Ipili Porgera Investments Limited v Bank South Pacific Limited and Resources & Investment Finance Limited (2007) SC1322

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ, Cannings J
• Judgment Date: 27 June 2007
• Court: Supreme Court
• Citation: (2007) SC1322
• Docket Number: SCA NO 15 0F 2006
• Year: 2007
• Judgement Number: SC1322

Full Title: SCA NO 15 0F 2006; Ipili Porgera Investments Limited v Bank South Pacific Limited and Resources & Investment Finance Limited (2007) SC1322

Supreme Court: Injia DCJ, Cannings J

Judgment Delivered: 27 June 2007

SC1322

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 15 0F 2006

BETWEEN

IPILI PORGERA INVESTMENTS LIMITED

Appellant

AND

BANK SOUTH PACIFIC LIMITED

First Respondent

RESOURCES & INVESTMENT FINANCE LIMITED

Second Respondent

Waigani: Injia DCJ, Cannings J

2006: 28 November,

2007: 27 June

PRACTICE AND PROCEDURE – objection to competency – notice of appeal – whether grounds of appeal stated with sufficient particularity – whether notice of appeal complies with Supreme Court Rules, Order 7, Rules 8 and 9.

JUDGES – member of Supreme Court ceasing to be a Judge after hearing of application – whether remaining Judges can deliver judgment – Supreme Court Act, Section 3, continuation of appeal notwithstanding absence of Judge.

This is a ruling on an objection to competency. The respondent to an appeal took issue with the grounds of appeal set out in a notice of appeal, arguing that they were not stated with sufficient particularity and that the appeal should be dismissed for being incompetent. Between the dates of hearing the objection and giving of judgment, one member of the bench retired so the remaining Judges had to decide as a preliminary issue whether the Court was duly constituted.

Held:

(1) The objection was made “in the course of an appeal” and Section 3 of the Supreme Court Act required the remaining Judges to give judgment.

(2) The grounds of appeal set out in a notice of appeal must meet the requirements of both Rules 8(c) and 9 of Order 7 of the Supreme Court Rules.

(3) The general requirement is that the grounds relied on in support of the appeal must be stated briefly, but specifically.

(4) If it is alleged that a judgment is against the evidence or the weight of the evidence, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate that it is against the evidence or the weight of the evidence.

(5) If it is alleged that the judgment is wrong in law, it is not sufficient for a ground of appeal to be drafted in those terms only. Instead the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law.

(6) In the present case, the grounds of appeal complied with the Rules. The appeal was not incompetent.

Cases cited

The following cases are cited in the judgment:

Haiveta v Wingti (No 2) [1994] PNGLR 189

Henao v Coyle (2000) SC655

NCD Water and Sewerage Ltd v Tasion (2002) SC696

PNG Forest Authority v Securimax Ltd (2003) SC717

OBJECTION

This was an objection to competency of an appeal.

Counsel

J L Shepherd, for the Appellant

A MacDonald, for the First Respondent

27th June, 2007

1. INJIA DCJ AND CANNINGS J: This is a ruling on an objection to competency of an appeal to the Supreme Court. The respondent argues that the grounds of appeal set out in the notice of appeal fail to comply with the Supreme Court Rules and that the appeal should be dismissed for being incompetent. The appellant says the grounds comply perfectly with the Rules and there is no good reason to dismiss the appeal. The case raises these issues:

1 What are the requirements of the Supreme Court Rules regarding drafting of grounds of appeal?

2 What happens if the grounds fail to meet those requirements?

3 Do the grounds of appeal in this case meet the requirements?

2. Before addressing those issues there is a peculiar aspect of the hearing of the objection that we need to address, plus we need to explain the background of the case.

RETIREMENT OF A MEMBER OF THE BENCH

3. When we heard the objection the court was constituted by three Judges, one of whom – Los J – has since retired. This raises the issue of whether the Court, now consisting of only two Judges, can determine the objection. Or should it be set down for rehearing before three Judges? The general requirement arising from Section 161(2) of the Constitution is:

Subject to Section 162(2) (jurisdiction of the Supreme Court) and for the purposes of any hearing, the Supreme Court shall consist of at least three Judges.

4. Section 162(2) says:

In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

5. Section 3 of the Supreme Court Act is relevant. It says:

(1) Where in the course of an appeal before the Supreme Court and at any time before the delivery of the judgement, 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 judgement 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.

6. Schedule 1.12 of the Constitution is also relevant. It says:

(1) Where a Constitutional Law requires or permits an act or thing to be done by more than two persons, a majority of them may do it.

(2) Subsection (1) does not affect any requirement of a quorum, and, subject to Subsection (3), where no quorum is prescribed for a body the quorum is the full membership of the body. …

7. Section 3 of the Supreme Court Act says that where in the course of an appeal and at any time before the delivery of judgment a Judge hearing the appeal is unable to exercise his functions as a Judge, the judgment shall be given by the remaining Judges, provided that the parties agree to that course of action. In interpreting this provision we must by virtue of Section 158(2) of the Constitution give paramount consideration to the dispensation of justice. We should avoid if possible a multiplicity of hearings and further delay. Schedule 1.12 of the Constitution encourages us to take a practical approach to such issues, so that decisions made by constitutional institutions such as the Supreme Court are made expeditiously.

8. Though we have not heard an appeal, as such, we have heard an application (the objection to competency) that is incidental to, and an integral and preliminary part of, the appeal. The objection was made “in the course of an appeal” and in our view that is sufficient for Section 3 to operate. Neither of the parties to the hearing of the objection has expressed any disagreement with the judgment being given by the remaining Judges. Therefore the Court is duly constituted, we are required to give the judgment and no rehearing is necessary.

THE NATIONAL COURT PROCEEDINGS

9. The appellant, Ipili Porgera Investments Ltd (“Ipili”), was the plaintiff in the National Court. It sued the respondents, Bank South Pacific Ltd (“BSP”) and Resources & Investment Finance Ltd (“RIFL”), claiming damages for breach of contract and negligence and recovery of over-charged interest. BSP and RIFL loaned about K4 million to Ipili in the 1990s to construct a number of buildings at Porgera, Enga Province. It was a condition of the loan agreement that each drawdown be preceded by a progress claim and a certificate issued by a quantity surveyor. Ipili claims that the bank allowed the money to be drawn down without the certification, ie that the bank lent it money negligently.

10. The writ was issued and served in late 1997. The defendants filed their defences and responded to a notice for discovery in 1998. There was then no activity on the court file for five years. In September 2003 Ipili filed a notice to set down the case for trial. The trial did not, however, eventuate. In August 2005 the defendants filed a motion for dismissal of the proceedings for want of prosecution and for failing to disclose a reasonable cause of action. The motion was heard by Salika J on 28 October 2005.

11. On 18 January 2006 his Honour handed down a written ruling, upholding the defendants’ motion and dismissing Ipili’s case both for want of prosecution and for failing to disclose a reasonable cause of action. His Honour said that the plaintiff, Ipili, had more than adequate time to progress the matter but had not done so and failed to show cause why the proceedings should not be dismissed. Further, the pleadings were badly drafted and left the defendants guessing what their wrongdoings were. His Honour dismissed the proceedings, and also dismissed a cross-motion by Ipili for an extension of time to amend its statement of claim.

THE APPEAL

12. Ipili appealed against Salika J’s judgment, then filed a supplementary notice of appeal. It is the supplementary notice of appeal that is the subject of the objection to competency. It contains...