supreme court of justice

boyepe pere

v

emmanuel ningi

waigani: los, kandakasi & mogish jj

10 April and 30 June 2003

APPEAL - PRACTICE & PROCEDURE – Application for leave to appeal – Leave sought in a case where leave is not required – Objection as to competency of application for leave raised on the basis that leave is not required – Objection dismissed as having no merit – It is good practice for a party to seek leave when in doubt as to whether leave is required or not – Where there is no issue on a party's right to appeal as of right is taken, that party should be allowed to pursue his appeal – s 14 of the Supreme Court Act.

STATUTORY INTERPRETATION – Requirement for leave to appeal under s 14 of the Supreme Court Act – The purpose for requiring leave is to enable and to ensure only meritorious cases go to the Supreme Court on Appeal – Where the Act or any other legislation vests a right of appeal as of right in a party, it is not against the purpose of the legislation to allow a party to proceed with his appeal where leave is inadvertently or deliberately sought in circumstances where it is difficult to tell whether leave is required and need to be obtained before appealing – s 14 Supreme Court Act. 

Facts

The respondent objected to the competency of the appellant's application for leave to appeal on the ground that leave is not required by reason of s 14 of the Supreme Court Act.

Held

1.	The purpose of requiring leave to appeal under section 14 of the Supreme Court Act is to enable and ensure that only meritorious cases go to the Supreme Court on Appeal;

2.	where the Act or any legislation vests a right of appeal "as of right", it is not against the purposes of the legislation to allow a party to proceed with his appeal where leave is inadvertently or deliberately sought, in circumstances where it is difficult to tell whether leave is required to be obtained.

Papua New Guinea cases cited

Henzy Yakham & Anor v Meriam & Meriam (1997) unreported SC533.
Imambu Alo v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 1.
Lawrence Bokele v The Police Commissioner and The State (05/04/02) unreported SC682. 
Lawrence Bokele v The Police Commissioner and The State (22/06/01) unreported N2105.
Steven Pokawin and Others v The State (10/05/95) unreported SC515.
The Right Honourable Sir Julius Chan v The Ombudsman Commission of Papua New Guinea (25/06/99) unreported SC607.

Counsel
P Korowi, for the respondent.
P Parkop, for the appellant.

30 June 2003

By the court. The respondent objects to the competency of the appellant's application for leave to appeal. Three grounds have been pleaded in the notice of objection. The first two state that leave is not required by reason of s 14 (3)(b)(iii) and s 14 (1) and (b) Supreme Court Act. The third is a claim that grounds 1 and 2 in the application for leave to appeal are frivolous and vexatious in terms of s 11 of the Supreme Court Act. This ground was however, abandoned at the outset of the hearing of the objection, leaving only the first two grounds to be argued and determined. 

Hence the hearing was only in respect of the first two grounds. After having heard the parties' arguments, we reserved a ruling. This is the ruling of the Court.

Arguments of the parties

The respondent argues that, although the judgement, which gives rise to this appeal, is an interlocutory one, it finally determined the rights as between the parties. This brings into operation s 14 (3) (b)(iii) Supreme Court Act, which gives the appellant a right to appeal as of right and not with leave of the Court. The argument is thus that, it follows therefore that, the application for leave to appeal is incompetent. 

As for the objection based on s 14(1) (b) of the Supreme Court Act, the respondent argues that the grounds of the appeal raise questions of mixed fact and law. By reason of that, the appellant does not require leave of this Court to appeal. But since the appellant has sought leave of the Court, the process is incompetent. Therefore, it argues that the application and hence the appellant's wish to appeal should be struck down as being incompetent.

The only authorities relied upon by the respondent in support of his arguments, apart from s 14 (3) (b)(iii) and 14 (1)(b) of the Supreme Court Act, is this Court's judgement in Henzy Yakham & Anor -v- Meriam & Meriam (27/11/97) SC 533. This authority requires leave to be separately sought and received first if an appeal lies to this Court from the National Court with leave of the Court. A failure to do so renders an appeal incompetent if lodged without first obtaining leave of this Court.

The appellant welcomes the suggestion that he does not require leave of this Court to Appeal. But it argues that, this does not render the process it has adopted incompetent. Instead it means that, leave is not contested and as such, he should be granted leave to appeal. He also argues that if the Court is of the view that, the procedure adopted is incompetent, this Court has power under s 155 (4) of the Constitution to allow him to proceed with his appeal. This he so argues on the basis that he is already in Court within the required deadline and would enable him to avoid losing his right of appeal after having exercise that right on the premise that leave was required. Now that it is put beyond any contest that leave is not required for any of the grounds proposed for his appeal, his argument is that he should be allowed to proceed with his appeal.
In so arguing, the appellant says the Henzy Yakham & Anor v Meriam & Meriam case is correct as to what it says but does not apply to the present case. He argues that the application for leave has been filed to comply with the requirement for leave to be first sought before appealing.

