SC717

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 42 of 2003

BETWEEN:

PNG FOREST AUTHORITY
Appellant

AND:

SECURIMAX SECURITY PTY LTD
Respondent

Waigani	:	Sakora J
2003		:	7th & 22nd August

Appeals – Supreme Court – As of right – Leave to appeal – Objection to competency of – Supreme Court Act, ss 3 (1) and (2), and 5 (1) – Supreme Court Rules, O. 7, r. 14.

Appeals – Supreme Court – As of right – Leave to appeal – Distinction between final and interlocutory orders – Test of

Cases Cited
Straits Contracting (PNG) Pty Ltd v. Branfil Investments Ltd [1988] PNGLR 339.
Steven Charles Pickthall v. Lae Plumbing Pty Ltd [1994] PNGLR 363.
Hall v. Nominal Defendant (1966) 117 CLR 423.
Carr v. Financial Corporation of Australia Ltd (1981) 147 CLR 246
Australian Dairy Corporation v. Murray Goulburn Co-operative Co Ltd [1990] VR 355.

Texts:
Halsbury’s Laws of Australia, Vol. 20. Part VIII.
Civil Procedure, by S Colbran, G Reinhardt, S Jackson & R Douglas, 2nd ed., Butterworths (2002)

Counsel:
S Kassman for the Appellant.
L Igo for the Respondent.

SAKORA J:	Before me are two applications, one by the respondent objecting to the competency of an appeal by the appellant, and the other an application for leave to appeal by the appellant. I heard counsel on the respondent’s objection and then on the application for leave to appeal sitting as a Supreme Court pursuant to s 5 (1) Supreme Court Act (the Act).

The intended appeal, if leave is granted, arises from the decision of the National Court of 7 April 2003 presided over by Justice Sevua in respect of the matter WS No. 1095 of 1997. His Honour’s decision is said to have the following effects on the case between the parties:

1.	Refusal to grant an application by the appellant (plaintiff) for adjournment of the respondent’s Notice of Motion seeking the Statement of Claim to be struck out and the proceedings to be dismissed, to enable the appellant to file affidavit material.
2.	Appellant’s Statement of Claim ordered to be struck out and the proceedings dismissed with costs.

The respondent objects to the appeal pursuant to a Notice of Objection to Competency filed 22 May 2003. The objection is made on the ground that:

The Grounds contained in paragraph 2.1. (b) and paragraph 2.2. (a), are not findings which were made by the judge.

The objection is said to be made pursuant to O. 7, r. 14 of the Rules of the Supreme Court (the Rules). This rule is in the following terms:

14.	A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal –

(a)	file an objection in accordance with form 9; and 
(b)	serve a copy of the objection on the appellant.

In support of the objection Ms Igo of counsel for the respondent referred me to and relied on the affidavit of Royale Thompson sworn 21 and filed 22 May 2003. Counsel also cited and relied on the following two previous Supreme Court decisions:

•	Straits Contracting (PNG) Pty Ltd v. Branfill Investments Ltd [1988] PNGLR 339; and 
•	Steven Charles Pickthall v. Lae Plumbing Pty Ltd [1994] PNGLR 363.

The affidavit of Royale Thompson deals with each of the grounds of appeal relied on by the appellant, thereby deposing to the respondent’s version of the facts leading to the institution of the application for leave. In the end, the matters deposed to in this affidavit are intended to lend support to the contention that the respondent’s Notice of Motion (the interlocutory application heard by his Honour on 7 April 2003 and granted) was justified and well-grounded, and that the appellant’s lawyers had ample opportunity to seek adjournment before the application to strike out was heard. The justification relied on is the assertion that copies of the documents in the appellant’s (plaintiff’s) List of Documents had not been provided or produced pursuant to the service of a Notice to Produce.

The above cited cases are relied on to support the contentions, firstly, that the intended appeal is incompetent and that, secondly, "no serious questions of law" are demonstrated in the grounds of appeal.

Mr Kassman of counsel had spoken to (and handed up) his written submissions on both the objection to competency and the appellant’s application for leave to appeal. Learned counsel referred to and relied on his own affidavit sworn and filed 6 August 2003, in which affidavit he deposes to the history of the proceedings leading up to and during the hearing of the respondent’s (defendant’s) Notice of Motion to strike out the Statement of Claim and dismiss the Writ of Summons.

It is the appellant’s submission that, firstly, the objection to competency of the appeal ventures into challenges to the merits of the appeal rather than any preliminary issue(s) of law on "competency" or otherwise of the appeal process. Thus, it is argued, the objection should be dismissed as no issue(s) of competency is or are demonstrated. Secondly, in relation to the application for leave to appeal learned counsel for the appellant contends that, contrary to the submissions on behalf of the respondent, his Honour did make a decision affecting the rights of the parties, thereby entitling the plaintiff (appellant) to seek leave of the court to appeal that decision. Leave is required as the decision sought to be challenged on appeal was an interlocutory decision. Refusing to grant application to adjourn was interlocutory; striking out the Statement of Claim and dismissing the proceedings was interlocutory though the effect was a final determination of the rights of the parties. And, it is argued further, the grounds of appeal do demonstrate serious issues of law for the Supreme Court’s consideration and determination.

In support of the submissions on the two issues before the Court now, Mr Kassman makes references to and relies upon case law (including the two Supreme Court decisions cited by Ms Igo, supra) and the Halsbury’s Laws of Australia, Volume 20 Part VIII paras. 325 – 12050. I am greatly assisted in my determination of these applications by those cases and the learned text.

