SC2238

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 153 OF 2022

BETWEEN:
SANAMO CONSTRUCTION LTD
AND ANOTHER
Appellants

AND
CHANG JING
Respondent

Waigani: Logan J
2022: 16th March

PRACTICE & PROCEDURE – application for application for leave to appeal to be deemed as notice of appeal – application to substitute parties to the appeal – where appellant filed application for leave to appeal – where appeal lies without leave – where application for leave to appeal stated that appeal lies without leave – where applicant’s lawyer uncritically copied and pasted from unrelated application for leave – where the interests of justice favour deeming application for leave as notice of appeal and substituting parties – application granted.

Facts:

Southern City Group Limited and Sanamo Group Limited (Sanamo) (together, the appellants) sought to appeal against a judgment of the National Court in relation to a dispute with Mr Chang Jing over the ownership of certain land in Port Moresby.

The appellants’ filed a document titled “application for leave to appeal” (Document) within the 40-day period stipulated in s 17 of the Supreme Court Act 1975. The parties upon whose behalf the appeal was said to have been brought were listed as Sanamo and Polraven No. 48 Limited (Polraven). Notwithstanding the title of the Document, each of the grounds alleged by the appellants alleged errors of law or errors of mixed fact and law which gave rise to an appeal as of right pursuant to s 14(1) of the Supreme Court Act. This was reflected in paragraph 1 of the Document which relevantly stated that the appeal lay without leave.

The appellants sought orders rectifying the title of the Document such that it stood as a notice of appeal and substituting Sanamo for Polraven as the second appellant.

Held:

1.	Order 11, Rule 11 provides the Court with power to amend a document filed in a proceeding or add an additional party, even if to do so would result in a party being added outside the 40 day period specified in s 17 of the Supreme Court Act 1975: Ding Damane v the State [1991] PNGLR 244 applied; Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388 referred to; Weldon v Neal (1887) 19 QBD 394 distinguished.
2.	The power to amend the names of parties to an appeal is derived from Order 11, Rule 11. In those circumstances it is not necessary to resort to the general power in Order 2, Rule 1(h): Motor Vehicle Insurance Limited v Niugini Nominees Limited [2014] PGSC 18; SC 1334 distinguished.

Cases Cited:
Papua New Guinean Cases

Ding Damane v the State [1991] PNGLR 244
Motor Vehicle Insurance Limited v Niugini Nominees Limited [2014] PGSC 18; SC1334

Overseas Cases

Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388
Weldon v Neal (1887) 19 QBD 394

Legislation:

Constitution
Supreme Court Act 1975
National Court Rules 1983
Supreme Court Rules 2012

Counsel:

Mr. P Wariniki, for the Appellants 
Ms. L David, for the Respondent

Oral decision delivered on
16th March 2022

1.	LOGAN J: On 11 October 2021 the National Court, as constituted by an acting judge, made various orders relating to property described as section 37, allotment 19 Bomana, National Capital District contained the State lease volume 56 Folio 70.

2.	Those orders were made in proceedings as between Mr Chang Jing as plaintiff, Southern City Group Limited (Southern City) as first defendant and Sanamo Group Limited (Sanamo) as second defendant.  Mr Jing succeeded in securing from the National Court orders to the effect that he was the registered proprietor of the subject land and order for the eviction of Southern City and Sanamo from the subject land and a related injunctive order against those companies from interfering with his quiet enjoyment of the subject land.  Mr Jing purchased the subject land from Sanamo.  He was duly registered as the proprietor of a residential lease on the subject land on 19 May 2015.

3.	On or about 7 September 2015, Sanamo consolidated all of section 37, allotments 1 to 87 inclusive into portion 3472 Milinch, Granville, Fourmil, Port Moresby, being State lease volume 67 folio 207.  Title to the newly described portion 3472 was issued to Sanamo on 7 September 2015.  Sanamo then sold the whole of portion 3472 to Southern City.  Southern City was registered as the title holder on 5 November 2015.

4.	About a year later Mr Jing found that his property, or what he considered to be his property, the former section 37, allotment 19 had been fenced off by Southern City.  Southern City claimed it as within portion 3472 in respect of which it was the registered proprietor.

