SC1221

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 133 OF 2011

BETWEEN:

COCA COLA AMATIL (PNG) LIMITED
First Appellant

AND:

JOSHUA YANDA
Second Appellant

AND:

MARSHALL KENNEDY
Respondent

Waigani: Lenalia, J; Kawi, J; Logan, J
2012: 28, 31 August

CIVIL PRACTICE AND PROCEDURE – Supreme Court – Notice of objection to the competency of the appeal – Supreme Court Rules Order 7, Rule 14 – at least one ground of appeal invoking Court's jurisdiction – notice of objection to the competency of the appeal overruled. 

Cases cited:

Papua New Guinea Cases

PNG Forest Authority v Securamax Securities Pty Ltd (2003) SC 717; [2003] PGSC 17
Simon Kou v Simon Kaupa (2010) SC 1021
Waghi Savings and Loan Society v Bank South Pacific Ltd (1980) SC 185; [1980] PGSC 4

Overseas Cases

Belton v General Motors Holden's Ltd (No 1) (1984) 58 ALJR 352
Zegarac v Dellios [2007] FCAFC 58

Counsel:

Mr. K J Peri, for the Appellants
Mr. P M Dowa, for the Respondent	

Reasons for Judgment 

31 August, 2012 

1.	BY THE COURT: On 26 September 2011, after a trial in the National Court (Gauli AJ) heard over four days earlier that month and in the preceding month, Mr Marshall Kennedy secured a judgment in his favour against Coco Cola Amatil (PNG) Ltd (CCA) and Mr Joshua Yanda (collectively, the appellants) in the sum of K86,510.00. The judgment was in respect of a claim for damages and interest arising from what the trial judge found to be the negligent driving of CCA's vehicle by its employee, Mr Yanda which collided with Mr Kennedy's passenger bus on the Okuk Highway on 11 November 2002. 

2.	CCA and Mr Yanda have appealed, or, so Mr Kennedy contends, purported to appeal, against the National Court's judgment. The appeal was instituted by the filing of a notice of appeal in the Supreme Court on 1 November 2011. On 15 November 2011, Mr Kennedy filed a notice of objection to the competency of the appeal, pursuant to O 7, r 14 of the Supreme Court Rules (RSC).

3.	The question for present determination is whether, on one or more of the grounds of objection which were pressed, the appeal is not competent?

4.	Of the grounds specified in the notice of objection to competency, those specified in paragraphs 1, 2 and 5 were not pressed on the hearing of the appeal. It is desirable nonetheless to make some observations related to paragraph 5 for the insight thereby offered in relation to the practice and procedure concerning objections to competency.

5.	Paragraph 5 in the objection had alleged that ground 3(a) in the notice of appeal did not raise a question of law but rather one of fact and hence that the appeal was incompetent because no grant of leave had been obtained, contrary to the requirements of s 14(1)(c) of the Supreme Court Act 1975. Ground 3(a) of the notice of appeal alleges that evidence of conviction under s 45 of the Evidence Act 1975 was necessary in order to establish liability and that no certificate of conviction was tendered. It is not necessary for the purpose of determining the objection to competency to determine the merits of this ground of appeal. All that need be said for the moment is that the ground does raise a question of law. Mr Kennedy was correct therefore, on reflection, not to press the ground raised in paragraph 5 of the notice of objection to competency. What he did not appreciate though was the ramification of conceding that the notice of appeal did contain at least one ground which did indeed raise a question of law.

6.	An objection under O 7, r 14 RSC is, materially and as that rule expressly provides, "to the competency of an appeal", not to the notice of appeal. An appeal will be competent if, having regard to the notice by which the appellant has sought to initiate it, the jurisdiction of the Supreme Court has been invoked. A concession that the notice contained at least one ground by which the court's jurisdiction was validly invoked is necessarily a concession that the appeal is competent. That remains so even though it may be that other grounds specified in the notice lack merit, including a lack of merit because they seek to raise an issue which the court does not have jurisdiction to entertain. That absence of merit may well result in the dismissal of those grounds but that dismissal will not occur because the appeal is incompetent but rather because particular grounds lack merit. The importance of this distinction and of recognising that an objection must go to the competency of the appeal, not a ground of appeal per se cannot be over-emphasised. 

