SC806

PAPUA NEW GUINEA
[In the Supreme Court of Justice]

SCA 154 of 2004

BETWEEN

WELLCOS ENGINEERING LIMITED
First Appellant

AND

KOH CHONG-HA
Second Appellant

AND

PETER PAK
Respondent

Mt Hagen: Sevua, Sawong & Lay, JJ.
30th June & 1st July 2005

APPEAL – Notice of appeal – Grounds of – Appeal against interlocutory judgment – Leave required – Leave not obtained – Notice of objection to competency - Whether appeal incompetent. Application granted.

Supreme Court Act, s 14
Supreme Court Rules, Order 7 Rule 14

Cases cited in judgment
Andrew Baing and The Independent State of Papua New Guinea v. PNG National Stevedores Pty Ltd and Bank of South Pacific Limited, (2000) unreported, SC627, 23rd February 2000, (Sheehan, Sawong & Kirriwom, JJ.).
Sir Julius Chan v Ombudsman Commission of Papua New Guinea, (1999), unreported, SC607, 25th June 1999, (Kapi, DCJ, Sheehan & Jalina, JJ..)

Mr. K. Peri for Appellants
Mr. D. Gonol for Respondent

1st July 2005

BY THE COURT: The respondent has made this application objecting to competency of the appeal by the appellants. The appeal was filed on 2nd November 2004 and served on the respondent on 11th November 2004. The respondent filed his notice of objection to competency on 17th November 2004 in pursuance of Order 7 Rule 14 Supreme Court Rules (SCR).

The appeal arises from two decisions of the National Court in Mt Hagen in respect of the same proceedings, WS 163 of 2003. On 9th September 2004, the appellants who were the defendants then made an application to set aside a judgment obtained in default on 22nd August 2003. The trial Judge dismissed that application and the trial on assessment of damages proceeded over four days on 9th, 13th, 14th and 15th September 2004. Then on 24th September 2004, the trial Judge entered judgment for the respondent. As we do not have the National Court file of the original proceedings, we are not aware of the quantum of damages assessed by the Court below. Counsel have not assisted on this aspect either. However, Mr. Gonol, counsel for the respondent, advised the Court that judgment was entered in favour of his client, the respondent.

The appellants, being aggrieved by the two decisions of the National Court filed this appeal on 2nd November as we have already alluded to. The respondent’s objection to competency is based on the grounds of appeal set out in paragraph 3 of the notice of appeal. These are as follows:-

3. GROUNDS OF APPEAL

(a)	The Court erred in law and fact when it refused to set aside an ex parte order against the appellants on 22nd day of August 2003 when the respondent has not pleaded a breach of a term of his employment of contract in the statement of claim which gave rise to a claim against the appellants.

(b)	The Court erred in law and fact when it refused to set aside an ex parte order entered on 22nd August 2003, when the respondent failed to plead in the statement of claim when he left employment with the first appellant to ensure that the Court can determine the exact date to calculate outstanding salary and other entitlements.

(c)	The Court erred in law when it failed to consider and apply the principles of mitigation of damages.

(d)	The Court erred in law and fact when there was evidence before the Court (sic) appellant accepted without protest the salary offered to the respondent after the alleged employment contract was signed.

(e)	The Court erred in law and fact in accepting the tender documents and relying on the entire contents of the tender documents when objections as taken for its tendering and the court ruled that only the one page containing the signature of the second appellant would be admitted in evidence.

(f)	The Court erred in law and fact in admitting documents which were not available at the trial after the appellants had closed their case despite objections.

(g)	The Court erred in law and fact when the court admitted the alleged employment contract between the first appellant and the respondent when there was no other evidence to support the respondent’s allegation that the employment contract was signed by the second appellant which does not contain the common seal or company stamp when in fact the tender documents tendered by the respondent contained the common seal or company stamp and were admitted in evidence and the Court haven’t relied on it.

(h)	The damages awarded to the respondent was manifestly excessive in the circumstance of the case.

As adverted to, the respondent’s application is brought under Order 7 Rule 14 SCR, which provides:

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

(a)	file an objection in accordance with form 9,

(b)	serve a copy of the objection on the appellant.

It is the contention of the respondent that the trial Judge’s decision on 9th September 2004 dismissing the appellants’ application to set aside default judgment is an interlocutory judgment for which leave to appeal is required by s. 14 (3) (b) Supreme Court Act (the Act). This submission is correct in law and we accept it. Since the appellants have conceded that leave is required, we find that the appellants’ appeal against that interlocutory ruling is incompetent. We refer to Andrew Baing and The State v. PNG National Stevedores Pty Ltd and Bank South Pacific, (2000), unreported, SC627, 23rd February 2000, (Sheehan, Sawong & Kirriwom, JJ.). We also refer to Sir Julius Chan v. Ombudsman Commission of Papua New Guinea, (1999), unreported, SC607, 25th June 1999, (Kapi, DCJ, Sheehan & Jalina, JJ.) which the Supreme Court sets out the principles relating to obtaining leave to appeal against an interlocutory judgment.

