SC1193

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 66 OF 2006

BETWEEN:

TIMOTHY NEVILLE
First Appellant

AND:

PETER NEVILLE
Second Appellant

AND:

THE INDEPENDENT PUBLIC BUSINESS CORPORATION
First Respondent

AND:

BANK OF SOUTH PACIFIC LIMITED
Second Respondent

AND:

DAVID WARDLEY AS RECEIVER AND MANAGER OF COECON LIMITED
Third Respondent

Waigani: Salika, DCJ; Batari, J
2006: 02 November
2012: 24 August

SUPREME COURT – Appeal – whether leave is required or appeal lies as of right under Supreme Court Act or any enabling legislation – circumstances requiring application for leave to appeal and appeal under s14 Supreme Court Act discussed - SS 4, 14 Supreme Court Act
SUPREME COURT – Appeal – application on respondents' notice of objection to competency of appellants' application for leave to appeal – objection to competency application – grounds of - judgment the subject of appeal does not require leave to appeal - all grounds of appeal deal with alternatively questions of law or mixed questions of law and fact –appellants' failure to give Notice of Appeal within 40 days after date of Judgment in question – grounds of incompetency upheld - Appeal is incompetent

Cases cited:
North Solomons Provincial Government v Pacific Architecture (1992) PNGLR 145,
Ruma Construction Pty Ltd v Christopher Hill (1999) SC 560,
National Capital District Commission v Namo Trading (2001) SC 663 
PNGBC v Timothy and Peter Neville and Privatisation Commission (2003)
Paul Bari v John Raim (2004) SC768
PNGBC Limited v Timothy and Peter Neville & Privatisation Commission, SCA 1 of 2002, Unreported and Unnumbered unanimous decision of the Supreme Court
Boyepe Pere v Emmanuel Niningi (2003) SC711
Oio Aba v Motor Vehicle Insurance Limited (2005) SC 779
Boyepe Pere v Emmanual Ningi (2003) SC711
The Independent State of PNG v John Tekwie (2006) SC 843
Niuslik Holding v Yapao Lawyers (2003) SC703

Counsel
Mr C Raurela, for the Appellants
Ms T Twivey, for the Respondents

24th August, 2012

1. BY THE COURT: Introduction: This matter was originally heard with Sevua, J who has since retired and pursuant to s.3 of the Supreme Court Act the parties agreed for the two remaining judges to deal with the matter.

2. The matter before the Court to determine is the Respondents Notice of objection as to the Competency of the Appellant's Application for leave to appeal.

3. The grounds on the objection to competency application are:

1.	The judgment that is the subject of the Application for Leave to Appeal does not require leave to appeal as:

(a)	The part of the decision to set aside the orders made on 4 September 2004 requires leave to appeal as.

(i)	It was a judgment that dealt with the granting or refusing an injunction and leave is not required pursuant to s.14(3)(b)(ii) of the Supreme Court Act, and

(ii)	Alternatively it was a final order as there is nothing left in O/s548 of 2001 to determine.

(b)	The part of the decision to order the appellants to repay the sum of K275,289.83 was:-

(i)	In the nature of a final order and leave is not required pursuant to s.14(3)(b)(iii) of the Supreme Court Act.

(ii)	Alternatively, it was a final order as there is nothing left in OS 548 of 2001 to determine.

2.	All grounds of appeal deal with alternatively questions of law or mixed questions of law and fact, and do not require leave pursuant to s.14(1) of the Supreme Court Act.

3.	Contrary to s.17 of the Supreme Court Act, the appellants failed to give Notice of Appeal within 40 days after the date of the Judgment in question and the Appeal is incompetent.

Background

4.	On 18 October, 2001 due to chronic default, PNGBC now BSP appointed David Wardley Receiver and Manager of Coecon Limited, a company whose sole shareholders are Timothy and Peter Neville.

