SC718

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 19 & 20 OF 2002

BETWEEN:

HII YII ANN
-Appellant-

AND:

CANISIUS KAMI KARINGU
-Respondent-

LAE: Hinchlifffe, Kirriwom & Mogish, JJ.
2002: 30th July
2003: 13th June

ADMINISTRATIVE LAW – Interlocutory judgement – Appeal – Whether leave to appeal required – Effect and nature of ruling final or interlocutory - Whether interlocutory judgement disposes of rights of parties regardless of outcome 

PRACTICE & PROCEDURE – Objection to competency – Dismissal of application – Whether dismissal of objection to competency appealable as of right or with leave – Whether ruling is interlocutory or final – ss.4, 14 Supreme Court Act and r.14 Supreme Court Rules.

Cases Cited:
Yakham & Ors v. Merriam & Anor [1997] Supreme Court Judgement SC533
Dowsett Engineering (New Guinea) Pty Ltd v. Edwards and R.E Jordan trading as Jordan Lighting [1979] PNGLR 426 (SC161).
Ruma Constructions Pty Ltd v. Christopher Smith [1999] Supreme Court Judgement SC600
Shelly v. PNG Aviation Services [1979] PNGLR 119
Provincial Government of North Solomons v. Pacific Architecture [1992] PNGLR 145
Rimbink Pato v. The Hon. Sir Julius Chan and the Hon. Chris Haiveta [1997] Supreme Court Judgement SC527
LA Jarden Collector Agency Pty Ltd and Richard Hill & Associates v. Masket Iangalio and Public Curator of PNG [1998] Supreme Court Judgement SC597

Counsel:
K. Frank for Appellant/Respondent
Applicant/Respondent in Person

BY THE COURT:

1.	This is the Respondent’s application objecting to the competency of the Appellant’s appeal based on these grounds:

1.1	That the appeal herein has been made in respect of an interlocutory judgement or order without first making an application for leave to appeal to the Supreme Court as requirement of by s.14(3)(b) of the Supreme Court Act Chapter 37.

1.2.	That the appeal herein has been made in respect of questions of fact in particular grounds 3.1 (a), (b), (c), (d), (e), (f), (g), 3.2 and 3.5 without first making application for leave to appeal to the Supreme Court as required of under s.4(2)(c) and s.4(2)(c) of the Supreme Court Act Chapter 37.

THE BACKGROUND

2.	The appeal that is the subject of this competency application or objection by the Respondent is an appeal by the Appellant emanating from a ruling made by Sheehan, J on the 8th March 2002 in which His Honour dismissed an application by Motion filed by the Appellant in the Supreme Court in SCA No. 49 of 1997 to dismiss the Respondent’s application for review seeking, inter alia, a review of the Registrar’s decision in allowing only the Respondent’s out-of-pocket expenses to be taxed and disallowing the others.

3.	The Appellant’s ground for objection to the competency of the application was that the Motion seeking review of the Registrar’s decision was filed outside the 14 days time limit stipulated by O. 22 r.60 (2) of the National Court Rules and was therefore incompetent. After hearing the objection on the competency issue, Sheehan, J ruled that the motion was filed within time and was competent and dismissed the objection.

4.	Against this ruling, the Appellant has now filed an Application for Leave to Appeal ( SCA19 of 2002 ) and a Notice of Appeal (SCA20 of 2002 ) challenging this ruling or judgement of Sheehan, J.

5.	The case itself has a long history and in order to put the entire scenario into it’s proper perspective, we need to go back to the beginning where this whole saga began.

6.	The Appellant commenced proceedings in the National Court seeking damages against the Respondent for malicious prosecution by writ of summons numbered WS1238/96. A judgement in favour of the Appellant was entered by default.

7.	This default judgment was set aside on appeal by the Supreme Court in the proceeding entitled SCA47 of 1997 Canisius Kami Karingu v. Hii Yii Ann whereupon the Supreme Court ordered costs in favour of the Respondent in the words ‘costs follows the event.’

