The Independent State of Papua New Guinea and Det Sgt Maj Francis Namues and Jimmy Tamate Wala and Hon Andrew Kumbakor MP v John Talu Tekwie 2006 SC843

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Salika J Lay J and Gabi J
• Judgment Date: 21 July 2006
• Citation: (2006) SC843
• Judgment Number: SC843
• Year: 2006
• Docket Number: SCA No 60 of 2005

Full Title: SCA No 60 of 2005; The Independent State of Papua New Guinea and Det Sgt Maj Francis Namues and Jimmy Tamate Wala and Hon Andrew Kumbakor MP v John Talu Tekwie 2006 SC843

High Court: Salika J, Lay J and Gabi J

Judgment Delivered: 21 July 2006

SC 843

PAPUA

[p1]

[p1] NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 60 OF 2005

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

First Appellant

AND:

DET. SGT. MAJ. FRANCIS NAMUES

Second Appellant

AND:

JIMMY TAMATE WALA

Third Appellant

AND

HON ANDREW KUMBAKOR MP

Fourth Appellant

AND

JOHN TALU TEKWIE

Respondent

Waigani: Salika, Lay and

Gabi JJ.

2005: 30 August

2006: 21 July

PRACTICE AND PROCEDURE - objection to competency - O.7 r.15 - application for leave to appeal - whether leave required - Supreme Court Act s.14(4) - unconditional leave to defend refused - whether leave required - whether leave should be granted when not required.

Cases Cited

Shelley v PNG Aviation Services Pty. Limited [1979] PNGLR 119

Christopher M. Smith v Ruma Constructions Limited (2000) N1982

Oio Aba v Motor Vehicles Insurance Limited (2005) SC779

Christopher M Smith v Ruma Constructions Limited (2002) SC695

Christian Revival Crusade v Eyo Taviviya & Ors

Boyepe Pere v Emmanual Ningi(2003) SC711

Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185 ;

Paul Tohian, Minister for Police and The State v Tau Liu SC566

Facts

The Appellant applied to the National Court for leave to defend which was refused because inter alia the grounds sought to be relied upon (s.5 of the Claims by and Against the State Act) had not been pleaded. Leave to defend was only granted on the issue of quantum and appeals from that decision. The Applicant objects to competency of the appeal.

Held

A conditional leave to defend is refusal of unconditional leave to defend within the meaning of Supreme Court Act s.14(4) and leave is not required from such an order.

Where leave is mistakenly sought when not required it should be granted if there is an arguable case. It was arguable that pleading was not the only way of bringing to Court lack of a condition precedent to a right to issue a writ, such as notice under s.5 of the Claims by and Against the State Act. Leave should be granted.

Counsel:

N. Kubak, for the Applicant Respondent

S. Jabson, for the First, Second & Third Appellants

No appearance for the Fourth Appellant

21 July, 2006

1. BY THE COURT: The Respondent has filed an objection to the competency of the Application for Leave to Appeal pursuant to O.7 r.15.

2. In prior separate criminal proceedings in the National Court the Respondent was prosecuted on several counts that he did dishonestly apply money belonging to the State. He was found not guilty of those charges.

3. At the conclusion of the criminal trial the Respondent in the Court below commenced proceedings against the State for damages for malicious prosecution. The First, Second and Third Appellants failed to file a Defence. The National Court ordered on 24 November 2004 that:

“the substantive matter is to be listed by the Registrar for ex parte hearing as against the First, Second and Fourth Defendants.”

4. On 20 April 2005, the Court further ordered that:

“For clarity the Court states that by reason of the Plaintiff serving an order to proceed to an assessment of damages as against the First, Second and Fourth Defendants and those Defendants being declined leave to file their defence out of time, they are not at liberty to raise issues going into the liability for the claim against them, but are at liberty and can be fully heard on the assessment of damages issue.

5. On 12 May 2005, the Appellants applied to (1) dismiss the National Court proceedings on the basis of the Respondent’s failure to give his Notice of Intention to make a claim against the State pursuant to s.5 of the Claims by and Against the State Act and to (2) set aside the order for ex parte hearing and alternatively to (3) seek leave to file their defence out of time. That application failed and all of the orders sought were refused. The Appellants have sought leave to appeal from those orders.

