Hermit Island Limited and Hermit Seafoods Limited and Korohon & Sons Enterprises Ltd and Chapoko Limited and Marine Products (PNG) Limited and Wadi Exports Imports Limited v National Fisheries Authority and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Kapi, CJ, Sevua & Lenalia, JJ
• Judgment Date: 30 April 2010
• Court: Supreme Court
• Citation: (2010) SC1026
• Docket Number: SCA 75 of 2006
• Year: 2010
• Judgement Number: SC1026

Full Title: SCA 75 of 2006; Hermit Island Limited and Hermit Seafoods Limited and Korohon & Sons Enterprises Ltd and Chapoko Limited and Marine Products (PNG) Limited and Wadi Exports Imports Limited v National Fisheries Authority and The Independent State of Papua New Guinea

Supreme Court: Kapi, CJ, Sevua & Lenalia, JJ

Judgment Delivered: 30 April 2010

SC1026

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 75 of 2006

BETWEEN

HERMIT ISLAND LIMITED

First Appellant

AND

HERMIT SEAFOODS LIMITED

Second Appellant

AND

KOROHON & SONS ENTERPRISES LTD

Third Appellant

AND

CHAPOKO LIMITED

Fourth Appellant

AND

MARINE PRODUCTS (PNG) LIMITED

Fifth Appellant

AND

WADI EXPORTS IMPORTS LIMITED

Sixth Appellant

AND

NATIONAL FISHERIES AUTHORITY

First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Kapi, CJ, Sevua & Lenalia, JJ

2007: 29 August

2010: 30 April

PRACTICE AND PROCEDURE – Appeal against question of law and mixed question of law and fact - Leave is not required – Notice of Appeal to be filed in accordance with Form 8 – Order 7 Rule 8 (e) Supreme Court Rules

PRACTICE AND PROCEDURE – Appeal against questions of fact alone – Leave is required – Application for leave to appeal to be filed in accordance with Form 7 – Order 7 Rule (2) (e) Supreme Court Rules.

Held: - 1. Where a person desires to appeal against questions of law as well as questions of mixed fact and law, the appeal is as of right. Leave to appeal is not required and the appeal must be filed in accordance with Form 8 Supreme Court Rules. (Henzy Yakam & Ors v. Dr. Stuart Merriam & Anor (1997), SC 533, 27 November 1997, adopted and followed).

2. Where a person desires to appeal against questions of facts alone, leave is required. Application for leave to appeal must be filed in accordance with Form 7 Supreme Court Rules. (Henzy Yakam & Ors v. Dr. Stuart Merriam & Anor (1997), SC 533, 27 November 1997, adopted and followed).

3. Forms 7 and 8 stipulate two distinct procedures. Therefore the grounds of appeal and grounds of application for leave to appeal must not be incorporated into a single notice of appeal.

4. Where an appellant does not comply with the provisions of Order 7 Supreme Court Rules, and file the appropriate Form 7 or Form 8, his appeal will be rendered incompetent.

Cases cited in judgment

The Honourable John Nilkare v The Ombudsman Commission of Papua New Guinea [1996] PNGLR 413

Henzy Yakam & Ors v. Dr. Stuart Merriam & Anor (1997)(unreported), SC 533, 27 November 1997

Bruce Tsang v. Credit Corporation (PNG) Limited [1993] PNGLR 112

Legislations Cited:

Supreme Court Act, ss 14, 17

Supreme Court Rules, Order 7

Supreme Court Forms – Forms 7 and 8

Counsel:

N. Kiuk, for Appellants

R. Mulina, for First Respondent

No Appearance, for Second Respondent

30 April, 2010

* KAPI, CJ: Retired and deceased.

1. SEVUA & LENALIA, JJ: This appeal was heard on 29 August 2007, however since then, the President of the Court, Sir Mari Kapi, then Chief Justice, had retired and subsequently passed on. The remaining members of the Court has proceeded in accordance with s.3 of the Supreme Court Act which provides: -

3.	Continuation of appeal notwithstanding absence of Judge
(1)		Where in the course of an appeal before the Supreme Court and at any time before the delivery of the judgment, a Judge hearing the appeal is unable, through illness or any other cause, to attend the proceedings or otherwise to exercise his functions as a Judge -
(a)			the hearing of the appeal shall, subject to Subsection (2), continue, and
(b)			the judgment shall be given by the remaining Judges; and
(c)			the Court shall be deemed to be duly constituted.
(2)		Where -
(a)			either party does not agree to the remaining Judges continuing to hear the appeal; or
(b)			in any case, there is only one Judge remaining able to hear the appeal,
the appeal shall be reheard.