Issue

These arguments present one main issue for us to determine. The issue is, whether the appellant's application for leave to appeal is incompetent by reason of the appellant seeking leave to appeal when leave is not required by reason of ss 14 (3) (b)(iii) and 14 (1) b) of the Supreme Court Act?

The law and the present case

A large number of appeals have been struck down on grounds of incompetence. This has been mainly on grounds of leave not being sought for appeal against an interlocutory judgement, or an appeal on a pure question of fact without first obtaining or seeking leave of this Court. An example of a judgement falling under the first category is the five men judgement of this Court in Steven Pokawin and Others v The State (10/05/95) SC515, per Amet CJ, Kapi DCJ, Woods, Los and Hinchliffe JJ. The case of Imambu Alo v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 1, is an example of the latter.

The objection in this case is not based on any of these two fronts. counsel for the respondent, Mr. Korowi's argument is that, s 14 of the Supreme Courts Act requires in mandatory terms, leave to be sought in cases where leave is required. The converse of that, in his argument is that, no leave should be sought where it is required. Following on from that, he argues that, if an appellant seeks leave, that process is strictly not in accordance with s 14 of the Supreme Courts Act and it renders the process incompetent.

Mr Korowi cited no authority in support of his arguments. He was also not able to answer in any satisfactory manner the following questions that were specifically raised and put to him:

1.	What is the purpose of the requirement for leave to appeal in cases where leave is required?

2.	In the absence of any argument against leave been granted why should the appellant be prevented from exercising his right of appeal?

What Mr. Korowi is saying can be illustrated in this way. "A" might be entitled be at a particular place say an office without seeking permission from anybody. Nevertheless, he seeks the permission of say his superior, "B" before entering his office and occupying it may be because "A" is in doubt. According to Mr. Korowi's argument, the fact that permission has been sought by "A" renders both the seeking of the permission and any subsequent entering of his office and occupying it by "A" would be invalid. 

From a logical and common sense perspective, Mr. Korowi's argument is illogical and makes no sense. Even if it was logical and with some common sense, the question necessarily arises, did Parliament intend such a consequence to follow? This requires an examination of what is the intent behind the requirement for leave to appeal in cases where leave is required?

We note a case, which has recently dealt with the question, is the Supreme Court judgement in The Right Honourable Sir Julius Chan vThe Ombudsman Commission of Papua New Guinea (25/06/99) SC607. In that case, the Court, per Kapi DCJ, correctly noted that as being analogous to the requirement for leave for judicial review in these terms:

"The purpose for requiring leave in an application for judicial review is explained by Lord Diplock in R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] 2 WLR 722 at 739:

'Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative errors, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative actions while proceedings for judicial review of it were actually pending even though misconceived.'

Lord Scarman said at page 749:

'The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks, and other mischief-makers.'

These passages have been approved by this Court (see Olasco Niugini v Kaputin [1986] PNGLR 244 at 245; Ila Geno & Others v PNG [1993] PNGLR 22 at 24).

In England, the House of Lords has considered the question of leave to appeal against a decision of an Arbitrator to the High Court under the Arbitration Act. In Pioneer Shipping Ltd & Others v BTP Tioxide Ltd (1982) AC 724 the House of Lords discussed the intention of the Parliament with regard to leave to appeal to the High Court. The idea of leave was to preserve the finality of decision of arbitrators; that an appeal should be allowed only on leave. This decision was followed in Antaios Compania Navipra S.A. v Salen Rederiena AB (1985) AC 191. It is clear from these decisions that the requirement for leave is a process of filtering cases to prevent many cases going to the higher tribunal without any merit.

I have no doubt that that the requirement for leave to appeal under our Act has the same purpose."

What this means in short is that, the requirement for leave to appeal under s 14 of the Supreme Court Act is to ensure only meritorious cases go to the Supreme Court on appeal particularly in a cases where leave is required. Does the same apply in a case where a party is granted a right of appeal as of right, but leave is sought any way? We are of the view that, the same does not apply. Where a person is granted a right of appeal by the Supreme Court Act or any other legislation or where there is no contest on an application for leave to appeal to the Supreme Court, the question of whether or not leave should be granted is not an issue. This is so though with one qualification in cases where the parties are agreed that leave should be granted. In such a case, the agreement of the parties is not binding on the Court. The Court must still consider the issue and decide upon its merits. This concept was initially developed by the National Court in Lawrence Bokele v The Police Commissioner and The State (22/06/01) N2105. Later the Supreme Court in Lawrence Bokele v The Police Commissioner and The State (05/04/02) SC682 affirmed that decision. We consider the principle sound and correct and hereby endorse it for the reasons the National Court gave, which is in these terms:

