SC2858
PAPUA NEW GUINEA
SUPREME COURT OF JUSTICE

SCA NO. 96 OF 2019 

WAUWA K LIMITED
Appellant 

v

BANK OF SOUTH PACIFIC LIMITED 
 First Respondent 

AND 
TRAVELLORS INN LIMITED  
Second Respondent 

WAIGANI: YAGI J, WOOD J, CHRISTENSEN J 
23 FEBRUARY, 10 MARCH 2026

APPEAL – Competency of appeal – amendment to notice of appeal – supplementary notice filed outside 40 day period – further supplementary notice filed outside 40 day period – an appeal based on a notice filed outside of the prescribed 40 day time limit without leave of the court is incompetent and an abuse of process –  s 17 Supreme Court Act – O 7 r 25 Supreme Court Rules – the governing law is the statutory provision not the Rules

APPEAL – Civil – practice and procedure – the rule in Browne v Dunn – fraud or negligence by banking institution – cheques payable on demand

The trial judge dismissed a claim for relief contending negligence and fraud by BSP Limited and fraud by the second respondent.   The appellant’s contention at trial was that the first respondent processed a cheque drawn by the managing director and sole signatory of the appellant company’s account with this resulting in the second respondent unjustly obtaining K1.15 million from the appellant.  

The appeal relies on a further supplementary notice of appeal filed outside of a period of 40 days from the decision of a trial.  An issue of competency of the appeal arises.  

Held

Per Yagi J and Wood J: 

1.	The appeal is incompetent. 
2.	An appeal based on a Further Supplementary Notice of Appeal filed outside of the 40 days time limit where no leave is sought is incompetent. 

3.	A notice of appeal, including a supplementary notice of appeal or application for leave to appeal, must be filed within 40 days as required by s. 17 of the Supreme Court Act. 

4.	The governing law is the statutory provision being s. 17 of the Supreme Court Act and not the Supreme Court Rules.  

5.	It is contrary to s 184 of the Constitution to construe or interpret Order 7, rule 25 of the Supreme Court Rules in such a manner that in effect extends the 40 day time limit. The Rule cannot override section 17 of the Supreme Court Act. 

6.	A superseding supplementary notice of appeal replaces the original notice of appeal and renders the original document invalid, obsolete and unenforceable. 

7.	The filing of a supplementary notice of appeal outside of the prescribed time limit without leave of the court constitutes an abuse of process. 

Per Christensen J (concurring as to orders):

8.	The appeal is competent as it was initiated in accordance with s 17 of the Supreme Court Act. 

9.	The Supreme Court Rules 2012 do not require leave to be sought to file a supplementary notice of appeal before the date of appointment to settle the appeal book: O 7 r 25.  

10.	As the notice of appeal was filed within 40 days, and no new grounds were added, the jurisdiction of the Supreme Court is enlivened, and the merits of the appeal are to be considered. 

11.	The evidence at trial was not what was submitted to be by the appellant.  There was no error in law or fact in the findings of the trial judge.  

12.	The rule in Browne v Dunn emphasises fairness in the proceeding which does not necessarily mean that contentious evidentiary matters must be ‘put’ to a witness who is essentially a party to the proceeding.

13.	A bank is not acting negligently or fraudulently when, in accordance with the Bills of Exchange Act 1951 and the absence of a countermand, it processes a cheque for payment as a cheque is payable on demand.  

Cases cited

Amet v Yama [2010] PGSC 46, SC1064
Application Pursuant to Constitution, Section 18(1); Application by Hon. Tomuriesa, MP (2025) SC2785
Browne v Dunn (1893) 6 R 67, HL
Coca Cola Amatil (PNG) Ltd v Yanda [2012] PGSC 52, SC1221
Felix Bakani & Anor v Rodney Daipo (2001) SC659 
Ganga, The State v [1994] PNGLR 323
Haiveta v Wingti (No 2) [1994] PNGLR 189
Independent State of Papua New Guinea v Grand Columbia Limited (2025) SC2827
Kitawal v State [2007] PGSC 44, SC927
Kuman v Digicel (PNG) Ltd [2017] PGSC 41, SC1638
Michael Wilson v Clement Kuburam (2016) SC1489 
New Zealand Insurance Company Ltd v Chief Collector of Taxes [1988-89] PNGLR 522
Proscan Ltd (trading as Rapidfone) v Westpac Bank PNG Ltd [2022] PGNC 26, N9414 
Sarea v Moutu [2019] PGSC 112, SC1893
Serowa & Anor v Dowa & Anor [2023] PGSC 38, SC2381
Wauwa K Ltd v Bank of South Pacific Ltd [2019] PGNC 488, N8840
Wauwa K Ltd v Bank of South Pacific Ltd [2020] PGSC 21, SC1936
Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88

Counsel

B Isaac for the appellant 
N Numi for the first respondent 
S Phannaphen for the second respondent 

1.	YAGI J: I had the privilege of reading the draft judgment of Her Honour Justice Christensen. I concur entirely with Her Honour as to the reasons and conclusion on how the merit of appeal is to be determined. 

