SC1619

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA No. 119 of 2010
BETWEEN:
JOHN ALMAN 
 Appellant
And:
BANK OF SOUTH PACIFICLIMITED
Respondent
Waigani: Injia, CJ
2015: 30th November& 1st December

SUPREME COURT - Practice & procedure- Application for leave to appeal- Leave to appeal from finding of fact- Form of application- Defects in the form of application- Application made reference to leave sought on questions of fact and appeal to be filed on questions of law and mixed fact and law-Grounds in the application only related to questions of fact- Whether defects vitiates entire application- Divisibility of defects from other parts of the application which are valid-Application valid- Leave to appeal granted.   
Counsel

A Jerewai, for the Appellant
R Bradshaw, for the Respondent

1 December, 2015

1.	    INJIA CJ: This is a contested application for leave to appeal against findings of fact made in the judgement given in National Court proceedings WS No. 288 of 2008. The application is made pursuant to s 14(1) (c) of the Supreme Court Act. 

2.	     There are two matters for consideration and decision before me and those relate to competency and the merits of the application respectively. 

3.	     The applicant brought proceedings in the National Court claiming declaratory orders and damages for breach of banker-client duty of care. The applicant claimed the respondent released his personal account bank statement and other documents to other persons without his authorization which caused injury to his reputation and his private law practice. A trial was conducted and evidence was called. The trial judge found the claim not proven and dismissed the claim. This is an appeal from that decision. The applicant seeks leave to appeal from findings of fact only. 

Competency 

4.	The application for leave contains certain formal defects which attracted several grounds of objection to the competency of the application from the respondent at the hearing, as follows: 

(1)	The application states that leave is not required in respect of some questions and proposed grounds of appeal and leave is required on other grounds stated in the application and as such leave is sought. The respondent argues such practice was disallowed by this Court in Henzy Yakam v Stuart Merriam [1998] PNGLR 555. The principles in that case have been applied in many cases and when applied to this case, the application is rendered incompetent. 

(2)	The questions raised in paragraph C2 of the application relate to conclusions of mixed fact and law which do not require leave. 

(3)	The proposed grounds of appeal contained in paragraph C 3 (l)(a)(l), (2) and (4) of the application are categorized under "errors of law and fact." This indicates the application relates to errors of mixed fact and law for which leave to appeal is not necessary. The application is defective for this reason: Rea Joseph v Manu Sereva (2011) SC 1152, Steven Punangi v Pacific Plantation Timber (2011) SC1153. 

(4)	The form of the application is not strictly in accordance with Form 80 of the Supreme Court Rules 2012 in that it make reference to those ground for which  leave is not required. 

5.       I find that the application does contain those defects. I also consider that those defects go to the form rather than the substance of the application for leave. Insofar as the application relates to findings of fact alone, leave has been correctly sought. The real issue here is whether those formal defects are divisible and separable from the substance of the application for leave to appeal from findings of fact that are properly before this Court. If the formal defects can be easily divided and separated from the substance of the application for leave on issues and proposed grounds of appeal that are permissible and properly before the Court, it cannot be said that the substance of the application is vitiated by the formal defects to the point that the entire application for leave should be dismissed for being incompetent. 

6.	     In the present case, I am satisfied that the formal defects found in this application are easily separable from the substance of the application. Those formal defects are not linked to any of the proposed grounds of appeal found in paragraph C3 of the application. The opening statement in Part A and B of the application states that the appellant proposes to appeal against errors which do not require leave; the questions of mixed fact and law are set out in paragraph C2, and that the description in the various sub-paragraph headings in paragraph C3 that categorize those errors relate to "errors of (mixed) law and fact". They find no support in the actual errors of fact only pleaded in paragraph 3. Therefore, the application insofar as it relates to appeal from findings of fact alone remains unaffected by those defects. Those defects are separable or divisible from the findings of fact for which leave is validly sought. 

7.	     The applicant's approach to resolving the formal defects is sensible and acceptable to the Court. The applicant conceded those errors and abandoned those formal defects and pursued only those parts that relate to findings of fact only. It is standard practice at the hearing of an application for leave to appeal for an applicant to be permitted to abandon parts of an application that he does not wish to pursue. 

