SC2348

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 39 OF 2021

BETWEEN:
KEVIN PURUNO
for and on behalf of the Ipulumai
Nombunombu Clan
Appellant

AND:
FRANCIS KARAIE
for and on behalf of the Kumetangigi Clan
First Respondent

AND:
VINCENT LINGE
sitting as the Mendi Provincial Land Magistrate
Second Respondent

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J
2022: 5th & 23rd May

APPEAL - Application for leave to appeal on questions of fact – s. 14(1)(c) Supreme Court Act

Cases Cited:
Papua New Guinean Cases

Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185
Rea Joseph v. Manau Severa (2011) SC1152

Overseas Cases

Kostas v. HIA Insurance Services Pty Ltd (2010) HCA 32

Counsel:

Mr. I David, for the Appellant
Ms. V. Yabone, for the First Respondent
Mr. R. Uware, for the Third Respondent

Oral decision delivered on
23rd May 2022

1. HARTSHORN J: This is a decision on a contested application for leave to appeal a final judgment of the National Court (judgment appealed).

Background

2. The appellant seeks leave to appeal the judgment of the primary judge made on 9th July 2021. The judgment upheld an application for judicial review and quashed a certain decision of the Mendi Provincial Land Court of 17th February 2014. The ground upon which the primary judge upheld the application for judicial review was an apprehension of bias.

3. Notwithstanding that the judgment is a final judgment, the applicant seeks leave on questions of fact pursuant to s. 14(1)(c) Supreme Court Act.

Consideration

4. The appellant contends that the primary judge erred in failing to find, as a matter of fact in five separate specified instances, detailed in the application for leave to appeal.

5. By contending that the primary judge failed to find as a matter of fact in those five instances, the applicant is contending that the primary judge fell into error because there was evidence for the primary judge to have found, as a matter of fact, in the five instances.

6. In Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185, Kapi J as he then was said:

“It has been shown in decided cases that where inferences or conclusions are drawn from these primary facts which cannot reasonably be drawn, then this is an error of law. … I cannot see anything in the circumstances of this country that would render these principles inapplicable. I adopt them as part of the underlying law (Schedule 2.2 of the Constitution).”

7. In Kostas v. HIA Insurance Services Pty Ltd (2010) HCA 32, Hayne, Heyden, Crennan and Kiefel JJ held that: 

“Whether there was no evidence to support a factual finding is a question of law, not a question of fact. A tribunal that decides a question of fact when there is “no evidence” in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law.”

8. By contending that the primary judge failed to find, the appellant is challenging the primary judge’s determination of whether there was evidence to support the factual findings postulated by the appellant. On the above authority, this is a question of law. As it is a finding of law or mixed fact and law that is being questioned, leave to appeal is not required.

9. Consequently, as leave is not required contrary to what is applied for by the appellant, this application for leave to appeal should be dismissed: Rea Joseph v. Manau Severa (2011) SC1152. Given this, it is not necessary to consider the other submissions of counsel.

Orders

10.     It is ordered that:

a)	The application for leave to appeal is dismissed.

b)	The appellant shall pay the costs of the respondents of and incidental to the 	said application for leave to appeal.
__________________________________________________________________
Kalit Legal Consulting: 	Lawyers for the Appellant                      
Greg Manda Lawyers: 	Lawyers for the First Respondent          
Solicitor General:		Lawyers for the Third Respondent