SC2498
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 127 OF 2022

JAY LW CONTRACTORS LIMITED
Appellant

V

COVEC (PNG) LIMITED
Respondent

Waigani: Cannings J, Toliken J, Dowa J
2023: 2nd & 28th November

SUPREME COURT – practice and procedure – objection to competency of appeal – whether amended notice of objection to competency was itself incompetent – whether notice of appeal was in proper form  – whether grounds of appeal raised questions of fact for which leave of the Court was required – whether grounds of appeal were vague and misleading and failed to meet requirements of Supreme Court Rules.

The respondent filed an amended notice of objection to competency of an appeal. The appeal is against a final order of the National Court, which was an assessment of damages in an action in which the appellant as plaintiff proved liability in breach of contract against the respondent and the respondent as cross-claimant proved liability in breach of contract against the appellant. The grounds of objection were that: (a) the notice of appeal was not compliant with form 8 of the Supreme Court Rules;  (b) many grounds of appeal involve questions of fact for which leave to appeal has not been granted contrary to the Supreme Court Act; s 14(1)(a); many grounds of appeal were vague and misleading and failed to comply with Order 7 rules 9(b) and 10 of the Supreme Court Rules; and (d) some grounds relate to the order of the National Court as to costs only for which leave to appeal has not been granted contrary to the Supreme Court Act, s 14(3)(c). The appellant argued as a preliminary point that the objection to competency was itself incompetent as the amended notice of objection was filed outside the time permitted by the Supreme Court Rules, the respondent did not get leave of Court to file an amended notice of objection and it was not supported by affidavit.

Held:

(1)	The appellant’s objection to competency of the objection failed as, though the amended notice of objection to competency was filed late and without the leave of the Court, the respondent was raising an objection that could be made at any time and ample notice of it was given to the appellant, there was no abuse of process and no requirement to file a supporting affidavit. The form of the notice of appeal was substantially compliant with form 8 of the Rules and the alleged defect in form was trivial. 

(2)	An objection to competency must demonstrate that all grounds of appeal are invalid. If one ground of appeal is valid, the appeal is competent and the objection fails. 

(3)	An examination of ground of appeal 3.1.3, which was challenged on the grounds that it was raising questions of fact without leave, and vague and misleading revealed that it is raising questions of mixed fact and law, which does not require leave and that it makes grammatical and legal sense and meets the requirements of the Rules. No good reasons were provided for regarding this ground of appeal as invalid. It is deemed to be valid.

(4)	Therefore the appeal was competent and the objection to competency was refused, with costs. 

Cases Cited

The following cases are cited in the judgment:

Amet v Yama [2010] 2 PNGLR 87
Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205
Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262
Frontier Holdings Ltd v Lohoro (2022) SC2234
Haiveta v Wingti (No 2) [1994] PNGLR 189
Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322
Jay LW Contractors Ltd v Covec PNG Ltd (2022) N9598
Jay LW Contractors Ltd v Covec PNG Ltd (2022) N9781
Komkaeli Holdings Ltd v Wamp (2022) SC2322
Lama v NDB Investments Ltd (2015) SC1423
Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962
Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201
Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185
Yama v Singirok (2020) SC1982

Counsel
R J Lains, for the Appellant
E Parua & G Pogla, for the Respondent

28th November 2023

1.     BY THE COURT: The respondent objects, by an amended notice of objection to competency filed on 13 September 2023, to the competency of the appeal, SCA 127 of 2022. 

2.     The appeal is against the final order of the National Court (per Linge AJ)  of 19 July 2022 in WS No 1339 of 2017 (Jay LW Contractors Ltd v Covec PNG Ltd (2022) N9781). It was an assessment of damages in an action in which the appellant as plaintiff proved liability in breach of contract against the respondent and the respondent as cross-claimant proved liability in breach of contract against the appellant. The net effect of the order was that the appellant was awarded approximately K600,000.00. The appellant is aggrieved by the assessment of damages which it claims should have resulted in an award of a much larger amount. It lodged its notice of appeal containing approximately 34 grounds of appeal on 25 August 2022.

3.     The grounds of the respondent’s objection to competency of the appeal are that:

(a)	the notice of appeal is not compliant with form 8 of the Supreme Court Rules;  

(b)	many grounds of appeal (which are particularised in the notice of objection) involve questions of fact for which leave to appeal has not been granted contrary to the Supreme Court Act, s 14(1)(c); 

(c)	many grounds of appeal (which are particularised in the notice of objection) are vague and misleading and fail to comply with Order 7 rules 9(b) and 10 of the Supreme Court Rules; and 

(d)	some grounds (which are particularised in the notice of objection) relate to the order of the National Court as to costs only for which leave to appeal has not been granted contrary to the Supreme Court Act, s 14(3)(c). 

PRELIMINARY POINT 

4.    The appellant argues as preliminary point that the objection to competency is itself incompetent as the amended notice of objection was filed outside the time permitted by the Supreme Court Rules, the respondent did not get leave of Court to file an amended notice of objection and it was not supported by affidavit.

5.    We reject these arguments. An objection to competency can be made at any time even after the time stipulated by the Rules of Court if it is not a frivolous objection and reasonable notice has been given to the appellant (Amet v Yama [2010] 2 PNGLR 87). 

6.    Leave of the Court is not required for amendment of a notice of objection to competency. Order 7 rule 16 of the Supreme Court Rules allows any party to file affidavits in connection with an objection to competency. However it is not necessary for any party including the objecting party to file an affidavit. 

