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Commander of Beon CIS v Mal [2020] PGSC 108; SC2012 (14 September 2020)

SC2012

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 80 OF 2017

BETWEEN:
COMMANDER OF BEON CIS
First Appellant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Appellant

AND:
CATHERINE MAL
Respondent

Waigani: Hartshorn J
2020: 10^th & 14^th September

SUPREME COURT APPEAL – practice and procedure - Application for leave to amend a notice of appeal

Cases Cited:

Charles Ombusa v. The State [1996] PNGLR 335
Mirenbean Enterprises Limited v. Kaugla (2019) SC1826

Counsel:

Mrs.R. Gelu and Mr. A. Hula, for the Appellants

Oral decision delivered on
14^th September 2020

1. HARTSHORN J: This is a decision on an application for leave to amend the notice of appeal filed 6^th June 2017 to include new grounds of appeal.

2. I allowed the application to be moved in the absence of representation on behalf of the respondent as I was satisfied that the Public Solicitor, who appears for the respondent was present in Court on 28^th August 2020 and made an appearance for the respondent when this application was adjourned to 9:30am 10^th September 2020 for hearing. I am also satisfied that the application and affidavit in support were personally served at the Office of the Public Solicitor on 7^th August 2020.

Background

3. The respondent was serving a term of imprisonment of 17 years after being convicted for the crime of wilful murder. In May 2017, the primary judge ordered amongst others, that her application for early release from custody was granted (decision appealed). The appellants’ filed a notice of appeal against the decision appealed on 6^th June 2017.

4. The appellants’now seek to amend their notice of appeal and to include new grounds.

5. I am satisfied that such an application may be heard by a Judge of the Supreme Court pursuant to s.5(1)(a) Supreme Court Act as it is a direction not involving the decision on the appeal.

Application

6. The appellants rely on various provisions of the Constitution, the Supreme Court Act and the Supreme Court Rules for the relief which they seek. Order 7 Rule 25 Supreme Court Rules, which is relied upon, provides that:

“A notice of appeal may, before the date of appointment to settle under Rule 42 be amended without leave by filing a supplementary notice.”

7. The date for the appointment to settle under Rule 42 has passed and so leave is required.

8. The test to be applied by the Court is:

“Whether there are special circumstances in a particular case which would make the case an exceptional case that should warrant the grant of leave to amend the notice of appeal”:Charles Ombusa v. The State [1996] PNGLR 335.

9. In Mirenbean Enterprises Limited v. Kaugla (2019) SC1826 the Supreme Court said at [13] to [17] after repeating the test in Ombusa’s case:

“It would not be prudent to seek to enumerate a list of special circumstances contemplated by the Court, suffice to say that each case must turn on its own circumstances.

It is trite learning that the grant of leave to amend is discretionary. Such discretion must be exercised reasonably, the focus being to promote the interest of justice, at all times.

In addition to the above, the modern trend is that, generally, amendments of the nature sought, are most likely to be allowed if the application is not mala fide or would not result in prejudice on the respondent, which cannot be compensated by costs.

In our considered view an amendment that facilitates a proper ventilation of the issues in dispute and causes no prejudice to the respondent should ordinarily be granted.

In this case, we are satisfied that there exist special circumstances that warrant this court granting the relief sought.”

10. In this instance, it is submitted that special circumstances exist. These are: that the appeal was not progressed by private counsel, who had been briefed by the State, for about two-and-half years;that Covid19 restrictions had severely affected the operation of all State and public institutions; that the notice of appeal prepared by private counsel is inadequate in form and clarity as it does not specify all of the necessary grounds and how the decision appealed was alleged to be wrong in law, or in fact or both.

11. To my mind, on the evidence, there are special circumstances exhibited. I also mention that as there is no appearance on behalf of the respondent, there is no contest by the respondent to the application, or to the submission of the appellants’ that special circumstances exist.

12. I further mention, as did the Court in Mirenbean (Supra), the fact that on the evidence adduced, there is no prejudice which the respondent would suffer if I allow the appellants to amend their notice of appeal. There is still sufficient time for the respondent to consider the proposed grounds.

13. It seems to me that the amendments sought will facilitate a proper ventilation of the issues between the parties.

Orders

14. The Court orders that:

a) The relief sought in paragraphs 1, 2 and 3 of the application of the appellants filed 31^st July 2020 is granted. The appellants shall file and serve an amended notice of appeal by 16^th October 2020;

b) Costs are in the cause.
__________________________________________________________________
Office of the Solicitor General: Lawyers for the Appellants
Office of the Public Solicitor: Lawyers for the Respondents