Alfred Alan Daniel and Sigfrid Daniel v Pak Domoi Limited (2004) SC736

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ, Injia DCJ, Jalina J
• Judgment Date: 02 April 2004
• Court: Supreme Court
• Citation: (2004) SC736
• Docket Number: SCA No 33 of 1997
• Year: 2004
• Judgement Number: SC736

Full Title: SCA No 33 of 1997; Alfred Alan Daniel and Sigfrid Daniel v Pak Domoi Limited (2004) SC736

Supreme Court: Kapi CJ, Injia DCJ, Jalina J

Judgment Delivered: 2 April 2004

1 Supreme Court Appeal—Summary judgment—Declaratory orders and for damages to be assessed in the same summary judgment—Whether part of the summary judgment is final and part interlocutory—Whether leave required—Supreme Court Act, s14(3)(b), National Court Rules, O12 r38.

2 Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285, Davis v David Tasion (1989) SC364, Electricity Commission of NSW v Lapthorne (1971) 124 CLR 177, Pastor Geyamgoling Saki v Kadir Contractors Ltd (1999) SC599, NCDC v Namo Trading Ltd (2001) SC663, NCD Water and Sewerage Ltd v Sam Maskuman Tasion (2002) SC696, Prosec Security and Communications Pty Ltd v Amalgamated General Workers Union of Papua New Guinea (2003) SC714, Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145, Rimbink Pato v Sir Julius Chan [1998] PNGLR 449, Ruma Construction Pty Limited v Christopher Smith (1999) SC600, Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119, The Independent State of Papua New Guinea v Henshi Engineering Pty Ltd (1998) SC594 referred to

___________________________

SC736

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE

SCA NO. 33 OF 1997

BETWEEN:

ALFRED ALAN DANIEL

First Appellant

AND:

SIGFRID DANIEL

Second Appellant

AND:

PAK DOMOI LIMITED

Respondent

WAIGANI : Kapi CJ, Injia Dep. CJ & Jalina, J.

2003 : September 29

2004 : April 2

Supreme Court Appeal – Summary judgment – Declaratory orders and

for damages to be assessed in the same summary judgment – Whether part of the
summary judgment is final and part interlocutory – Whether leave required – Supreme
Court Act, s.14(3)(b), National Court Rules, O12r38.

Cases cited in the judgment:

Curtain Brothers (Queensland) Pty Ltd & Another v The State [1993] PNGLR 284

Joseph Davis v David Tasion SC 364 (1998)

Electricity Commission of NSW v Lapthorne [1971] C.L.R 177

Geyamsoling & Anor v Kadir Contractors Ltd SC 599

NCDC v Namo Trading Ltd SC 663 (2001)

NCDC Water& Sewerage Ltd v Sam Tasion SC 696 (2002)

Prosec Security & 2 Ors v Amalgamated General Workers Union of PNG SC 714

Provincial Government of North Solomons v Pacific Architecture [1992] PNGLR 145

Rimbik Pato v Sir Julius Chan SC 527 (1997)

Ruma Construction Pty Ltd v William Smith SC 600 (1999)

Shelly v PNG Aviation Services [1979] PNGLR 119

The State v Hensi Engineering Pty Ltd SC 594 (1998)

R. Bradshaw for the Appellants

M. Titus for the respondent

2 April 2004

BY THE COURT: The respondent objects to the competency of the Notice of Appeal filed on 6 June 1997 against the “summary judgment” given by Salika J on 29 May 1997 in proceedings WS No. 690/94, on the ground that leave to appeal was not obtained to appeal against the “summary judgment” which they say was an “interlocutory judgment”. The appellants contest the objection. The issue before us is whether the “summary judgment” in this matter is “an interlocutory judgment”, for which leave to appeal is required under s.14(3)(b) of the Supreme Court Act.

