SC1254

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 135 of 2012

Between:

JT (PNG) LTD
Appellant

And:

TAPU CONSTRUCTION LTD
Respondent

Waigani: Injia, CJ
2013: 13, 25 March

SUPREME COURT – Appeal – Application for leave to appeal – Decision of National Court in awarding damages for breach of contract - Whether applicant has shown there is prima facie case, arguable or a meritorious case that the decision was wrong and that substantial injustice will be done if the judgment is not reviewed by the appellate court – consideration of - Application for leave in relation to questions of fact alone is fundamentally flawed - No material and arguments to show where and how judge erred in committing factual errors when issues of liability and quantum were tried inter partes – Application for leave refused

Counsel

C Narokobi, for the Appellant
B Lakakit, for the respondent 

25th March, 2013 

1. INJIA, CJ: This is an application for leave to appeal from findings of fact in respect of a final judgment given by the National Court on 5 October 2012. In that judgment the National Court found in favor of the respondent and awarded damages for breach of contract for hire of plant and machinery. 

2. By way of background, the respondent commenced an action for breach of contract for hire of the respondent's excavator and three trucks. The contract was performed in the course of which the appellant terminated the contract without notice. The respondent commenced an action in damages for breach of contract. After the Court process was served, the appellant failed to file its Defence. The Respondent moved for default judgement. After an inter partes hearing, the Court granted judgment on liability for damages to be assessed. Consequently, after an inter partes trial on damages, the Court awarded damages in the sum of K301,387.04 inclusive of interest

3. The main test to be satisfied is whether the applicant has shown that there is a prima facie case, arguable or a meritorious case that the decision was wrong and that substantial injustice will be done if the judgment is not reviewed by the appellate Court: Matiabe Oberia v Police and the State (2005) SC 801; Sir Julius Chan v Ombudsman Commission of Papua New Guinea [1999] PNGLR 240.

4. The application for leave is made under s 4 (2) (c) and s 14 ((2) (c) of the Supreme Court Act, both of which are expressed in identical terms: An appeal lies to the Supreme Court with leave of the Supreme Court, on a question of fact". An appeal on questions of law or questions of mixed fact and law lies as of right. The Court's jurisdiction to grant leave to appeal must be properly invoked. An application for leave to appeal mistakenly filed when leave is unnecessary is incompetent and should be dismissed: Rea Joseph v Manu Sereva & ors (2011) SC1152; Punangi v Pacific Plantation Timber Ltd (2012) SC1153. 

5. In the present matter, the respondent objected to the competency of the appeal based on the decisions in Punangi & Rea Joseph. In the course of argument, the appellant's counsel conceded that the application related to findings of fact alone and withdrew certain grounds that raised issues of law and mixed fact and law. I also ruled that insofar as the appeal sought leave to appeal against findings of fact alone, the appeal was competent. That leaves the grounds set out in the following paragraphs of the application for leave on foot to consider: Grounds 3.4,3.5,3.6, 4.3, and 5.1. 

6. These grounds state that the appellant has a valid Defence as all outstanding payments assessed in terms of hours worked to the tune of K94,506.00 were paid according to an agreement reached between the parties in writing on 3rd August 2010. The grounds also state that the agreement relied upon by the respondent was unenforceable in that it was not under seal and without stamp duty paid as required by Clause 15 of the Contract. The applicant filed and relied on affidavits in this Court to support these assertions and submitted that it will seek to adduce those evidence by way of fresh evidence under s 6 of the Supreme Court Act at the hearing of the substantive appeal if leave to appeal is granted.

7. The respondent filed its own affidavit to counter those maters and argues that parties had their opportunity to contest these matters at the inter partes trial on issues of liability and quantum and that this application is all but an unnecessary exercise to waste time and incur costs. 

8. During my exchange with counsel for the appellant, it became apparent that no appeal was on foot on questions of law or mixed fact and law. I then raised the question that if the appellant were not appealing against the findings of law and mixed fact and law, what purpose would be served by appealing against pure findings of fact. It was argued in response that if leave is granted, appropriate grounds of appeal relating to findings of fact and mixed fact and law will be introduced in a notice of appeal filed upon grant of leave. 

9. In my view, an appeal against findings of fact alone after final judgment must be supported by an appeal raising questions of law or mixed fact and law filed as of right, because a decision or judgment necessarily entails application of law to given facts and conclusions reached that form the basis of the judgment or orders made, that determines the case and disposes of the rights of the parties. Questions of fact that have no connection to the law (questions of law) and conclusions reached upon application of the law to the facts (mixed fact and law) serves no purpose in the appeal unless those questions of fact are linked to or connected with questions of law or mixed fact and law, raised in a separate appeal filed as of right, that is on foot. In this case, no such appeal is on foot. In this situation the application for leave in relation to questions of fact alone is fundamentally flawed.

10. The second flaw is that there is no material and arguments before me to show where and how the judge erred in committing factual errors when issues of liability and quantum were tried inter partes. There is no material or arguments to show whether or not the factual matters and supporting material by way of fresh evidence proposed to be tendered at the hearing of the appeal were available at the time of trial; if so, whether leave was sought to introduce them and whether or not the trial judge erred in considering or not considering them. On the face of the remaining matters set out in the application for leave, they do not show how the judge wrongly exercised his discretion on those matters of fact. 

11. Finality in litigation of the case between the parties is the purpose of the trial of an action in the trial Court. An appeal lies from the judgment of that Court to this Court but only in relation to clearly specified and sufficiently particularized grounds demonstrating how the trial judge erred, which gives rise to questions of fact, law or mixed fact and law. The appeal process is not an avenue for aggrieved parties who missed out on their opportunity to contest or fully contest the case in the trial Court by choice, design or through inadvertence; to re-litigate and re-agitate their case, in the context of an appeal. 

12. The third and final flaw in the application is that it has been misconceived that a grant of leave would also permit the appellant to file an appeal that would raise related questions of law and mixed fact and law. Such an appeal would not be permitted because leave is unnecessary to appeal against those questions and none has been sought and granted in this application, and correctly so, in accordance with the decisions of the Supreme Court in Punangi & Rea Joseph. 

13. For the foregoing reasons, I am not satisfied that the application is meritorious. Therefore the application for leave is dismissed with costs to the respondent.
______________________________________________
Narokobi Lawyers: Lawyer for the appellants
Lakakit & Associates Lawyers: Lawyer for the respondent