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Kapty v Davai [2010] PGSC 59; SC1161 (8 December 2010)

SC1161

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 123 OF 2010

BETWEEN:

WALTER KAPTY – ACTING MANAGING DIRECTOR
First Appellant

AND:

RAPHAEL NAGUAL – DIRECTOR (SOUTHERN BUSINESS UNIT)
Second Appellant

AND:

NATIONAL HOUSING CORPORATION
Third Appellant

AND:

RAYMOND DAVAI
Respondent

Waigani: Hartshorn J.
2010: 20th October,
: 8th December

Objection to Competency

Facts:

This is a ruling on an objection to the competency of an application for leave to appeal against an order of the National Court. The order the subject of the application for leave to appeal, was that the appellant's application for review of a certificate of taxation was granted, the respondents notice of motion seeking various orders including judgment for the certified amount in the certificate of taxation was dismissed and that costs of the two motions are to be paid by the appellants to the respondent on a solicitor client basis. The respondent advanced fourteen (14) grounds of objection.

Held:

1. Ground 1 is rejected as it is made clear in the third paragraph of point 1 of the application for leave that a proposed appeal is against the orders made as to costs on 25th August 2010.
   
2. Ground 2 of the objection is refused as it is not satisfactorily demonstrated that the 3 paragraphs of point 1 do create uncertainty and ambiguity.
   
3. Ground 3 & 4 of the objection is refused as the Order is interlocutory as the effect of it does not finally dispose of the costs issues in the proceeding: Bozson v. Altringham UDC [1903] UKLawRpKQB 44; [1903] 1 KB 547, North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145, Oio Aba v. MVIL (2005) SC779.
   
4. Ground 5 is not pursued
   
5. Ground 6 of the objection is refused as it is not a requirement under Order 7 Rule 2 Supreme Court Rules that the proposed orders to be sought in an appeal be included in an application for leave to appeal.
   
6. Grounds 7 and 11 are refused as the appellants are entitled to make the application that they have and that these grounds of objection are vague and without merit.
   
7. Ground 8 is refused on the basis that this ground concerns the merits of the proposed appeal and is not a proper ground of objection: Turia v. Nelson (supra).
   
8. Grounds 9, 10, 12, 13 and 14 are refused as these are not proper grounds of objection to an application for leave to appeal and are refused.
   

Cases cited:
Papua New Guinea cases

North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145
Gigmai Awal v. Salamo Elema [2000] PNGLR 288
Oio Aba v. MVIL (2005) SC779
Placer (PNG) Ltd v. Anthony Harold Leivers (2007) SC894
Jeffrey Turia v. Gabriel Nelson (2008) SC949

Overseas Cases

Bozson v. Altringham UDC [1903] UKLawRpKQB 44; [1903] 1 KB 547

Counsel:

Mr. M. I. Saka, for the Appellants
Mr. P. Ame, for the Respondent

8th December, 2010

1. HARTSHORN J: This is a ruling on an objection to the competency of an application for leave to appeal against an order of the National Court.

2. The order the subject of the application for leave to appeal, was that the appellant's application for review of a certificate of taxation was granted, the respondents notice of motion seeking various orders including judgment for the certified amount in the certificate of taxation was dismissed and that costs of the two motions are to be paid by the appellants to the respondent on a solicitor client basis (Order).

3. The appellants have filed an application for leave to appeal in respect of the Order. The respondent has filed a notice of objection to the competency of the application for leave to appeal. This is the ruling on that objection.

Grounds of objection

4. The grounds of objection are:

"1. The Application for Leave to Appeal is incompetent in that the Appellants do not show whether the Application for Leave to Appeal is sought to appeal against the whole or part of His Honour Mr. Justice Kandakasi's Orders.

2. The Application for Leave is incompetent in that the three paragraphs under clause 1 of the Application for Leave do not compliment each other and create uncertainty and ambiguity as to what the Appellants are seeking in number 1 of the Application for Leave.

3. The Application for Leave is incompetent in that as the Appellants were granted the Orders sought in the application pursuant to Order 22 Rule 60 of the National Court Rules, the Appellants should seek leave pursuant to Section 14 (3) (c) of Supreme Court Act.

4. Ground 2 of the Application for Leave to Appeal is incompetent in that the Appeal is said to be in an interlocutory judgement when in fact, the proceedings have been save for costs concluded by the Respondent by withdrawing proceedings WS. No. 470 of 2005 on the 16th October 2009 and there is no issue for the National Court to adjudicate on at a later stage.

5. The Application for Leave is incompetent in that the Appellants do not attach a Draft Proposed Notice of Appeal as a matter of set practice in leave applications.

6. The Application for Leave is incompetent in that the Appellants do not show the Proposed Orders they propose to seek in the Appeal.

