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Kurivo v Air Niugini Ltd [2023] PGSC 98; SC2452 (1 September 2023)

SC2452

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 32 OF 2021

PHILIP KURIVO
Appellant

AND
AIR NUIGINI LIMITED
Respondent

Waigani: Murray, Berrigan and Miviri JJ
2023: 28^th August and 1^st September

SUPREME COURT – PRACTICE AND PROCEDURE – Objection to Competency of appeal – Whether ground of appeal raised questions of fact for which leave was required – Whether ground of appeal met requirements of Supreme Court Rules, Order 7 rule 9(c) and 10.

Cases Cited

Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262
Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185
Haiveta v Wingti (No 2) [1994] PNGLR 189
Thomas Serowa & Anor v Paulus M Dowa & Ors (2023) SC2381
Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322
Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962
Lama v NDB Investments Ltd (2015) SC1423

References Cited

Section 14(1)(c) of the Supreme Court Act
Order 7 Rules 9 and 10 of the Supreme Court Rules

Counsel

Mr J. Napu, for the Appellant
Mr I. Shepherd, for the Respondent

DECISION ON OBJECTION TO COMPETENCY

1^st September 2023

1. BY THE COURT: This is a decision on an objection to the competency of an appeal against the decision of the National Court which dismissed the appellant’s judicial review application to be reinstated to his former position as licenced aircraft engineer with the respondent company, Air Nuigini Limited.
   
2. At the hearing of the objection the appellant was granted leave by consent to withdraw his supplementary notice of appeal filed 23 June 2021 with costs awarded to the respondent.
   
3. The appellant then abandoned all but one of the seven grounds contained in his notice of appeal filed 30 March 2021 conceding that they were incompetent.
   
4. The remaining ground, ground 3.4 states that:
   

The National Court erred in law and fact to give proper weight to the evidence before the court by ill-treating the Plaintiffs claim when it failed initially to take into consideration the fact that the Defendant Company did not contest the substantive industrial award no 13 of 2008 determined by a competent authority having initially fail to submit applications to reject, review and or otherwise seek before another competent tribunal hearing within the Industrial award required time of 14 days for filing objection/review (sic).

5. The respondent contends that the ground alleges an error of fact when it should have been pleaded as an error of law, such that as the respondent did not challenge the industrial award it is assumed to have accepted it and can be bound by its terms when the trial judge found as a question of law that the industrial award could not be enforced. Furthermore, no leave was obtained to appeal the finding of fact pursuant to s 14(1)(c) of the Supreme Court Act. Moreover, the ground is so poorly drafted that it is difficult to understand the intent of the ground and it therefore fails to comply with Order 7 Rule 10 of the Supreme Court Rules.
   
6. The appellant submits that the objection must fail because the ground is expressly stated to be one of mixed law and fact. Furthermore, despite being drafted by a lay person the ground clearly contends that the trial judge erred in finding that the Industrial Arbitration Tribunal’s decision to annul the appellant’s termination was valid, lawful and binding. Finally, the appeal merits consideration according to the principles outlined in Manau v Telikom PNG Ltd (2011) SC1146.
   

CONSIDERATION

7. A ground of appeal that raises a question of fact only, as distinct from mixed fact and law, is only valid if leave of the Court has been granted: s 14(1)(c), Supreme Court Act; Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262; Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185; Haiveta v Wingti (No 2) [1994] PNGLR 189; Thomas Serowa & Anor v Paulus M Dowa & Ors (2023) SC2381.
   
8. Order 7 rules 9(c) and 10 of the Supreme Court Rules impose three requirements for a ground of appeal:
   

(a) the ground must be stated briefly, but specifically, ie the ground must make grammatical and legal sense and be intelligible;

(b) if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence;

(c) if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law: Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322, Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962, Lama v NDB Investments Ltd (2015) SC1423; Thomas Serowa & Anor v Paulus M Dowa & Ors, supra.

9. The question for this Court is not whether ground 3.4 expressly states that it raises an error of law and fact but whether it does so in accordance with the above principles. In our view it does. Whilst inelegant, the argument raised in the ground of appeal – that the primary judge erred in failing to find that the respondent was bound by the Industrial Award in circumstances where it did not reject or challenge the award – is sufficiently clear. No leave was required. Whether or not there is any merit in that argument according to Manau v Telikom PNG Ltd, supra is not a matter for this Court.
   
10. The objection is dismissed.
    
11. We make the following orders.
    

ORDERS

(1) The objection to competency filed by notice of objection to competency on 19 April 2021 is refused.
(2) The respondent shall pay the appellant’s costs of the objection to competency filed on 19 April 2021 on a party-party basis, which shall if not agreed be taxed.

________________________________________________________________
Napu Lawyers: Lawyers for the Appellant
Ashurst PNG Lawyers: Lawyers for the First Respondent