Oio Aba v Motor Vehicles Insurance Limited (2005) SC779

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 04 March 2005
• Citation: (2005) SC779
• Docket Number: SCRA 147 of 2003
• Year: 2005

Full Title: SCRA 147 of 2003; Oio Aba v Motor Vehicles Insurance Limited (2005) SC779

Supreme Court: Injia DCJ, Sawong J, Lay J

Judgment Delivered: 4 March 2005

1 SUPREME COURT ACT—s14—objection to competency—whether application should be struck out when unnecessary—whether s14(3)(b)(iii) can have any application in the absence of Supreme Court Rules relating thereto—whether judgment is final or interlocutory tested by nature of application or effect of the decision.

2 Boyepe Pere v Ningi [2003] PNGLR 58 applied

3 Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145 followed

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

5 Boyepe Pere v Ningi [2003] PNGLR 58, North Solomons Provincial Government v Pacific Architecture Pty Ltd [1992] PNGLR 145, Christian Revival Crusade v Eyo Taviviya [1999] PNGLR 263, Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119 referred to

___________________________

By the Court:

RULING ON OBJECTION TO COMPETENCY

The Appellant has filed an Application for Leave to Appeal, without filing a Notice of Appeal; and the Respondent has filed a Notice of Objection to Competency. The Appeal is from an order of the National Court striking out the proceedings for failure to show a good cause of action because the plaintiff had not given notice of intention to claim pursuant to s54(6) of the Motor Vehicles (Third Party) Insurance Act.

The first ground of the Notice of Objection to Competency is that the Application for leave to Appeal is contrary to s14 of the Supreme Court Act. It is submitted that leave is not required because the order made by the Court below was "in the nature of final decisions" and it argues that the Supreme Court Act s14(3)(b)(iii) permits an appeal in those circumstances without leave. Therefore the Respondent says, as leave is not required, leave cannot be granted and the Application for Leave cannot be converted to a Notice of Appeal; or no further time can be given to the Appellant to file a Notice of Appeal. No Notice of Appeal has been filed therefore there is no appeal on foot.

The Appellant relies upon the case of Boyepe Pere v Ningi [2003] PNGLR 58 (Los, Kandakasi and Mogish JJ) and submits that whilst leave was not required, the Appellant shows grounds of appeal that have merit and the Court should use its discretion to grant leave in accordance with the principle in that case.

Our Reasons

The Supreme Court Act s14(3)(b)(iii) provides:

"No appeal lies to the Supreme Court without leave of the Supreme Court—

(a) . . . ; or

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

(i) . . .

(ii) . . .

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions;

. . . "

The same words appeared in s20 of the pre independence Supreme Court Act. It was recognized then, as now, that the Supreme Court Rules do not prescribe for cases " . . . as are in the nature of final decisions". In Breckwoldt v Gnoyke [1974] PNGLR 106 (Clarkson J Prentice J and Lalor J), Clarkson J, said:

"However for reasons I discuss later I do not think anything turns on the distinction here and I treat the application as one for leave to appeal against an interlocutory order which has not been prescribed under s20(3)(b)(iii) of the Supreme Court (Full Court) Act as being in the nature of a final order."

The Court went on to decide the case on a point not relevant here.

The legislature has clearly set out the criteria for discovering the class of decisions of a final nature under s14(3)(b)(iii). When there are no such criteria the provision simply becomes irrelevant. There is no provision in the Supreme Court Rules prescribing cases in the nature of final decisions for the purposes of s14(3)(b)(iii); that paragraph can therefore not have any application to this or any other...