SC2088

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 136 OF 2020

BETWEEN:
PIONEER SECURITY SERVICES LIMITED
Applicant

AND:
NIUSKY PACIFIC LTD formerly known as PAPUA NEW GUINEA
AIR SERVICES LIMITED
Respondent

Waigani: Hartshorn J,
2021: 11th & 15th February
       
SUPREME COURT – practice and procedure - Application for leave to appeal

Cases Cited:
Papua New Guinea Cases

Green & Co Pty Ltd (Receiver Appointed) v. Roger Britain Green [1976] PNGLR 73 
Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185 
Oberia v. Charlie (2005) SC801
Totamu v. Small Business Development Corporation (2009) N3702 
Rea Joseph v. Manau Severa (2011) SC1152
Albright Ltd v. Mekeo Hinterland Holdings Ltd (2013) N5774
Independent Public Business Corporation v. Motor Vehicles Insurance Limited (2017) N6664
Gigira Development Corporation Ltd v. Komo Umbrella Joint Venture Ltd (2016) N6785
National Superannuation Fund Ltd v. National Capital Ltd (2017) N6952
K. A. Properties (PNG) Ltd v. Simatab (2017) N7070
Lawrence Kalinoe v. Philip Kereme (2017) SC1631
Duma v. Puk (2019) SC1754
State v. Petroleum Resources Gobe Ltd (2019) SC1900

Overseas Cases

Evans v. Bartlam [1937] AC 473; 2 All ER 646 
Gardner v. Jay (1885) 29 Ch 50 

Counsel:

Mr. P.H. Pato, for the Applicant
Mr. N. Kopunye, for the Respondent

15th February, 2021

1. HARTSHORN J: This is a decision on a contested application for leave to appeal a final decision of the National Court (decision appealed).

Background

2. The applicant Pioneer Security Services Ltd, claimed damages against the respondent Papua New Guinea Air Services Ltd now known as Niusky Pacific Ltd. The applicant alleged that the respondent had breached an agreement entered into between them on 11th November 2009 for the provision of security services by the applicant to the respondent (Agreement), when the respondent unlawfully terminated the agreement effective 27th May 2010. The applicant claimed damages for unlawful termination of the Agreement and the non-payment of invoices and other charges for services rendered.

3. Following a trial, the National Court refused the applicant’s claims and dismissed the proceeding.

4. The applicant seeks leave to appeal as some of its proposed grounds of appeal are on purported questions of fact. Section 14(1)(c) Supreme Court Act relevantly provides that an appeal lies to the Supreme Court from the National Court with the leave of the Supreme Court, on a question of fact.

Leave to appeal

5. In Oberia v. Charlie (2005) SC801, Lay J., after a comprehensive review of the authorities, listed the following tests that are to be applied to the facts of each application for leave to appeal:
	
a)	Is there an arguable or prima facie case or has it been demonstrated that the trial judge was wrong?
	
b)	Does the appellant have other recourse in the court below?
	
c)	Was the ruling within the discretion of the court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a 	mistake of fact?

d)	Does the decision have any bearing on the final determination of the issues between the parties?  Will it affect the primary rights of the parties or prevent the determination of the issues?

e)	Will substantial injustice be caused by allowing the decision to stand?
	
f)	Has cause been shown that the trial process should be interrupted by an 	appeal?

6. It is to be noted that notwithstanding the development of the case law concerning the grant of leave to appeal by a single judge of the Supreme Court, s.10(1) and s.14 Supreme Court Act and Order 7 Rules (3) and (4) Supreme Court Rules, which concern the grant of leave to appeal, do not specifically provide that a judge has the discretion to grant or refuse leave to appeal. It is implied. There is no indication as to how a judge should exercise that discretion. 
7. Given this, I am reminded of the oft cited statement of Bowen LJ in Gardner v. Jay (1885) 29 Ch 50, at 59:
“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?”