2.	However, the issue of whether the appeal was properly before the Court was raised by the Court during the hearing. It is a fundamental threshold issue pertaining to jurisdiction. It caught the attention of the Court when the Appeal Books revealed that three separate initiating documents were filed by the appellant. The court records indicate the following documents were filed:

•	Notice of Appeal filed on 31 July 2019.
•	Supplementary Notice of Appeal filed on 26 September 2019.
•	Further Supplementary Notice of Appeal filed on 16 December 2019.

3.	On 10 November 2025 the Further Supplementary Notice of Appeal was listed for hearing before the Court. It was argued before us on 23 February 2026.

4.	The court record also showed the appellant did not apply for leave nor did the Court grant leave to the appellant to file either the Supplementary Notice of Appeal or the Further Supplementary Notice of Appeal. The appellant, through counsel, concedes to this fact.

5.	The decision the subject of the appeal was made on 27 June 2019 and the time prescribed by s. 17 of the Supreme Court Act (SC Act) to appeal against that decision of the National Court is 40 days as from the date of the judgment. It is common ground that the Notice of Appeal filed on 31 July 2019 was in fact filed inside the 40 days time limit.
6.	The threshold issue of jurisdiction and hence competency arises in relation to the Supplementary Notice of Appeal and the Further Supplementary Notice of Appeal. There is no controversy as to the date of filing of these two documents. As mentioned above [at 2] both documents were in fact filed outside the prescribed 40 days time restriction.

7.	Section 17 of the SC Act states:

“7.         TIME FOR APPEALING UNDER DIVISION 2.
 
Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.” 
[Emphasis added]

8.	The appellant submits the Further Supplementary Notice of Appeal was filed regularly and within the prescribed time pursuant to Order 7 Rule 25 of the Supreme Court Rules (SC Rules) and is therefore valid and properly before the Court. 

9.	The respondents argued otherwise and therefore submit the appeal, to the extent that the appellant relies on Further Supplementary Notice of Appeal in prosecuting the appeal, is incompetent because it was filed outside the prescribed 40 days period.

10.	The appellant’s argument is premised on Order 7 Rule 25 of the SC Rules, which is stated in these terms:

“25.       A notice of appeal may, before the date of appointment to settle under Rule 42 be amended without leave by filing a supplementary notice.”

11.	Rule 25 refers to Rule 42 which provides:

“42.       At the appointment to settle the appeal book, the Registrar shall—
(a)      determine what documents and matters shall be 	included in the appeal book and the order of inclusion 	and such other matters as he thinks fit concerning the 	preparation of copies of the appeal papers; and
(b)      settle the index in accordance with the Rule 43 sub-			rule (13); and
(c)      determine the number of copies of the appeal book 			required; and
(d)     may, if he thinks necessary, obtain the direction of the 	primary Judge; and”

12.	In this case the settlement of the index to the appeal book was done on 03 September 2020. It is therefore the appellant’s contention that the Further Supplementary Notice of Appeal was filed prior to the settlement of the appeal book. 

13.	In my humble opinion the Further Supplementary Notice of Appeal is incompetent on the basis that it was not only filed outside the 40 days time limit but also without leave being granted by the Court. 

14.	The Court have consistently held that a notice of appeal, including a supplementary notice of appeal or application for leave to appeal must be filed within 40 days as required by s. 17 of the SC Act: Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88; New Zealand Insurance Company Ltd v Chief Collector of Taxes [1988-89] PNGLR 522; Felix Bakani & Anor v Rodney Daipo (2001) SC659 and Independent State of Papua New Guinea v Grand Columbia Limited (2025) SC2827.

15.	In Wood v Watking (PNG) Pty Ltd (supra), the issue arose as to whether the 40 days period commences to run from the date of delivery of the judgment or as from the date when the order was entered under Order 12 Rule 3 of the National Court Rules. The Supreme Court held that s. 17 of the SC Act has the overriding effect over the Court Rules. It said [at page 89]:

“We consider that the phrase in Section 17 of the Act (SC Act) “within 40 days after the date of judgment” is not dependent on O12 r3 for its interpretation. It simply means 40 days from the date the judgment was pronounced and, on the facts of this case, judgment was pronounced on liability and damages on 28th November 1985.”

16.	It should be noted from the reasoning in that case that the governing law is the statutory provision being s. 17 of the SC Act and not the Court Rules.

17.	In New Zealand Insurance Company Ltd v Chief Collector of Taxes (supra), the 40 days time limit to appeal fell on Saturday and the following Monday during the court vacation period, the appellant’s lawyer filed a notice of appeal. The Court held that the statutory time limit is not regulated by the Court Rules but by s. 17 of the SC Act. Bredmeyer J said [at page 532] the following in that case:

“Section 17 of the Supreme Court Act, (Ch. No. 37), a person who desires to appeal must do so within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days. The 40 day period expired on 4th January 1989. The applicant company thought that the time did not run during the court vacation. That is a mistake on his part because the appeal period is fixed by the statute, by Section 17 of the Supreme Court Act which I have quoted and not by the National Court Rules.”

