Hii Yii Ann v Canisius Kami Karingu (2003) SC718

• Jurisdiction: Papua New Guinea
• Date: 13 June 2003
• Citation: (2003) SC718
• Docket Number: SCA 19 and 20 of 2002
• Court: Supreme Court
• Year: 2003

Full Title: SCA 19 and 20 of 2002; Hii Yii Ann v Canisius Kami Karingu (2003) SC718

Supreme Court: Hinchliffe J, Kirriwom J, Mogish J

Judgment Delivered: 13 June 2003

1 ADMINISTRATIVE LAW—Interlocutory judgment—Appeal—Whether leave to appeal required—Effect and nature of ruling final or interlocutory—Whether interlocutory judgment disposes of rights of parties regardless of outcome

2 PRACTICE AND PROCEDURE—Objection to competency—Dismissal of application—Whether dismissal of objection to competency appealable as of right or with leave—Whether ruling is interlocutory or final—s4, s14 Supreme Court Act and r14 Supreme Court Rules.

3 Henzy Yakham v Stuart Merriam [1998] PNGLR 555, Dowsett Engineering (NG) Pty Ltd v Edwards and Jordan Lighting [1979] PNGLR 426, Ruma Construction Pty Ltd v Christopher Smith [1999] PNGLR 201, Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119, Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145, Rimbink Pato v Sir Julius Chan [1998] PNGLR 449, Opai Kunangel v The State [1985] PNGLR 144, Nerau v Solomon Taiyo Ltd [1993] PNGLR 395, Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 and LA Jarden Collector Agency Pty Ltd and Richard Hill & Associates v Masket Iangalio and Public Curator of Papua New Guinea (1998) SC597 referred to

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By the Court:

1. This is the Respondent's application objecting to the competency of the Appellant's appeal based on these grounds:

2. That the appeal herein has been made in respect of an interlocutory judgment or order without first making an application for leave to appeal to the Supreme Court as requirement of by s14(3)(b) of the Supreme Court Act (Ch37).

1.2. That the appeal herein has been made in respect of questions of fact in particular grounds 3.1 (a), (b), (c), (d), (e), (f), (g), 3.2 and 3.5 without first making application for leave to appeal to the Supreme Court as required of under s4(2)(c) and s4(2)(c) of the Supreme Court Act (Ch37).

The background

2 The appeal that is the subject of this competency application or objection by the Respondent is an appeal by the Appellant emanating from a ruling made by Sheehan J on 8 March 2002 in which His Honour dismissed an application by Motion filed by the Appellant in the Supreme Court in SCA No 49 of 1997 to dismiss the Respondent's application for review seeking, inter alia, a review of the Registrar's decision in allowing only the Respondent's out–of–pocket expenses to be taxed and disallowing the others.

3 The Appellant's ground for objection to the competency of the application was that the Motion seeking review of the Registrar's decision was filed outside the 14 days time limit stipulated by O22 r60(2) of the National Court Rules and was therefore incompetent. After hearing the objection on the competency issue, Sheehan J ruled that the motion was filed within time and was competent and dismissed the objection.

4 Against this ruling, the Appellant has now filed an Application for Leave to Appeal (SCA19 of 2002 ) and a Notice of Appeal (SCA20 of 2002 ) challenging this ruling or judgment of Sheehan J.

5 The case itself has a long history and in order to put the entire scenario into it's proper perspective, we need to go back to the beginning where this whole saga began.

6 The Appellant commenced proceedings in the National Court seeking damages against the Respondent for malicious prosecution by writ of summons numbered WS1238/96. A judgment in favour of the Appellant was entered by default.

7 This default judgment was set aside on appeal by the Supreme Court in the proceeding entitled SCA47 of 1997 Canisius Kami Karingu v Hii Yii Ann (Unnumbered and Unreported Supreme Court Judgment) whereupon the Supreme Court ordered costs in favour of the Respondent in the words 'costs follows the event.'

8 Mr Karingu then...