The Government of Papua New Guinea and Richard Harold Davis v Stanley Barker

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ, Prentice DCJ, Kearney J
• Judgment Date: 26 October 1977
• Citation: [1977] PNGLR 386
• Court: Supreme Court
• Year: 1977
• Judgement Number: SC123

Supreme Court: Frost CJ, Prentice DCJ, Kearney J

Judgment Delivered: 26 October 1977

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE GOVERNMENT OF PAPUA NEW GUINEA AND DAVIS

V

BARKER

Waigani

Frost CJ Prentice DCJ Kearney J

25-26 April 1977

26 October 1977

APPEAL — Practice and procedure — Nature of appeal — Appeal from District Court exercising discretionary power — Grounds on which appellate court may substitute discretion.

PRACTICE AND PROCEDURE — Application to set aside default judgment — Principles applicable — Whether affidavit showing defence on merits necessary — Defence on merits to be particularized — Rules of Court O.XXXI, r. 15 O.XXXI, r. 15 provides:

Any judgment by default under this Order may be set aside or varied by the Court or a Judge, upon such terms as to costs or otherwise as the Court or Judge may think fit.

On appeal against an order of the National Court dismissing an application pursuant to O.XXXI, r. 15 of the Rules of Court to set aside a judgment obtained in default of filing a defence.

Held

(1) (Per Prentice Dep. C.J. with whom Frost C.J. agreed.) The appeal, being an appeal against the exercise of a discretion, in order for the Appellate Court to substitute its discretion for that of the Judge appealed from (if it has the material for doing so) it must be shown that the Judge appealed from exercised his discretion upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts or did not take into account some matter for consideration; (Lovell v. Lovell (1950) 81 C.L.R. 513 at p. 518, House v. The King (1936) 55 C.L.R. 499 at p. 504) and it being clearly wrong in its decision; (Australian Coal and Shale Employees' Federation v. The Commonwealth and Others (1953) 94 C.L.R. 621, or it appearing that otherwise injustice might be done; (Evans v. Bartlam [1937] A.C. 473 at p. 480.)

(2) As a matter of practice, an application under O.XXXI, r. 15 of the Rules of Court to set aside a judgment by default regularly obtained should be granted only on an affidavit disclosing a defence on the merits.

Evans v. Bartlam [1937] A.C. 473 at p. 480, Gamble v. Killingsworth & McLean Publishing Co. Pty. Ltd. [1970] V.R. 161 at p. 168, Green and Company Pty. Ltd. (Receiver Appointed) v. Green [1976] P.N.G.L.R. 73 at p. 76 followed, Frisch v. Bowman [1928] St.R.Qd. 242 and Seymour v. Holm [1961] Qd.R. 214 referred to.

(3) Such an affidavit, to be considered as showing a defence on the merits must set out statements of material fact sufficient to satisfy the court that the applicant has a prima facie defence and that it is reasonable that the applicant should be allowed to raise that defence.

Evans v. Bartlam [1937] A.C. 473 at p. 482, Green and Company Pty. Ltd. (Receiver Appointed) v. Green [1976] P.N.G.L.R. 73 followed, Ritter v. North Side Enterprises Pty. Ltd. (1975) 49 A.L.J.R. 202 at p. 203 referred to.

(4) In all the circumstances the appeal should be dismissed.

Appeal

This was an appeal against an order of the National Court dismissing an application made pursuant to O.XXXI, r. 15 of the Rules of Court to set aside a judgment obtained in default of filing a defence.

Cases Cited

J. A. Ross for the appellant referred to the following cases:

Chitty v. Mason [1926] V.L.R. 419;

Collins Book Depot Pty. Ltd. v. Bretherton [1938] V.L.R. 40;

Green & Company Pty. Ltd. (Receiver Appointed) v. Green [1976] P.N.G.L.R. 73;

Frisch v. Bowman [1928] St.R.Qd. 242;

Rubin v. Eacott (1912) 14 W.A.L.R. 162;

Re Hartley, Nuttall v. Whittaker [1891] 2 Ch.D. 121;

Richardson v. Howell (1892) 8 T.L.R. 445;

Blundell v. Rimmer [1971] 1 All E.R. 1072;

Evans v. Bartlam [1937] A.C. 473;

Farden v. Richter (1889) 23 Q.B.D. 124;

Rosing v. Ben Shemesh [1960] V.R. 173;

Coburn v. Brotchie (1890) 16 V.L.R. 6;

Wright v. Mills (1889) 60 L.T. 887;

Breckwoldt v. Gnoyke [1974] P.N.G.L.R. 106;

Gamble v. Killingsworth & McLean Publishing Co. Pty. Ltd. [1970] V.R. 161;

Glassford Cook & Co. Pty. Ltd. v. William Higson & Co. (1899) 25 V.L.R. 177;

Russell v. Johnston (1898) 14 W.N. (N.S.W.) 128;

Dsane v. Hagan & Anor. [1961] 3 All E.R. 380;

Pope v. Aberdeen Transport Co. Pty. Ltd. [1965] 2 N.S.W.R. 1550.