18.	Again, it should be noted from the reasoning in that case that the governing law is the statutory provision being s. 17 of the SC Act and not the Court Rules.
19.	In Felix Bakani & Anor v Rodney Daipo (supra), the appellants filed an appeal by way of notice of motion under Order 10 of the SC Rules from a decision arising in a judicial review proceeding in the National Court. The notice of motion did not have annexed to it certain documents as required under Order 10 Rule 3(b) of the SC Rules. The appellants applied for an extension of time to have the documents annexed to the notice of motion. The application was made after the expiry of the 40 days time limit to appeal the decision. The Court said: 

“..... whether it is to lodge an appeal or to apply for extension of time to lodge an appeal it must be made within 40 days, from the date of the judgment” and furthermore stated “The requirement under Section 17 of the Act and O10 r3(b) of the Rules are mandatory by virtue of the word “shall” in these provisions.” 

20.	Recently a similar situation arose in Independent State of Papua New Guinea v Grand Columbia (2025) SC2827 where the Court had to consider the dictate of s. 17 of the SC Act and the requirement of Order 7 Rule 25 of the SC Rules. By majority (Kariko and Narokobi JJ) the Court held (from the headnotes), among others, (1) that an appeal not filed within 40 days, or any extended time as required by s. 17 of the SC Act is incompetent and the Supreme Court has no jurisdiction to entertain it, and (2) The Rules of Court are a code of practice designed to guide and assist the parties and the court resolve disputes fairly and expeditiously; they do not feature in the hierarchy of laws listed in s. 9 of the Constitution and cannot override statutory provisions of Acts of Parliament. 

21.	His Honour Kariko J in that case made the following profound statements which I respectfully agree and adopt [at 31 and 32]:

“I am unable to agree to the proposition advanced by the appellant that the phrase “in the manner prescribed by the Rules of Court” contained in s. 17 of the Supreme Court Act permitted the State to file its appeal outside the time limit by virtue of the application of O2 r12 of the National Court Rules.

In my view, the phrase is directed at the requirements relating to the form, lodgment and service of a notice of appeal or notice of application for leave to appeal which must be filed within the prescribed time limit.”

22.	His Honour continued [at 43 and 44]:

“Rules of Court are a code of practice (Polling v Motor Vehicles Insurance (PNG) Trust & Ors [1986] PNGLR 228 designed to guide and assist the parties and the court resolve disputes fairly and expeditiously (Public Officers Superannuation Fund Boad v Imanakuan (2000) SC677, but they do not feature in the hierarchy of laws whereas Acts of Parliament rank subordinate only to the Constitution and the Organic Laws. 

In fact, s.184(1) of the Constitution provides that rules of court shall not be inconsistent with a Constitutional Law or an Act of Parliament, regarding practice and procedure in the higher courts.”

23.	In my view, Order 7 Rule 25 should not be constructed or interpreted in such a manner that will have the effect of extending the 40 days time limit. The Rule must be read to bring harmony and consistency with s. 17 of the SC Act. To construe the Rule otherwise means that s. 17 is subservient to the Rule. This is contrary to s. 184 of the Constitution. The net effect is that the Rule must be struck down and declared invalid and ineffective to the extent of inconsistency. The Rule simply cannot override a superior statutory provision. By virtue of s. 184 of the Constitution the Rule must give way to the statutory dictate. 

24.	Given the conclusion I have reached on the incompetency of the Further Supplementary Notice of Appeal, the question arises whether the original Notice of Appeal, which was filed within time, survives and can be relied on in the appeal. In my opinion, the existence or life of the original notice of appeal ceases to have effect once a superseding document is filed. The superseding document replaces the original document and renders it invalid, obsolete and unenforceable. In this case, upon the appellant filing the Supplementary Notice of Appeal, the original Notice of Appeal is rendered invalid and ceases to have effect. The same applies to the Supplementary Notice of Appeal based on the domino effect principle. 

25.	Moreover, the filing of the Supplementary Notice of Appeal and Further Supplementary Notice of Appeal outside of the prescribed time limit and without leave of the Court, in my view, constitute a clear abuse of process. The law on abuse of court process is settled in this jurisdiction, and I do not think it is necessary to dwell further into that principle: Michael Wilson v Clement Kuburam (2016) SC1489 and Application Pursuant to Constitution, Section 18(1); Application by Hon. Tomuriesa, MP (2025) SC 2785.  Where the Court finds an abuse of process has occurred the Court may, on its own motion, exercise its inherent power to dismiss a proceeding.

26.	For these reasons I am of the firm opinion that the appeal is incompetent and must be dismissed forthwith. Given that the competency issue was not raised by the respondents I consider it appropriate to order that each party is to bear their own cost in the appeal.

27.	WOOD J: I have had the benefit of reading the draft Judgments of His Honour Justice Yagi and Her Honour Justice Christensen.  I agree with Justice Christensen that the appeal has no merit.  However, as a preliminary issue, I agree with all the reasons and findings of Justice Yagi that the appeal is incompetent, and for that reason, I consider the appeal should be dismissed.