7.      It can be an abuse of process to make an objection to competency if the same sort of objection has been made previously in the same proceedings (as in Frontier Holdings Ltd v Lohoro (2022) SC2234) or if it is made without notice and without obvious merit (as in Yama v Singirok (2020) SC1982). In the present case the grounds of objection have not been determined previously and ample notice of the respondent’s objection has been given. There is no abuse of process. We will deal with the objection on its merits. 

GENERAL PRINCIPLES 

8.     As explained in Komkaeli Holdings Ltd v Wamp (2022) SC2322, these general principles apply in determining an objection to competency:

•	A ground of appeal that raises a question of fact only, as distinct from mixed fact and law, is only valid if leave of the Court has been granted (Supreme Court Act, s 14(1)(c)) (Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262, Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185, Haiveta v Wingti (No 2) [1994] PNGLR 189). 

•	Order 7 rules 9(c) and 10 of the Supreme Court Rules impose three requirements for a ground of appeal: 

(a) 	the ground must be stated briefly, but specifically (ie the ground must make grammatical and legal sense and be intelligible); 

(b) 	if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence; and

(c) 	if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law (Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322, Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962, Lama v NDB Investments Ltd (2015) SC1423).

•	An objection to competency must demonstrate that all grounds of appeal are invalid. If one ground of appeal is identified as valid, the appeal is competent and the objection fails (Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205, Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201).

9.     The last of the above principles is critical. It means that in the present case the objecting party, the respondent, must demonstrate that each of the 34 grounds of appeal is invalid in that it fails to invoke the jurisdiction of the Supreme Court. The corollary is that the opposing party, the appellant, only needs to show that one of its grounds of appeal is valid, and the objection to competency will be repelled. 

GROUNDS OF OBJECTION TO COMPETENCY

10.    The first ground of objection is that the form of the notice of appeal is non-compliant with the Supreme Court Rules. It is argued that under Order 7 rules 7 and 8(e) the appeal was to be instituted by a notice of appeal in accordance with form 8 but this notice of appeal is defective as, though it looks like a notice of appeal the signature of the appellant’s lawyer is placed above the date of the document, not below the date as required by form 8. 

11.     The appellant’s lawyer Mr Lains concedes that his signature is not placed below the date, but above it, however he does not concede that this makes the notice of appeal defective or that the appeal is rendered incompetent because of the incorrect placing of his signature and the date in the notice of appeal. 

12.     We agree with Mr Lains. The notice of appeal is very substantially in accordance with form 8. The departure of the notice of appeal from form 8 is immaterial and insignificant and causes no prejudice or inconvenience to the respondent or to the Court. This is a trivial ground of objection, which is refused.

13.     The next ground of objection is that there are 15 grounds of appeal that raise issues of fact only and that the appellant has neither sought nor been granted leave to argue them, so these grounds of appeal should be dismissed.

14.     One of the grounds of appeal alleged to raise issues of fact only is ground 3.1.3, which states:

The learned primary judge erred in law and in mixed fact in reaching at his conclusion to order the appellant to resubmit its progress claims to the respondent for certification and settlement when:

(a)	both parties have agreed to certain facts that would have assisted the court to make [an] informed decision as per the agreed and disputed facts and legal issues for trial filed on 15 September 2020;

(b)	both parties have exhausted that option (of submitting claim, certifying and settlement);

(c)	parties have invited/asked the court to decide on the amount to be awarded based on facts and evidence presented before it. 

15.    We apprehend the argument being advanced in ground 3.1.3 is that the trial judge erred by ordering the appellant to resubmit its progress claim to the respondent for certification and settlement when all questions of liability had been determined in the prior judgment of the trial judge on liability (Jay LW Contractors Ltd v Covec PNG Ltd (2022) N9598). It is also argued that the facts had been settled by the statement of agreed and disputed facts so the option of submitting and certifying the claims had been exhausted and that the Court had no jurisdiction to revisit its judgment on liability. 

16.     Such arguments are clearly raising questions of law. Though there may be some questions of fact (eg did the parties sign and file a statement of agreed and disputed facts?), most raise questions of law. An appellant does not under s 14(1) of the Supreme Court Act require leave of the Court to include in a notice of appeal grounds of appeal that raise questions of law only or questions of mixed fact and law. We find that ground 3.1.3 entails questions of mixed fact and law. This means that leave to argue it was not required. 

17.     Ground of appeal 3.1.3 is also objected to by the respondent under the third ground of objection to competency. It is argued that it is vague and misleading and fails to comply with Order 7 rules 9(b) and 10 of the Supreme Court Rules. We do not agree. Ground 3.1.3 makes grammatical and legal sense and is intelligible. It meets the requirements of Order 7 rules 9(c) and 10 of the Supreme Court Rules. 

18.     No other objection is made to ground of appeal 3.1.3, and there are no good reasons for regarding it as invalid. It is deemed to be valid.

19.      This means, applying the critical principle from Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205, that the appeal is competent and the objection to competency fails. It is unnecessary to address any other ground of objection to competency. Costs will follow the event. 

ORDER 

(1)	The objection to competency, made by an amended notice of objection to competency filed on 13 September 2023, is refused.

(2)	The respondent shall pay the appellant’s costs of the objection to competency on a party-party basis, which shall if not agreed be taxed.

(3)	The appeal is referred to the duty judge for directions.

________________________________________________________________
Hardy & Stocks Lawyers: Lawyers for the Appellant 
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Respondent