5.	On 4 September 2001, a consent order was made in OS 548 of 2001, a matter between the Nevilles and the Privatisation Commission which restrained the Privatisation Commission (now IPBC) its servants or agents including PNGBC and Receiver, David Wardley from selling, entering into possession, charging or encumbering in any way whatsoever any of the assets or property of Coecon Limited. (OS 548 injunction). 

6.	On 26 November, 2001 PNGBC was denied leave to be joined as a party to the action in OS 548 of 2001 as the Court held Privatisation Commission had the management, administration and control of the PNGBC. PNGBC was ordered to pay the National Court costs of the Nevilles. 

7.	An application for leave to appeal was heard on 31 July 2002, but the Court dismissed the appeal in October 2003 not on the merits but on the basis that a Notice of Appeal should have been filed as the decision sought to be appealed from was final. 

8.	PNGBC was again ordered to pay the costs to the Nevilles. At no stage in either proceedings were costs ever certified for foreign counsel.

9.	Due to dissipation of the assets of Coecon (Receiver and Manager Appointed) a motion to uplift the injunction in OS 548 of 2001 was filed and was originally listed to be heard in August 2004. 
 
10.	An application however was filed by the Nevilles on 17 August 2004 to stay the motion pending payment by BSP of the previous National and Supreme Court costs. The National Court costs had not been taxed while the Supreme Court costs had been taxed at K5,622.10. Although the application was made to the court on 3 November 2004 to stay BSP's motion pending payment of the National and Supreme Court costs, the court ordered that the motion be stayed pending the payment of the Supreme Court costs only as the National Court costs had not been taxed. 

11.	At the handing down of the decision on 4 November 2004 BSP immediately paid the K5,622.10 Supreme Court costs.

12.	Subsequent to the handing down of the decision BSP found out that the Nevilles had approached the IPBC for full indemnity payment of all costs, both National and Supreme Court and were paid the sum of K286,533.83 on 7 October 2004 in a purported full settlement of costs, a month before the stay application was made to the Court.

13.	Timothy Neville had initially sent a letter to the Privatisation Commission (as it then was) for payment of the full indemnity costs in November 2002,

14.	Timothy Neville then attended at IPBC on or around the second week of October 2003 and handed to IPBC a copy of the Supreme Court judgment as well as a summary of costs allegedly due to them at that time. The costs claimed incorporated both the Supreme Court costs in SCA 1 of 2002 and National Court costs in OS 548 of 2001 on a full untaxed indemnity basis.

15.	Further updated summaries including interest were provided to IPBC by Timothy Neville as at 13 February 2004 and 3 September 2004.

16.	On the face of these documents it is clear that they are for the Supreme Court costs as the dates are clearly shown.

17.	When Elemi Kikira Lawyers had their Supreme Court costs taxed in July 2004, they filed a Bill of Costs.

18.	On a comparison of the Bill of Costs and Elemi Kikira Lawyers invoices, it is clear that the invoices are for those same attendances and work claimed on the Bill of Costs.

19.	The lawyers for IPBC at the time, Parua Lawyers advised that the judgment in SCA 1 of 2002 held the costs were awarded against the PNGBC. They stated that they had perused the invoices sent to them by Timothy and Peter Neville's lawyers, and said that the invoices that related to SCA 1 of 2002 were in order for payment. 

20.	Meli Muga at Pacific Legal Group was requested to provide a further opinion. He also advised that the claimed costs by Timothy Neville were in order. 

21.	Mr Neville at the material time was being represented by both Elemi and Kikira and Maladinas Lawyers (now Young and Williams) at that time.

22.	On 7 September 2004, IPBC received from Parua Lawyers a letter enclosing a copy of a letter from Elemi Lawyers. That letter said that Elemi Lawyers were instructed by their clients the Nevilles that the costs were to be settled by the Privatisation Commission and that they would commence enforcement proceedings against IPBC and contempt proceedings against IPBC for failing to pay the costs as ordered and demanded that they be paid by 8 September 2004. 