7.	The importance of the distinction warrants the degree of repetition inherent in the following further observation. If a notice of appeal were to contain but one ground and that ground did not validly invoke the court's jurisdiction the appeal would be incompetent. Whereas here, there are multiple grounds of appeal specified in the notice and one of those grounds is correctly conceded to be valid the court's appellate jurisdiction has validly been invoked, even though there may be other grounds which, had they stood alone, would not have meant that a notice containing them had validly invoked the court's appellate jurisdiction.

8.	There is ample authority for these propositions both in earlier decisions of this court and in Australia in respect of cognate rules concerning objections to competency. In Waghi Savings and Loan Society v Bank South Pacific Ltd (1980) SC 185; [1980] PGSC 4 in the context of considering the nature of an objection to competency, Kearney DCJ adopted with approval a passage from Halsbury's Laws of Australia, Volume 20, Part VIII para 325-12050 in which the learned authors refer to the ability of a court to strike out a notice of appeal where plainly there is no right of appeal. Later, in PNG Forest Authority v Securamax Securities Pty Ltd (2003) SC 717; [2003] PGSC 17 Sakora J stated that, "An objection to competency must raise serious threshold issues concerning legality or viability, or otherwise, of a particular process."

9.	The same point was made in respect of a cognate rule in the Federal Court Rules by Jessup J in Zegarac v Dellios [2007] FCAFC 58 at [11] when his Honour observed that an appeal was incompetent within the meaning of that rule if it is brought in circumstances which "the law simply does not allow to happen".

10.	Another Australian case, Belton v General Motors Holden's Ltd (No 1) (1984) 58 ALJR 352 is precisely on point. The reasons for judgment of the Full Court of the High Court (Gibbs CJ, Mason and Dawson JJ) are brief but, with respect, nicely illustrate the above propositions:

The question for decision is whether this appeal is competent under s 35(6) of the Judiciary Act 1903 (Cth) which gives a right of appeal from a final judgment of the Full Court of a Supreme Court, where the ground of appeal, or one of the grounds of appeal, involves the interpretation of the Constitution. 

A question that fell for decision in the Supreme Court was whether the provisions of s 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (SA) (the Act), as amended and then in force, were inconsistent with the provisions of an award made by the Australian Conciliation and Arbitration Commission. One of the grounds of appeal is that the Supreme Court erred in holding that there was such inconsistency. 

If the argument of the applicant as to the interpretation of the award is accepted, no question of inconsistency would appear to arise. But if the argument of the respondent, which was accepted by the majority of the Full Court, prevails, s 109 of the Constitution would have to be applied, with the result that s 15(1)(e) of the Act would be pro tanto invalid. 

At least one ground of appeal clearly involves the application of s 109 of the Constitution. That section cannot be applied unless its meaning is properly understood. It follows that at least one ground of appeal involves the interpretation of s 109. It follows that the appeal is competent.
[Emphasis added]

11.	Having concluded that at least one ground of appeal invoked the High Court's jurisdiction, the court concluded that the appeal was competent and overruled the objection to competency with costs. There is no material distinction to be drawn between Belton v General Motors Holden's Ltd (No 1) and this case.

12.	As will be seen though, there are reasons why, having regard to some other earlier authority, Mr Kennedy came to take the course which he did in objecting to the competency of the appeal.

13.	Of the remaining grounds in the objection to competency, those specified in paragraphs 3 and 4 may conveniently be considered together. Paragraph 3 alleges that the appeal is incompetent because it does not properly plead the relief sought, as required by O 7, r 8(d) RSC. Paragraph 4 alleges that the address for service is not in conformity with Form 17 as required by O 7, r 8(e) RSC. 

