Bruce Tsang v Credit Corporation (PNG) Ltd

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Sheehan J, Brown J
• Judgment Date: 30 April 1993
• Citation: [1993] PNGLR 112
• Court: Supreme Court
• Year: 1993
• Judgement Number: SC437

Supreme Court: Kapi DCJ, Sheehan J, Brown J

Judgment Delivered: 30 April 1993

SC437

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCA NO. 57 OF 1991

BETWEEN:

BRUCE TSANG

Appellant

AND:

CREDIT CORPORATION (PNG) LIMITED

Respondent

Waigani: Kapi DCJ, Sheehan, Brown JJ

1992: 29th September

1993: 30 April

Appeals — Appeal against Interlocutory judgement — Application for Leave

to appeal filed outside the 40 days limit — Competency of

the appeal.

Held: Application for leave to appeal against an interlocutory

judgement must be filed within the 40 days limit. The

Supplementary Notice of Appeal is incompetent.

Summary Judgement — Guarantee and Indemnity — Variation of terms of

principle contract — Whether guarantee also varied or whether

guarantor discharged from liability — Where the law and facts are

not in dispute — Should the Summary judgement be set aside?

Held: On the facts supplied by the appellant, when he

varied the contract as director of the principle debtor company, he

was fully aware of his liabilities as guarantor. There is no issue to

be tried.

P White, QC with M Lash and F Talao, for the appellant

I R Molloy with J Patterson, for the respondent

By the Court: Sakai Management Services Pty Ltd obtained financial advances from the Respondent and the Appellant guaranteed these advances. As at 22nd October, 1990 about K1.1 million was owing to the Respondent. The Respondent sued the Appellant as guarantor of Sakai Management Services Pty Ltd for the sum owing.

On the 14th December, 1990, the Respondent filed a motion for summary judgement pursuant to o 12 r 38 of the National Court Rules.

On the 14th February, 1991, the Appellant filed a motion pursuant to o 5 r 2 of the National Court Rules seeking to join Sakai Management Pty Ltd as a Second Defendant in the action.

These two motions came on for hearing before Hinchliffe J. on 22nd February 1991. He handed down his decision on the 11th April, 1991 in which he allowed the application for summary judgement and refused leave to join Sakai Management Services Pty Ltd as Second Defendant.

The Appellant filed a Notice of Appeal against the decision of the National Court on the 21 May, 1991. A Supplementary Notice of Appeal was filed on the 4th November, 1991. A Further Supplementary Notice of Appeal was filed on the 15th May, 1992.

At the hearing of the appeal, counsel for the Respondent raised a preliminary issue. In essence, it relates to the competency of the appeal now before the Court in relation to the ruling by the trial judge refusing the application to add Sakai Management Services Pty Ltd as a Second Defendant. The issue has arisen in this way. When the original Notice of Appeal was filed, it sought to appeal against the whole of the decision. The Notice of Appeal is expressed to be without leave of the Court. Counsel for the Respondent argued that part of the decision that relate to joinder of parties is an interlocutory order and no appeal can lie to the Supreme Court except with the leave of the Court under s 14(3) of the Supreme Court Act (Ch 37).

The Appellant sought to overcome this by filing a Supplementary Notice of Appeal on the 4th November, 1991 with the following amendment:

"1A. Leave to Appeal is sought to the extent that the whole or any part of the judgement appealed from is an interlocutory judgement of the National Court."

We note from the record that the Respondent filed a Notice of Objection to Competency of the Notice Appeal on the 22nd October, 1991. This matter came on for hearing on the 31st October, 1991 but the Supreme Court dismissed the notice on the basis that it was filed outside the 14 days required by o 7 r 14 of the Rules of the Supreme Court.

However, this does not prevent the Respondent from raising the same issue at this stage. The issue of the competence of an appeal remains open and the Court may address it at any time before judgement. See The Hon. Patterson Lowa and Others -v- Wapula Akipe and Others (SCA 19 of 1991, SCA 31 of 1991, SCA 36 of 1991 and SCA 60 of 1991) (Unreported judgement of the Supreme Court dated 7th August, 1991 SC 430). The Respondent filed another Notice of Objection to Competency of the Supplementary Notices on the 16th June, 1992. It is this objection which has been raised by the Respondent for determination by this Court.

Section 14(3)(b) of the Supreme Court Act provides:

"No appeal lies to the Supreme Court without the leave of the Court -

......

(b) from an interlocutory judgement made

or given by the National Court ..."

There are exceptions but they are not relevant to this case.

There is no dispute that the ruling by the trial judge in relation to the joinder of parties is an interlocutory judgement and therefore requires leave of the Court.

The Supreme Court Act deals with two separate issues in civil cases, an appeal to the Supreme Court as of right (see s 14(1) and 14(1)(b) and an appeal to the Supreme Court by leave only (see s 14(1)(c), s 14(3), s 14(4)). The Rules of the Supreme Court also deal with these two issues separately (see o 7 Div 1 & 2 which deal with applications for leave and o 7 Div 3 & 4 which deal with appeals to the Supreme Court). They are not one and the same.

The Notice of Appeal in ground (3)(g) appeals against the decision not to join Sakai Management Services Pty Ltd as a Second defendant. This part of the decision is interlocutory and an appeal against such a decision is clearly prohibited by s 14(3) of the Supreme Court Act. No leave has been sought to appeal against this part of the judgement. The appellant is not entitled to be heard on this ground.

The question then arises; whether, the Supplementary Notice of Appeal can be regarded as providing the necessary application to obtain leave to appeal against the interlocutory judgement.

Counsel for the Respondent has submitted that the Appellant has failed to obtain leave within 40 days as required by s 17 of the Supreme Court Act and the Supplementary Notice of Appeal was filed some 5 months after the date of the judgement. It is submitted that no extension of time can be obtained in which to file an application for leave to appeal under s 17 of the Supreme Court Act and therefore the Supplementary Notice of Appeal is incompetent.

Counsel for the Appellant has submitted that the Notice of Appeal has effectively been amended by the Supplementary Notice of Appeal and that there is in effect an application for leave to appeal. It was submitted in the alternative by counsel for the Appellant that in any case, this Court should amend the Notice of Appeal by inserting the application for leave to appeal.

We will first consider the submission that the Notice of Appeal has effectively been amended by the Supplementary Notice pursuant to o 7 r 24 of the Rules of the Supreme Court. The index to the appeal book was settled on the 15th July, 1992. The Supplementary Notice of Appeal was filed on 4th November, 1991.

O 7 r 24 enables an appellant to amend a notice of appeal without leave before the date of the settlement of the index to the appeal book. However, this relates only to appeals to the Supreme Court as of right. It does not apply to any application to obtain leave. The power to amend such an application would come under o 11 r 11. We will come back to this rule later. Under o 7 r 24, any appellant may amend the notice of appeal without the leave of the court. Such an amendment must relate to an appeal as distinct from the right to apply to obtain leave to appeal. As we have pointed out before, they are two separate issues. A close examination of the Supplementary Notice of Appeal shows that no amendments were made to the appeal. What the Appellant has done is that he has introduced an entirely a new matter, namely, an application to obtain leave to appeal. The appellant would have been able to raise such a matter in this manner, if the Supplementary Notice of Appeal was filed within the 40 days limit required by s 17 of the Supreme Court Act. Strictly speaking, this would not be an amendment to the Notice of Appeal but an institution of a new matter,...