28.	I make two other brief points.  Firstly, in the appellant’s written submissions, the appellant stated that it was pursuing the hearing of the Further Supplementary Notice of Appeal filed on 16 December 2019.  So there can be no doubt about which notice of appeal was before the Court.  In any event, and for the reasons given by Justice Yagi, the appeal is incompetent.

29.	Secondly, I consider it important to note that the appellant, through its counsel, was not able to cite any case law authorities in support of its argument that the Further Supplementary Notice of Appeal filed on 16 December 2019 was competent.

30.	On the basis of the above matters, I consider the appeal is incompetent and should be dismissed.  I also agree it is appropriate to order that each party is to bear their own costs in the appeal.

31.	CHRISTENSEN J: Introduction: I respectfully agree with the orders but do so for different reasons. 

32.	In my opinion, this appeal is competent as it was instituted in accordance with s 17 of the SC Act.  Accordingly, it is necessary for me to consider the merits of the appeal.  Having done so, the appeal is without merit, and I therefore join with the order to dismiss the appeal and, in the circumstances, the order as to costs.  My reasons for so finding are as follows.  

Background

33.	The appellant is a landowner company incorporated by landowners of Hides 4, Hela Province. The Chairman, Mr Wale Bulu, is the managing director and sole signatory of the appellant company’s bank account with Bank South Pacific Limited, the first respondent.  The company director of the second respondent, Mr Thomas Galu, was an associate of Mr Bulu.

34.	In an unrelated proceeding, OS No 258 of 2016, the appellant company and its managing director obtained a consent order from the National Court which resulted in the State issuing a cheque in the sum of K4 million that was to be deposited into the appellant’s bank account.  Half of this sum was to be paid from the appellant’s account to another landowner group, Pambai Holdings Limited. Upon receipt of the payment by the State, the first respondent placed a restriction on the appellant’s bank account to facilitate the payment to Pambai Holdings Limited.   

35.	At and around the time that the K4 million cheque was to be deposited and paid, the managing director of the appellant company drew a number of cheques to various individuals and to the second respondent.  The cheque for the second respondent was in the amount of K1.15 million (cheque #155).  The bank processed the cheques that were drawn and the funds in the appellant’s account were expended.
 
36.	The appellant claimed at trial that the first respondent was negligent, and engaged in fraud, in permitting the cheques to be processed and paid, and claimed fraud by the second respondent in obtaining the sum of K1.15m.  

37.	A preliminary issue of competency was raised by the court at the hearing of the appeal.  

38.	It was not in issue that the court can, and should, raise any issue as to competency at any stage of the proceeding (see Haiveta v Wingti (No 2) [1994] PNGLR 189; Amet v Yama [2010] PGSC 46, SC1064; Sarea v Moutu [2019] PGSC 112, SC1893), the competency of the appeal being determinative of the Court having jurisdiction to hear the appeal.  It follows that this preliminary issue as to competency is to be considered first.  

Procedural background

39.	A detailed consideration of the procedural background to the appeal is necessary to understand the competency issue. 

40.	On 27 June 2019, the decision on trial was made with published reasons provided: Wauwa K Ltd v Bank of South Pacific Ltd [2019] PGNC 488, N8840 (Wauwa K Ltd v BSP Ltd, N8840).  The trial was heard over three days and involved witnesses called by all parties and who gave evidence by way of affidavit and cross examination.  

41.	On 31 July 2019, the appellant filed a notice of appeal, contending four grounds that in summary are:

(a)	The learned trial judge erred in law by holding that the first respondent was not negligent in clearing certain cheques;

(b)	The learned trial judge erred in law in finding that the first respondent was not negligent in clearing a particular cheque;

(c)	The learned trial judge erred in law and in fact in holding that the first respondent had not committed fraud; and 

(d)	The learned trial judge erred in law in holding that the second respondent did not commit any fraud.  

42.	This appeal, as filed, alleged that the appeal lay without leave.  

43.	On 12 September 2019 a legal clerk for the appellant filed an affidavit of service that deposes to service of an application for leave to appeal and notice of appeal.  Any application for leave to appeal does not form part of the court file for proceeding SCA 96 of 2019.  

44.	On 26 September 2019, the appellant filed a supplementary notice of appeal.  The grounds of appeal were, in my view, identical to those initially alleged, but made minor amendments that clarified certain facts of particulars to the grounds of appeal.  Affidavit material on the court file reflects service of the supplementary notice of appeal, albeit the affidavit does not depose that the supplementary notice for leave to appeal was served, only the supplementary notice of appeal.  Correspondence annexed to the affidavit refers to a supplementary notice of leave to appeal, but, again, any application for leave to appeal, supplementary or otherwise, does not form part of the court file for this proceeding.  

45.	On 11 December 2019, an application for leave to appeal was heard.  The decision in this matter was delivered on 31 March 2020: Wauwa K Ltd v Bank of South Pacific Ltd [2020] PGSC 21, SC1936 (Wauwa K Ltd v BSP Ltd, SC1936).  

