons v Pacific Architecture Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Amet J, Woods J, Doherty J
• Judgment Date: 27 February 1992
• Citation: [1992] PNGLR 145
• Court: Supreme Court
• Year: 1992
• Judgement Number: SC422

Supreme Court: Amet J, Woods J, Doherty J

Judgment Delivered: 27 February 1992

1 Practice and procedure—appeal—whether appeal from interlocutory or final judgment

2 Practice and procedure—application to set aside default judgment—principles applicable—defence on merits to be particularised

___________________________

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PROVINCIAL GOVERNMENT OF NORTH SOLOMONS

V

PACIFIC ARCHITECTURE PTY LTD

Waigani

Amet Woods Doherty JJ

28 November 1991

27 February 1992

APPEAL — Definition of final and interlocutory judgments.

PRACTICE AND PROCEDURE — Principle applicable in application to set aside default judgment — Defence on merits is to be particularised.

Facts

This is an appeal from an order of the National Court dismissing appellant's application to set aside a judgment for default in filing a Notice of Intention to Defend.

A summons was issued by Pacific Architecture Pty Ltd against the Provincial Government of the North Solomons claiming monies due under a contract to provide architectural services. After service of the summons, judgment was ordered by the Registrar of the National Court for default as specified above. The lawyer for the defendant filed an application by motion seeking to have the default judgment set aside and for leave for the defendant to file a defence. The application was heard and refused by the National Court. The appellant (defendant) here appealed against that refusal.

Counsel for respondent submitted that the decision of the National Court is an interlocutory judgment; leave to appeal is, therefore, required. The issues raised were:

(i) whether the decision of the National Court holding that the order of the Registrar was valid was a final or interlocutory judgment;

(ii) whether leave to appeal to the Supreme Court from that decision was required under s 14 (3) of the Supreme Court Act; and

(iii) the circumstances in which an appellate court will set aside a default judgment.

Held

1. Two tests have been used to determine whether a judgment is final or interlocutory. The first is that the court will look to the nature of the application rather than to the nature of the order. A judgment will be considered final, under this test, only if the disposition of the application will operate to dispose of the controversy between the parties. The second test is that the Court will look at the order made by the court below, rather than at the nature of the application; if the order finally disposes of the rights of the parties, it is final. Otherwise, the judgment is interlocutory.

2. No leave of appeal was necessary as the order constituted a final judgment.

3. The Court in hearing an application to set aside a default judgment is given wide discretionary power. An applicant must show evidence that he has a prima facie defence. The National Court acted within its powers to find that the application disclosed no defence on the merits and that there was no reason to set aside the judgment. The Court exercised no wrongful degree of discretion.

Cases Cited

Papua New Guinea cases cited

Green & Co Pty Ltd v Green [1976] PNGLR 73.

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

State v Barker [1977] PNGLR 386.

Other cases cited

Bozson v Altrincham UDC [1903] 1 KB 547.

Evans v Bartlam [1937] AC 473.

Haron bin Mohd Zaid v Central Securities (Holdings) Bhd [1982] 2 All ER 481.

Wallingford v Directors of the Mutual Society (1880) 5 AC 685.

Counsel

R Pato, for the appellant.

B Curran, for the respondent.

27 February 1992

AMET WOODS DOHERTY JJ: This is an appeal from an order of the National Court dismissing an application by the appellant to set aside a judgment entered against the appellant for default in filing a Notice of Intention to Defend.

The sequence of events was...