SC779

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 147 OF 2003

OIO ABA
Appellant

AND

MOTOR VEHICLES INSURANCE LIMITED
Respondent

INJIA DCJ SAWONG J AND LAY J
PORT MORESBY
2005: 28th February and 4th March 2005

SUPREME COURT ACT – s14 - objection to competency – whether application should be struck out when unnecessary – whether s14(3)(b)(iii) can have any application in the absence of Supreme Court Rules relating thereto –whether judgement is final or interlocutory tested by nature of application or effect of the decision.

Cases:
Boyepe Pere v Emmanual Ningi SC711 applied
North Solomons Provincial Government v Pacific Architecture Pty. Ltd [1992] PNGLR 145 followed;
Shelley v PNG Aviation Services Pty. Limited [1979] PNGLR 119 doubted.

Counsel:
Mr Uware for the Appellant
Mr Titus for the Respondent

RULING ON OBJECTION TO COMPETENCY

The Appellant has filed an Application for Leave to Appeal, without filing a Notice of Appeal; and the Respondent has filed a Notice of Objection to Competency. The Appeal is from an order of the National Court striking out the proceedings for failure to show a good cause of action because the plaintiff had not given notice of intention to claim pursuant to s54(6) pf the Motor Vehicles (Third Party) Insurance Act.

The first ground of the Notice of Objection to Competency is that the Application for leave to Appeal is contrary to s14 of the Supreme Court Act. It is submitted that leave is not required because the order made by the Court below was "in the nature of final decisions" and it argues that the Supreme Court Act s14(3)(b)(iii) permits an appeal in those circumstances without leave. Therefore the Respondent says, as leave is not required, leave cannot be granted and the Application for Leave cannot be converted to a Notice of Appeal; or no further time can be given to the Appellant to file a Notice of Appeal. No Notice of Appeal has been filed therefore there is no appeal on foot.

The Appellant relies upon the case of Boyepe Pere v Emmanual Ningi and submits that whilst leave was not required, the Appellant shows grounds of appeal that have merit and the Court should use its discretion to grant leave in accordance with the principle in that case.

Our Reasons

The Supreme Court Act s14(3)(b)(iii) provides:

"No appeal lies to the Supreme Court without leave of the Supreme Court—

(a)	…; or

(b)	from an interlocutory judgement made or given by the National Court except—

(i)	…

(ii)	…

(iii)	in such other cases prescribed by the Rules of Court as are in the nature of final decisions; 
…"

The same words appeared in s20 of the pre independence Supreme Court Act. It was recognized then, as now, that the Supreme Court Rules do not prescribe for cases "…as are in the nature of final decisions". In Breckwoldt vGnoyke& Co (N.G. Pty. Limited Clarkson J, said:

However for reasons I discuss later I do not think anything turns on the distinction here and I treat the application as one for leave to appeal against an interlocutory order which has not been prescribed under s. 20 (3) (b) (iii) of the Supreme Court (Full Court) Act as being in the nature of a final order.

The Court went on to decide the case on a point not relevant here.

The legislature has clearly set out the criteria for discovering the class of decisions of a final nature under s14(3)(b)(iii). When there are no such criteria the provision simply becomes irrelevant. There is no provision in the Supreme Court Rules prescribing cases in the nature of final decisions for the purposes of s14(3)(b)(iii); that paragraph can therefore not have any application to this or any other matter. It is a simple matter of construction of an act of the Parliament. As the Supreme 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."

In our opinion until the judges make rules in terms of s14(3)(b)(iii) of the Supreme Court Act the paragraph cannot be applied. That disposes of the Section 14(3)(b)(iii) argument. The facts of the Application do not come within any of the other exceptions to the requirement for leave in that subsection.

However the question then remains, is the judgment interlocutory within the meaning of s14(3)(b), thus requiring leave? In Re Moresby Northeast Election Petition; Patterson Lowa v Goasa Damena Prentice J, expressed the view that:

"It does not appear to me that a ruling during the course of the hearing of a case (though sometimes for convenience called such) is an "interlocutory judgment" within the meaning of s. 14 of the Supreme Court Act. Such an "interlocutory judgment", in my opinion, is one which gives a decision upon a particular motion or summons before the Court."

In referring to that case in 1999 Kapi DCJ reserved his opinion on whether Prentice DCJ’s statement was correct, as he noted that there had been no reference by the Court to the definition of "judgment" in the Supreme Court Act" which provides that:

"judgement" includes a finding, decree, order, rule, conviction, verdict and sentence, a decree, order or rule nisi, and a refusal to make a finding, decree, order or rule;"

Both of those cases were concerned with arguments attempting to distinguish interlocutory "ruling" from a "judgment" in order to conclude that no appeal could lie. We distinguish both cases as not being on point for the purposes of this case.