5.	The National Court proceeding resolved the resultant controversy in favour of Mr Jing.  Both Sanamo Group and Southern City were dissatisfied with those orders.  They gave instructions to their lawyers, Wariniki Lawyers and Consultants, to challenge those orders.  On 16 November 2021 a document entitled “application for leave to appeal” which designated as parties Sanamo Group as first appellant and Polraven No. 48 Limited (Polraven) as second appellant and Mr Jing as respondent was filed in this court.

6.	The cover sheet in respect of that document also entitles it “application for leave to appeal”. However, looking at the text of the document so far it is stated in paragraph 1: “The appeal lies without leave.”

7.	The document as filed is a confusing one.  It is entitled “Application for leave to appeal,” and bears some resemblance to the prescribed form for an application for leave to appeal but nonetheless, in contradistinction, expresses the sentiment “the appeal lies without leave.”

8.	This document was filed within the period of 40 days after the orders sought to be challenged were made.  The document was therefore filed within the period specified in s 17 of the Supreme Court Act 1975.  However, the document was not in a form which complied with the requirements of Order 7, Rule 7 of the Supreme Court Rules 2012.  In other words, it is not in the form of a notice of appeal.  Moreover, it misstates the name of one of the appellants.

9.	Without more, the appeal would be deficient because it has been held that “shall” in Order 7, Rule 7 has an imperative quality.  In none of those cases however, has it been sought to amend a document deficient in form or otherwise to regularise a deficient document pursuant to Order 11, Rule 11 of the Supreme Court Rules.  That rule provides: 

“The court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions.”

10.	Order 11, Rule 1 provides that amongst other rules, Order 11, Rule 11 applies:

“The rules contained in this part apply to all matters brought under these rules unless in these rules, the contrary intention appears.”

11.	The expressed issues in the document filed are each expressed to be arising from errors in fact and law.  That being so there was never a need to secure leave to appeal because, having regard to s 14(1) of the Supreme Court Act, an appeal lay as of right under such grounds.

12.	The whole purpose of Order 11, Rule 11 is to prevent matters of form triumphing over matters of substance to the detriment of the interests of justice.  Whether to exercise the amendment power is one which calls for the exercise of a judicial discretion.  The view has been expressed in Ding Damane v the State [1991] PNGLR 244, by majority, that there is power to give leave to amend a notice of appeal out of time, in other words outside the periods specified in s 17 of the Supreme Court Act but that power should only be exercised in exceptional circumstances.  Other authorities concerning Order 11, Rule 11 suggest that the stage at which the application was made, and the stage at which the proceeding has progressed are relevant as to whether or not to grant leave to amend.  This application is made at a very early stage indeed.  Mr Jing’s stance is neither to consent to nor oppose the granting of the amendment sought.

13.	In Motor Vehicle Insurance Limited v Niugini Nominees Limited [2014] PGSC 18; SC 1334, Makail J exercised the power of amendment so as to amend names of parties to an appeal.  His Honour did that in circumstances, where not so to do, would have rendered a substantial injustice in a case involving a substantial monetary judgment.  As Mr Wariniki, for the applicants candidly highlighted, his Honour exercised that power of amendment not by reference to Order 11, Rule 11 but rather on the basis that Order 2, Rule 1(h) of the Supreme Court Rules was applicable in that no provision was made sufficiently in the rules of the Supreme Court.  That being so, his Honour then looked to the National Court Rules 1983 as Order 2 Rule 1(h) contemplates for the power of amendment finding that in Order 8 Rule 50 of the National Court Rules.

14.	It may be, with respect, that that pathway was unnecessarily trodden given that there is a power in Order 11, Rule 11 to add parties and to amend.  The effect of regularising the document filed on 19 November 2021 would be to regularise the institution of an appeal and do so outside the time limit found in s 17 of the Supreme Court Act.

