SC1121

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO. 115 OF 2010

BETWEEN:

GIGMAE TAEMAE, BRIAN KAPAL, DEWE THOMAS & BRUCE KOPUN
First Appellant

AND:

MATHEW PORAMI TAMUTAI trading as TAMUTAI LAWYERS
Second Appellant

AND:

MOTOR VEHICLE INSURANCE LIMITED
Respondent

Waigani: Gabi, Sawong & Murray JJ
2011: 28th April & 01st July.

SUPREME COURT – Practice and procedure – Jurisdiction – Appeal against costs – National Court Order – Orders for Costs – Consequential to order for dismissal of proceedings – Supreme Court Act (Ch. 37) s14 (3)(c).

SUPREME COURT – Practice and procedure – Leave to appeal – Leave necessary for appeal 'against order for costs only' – Leave not necessary if order for costs is incidental to or consequential to main decision only. 

SUPREME COURT – practice and procedure – Objection to Competency appeal – alleged grounds of appeal do not specify with particularly the grounds relied upon to demonstrate that the judgement or order was against overwhelming evidence – grounds of appeal do not specify reasons why it is alleged to be wrong in law. 

Cases cited: 

Papua New Guinea Cases 

Dan Kakaraya v. Michael Somare (2004) SC762
Haiveta v. Wingti (No. 2) (1994) PNGLR 189
Henao v. Coyle (2000) SC655
Joshua Kalinoe v. Paul Paraka (2007) SC874
National Capital Limited v. Benjamin Terence O'Dweyer
NCD Water & Sewerage Ltd v. Sam Mas Kuman Taison (2002) SC696
Pacific Equities & Investment Ltd v. Toup Goledu (2009) SC962
Port Moresby Stock Exchange Ltd (2010) SC1053
The State v. Raymond Tuva (2008) SC904
Walter Kapty v. Raphael Nagual, National Housing Corporation and Raymond Davai (Unreported & Unnumbered Supreme Court judgment (SCA 123 of 2010) dated 8 December 2010).

Overseas cases 

Wheeler v. Summerfield [1966]2 QB 94

Counsel: 

Mr. P Kak, for the appellants 
Ms. E Suelip, for the respondent

1st July, 2011

1.	BY THE COURT: This is a ruling on an objection to competency of an appeal to the Supreme Court. 

2.	The objection has been filed by the respondent, Motor Vehicle Insurance Limited. There are two grounds of objections. These are: 

(1)	Grounds 3 (a) and 3(i) of the Notice of Appeal is contrary to Order 7 Rule 8 and 9 of the Supreme Court Rules in that the ground does not:- 

(a)	Specify with particularity the grounds relied upon to demonstrate that the judgment or order was against the overwhelming evidence; and 

(b)	Set out the specific reasons why it is alleged to be wrong in law. 

(2)	Grounds 3 (f), (g) & (h) of the Notice of Appeal are contrary to Section 14 (3)(c) of the Supreme Court Act, in that no leave to appeal has been obtained for the appeal against costs. 

3.	It is necessary to set out a brief background of the Appeal. The Appellant filed proceedings against the Respondent in Mt. Hagen, which primarily sought leave of the Court to give Notice of claim out of time against the respondent. On 6th August 2010 that Application was heard by the National Court. After hearing arguments from counsels for both parties, the learned trial judge refused to grant an extension of time to the appellants to give notice to the respondent. She further ordered that the costs of the application be paid by the Appellants former lawyer as they did not immediately attempt to obtain leave of the Court when the Insurance Commissioner did not respond to their written request for an extension of time to give their notice within reasonable time. The present Appeal arises from that ruling. 

4.	The issue is whether grounds 3 (a), (f),(g), (h) and (i) of the grounds of appeal are incompetent. 

5.	We deal with the first ground of objection. This relates to grounds 3(a) and (i) of the Notice of Appeal. We deal with these together as the objection is based on the same grounds. The objection here is that these grounds of the appeal do not comply with Order 7 Rules 8 and 9 of the Supreme Court Rules. Order 7 Rules 8 & 9 are in the following terms: 

Division 3. – Notice of appeal 

6. .......

7. .......

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 judgement is appeal from; and

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

(d)	State what judgement that appellant seeks in lieu of that appeal 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.

9. Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity that grounds relied on to demonstrate that is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.

6.	These rules have been judicially considered in a number of Supreme Court decision; Henao v. Coyle (2000) SC655, Haiveta v. Wingti (No. 2) [1994] PNGLR 189, Pacific Equities & Investments Ltd v. Toup Goledu (2009) SC 962, Joshua Kalinoe v. Paul Paraka (2007) SC 874; Dan Kakaraya v. Michael Somare (2004) SC 696, The State v. Raymond Tuva (2008) SC 904.

7.	The principles emerging from these authorities are that, three requirements must be satisfied. These are: 

(a)	The ground relied on in support of the appeal must be stated briefly and must be stated specifically (O.7 r8).

(b)	If it is alleged that a judgement is against the evidence or the weight of the evidence, it is not sufficient for a ground of appeal to be drafted in those terms. Instead the notice must specify with particularity the ground relied on to demonstrate that is against the evidence or the weight of the evidence. 
 
(c)	If it is alleged that the judgment is wrong in law, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the grounds relied on to demonstrate the specific reasons why the judgement is alleged to be wrong in law. 

8.	It is clear from authorities that if a notice of appeal fails to comply with those requirements, the Court has discretion to strike out the offending ground(s) of appeal. Haiveta v. Wingti (No.2) [1994\] PNGLR 189, Henao v. Coyle (2000) and NCD Water & Sewerage Ltd v. Taison (2002) SC 696. 