The meaning of "interlocutory judgement" was extensively discussed in the judgment of Prentice CJ in the case of Shelley v PNG Aviation Services Pty. Limited. In that case a defence was struck out as showing no reasonable cause of action and leave granted for judgment to be entered for the plaintiff. His Honour referred to a number of English authorities, all of which held that where an action had been brought to an end by reason of an order made by a Court on an interlocutory application that was an interlocutory judgement. The specific instances referred to in the cases cited by Prentice CJ involved actions being dismissed because (1) they were frivolous and vexatious, (2) disclosed no reasonable cause of action, (3) an order for security for costs was not complied with, (4) want of prosecution, (5) an order refusing an application for a new trial. His Honour also referred to a decision of the High Court of Australia where an appearance and defence were struck out and leave to enter judgment granted, and that was held to be an interlocutory judgement because it occurred as a result of an interlocutory application. Raine DCJ specifically agreed with the observations by Lord Denning in one of the cases cited by Prentice CJ, Salter Rex and Co Re Ghosh:

"If the application for a new trial were granted it would clearly be interlocutory. So equally, when it is refused, it is interlocutory."

Pritchard J agreed with both Prentice CJ and Raine DCJ. The court held that where, on an interlocutory application, the National Court had struck out the defence and granted leave for judgement to be entered, that was an interlocutory judgment. It should be noted that the head note in the report is incorrect in stating the reverse proposition.

The cases cited and the result in Shelley v PNG Aviation Services Pty. Limited clearly support the proposition that one looks at the nature of the application and not the result, to determine whether or not a judgment is interlocutory. This test has been criticised as not founded in logic but in a long tradition of practice, and approved by the House of Lords as the cases cited show. 

There was a long conflict of opinion notwithstanding the line of authority cited in Shelley v PNG Aviation Services Pty. Limited. In North Solomons Provincial Government v. Pacific Architecture Pty. Limited this Court approved and applied a different line of authority as follows:

The Privy Council in Haron bin Mohd Zaid v Central Securities (Holdings) Bhd [1982] 2 All ER 481 sets out some of the conflicts that have arisen in the past in other common law jurisdictions. Their Lordships agreed that the sound and convenient test is that advanced by Lord Alverstone CJ in Bozson v Altrincham UDC [1903] 1 KB 547, namely:

"Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order"

Their Lordships noted at page 486 that that test has been approved as a real and practical test by the Malaysian Court of Appeal. We feel that it can be safely adopted here."

This test, which has been applied since that case, is clearly irreconcilable with the test espoused by Shelley v PNG Aviation Services Pty. Limited and, without deciding now, it must be doubted as to whether the latter case is still good law, unless it is confined in the very narrow way it was in North Solomons Provincial Government v Pacific Architecture Pty. Ltd. In that case the Court found that as the order appealed from was an order for leave to enter judgement, it was still interlocutory, the right of the parties not having been finally disposed of until the judgment was entered. However the line of authority upon which Shelleys case is based is clearly not so narrowly framed. 

On the test applied in Shelley the decision appealed from in this case is an interlocutory decision, having arisen upon an interlocutory application; and also being a decision to dismiss the action for disclosing no good cause of action, one of the class of cases for which authority is cited in Shelley. On the test in North Solomons Provincial Government v Pacific Architecture Pty. Ltd, the decision appealed from is a final decision, as it finally disposes of the rights of the parties.

To complete our comments, although not necessary for this decision, it is clear that where judgment has been entered, but the action remains on foot with the necessity for the parties to go back to Court to complete the action, such a judgment is interlocutory. But there are rare cases where the nature of the claims made in the originating proceeding are so distinct and separate, that final judgment on one is to be regarded as a final judgment, even though the other claims are still to be litigated. 

We apply the test in North Solomons Provincial Government v Pacific Architecture Pty. Ltd and conclude that the decision appealed from is a final decision and leave is not required.

In the case of Boyepe Pere v Emmanual Ningi the facts and circumstances of the appeal do not appear from the reasons for judgement. We have examined the file in that matter, in which the appeal is yet to be heard. The Application for leave to appeal was from the order of the National Court motions judge striking out the statement of claim for failing to disclose a cause of action. There was a cross claim by the Respondent. From the transcript it appears the existence of the cross claim and the Appellants defence to it was not mentioned to the motions judge. The judge’s oral order was "…I will dismiss the writ of summons and statements of claim as disclosing no reasonable cause of action at all." If it was not the judges intention to dispose of the cross claim, then clearly the order did not dispose of all of the rights of the parties, the cross claim remained to be disposed of. This issue appears not to have been argued before the Court on hearing the Application for Leave. It appears from the Court’s reasons that whether or not leave was required was not fully argued before the Court. The Respondent contended that leave was not required and the Appellant accepted that position. At page 9 of the judgement it is said:

In the present case there is no contest that, the judgment of the National Court the subject of this appeal, though interlocutory in nature, it finally determines the rights as between parties."