8. This passage has been reproduced and approved in numerous cases including the House of Lord’s decision of Evans v. Bartlam [1937] AC 473; 2 All ER 646; Green & Co Pty Ltd (Receiver Appointed) v. Roger Britain Green [1976] PNGLR 73; Totamu v. Small Business Development Corporation (2009) N3702; Albright Ltd v. Mekeo Hinterland Holdings Ltd (2013) N5774; Independent Public Business Corporation v. Motor Vehicles Insurance Limited (2017) N6664; Gigira Development Corporation Ltd v. Komo Umbrella Joint Venture Ltd (2016) N6785; National Superannuation Fund Ltd v. National Capital Ltd (2017) N6952; K. A. Properties (PNG) Ltd v. Simatab (2017) N7070;  Lawrence Kalinoe v. Philip Kereme (2017) SC1631; Duma v. Puk (2019) SC1754 and State v. Petroleum Resources Gobe Ltd (2019) SC1900.
Consideration
9. The proposed grounds of appeal 3.1(a) and 3.1(c) state that the trial judge erred in law and in fact. Consequently, pursuant to s. 14(1) (a) and (b) Supreme Court Act, the leave of the Supreme Court is not required to appeal in respect of these two proposed grounds.
10. Proposed ground of appeal 3.1(b) is, “whilst the trial Judge was correct in holding that the outstanding amount from 7 invoices rendered was K17,270.70 and not K21,307.90 as alleged, His Honour erred in fact by failing to hold that the 7 invoices were not fully paid.”
11. The applicant submits that the respondent alleges that it paid for services that were actually rendered but did not provide any evidence of such payment. From the judgment of the primary judge, it is clear that the judge proceeded on the basis that all of the 7 invoices were not paid in full. The primary judge accepted the respondent’s reasons for not paying in full. As the primary judge proceeded on this basis, he proceeded on the basis that the applicant claims that he should have and should have held, in this proposed ground of appeal. Consequently, I am not satisfied that the applicant has raised an arguable or prima facie case in this proposed ground of appeal.
12. Even if an arguable case has been raised, the primary judge concluded that the respondent was correct in not paying in full. In this proposed ground of appeal, it is the inference or conclusion of the primary judge that is being questioned by the applicant and not the non-finding of fact. This is a finding of law. I refer in this regard to the following passage by Kapi J (as he then was) in Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185:
“It has been shown in decided cases that where inferences or conclusions are drawn from these primary facts which cannot reasonably be drawn, then this is an error of law. See Edwards (Inspector of Taxes) v. Bairstow and Another (1956) A.C. 1413; Instrumatic Ltd. v. Supabrase Ltd. (1969) 1 W.L.R. 51914. I cannot see anything in the circumstances of this country that would render these principles inapplicable. I adopt them as part of the underlying law (Schedule 2:2 of the Constitution).”

13. As it is a finding of law or mixed fact and law that is being questioned, leave to appeal is not required in regard to this proposed ground of appeal.

14. Proposed ground of appeal 3.1(d) is, “the trial judge erred in fact by failing to hold that the first contract variation on 19th November 2009 had resulted in the increase of the contract price.”

15. The applicant submits that the primary judge failed to hold that the contract price had increased as the first variation allowed for additional static guards to be provided.

16. The primary judge observed in paragraph four of his judgment that there had been a contract variation on 19th November 2009 for additional security guards to be provided. He proceeded on the basis that there had been amongst others, the first variation. In regard to purportedly not finding that the first variation had increased the contract price, although this is apparent, it was not necessary for the primary judge to make such a finding in order to consider the applicant’s case as pleaded. Consequently, I am not satisfied that it is arguable that the primary judge fell into error in not so finding as the applicant claims.

17. Even if an arguable case has been raised, the primary judge’s inferences or conclusions on this point are either a question of law or mixed fact or law, as previously referred to.

18. Proposed ground of appeal 3.1(e) is, “the trial judge erred in fact in failing to hold that the Appellant had provided a second escort vehicle before the second contract variation was done to formalise this service, for which the Respondent failed to pay invoices rendered.”

19. In his judgment the primary judge accepts that the applicant claims for the use of a second escort vehicle for two months from 12th November 2009 to 17th January 2010 – “That is, from the signing of the Agreement to the variation.” - and so he proceeded on the basis that the applicant claims that he should have done in this proposed ground of appeal. That is, a second escort vehicle was provided for the two months before the second contract variation. I am not satisfied therefore, that an arguable case has been raised that the primary judge fell into error in not finding as the appellant claims.

20. Even if an arguable case has been raised, the primary judge’s inferences or conclusions that the applicant could not succeed in the claim is a question of law or mixed fact and law, as previously referred to.

21. Proposed ground of appeal 3.1(f) is, “the trial judge erred in fact by holding that the claim for the second escort vehicle related to a period before the second contract variation took place when His Honour failed to find that the second escort vehicle was engaged even up to (sic) date of termination of the Agreement on 27th May 2010.”

22. This proposed ground of appeal appears to contradict the previous proposed ground of appeal. Notwithstanding this, the reason given for proposed ground of appeal 3.1(e) above, applies for this proposed ground of appeal.

23. Further, even if an arguable case has been raised, the primary judge’s inferences or conclusions that the applicant could not succeed in the claim is a question of law or mixed fact and law, as previously referred to.

24. Consequently, as leave is not required for proposed grounds 3.1(a) and 3.1(c) as the applicant describes them as errors in law and fact and as the remaining proposed grounds of appeal do not raise arguable or prima facie cases or are concerned with questions of law or mixed fact and law and thus leave is not required, this application for leave to appeal should be dismissed: Rea Joseph v. Manau Severa (2011) SC1152.

25. As either the proposed grounds of appeal do not require leave or no arguable or prima facie cases have been raised, it is not necessary to consider the other factors referred to in Oberia v. Charlie (supra), or the other submissions of counsel.

Orders

26.     It is ordered that:

a)	The application for leave to appeal is dismissed;

b)	The applicant/appellant shall pay the costs of the respondent of and incidental to the said application for leave to appeal.
__________________________________________________________________
Parker Legal: Lawyers for the Applicant                                                    
Kopunye Lawyers:  Lawyers for the Respondent