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State v Manorburn Earthmoving Ltd [2008] PGSC 21; SC933 (29 August 2008)

SC933

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 10 OF 2008

BETWEEN:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Appellant

AND:

MANORBURN EARTHMOVING LIMITED
Respondent

Waigani: Kirriwom, Cannings & Yagi JJ
2008: 26th & 29th August

PRACTICE AND PROCEDURE – Supreme Court – objection to competency of appeal – Supreme Court Rules – Order 7 Rules 8(b) and (d) and 35 - Practice Direction 1/94.

Facts:

The Respondent objected to competency of the appeal arguing that the notice of appeal failed to comply with the Supreme Court Rules. The issue was whether the notice of appeal failed to specify the name of the case, name of the judge and name of the inferior court and therefore was incompetent pursuant to Order 7 Rules 8(b) and (d) of the Supreme Court Rules. The Appellant argued that it had complied with the Rules and the Practice Direction of the Supreme Court.

Held:

1. The objection is dismissed.

2. The notice of appeal is in compliance with Order 7 Rules 8(b) and (d) of the Supreme Court Rules and the Supreme Court Practice Direction 1/94.

3. The Respondent to pay the Appellant’s costs.

Cases Cited:
PNG Forest Authority v. Securimax Security Pty Ltd SC717
Waghi Savings and Loans Society v. Bank South Pacific (1980) SC185
The State & Others v. John Talu Tekwei (2006) SC843
Chris Haiveta v. Paias Wingti & Others [1994] PNGLR 189
David Coyle v. Loani Henao [2000] PNGLR 17

Counsels:
Mr. K. Kua with Mr. C. Posman, for the Appellant
Mr. M. Pokia, for the Respondent

29 August, 2008

RULING

1. BY THE COURT: This is a ruling on an objection to competency of an appeal.

2. The appeal arose out of a judgment of the National Court given at Waigani on 25 February 2008.

Notice of Appeal

3. We consider it necessary and important because of the nature of the objection to set out the notice of appeal, however, the grounds and the orders sought in the appeal have been omitted as they are not in issue in the hearing.

"IN THE SUPREME COURT)
OF JUSTICE AT WAIGANI
PAPUA NEW GUINEA

SCA NO. 10 OF 2008

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Appellant

AND:

MANORBURN EARTHMOVING LIMITED
Respondent

NOTICE OF APPEAL

1. The Appellant appeals from the whole of the judgment of Kandakasi J. given on 25 February 2008, at Waigani, National Capital District.

2. THE appeal lies without leave and the grounds of appeal are set out below:

3. GROUNDS

(1) ......................................

(2) ......................................

(3) ......................................

(4) ......................................

(5) ......................................

(6) ......................................

(7) ......................................

(8) ......................................

4. ORDERS SOUGHT:

(1) ......................................

(2) ......................................

(3) ......................................

(4) ......................................

(5) ......................................

DATED the 12 day of March 2008.

FILED the day of March 2008.

BY KERENGA KUA

(Signed)

...........................

POSMAN KUA AISI

Lawyers for the Appellant

FILED BY:

National Court File Number : OS No. 698 of 2006

Name of Judge in National Court : Kandakasi J.

Whether a transcript is required : Yes

APPOINTMENT

The Appeal Book Index will be settled before the Registrar at the Supreme Court at 2.30 pm on the 25th March 2008.

(Signed)

REGISTRAR "

Right to Object to Competency of an Appeal

4. The Respondent in these proceedings has taken issue with, and objected to, the Appellant’s notice of appeal and has accordingly filed a notice of objection to competency of the appeal. The notice of objection to competency was filed pursuant to Order 7 Rule 14 of the Supreme Court Rules, which accords a right to a respondent in the proceedings to challenge the competency of an appeal in the Supreme Court. Order 7 Rule 14 of the Supreme Court Rules is stated in the following terms –

"14. A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal;

(a) file an objection in accordance with form 9,

(b) serve a copy of the objection on the appellant."

Nature of Objection

5. It is significant to observe at the outset, that the Respondent’s objections are primarily in respect to the form of the notice of appeal rather than the substance in respect to the grounds of appeal.

Grounds of Objection

6. The Respondent submits that the notice of appeal is incompetent on the basis that it did not comply with the requirements of Order 7 Rules 8(b) and (d) of the Supreme Court Rules. Rule 8 of Order 7 is stipulated in the following terms –

"8. The notice of appeal shall -

(a) state that the appeal lies without leave or that leave has been granted and or annex the appropriate order to the notice of appeal;

(b) state whether the whole or part only and what part of the judgment is appealed from;

(c) state briefly but specifically the grounds relied upon in support of the appeal;

(d) state what judgment the appellant seeks in lieu of that appealed from;

(e) be in accordance with form 8;

(f) be signed by the appellant or his lawyer; and

(g) be filed in the registry."