2. This judgment is therefore the judgment of the majority and the remaining members of the Court.

3. This course is consistent with the Supreme Court decision in The Honourable John Nilkare v. The Ombudsman Commission of Papua New Guinea [1996] PNGLR 413 at p.417 –

“Where a judge is unable to attend the proceedings or otherwise unable to exercise his functions as a judge, s.3 (1) of the Act enables the remaining judges to proceed to give judgment. This is subject to s.3 (2) of the Act.”

4. Before us was an objection to competency of the appeal filed by the first respondent only.

5. The notice of appeal contained nine grounds. These are as follows:-

3.1 His Honour erred in law when he failed to refuse the Application by the Respondents by way of their Amended Notice of Motion filed on 8 June 2006, on the basis that:

(a) The directions issued by the National Court on 13 April 2006 were substantially compiled (sic) with prior to the issuance of the same. That being:-

(b) The initial return date as per the National Court Directions of 13 April 2006 was 23 May 2006. However without notice to the Appellants or their lawyers the National Court proceeded to issue Court Directions on 25 May 2006, in the presence of the Respondents lawyer only.

(c) That it was the National Court Directions of 25 May 2006 that directed the following:

“1. The matter is adjourned to 8 June 2006 for full directions hearing.

2. All parties must be fully prepared on the returnable date to assist the Court.

3. Should the Plaintiffs default in appearing, the matter shall stand dismissed.

4. Should the Defendant fail to appear, judgment shall be entered against them.”
That the above Court Directions were not at any time made known to the appellants or their lawyers by the respondents or their lawyers. His Honour failed to consider this material fact which was brought to his attention on 14 June 2006 by the appellant’s lawyers.

3.2 His Honour upon accepting the appellant’s affidavit, failed to adequately consider, or at all the facts deposed to in the affidavit of Nickson Kiuk Magela sworn on 14 June 2006, which affidavit was critical to the determining of the effect of the self-executing orders of 25 May 2006.

3.3 His Honour erred in failing to find that the National Court Directions warranting dismissal of the proceedings were previously compiled (sic) with and that His Honour failed to consider adequately, or at all, the affidavit of Ben Lomai sworn on 19 October 2005 and filed on 25 October 2005 which manifested such facts.

3.4 His Honour erred in law and fact when he failed to exercise His discretion properly to set aside the self-executing orders when the Court became aware that the appellants nor their lawyers were aware of the National Court Orders of 25 May 2006 and the fact that the initial National Court Directions of 13 April 2006 were completed and at several occasions trial dates vacated at the National Court.

3.5 His Honour erred in law when His Honour intimated that owing to the self-executing nature of the National Court Directions of 25 May 2006, He did not have any power or jurisdiction to set aside the Directions, or and to extend same as sought by the appellants.

3.6 His Honour erred in law in distinguishing between a “Court Order” and a “Court Direction” and whether the words mean the same in meaning and effect

3.7 His Honour erred in law by failing to disqualify Himself in presiding over this matter in the Court below since prior to His Honour’s appointment as an Acting Judge and subsequently as the Judge of the National and Supreme Court of Papua New Guinea, His Honour was a Consultant with the Respondents lawyers’ Law Firm and such fact was peculiarly within his knowledge.

6. The first respondent’s objection to competency was filed on 15 August 2006. These are the three grounds of objection:

1. The Notice of Appeal filed on 21 July 2006 and served on the fifth respondents lawyers on 9 August 2006 purports at paragraph 1 that the appellant appeals the judgment of Honourable Justice Gabi dated 14 June 2006 against the appellant, which is an order that the fifth respondent says does not exist.

2. Under paragraph 4.2 of the Notice of Appeal, the appellants seek to quash a “…….judgment of the National Court dated 25 June 2006”, which the fifth respondent says is an order that also does not exist.

2. The grounds of appeal under paragraph 3.1, 3.2, 3.3, and 3.7 raise pure questions of fact and therefore require leave of this Honourable Court under Section 4 (2) (c) of the Supreme Court Act (Chapter 37), in that:

(a) Paragraph 3.1(a) – require confirmation from the transcripts of 14 June 2006 whether the appellants have in fact complied with the Directions of the National Court made 13 April 2006; and

(b) Paragraph 3.1(b) & (c) – require production of transcripts of proceedings in WS No. 1387 of 2001 for 25 May 2006, and the affidavit materials (if any) filed by the appellants to confirm whether the appellants’ lawyers were indeed absent and therefore could not know the next return date of proceedings WS No. 1387 of 2001; and

(c) Paragraph 3.2 requires confirmation from the transcripts of 14 June 2006 as to:

(i) Whether His Honour did in fact accept the affidavit of Nixon Kiuk...