SC2124
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 151 OF 2020

BANK OF PAPUA NEW GUINEA
Applicant

V

JURGEN RUH
First Respondent

ISLANDS SALVAGE AND TOWAGE LIMITED
Second Respondent

On The Papers: Cannings J, Hartshorn J, Logan J
2021: 9th May, 1st July 

PRACTICE AND PROCEDURE – objection to competency of application for leave to appeal – Supreme Court Rules 2012, Order 7, Rules 3 to 6 – whether application for leave contained adequate statement of jurisdiction to grant leave – whether application for leave adequately identified alleged errors of law by primary Judge

The respondents objected to the competency of an application for leave to appeal against a costs order of the National Court. Leave for such an appeal is required under s 14(3)(c) of the Supreme Court Act. Two grounds of objection were raised, that the application for leave: (1) did not adequately state the jurisdictional basis for the granting of leave; and (2) did not adequately identify the alleged errors of law of the primary Judge. 

Held: 

(1)	The application for leave was compliant with Order 7, Rule 4 and form 7 of the Supreme Court Rules. There was no need to expressly state that it was an application for leave to appeal against costs only. 

(2)	The application adequately pleaded error of law by the primary Judge. There was no need to identify with precision the grounds of appeal; such grounds would, if leave were granted, be included in the notice of appeal.

(3)	The grounds of objection were without substance as neither showed that the Supreme Court lacked jurisdiction to hear the application for leave. 

(4)	The objection was frivolous and misconceived, and incurred unnecessary time and costs. Costs awarded against respondents on solicitor-client basis. 

Cases Cited

The following cases are cited in the judgment:

Coca Cola Amatil (PNG) Ltd v Yanda (2012) SC1221
Jurgen Ruh & Islands Salvage & Towage Ltd v His Worship George Kerker, Bank of Papua New Guinea & The State (2020) N8571
Paraka v Somare (2009) N4647
Talibe Hegele v Tony Kila (2011) SC1124
The State v Manorburn Earthmoving Ltd (2008) SC933

OBJECTION

This was an objection to competency of an application for leave to appeal.

Counsel

A Mana, for the Applicant
H H Namani, for the Respondents

1st July, 2021

1.      BY THE COURT: The respondents, Jurgen Ruh and Islands Salvage and Towage Ltd, object to the competency of an application by the Bank of Papua New Guinea for leave to appeal against a costs order of the National Court.

2.     In the National Court the respondents were plaintiffs in a judicial review of the decision of the Kokopo District Court to commit them for trial on charges under the Superannuation Act. The applicant was the prosecuting authority in the committal proceedings and a defendant in the judicial review. It did not oppose the relief sought, and granted, in the National Court, which was quashing of the decision of the District Court to commit the respondents to trial, due to procedural error in the District Court (Jurgen Ruh & Islands Salvage & Towage Ltd v His Worship George Kerker, Bank of Papua New Guinea & The State (2020) N8571). 

3.     The applicant was aggrieved by the order of the trial Judge that it, together with other defendants (the presiding Magistrate and the State), pay in equal shares the costs of the respondents. It asserts in the application for leave, amongst other things, that “the awarding of costs to the respondents against the applicant was unfair and unreasonable given that the National Court proceeding was largely uncontested by the applicant and the judgment of the primary Judge was consistent with the applicant’s submissions on the law”. 

4.       It filed an application for leave to appeal against the costs order pursuant to s 14(3)(c) of the Supreme Court Act, which provides:  

No appeal lies to the Supreme Court without leave of the Supreme Court … from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

5.     The respondent objects to the competency of the application for leave on two grounds: (1) that it does not adequately state the jurisdictional basis for the granting of leave; and (2) that it does not adequately identify the alleged errors of law of the primary Judge. 

GROUND 1: INADEQUATE JURISDICTIONAL BASIS 

6.     This states:

The application for leave to appeal is incompetent in that the applicant states that the application for leave to appeal is pursuant to s 14(3)(c) of the Supreme Court Act … The objection is that the applicant should have stated that the application for leave to appeal is against the ‘order for costs only’ pursuant to s 14(3)(c) of the Supreme Court Act. 

7.     This ground attempts to introduce a requirement into the drafting of an application for leave that there be a full and express statement of the jurisdictional basis of the granting of leave. There is no such requirement. 

8.    The application for leave in this case is compliant with Order 7, Rule 4 and is in accordance with form 7 of the Supreme Court Rules; and there is no complaint that it is non-compliant. There was no need to expressly state that it was an application for leave to appeal against costs only. It sufficiently states that it is an application for leave “pursuant to s 14(3)(c) of the Supreme Court Act”. The only subject matter of s 14(3)(c) is “an order of the National Court as to costs only that by law are left to the discretion of the National Court”. The extra words, argued by the respondents to be necessary, are superfluous. Ground 1 is dismissed.

GROUND 2: INADEQUATE IDENTIFICATION OF ALLEGED ERRORS OF LAW OF PRIMARY JUDGE 

9.     This states:

The application for leave to appeal is incompetent in that the primary Judge awarded costs in the respondents’ favour after hearing submissions of all parties and in the Judge’s discretion awarded costs to be paid equally by the applicant and the State. The objection is that there was no error of law identified in these grounds contrary to Order 7, Rules 9(c) and 10 of the Supreme Court Rules. 

10.     It is unclear what the words “in these grounds” refer to. What grounds? The objection appears to be that the application for leave does not adequately plead error of law by the primary Judge. 

11.      We can envisage that if an application for leave to appeal failed to plead any error of law on the part of the primary Judge, it could be argued that the jurisdiction of the Supreme Court had not been engaged, and a valid objection to competency could be raised . However, that is not the case here. We reiterate that the application for leave was compliant with the Rules. It stated, providing the detail required by Order 7, Rule 4(c), the nature of the case, the questions involved and the reasons why leave should be given.

12.     The rules that the respondents allege were not complied with – Order 7, Rules 9(c) and 10 – are only engaged if leave to appeal is granted. Rule 9(c) requires that a notice of appeal shall “state briefly but specifically the grounds relied upon in support of the appeal”. Rule 10 provides that “it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence”. Until leave is granted, these rules do not apply, They are of no relevance to the present case. 

13.     There was no need to identify with precision the grounds of appeal that, if leave were granted, would be included in the notice of appeal. Ground 2 is dismissed. 

CONCLUSION 

14.     The grounds of objection are without substance. A proper ground of objection to competency is one that demonstrates that the Court has no jurisdiction to deal with the matter before it (Talibe Hegele v Tony Kila (2011) SC1124, Coca Cola Amatil (PNG) Ltd v Yanda (2012) SC1221). Neither ground has passed that test. 

15.     The objection to competency is frivolous and misconceived, and has incurred unnecessary time and costs. It is appropriate in such circumstances that costs follow the event and are payable on a solicitor-client basis (The State v Manorburn Earthmoving Ltd (2008) SC933, Paraka v Somare (2009) N4647). 

ORDER

(1)	The objection to competency is refused.

(2)	The respondents shall pay the applicant’s costs of the objection pursuant to Order 12, Rule 5(2)(b) of the Supreme Court Rules, on a solicitor-client basis, which shall, if not agreed, be taxed.  

__________________________________________________________________
Corrs Chambers and Westgate: Lawyers for the Applicant
Namani & Associates: Lawyers for the Respondents