23.	This was after the stay motion was filed in this matter by Elemi Lawyers seeking that BSP pay the costs, but before the motion was moved.

24.	Neither PNGBC nor the BSP ever advised or agreed that IPBC was to cover any particular costs or any costs or indeed any particular sum or costs.

25.	On 23 September 2004, IPBC received a letter from Maladinas Lawyers stating that they were lawyers for Governor Tim Neville and that Tim Neville had advised them that IPBC owed him a total sum of K286,533.83. Maladinas Lawyers also threatened to commence legal proceedings without further notice unless they received the full payment within seven days.

26.	Although there was no agreement documentation between IPBC, BSP, and PNGBC, IPBC had been advised by Parua Lawyers that the debt liability had to be settled by IPBC, IPBC wrote to Maladinas Lawyers and requested clarification.

27.	On 30 September 2004, IPBC received a letter from Timothy and Peter Neville stating that the Court costs awarded to the Nevilles amounted to K286,633.83 under the agreement of settlement between IPBC and the Plaintiffs.

28.	IPBC was unaware of any agreement for settlement between it and the Nevilles.

29.	On 6 October 2004, a cheque was made out to Parua Lawyers in the sum of K286,533.83 as payment for the National and Supreme Court costs by IPBC. This cheque was collected on the same day by a taxi driver sent by Margaret Parua.

30.	Instead of sending the cheque to Elemi and Kikira Lawyers, Parua Lawyers unusually paid the money to Timothy and Peter Neville on 7 October 2004.

31.	At the time, IPBC was totally unaware that the Nevilles and Elemi Lawyers were also pursuing the Bank of South Pacific Limited for the taxed costs in the National Court and Supreme Court matter.

32.	Despite being paid the full indemnity National Court and Supreme Court legal costs in full, in early October 2004, the Nevilles proceeded with their application on 3 November 2004 and obtained a stay of the Bank of South Pacific Limited's application pending payment by the Bank of South Pacific of the National and Supreme Court costs.

33.	The Motion by IPBC and BSP to uplift the injunctions as a result of dissipation of assets by the Nevilles was moved on 26 October 2005 and Judge Sevua lifted the injunction and issued restraining orders against the Nevilles from dealing with the property of Coecon. 

34.	Orders were then sought by the Respondents to set aside the Stay, vary the costs orders of Her Honour Davani, J and that the Nevilles re-pay the K286,533.83

35.	On 25 May 2006, Her Honour set aside the stay, ordered the Nevilles to pay costs on a full indemnity basis and ordered that the Nevilles repay K275,289.93 to IPBC. 

36.	Her Honour applied the Mainland Holdings v Stobbs (2003) N2522 case and Mark Kepau v William Gaufe (304) N2693 and held that she had jurisdiction to set aside or vary interlocutory orders in certain circumstances. 

37.	Her Honour further held that there were previously undisclosed facts discovered since the orders were made, that the grounds were not argued before and that the court was misled by the Nevilles.

38.	Her Honour relied upon s155 (4) of the Constitution to order the repayment as well as the principles of equity under the Constitution s163(2) and Sch 2.2.

39.	The appellants have applied for leave to appeal her Honour's decision. 

40.	The Respondents object to the competency of that application and appeal.

The Evidence

41.	The Respondents rely on the affidavit of John Maddison filed on 13 July 2006 and the Notice of Objection as to Competency filed on 12 July 2006.

The Law

42.	Section 4(2) of the Supreme Court Act is the first provision for the right to appeal from the National Court. It is in the following terms:

(2)	An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal—

(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 a question of fact.

43.	Section 14 of the Supreme Court Act reinforces s.4(2) of the same Act. It 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 a 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 judgement made or given by the National Court except—

(i)	where the liberty of the subject or the 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 decisions; or

(c)	from an 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 judgement.

44.	 Section 17 of the Supreme Court Act provides for the time within which to appeal and is in the following terms:

17.	Time for appealing under Division 2.

Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgement in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.