8.	Mr Karingu then submitted his itemised bill of costs to be taxed on a solicitor-client scale which the Appellant objected to. The Appellant contended that the Respondent was only entitled to out-of-pocket expenses that could be submitted for taxing by the Registrar as he was not a lawyer for purposes of the Lawyers Act because he held no practising certificate.

9.	This simple issue of costs became contentious before the Registrar who ultimately had to hear arguments and to give a ruling on the question as to whether the Respondent was entitled only to out-of-pocket expenses or other costs incurred charged as well in his itemised bill of costs. The Registrar ruled that the Respondent was not a lawyer for purpose of s.35 of the Lawyers Act and can be taxed on out-of-pocket expenses only and not the rest. Consequently, only K400.00 was allowed for taxing by the Registrar for which a Certificate was issued on 19 June 2001.

10.	The Respondent sought review of the Registrar’s ruling by a Notice of Motion to the Supreme Court but the review was stayed pending the decision in Canisus Karingu v. The Law Society of PNG – SCA 69/96. After that decision was handed down the Respondent pursued his application for review on this matter but the Appellant herein objected to the competency of that application which was over-ruled by Sheehan, J thus taking this matter to this level where we are now.

11.	Mr Karingu’s objection is to the competency of this two-pronged appeal filed by the Appellant against what he submits an "interlocutory judgement" of Sheehan, J. Mr Karingu submits that that ruling was interlocutory because the substantive matter in the dispute was his application for review of the Registrar’s ruling on the taxation of costs. The Appellant sought to have that application dismissed on competency ground which was dismissed. The Appellant’s grievance is the dismissal of the competency argument. That is the ruling that is appealed against.

12.	The question that quite correctly arises at the outset is whether that ruling is a final judgement or an interlocutory one? That is where the argument must be confined in our view. In this respect in a way we agree with Mr Karingu that there is no need to confuse the central issue in the dispute by lodging two documents, an Application for Leave to Appeal and a Notice of Appeal in the guise of conforming with the requirements of the Law set out in Yakham v. Merriam [1997] Supreme Court Judgement SC533 as the Appellant has attempted to do here. In fact the two-pronged appeal itself is even a misconception of the judgement in Yakham v. Merriam (supra) because this is not an appeal against a final judgment following a substantive hearing of the dispute that ultimately determined the rights of the parties. This case is not setting any new precedent but simply clarifying the law governing the appeal process in the light of the seemingly conflicting views that prevailed since the decisions in Opai Kunangel v The State [1985] PNGLR 144; Nerau v Solomon Taiyo Ltd [1993] PNGLR 395 and Tsang v Credit Corporation [1993] PNGLR 112. 

13.	The question as to whether a judgement is final or interlocutory has been determined in various decisions of this Court. Many of these cases were correctly cited to us by Mr Karingu.

14.	Mr Frank for the Appellant made extensive references to the relevant provisions in the Supreme Court Act, Supreme Court Rules and National Court Rules on costs relating to appeals to the Supreme Court. It is already trite law that any appeal to the Supreme Court from the National Court on questions of law and questions of mixed fact and law are as of right and do not require leave. But any appeal that challenges the trial judges findings of fact can only be permitted by leave of the Supreme Court. The Supreme Court in Yakham v. Merriam (supra) was addressing when exactly can such leave be sought and how that can be done. 

15.	But the line of authorities that Mr Karingu cited to this Court show clear distinction between the question of leave where appeal is based on findings of facts and where leave is required pursuant to section 14 (3)(b)(iii) of the Supreme Court Act. Simply put, s.14(3)(b)(iii) provides that ‘(3) No appeal lies to the Supreme Court without leave of the Supreme Court (b) from an interlocutory judgement made or given by the National Court except…. - (iii) ….in such (other) cases prescribed by the Rules of Court as are in the nature of final decisions.’