46.	On 16 December 2019, the appellant filed a further supplementary notice of appeal.  Again, the grounds of appeal were, in my view, identical to those initially alleged and it was stated that the appeal lay without leave.  However, this further supplementary notice of appeal added an additional particular to ground (a) contending that certain evidentiary matters were not put in cross examination to the primary witness called by the appellant.  

47.	On 31 March 2020, the decision in Wauwa K Ltd v BSP Ltd, SC1936 was delivered.  The reasons in that decision include that the application “was filed on 31 July 2019” and that leave was contended to be required pursuant to s 14(1)(c) of the SC Act as the appeal lied on questions of fact only. 

48.	The Chief Justice found that the issues raised were not only issues of fact but also of law: Wauwa K Ltd v BSP Ltd, SC1936 at [23].  His Honour found that the matters raised fell under s 14(1)(b) of the SC Act, that is, they were questions of mixed fact and law and accordingly leave was not required.  

49.	On 3 September 2020, per the court file for this proceeding, the draft index to the appeal book was filed.  The draft index was settled ‘per Order of 20 August 2020’ and the appellant was to proceed with compiling the appeal book.  The file is endorsed that ‘Settlement made on 18/9/20 at 1.47pm’.  The appellant was represented and there was no appearance by the respondents. 

50.	On 12 October 2020, per the court file for this proceeding, the index to the appeal book was filed.  The file reflects that thereafter, and in particular in more recent years, there was ongoing liaison between the parties and the court as to settling of the appeal books.  On 4 March 2024, the court came to agree with a draft consent order of the parties that the appeal book was to be settled inter parte.  The appellant sought from the Registry a date to settle the appeal book.  It is not clear from the court file whether any such date, or settlement, occurred.  

51.	The file endorsements otherwise reflect that there were numerous adjournments involving directions leading to the hearing of the appeal before us.  

52.	It follows from this background that preliminary findings, and bases relevant to the issue of competency, are:

(a)	The appeal was filed on 31 July 2019, within a period of 40 days of the decision; 
(b)	The supplementary notice of appeal was filed on 26 September 2019, a date outside of 40 days;

(c)	The further supplementary notice of appeal was filed on 16 December 2019, a date outside of 40 days; and 

(d)	On 31 March 2020, it was found, based on the notice of appeal filed on 31 July 2019, that leave to appeal was not required. 

(e)	The settlement of the appeal book occurred at the earliest on 3 September 2020, or has not strictly occurred, with the earliest possible date being a date after the filing of the further supplementary notice of appeal.  

53.	No leave was sought with respect to the further supplementary notice of appeal, although it is to be observed that the grounds of appeal in this notice are, in my view, in substance identical to the original notice.  

54.	The current hearing of the appeal proceeded on the basis that the further supplementary notice of appeal reflected the grounds of the appeal.  

Competency issue: Further Supplementary Notice

55.	In response to the court’s query, the respondents submitted at the hearing, without notice, that the appeal was incompetent as the further supplementary notice of appeal was not filed in accordance with the SC Act and the SC Rules.     

56.	This competency submission is founded in position that the appeal being based on a notice filed outside of the 40 day period results in this being an appeal not instituted as required.  

57.	It is without contention that an appeal to the Supreme Court is to be filed within 40 days, with s 17 of the SC Act providing:

Where a person desires to appeal to or obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.  

58.	The appellant submits that no further leave was required to file a supplementary, or a further supplementary, notice, the appeal having been instituted as required: O 7 r 25 SC Rules.  Order 7 rule 25, and in addition rule 26, provide:  

Division 8 – Amendment by supplementary notice 

25	A notice of appeal may, before the date of appointment to settle under Rule 42 be amended without leave by filing a supplementary notice. 
26	A party who files a supplementary notice under Rule 25 shall file and serve it in accordance with Rule 13.  The addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of judgment in question, or such further period as has been allowed by a Judge within those 40 days. 

59.	For current purposes O 7 r 25 is of most consequence.  With respect to O 7 r 26, there was service of the supplementary notices, and there is no contention that a change or amendment to the grounds of appeal occurred.   

60.	The appellant submits that there has been compliance with O 7 r 25, being that leave was not required to file the further supplementary notice of appeal as it was filed before the date of appointment to settle and that accordingly the appeal is competent.    

Consideration

61.	It is apparent that the SC Rules do not require an application for leave to file a supplementary, or further supplementary, notice of appeal where the grounds of appeal are not changed or amended, provided such occurs before the date of appointment to settle under Rule 42.  Order 7 rule 42 provides the processes that are to occur at the appointment to settle the appeal book, and the settlement by the Registrar of the index.  

62.	Here, it is not entirely clear that any such settlement appointment did actually occur.  Nonetheless, to the extent it may have occurred, it is clear that it was a date after the further supplementary notice of appeal was filed.  

63.	In Serowa & Anor v Dowa & Anor [2023] PGSC 38, SC2381 at [16], Cannings J observed with reference to the procedural history that arose in that matter that:

I find that the date of filing of the supplementary notice of appeal, 25th August 2022, pre-dated the date set for settlement of the appeal book under Order 7 rule 42, 20th September 2022. It was open to the appellants to file the supplementary notice of appeal without leave of the court. I dismiss this ground of objection.