45.	The Supreme Court Rules prescribed for purposes of s.14 and 17 of the Act are found under o.7 of the Supreme Court Rules.

46.	They provide:

PART 3—JURISDICTION UNDER SUPREME COURT ACT
ORDER 7—APPEALS.

Division 1.—Application for leave to appeal

1.	Where an appeal from a judgment lies to the court only with leave, an application shall be determined after an oral hearing.

2.	An application for leave to appeal shall be made by filing a notice in writing and shall—

(a)	be entitled "In the Supreme Court of Justice" and shall also be entitled as between the party as appellant and the party as respondent;

(b)	show that an appeal lies with leave;

(c)	state the nature of the case, the questions involved and the reason why leave should be given;

(d)	show an address for service of the party giving the notice; and

(e)	be in accordance with form 7.

3.	Notwithstanding anything contained in sub-rule (1), application may be made before the court that application for leave to appeal be heard concurrently with or immediately before the hearing of the appeal, and for such consequential orders as may be necessary.

Division 2.—Filing and serving notice of application for leave to appeal

4.	The provisions of Rule 10, with the necessary modifications shall apply to an application for leave to appeal and notice of such application.

5.	When leave to appeal has been granted, the Supreme Court may treat the notice of application for leave as notice of appeal, but otherwise, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such time as the Court or Judge may allow.

Division 3.—Notice of appeal

6.	An appeal shall be instituted by a notice of appeal.

7.	The notice of appeal and all subsequent proceedings shall be entitled "In the Supreme Court of Justice" and shall be entitled as between the party as appellant and the party as respondent.

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;

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

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

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

(e)	be in accordance with form 8;

(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 the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.

Division 4.—FIling and serving notice of appeal

10.	Upon filing the notice of appeal, the appellant for the purposes of Sections 17 and 29 of the Act shall be deemed to have given notice of appeal in the prescribed manner.

11.	Where the appeal is from a Judge of the National Court sitting on an appeal, a copy of the notice of appeal shall be left with the court or tribunal from the judgment of which the appeal was brought to the National Court.

12.	A copy of the notice of appeal shall be served without delay by or on behalf of the appellant on each party—

(a)	affected by the relief sought by the notice of appeal; or

(b)	interested in maintaining so much of the judgment as is appealed from.

13.	The Court or a Judge may direct—

(a)	the notice of appeal be served on any other person;

(b)	service on a particular party or person be dispensed with; or

(c)	service be effected in a particular manner.

Division 5.—Objection to competency of appeal

14.	A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after 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.

15.	Any party may file affidavits.

16.	An objection of which notice has been given shall be determined by the court at or before the hearing of the appeal or of the application for leave to appeal as the court thinks proper.

17.	Upon the hearing of the application the burden of establishing the competency of the appeal is on the applicant.

18.	If notice of objection is not given and the appeal or the notice of application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal unless the court on special grounds orders otherwise.

47.	It is clear from the scheme under the Supreme Court Act that there are two distinct ways of commencing an appeal - first, without leave and secondly with leave. Section 14(1) of the Supreme Court Act is clear on this.

48.	Section 14 (3) provides for other situations where leave is required other than under s.14(1)(c).

49.	In this case the court is concerned with the question of whether leave to appeal was required.

50.	In that regard the court must first determine whether the interlocutory judgement appealed from is in the nature of a final decision.

WAS THE INTERLOCUTORY JUDGEMENT IN THE NATURE OF A FINAL DECISION

51.	The applicants (the appellants) submitted that the orders of the National Court made on 25 May 2006 was interlocutory in nature which did not dispose of all their rights in the consolidated proceedings in the National Court and as such leave was required.

52.	The principles relating to whether an interlocutory judgement is by its nature a final judgement has been a subject of much judicial consideration in PNG.