However we do not accept the respondent’s submission that if we agree with his contention on incompetence then we should dismiss the whole appeal. In our view that is misconceived as those grounds do not form the whole appeal. There are other grounds which relate to the final judgment of the Court on 24th September 2004 and those grounds also form part of this appeal. We consider that only the appeal against the decision of the trial Judge on 9th September is incompetent therefore it follows that the appeal against that decision should be dismissed for want of leave. Accordingly, we order that grounds 3 (a) and (b) of the notice of appeal are dismissed.

After a careful perusal of the other grounds of appeal, ie. grounds 3 (c) to (h) inclusive, we note that grounds (d), (e), (f) and (g) are pleaded in such a way that they raise issues of mixed fact and law. However, upon a careful analysis of those grounds, we consider that they do not raise questions of mixed fact and law. From that analysis, we are satisfied that ground (c) involves the application of the legal principles in mitigation of damages therefore it raises a question of law and leave is not required under s. 14 (1) (a) of the Act. Similarly, ground 3 (f) which relates to the issue of admissibility of documents raises an issue of law therefore leave is not required by s. 14 (1) (a).

Ground 3 (d) is in respect of evidence before the Court. A determination or finding of fact based on the evidence adduced in Court is a question of fact. We are also satisfied that this ground raises an issue of fact alone, not an issue of mixed fact and law as pleaded therefore under s. 14 ((1) (c) leave is required. Since leave has not been granted, this ground of appeal is incompetent and we accordingly dismiss it.

In respect of grounds 3 (e) and (g), we are of the view that they relate to the issue of admissibility of documents and also a determination or finding of fact based on whether or not to accept such evidence. They raise questions of mixed fact and law. Under s. 14 (1) b), leave is not required. We therefore rule that those grounds are competent and should proceed.

Finally, ground 3 (h) relates to quantum of damages awarded to the respondent. This is a question of law and leave is not required by s. 14 (1) (a) of the Act.

Having made those findings, it is our opinion that the appeal against the final judgment of the Court on 24th September 2004 is not incompetent in its entirety. We have determined that grounds 3 (c), (f) and (h) raise issues of law which do not require leave under s. 14 (1) (a). They are therefore competent. On the same vein, we find that grounds 3 (e) and (g) raise questions of mixed fact and law and by s. 14 (1) (b) leave is not required, therefore those two grounds are also competent. Accordingly, we order that the appeal must proceed on those grounds. Only ground 3 (d) raises an issue of fact therefore it requires leave under s. 14 (1) (c). However since leave was not obtained, it is incompetent and is struck out.

In summary therefore, we rule that in respect of the appeal against the interlocutory order of 9th September 2004, leave is required under s. 14 (3) (b). Because the appellants had failed to obtain leave, those grounds are incompetent. We therefore order that the appeal against the interlocutory judgment of the Court on 9th September 2004 be dismissed.

In respect of the appeal against the final judgment of the Court on 24th September 2004, we rule that only ground 3 (d) is incompetent because it raises an issue of fact which requires leave, but leave was not obtained. Grounds 3 (c), (f) and (h) raise issues of law which do not require leave. Grounds 3 (e) and (g) raise questions of mixed fact and law which do not require leave. Contrary to the respondent’s submission that the appeal against the substantive judgment be dismissed because it is incompetent, we consider that his submission is misconceived. We order that the appeal shall proceed with grounds 3 (c), (e), (f), (g) and (h) only.

On the question of costs, Mr. Gonol submitted that if the application succeeds wholly or in part, the appellants must be held liable for the respondent’s costs because if they had correctly pleaded the notice of appeal, this application would not be necessary. We think that is a fair and reasonable proposition. Because the application has succeeded in part, we will order that the appellants bear the respondent’s costs of this application.

Accordingly, we make the following orders:-

1.	Appeal against the interlocutory order of 9th September 2004 is dismissed as grounds 3 (a) and (b) are incompetent.

2.	Appeal against the final judgment of 24th September 2004 shall proceed with grounds 3 (c), (e), (f), (g) and (h) only.

3.	Ground 3 (d) is struck out as being incompetent.

4.	Appellants shall pay the respondent’s costs of this application, to be taxed if not 
agreed.

Orders accordingly.

Lawyers for Appellants : Warner Shand
Lawyer for Respondent : Paulus M. Dowa Lawyers