64.	Similarly, albeit as obiter dictum, in Kuman v Digicel (PNG) Ltd [2017] PGSC 41, SC 1638, Kandakasi J (as then was) observed at [14] that:

Appellants are given the right or authority to amend their notice of appeals without prior leave of the Court in certain circumstances.  This can be done by filing a supplementary notice of appeal before a date is fixed for a settlement of the relevant appeals index.  

65.	A competent appeal in the Supreme Court is a proceeding commenced from an order of the National Court in accordance with the SC Act.  An appeal to the Supreme Court lies from a judgement of the National Court: s 4 SC Act.  The grounds of an appeal are the arguments as to why the judgement was wrong.  In a consideration as to jurisdiction raising the time at which the appeal was instituted, pursuant to s 17 of the SC Act the determination is one directed towards the date of the judgment in question and whether the appeal was instituted within 40 days of that judgment.  That is, whether an appeal is brought competently is determined by the period since the order that is appealed.  Here, the appeal was instituted as required and is accordingly competent in this regard. 

66.	In an application of the SC Rules, there is no requirement to seek leave to amend the notice of appeal where no additional ground is added provided such amended notice is filed before the appointment date for settlement is fixed.  

67.	The circumstances of this matter do provide an example that when there is no impediment to the filing of a supplementary notice of appeal before a particular procedural stage undue complexities can arise in the appeal.  Here, this is that the notice relied upon for the appeal is not readily ascertainable.  However, the procedural background of this appeal is unusual.  The circumstances of settlement involved delay and irregularities in terms of compliance with the procedures provided by the SC Rules.  It is to be hoped that these circumstances are exceptional and will not be repeated.   

68.	It follows, even though the appeal relies on the further supplementary notice of appeal, the appeal was instituted in accordance with s 17 of the SC Act.  No jurisdictional error arises in the hearing of this appeal.  

Competency issue: Grounds of appeal

69.	Further at the hearing of the appeal, the court raised with the parties whether incompetency arises from the contended grounds.  Three of the grounds in the further supplementary notice of appeal contend error in law by the trial judge and one ground contends error in law and in fact.  The errors of law are arguably not alleged with sufficient particularity as is required by O 7, r 10 of the SC Rules.  Further, it may be an issue that leave was not granted with respect to the further supplementary notice of appeal when the grounds are actually solely ones alleging error in fact: s 14(1)(c) SC Act.    

70.	The parties did not expand in submissions as to this issue, and there was no objection filed in this regard.  While the consideration of the merits of the appeal are impeded by the lack of specificity as to the alleged errors in law, in circumstances where the respondents took no objection and at least the ground contending error in law and fact is plainly competent such that the merits of the appeal are to be considered (Coca Cola Amatil (PNG) Ltd v Yanda [2012] PGSC 52, SC1221), this issue is not one that warrants a finding as to incompetency. 

71.	The merits of the appeal, with reference to the grounds as alleged in the further supplementary notice of appeal, are then to be considered.  

Submissions on the appeal 

72.	In the written and oral submissions, the appellant focused on a contention that where a payment is made by a banking authority that is based on mistake of fact or law, the payment is generally recoverable.  A number of authorities were cited in this regard, but it is unnecessary to recite them.  The law is uncontroversial in this regard.  

73.	What is of more relevance, and was alluded to by the appellant in the submissions and the grounds of appeal, is whether there was error by the trial judge in the finding that there was not a mistake of fact or law, contended here as being negligence or fraud.  If the trial judge’s finding was erroneous and there was negligence and/ or fraud, then it uncontroversially follows that the payments were recoverable.  

74.	The respondents submitted that the findings of the trial judge were correct and were in accordance with the evidence adduced at trial.  

75.	The submissions of the parties will be further considered with reference to each ground of appeal.  

Ground (a): The learned trial judge erred in law by holding that the first respondent was not negligent in clearing cheques drawn by the appellant 

76.	This ground particularises two bases of alleged error in law.  

77.	The first basis contends that there was a wrongful conclusion based on purported facts.  The appellant’s submission is that the trial judge erred in not finding BSP Limited negligent in clearing cheques.  

78.	The basis of this submission are certain contentions as to the facts.  Firstly, that the appellant had served on the bank a letter requesting that payment of the cheques be stopped, which the appellant was entitled to do at any branch, and that the first respondent was obliged to act on the letter.  Secondly, that any presence of the appellant’s managing director, and sole signatory, at the counter authorising the clearance of the cheques was insufficient as company authorisation was required. 

79.	The appellant’s submission is misconceived for two reasons.  

80.	Firstly, the evidence at trial was that no letter was ever served on the bank.  Evidence was adduced by the first respondent to the effect that the letter presented by the managing director on 13 December 2016 was not received by the bank teller and the managing director was informed to present any such letter at his domicile branch.  The appellant’s own evidence was that he did not deliver the letter to the bank, and it was an agreed fact between the parties that the letter was never delivered to the bank: Wauwa K Ltd v BSP Ltd, N8840 at [8], [57].  