53.	For instance in the case of North Solomons Provincial Government v Pacific Architecture (1992) PNGLR 145, the Supreme Court said at 147:

"whether a judgment or order is final or interlocutory is not always clearly defined, and decisions on the subject are sometimes difficult to reconcile. Generally, two tests have been propounded as to whether a judgment is final or interlocutory. The first test is that the court will have regard to the nature of the application not to the nature of the order made. Thus, a judgment or order must be interlocutory or character unless it is made on an application which must operate in such a way that whatever judgment or order is given or made on it, it must finally dispose of the dispute or the controversy between parties. The other test is that the court will look at the order made by the court below and not at the nature of the application so that if the order finally disposes of the rights of the parties, it is final; but if it does not, then it is interlocutory."

54.	In Ruma Construction Pty Ltd v Christopher Hill (1999) SC 560, the Supreme Court said:

"The issue before us is; whether the summary judgement entered is an interlocutory judgment. 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 the court eventually made. Second the court must look at whether the judgment or order made finally disposes of the right of the disputing parties (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 (Unreported judgment of the Supreme Court dated 6th July 1997, SC527; LA Jarden Collector Agency Pty Ltd v Richard Hill & Associates and Masket Iangalio and Public Curator of PNG (Unreported judgment of the Supreme Court dated 31st August 1998, Sc 597)….

In the present case, the judgment finally disposes of the issues before the court and there are no further issues left to be determined. Whether or not the law makes provision for reviewing that decision and whether or not that decision may be discharged or varied does not change the nature of the orders that they are final. We find that the summary judgment in the present case is not an interlocutory judgment and therefore leave is not necessary."

55.	The Supreme Court in later cases of the National Capital District Commission v Namo Trading (2001) SC 663 – Unreported Supreme Court decision, PNGBC v Timothy and Peter Neville and Privatisation Commission (2003) Unreported and Unnumbered unanimous decision of the Supreme Court, affirmed the Supreme Court decision in the Ruma case.

56.	In this case the orders of the National Court were as follows:

1.	The orders of 4th November 2004 is set aside.

2.	The plaintiffs shall repay IPBC the sum of K275,289.83;

3.	The plaintiffs shall pay the defendants' costs of the application made on 3 November 2004 and 24 March 2006 to be calculated on a full indemnity basis;

4.	The plaintiffs shall have taxed within 14 days from today, its National Court costs incurred up to and before the hearing on 3 November 2004;

5.	Thereafter, all parties shall have the matter referred to the Listings Court to be pretrialed and for the allocation of a trial date for the hearing of the substantive matter; and

6.	Time is abridged to time of settlement to take place forthwith.

57.	Having read the interlocutory judgement and the case precedents, it is our opinion that the interlocutory judgement dated 25 May 2006 is final in its nature, as there is nothing left to be determined in the proceedings before the National Court.

58.	The appellants application for leave to appeal therefore pursuant to s.14(3)(b)(iii) of the Supreme Court Act goes against it.

59.	In other words because the nature of the interlocutory judgement is final, leave to appeal is not required and the appellant must appeal as of right without leave.

60.	Having now come to that decision that the interlocutory judgement was final and that no leave is required, the effect of this is that the proceedings herein are incompetent as the appellants have not filed a Notice of Appeal.

61.	In this case the appellants have not filed a Notice of Appeal, thus Section 17 of the Supreme Court Act comes into play. 

62.	As it is, the appellants are now out of time to file their Notice of Appeal.

WHAT SHOULD BE THE APPROACH FROM HERE 

63.	In Paul Bari v John Raim (2004) SC768 (Salika, Mogish & Cannings, JJ) the Court dismissed an Application for leave to Appeal on an Objection to Competency. In that case the National Court had refused an application to set aside a default judgment and file a defence out of time. The Supreme Court held that the decision was final as between the parties. As leave was not required the Application for Leave to Appeal was incompetent. A Notice of Appeal was not filed; the appellant's were out of time to file one. The appeal was struck out.