14.	Order 7, r 8(d) requires that a notice of appeal shall "state what judgment the appellant seeks in lieu of that appealed from". This notice of appeal does that. The relief sought is that the judgment below "be quashed", that Mr Kennedy be ordered to pay the costs of the appeal and "any other further orders". The pleading of the relief sought may be criticised, as was submitted for Mr Kennedy, in that the orders sought in lieu of those appealed from are not additionally stated. The absence of that pleading does not though render the appeal incompetent or prevent the court's making additional orders if the appeal succeeds and the justice of the matter so warrants.

15.	Order 7, r 8(e) requires that a notice of appeal shall be in Form 8. Form 8, in turn, in its specification of "filed by" directs attention to Form 17. Form 17 on its face is designed to engage with O 11, r 4(b) in respect of that rule's requirements for the specification of an address for service. The form makes provision for the specification of the filing party's personal name and address and for those of his lawyer. In so specifying it is premised upon a particular construction of O 11 r 4(a)(ii) and O 11 r 4(a)(iv) respectively. The present notice of appeal gives the name and address of the appellants' lawyers but not those of the appellants themselves. Reading O 11 r 4 as a whole, it is a moot point whether, when a lawyer is acting for a party, the party's personal address must additionally be specified for it is the office of the lawyer (or the lawyer's allocated document exchange box in the Registry) which becomes the party's address for service.

16.	The notice of appeal does specify such an address for service. It is also clear, reading the notice as a whole, that the lawyer concerned acts for the appellants and has filed the notice on their behalf. Whatever defect there may be in the "Filed by" specification, that defect is, truly, a mere irregularity. That defect does not mean that the jurisdiction of the court has not been invoked by the notice of appeal.

17.	There is a passage in Simon Kou v Simon Kaupa (2010) SC 1021, to which we were taken by counsel for Mr Kennedy which, if read literally and uncritically, might be thought to support these two grounds of objection. Having set out the terms of O 7, r 8 and emphasised the word "shall" in its preamble the court stated, at [22], that the requirements of that rule are "mandatory" and that a failure to comply with any of them is "fatal to the competency of this appeal". No authority is cited by the court for either of these propositions. That is so even though, amongst other cases, PNG Forest Authority v Securimax Securities Pty Ltd was cited to the court by the appellant in responding to the objection to competency.

18.	It was a feature of the notice of appeal in Simon Kou v Simon Kaupa that it was signed by but one (Mr Kou) of the 103 appellants named in the notice in circumstances where Mr Kou was not a representative of such a group and where no lawyer acted for the group. A notice of appeal which, on its face, did not institute an appeal by or on behalf of the named appellants would be incompetent because it could not be said that those appellants had invoked the court's jurisdiction. The actual decision in Simon Kou v Simon Kaupa, which was to uphold the objection to competency, is explicable on this basis. To the extent that it holds that want of strict compliance with the rules by a notice of appeal means that an appeal is, for that reason alone incompetent, the judgment, with respect, ignores the overarching effect of s42 of the Supreme Court Act. While that section provides that practice and procedure in the Supreme Court shall be as specified in the rules of court, it expressly qualifies this by the statement, "except as directed by the Supreme Court at any stage of the matter". The intent of the qualification is to allow the court to do justice in the circumstances of a particular case and so as to ensure that form does not triumph over substance. That is not to say that the rules of court are to be ignored; far from it; only that mere procedural irregularities may not be fatal in particular circumstances. 

19.	The judgment in Simon Kou v Simon Kaupa also ignores the earlier, longstanding authorities concerning objections to competency in this country and Australia which we have set out above. While this court should not lightly depart from an earlier judgment of the court, to the extent that Simon Kou v Simon Kaupa stands for a contrary proposition, we respectfully decline to follow it.

20.	That is not to say that, if a notice of appeal which is so completely incomprehensible as to make it impossible to discern that the court's jurisdiction has been validly invoked or which seeks to raise issues completely unrelated to the judgment appealed from that the appeal will not be struck out as incompetent. The Australian authority which we have cited, Zegarac v Dellios, offers an example of the striking out of an appeal as incompetent on such bases. The present is not such a case.