15.	There was a time when that type of amendment would have been regarded as offending what is known as the rule in Weldon v Neal (1887) 19 QBD 394.  In that case, the Court of Appeal from England and Wales disallowed amendments proposed to be made so as to introduce after the expiry of a limitation period further causes of action. Lord Esher MR, did however, allow that the court might have power to make such amendments but under “very peculiar circumstances.”

16.	That rule is a rule of practice merely to control the general power of a court to permit a pleading to be amended retrospectively.  In modern times, Weldon v Neal is much distinguished. An instructive authority in that regard is Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388.  In that case, the court had power to make an amendment and the amendment concerned was regarded not as infringing the rule in Weldon v Neal, because it did no more than particularize facts already alleged in the pleadings or only expanded on the plead of facts.  It did not set out a new legal theory.

17.	The amendments that are promoted on the present application are amendments so as to deem the document filed on 19 November 2021 to be a notice of appeal and to substitute as second appellant, Southern City for Polraven.  As it happens, the occasion for Polraven’s appearance is readily explicable by a non-critical copying and pasting from an application for leave to appeal in unrelated proceedings in which Mr Wariniki also acted which were heard and determined today.

18.	The Supreme Court Rules must be read pursuant to the Supreme Court Act and in turn that Act must be read subject to the Constitution.  To construe the word “shall” in Order 7, Rule 7 as imposing an immutable requirement would run counter to the constitutional obligation on this court to do justice.  It is difficult to see why it ought not to be read subject to the power of amendment in Order 11, Rule 11.  No contrary submission was made on behalf of Mr Jing.

19.	The document filed, is as Mr Wariniki frankly accepted, hardly a model of good practice. But it does serve, as he also submitted, to alert Mr Jing to particular dissatisfaction with the orders made on the National Court for particular reasons, each identified, each one of which gave rise to an appeal as of right.

20.	In the circumstances prevailing, my view is that the interests of justice favour the exercise of the amendment power found in Order 11, Rule 11, so as to:

(a)	deem the document filed on 16 November 2021 entitled an “application for leave to appeal” to be a notice of appeal.
(b)	grant leave to amend the parties named in that document so as to delete as second appellant, “Polraven No. 48 Limited” and to insert in lieu thereof as second appellant, Southern City Group Limited.
(c)	to require the filing and service of a supplementary notice of appeal in form 8 specifying the parties to the appeal as so amended and specifying as grounds of appeal the grounds which appear in paragraph 2 of the document filed on 16 November 2021.
(d)	require that the supplementary notice of appeal be filed and served within 14 days from today.

21.	Mr Wariniki accepted the proposition put to him that the allowance of the amendment and the making of the deeming order entailed an indulgence in relation to which no order for costs should be made in his clients’ favour irrespective of what the outcome of the appeal might be.  That particular costs outcome was supported Ms David for Mr Jing.  Accordingly, the order in respect of costs will be that the costs of and incidental to the application under Order 11, Rule 11 as made pursuant to the Court’s order on 11 March 2022 be the respondent’s costs in the appeal in any event.

Orders

1)	Pursuant to Order 11, Rule 11 of the Supreme Court Rules 2012:

(a)	the document filed on 16 November 2021, entitled an “application for leave to appeal” be deemed to be a notice of appeal (Notice of Appeal);
(b)	leave be granted to amend the parties named in the Notice of Appeal so as to delete as second appellant “Polraven No. 48 Limited” and insert in lieu thereof as second appellant “Southern City Group Limited”;

(c)	the appellants file and serve a supplementary notice of appeal in form 8 specifying the parties to the appeal as so amended and specifying as grounds of appeal the grounds which appear in paragraph 2 of the document filed on 16 November 2021 (Supplementary Notice of Appeal); and

(d)	the Supplementary Notice of Appeal be filed and served within 14 days from today.

2)	Costs of and incidental to the application under Order 11, Rule 11 of the Supreme Court Rules as made pursuant to the Court’s order on 11 March 2022 be the respondent’s costs in the appeal in any event.

3)	The proceedings be adjourned to a date to be fixed for directions before the Supreme Court Listings Judge.
__________________________________________________________________
Wariniki Lawyers and Consultants:	Lawyers for the Appellants  
Pacific Legal Group: 	Lawyers for the Respondent