SCA No 18 of 1999: The Honourable Andrew Baing and The Independent State of PNG v PNG National Stevedores Pty Limited and Bank of South Pacific Limited (2000) SC627

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (2000) SC627
• Date: 23 February 2000
• Year: 2000

Full Title: SCA No 18 of 1999: The Honourable Andrew Baing and The Independent State of PNG v PNG National Stevedores Pty Limited and Bank of South Pacific Limited (2000) SC627

Supreme Court: Sheehan J, Sawong J, Kirriwom J

Judgment Delivered: 23 February 2000

1 Appeal—Application for leave to Appeal under Supreme Court Act s14(3)(b)—proper principles for exercise of discretion.

2 Practice and Procedure—Conditional Orders—Application to strike out defence and enter judgment. O9 r25(1)(b) National Court Rules.

3 Practice and Procedure—Irregular judgments—setting aside irregular judgments. O1 r9 National Court Rules.

4 Henzy Yakham v Stuart Merriam [1998] PNGLR 555, Sir Julius Chan v The Ombudsman Commission of Papua New Guinea [1999] PNGLR 240, FAI General Insurance Co Ltd v Southern Cross Exploration (1988) 165 CLR 268, Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73, Wong v Haus Bilas Corporation (PNG) Pty Ltd [1988–89] PNGLR 42, Credit Corporation (PNG) Ltd v Gerard Lee [1988–89] PNGLR 11, Keram v Warum [1994] PNGLR 130, Re Mune v Poto (Unreported, Supreme Court judgment, 27 September 1997), Bank of South Pacific Ltd v Spencer [1983] PNGLR 239, PTC v Takoa Pastoral Co Pty Ltd [1985] PNGLR 44 referred to

5 Facts

The first respondent proceedings against the Appellants and the PNG Harbours Board claiming it had suffered financial loss as a result of a change in Government policy relating to the grant of stevedoring licences. In their defences, the appellants and the PNG Harbours Board pleaded that no cause of action was disclosed. During pre–trial proceedings, the respondent obtained orders for discovering of documents. These were served on the appellants. The Appellants did not comply with the orders for discovering. Consequently on 13 September 1996, Salika J made conditional consent orders. Subsequently on 17 September 1996, pursuant to the said conditional orders the respondent, filed an affidavit with the registrar of the National Court and obtained orders, striking out the Appellants defence and entering judgment in favour of the respondent.

Some 16 months later the appellants, applied to the National Court to have the orders set aside. The Deputy chief Justice refused this application. This appeal lies from that refusal.

Held:

1. The registrar of the Court has no jurisdiction to strike out a party's defence and entering a judgment.

2. Only the Court has such a jurisdiction.

3. A conditional order, by its very nature, necessitates the exercise of further judicial function of determining whether the condition had been satisfied or not at the specified time.

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By the Court:

This was an application for leave to appeal against an order of the National Court made on 9 April 1998 refusing an application by the First and Second Appellants to set aside interlocutory judgments against them, for damages to be assessed.

Background

In order to appreciate the arguments put forward, it is necessary to set out the background of this litigation.

The first respondent brought a claim against the appellants and the PNG Harbour Board claiming it had suffered loss as a result of a change in Government policy in relation to the granting of stevedoring licences. Subsequently there were further amendments to its statement of claim. It is not necessary to state those for the present purposes.

In their...