SCA No. 61 & 62 of 2009; Lord & Co. Ltd v Timothy Inapero trading as Gordons Sports & Entertainment Center (2009) SC1042

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 21 July 2009
• Court: Supreme Court
• Citation: (2009) SC1042
• Year: 2009
• Judgement Number: SC1042

Full Title: SCA No. 61 & 62 of 2009; Lord & Co. Ltd v Timothy Inapero trading as Gordons Sports & Entertainment Center (2009) SC1042

Supreme Court: Injia, CJ

Judgment Delivered: 21 July 2009

SC1042

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 61 & 62 of 2009

Between:

LORD & CO. LTD

Appellant

And:

TIMOTHY INAPERO TRADING AS GORDONS SPORTS

& ENTERTAINMENT CENTER

Respondent

Waigani: Injia, CJ

2009: 21st July

SURPEME COURT – practice and procedure – application for stay of National Court judgment striking out Defences filed by Appellant - principles on grant or refusal of stay of judgment discussed - grant or refusal of stay discretionary - overall interest of justice favors continuation and conclusion of trial pending determination of appeal - majority of considerations favor first respondent – application for stay refused with costs to the respondent

Cases Cited:

Bernard Juali v The State (2001) SC 667

Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279

Leo Duque v Andrew Paru [1997] PNGLR 378

Counsel:

F Griffin, for the Appellant

J Abone, for the Respondent

21st July, 2009

1. INJIA CJ: On 6th May 2009, the National Court struck out the Defences filed in two related proceedings and entered judgment against the appellant for damages to be assessed in each matter. On 10th June 2009 the applicant filed separate applications for Leave to Appeal (leave applications). The applicant now applies for stay of the judgments pending determination of the leave applications.

2. The respondent contests the applications. Both parties filed affidavits to support their respective cases. On 17th July 2009, I heard submissions and directed further supplementary submissions to be filed. Those submissions have been filed. I have considered the material and submissions.

3. The principles on grant or refusal of stay of judgment appealed from are settled. The grant or refusal of stay is discretionary. The relevant principles are set out in Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 (McHardy case). Apart from the principle that the Court must start from the basic premise that the judgment creditor is entitled to enjoy the benefit of the judgment, there are ten (10) other considerations which are enumerated in that case which may be considered. These considerations are often determined by a quick perusal of the matters set out in the leave application which may include the proposed grounds of appeal and the trial Judge’s decision and a consideration of the material placed before the Court. The applicant carries the onus of persuading the Court to exercise the discretion in its favor.

4. Apart from the matters set out in the leave application, the parties have provided those materials including the transcript of proceedings.

5. I apply the considerations set out in McHardy in the following manner.

6. The judgment appealed from favors the respondent.

7. Leave to appeal is required because the decision is not final. This consideration favors the respondent.

8. The issue of delay is not contested. This consideration favors the applicant.

9. The nature of the judgment, the arguable nature of the appeal and error in the judgments can be dealt with together. In a case such as this, in my view, unless there are clear grounds suggesting an apparent error of procedure or error in the grant of default or summary judgment for damages to be assessed which is likely to cause a fair trial unlikely, the course of the trial should not be interrupted by a stay order.

10. In SCA No. 61 of 2009, damages is the gist of the action in negligence instituted by WS 846//03 in the National Court. In SCA No. 62 of 2009, damages is also the gist of the action in negligence instituted in WS 844 of 2003. In a case where damages is the gist of an action, judgment entered by default or otherwise for damages to be assessed in the nature of an interlocutory judgment, the time for appeal runs from the date the final judgment, that is judgment on damages, is given. A defendant aggrieved by an award of damages may appeal against the whole of the judgment inclusive of the interlocutory judgment on liability.

11. I agree with Mr Abone of counsel for the respondent that the exercise of discretion has not been shown to be erroneous and that time and cost would be saved by allowing the trial to be completed and the appellant would be at liberty to file an appeal at the end of the trial.

12. One of the issues in the trial would be whether or not damages should be awarded and if so, the quantum of damages. Another issue is of vicarious liability of the applicant in respect of the default judgments entered against the other defendants which have not been appealed against. If these issues are determined in the applicant’s favor there would be little or no cause for the applicant to appeal the final judgment. If they are determined against the applicant, it would be entitled to appeal the final judgment inclusive of interlocutory judgment on liability.

13. The interlocutory judgment proposed to be challenged on appeal is on the exercise of discretion based on the refusal by the trial judge to accept the explanation given by the appellant’s lawyer as to why they failed to appear in Court on 22nd April 2009 and why they failed to comply with the Court order of 18th March 2009 to file a Defence to the Amended Writ of Summons and thereby allowed or caused the default judgment to be entered. The explanations offered by Mr Griffin of counsel for the applicant are essentially the same explanations that were offered to the trial judge. These are contained in the affidavits presented to the trial judge. The same affidavits which have...