Coca Cola Amatil (PNG) Ltd v Marshall Kennedy

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J; Kawi, J; Logan, J
• Judgment Date: 31 August 2012
• Citation: (2012) SC1221
• Court: Supreme Court
• Year: 2012
• Judgement Number: SC1221

Full : SCA 133 of 2011; Coca Cola Amatil (PNG) Limited and Joshua Yanda v Marshall Kennedy (2012) SC1221

Supreme Court: Lenalia, J; Kawi, J; Logan, J

Judgment Delivered: 31 August 2012

SC1221

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 133 OF 2011

BETWEEN:

COCA COLA AMATIL (PNG) LIMITED

First Appellant

AND:

JOSHUA YANDA

Second Appellant

AND:

MARSHALL KENNEDY

Respondent

Waigani: Lenalia, J; Kawi, J; Logan, J

2012: 28, 31 August

CIVIL PRACTICE AND PROCEDURE – Supreme Court – Notice of objection to the competency of the appeal – Supreme Court Rules Order 7, Rule 14 – at least one ground of appeal invoking Court’s jurisdiction – notice of objection to the competency of the appeal overruled.

Cases cited:

Papua New Guinea Cases

PNG Forest Authority v Securamax Securities Pty Ltd (2003) SC 717; [2003] PGSC 17

Simon Kou v Simon Kaupa (2010) SC 1021

Waghi Savings and Loan Society v Bank South Pacific Ltd (1980) SC 185; [1980] PGSC 4

Overseas Cases

Belton v General Motors Holden’s Ltd (No 1) (1984) 58 ALJR 352

Zegarac v Dellios [2007] FCAFC 58

Counsel:

Mr. K J Peri, for the Appellants

Mr. P M Dowa, for the Respondent

Reasons for Judgment

31 August, 2012

1. BY THE COURT: On 26 September 2011, after a trial in the National Court (Gauli AJ) heard over four days earlier that month and in the preceding month, Mr Marshall Kennedy secured a judgment in his favour against Coco Cola Amatil (PNG) Ltd (CCA) and Mr Joshua Yanda (collectively, the appellants) in the sum of K86,510.00. The judgment was in respect of a claim for damages and interest arising from what the trial judge found to be the negligent driving of CCA’s vehicle by its employee, Mr Yanda which collided with Mr Kennedy’s passenger bus on the Okuk Highway on 11 November 2002.

2. CCA and Mr Yanda have appealed, or, so Mr Kennedy contends, purported to appeal, against the National Court’s judgment. The appeal was instituted by the filing of a notice of appeal in the Supreme Court on 1 November 2011. On 15 November 2011, Mr Kennedy filed a notice of objection to the competency of the appeal, pursuant to O 7, r 14 of the Supreme Court Rules (RSC).

3. The question for present determination is whether, on one or more of the grounds of objection which were pressed, the appeal is not competent?

4. Of the grounds specified in the notice of objection to competency, those specified in paragraphs 1, 2 and 5 were not pressed on the hearing of the appeal. It is desirable nonetheless to make some observations related to paragraph 5 for the insight thereby offered in relation to the practice and procedure concerning objections to competency.

5. Paragraph 5 in the objection had alleged that ground 3(a) in the notice of appeal did not raise a question of law but rather one of fact and hence that the appeal was incompetent because no grant of leave had been obtained, contrary to the requirements of s 14(1)(c) of the Supreme Court Act 1975. Ground 3(a) of the notice of appeal alleges that evidence of conviction under s 45 of the Evidence Act 1975 was necessary in order to establish liability and that no certificate of conviction was tendered. It is not necessary for the purpose of determining the objection to competency to determine the merits of this ground of appeal. All that need be said for the moment is that the ground does raise a question of law. Mr Kennedy was correct therefore, on reflection, not to press the ground raised in paragraph 5 of the notice of objection to competency. What he did not appreciate though was the ramification of conceding that the notice of appeal did contain at least one ground which did indeed raise a question of law.