"… in my view, leave cannot and should not be granted readily because there is no objection or there is consent by the defendants as in this case. Instead, the court has the right and power to consider the application fully. If the materials disclose a prima facie or arguable case for judicial review, only then should the court grant leave. Indeed, I note that, all applications for leave for judicial review are made ex parte by operation of the rules of the Court and the long and well established relevant practice. As a result of that, usually the defendants do not participate at the hearing of an application for leave. That does not result in a grant of leave as a matter of course. Only if a case for leave to be granted is made out in such an ex parte process, leaves are granted. Given these, I am of the view that, even if parties consent to a grant of leave for judicial review, the court still has the ultimate say as to whether or not leave should be granted in the exercise of its discretionary power to only allow meritorious cases to proceed to judicial review. The question of whether or not leave should be granted is determinable on the basis of the material produced and placed before the court."

The decision

It should reasonably follow from this that, where a person has a right of appeal but seeks leave, he should be allowed to proceed with his appeal. We consider this important because in some cases there may be instances in which it might not be clear as to whether an appeal lies as of right or with leave. In such a case, it would be advisable to seek leave in order to avoid the risk of an appeal being found incompetent for leave not being first sought and obtained: Henzy Yakham & Anor v Meriam & Meriam case. In other cases, an appellant may inadvertently seek leave when it is strictly not required. 

In either of these cases the application for leave must be considered on its merits. If the Court is satisfied that there is merit in the proposed grounds of appeal or that the appellant should have appealed as of right, the appellant should be granted leave or allowed to proceed to lodge his appeal. After all, the application does no harm or cause any prejudice to the other side. The only disadvantage any such application could cause to the respondent is costs. That can easily be compensated for by an order for costs. On the other hand, if an appellant is shut out purely on account of seeking leave instead of appealing right away, he might be left to suffer under the judgement he seeks to appeal against. The judgement the appellant wants to appeal against might be wrong in law or in fact or both. Unless that is corrected on appeal, it may continue to represent an error of judgement at the expense or loss of the party seeking to appeal.

In the present case, there is no contest that the judgement of the National Court the subject of this appeal, though interlocutory in nature, it finally determined the rights as between the parties. That being the case, s 14 (3) (iii) of the Supreme Court Act vested in the appellant a right of appeal as of right if he wished. Similarly, there is no contest that the grounds on which the appellant wishes to appeal involved question of mixed fact and law. This entitles the appellant to appeal against the judgement as of right under s 14 (1)(b) of the Supreme Court Act. There is no argument against the merits of any of the proposed grounds of appeal.

Given the above, it is clear to us that it was not necessary for the appellant to seek leave to appeal. He should have instead lodged an appeal without seeking leave. This in our view does not render the application incompetent for the reasons already given. Instead it shows that the appellant has sought this Court's approval to pursue his wish to appeal against the judgement when there is no need for it. The appellant is entitled to be in this Court by way of a direct appeal. He has already started the appeal process and he is already in Court. The objection to the competency of the process that has commenced is not only against any logic and common sense but has no legal merit.

In these circumstances, we do not consider it fair and reasonable that the application for leave should be declared incompetent, and therefore put an end to the appellant's right of appeal, especially when the appeal period has now expired. He should rather be given leave to exercise his right of appeal. We consider there is ample authority including the provisions of s155 (4) of the Constitution, in this Court in the interest of doing justice on the merits of the case, to make such orders as necessary in the interest of doing justice. Accordingly, we would order that leave be granted to the appellant to appeal against the National Court judgement, the subject of this judgement, rather than declaring the process that he has commenced incompetent.

Costs

One final matter which we must now turn to is the issue of costs. We are of the view that, if the appellant exercised more care and attention, he could have lodged an appeal right away without seeking leave. Instead he rushed to filing his application for leave to appeal. This has caused the respondent to object to its competency. But the objection was unnecessarily taken. The parties could have easily agreed to allow the appellant to proceed with its appeal. That could have resulted in a consent order, thereby minimizing the costs that might have been thrown away in allowing the matter to be advanced up to the hearing before us. 

In these circumstances, we are of the view that both parties have not taken a proactive role in getting to the merits of the case with a view to avoiding unnecessary costs. The emphasis is now on the need for parties to take a proactive role in the pursuance or the defence of any action before the Courts, something which the parties have clearly failed to adhere to in this case. We are therefore of the view that each party should be ordered to bear their own costs to date.

Summary

In summary therefore this Court finds and orders as follows:

1.	Finds that the application for leave to appeal is not incompetent;

2.	Finds that there is no issue between the parties that the appellant has a right to appeal as of right on the merits of the case;

3.	Leave is therefore granted to the appellant to lodge his appeal within 21 days from today on the grounds disclosed in his application for leave to appeal; and

4.	Each party shall pay their own costs.

Lawyers for the objectioner/respondent: Paul Paraka Lawyers.
Lawyers for the respondent/appellant: Powes Parkop Lawyers.