Hii Yii Ann v Canisius Kami Karingu (2003) SC718

• Jurisdiction: Papua New Guinea
• Judge: Hinchlifffe J, Kirriwom J, Mogish J
• Judgment Date: 13 June 2003
• Citation: (2003) SC718
• Docket Number: SCA 19 and 20 of 2002
• Court: Supreme Court
• Year: 2003
• Judgement Number: SC718

Full Title: SCA 19 and 20 of 2002; Hii Yii Ann v Canisius Kami Karingu (2003) SC718

Supreme Court: Hinchlifffe J, Kirriwom J, Mogish J

Judgment Delivered: 13 June 2003

SC718

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 19 & 20 OF 2002

BETWEEN:

HII YII ANN

-Appellant-

AND:

CANISIUS KAMI KARINGU

-Respondent-

LAE: Hinchlifffe, Kirriwom & Mogish, JJ.

2002: 30th July

2003: 13th June

ADMINISTRATIVE LAW – Interlocutory judgement – Appeal – Whether leave to appeal required – Effect and nature of ruling final or interlocutory - Whether interlocutory judgement disposes of rights of parties regardless of outcome

PRACTICE & PROCEDURE – Objection to competency – Dismissal of application – Whether dismissal of objection to competency appealable as of right or with leave – Whether ruling is interlocutory or final – ss.4, 14 Supreme Court Act and r.14 Supreme Court Rules.

Cases Cited:

1. Yakham & Ors v. Merriam & Anor [1997] Supreme Court Judgement SC533

2. Dowsett Engineering (New Guinea) Pty Ltd v. Edwards and R.E Jordan trading as Jordan Lighting [1979] PNGLR 426 (SC161).

3. Ruma Constructions Pty Ltd v. Christopher Smith [1999] Supreme Court Judgement SC600

4. Shelly v. PNG Aviation Services [1979] PNGLR 119

5. Provincial Government of North Solomons v. Pacific Architecture [1992] PNGLR 145

6. Rimbink Pato v. The Hon. Sir Julius Chan and the Hon. Chris Haiveta [1997] Supreme Court Judgement SC527

7. LA Jarden Collector Agency Pty Ltd and Richard Hill & Associates v. Masket Iangalio and Public Curator of PNG [1998] Supreme Court Judgement SC597

K. Frank for Appellant/Respondent

Applicant/Respondent in Person

BY THE COURT:

1. This is the Respondent’s application objecting to the competency of the Appellant’s appeal based on these grounds:

.2 That the appeal herein has been made in respect of an interlocutory judgement or order without first making an application for leave to appeal to the Supreme Court as requirement of by s.14(3)(b) of the Supreme Court Act Chapter 37.

1.2. That the appeal herein has been made in respect of questions of fact in particular grounds 3.1 (a), (b), (c), (d), (e), (f), (g), 3.2 and 3.5 without first making application for leave to appeal to the Supreme Court as required of under s.4(2)(c) and s.4(2)(c) of the Supreme Court Act Chapter 37.

THE BACKGROUND

2 The appeal that is the subject of this competency application or objection by the Respondent is an appeal by the Appellant emanating from a ruling made by Sheehan, J on the 8th March 2002 in which His Honour dismissed an application by Motion filed by the Appellant in the Supreme Court in SCA No. 49 of 1997 to dismiss the Respondent’s application for review seeking, inter alia, a review of the Registrar’s decision in allowing only the Respondent’s out-of-pocket expenses to be taxed and disallowing the others.

3 The Appellant’s ground for objection to the competency of the application was that the Motion seeking review of the Registrar’s decision was filed outside the 14 days time limit stipulated by O. 22 r.60 (2) of the National Court Rules and was therefore incompetent. After hearing the objection on the competency issue, Sheehan, J ruled that the motion was filed within time and was competent and dismissed the objection.

4 Against this ruling, the Appellant has now filed an Application for Leave to Appeal ( SCA19 of 2002 ) and a Notice of Appeal (SCA20 of 2002 ) challenging this ruling or judgement of Sheehan, J.

5 The case itself has a long history and in order to put the entire scenario into it’s proper perspective, we need to go back to the beginning where this whole saga began.

6 The Appellant commenced proceedings in the National Court seeking damages against the Respondent for malicious prosecution by writ of summons numbered WS1238/96. A judgement in favour of the Appellant was entered by default.