CONCLUSION

I accept the appellant’s submissions that the objection delves into matters relating to the merits of the appeal itself rather than any preliminary issue(s) of competency. An objection to competency must raise serious threshold issues concerning legality or viability, or otherwise, of a particular process. In relation to appeals, objection(s) can legitimately be taken to non-compliance with statutory time limits because the right to appeal must be exercised "according to law". Indeed, if there is no statutory right to appeal, an objection based on competency can be taken to the institution of a purported appeal. And if law’s requirements are not complied with, then it is not competent to purport to exercise the statutory right.

The issue of competency does not entail determining the merits or otherwise of the grounds relied on for the appeal. Those are matters for the substantive appeal hearing in the event that the prospective appellant overcomes the preliminary and crucial hurdle of competency. In my opinion, competency of a legal process concerns the legality of the process, a question of law (either statutory or Constitutional) rather considering and determining the adequacy or otherwise of facts, or indeed the presence or absence of any fact(s).

I, therefore, respectfully adopt the law on this subject as expressed in the learned text cited by counsel for the appellant, and that is:

An appellate court, in the exercise of the inherent power to control its own proceedings, may strike out a Notice of Appeal where plainly there is no right of appeal. Other circumstances where this can be done include where the notice does not state any reasonable ground of appeal or is otherwise frivolous or vexatious or an abuse of process, where the notice is served out of time, or where the notice is otherwise irregular.

I am satisfied that the respondent has not demonstrated any of the situations envisaged in the extract from the text. I agree with the learned counsel for the appellant that the two Supreme Court decisions relied on by the respondent (supra) are distinguishable from the instant case. In the Pickthall case (I was a member of the Court) the appeal was against a decision refusing leave to join and proceed against a party who had not been a party to the original proceedings. The original proceedings had been discontinued by consent after a sum of money required as the limit by statute had been paid into court for the plaintiff. The plaintiff sought joinder to enable proceedings against that other party to recover an amount in excess of the limit set by statute. To appeal against refusal to join we declared to be incompetent, as to proceed against the other party fresh proceedings would have had to be commenced.

The Straits case concerned an application to re-open the case (before final submissions) in order to introduce fresh evidence. The applicant having satisfied all the well-known requirements for fresh evidence, the learned trial judge granted leave which the Supreme Court declared proper and correct.

On the facts these two case are distinguishable and I do not find them to be of assistance in the consideration and determination of the objection. I conclude that the respondent’s ground or basis for objection is without merit and is mischievous in the process.

In relation to the application for leave to appeal, the intended appeal, as noted already, is in respect of his Honour’s decisions affecting two matters: firstly, the oral application for adjournment of the defendant’s Notice of Motion when the judge indicated he would not accept what counsel had said in his submissions (on the defendant’s application) unless these had been supported by affidavit evidence; and, secondly, his Honour’s acceptance of the defendant’s contention that the plaintiff had not produced the documents pursuant to a Notice to Produce and, thus, proceeding to grant the application to strike out the Statement of Claim and dismiss the proceedings.

On the first issue, it is the appellant’s submission that if the adjournment sought had been granted the affidavit evidence that the court required would have been duly furnished. In respect of the production of documents, it is the appellant’s case that on the very day of the hearing of the defendant/respondent’s Notice of Motion, copies of the documents had been produced in that learned counsel for the appellant furnished these to Ms Igo, learned counsel for the respondent. The other documents that had not been produced were the subject of privilege that Mr Kassman duly claimed over.

Once privilege is claimed by a party in respect of documents sought for production, the party seeking has to formally challenge that claim. Here no challenge to the claim for privilege seems to have been launched. Instead the defendant’s lawyers proceeded to assert non compliance with the Notice to Produce, and relied on this assertion to apply to have the Statement of Claim struck out and the entire proceedings dismissed.

The general rule is that an appeal can be brought as of right without leave. The Supreme Court Act provides for appeals in the following terms:

3.	Right of Appeal from the National Court.

(1)	An appeal in accordance with this Act lies to the Supreme Court from a judgement (sic) of the National Court.

(2)	An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal –

(a)	on a question of law; or 
(b)	on a question of mixed fact and law; or 
(c)	with the leave of the Supreme Court, on a question of fact.
(underlining mine).

Subsection (2) (c) provides one exception to appeals as of right. There are other exceptions to the general rule where there are specific matters (or orders) in litigation for which there is no right of appeal. These are: interlocutory orders generally; consent orders; and, discretionary costs orders. For these, leave to challenge the decision or order by way of appeal must be obtained from the court first.

Interlocutory orders are to be distinguished from final orders. An appeal lies form a final judgment or order concerning the substantive question in the proceedings. The distinction between final and interlocutory orders depends on the nature of the application and its legal effect, the test being: does the order made finally dispose of the rights of the parties in the action?: Civil Procedure, by S Colbran, G Reinhardt, P Spender, S Jackson and R Douglas, 2nd ed; Butterworths (2002), page 871.

This learned text refers to the cases of: Hall v. Nominal Defendant (1966) 117 CLR 423; and Carr v Financial Corporation of Australia Ltd (1981) 147 CLR 246. I respectfully adopt these two decisions of the High Court of Australia on the distinction between final and interlocutory orders. I also respectfully adopt the proposition by the learned authors (referring to the case of Australian Dairy Corporation v. Murray Goulburn Co-operative Co. Ltd [1990] VR. 355) that: the applicant (for leave) will need to establish in the first instance that the decision was wrong or doubtful and that a substantial injustice will arise by allowing the decision to stand.

I am satisfied that leave to appeal should be granted here.

The orders of the Court, therefore, are that: (1) The defendant/respondent’s objection to competency is dismissed with costs; and (2) The applicant is granted leave to appeal against the decision of the National Court.
_____________________________________________________________
Lawyer for the Plaintiff/Appellant:		Kassman Lawyers
Lawyer for the Defendant/Respondent: 	White, Young & Williams