16.	The issue here is whether the ruling of 8th March 2002 by Sheehan J is interlocutory or final. In other words does that ruling finally dispose of the dispute between the parties i.e., whether the Taxing Master’s decision is right or wrong, or, it does not. If that ruling has the effect of disposing of the primary dispute on the issue of the costs, that is a final decision that requires no leave, but if it does not, then His Honour’s ruling is interlocutory only, as it does not dispose of the matter in contention which means the Appellant needs first to obtain leave of the Supreme Court before he can appeal against that ruling.

17.	A similar argument as in this case arose in Dowsett Engineering (New Guinea) Pty Ltd v. Edwards and R.E Jordan trading as Jordan Lighting [1979] PNGLR 426 (SC161). It was a case of personal injuries claim arising from an industrial accident. The Respondent was awarded damages and the Appellant appealed and in his Notice of Appeal, one of the grounds challenged the trial judge’s refusal to allow late amendment to its defence in which it wanted to raise contributory negligence. At p.434 Kearney J (as he then was) stated:

"Mr Kendall for Dowsett contended that an appeal lies of right to this Court against this ruling. No leave to appeal has been sought. Section 14(3)(b) of the Supreme Court Act 1975 provides that, with certain exceptions, no appeal lies to this Court without its leave from an interlocutory judgement of a judge of the National Court. In my opinion a ruling upon an application for leave to amend a defence, is properly characterised as an interlocutory judgement, and there can be no appeal from it without leave first attained. The distinction between ‘interlocutory’ and ‘final’ judgements or orders is, I think, to be found in the nature of the application to the Court: is it such as to finally dispose of the rights of the parties irrespective of the Orders made? See Salter Rex & Co v. Ghosh [1974] 2 QB 597. Applying this test, the ruling here was clearly interlocutory in nature. If, however, the test lies in the nature of the Order actually made – whether it finally disposed of the rights of the parties – the answer is the same. I wonder therefore that leave is required, and without it, this ground of appeal does not be; that is sufficient to dispose of the question." (Emphasis ours).

18.	The Supreme Court dismissed the ground that challenged the trial judge’s refusal to grant leave for amendment to the defendant’s defence because that refusal was an interlocutory judgement and the appellant sought no leave to appeal that ruling.

19.	By analogy, the issue of competency, whenever raised in a trial or on an appeal, never brings finality to a dispute or the rights of the parties. Objection based on competency of a legal process is technical and generally relates to the procedure rather than the substance of the case itself. In this case the objection to the competency of the Respondent’s motion to review the Registrar’s decision was based on the premise that the motion was filed outside the prescribed statutory time stipulation. However after analysing the evidence before it and the arguments heard on behalf of the parties, Sheehan, J ruled against the Appellant. Has that ruling now finally disposed of the matter? Certainly not. The parties primary legal rights remain untouched and that can only be determined on the review filed by the Respondent. That would be the forum to address those issues that the Appellant now prematurely seeks to raise.

20.	In Ruma Constructions Pty Ltd v. Christopher Smith [1999] Supreme Court Judgement SC600 the issue before the Court was whether a summary judgement is final or interlocutory. The Supreme Court referred to the cases on the point namely Shelly v. PNG Aviation Services [1979] PNGLR 119; Provincial Government of North Solomons v. Pacific Architecture [1992] PNGLR 145; Rimbink Pato v. The Hon. Sir Julius Chan and the Hon. Chris Haiveta [1997] Supreme Court Judgement SC527 and LA Jarden Collector Agency Pty Ltd and Richard Hill & Associates v. Masket Iangalio and Public Curator of PNG [1998] Supreme Court Judgement SC597 and made these remarks:

‘The cases have established in determining this issue that there are two tests which may be applied. The tests are first that the Court must look at the nature of the application to the Court and not the Order eventually made. Second the Court must look at whether the judgement or Order made finally disposes of the right of the disputing parties.’