Respondent’s Contention

7. It was submitted on behalf of the Respondent that the word "the" before the word "judgment" in sub-rule (b) by necessary implication means that the notice of appeal must specifically state the name of the case appealed from, the reference number or citation of the case and the name of the inferior tribunal or court from which the appeal is made.

8. The Respondent argues that the notice of appeal omitted to specify the file reference, name of the tribunal and the name of the judge in the inferior tribunal.

9. The Respondent further submits the word "that" before the words "appealed from" in sub-rule (d) implies that the notice of appeal must properly identify the judgment of the inferior tribunal or court.

10. The Respondent has also referred the Court to a number of judgments of this Court in support of its argument. These case are PNG Forest Authority v. Securimax Security Pty Ltd SC717; Waghi Savings and Loans Society v. Bank South Pacific (1980) SC185; The State & Others v. John Talu Tekwei (2006) SC843; Chris Haiveta v. Paias Wingti & Others [1994] PNGLR 189 and David Coyle v. Loani Henao [2000] PNGLR 17.

11. These cases relate to the meaning and purpose of the objection under the Supreme Court Rules and as such are not relevant to the central issue of applicable form which in our view is the only contention before this Court for deliberation.

Appellant’s Contention

12. The Appellant, however, submitted that the notice of appeal has complied with the form prescribed by the Supreme Court Rules and therefore the objections by the Respondent are frivolous, vexatious and made in bad faith. Alternatively, it was submitted that there has been substantial compliance with regards to the prescribed form pursuant to Rule 8 of Order 1 of the Supreme Court Rules.

Ruling

13. The Supreme Court Rules prescribes the form of a notice of appeal. Order 7 Rule 8(e) specifically provides that a notice of appeal shall be in accordance with Form 8. Form 8 has been modified by Practice Direction SC 1/94 which was issued on 28 November 1994. The modification in the form pursuant to the Practice Direction is not in dispute. In fact this Practice Direction introduced and incorporated the following information or matters into the prescribed Form 8 –

• National Court File Number;
• Name of Judge in the National Court;
• Whether a transcript is required.
  

14. Having heard the submissions made by Counsels for the Respondent and the Appellant, this Court is satisfied that the notice of appeal filed by the Appellant is in accordance with the Form 8 prescribed by the Supreme Court Rules and the Supreme Court Practice Direction 1/94. In fact the anomaly contended by the Respondent has been cured by the operation of the Practice Direction 1/94.

15. We are satisfied that the notice of appeal complies with the requirements of Order 7, Rule 8 of the Supreme Court Rules. Mr Pokia submitted, based on the format of the notice of appeal, that there were, in fact, two different documents filed by the appellant: the notice of appeal, as such, and the notice of appointment to settle the appeal book index. He submitted that the details of the file reference and the court whose decision was being appeal against are provided in the notice of appointment and not in the notice of appeal; and therefore Order 7, Rules 8(b) and (d) were not complied with.

16. We reject this submission for two reasons. First, the notice of appointment is subscribed to the notice of appeal and therefore is subsumed within the notice of appeal; so whatever is in the notice of appointment is within the notice of appeal. This is permissible under Order 7, Rule 35 of the Supreme Court Rules. Form 8 of the Supreme Court Rules also makes this clear. Secondly, if, despite what we have just said, the notice of appeal and the notice of appointment were to be regarded as two separate documents, the details of the file reference and the name of the court are provided in the notice of appeal, prior to the notice of appointment.

17. All of the objections of the Respondent are without merit and are therefore dismissed with costs awarded to the Appellant. The question of costs is of course a discretionary matter. The Appellant has submitted that the Respondent should pay costs on solicitor-client basis. We do not agree that the objection was sufficiently frivolous or vexatious to warrant such an order for costs. In the circumstances, and in the exercise of the Court’s discretion, we order that the costs be paid on party-party basis.

18. The orders of the Court are that:

1. the objection to competency is dismissed.

2. the Respondent shall pay the Appellant’s costs of and incidental to this hearing on a party-party basis, to be taxed if not agreed.

Posman Kua Aisi Lawyers: Lawyers for the Appellant
Mirupasi Lawyers: Lawyers for the Respondent