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Seneviratne v Chaffey [2000] PGNC 46; N2014 (17 July 2000)

N2014

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

Appeal No. 40 of 1999

BETWEEN:

ASOKA SENEVIRATNE
- Appellant -

AND:

GRAHAM CHAFFEY
- Respondent -

LAE: INJIA, J.
2000: JULY 17

No cases are cited in the judgment

Counsel:
C. Inkisopo for the Appellant
D. Poka for the respondent

17 July 2000

INJIA, J.: This is an appeal instituted under Part XI of the District Courts Act (Ch. No. 40). The Appellant is contesting the decision of the District Court at Lae on 27/11/98 in which the Court found the respondent to be the owner of a Ford Falcon vehicle Reg. No. AFM.133, as having been duly sold to him by its previous owner one Pauline Jean Allerdice, and that the matter proceed to assessment of quantum of damages.

The plaintiff’s initial complaint was for damages occasioned by the defendant’s negligent driving of his motor vehicle which collided with the plaintiff’s motor vehicle and damaged it. He claimed K5,000.00 being K4,000.00 for the value of the Ford Falcon and K1,000.00 for legal costs. The grounds of appeal are:-

The Court records show that after the ownership issue was determined in favour of the respondent, the Court ordered the matter proceed to assessment of damages. Thereafter the matter was mentioned a number of times in Court and written submissions were filed for the Court’s determination on quantum but the case was later adjourned sine die to await the outcome of this appeal.

Both parties have now filed written submissions which I have read. None of the submissions deal with the issue of the competency of this appeal. There is one fundamental flaw in this appeal. The Court made an interlocutory ruling as to the ownership of the vehicle. The main issue of quantum of damages remained to be dealt with and as I understand, it is pending determination. An appeal from an interlocutory ruling of a District Court is clearly not appellable when one reads the provisions of S.146, S.152 and S.219 of the District Court Act (Ch. No. 40) together.

Section 219 says that a person "aggrieved by an order or adjudication of a Court, including an adjudication or order dismissing a complaint, may appeal to the national Court from the conviction, order or adjudication, in accordance with this part (Part XI)".

Section 146 which applies to an order or adjudication in civil complaints provides:-

"The Court, having heard what each party has to say and the evidence adduced by each, shall consider and determine the whole matter, and shall make an order against the defendant or dismiss the complaint, or make an order against the complainant or dismiss the self-off, as the case requires". (My emphasis).

Quite clearly, the Court order appellable referred to in S.219 refers to a final order made after a hearing of the whole matter, including the evidence and submissions made. Section 152 says that determination embodied in the Court order is final, and it is that final order which is the subject of an appeal under S.219. It is not the intention of these three provisions that an interlocutory ruling made by the District Court is appealable for to do so would cause unnecessary interruption and undue delay in the hearing process and cause unnecessary costs to the parties in the litigation. For these reasons, I rule that this appeal is incompetent.

Further, I am of the view that all of the grounds of appeal clearly are without merit. There was abundance evidence and submissions from the appellant placed before the District Court that the appellant unequivocally admitted liability in negligence directly to the "owner" of the vehicle, whom he accepted was the respondent, in person, face to face, and in writing: see Affidavit of Dr. Seneviratne sworn 17/6/98, in particular para 3 and annexure "A" (letter from Dr. Seneviratne to Graham Chaffey dated 12/5/98); written submissions of Dr. Seneviratne filed in June, 1998 in particular, the third last paragraph of the last page. This affidavit was filed in support of the appellant’s application to set aside an ex parte default judgment for K5,000.00 entered on 22 June 1998 when the appellant despite being served with a default summons failed to file a Notice of Intention to Defend and Defence and failed to turn up in Court. He said he deliberately did not file a Notice to Defend and Defence and did not turn up in Court because he admitted liability and he simply wanted the Court to assess damages only. The Court accepted his explanation and set aside the ex parte order for the specific amount of K5,000.00 and ordered that quantum of damages be assessed.

Thereafter, the appellant, quite inappropriately, in my view, switched his position and used his best intellectual endeavours to raise every possible defence at his disposal to contest the respondent’s claim in terms of liability. The issue of ownership was one such issue he raised in the Court below; but he can only do so with leave of the Court: see S.158. On the face of the record, no such leave was applied for by the appellant and obtained. The appellant raised the argument of ownership and the magistrate without recourse to S.158 and the appellant’s own previous position as to liability erred in proceeding to deal with the issue of ownership, when as a matter of procedural law and in view of the appellant’s previous position on liability, the issue of ownership was not open to the magistrate nor the appellant. Even if it was open, the evidence of admission to the claim by the appellant referred to herein was determinative of the issue of the appellant’s liability to the respondent, in all its aspects.

The three grounds of appeal raise issues of law and fact pertinent to the issue of liability which was not open to the Court below. Notwithstanding this, I do not see where the magistrate erred and in so doing, caused substantial injustice to the appellant.

For these reasons, I dismiss the appeal with costs to the respondent, if not agreed, to be taxed.
_________________________________________________________

Lawyer for the Appellant : Cosmos Inkisopo
Lawyer for the Respondent : Milner & Associates