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Nerau v Solomon Taiyo Ltd [1993] PNGLR 395 (29 October 1993)

PNG Law Reports 1993

[1993] PNGLR 395 - Nerau v Solomon Taiyo Ltd 

[1993] PNGLR 395

SC451

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

NERAU

V

SOLOMON TAIYO LTD

Waigani

Amet CJ Woods Hinchliffe JJ

3 August 1993

29 October 1993

APPEAL - Practice and procedure - Leave to appeal from interlocutory judgment on questions of fact.

Facts

The appellant appealed against the dismissal of his application to set aside a default judgment and denial of leave to file a defence to the writ of summons.

Held

1.       The grounds of appeal involved questions of fact so, under the Supreme Court Act, leave is required to appeal.

2.       The Rules of the Supreme Court are quite clear. Order 7 r 2 says that the application should state that appeal lies with leave, that reasons must be given as to why leave should be given, and Form 7 is the application for leave to appeal.

3.       The failure to seek leave means the Notice of Appeal is defective. The appellant has failed to approach the court correctly. If a party omits important steps and fails to comply with the rules, that is the end of the matter.

Cases Cited

Kunangel v The State [1985] PNGLR 144.

Counsel

A MacDonald, for the appellant.

S Kassman, for the respondent.

29 October 1993

AMET CJ WOODS HINCHLIFFE JJ: The appellant appealed against the ruling of Sheehan J in the National Court on 17 June 1993 in WS No 743 'A' of 1992, whereby he dismissed an application to set aside a default judgment entered on 16 November 1992 and refused leave to file a defence to the writ of summons filed on 8 October 1992.

The notice of appeal in paragraph 3 stated that "the appeal lies without leave or in the alternative leave to appeal is sought at the hearing of the matters on the grounds that the decision made on the 17th June 1993 was by way of final order". The grounds of appeal then set out a number of matters.

The respondent has filed a notice of objection to competency. It contends that the grounds of appeal involve questions of both fact and law, and no notice of application for leave to appeal was given in the manner prescribed by the Rules of Court within the time allowed under s 17 of the Supreme Court Act, or at all.

A perusal of the grounds of appeal shows quite clearly that they involve some questions of fact. The first five grounds of appeal relate to the judge's consideration of the action or non-action of the appellant following the signing of the judgment. The actions are purely consideration of facts. The remaining grounds of appeal refer to the status and nature of the relationship of the appellant with a certain company and the judge's understanding of the intention of certain parties, again matters of fact. The whole of the grounds of appeal clearly relate to the judge's assessment of the actions and intentions of the appellant, so, under the Supreme Court Act, leave is required to appeal.

The Rules of the Supreme Court are quite clear and concise on how to appeal to the Supreme Court when appeal is sought involving questions of fact. Order 7 sets out the procedures involved. O 7 r 2 clearly states that the application should state that appeal lies with leave, that reasons must be given as to why leave should be given, and Form 7 is the application for leave to appeal.

There is no provision in the rules for an appellant to apply to appeal in the alternative in the manner done by the appellant here in paragraph 3 of the notice of appeal.

The appellant has submitted that Form 8 in the Supreme Court Rules clearly allows for an appeal to be worded in the alternative.

See the notice of appeal paragraph 3:

"3.      The Appeal lies without leave as in the alternative leave to appeal is sought at the hearing of the matter on the grounds that the decision made on the 17th June 1993 was by way of final Order."

That is a clear misunderstanding of the manner in which Form 8 is set out. Form 8 clearly states in paragraph 2 "where applicable" in brackets and provides separate capitals for the beginning of the alternative styling, depending on what the application is, thus:

"2.      (Where applicable) the appeal lies without leave OR (where applicable) the appeal is brought pursuant to leave granted on (specify order) OR leave to appeal is sought at the hearing as the matters to be raised in that application are in whole and/or in part (whichever is applicable) the substantive matters constituting the grounds of appeal as set out in the grounds numbered (here state)."

The court has ruled quite clearly in Kunangel v The State [1985] PNGLR 144 that a notice of appeal containing grounds of appeal which specify questions of law, questions of mixed law and fact, and questions of fact alone should indicate specifically that leave is being sought. The court noted that the then new Supreme Court Rules would avoid any future confusion over this area of leave to appeal.

The appellant has misunderstood the rules of the court and the form required and has given no good reason why this Court should exercise its overriding discretion.

There is nothing onerous in the rules. They are there to clarify the position for the parties and for the Court. They ensure that matters can be brought before and dealt with by the Supreme Court expeditiously. If the Court feels it is more expeditious to do so, it can agree under O 7 r 3 to hear the application for leave concurrently with the hearing of the substantive appeal. The Supreme Court is established under the Constitution to hear from any party who has a legitimate grievance or claim, and it is entitled to regulate in some manner the way it will open its doors. And, thus, in this type of application, it is entitled to say to a party, there must be good reasons given why the Court should hear the matter and deal with such as a question of leave without going into a fuller, more detailed hearing.

The failure to seek leave means the notice of appeal is defective, the appellant has failed to approach the court correctly. If a party omits important steps and fails to comply with the rules, that is the end of the matter.

We order the notice of appeal be struck out.

Lawyer for appellant: Warner Shand.

Lawyer for respondent: Brian White & Associates.