8.	     The abandonment of parts of an application for leave does not amount to an amendment to the leave application itself. The respondent's contention that the abandonment of the defective parts of the application amounts to amendment of the application outside of the time limit permitted by s 17 of the Supreme Court Act is without merit. 

9.	     I also consider the applicant's abandonment of the defective parts of the application for leave to appeal accords with this Court's decisions in Rea Joseph v Manu Sereva (2011) SCl152, Steven Punangi v Pacific Plantation Timber (2011) SC1l53. 

10.	     With regard to the application of the principles in Henzy Yakham, the present case can be distinguished from that case on the facts. In Henzy Yakham, the Court was dealing with the practice of filing simultaneous applications for leave to appeal with the prospective notice of appeal. In the case at hand only an application for leave, albeit defective, is before me in accordance with the ruling in Henzy Yakham. 

11.      For the foregoing reasons, I find that the application is competent. 
Merits 

12.	    The main criteria for grant of leave to appeal is whether the proposed grounds of appeal raise an arguable case on appeal. The applicant challenges a number of findings of fact. I deal first with the main challenge first. 

13.      The proposed grounds of appeal challenge the trial judge's refusal to draw reasonable inferences from the primary finding of fact made in favour of the applicant that the applicant's personal bank account statement that was released "came from BSP." There was evidence from the appellant that the account statement was released by someone from the bank to one Moses Burr (the Deputy Governor of East Sepik Province) or his agent, but Mr Burr was not called to give evidence. There was also evidence that a certain freelance journalist had in his possession a copy of the bank statement that came to the applicant's knowledge but the journalist was also not called to give evidence. The trial judge found that there was no evidence of how a 
copy of the personal bank statement came to the possession of those other persons and that there was no evidence of negligence or any actions or conduct of any employee or persons on behalf of BSP that could have led to some other person to obtain a copy of the bank statement. In the circumstances, the trial judge also found that the evidence given by the appellant on these matters was hearsay and inadmissible or unreliable. For this reason the trial judge was not satisfied that the appellant had discharged the onus of proof placed on him to prove his case to the required civil standard. 

14.      The applicant submits the trial judge erred in failing to draw reasonable inferences, from the primary finding that the bank statement came from BSP. It was open to draw the inference that the bank statement was released by BSP without the appellant's authorization and that the bank through its officers were negligent in that respect. Bank statement of this kind was not of the standard type released by the Bank to its customers in the normal course of business, by post. This particular bank statement is 
released by bank staff at the counter on request by customers or other persons authorized by the customer. Mr Burr or his agent was not authorized by the applicant to collect the bank statement and the bank had no authority to release the statement to him. Therefore the bank staff were negligent in releasing the statement to Mr Bull or his agent. 

15.	     The respondent submits there was no direct evidence on those matters. The trial judge could not make far reaching inferences on speculative facts and was correct in refusing to draw such inferences and the conclusions. 

16.	     The applicant submits much of the respondent's arguments go to the substantive issues in the appeal and those should not be entertained at the leave stage. 

17.	     In my view, the question whether reasonable inferences of the kind sought by the appellant that flow from the primary finding made by the trial judge is one that is open to be made and whether such inferences are reasonable, are matters for the full Court to determine after considering the whole of the evidence before the trial judge.  For now, it is fairly arguable that such inferences were open to be made from the primary finding made in favour of the applicant that the statements were released by the respondent. I am also satisfied that an arguable case has been demonstrated that such inferences appear to be reasonable given  the private and confidential nature of the personal banking account transactions conducted by the respondent and the duty of care owed to the bank's customers to ensure customer's bank records are not released to any unauthorized persons. 

18.	     Having reached the conclusion on the main point, it is unnecessary to determine the challenge to other findings of fact. 

19.	     For the foregoing reasons, I grant leave to the appellant. Each party shall bear their own costs of the application, given the findings I have made in favour of the respondent in relation to the defects in the application for leave. 

Orders: 

20.     The Court orders as follows: 

(1) The appellant is granted leave to appeal from the findings of fact set out in paragraph 3 of the Application for Leave. 
(2) The appellant shall file and serve a Notice of Appeal within 21 days. 
(3) Each party shall bear their own costs of the application. 
 ___________________________________________________
 Jerewai Lawyers: Lawyers for the Appellant
Bradshaw Lawyers: Lawyers for the Respondent