21.	The Supreme Court unanimously held that summary judgement was not an interlocutory judgement and no leave was necessary because the judgement fully disposed of the issues before the Court and no further issues were left that could be further litigated and determined.

22.	The decision in that case followed the reasoning in LA Jarden Collector Agency Pty Ltd and Richard Hill & Associates v. Masket Iangalio and Public Curator of PNG (supra). This was a case where the Appellants who were owed money were claiming against the estate of the insolvent (First Respondent) under the Insolvency Act after properly filing their proofs of debts. Before they could be heard and taken into account by the Liquidator of the Estate, the Public Curator of PNG moved for annulment of the insolvency which was granted thus effectively discharging the First Respondent from any further obligation arising under the insolvency order. Consequence of that order was that the Appellants debts were left unsatisfied and had no recourse under the insolvency proceedings unless they instituted new actions and the issues of liability would need to be determined afresh. The Appellants thought it was wise to appeal that decision and the status quo restored so that they could be included in the scheme of settlement of all creditors that was arranged between the official trustee, (i.e., the Second Respondent) and the creditors, after all, the First Respondent has not paid all his creditors or obtained a release of his debts owing to the creditors as stipulated under s.141 of the Insolvency Act which included them. It was thus held that the decision of the National Court, albeit interlocutory in nature, was a final decision without there being any substantive issue on foot remaining to be tried. Therefore leave to appeal was not required and the appeal was competent.

23.	But the circumstances in this case are entirely different. The real issue here is on costs. Is the Respondent entitled to more than out-of-pocket expenses as an advocate in his own cause where he had spent time and efforts preparing his own case? Is that not compensable, if not as a lawyer, than at least as a professional in his own right according to his own evaluation of his time spent in his business whatever it maybe except law. Everyone is entitled to some form of remuneration for the time he puts into his work and business, in whatever capacity it maybe. And if that time lost was as the result of another’s doing, can he not claim loss of income for that lost time? These are valid issues and the question has been thrown wide open by the Supreme Court in its decision on his appeal when it granted him costs without exactly specifying what he was entitled to and what he was not. What the Respondent has done now is bring the matter back to the appropriate forum that must resolve this issue once and for all. This is the right that the Respondent is seeking to assert and to be advised of by the Supreme Court.

24.	The Appellant filed an Application for Leave to Appeal (SCA 19 of 2002) and an appeal (SCA 20 of 2002) against the same ruling of Sheehan, J on the presumption that that ruling was appealable as of right and he only needed to seek leave on those grounds pertaining to questions of facts alone. Quite clearly this was a misconception and the basis for this appeal at the outset is wrong in law.

25.	The Appellant need only to remind himself of s.14(3) of the Supreme Court Act and the hordes of decided cases on this point that have been cited herein to appreciate the distinction in the nature of appeals that come before the Supreme Court and what they entail.

26.	It follows therefore that the Appellant’s appeal is against an interlocutory ruling or judgement dismissing his objection to competency of the Respondent’s motion for review of the decision by the Registrar which means that before he can be heard on his appeal, he must first obtain leave. The Appellant did not pursue leave of this Court as discussed in light of the decided cases. He proceeded on the premise that this was an appeal as of right because it was based on questions or issues of law and both mixed fact and law. All those arguments repeated by the Appellant in the submission by his counsel were before the judge at first instance who rejected them and ruled the Respondent’s motion before the Supreme Court to be competent. To appeal against that ruling, the Appellant must show exceptional circumstances and compelling reasons for leave to be given to him to appeal against that ruling when the issues could just as easily and appropriately be dealt with in the next level at the substantive hearing itself.

27.	In the circumstances therefore that both the Application for Leave to Appeal and the Notice of Appeal are defective and therefore incompetent in their entirety and are therefore dismissed for that same reasons.

28.	We are inclined to award the Respondent full costs for this appeal to be taxed if not agreed upon.

Lawyers for the Appellant/Respondent:	Maladina Lawyers
Applicant/Respondent in Person