SC965

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 60 OF 2008

BETWEEN

THE CITY ADMINISTRATOR
First Appellant

AND

NATIONAL CAPITAL DISTRICT
Second Appellant

AND

YAMBARAN PAUSA SAKA BEN LTD
Respondent

Waigani: Gavara-Nanu, Batari & Gabi, JJ
2008: 27th October
2009: 1 May

PRACTICE & PROCEDURE – Appeal – Notice of Objection to Competency of the Notice of Appeal – Requirements under s. 14 of the Supreme Court Act, Chapter 37 and O 7 r 8 of the Supreme Court Rules discussed – Notice of Appeal competent.

PNG cases cited:

Dillingham Corporation of New Guinea Pty. Ltd. v Constantino Alfredo Diaz [1975] PNGLR 262 
Oio Aba v MVIL (2005) SC799
Sidi Adevu v MVIT [1994] PNGLR 57
Unasi Martin and Serah Martin v MVIT (2007) SC896
Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Overseas cases cited:

British Launderers’ Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority (1949) 1 All E.R. 2111 
Edwards (Inspector of Taxes) v Bairstow and Another (1956) A.C. 1413
Instrumatic Ltd. v Suprabrase Ltd. (1969) 1 W.L.R 51914 

Counsel:

T Imal, for the appellants
P Ame, for the respondent

1. BY THE COURT: This is an objection to competency of the notice of appeal on the following grounds:

"1. The Appellant has not provided for in the Notice of Appeal as required by Section 14 (1) of the Supreme Court Act the basis of his Appeal either on a question of law or fact or on a question of mixed fact and law, or with leave of the Court on question of fact.

2. The Appellant in the Notice of Appeal or in a separate application does not seek leave as required by Section 14 (1) (c) of the Supreme Court Act as the grounds of the appeal involves questions of facts.

3. The Appellant in the Notice of Appeal or in a separate application does not seek leave of the Supreme Court as required to Section 14 (3) (b) of the Supreme Court Act to appeal against an interlocutory ruling of Mr. Justice Cannings." (sic).

2. The appellant appeals from the whole of the decision of His Honour Mr. Justice Cannings dated 11th June 2008 where His Honour refused the appellant’s application to set aside summary judgment. The grounds of appeal are:

"3 (a) His Honour Justice Cannings erred in failing to uphold the principles of res judicata:

(i) by failing to find that the Respondent had earlier filed an application for summary judgment that was refused (dismissed) after a fully contested hearing ( inter parties) and as such is barred from filing a similar application again.

(ii) by failing to find that filing of the same application for summary judgment by the Respondent was an abuse of court process as the Respondent was precluded by virtue of the principal of res judicata.

(b) His Honour Justice Cannings erred in failing to apply the principles applicable on an application to set aside summary judgment:

(i) by failing to find that the repeat filing of the application for summary judgment and entry of summary judgment was irregular and a nullity from the outset and as such ought to be set side as of right.

(ii) by failing to find that the second hearing of the application for summary judgment was made ex parte and therefore prejudiced the Appellants.

(iii) by failing to consider and/or take into account or give weight to the contents of the Affidavits of Gomara Gorua sworn 21 May 2008 and filed on 4 June 2008 and the other one sworn on 11 April 2007 and filed 14 May 2007 by the Appellants wherein a reasonable explanation was provided as to the apparent delay of an application to set aside summary judgment.

(iv) by failing to consider and/ or take into account or give weight to the contents of the Affidavit of Winn Otto Enokin sworn on 11 April 2007 and filed 14 May 2007 by the Appellants wherein a reasonable explanation was again provided as to the apparent delay of an application to set aside summary judgment.

(v) by failing to consider and/or take into account or give weight to the contents of the Extract of Submission by the Appellants dated 27 May 2008 which was handed up in court.

(c) His Honour erred by failing to uphold the Application by the Appellants when there was clearly no explanation (at all) by the Respondent as to the reason (s) for the repeat filing of the application for summary judgment.

(d) His Honour erred by failing to exercise his discretion properly or at all when there was clearly a reasonable explanation for the apparent delay for the application to set aside summary judgment, which was clearly insignificant in the full consideration of the merits of the claim and defense of the respective parties.

(e) Failing to find that the Appellants had an arguable case warranting full hearing in circumstances where there was demonstrable prejudice to the Appellant by reasons of a Defense already on file.

(f) The decision of the National Court is wrong and should be set aside because:

(i) justice should have been the paramount consideration in determining the applications.

(ii) the application were not the occasion for the punishment of a party for its mistake (or that of its lawyers) or for the delay in filing an application to set aside summary judgment

(iii) in taking the opposite view, the judge was error in the exercise of his discretion." (sic).