7. The Appellants has through his lawyers by appearing for Taxation on the 8th of September 2010 at 9.30am, before the Taxation Officer and having sought an adjournment to the 20th September 2010, has submitted to the jurisdiction of the Taxation Officer to have the Respondent Solicitor/Clients costs to be taxed on the 20th September 2010. As such the Application for Leave is incompetent.

8. The Application for Leave is incompetent in that, application for leave does not demonstrate why the Appellants should not be awarded costs on a Solicitor Client basis for the action of Mr. Paul Pera, the In-House Lawyer who accepted the Application for Taxation but did nothing about it as it was on this basis His Honour in his discretion awarded costs against the Appellants on a Solicitor Client costs.

9. The Application for Leave is incompetent in that the Respondent having sought payment from the Department of Finance Secretary the Counsel for the Appellant lacks authority in that the National Housing Corporation Board who agreed to pay the Taxed Costs having authorized Mr. Saka or the Managing Director of the National Housing Corporation to instruct him to act for the State pursuant to Section 7 (1) of the Attorney Generals Act.

10. The Application for Leave is incompetent in that the lawyers for the Appellants have not engaged him in accordance with Section 23 of the National Housing Corporation Act and Section 59 (6) of the Public Finance Management Act.

11. The Application seeking leave to Appeal is incompetent in that irrespective of the Application for Leave and subsequent Orders the costs have to be taxed pursuant to Order 22 Rule 43 of the National Court Rules.

12. The Application for seeking leave to Appeal is incompetent in that it is a personal revenge or under that by Mr. Paul Pera and Philip Moses who were the two members of the Chairman of Disciplinary Appeals Committee that found the Respondent guilty therefore the Respondent had no reasonable cause of action in the appeal.

13. The First Appellant is no longer employed by the Third Appellant nor Second Appellant occupying the position of Director (Southern Business Unit), therefore the Application for Leave is incompetent for want of proper parties.

14. The Application for Leave is incompetent in that it does not conclude the same by stating the time appointed for hearing pursuant to Order 11 Rule 29 of the Supreme Court Rules and further the Application does not state the address of the Supreme Court Registry and the name of the Judge and whether the Transcript are required which are now the standard practice of the Supreme Court."

5. The respondent did not proceed with Ground 5.

6. As to Ground 1, it is rejected as it is made clear in the third paragraph of point 1 of the application for leave that a proposed appeal is against the orders made as to costs on 25th August 2010. That this statement is made in an application for leave to appeal, allows for the conclusion that application for leave to so appeal is being made. This ground of objection is refused.

7. As to Ground 2, I am not satisfied that the 3 paragraphs of point 1 do create uncertainty and ambiguity. This ground of objection is refused.

8. As to Ground 3, the Order is interlocutory as the effect of it does not finally dispose of the costs issues in the proceeding: Bozson v. Altringham UDC [1903] UKLawRpKQB 44; [1903] 1 KB 547, North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145, Oio Aba v. MVIL (2005) SC779. The appellants are required to apply for leave. As this is an appeal against a costs order only, the appellants may apply for leave under s. 14 (3) (c) Supreme Court Act which requires that leave be required from an order of the National Court as to costs only that by law are left to the discretion of the National Court. This is in addition to s. 14 (3) (b) which concerns appeals from interlocutory judgments. This ground of objection is refused.

9. As to Ground 4, as referred to above, the Order is interlocutory as the effect of it does not finally dispose of the costs issues in the proceeding. This ground of objection is refused.

10. As to Ground 6, an application for leave to appeal only has to state the nature of the case, the questions involved and the reason that leave should be given: Gigmai Awal v. Salamo Elema [2000] PNGLR 288, Placer (PNG) Ltd v. Anthony Harold Leivers (2007) SC894 and Jeffrey Turia v. Gabriel Nelson (2008) SC949. It is not a requirement under Order 7 Rule 2 Supreme Court Rules that the proposed orders to be sought in an appeal be included in an application for leave to appeal. This ground of objection is refused.

11. As to Grounds 7 and 11, the appellants are entitled to make the application that they have. These grounds of objection are vague, without merit and are refused.

12. As to Ground 8, this ground concerns the merits of the proposed appeal and is not a proper ground of objection: Turia v. Nelson (supra). This ground of objection is refused.

13. As to Grounds 9 and 10, they concern the relevant authority of the lawyers for the appellants and whether they have or require appropriate authorisation. These are not proper grounds of objection to an application for leave to appeal and are refused.

14. As to Grounds 12, 13 and 14, they either are not proper grounds of objection to an application for leave to appeal or have no merit. They are refused.

Orders
15. The Orders of this Court are:

a) the objection to competency is dismissed.

b) the respondent shall pay the appellants' costs of and incidental to the objection.
___________________________________________________________
Msaka Lawyers: Lawyers for the Appellants
Ame Lawyers: Lawyers for the Respondent