64.	In PNGBC Limited v Timothy and Peter Neville & Privatisation Commission, SCA 1 of 2002, an unreported and unnumbered unanimous decision of the Supreme Court of Hinchliffe, Sevua and Kirriwom JJ, the court dismissed an application for leave to appeal, pursuant to an Objection as to Competency, and the ground was that the Application for Leave was incompetent in that the decision of the trial judge appealed from was not interlocutory but final in nature so that the appeal against that decision was of right and leave was not required. The court canvassed at length the previous decisions on the construction of s.14(3)(b)(iii) as to the interpretation of "an interlocutory judgment that by its nature is a final decision". The court held that the interlocutory decision of the National Court was final in nature and consequently as a Notice of Appeal had not been filed within 40 days the appeal was incompetent.

65.	In the case of Boyepe Pere v Emmanuel Niningi (2003) SC711, the bench of Los, Kandakasi and Mogish JJ held that because an appeal is incompetent where leave is required but not sought it does not follow that an application for leave to appeal is incompetent where leave is not required but is sought. The court said:

"What this means in short is that, the requirement for leave to appeal under s.14 of the Supreme Court Act is to ensure only meritorious cases go to the Supreme Court on appeal particularly in cases where leave is required. Does the same apply in a case where a party is granted a right of appeal as of right, but leave is sought anyway? We are of the view that, the same does not apply. Where a person is granted a right of appeal by the Supreme Court Act or any other legislation or where there is no contest on an application for leave to appeal to the Supreme court, the question of whether or not leave should be granted is not an issue….. It should reasonably follow from this that, where a person has a right of appeal but seeks leave, he should be allowed to proceed with his appeal. We consider this important because in some cases there may be instances in which it might not be clear as to whether an appeal lies as of right or with leave. In such a case, it would be advisable to seek leave in order to avoid the risk of an appeal being found incompetent for leave not being first sought and obtained: Henzy Yakam & Anor v Meriam. In other cases, an appellant may inadvertently seek leave when it is strictly not required.

In either of these cases the application for leave must be considered on merits. If the court is satisfied that there is merit in the proposed grounds of appeal or that the appellant should have appealed as of right, the appellant should be granted leave or allowed to proceed to lodge his appeal. After all, the application does no harm or cause any prejudice to the other side. The only disadvantage any such application could cause to the respondent is costs. That can easily be compensated for by an order for costs. On the other hand, if an appellant is shut out purely on account of seeking leave instead of appealing right away, he might be left to suffer under the judgment he seeks to appeal against. The judgment the appellant wants to appeal against might be wrong in law or in fact or both. Unless that is corrected on appeal, it may continue to represent an error of judgment at the expense or loss of the party seeking to appeal." (our underlining)

66.	In Oio Aba v Motor Vehicle Insurance Limited (2005) SC 779 (Injia DCJ, Sawong & Lay JJ) the appellant filed an application for leave to appeal, where the proceedings in the National Court had been struck out for failure to show a good cause of action because the plaintiff had not given notice of intention to claim pursuant to s.54(6) of the Motor Vehicle (Third Party) Insurance Act. The Court held that the Application for Leave to Appeal was unnecessary. However, following Boyepe Pere v Emmanual Ningi (2003) SC711 it granted leave. 

67.	In The Independent State of PNG v John Tekwie (2006) SC 843 a case not on s.14(3)(b)(iii) but on s.14(4) the bench of Salika, Lay and Gabi JJ found that a conditional leave to defend is refusal of unconditional leave to defend within the meaning of Supreme Court Act s.14(4) and leave is not required from such an order and that where leave is mistakenly sought when not required it should be granted if there is an arguable case. It was arguable that pleading was not the only way of bringing to Court lack of a condition precedent to a right to issue a writ, such as notice under s.5 of the Claims by and Against the State Act. Leave should be granted (although not needed), the application for leave was treated as the notice of appeal as there had been no notice of appeal filed.