3. Mr. Ame submits that all grounds of appeal raise issues of fact, except ground 3 (a), and as such leave is required. Secondly, he argues that the appellant should have specified whether the grounds of appeal raise issues of facts, law or mixed facts and law in the notice of appeal.

The Law

4. Section 14 of the Supreme Court Act, Chapter 37 provides:

"14. Civil appeals to the Supreme Court.

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court - 

(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 question of fact.

(2) An appeal does not lie from an order of the National Court made by consent of the parties.

(3) No appeal lies to the Supreme Court without leave of the Supreme Court -

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or 

(b) from an interlocutory judgments made or given by the National Court except –

(i) where the liberty of the subject or custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver; or

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decision; or

(c) from and order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgment."

Ground 1. The Appellant has not provided for in the Notice of Appeal as required by Section 14 (1) of the Supreme Court Act the basis of his Appeal either on a question of law or fact or on a question of mixed fact and law, or with leave of the Court on question of fact.

5. Order 7 Rule 8 of the Supreme Court Rules sets out the matters that need to be included in a notice of appeal. It provides: 

"8. The notice of appeal shall –

(a) state that an appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal; and

(b) state whether the whole or part only and what part of the judgment is appealed from; and

(c) state briefly but specifically the grounds relied upon in support of the appeal; and

(d) state what judgment the appellant seeks in lieu of that appealed from; and

(e) be in accordance with form 8; and

(f) be signed by the appellant or his lawyer; and

(g) be filed in the registry."

6. Clearly, there is no requirement that an appellant should state in the notice of appeal that the ground of the appeal raises a question of fact, law or mixed fact and law. However, some practitioners indicate whether the ground of appeal raise questions of fact, law or mixed fact and law in their notice of appeal. Here, the grounds of appeal are sufficiently clear and precise. Accordingly, we dismiss this ground.

Ground 2. The Appellant in the Notice of Appeal or in a separate application does not seek leave as required by Section 14 (1) (c) of the Supreme Court Act as the grounds of the appeal involves questions of facts. (sic).

7. What are questions of fact and law has been settled in this jurisdiction. Kearney DCJ said in Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185 (Kearney DCJ, Andrew J. and Kapi J.):

"What are questions of fact and law are difficult to determine. On this question Lord Denning said:

‘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.’ (Underlining mine.)

See British Launderers’ Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority (1949) 1 All E.R. 2111 at pp. 25 and 26. this same passage was referred to by the then Deputy Chief Justice, Prentice, in the case of Dillingham Corporation of New Guinea Pty. Ltd. v Constantino Alfredo Diaz [1975] PNGLR 262 at p.270.

Where primary facts are found (which cannot be challenged on appeal except by leave of the court) the question of law is what is the proper conclusion to be drawn from those facts. It has been shown in decided cases that where inferences or conclusions are drawn from these primary facts which cannot reasonably be drawn, then this is an error of law. See Edwards (Inspector of Taxes) v Bairstow and Another (1956) A.C. 1413; Instrumatic Ltd. v Suprabrase Ltd. (1969) 1 W.L.R 51914. I cannot see anything in the circumstances of this country that would render these principles inapplicable. I adopt them as part of the underlying law (Schedule 2:2 of the Constitution)."

8. The passage from Lord Denning’s judgment was also cited by the Supreme Court in Sidi Adevu v MVIT [1994] PNGLR 57; Oio Aba v MVIL (2005) SC799 (Injia DCJ, Sawong J. and Lay J.) and Unasi Martin and Serah Martin v MVIT (2007) SC896 (Batari J., Lay J. and Hartshorn J.)

9. We agree with Mr. Ame that ground 3 (a) raise a question of law, but disagree that the balance of the grounds of the appeal raise issues of fact. We are clearly of the view that grounds 3 (b), (c), (d), (e) and (f) raise questions of mixed facts and law and leave is not required. We dismiss this ground as well.

Ground 3. The Appellant in the Notice of Appeal or in a separate application does not seek leave of the Supreme Court as required to Section 14 (3) (b) of the Supreme Court Act to appeal against an interlocutory ruling of Mr. Justice Cannings.

10. The effect of the decision of the learned trial judge is final in nature in that the plaintiff is entitled to summary judgment and so the appeal lies without leave. This ground of objection is also dismissed as being misconceived.

11. Accordingly, we dismiss the objection to competency with costs. 

_________________________________

Kassman Lawyers: Lawyers for the Appellants
Ame Lawyers: Lawyers for the Respondent