Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Sike v Sawin [2020] PGSC 138; SC2054 (10 November 2020)

SC2054

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 140 OF 2019

BETWEEN:

STEVEN SIKE
Applicant

AND:
JEROME SAWIN
in his capacity as Legal Officer, Education Department
First Respondent

AND:
JOHN TEKLAU KAUPA
as Acting Principal of Simbu Teachers College
Second Respondent

AND:
BARAN SORI
in his capacity as Chairman of Teaching Services Commission
Third Respondent

AND:
DR. UKE KOMBRA
in his capacity as Secretary for Education Department and Chairman of the National Education Board
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Hartshorn J,
2020: 15^th October, 10^th November

SUPREME COURT - practice and procedure - application for leave to appeal

Cases Cited:
Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185
Oberia v. Charlie (2005) SC801
Kond v. National Development Bank Ltd (2015) SC1432

Counsel:

Mr. J. Napu, for the Applicant
Ms. A. Nasu, for the Respondents

10^th November, 2020

1. HARTSHORN J: This is a decision on a contested application for leave to appeal a decision of the National Court which reviewed and assessed the applicant’s taxed costs.

Background

2. The applicant was awarded costs in the National Court following a trial in a judicial review proceeding. The applicant’s costs were taxed and a certificate of taxation delivered in the sum of K244,355.00. Upon application by the respondents, those tax costs were reviewed. On 23^rd August 2019 the National Court reviewed and assessed the appellant’s tax costs in the sum of K82,239.00 (decision appealed).

3. The applicant seeks leave to appeal the decision appealed pursuant to s. 14(3)(c) Supreme Court Act.

Leave to appeal

4. In Oberia v. Charlie (2005) SC801, Lay J., after a comprehensive review of the authorities, listed the following tests that are to be applied to the facts of each application for leave to appeal:

a) Is there an arguable or prime facie case or has it been demonstrated that the trial judge was wrong?

b) Does the appellant have other recourse in the court below?

c) Was the ruling within the discretion of the court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?

d) Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?

e) Will substantial injustice be caused by allowing the decision to stand?

f) Has cause been shown that the trial process should be interrupted by an appeal?

5. As this is an application for leave to appeal an order of the National Court as to costs only, the tests in (d) and (f) above are not relevant in this instance.

Consideration

6. At the hearing of the decision appealed the applicant raised a number of competency issues which, the applicant alleges, the primary judge disregarded or refused to accept. These issues form the basis of the grounds to be relied upon by the applicant if leave to appeal is granted.

Arguable or prime facie case

7. I consider whether the applicant has an arguable or prime facie case in regard to the issues which he has raised.

8. As to whether the primary judge erred in finding that the naming by the respondents of the parties as ‘petitioners’ and ‘respondents’ instead of ‘plaintiffs’ and ‘defendants’, although contrary to Order 4 Rule 24 National Court Rules was a trivial matter and of no significance at all, notwithstanding that Order 4 Rule 24 uses the word “shall” in its requirement of the naming of the parties, a breach of that rule does not deprive the Court of the jurisdiction to consider the matter: Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185. I am not satisfied that the applicant has an arguable case in this regard.

9. As to whether the primary judge erred in her consideration of the objection concerning the supporting affidavit not being filed with the respondent’s notice of motion to review the taxation, Order 22 Rule 60(2) National Court Rules stipulates that an application for review of the taxing officer’s decision shall be made within 14 days. It does not refer to an affidavit. As to the requirement in Order 4 Rule 44 to which reference is made, it confers a discretion upon the Court. To my mind, this is indicative that the word “shall” in Order 4 Rule 44 should be interpreted as being directory and not mandatory. I refer to Kond v. National Development Bank Ltd (2015) SC1432 in this regard. A breach of that rule does not deprive the Court of the jurisdiction to consider the matter: Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (supra). I am not satisfied that the applicant has an arguable case in this regard.

10. In regard to an incorrect “title” being used on the application to review, as submitted by the respondents, this is a new issue not raised by the appellant before the primary judge and therefore should not be raised in this forum.

11. As to the contention that the primary judge erred in her consideration of the applicants “first person” argument, this argument is based on the premise that, “An affidavit shall be made in the first person” means that an affidavit must only be made by an individual or singular person. “First person” however, does not mean singular or one person. The Shorter Oxford English Dictionary third edition defines “We” as amongst others, “The pronoun of the first person plural nominative.” As the primary judge noted, “We say” is simply the plural form of the first person. The primary judge did not fall into error in her consideration of this issue. I am not satisfied that the applicant has an arguable case in this regard.

12. As to whether the primary judge erred in finding that the requirement to deliver objections in writing to the taxing officer under Order 22 Rule 60(3) National Court Rules is a courtesy requirement, Order 22 Rule 60(3) is derived from the former Rules of the Supreme Court of England, O62 rr33. Under O62 rr33 a review of a taxing officer’s decision was carried out by the taxing officer who conducted the taxation. It was a mandatory requirement therefore, that an applicant for review must at the time of applying, deliver to the taxing officer, objections in writing. In the context of Order 22 Rule 60(1) National Court Rules, which provides that a review of a taxation decision is made to a Judge, the provision that objections in writing must be delivered to the taxing officer, who does not conduct the review - unlike in England, only serves the purpose of notifying the taxing officer that an objection to his decision has been made. I am not satisfied that it may be successfully argued that the primary judge fell into error in her consideration of this point. Further, I am not satisfied that it may be argued that the primary judge fell into error in her consideration of whether the objections were sufficiently particularized.

13. In regard to the argument concerning the primary judge’s reference to Order 22 Rule 61(3), this is clearly a typographical error. From the wording of [16] of the primary judge’s decision, the primary judge is referring to Order 22 Rule 60(3). The said wording and reasoning of the primary judge does not give rise to an argument that she fell into error on this point apart from the typographical error.

14. In regard to the argument concerning the primary judge’s comments concerning the experience of counsel and whether there was an indication of an apprehension of bias, I do not find that the applicant, or indeed counsel, have an arguable case on this point.

15. As to whether a leave application was required, Order 22 Rule 60 does not make provision for leave. This argument is rejected as it has no merit.

16. Consequently, for the above reasons, I am not satisfied that it has been demonstrated that the applicant has an arguable or prime facie case that the primary judge was wrong.

Other considerations

17. I am of the view that the rulings of the primary judge about which complaint is made, are within the discretion of the Court and that it has not been shown that the primary judge’s exercise of discretion was manifestly unreasonable, or exercised on a wrong principle or a mistake of fact. Further, I am not satisfied that it has been shown that substantial injustice will be caused by allowing the decision appealed to stand.

18. Consequently, the application for leave to appeal should be dismissed.

Orders

19. The Court orders that:

a) The application for leave to appeal filed 18^th November 2019 is dismissed;

b) The applicant shall pay the respondents’ costs of and incidental to the said application.
__________________________________________________________________
Napu & Company Lawyers: Lawyers for the Applicant
Office of the Solicitor General: Lawyers for the Respondents