81.	At the hearing of the appeal, the appellant did not resile from it being agreed at trial that the letter was never delivered to the bank.  Contrary to the essence of the appellant’s submission under this ground, there was no evidence of a countermand of payment with respect to the cheques.  A contention that the trial judge’s finding as to there being no negligence on a basis of facts contrary to the evidence adduced at trial must be rejected.  

82.	Secondly, it was plainly open on the evidence for the trial judge to find that the authorisation done in person by the managing director was sufficient authority to process clearance of the cheques.  The first respondent adduced evidence from multiple witnesses who described the conduct of the managing director at the bank, and the extent to which he authorised the clearance of the cheques.  This included that there were letters with the cheques from when they were first raised, and the managing director personally confirmed his identity and endorsed the cheques by signature on the back of them at the time of presentation to the bank.  He was the sole signatory to the account and had the full authority to authorise the clearance of the cheques on behalf of the appellant company.    

83.	The second aspect to ground (a) contends that certain evidentiary matters said by the appellant to be of significance were not put in cross examination to the managing director.  This submission misconceives the rule in Browne v Dunn (1893) 6 R 67, HL.  To understand why this, it is instructive to recall what was said by Lord Herschell in Browne v Dunn.  His Honour observed at p 70, 71:

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.  My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.  Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it.  All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.
	
[emphasis added]

84.	In Ganga, The State v [1994] PNGLR 323, Sevua J applied what was said by Hart J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR at 16 as to the formulation of this rule: 

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1893) 6 R 67.

[emphasis added] 

85.	Careful consideration of the rule in Browne v Dunn reveals that the intention of the rule is one of fairness to a witness.  Where the witness is a party to the proceeding, which the managing director here essentially was, the matters that must be ‘put’ to the witness are not necessarily the same as might be required to be ‘put’ to a witness who does not have the same level of familiarity and knowledge of the case.   

86.	This Court has found this to be so for cases in the criminal jurisdiction (see Kitawal v State [2007] PGSC 44, SC927 at [164] – [165]), and I cannot identify any basis for why this should be different in the civil jurisdiction.  If anything, there is more force in it being unnecessary to ‘put’ matters to a party, or direct witness for a party, in a civil case given the extent to which they are informed of the respondent’s case through pleadings and pretrial processes.   

87.	Nonetheless, as a matter of practice, and in accordance with the rule in Browne v Dunn, fairness is paramount.  It is may still to be of assistance to a witness who is a party to the proceeding, and to the court, to ‘put’ contested facts in cross examination.  But, it is not an error of law not to do so where the witness is on notice as to the matters in contention.  In such circumstances, and as occurred here, the witness was well aware of the nature of the case that the first respondent proposed to rely upon, and the witness had an opportunity in chief and in the calling of other evidence to explain or contradict the respondent’s case.  

88.	No error of law occurred and accordingly ground (a) of the appeal is without merit. 

Ground (b): The learned trial judge erred in law in finding that the first respondent was not negligent in clearing cheque #155

89.	This ground is also without merit as it relies on contentions of fact that were not in evidence.  The appellant submits that the first respondent was not entitled to clear the dishonoured cheque as the appellant’s account had already been charged a dishonour fee and that the first respondent had not sought that a fresh cheque be drawn for clearance.  

90.	The difficulty for the appellant with this submission is that there was no evidence adduced that the processes they contend ought to have been applied by the first respondent were established practices and processes that were not applied by the bank.  Rather, as the trial judge found, the evidence established that the first respondent acted in accordance with the processes of the bank and with the law as to a cheque being payable on demand: ss 15, 79 Bills of Exchange Act 1951.  Further as to this, I gratefully adopt and apply a summary by Linge AJ in Proscan Ltd (trading as Rapidfone) v Westpac Bank PNG Ltd [2022] PGNC 26, N9414 at [83] – [85] as to the applicable law in the circumstances as they arose here: 

The relationship between a customer and bank is contractual, and a bank owes a basic obligation to its customer that it will honour on presentation cheque drawn by the customer on the bank, provided that there are sufficient funds in the customer’s account to meet the cheque. Where the bank honours the cheque, it acts within its mandate and the bank is entitled to debit the customer’s account with the amount of the cheque, and further the bank’s payment is effective to discharge the obligation of the customer to the payee on the cheque, because the bank has paid the cheque with the authority of the customer. 

Courts in this jurisdiction have consistently held that a bank has an implied contractual duty towards its customer not to be negligent in the performance of the contract.  

A Bank is required to act without delay in discharging its obligation to pay the customer’s cheque. The bank must either pay or refuse the payment by dishonour or countermand.  

[citations omitted] 

91.	Contrary to the submission of the appellant, the first respondent acted lawfully, and acted without negligence.  

92.	The appellant has further submitted that the first respondent’s conduct in clearing the cheque such that it reduced the appellant’s balance below K2 million was negligent.  This clearance was done in a circumstance where, in accordance with the evidence, the bank adjusted the restriction it had on the appellant’s bank account from K4 million to K2 million.  This was directed towards enabling the court order to be capable of being complied with without detriment to the appellant in operating his bank account and accessing funds not unnecessarily subject to restraint.  

