LA Jarden Collector Agency Pty Ltd and Richard Hill & Associates v Masket Iangalio and Public Curator of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Citation: (1998) SC597
• Date: 31 August 1998
• Court: Supreme Court
• Year: 1998

Supreme Court: Los J, Injia J, Kirriwom J

Judgment Delivered: 31 August 1998

1 Practice and procedure—claim that nature of the judgment appealed against requires leave, which was not obtained—claim that appellants filed notice of appeal before obtaining leave, contrary to Supreme Court Act (Ch37)—claim that judgment interlocutory—adjudication of insolvency annulled

2 Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145, Rimbink Pato v Sir Julius Chan [1998] PNGLR 449, John v Mendoza [1939] PNGLR 141, Henzy Yakham v Stuart Merriam [1998] PNGLR 555, Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246 and Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119 referred to

3 Insolvency Act (Ch253) s141, s97, s150, Supreme Court Act (Ch37) s14(3)(b) and Supreme Court Rules O7 Div 1 and 2 referred to

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Los J:

The First Respondent objects to competency of the appeal by the Appellants. The objection is on two grounds. Firstly it is said that the nature of the judgment which the appellants seek to appeal against requires leave. The appellants have failed to obtain leave.

In the second ground its said that the appellants have filed notice of appeal before obtaining any leave which is contrary to the Supreme Court Act.

It is argued on behalf of the First Respondent that the National Court decision the subject of this appeal is interlocutory. Thus leave must be obtained before appealing. The appellants on the other hand argue that the decision is final and no leave is required.

Where a decision of the National Court sought to be appealed from is interlocutory, leave must be sought. That is the requirement under s14(3)(b) of the Supreme Court Act. It says:

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

(a) . . .

(b) from an interlocutory judgment made or given by the National Court . . ."

But the question here is whether the National Court judgment is interlocutory. Briefly the First Respondent was made an insolvent upon application by various creditors. The Second Respondent was made an official trustee to administer the insolvency, and many creditors' claims were lodged and accepted by the trustee and they were paid but the two appellants' claims were rejected. The First Respondent then made an application before the National Court to annul the insolvency order. The appellants were represented and the application was objected to by their counsel. After hearing the arguments, the court in its discretion granted the order sought by the trustee. The main part of the order was "that the adjudication of Insolvency made on 11 March 1998 is annulled".

What is a final judgment or interlocutory judgment has been subject of various decisions. Some of these decisions have been listed in the written submission by the appellants. The difference between the two is not always clear. But generally it is as pointed out in Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145. At page 147 the Court said:

"Generally, two tests have been propounded as to whether a judgment is final or interlocutory. The first test is that the Court will have regard to the nature of the application not to the nature of the order made. Thus, a judgment or order must be interlocutory in character unless it is made on an application which must operate in such a way that whatever judgment or order is given or made on it, it must be finally dispose of the dispute or the controversy between parties. The other test is that the court will look at the order made by the court below and not the nature of the application so that if the order finally disposes of the rights of the parties, it is final; but if it does not, then it is interlocutory."

An example of the first test was followed in Rimbink Pato v Sir Julius Chan [1998] PNGLR 449. The court there looked at what the two motions meant to do, that is whether they were meant to dispose of the interests or dispose of the substantive disputes between the parties altogether. The court decided otherwise even though the proceedings were dismissed.

The Appellants do not dispute the law relating to what is an interlocutory judgment. But they submit that in the facts of this case, the order is final. It is final because it puts the First Respondent in his original position as distinct from an order to discharge. They rely on an English...