Motor Vehicle Insurance Limited v Niugini Nominees Limited (2014) SC1334

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 15 April 2014
• Court: Supreme Court
• Citation: (2014) SC1334
• Docket Number: SCA NO 47 OF 2014
• Year: 2014
• Judgement Number: SC1334

Full Title: SCA NO 47 OF 2014; Motor Vehicle Insurance Limited v Niugini Nominees Limited (2014) SC1334

Supreme Court: Makail, J

Judgment Delivered: 15 April 2014

SC1334

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 47 OF 2014

BETWEEN

MOTOR VEHICLE INSURANCE LIMITED

Appellant

AND

NIUGINI NOMINEES LIMITED

Respondent

Waigani: Makail, J

2014: 14th & 15th April

PRACTICE & PROCEDURE – Application for leave to appeal – Proposed appeal against refusal to grant adjournment of application for default judgment – Principles of – Arguable case – Reasons for adjournment – Whether satisfactory – Whether proposed grounds are arguable - Substantial injustice – Substantial monetary judgement – Supreme Court Act – s. 14(3)(b) – Supreme Court Rules – O 7, rr. 1, 2, 3 & 4.

Cases cited:

Joseph Nandali v. Curtain Brothers Limited: SCA No 14 of 2011 (Unnumbered & Unreported Judgment of 04th May 2012).

Paul Amaiu v. Sir Albert Kipalan & Ors (2009) SC991

Mudge v. Secretary for Lands [1985] PNGLR 387

Pacific Rim Constructors–Singapore Pty Ltd v. Huala Hire & Construction Ltd (2012) N4710

Matiabe Oberia v. Chief Inspector Michael Charlie (2005) SC 801

Counsel:

Mr R Lindsay & Ms D Gavara-Nanu, for Appellant

Mr P Lowing & Mr G Geroro, for Respondent

RULING

15th April, 2014

1. MAKAIL, J: There are four applications for ruling. They are:

1.1. The appellant’s application for leave to amend the names of the parties.

1.2. The respondent’s objection to competency.

1.3. The appellant’s application for leave to appeal.

1.4. The appellant’s application for stay.

2. As I informed counsel at the hearing, for convenience reasons, I decided to hear all applications and reserve to rule on them at one go. In that way, it would save parties time and costs to move each application.

3. First, I deal with the appellant’s application for leave to amend the names of the parties. Mr Lindsay of counsel for the appellant submits that leave be granted to the appellant to amend the names of the parties to correct the error in the names of the parties. He was unable to refer the Court to the relevant provision in the Supreme Court Rules vesting power in the Court to amend documents filed in the Supreme Court but his attention was drawn by the Court to O 8, rr. 50 and 51 of the National Court Rules and O 2, r. 1(h) of the Supreme Court Rules which when read together, vest power in the Supreme Court to grant an amendment.

4. He further submits that the proposed amendments will not adversely prejudice the respondent as the appellant seeks to correct typographical errors in the name of the parties and that they are relevant and necessary to the issues raised in the proposed appeal. The proposed changes are the name of the appellant by adding letter “s” to the word “Vehicle” and deleting the word “Limited” and replacing it with the letters “Ltd”. As to the respondent, it is the swapping of the word “Niugini” with “Nominees” to read “Nominees Niugini Limited”. These errors, he submits, were a result of the short and rush preparation of the application by the lawyers given the urgency to file the application for leave to appeal and application for stay.

5. Finally, Mr Lindsay submits that the proceeding has just been commenced and the Court has yet to decide the question of leave. The respondent suffers no prejudice at this stage and will be given an opportunity to be heard if leave is granted. For these reasons, he submits that leave be granted to amend the names of the parties.

6. Mr Lowing and Mr Geroro of counsel for the respondent objected to the application as being misconceived and an abuse of process. They submit that firstly, the appellant did not cite the jurisdictional basis of the application and secondly, it moved the application without notice, in that, it did not file and serve a notice of motion for the application. In any case, there is provision in the Supreme Court Rules, O 7, rr. 25 and 26 for amendments and the appellant was required to file a supplementary notice of appeal. It did not and to bring an application for leave to amend is an abuse of process.