93.	The relevant court order was one to which the appellant and the appellant’s managing director were parties to.  The first respondent was not a party to that proceeding.  The order did not require either the appellant, the managing director, or the bank, to place a restriction on the account but rather required the appellant company to deposit the cheque into the operating account and to immediately divide the sum and pay the K2 million.  The responsibility for compliance with the court order fell on the appellant company and its managing director.  

94.	It must further be recalled that the evidence at trial included that the managing director of the appellant company was personally in attendance with the payee of the cheque.  The managing director sought, by his presence and actions at the bank, that the cheque be processed.  He was accompanied by the payee of the cheque, being the second respondent.  The teller advised that he would need to obtain clearance and for them to return when the restriction was lifted.  The managing director later returned to the bank and, along with the payee, was again personally at the bank seeking that the cheque be paid.  

95.	At this time, the managing director was also presenting at the bank with other payees of other cheques.  There were a number of cheques to be paid and processed once the restriction was adjusted.  

96.	It was not erroneous for the trial judge to conclude that enabling the processing of cheque #155, a cheque that the managing director was personally seeking to be processed, did not establish negligence by the first respondent.  The first respondent acted in accordance with instructions from the sole signatory of the bank account and the law, and it was for the appellant company to ensure its financial dealings with the account enabled compliance with the unrelated court order.  

97.	This ground of appeal is not established.  

Ground (c): the learned trial judge erred in law and in fact in holding that the first respondent had not committed fraud

98.	The trial judge found that there was no dishonest intention by the first respondent in paying any of the cheques.   

99.	The appellant submits that the first respondent’s fraud is established by the drawing of inference from the circumstances of the payment of the cheque to the second respondent.  These circumstances are said to be:

(a)	that the cheque was cleared even though it was initially dishonoured; 
(b)	that the first respondent obtained a deposit from the second respondent, without the consent of the appellant, to increase the funds to be above the amount of K2 million; and 
(c)	that the first respondent lifted the restriction to facilitate payment of the #155 cheque and then immediately restricted the account again.  

100.	As to the first of these circumstances, the observations made above with respect to ground (b) are apposite.  That is, the bank was not responsible for complying with the consent order, and it was the managing director of the appellant company who was seeking that cheques be honoured.  The first respondent acted in accordance with the instructions of the sole signatory of the account and with the law.  

101.	As to the second and third of these circumstances, there was no evidence of this.  The director of the second respondent company gave evidence that he did the deposit of funds for the appellant because Mr Bulu was being threatened by individuals and police for non-payment to creditors.  The evidence as to the circumstances of the restriction was not that it was entirely removed to permit processing of the #155 cheque, rather that it was adjusted by reducing the restriction such that it was more in accordance with the consent order and to enable the managing director access to funds he was entitled to utilise.  

102.	The appellant’s submission that the trial judge erred in holding that the first respondent did not act fraudulently is without basis in the evidence.  It is an entirely speculative and misguided assertion.  The trial judge did not err in the finding made and this ground is without merit. 

Ground (d): the learned trial judge erred in law in holding that the second respondent did not commit any fraud 

103.	The appellant’s contention in this ground is also without merit as it again misconceives the evidence at trial. 

104.	The appellant submits that the amount the managing director owed to the second respondent was only K70 000.00, but that he obtained K1.15 million through alleged fraud.  It is submitted that there was no documentary evidence as to any share arrangement that the appellant was entering into involving the amount of funds obtained by the respondent.  The fraud is also submitted to be inferred from the second respondent’s failure to obtain a new cheque after the original dishonour and the clearance of the cheque despite the restriction.  

105.	Contrary to the submission of the appellant, the evidence in the trial included evidence from the director of the second respondent company as to amounts of money well in excess of K70 000.00 that were owed by the appellant to the second respondent and the agreement as to payments to be made.  The evidence adduced by the first respondent included correspondence from the appellant authorising the payment of K1.15 million, and, entirely contrary to the appellant’s submission, documentation of a memorandum of agreement and correspondence between the companies as to an intended shareholder agreement.  

106.	The contention of the appellant in this ground fails to have regard to the evidence adduced at trial.  There is no basis to conclude that the trial judge erred in law in drawing the conclusion that the second respondent did not commit fraud.  This ground must be dismissed. 

Conclusion 

107.	While I find that the appeal is competent, in that this court’s appellant jurisdiction was enlivened by the filing of the original notice of appeal, the appeal is without merit.  The conclusions made by the trial judge were not erroneous.  The appellant’s submissions misconceive the evidence and no conclusion of negligence and/ or fraud was open on the evidence at trial.  No error in law or fact is established.  

108.	The appeal must be dismissed.  

Orders 

109.	For those reasons, the following orders are made:

(1)	The appeal is dismissed. 

(2)	Each party is to bear their own costs of the appeal.  
________________________________________________________________
Lawyers for the appellant: Emmanuel Lawyers
Lawyers for the first respondent: BSP Financial Group Limited
Lawyers for the second respondent: Lhyrn Lawyers