9.	In the present case, ground 3 (a) of the Notice of Appeal merely states that: 

"Her Honour erred in law in the exercise for her discretion in refusing the application seeking leave to give notice out of time against the overwhelming evidence showing sufficient cause, pursuant to s.54(6)(b) of the Motor Vehicles Third Party Insurance Act" 

10.	And ground 3 (i) of the Notice of Appeal is in the following terms; "any other grounds that may become available." 

11.	It is submitted for the respondent, that these grounds are incompetent for two reasons. First, it is submitted that the grounds do not specify with particularly the grounds relied upon to demonstrate that the judgement was against the overwhelming evidence. 

12.	Secondly, it is submitted that these grounds are only drafted in terms of the requirement, but they fail to specify with particularity the grounds relied on to demonstrate the specific reason why the judgement is alleged to be wrong in law. 

13.	Counsel for the Appellants submitted that grounds 3(a) of the Notice of Appeal as pleaded has complied with the requirements of O.7 r.8 & 9 and is competent. He has not made any submission in respect of ground 3 (i). 

14.	We accepted the submission of the respondent. A closer reading of ground 3(a) demonstrate that this ground is merely drafted in terms of the requirement but does not specify with particularity the grounds relied on to demonstrate that the judgment was against the overwhelming evidence. 

15.	Further, it is only drafted in terms of the requirement but does not specify with particularity the ground relied on to demonstrate the specific reason why the judgment is wrong in law. 

16.	Accordingly, and for those reasons we would uphold the objection and strike grounds 3(a) and (i) of the Notice of Appeal. 

17.	We now turn to consider the second ground of objection. This relates to grounds 3(f), (g), & (h) of the Notice of Appeal. All of these grounds relate to the issue of costs. 

18.	The objection here is that these grounds of appeal are contrary to s. 14 (3) (c) of the Supreme Court Act, in that no leave has been sought and obtained to appeal against the order for costs. Section 14(3)(c) of the Supreme Court Act is in the following terms:
.
"14. Civil appeals to the Supreme Court

(1)	..........

(2)	........

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

(a)............

(b)..........

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

19.	During submissions, both counsels didn't assist us with any relevant authorities in Papua New Guinea regarding this particular issue. However, we have found two cases which are on point. These are National Capital Limited v. Benjamin Terence O'Dweyer and Port Moresby Stock Exchange Ltd (2010)SC 1053 and Walter Kapty v. Raphael Nagual, National Housing Corporation and Raymond Davai (Unreported & Unnumbered Supreme Court judgment (SCA 123 of 2010) dated 8th December 2010.

20.	In National Capital Limited v. Benjamin Terence O'Dweyer & Ors (Supra), Injia, CJ discussed the effect and meaning of the expression appearing in s. 14(3)(c) of the Supreme Court Act. 

21.	That case was concerned with an application for stay of an order for costs made in favour of the respondent by the National Court. 

22.	In discussion s.14(3)(c) of the Act, the learned Chief Justice said at p4:

"Costs is generally a discretionary matter for the National Court. Leave of the Court is necessary to appeal from an order for costs per se or to use the exact words of s.14(3)(c), 'an order........ as to costs only'. It follows that leave to appeal is not necessary in an appeal against a judgment in which judgment for costs is incidental or consequential to the main judgment. The appellant may appeal against the order for costs in the same appeal against the main judgment without leave, and the Supreme Court can assume jurisdiction to deal with the matter. It appears this interpretation of s. 14(3)(c) is not supported by any previous decision of this Court."

His Honour continued and said at p5.

" the long standing practice in the United Kingdom that a notice of appeal filed as of right against the main decision may also include an appeal against incidental or consequential orders as to costs; and that an appeal against an order for costs only is brought by leave of the Court". 

23.	He then referred to a decision of the English Court of Appeal in Wheler v. Summerfield [1966] 2 QB 94, which was identical to s. 14(3)(c). 

In that case Lord Denning who delivered the main judgment of the Court interpreted s. 31 (1) as follows; 

"It was said that, seeing that in the result the plaintiff has failed on substantive points, this appeal comes down to an appeal as to costs only and therefore, it is prohibited without the leave of the trial judge. 

I do not agree with the interpretation. As I have always understood this section of the judicature Act, it means this: If a person makes no complaint against the judgement below, except about order for costs then he must obtain leave of the trial judge before he can come to this court. But if he makes a complaint, not only about costs, but also about other matters, then he can appeal both on those matters and also costs; and this court has full jurisdiction to deal with them. Even if he fails on the other matters, this court has jurisdiction to deal with costs. His complaint on the other matters must, of course, be genuine. That is what happened in this case. The plaintiff has brought genuine complaints of other matters. He has also complained about costs. Although he has lost on the other jurisdiction of the Court to consider it" 
(Emphasis added).

24.	A similar interpretation was given in Walter Kapty v. Raphael Nagual (supra) by Hartshorn, J.

25.	We have reviewed these decisions, which are decisions of single judges of the Supreme Court, and agreed with the meaning of the expression "an order ....as to costs only..." as interpreted in the above cases.

26.	In the present case, the order for costs was made incidental to or consequential of the main judgment and the appeal is against the whole decision. That being the case, leave is not required. If, however, the appeal had been against the order for costs only, which is an incidental or consequential order, leave would have been necessary. 

27.	For those reason we would reject the objections to ground 3(f), (g) and (h) of the notice of appeal. 

28.	We uphold the objection in part. 

29.	We make the following orders.

1.	Ground 3(a) and (i) of the Notice of Appeal are dismissed as being incompetent.

2.	Grounds 3(f), (g) and (h) of the Notice of Appeal are to remain on foot. 

Paulus Dowa Lawyers: Lawyer for the Appellant 
Mirupasi Lawyers: Lawyer for the Respondent