68.	In Niuslik Holding v Yapao Lawyers (2003) SC703, a single Supreme Court judge held that there was no requirement for the appellant to seek leave, and refused to grant leave. The Judge however ordered that the Appellant file a Notice of Appeal within 21 days – which in our view is entirely contrary to the condition precedent set out in the Supreme Court Rules O.7 R.5 which says:

"When leave to appeal has been granted, the Supreme Court may treat the notice of application for leave as notice of appeal, but otherwise, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such time as the court or Judge may allow".

What then should be the proper approach to the issue, when an applicant applies for leave to appeal but leave is not required and the applicant is now out of time to file a notice of appeal?

69.	We are of the opinion that the Courts primary function is to interpret and apply the law as it is, without stepping into the legislatures function.

70.	In that regard we think the proper approach should be as decided by the Court in Paul Bari v John Raim (2004) SC 768 and PNGBC v Timothy and Peter Neville and the Privatisation Commission SCA 1 of 2002 – Unnumbered and Unreported decision, alluded to earlier in this decision.

71.	The position in law in such cases should be – leave was not required – application for leave to appeal was incompetent – Notice of Appeal was not filed – the appellants were now out of time to file a Notice of Appeal – the appeal is incompetent or there is no appeal on foot.

72.	We are of the opinion that to do otherwise will lead to, firstly inconsistencies and confusion as can be seen from the line of cases we have outlined above and secondly the court getting itself into the legislatures arena. 

73.	If one files a Notice of Appeal and it is found to be that leave ought to have been sought first, the situation is clear – the appeal is incompetent. If an appellant files an application for leave to appeal but leave is not required and time has run out – Boyepe Pere is saying – somehow the appellant must be able to continue his appeal. The question that arises is – how is he able to continue his appeal and by what means. What must he do in order to keep his appeal alive.

74.	We have an issue with the following Statement of the Supreme Court in Boyepe Pere quoted earlier:

Where a person is granted a right of appeal by the Supreme Court Act or any other legislation or where there is no contest on an application for leave to appeal to the Supreme Court, the question of whether or not leave should be granted is not an issue….. It should reasonably follow from this that, where a person has a right of appeal but seeks leave, he should be allowed to proceed with his appeal. 

75.	We agree with this statement but qualify by saying that, as long as the person complies with s.17 of the Supreme Court Act and that is that he is still within the 40 days allowed to file his notice of appeal or that the 40 days has been extended by the court for him to file this proposed notice of appeal.

76.	Where leave is not required the only competent document to commence an appeal is the Notice of Appeal.

77.	The views expressed in Boyepe Pere and the other line of Supreme Court decisions that follow or support it may in our respectful opinion be contrary to the scheme under the Supreme Court Act namely ss.4, 14 and 17 and O.7 R.5 of the Supreme Court Rules in our respectful view.

78.	It is our respectful opinion that the law be applied as it is to show that the application for leave to appeal is not the appropriate appeal document, in such a situation.

79.	Accordingly the circumstances of this case are such that no leave to appeal was required. The appellants had a right to appeal without first obtaining leave. The application for leave to appeal document is therefore incompetent under s.14(3)(b)(iii) of Supreme Court Act. An incompetent application for leave to appeal document should not and cannot be turned into a Notice of Appeal because the application for leave to appeal document is incompetent in the first place. An incompetent document should not be allowed to become competent for purposes of instituting an appeal. The application for leave to appeal document can only be converted into a Notice of Appeal where leave has been granted under O.7 R.5 of the Supreme Court Rules and not otherwise. The only proper mode to appeal is to file a Notice of Appeal.

80.	The appellants here have not filed a Notice of Appeal and their application for leave to appeal is incompetent. They are now out of time pursuant to s.17 of the Supreme Court Act. This Court cannot convert their application for leave to appeal into a Notice of Appeal.

81.	Ultimately, therefore the appeal is incompetent and accordingly dismissed.

82.	Costs are awarded to the Respondents.
____________________________________________

Elemi Lawyers: Lawyers for the Appellants
Gadens Lawyers: Lawyers for the Respondents