The proceedings before the National Court in brief are that on 31 August 1994, the respondent (plaintiff) filed a Writ of Summons seeking certain declaratory orders as to ownership of the registered freehold land known as Pak and Viwlau Islands situated in the Manus Province. The respondent also claimed damages for destruction and loss of property situated on the land. In the Statement of Claim, the respondents alleged lack of authority of one Kaukam Popei and John Walker Habuka to execute a mortgage over the property on behalf of the respondent company in favour of the first appellant. They also disputed the subsequent purported mortgage sale by tender of the property by the First Appellant to the second appellant. On 18 October 1993, the respondent obtained a National Court order restraining the First Appellant from proceeding with the sale. On 21 December 1993, this order was dissolved upon application

of the first appellant, thus paving the way for the sale to proceed. As a result the respondent commenced proceedings in the National Court claiming declaratory orders invalidating the purported mortgage sale and declaring itself the registered proprietor of the land. It also claimed damages against the First Appellant for trespass and damage to a house situated on the property and removing properties.

On 13 December 1996, by Notice of Motion, the respondents sought the same declaratory orders sought in the Writ of Summons and a further order that damages be assessed. The Principal basis was that the defendant had failed to file and serve a defence after filing Notice of Intention to Defend. The Motion was dealt with inter partes. Although there is no reference in the Notice of Motion to “summary judgment”, the trial judge treated the application as a “Motion seeking declaratory orders by way of summary judgment”. It appears the motion was really an application for default judgment but the motion also made no reference to “default judgment”. There is some confusion as to whether the application before the Court was for summary judgment or default judgment. Both parties in this appeal do not take issue with His Honour’s approach that this was an application for summary judgment and His Honour granted summary judgment. We accept their position.

The test to be applied when determining whether a judgment is “interlocutory” or “final” is settled. The Court must first look at the nature of the application and not the order eventually made; and second, the Court must look at whether the judgment finally disposes of the substantive rights of the disputing parties: Rimbik Pato v Sir Julius Chan Unpublished Supreme Court Judgment SC 527 dated 16 July 1997; Provincial Government of North Solomons v Pacific Architecture [1992] PNGLR 145; Shelly v PNG Aviation Services [1979] PNGLR 119.

The test to be applied in determining whether a summary judgment is final or interlocutory has been developed by the Supreme Court in relatively recent times, on a case-by-case basis commencing with Ruma Constructions Pty Ltd v

Christopher Smith, Unreported Supreme Court Judgment SC 600 dated 25 March 1999 (“Ruma”) followed by National Capital District Commission & Another v. Namo Trading Ltd, Unreported Supreme Court Judgment No. SC 663 dated 23 February 2001 (“Namo”) and National Capital District Commission Water & Sewerage Ltd trading as Eda Ranu v Sam Maskuman Tasion Unreported Supreme Court Judgment No. SC 696 dated 4 October 2002 (“Eda Ranu”) Apparently, there seems to be confusion among practitioners as to the consistency in the development of the tests in some of these cases. The appellant in the present case initially appear to have been under the impression that there was a conflict in the tests laid down in Ruma and Namo but the argument was not pursued before us. The respondent maintained that Ruma was wrongly decided. It is for this reason that we wish to re-visit some of the previous decisions and to clarify the principles.

It was first observed by Los J in Joseph Davis & Another v David Tasion & Others, Unreported Supreme Court Judgment No. SC 364 dated 27 April 1988 (“Davis”), that default judgment in an unliquidated claim under O12 r28 can only be entered for damages to be assessed and that the judgment is interlocutory. His Honour adopted the following passage from Odgers “Principles of Pleading and Practice”, 21st edition at p.56.

“If, however, the plaintiff’s claim is for unliquidated damages, they cannot immediately obtain final judgment since damages have to be assessed. He gets instead what is called an interlocutory judgment which he can afterwards convert to a final judgment.”

In Ruma, the summary judgment was a “judgment for plaintiff on liability, the damages to be assessed”. The plaintiff’s action was for specific performance of a contract of sale of land and/or damages for breach of contract. The judgment was an ex parte judgment. The issue argued before the Supreme Court was whether the judgment was interlocutory or final, for the only reason that there were avenues open to the appellant under the National Court Rules, for an aggrieved party to apply before the same Court to set aside, or vary the order. The Supreme Court held that the judgment was final. The Court said: “whether or not the law make provision for reviewing that decision and whether or not that decision may be discharged or varied does not change the nature of the order that they are final.” The Court was neither invited by the parties nor of itself examine the judgments’ interlocutory or final status to decide the issue, but rather to the “ex parte”status of the judgment.

We have examined the Supreme Court file and ascertained that...