6. An objection under O 7, r 14 RSC is, materially and as that rule expressly provides, “to the competency of an appeal”, not to the notice of appeal. An appeal will be competent if, having regard to the notice by which the appellant has sought to initiate it , the jurisdiction of the Supreme Court has been invoked. A concession that the notice contained at least one ground by which the court’s jurisdiction was validly invoked is necessarily a concession that the appeal is competent. That remains so even though it may be that other grounds specified in the notice lack merit, including a lack of merit because they seek to raise an issue which the court does not have jurisdiction to entertain. That absence of merit may well result in the dismissal of those grounds but that dismissal will not occur because the appeal is incompetent but rather because particular grounds lack merit. The importance of this distinction and of recognising that an objection must go to the competency of the appeal, not a ground of appeal per se cannot be over-emphasised.

7. The importance of the distinction warrants the degree of repetition inherent in the following further observation. If a notice of appeal were to contain but one ground and that ground did not validly invoke the court’s jurisdiction the appeal would be incompetent. Whereas here, there are multiple grounds of appeal specified in the notice and one of those grounds is correctly conceded to be valid the court’s appellate jurisdiction has validly been invoked, even though there may be other grounds which, had they stood alone, would not have meant that a notice containing them had validly invoked the court’s appellate jurisdiction.

8. There is ample authority for these propositions both in earlier decisions of this court and in Australia in respect of cognate rules concerning objections to competency. In Waghi Savings and Loan Society v Bank South Pacific Ltd (1980) SC 185; [1980] PGSC 4 in the context of considering the nature of an objection to competency, Kearney DCJ adopted with approval a passage from Halsbury’s Laws of Australia, Volume 20, Part VIII para 325-12050 in which the learned authors refer to the ability of a court to strike out a notice of appeal where plainly there is no right of appeal. Later, in PNG Forest Authority v Securamax Securities Pty Ltd (2003) SC 717; [2003] PGSC 17 Sakora J stated that, “An objection to competency must raise serious threshold issues concerning legality or viability, or otherwise, of a particular process.”

9. The same point was made in respect of a cognate rule in the Federal Court Rules by Jessup J in Zegarac v Dellios [2007] FCAFC 58 at [11] when his Honour observed that an appeal was incompetent within the meaning of that rule if it is brought in circumstances which “the law simply does not allow to happen”.

10. Another Australian case, Belton v General Motors Holden’s Ltd (No 1) (1984) 58 ALJR 352 is precisely on point. The reasons for judgment of the Full Court of the High Court (Gibbs CJ, Mason and Dawson JJ) are brief but, with respect, nicely illustrate the above propositions:

The question for decision is whether this appeal is competent under s 35(6) of the Judiciary Act 1903 (Cth) which gives a right of appeal from a final judgment of the Full Court of a Supreme Court, where the ground of appeal, or one of the grounds of appeal, involves the interpretation of the Constitution.

A question that fell for decision in the Supreme Court was whether the provisions of s 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (SA) (the Act), as amended and then in force, were inconsistent with the provisions of an award made by the Australian Conciliation and Arbitration Commission. One of the grounds of appeal is that the Supreme Court erred in holding that there was such inconsistency.

If the argument of the applicant as to the interpretation of the award is accepted, no question of inconsistency would appear to arise. But if the argument of the respondent, which was accepted by the majority of the Full Court, prevails, s 109 of the Constitution would have to be applied, with the result that s 15(1)(e) of the Act would be pro tanto invalid.

At least one ground of appeal clearly involves the application of s 109 of the Constitution. That section cannot be applied unless its meaning is properly understood. It follows that at least one ground of appeal involves the interpretation of s 109. It follows that the appeal is competent.

[Emphasis added]

11. Having concluded that at least one ground of appeal invoked the High Court’s jurisdiction, the court concluded that the appeal was competent and overruled the objection to competency with costs. There is no material distinction to be drawn between Belton v General Motors Holden’s Ltd (No 1) and this case.

12. As will be seen though, there are reasons why, having regard to some other earlier authority, Mr Kennedy came to take the course which he did in objecting to the competency of the appeal.

13. Of the remaining grounds in the objection to competency, those specified in paragraphs 3 and 4 may conveniently be considered together. Paragraph 3 alleges that the appeal is incompetent because it does not properly plead the relief sought, as required by O 7, r 8(d) RSC. Paragraph 4 alleges that the address for service is not in...