7 This default judgment was set aside on appeal by the Supreme Court in the proceeding entitled SCA47 of 1997 Canisius Kami Karingu v. Hii Yii Ann whereupon the Supreme Court ordered costs in favour of the Respondent in the words ‘costs follows the event.’

8 Mr Karingu then submitted his itemised bill of costs to be taxed on a solicitor-client scale which the Appellant objected to. The Appellant contended that the Respondent was only entitled to out-of-pocket expenses that could be submitted for taxing by the Registrar as he was not a lawyer for purposes of the Lawyers Act because he held no practising certificate.

9 This simple issue of costs became contentious before the Registrar who ultimately had to hear arguments and to give a ruling on the question as to whether the Respondent was entitled only to out-of-pocket expenses or other costs incurred charged as well in his itemised bill of costs. The Registrar ruled that the Respondent was not a lawyer for purpose of s.35 of the Lawyers Act and can be taxed on out-of-pocket expenses only and not the rest. Consequently, only K400.00 was allowed for taxing by the Registrar for which a Certificate was issued on 19 June 2001.

10 The Respondent sought review of the Registrar’s ruling by a Notice of Motion to the Supreme Court but the review was stayed pending the decision in Canisus Karingu v. The Law Society of PNG – SCA 69/96. After that decision was handed down the Respondent pursued his application for review on this matter but the Appellant herein objected to the competency of that application which was over-ruled by Sheehan, J thus taking this matter to this level where we are now.

11 Mr Karingu’s objection is to the competency of this two-pronged appeal filed by the Appellant against what he submits an “interlocutory judgement” of Sheehan, J. Mr Karingu submits that that ruling was interlocutory because the substantive matter in the dispute was his application for review of the Registrar’s ruling on the taxation of costs. The Appellant sought to have that application dismissed on competency ground which was dismissed. The Appellant’s grievance is the dismissal of the competency argument. That is the ruling that is appealed against.

12 The question that quite correctly arises at the outset is whether that ruling is a final judgement or an interlocutory one? That is where the argument must be confined in our view. In this respect in a way we agree with Mr Karingu that there is no need to confuse the central issue in the dispute by lodging two documents, an Application for Leave to Appeal and a Notice of Appeal in the guise of conforming with the requirements of the Law set out in Yakham v. Merriam [1997] Supreme Court Judgement SC533 as the Appellant has attempted to do here. In fact the two-pronged appeal itself is even a misconception of the judgement in Yakham v. Merriam (supra) because this is not an appeal against a final judgment following a substantive hearing of the dispute that ultimately determined the rights of the parties. This case is not setting any new precedent but simply clarifying the law governing the appeal process in the light of the seemingly conflicting views that prevailed since the decisions in Opai Kunangel v The State [1985] PNGLR 144; Nerau v Solomon Taiyo Ltd [1993] PNGLR 395 and Tsang v Credit Corporation [1993] PNGLR 112.

13 The question as to whether a judgement is final or interlocutory has been determined in various decisions of this Court. Many of these cases were correctly cited to us by Mr Karingu.

14 Mr Frank for the Appellant made extensive references to the relevant provisions in the Supreme Court Act, Supreme Court Rules and National Court Rules on costs relating to appeals to the Supreme Court. It is already trite law that any appeal to the Supreme Court from the National Court on questions of law and questions of mixed fact and law are as of right and do not require leave. But any appeal that challenges the trial judges findings of fact can only be permitted by leave of the Supreme Court. The Supreme Court in Yakham v. Merriam (supra) was addressing when exactly can such leave be sought and how that can be done.

15 But the line of authorities that Mr Karingu cited to this Court show clear distinction between the question of leave where appeal is based on findings of facts and where leave is required pursuant to section 14 (3)(b)(iii) of the Supreme Court Act. Simply put, s.14(3)(b)(iii) provides that ‘(3) No appeal lies to the Supreme Court without leave of the Supreme Court (b) from an interlocutory judgement made or given by the National Court except…. - (iii) ….in such (other) cases prescribed by the Rules of Court as are in the nature of final decisions.’

16 The issue here is whether the ruling of 8th March 2002 by Sheehan J is interlocutory or final. In other words does that ruling finally dispose of the dispute between the parties i.e.,...