Leaving aside that issue, and our reservations as to whether we would have come to the same conclusion as the Court in that case, we accept that the case is authority for the proposition that where Application for Leave to Appeal has been filed, though unnecessarily, and no Notice of Appeal has been filed, and the Application discloses merits, leave should be granted. Whether or not the application discloses merits is a matter to be decided on hearing the application for leave. We therefore decline to strike out the Application for Leave, simply on the basis that such an application was unnecessary.

The remaining grounds of the Notice of Objection to Competency are directed to whether or not the grounds of the Application for Leave to Appeal show sufficient particularity.

The first ground is pleaded as follows:

5 a 	His Honour erred in fact and in law in failing to find there was sufficient notice given orally to the Respondent

On the question of what is fact, what is law and what is mixed fact and law, the following passage is cited from Sidi Adevu v Motor Vehicles (PNG) Trust:

The issue of whether questions relate to fact or law or mixed law and fact is not as simple as it may appear. See Dillingham Corp v Diaz [1975] PNGLR 262 at 269, where the Supreme Court indicated that the difficulty that courts have in deciding such matters is revealed in numerous judgments. The Court cited the well known passage of Denning LJ in British Launderers' Research Association v Central Middlesex Assessment Committee [1949] 1 All ER 21 at 25, that:

"On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them. If and in so far as those conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts . . . If and in so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness, determination by a trained lawyer - as, for instance, because it involves the interpretation of documents, or because the law and the facts cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer - the conclusion is a conclusion of law on which an appellate tribunal is as competent to form an opinion as the tribunal of first instance."

In the case before us the evidence of what steps were taken to give notice are issues of fact, what is meant by the term "notice" under the provision of s54(6) of the Motor Vehicles (Third Party) Insurance Act is a question of law. As to whether the steps taken to give notice fall within the legal meaning of the term "notice" is a mixed question of fact and law. An appeal on this ground lies without leave pursuant to s14(1)(b) from a final decision. In our view the allegation is sufficiently particularized. It is desirable to give a précis of the relevant evidence, but that evidence was before the National Court and the parties. We do not think that the Respondent can fairly say that it does not know the case it has to meet on this ground.

The second ground is:

5 b	His Honour failed to consider that there was evidence that oral notice was supported by production of copies of medical reports and the police accident report.

It is not clear whether the allegation is that the production of the medical reports and accident report was not noted by the judge or that he did not draw the inference that the production of those documents supported the evidence that oral notice was given. The ground does not state whether it is alleged to be an error of law or fact or mixed. Although it is helpful to state whether the ground is alleging a error of law, fact or mixed the Rules do not require such a statement to be made. It is sufficient if it is clear from the nature of the ground that the allegation is one of error of law or fact or a mixed question of fact and law. Whilst the ground is not felicitously expressed and may be an allegation of error of fact or mixed fact and law, both possible interpretations are short points and we do not consider it places the Respondent in any difficulty in responding, to prepare for both possible interpretations. We therefore decline to strike out this ground.

The next two grounds are that:

"His Honour erred or failed in law and in fact when he took into account irrelevant factors such failure by appellant in naming (sic) any witness driver (sic) and indicating their availability when all that was required under the law was the notification whether orally or in written (sic) of an intention to claim compensation to the Respondent.

His Honour erred in law and fact when he found the notice as lacking and not properly on foot by reason of Section 54(6) of the Claims by and Against the State Act when proper Act (sic) would be the Motor Vehicles (Third Party) Insurance Act and even if his Honour was by oversight referring to the above mentioned Act there is no added requirement under the Act for a notice other than oral or written of intention to claim compensation."

The Respondent submits that the allegations made by the Appellant are just wrong and his Honour did no such thing. We do not have the benefit of having the transcript of proceedings in the Court below before us. We are therefore not in a position to determine who is correct as to what transpired on the hearing. These are issues which can only be determined on a hearing after the transcript is available to the Court. We decline to strike out those grounds.

We therefore dismiss the Objection to Competency.

Costs shall be costs in the appeal.

Lawyers for the Appellant	:	Public Solicitor
Lawyers for the Respondent	:	Mirupasi Lawyers