7. This submission received a strong submission in reply from Mr Lindsay who submitted that O 7, rr. 25 and 26 have no application in this case because they apply to appeals commenced by notice of appeal. In this case, it is an application for leave to appeal.

8. The Supreme Court Rules, O 13, r. 15 requires that all interlocutory applications must cite the jurisdictional basis of the application and must be made in Form 4. The appellant did not file and serve an application in Form 4 and I accept the submission of the respondent that the appellant has failed to give notice of the application to amend to the respondent and of course the Court. In addition, without an application, there would be no Form 4 application for the appellant to cite the jurisdictional basis of the application. The application suffers from these procedural flaws or defects and stands the risk of being dismissed on these grounds alone if O 13, r. 15 (supra) were to be strictly applied: see Joseph Nandali v. Curtain Brothers Limited: SCA No 14 of 2011 (Unnumbered & Unreported Judgment of 04th May 2012).

9. But that is not all. I consider that a party, such as the respondent, who objects to the application for leave to amend, must show how it is being prejudiced by the failure to give notice and citation of the jurisdictional basis of the application. I say this because, in my view, these procedural requirements are designed to ensure that parties are given opportunity to be heard before a decision is made. This is a fundamental principle of natural justice which the Court Rules seek to preserve. In this case, both sides were heard on the application and the respondent did not show how it has been prejudiced by the failure to give notice nor has it been shown that it has been prejudiced by the failure to cite the jurisdictional basis of the application.

10. Indeed, I note that Mr Lowing and Mr Geroro were cognisance of the fact that the appellant was seeking to amend its name and that of the respondent. They ably made submissions by advancing the argument that the whole application was misconceived and an abuse of process because the appellant failed to comply with O 7, rr. 25 and 26 of the Supreme Court Rules. These rules, they submit, permit the appellant to amend the name of the parties without the need to file an application. They suggested that the appellant should simply file a supplementary notice of appeal. These rules state:

“Division 8.—Amendment by supplementary notice

25. A notice of appeal may, before the date of appointment to settle under Rule 42 be amended without leave by filing a supplementary notice.

26. A party who files a supplementary notice under Rule 25 shall file and serve it in accordance with Rule 13. The addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment in question, or such further period as has been allowed by a Judge within those 40 days.”

11. For these reasons, I am not satisfied that the belated application to amend will and has prejudiced the respondent and I refuse the respondent’s objection to dismiss the application for leave to amend. I now consider whether to grant leave to amend. In opposing the application for leave to appeal and the application for leave to amend, the respondent filed an objection to competency. Mr Lowing and Mr Geroro asked me to consider this objection, submitting that in an application for leave to appeal, a single judge of the Supreme Court has jurisdiction to determine an objection to competency together with the application for leave to appeal. They cite the case of Paul Amaiu v. Sir Albert Kipalan & Ors (2009) SC991 as authority for this proposition. Mr Lindsay does not take issue with this submission.

12. I have considered the respondent’s submission and cited the case and I am satisfied that this Court has jurisdiction to hear an objection to competency, although I should point out that, the cited case was decided based on the old Supreme Court Rules O 7, r. 16 which is identical to the current Supreme Court Rules, O 7, r. 17. I will therefore, consider it with the application for leave to appeal.

13. In the respondent’s objection, Mr Lowing and Mr Geroro submit that the proper person who ought to be named as the appellant is “Motor Vehicles Insurance Ltd”. The typographical error, omitting the letter “s” from the word “Vehicles” is fatal to the proposed appeal. The proper person who ought to be named as the respondent is “Nominees Niugini Limited” and not “Niugini Nominees Limited”. The incorrect naming of the respondent is also fatal to this proposed appeal.

14. They further submit that the named appellant and the named respondent are not natural persons or corporate entities, thus having no legal capacity to sue or being sued under ss. 14, 15, 16 and 17(1) of the Companies Act, 1997 or any other law, to appeal under s. 17 of the Supreme Court Act. To appeal in the name of the named appellant against the named respondent would be...