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Minol v Salika [2020] PGSC 109; SC2015 (21 September 2020)

SC2015

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 5 OF 2020

BETWEEN:
PWAPEI MINOL
Applicant

AND:
GLORIA SALIKA
Respondent

Waigani: Hartshorn J,
2020: 18^th & 21^st September

SUPREME COURT APPEAL – practice and procedure - Application for leave to amend an application for leave to appeal -in the absence of a specific provision in the Supreme Court Act and Rules the applicant relies on Order 7 Rule 25 Supreme Court Rules to correct the error by lodging for filing a supplementary application for leave to appeal - respondent argues application is incompetent as an incorrect provision is relied upon and that Order 7 Rules 25 and 26 Supreme Court Rules apply to a notice of appeal and not to an application for leave to appeal – applicant has not made application under Order 11 rule 11 SCR which is the appropriate rule – application dismissed

Counsel

Mr. A. Mana, for the Applicant
Ms. G. Salika, the Respondent, in person

21^st September, 2020

1. HARTSHORN J: This is a decision on a contested application for leave to amend the application for leave to appeal.

Background

2. The applicant filed an application for leave to appeal on 17^th January 2020. The applicant seeks leave to appeal against certain factual findings of the National Court contained in its judgment of 5^th December 2019 (Decision appealed). In the Decision appealed, the National Court upheld a Family (District) Court ruling which awarded custody of the children of the former marriage of the applicant and the respondent to the respondent, with reasonable access rights granted to the applicant. The National Court also made relevant orders for maintenance.

This application

3. The applicant applies for a direction or orders pursuant to s. 185 Constitution, s.5(1)(a) Supreme Court Act, Order 2 Rules 1(h) and 2(a), and Order 11 Rule 9 Supreme Court Rules, that the applicant be granted leave to amend the application for leave to appeal filed on 17^th January 2020 by filing a supplementary application for leave to appeal in the form of the document filed on 14^th September 2020.

4. The applicant’s grounds for seeking the relief are that: he filed an application for leave to appeal on 17^th January 2020; the application for leave to appeal contains an error as to its jurisdictional basis which was pointed out to the applicant by the respondent on 21^st July 2020; in the absence of a specific provision in the Supreme Court Act and Rules the applicant relied on Order 7 Rule 25 Supreme Court Rules to correct the error by lodging for filing a supplementary application for leave to appeal; it is now necessary to apply for an ad hoc direction to correct the error in the application for leave to appeal by the filing of a supplementary application; the proposed amendment does not add any new grounds and only seeks to enliven the correct jurisdictional basis of the court.

5. The respondent submits that this application is incompetent as an incorrect provision is relied upon. Further, Order 7 Rules 25 and 26 Supreme Court Rules apply to a notice of appeal and not to an application for leave to appeal.

Consideration

6. In the course of submissions made on behalf of the applicant, emphasis was placed upon the Supreme Court Act and Rules not providing a specific provision for the amendment of an application for leave to appeal. Reference was also made to Order 11 Rule 11 Supreme Court Rules which is:

“11. The Court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions.”

7. Notwithstanding that Rule 11 does not specifically refer to the amendment of an application for leave to appeal, its wording is sufficiently wide to encompass an application for leave to appeal by use of the word ‘proceedings’. Further, Order 1 Rule 11 Supreme Court Rules provides that the Rules shall apply to all proceedings commenced or instituted on or after the date of commencement of the Rules and Order 11 Rule 1 provides that the rules contained in this part apply to all matters brought under these rules unless in these rules, the contrary intention appears. It has not been brought to the attention of this court that there is in the Rules such a contrary intention. I am satisfied therefore that Order 11 Rule 11 does provide this court with the jurisdiction to amend an application for leave to appeal.

8. The applicant however, has not made application pursuant to Order 11 Rule 11 Supreme Court Rules. He has made application pursuant to s.185 Constitution which applies when there is a lack of procedure provision; s. 5(1)(a) Supreme Court Act which applies when an appeal is pending – not applicable here; Order 2 Rule 1(h) which applies amongst others, when there is no provision in the Rules; Order 2 Rule 2(a) which applies to a proceeding in the original jurisdiction of the Supreme Court – not applicable here; and Order 11 Rule 9 which applies when the manner or form of procedure is not prescribed. These provisions do not apply in this instance as amongst others, although there is not a specific provision that provides for an amendment of an application for leave to appeal, there is a provision which may be relied upon to which I have previously referred - Order 11 Rule 11 Supreme Court Rules.

9. The applicant has not relied upon a provision that enables the jurisdiction of this Court to be enlivened to permit this court to grant the relief that he seeks. Consequently, the application of the applicant should be dismissed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

10. It is ordered that:

a) The application of the applicant filed 14^th September 2020 is dismissed;

2. The applicant shall pay the respondent’s costs of and incidental to the said application.
   

__________________________________________________________________
Corrs Chambers Westgarth: Lawyers for the Applicant
Young & Williams: Lawyers for the Respondent