6. The grounds of the Objection to Competency are that:

1. The judgment sought to be challenged by way of appeal is not an interlocutory judgment as it is related to an application seeking “unconditional leave to file a defence” therefore, a Notice of Appeal setting out the grounds of appeal should have been filed within 40 days instead of the current Application for Leave to Appeal;;

2. The Section 5 notice required to be given to the State prior to the making of a claim by the Respondent, has been duly given and therefore the Appellant’s application to set aside was not only frivolous and vexatious but was misconceived and unduly delayed.

3. The orders being sought by way of motion on 12 May 2005, had been refused earlier but there was no appeal against such refusal orders and so the current application for leave to appeal is tantamount to an abuse of the court’s process.

4. The inter partes order for ex parte trial dated 24 November 2004 as confirmed by the court on 20 April 2005, has never been appealed and it is prejudicial and unjust not only to the Respondent but Mr Kumbakor as well (who is not the “State”) to entertain this application for leave to appeal at this stage;

5. The inter parties order of 24 November 2004 was granted pursuant to a formal application for an order for ex parte trial as against the Appellants on the basis of a default in filing a defence within the generous time period prescribed y the Claims by and Against the State Act.

6. The Appellants did not file a defence within the prescribed time which defence could then plead the failure to file a Section 5 notice as a defence.

7. Not only was there a failure to file a defence but there was a failure to advance the section 5 Notice argument when the respondent sought orders for ex parte trial which application was dealt with inter partes”

7. Section 14(4) of the Supreme Court Act is in the following terms:

“An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.”

8. The Respondent contends this provision applies to the current circumstances as per ground (1) of his Objection to Competency and accordingly the Respondent did not require leave to appeal. Therefore the application for leave is incompetent. No Notice of Appeal has been filed.

9. The Appellants submit that the provisions of Section 14(4) can only apply when there has been summary judgment entered after an inter parties hearing which determined the merits of the Defence and they rely upon Shelley v PNG Aviation Services Pty. Limited [1979] PNGLR 119 and Christopher M. Smith v Ruma Constructions Limited (2000) N1982 as illustrative of that proposition.

Our Reasons

10. Shelley v PNG Aviation Services is distinguishable on its facts from the present case. Both Prentice CJ and Raine J (Pritchard J agreeing with both judgments) pointed out that what had occurred in that case was the striking out of a Defence already filed and a direction for judgment to be entered. Their Honours held that those circumstances could not be construed as “refusing unconditional leave to defend”. The case was decided under the now repealed Rules of Court and it should be noted, as it was in Oio Aba v Motor Vehicles Insurance Limited (2005) SC779, that the head note is partly incorrect as it states that “An order striking out a defence and counter claim, though final in its effect, is not an interlocutory judgment within the meaning of s.14(3) of the Supreme Court Act.” The ratio of the decision is that the order is (not, “is not”) an interlocutory judgment. In any event the facts of that case are not the facts and circumstances of this case.

11. Christopher M. Smith v Ruma Constructions Limited(supra), although it discussed the application of s.14(4) of the Supreme Court Act, was an application in the National Court to set aside a judgment pursuant to O.12 r.8. In the context of the application pursuant to O.12 r.8 in the National Court the judge observed that when summary judgment has been entered inter parties the only remedy is appeal. He considered s.14(4) emphasised that point. However in our view that comment runs counter to the reasoning in Shelley v PNG Aviation Services Ltd where it was held that an order entering judgment was a different matter to an order refusing unconditional leave to defend. Separate Rules dealt with (1) entering judgment and (2) granting leave to defend, either conditionally or unconditionally (Prentice CJ at p122 and Raine DCJ at p123). The National Court decision was reversed on appeal in Christopher M Smith v Ruma Constructions Limited (2002) SC695. We therefore do not consider that the National Court decision can be regarded as authority on the application of s.14(4).

12. In our view this issue can be decided on its facts and by the application of the words of s.14(4) in their ordinary and natural sense.

As this Court said in Christian Revival Crusade v Eyo Taviviya & Ors:

“It is trite principle of statutory interpretation that if “the words of a statute are themselves precise and unambiguous, then no more is necessary than to expound those words in their ordinary and natural sense.” Wemas –v- Kepas Tumdual {1978] PNGLR 173 at 176 per Wilson J. adopted in SCA No. 6 of 1984 Re Provocation [1985] PNGLR 31.”

13. What the judge did in this case was refuse the...