J. A. Griffin for the respondent referred to the following cases:

Green & Company Pty. Ltd. (Receiver Appointed) v. Green [1976] PNGLR. 73;

Gamble v. Killingsworth [1970] V.R. 161;

Evans v. Bartlam [1937] A.C. 473;

Wallingford v. the directors of the mutual society (1880) 5 App. cas. 685 at p. 704;

Beale v. mcgregor (1886) t.l.r. 311;

Farden v. richter (1889) 23 q.b.d. 124 at p. 129;

Hopton v. robertson (1889) 23 q.b.d. 126 at p. 126 (n);

Richardson v. howell (1892) 8 t.l.r. 445.

Cur. adv. vult.

26 October 1977

FROST CJ: This is an appeal against an order of the National Court on 29th June, 1976, dismissing a motion by the appellants that a judgment in default of defence entered against them by the respondent as plaintiff should be set aside. There was a motion also before the Court seeking an order that the statement of claim be struck out on the ground that it disclosed no reasonable cause of action. That motion was also dismissed but no appeal has been brought. Without objection both motions were heard together. Of course, no order could have been made striking out the statement of claim unless and until the judgment was set aside. But if the appellants had been able to demonstrate that no reasonable cause of action was shown, as I shall mention later, that would have been a sufficient ground in the circumstances for the judgment to be set aside. It is also to be noted that the appellant has sought to rely on the appeal upon certain observations of the judge, which on examination relate only to the motion that th statement of claim be struck out, and thus were not material available at the hearing of the motion.

I have read the judgment of Prentice Deputy C.J. and agree with it, but it is better that I state my reasons in my own words.

The cause of action set out in the statement of claim was a simple case of conversion on the part of the Government of Papua New Guinea and the second-named appellant, who was said to be the Harbour Master at Lae. The property concerned was the plaintiff's catamaran "Sansangana" which had been left by the plaintiff moored at Voco Point, Lae. The allegation was that on or about 30th April, 1974, the second appellant as agent of the Government of Papua New Guinea delivered, or alternatively authorized the delivery of, the vessel to one Dennis William Bux, the third-named defendant, and another person or persons unknown, without any authority from the plaintiff and without any authority on the part of the third defendant to take possession of the vessel. By reason of these matters it was alleged as against each defendant that the vessel had been converted to their own use.

As against the third defendant it was also alleged that after possession had been taken of the vessel, the third defendant personally by his servants and agents so negligently and unskilfully handled and took care of the vessel that it was wrecked.

The law applicable in a case of conversion is set out in Salmond on the Law of Torts, 16th ed., at pp. 96-97, as follows:

"S30 What is Conversion

A conversion is an act ... of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it. Two elements are combined in such interference: (1) a dealing with the chattel in a manner inconsistent with the right of the person entitled to it, and (2) an intention in so doing to deny that person's right or to assert a right which is in fact inconsistent with such right. But where the act done is necessarily a denial of the other's right or an assertion of a right inconsistent with it, the tort may have been committed, though the doer may not know of or intend to challenge the property or possession of that other. If a person, not being an agent or bailee, deals with the goods of another as his own, his intention is irrelevant, for liability in conversion is strict."

In the same textbook is found the following statement relating to remoteness of damage:

"If the defendant has thus intentionally interfered with a chattel without lawful justification and loss of the chattel does in fact result from the interference, it is no defence that such a loss was not intended, or even that it was not the natural or probable result." (At p. 107).

It will be noted that mere taking possession of a chattel by itself will not always be conversion. As Winfield says:

"If I snatch your hat from your head with intent to steal it, that is conversion as well as trespass, but if I throw it at another person, that is trespass only, for I am not questioning your title to it." Winfield and Jolowicz on Tort, 9th ed., p. 422.

The facts of Fouldes v. Willoughby (1841) 8 M. & W. 540, in which a ferryman put some horses...