Raymond Liu & Another v Daul Emoto & 23 Ors (2009) SC1032

• Jurisdiction: Papua New Guinea
• Date: 20 April 2009
• Citation: (2009) SC1032
• Docket Number: SCA No. 91 of 2008
• Court: Supreme Court
• Year: 2009

Full Title: SCA No. 91 of 2008; Raymond Liu & Another v Daul Emoto & 23 Ors (2009) SC1032

Supreme Court: Injia, DCJ

Judgment Delivered: 20 April 2009

PRACTICE AND PROCEDURE—application for leave to appeal against an interlocutory ruling of National Court—nature of ruling is refusal to set aside default judgment on liability for damages - main test is whether applicant has shown there is a prima facie case that the decision was wrong and that substantial injustice will be done by leaving the erroneous decision unrevised - whether defence on the merits was disclosed in the proposed Defence—relevant considerations

PRACTICE AND PROCEDURE—respondents object to competency of leave application - decision was final and leave is incorrectly sought - basis of objection - test to be applied is whether judgment or order is final—respondents objection to competency dismissed - no substantial injustice will be caused to appellant by allowing the judgment to stand - arguable case has not been demonstrated—application dismissed with costs to respondent

Cases Cited:

Papua New Guinea Cases

Andrew Baing v PNG National Stevedores Pty Ltd (2000) SC627; Boyepe Pere v Ningi [2003] PNGLR 58; Breckwoldt v Gnoyke [1974] PNGLR 106; Rimbink Pato v Anthony Manjin [1999] PNGLR 6; Sir Julius Chan v The Ombudsman Commission of Papua New Guinea [1999] PNGLR 240; Breckwoldt v Gnoyke [1974] PNGLR 106; Curtain Bros (PNG) Ltd v UPNG (2005) SC788; LA Jarden Collector Agency Pty Ltd and Richard Hill & Associates v Masket Iangalio and Public Curator of Papua New Guinea (1998) SC597; Matiabe Oberia v Chief Inspector Michael Charlie (2005) SC801; National Capital District Commission v PNG Water Ltd, JC–KRTA Consulting Group (PNG) Pty Ltd and NCD Water and Sewerage Pty Ltd (1999) SC624; NCDC v Namo Trading Ltd (2001) SC663; Electricity Commission of NSW v Lapthorne (1971) 124 C.L.R. 177

Overseas Cases

Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R.

1. INJIA, DCJ: This is an application for leave to appeal against an interlocutory ruling of the National Court made on 18th July 2008 in refusing to set aside its default judgment on liability for damages to be assessed, entered on 16th April 2008. Before I deal with the merits of the application, I deal first with a number of threshold procedural issues.

2. The respondents object to the competency of the application for leave on the basis that the decision was final and leave is incorrectly sought. I am of the view that the application for leave is competent because the decision to dismiss the application to set aside the default judgment is interlocutory and not final. The effect of the decision is that the default judgment still stands and the question of damages is yet to be litigated. The question of liability and damages in the circumstances of this case, are inseparable and only a decision on quantum of damages would put the seal of finality in the judgment.

3. The test to be applied in judgments of this type is whether the judgment or order is final in that it "finally disposes of the right of the disputing parties" or "there is no substantive issue(s) a foot that remains to be tried" (La Jarden Collected Agency Pty Ltd v Richard Hill & Ors (1998) SC597), or "because the order results in the rights of the parties in those proceedings being terminated or extinguished" ( NCDC v PNG Water Ltd & Ors (1999) SC624). In NCDC v Namo...