21.	The last proposition leads naturally to a consideration of the remaining ground of objection which is set out in paragraph 6 of the notice of objection to competency. It is there alleged that grounds 3 (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m) and (n) of the notice of appeal are wanting in particularity as to why the judgment below is wrong in law, are "mere submissions", "cannot possibly succeed" and "do not specify whether there is an error on liability or quantum or both". 

22.	Regard to these grounds discloses that they allege various errors in the admission of evidence, acting on particular evidence to make findings as to liability or quantum, awarding damages in a particular sum when there was, it is said, a failure (on the evidence) to mitigate, allowing depreciation in respect of the vehicle concerned at a particular rate in the absence of evidence, allowing interest from a particular time in circumstances where,so it is alleged, the statute did not permit the same or failing to deduct an amount offered by the appellants when calculating damages. The grounds are not mere submissions. They state with adequate particularity grounds of appeal on questions of law or mixed questions of fact and law. The rules do not require that they additionally specify which relate to quantum and which relate to liability although, as it happens, it is tolerably clear on their face to which subject each relates. Finally, whether or not an individual ground has no reasonable prospect of success in circumstances where the notice does otherwise validly invoke the court's jurisdiction is not a matter for an objection as to competency. In short, there is no merit in paragraph 6 of the notice of objection to competency.

23.	We make these further observations in conclusion. 

24.	The purpose of an objection to competency is to save valuable court time which would otherwise be spent on the hearing of an appeal by an appellant who has not validly invoked a known appellate jurisdiction. The giving of a notice of objection to competency also serves to allow an appellant an opportunity soon after he has filed and served a notice of appeal to reflect on whether further to prosecute the appeal proceeding he has instituted and thus an opportunity to save the expense of what may be an incompetent appeal. In pursuit of these purposes, the rules deliberately prescribe a short period after the service of a notice of appeal within which notice of objection to competency must be given. Failure to give a notice within the prescribed time does not mean that the court cannot later dismiss an appeal for want of jurisdiction but a respondent party's failure to make objection within the prescribed time may have adverse costs consequences for that party of the court does later dismiss an appeal as incompetent. 

25.	Considerable care needs to be taken in deciding whether or not to give notice of an objection to competency. The decision calls for an understanding of the true nature and purpose of an objection to competency and the making of a discriminating choice by a practitioner based on that understanding. If, truly, the court lacks jurisdiction because, for example, the appeal is only on a question of fact and leave to appeal has not been obtained, it would be an imprudent respondent who did not object to the competency of the appeal. If, though, by reference to one at least of the grounds of appeal, it can be seen that the court's jurisdiction has validly been invoked, the case is not one for an objection to competency. All that the taking of a misconceived objection to competency by a respondent does is to delay the hearing of the appeal on the merits. In our collective experience too many such misconceived objections presently appear on the court's list of business.

26.	Further, while it will often be convenient for an objection to competency to be heard in advance of the appeal itself, when the appeal will not take more than a day to hear and where the hearing of the objection to competency in conjunction with the appeal would not greatly elongate the hearing time, especially if both could be heard comfortably on the one day, much valuable court time and also expense to the parties can result by promoting to the court that the two should be heard together.

27.	Practitioners ought to give consideration to how an objection to competency might most efficiently be dealt with and assist the court's administration of justice by raising that subject at the listing stage. Having regard to the issues raised both by the notice of appeal and by the purported objection to competency it is unfortunate that this course did not commend itself to the parties. 

28.	For the above reasons, the objection to competency must be overruled, with costs.

Orders:

1.	The respondent's objection to the competency of the appeal is overruled.
2.	The respondent is to pay the appellants' costs of and incidental to the hearing of the objection to the competency of the appeal, to be taxed if not agreed.
____________________________________________________________

Peri Lawyers: Lawyers for the Appellant
Paulus Dowa Lawyers: Lawyers for the Respondent