NCD Water and Sewerage Limited trading as Eda Ranu v Sam Maskuman Tasion and Maskuman Limited (2002) SC696

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Kirriwom J, Davani J
• Judgment Date: 04 October 2002
• Court: Supreme Court
• Citation: (2002) SC696
• Docket Number: SCA No 36 of 2002
• Year: 2002
• Judgement Number: SC696

Full Title: SCA No 36 of 2002; NCD Water and Sewerage Limited trading as Eda Ranu v Sam Maskuman Tasion and Maskuman Limited (2002) SC696

Supreme Court: Hinchliffe J, Kirriwom J, Davani J

Judgment Delivered: 4 October 2002

1 Supreme Court Act s14(3)(b)—whether summary judgment for unliquidated amount with damages to be assessed is a final judgment—whether leave is required.

2 Joseph Davis and Irene Davis v David Tasion, Controller and Commissioner of Police, John Lohberger, Chief Collector of Taxes, Lawrence M Newell, Sheriff of Court and The Independent State of Papua New Guinea (1989) SC364, National Capital District Commission v PNG Water Ltd, JC–KRTA Consulting Group (PNG) Pty Ltd and NCD Water and Sewerage Pty Ltd (1999) SC624, Christopher Haiveta v Paias Wingti (No 2) [1994] PNGLR 189, PNG National Stevedores Ltd v The Honourable Andrew Baing, MP and The Independent State of Papua New Guinea (SCA 465) (SCA 40 of 2001, 21 March 2002), Ruma Construction Pty Ltd v Christopher Smith (1999) SC600, LA Jarden Collector Agency Pty Ltd and Richard Hill & Associates v Masket Iangalio and Public Curator of Papua New Guinea (1998) SC597

Objection to competency of Appeal

___________________________

SC696

IN THE SUPREME COURT )

OF JUSTICE IN WAIGANI )

PAPUA NEW GUINEA )

SCA NO. 36 OF 2002

BETWEEN:

NCD WATER & SEWERAGE LIMITED trading as EDA RANU

Appellant

AND:

SAM MASKUMAN TASION

First Respondent/Applicant

AND:

MASKUMAN LIMITED

Second Respondent/Applicant

WAIGANI : HINCHLIFFE, KIRRIWOM, DAVANI, JJ

2002 : July 30

September 27

: October 4

Supreme Court Act s. 14 (3) (b) - whether summary judgment for unliquidated amount with damages to be assessed is a final judgment

- whether leave is required.

A. Furigi for the Applicants/First and Second Respondents

T. Dawidi for the Appellant

DECISION

(objection to competency of Appeal)

4 October 2002

BY THE COURT: The application before this court is an objection to the competency of an appeal filed by the Respondents (‘Applicants’). Before consideration of arguments raised by both counsel, it is necessary that the court understand the history of this matter. Below is a brief chronology.

Chronology

1. 4 April 2002 – National Court Waigani entered summary judgment for the Applicants in proceedings WS 1377 of 1999.

Judgment for damages to be assessed and for costs.

2. 9 May 2002 - Appellant filed this appeal

3. 23 May 2002 - Applicants filed a Notice of Objection to Competency.

4. 20 June 2002 – Applicants filed an Amended Notice of Objection to Competency of Appeal.

Background

On 4 April 2002, the court, after hearing parties, ordered that summary judgment be entered for the Applicants and for damages to be assessed. The Appellant filed an appeal against this decision.

The action arose out of a breach of contract by the Appellant where the Appellant terminated the Applicants Consulting Agreement. The court found there to be a duly approved and executed contract and that the Appellant did not have a Defence. At the National Court hearing, the Appellants did not offer any evidence in reply, only making submissions in response to the application for summary judgment.

Notice of Objection to Competency

The applicant raises five grounds of incompetency which are summarized as follows;

1. The grounds of appeal fail to specify with sufficient particularity the grounds relied on under O. 7 R. 8 and 9 of the Supreme Court Rules (‘SCR’);

2. The grounds of appeal raise questions of fact and as such, leave is required;

3. The judgment being appealed against is not a final judgment and as such, leave is required.

Generally, the Applicants argue that the Appeal is incompetent because the Appellant must first obtain leave to appeal pursuant to s. 14(3) (b) of the Supreme Court Act (‘SCA’). He submits that this is because the National Court (Summary) judgment is not a final order.

The Law

Set out below is the law in relation to the matters raised in the objection to competency. These are;

Section 14 (1) (a) (b) (c) (3) (b) of the SCA states:-

“14 Civil appeals to the Supreme Court

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court –

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact

(3) No appeal lies to the Supreme Court without leave of the Supreme Court –

…

(b) from an interlocutory judgment made or given by the National Court …

O. 7, R. 8 (c) and 9 of the SCR states;

“8. The Notice of Appeal shall:-

(a) …

(b) …

(c) state briefly but specifically the grounds relied upon in support of the appeal”.

“9. Without affecting the specific provisions of the Rule, it is not sufficient to allege that a judgement is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law”.

Analysis of arguments on Objection to Competency and Notice of Appeal;

Ground 3(i) of the Notice of Appeal states that the learned Trial Judge was wrong in law in entering summary judgment contrary to O. 12 R. 38 of the National Court Rules (‘NCR’).

The first ground of appeal reads;

“The learned judge erred in law in entering summary judgment contrary to O. 12 R. 38 of the National Court Rules and the established legal principles relating to entry of summary judgment.”

The Applicant submits that the Appellant must particularize the errors of law as required by O. 7 R. 8 and 9 of the NCR. The position at law is that grounds alleging errors of law must be particularized. (see Christopher Haiveta, Leader of the Opposition v Paias Wingti, Prime Minister and Attorney General and National Parliament (No. 2) (1994) PNGLR 189 and PNG National Stevedores Ltd v The Honourable Andrew Baing, MP and the State SCA 40 of 2001, 21.3.02) (SCA 465). There the court held that there are two reasons for this rule.

1. He must specify the basis for this allegation in order to inform the respondent the basis of the appeal so that they can prepare for proper arguments on appeal.

2. To inform the court of the issues in law that would be argued by both parties on appeal.

If O. 7 R. 9 is not complied with, by the particularizing of the ground of appeal, the ground will be incompetent unless an application by the Appellant to amend is made (see Christopher Haiveta (supra)).

This ground of appeal does not contain particulars of the error in law as prescribed by O. 7 R. 8 and 9 of the SCR. Accordingly, this ground is incompetent.

The second ground of appeal is pleaded in the alternative, that –

“The … trial judge erred in law in entering Summary Judgment when there was a Defence on the merits raising triable issues of fact and law.”

Again, the Applicant submits that because the Appellant is pleading an error in law that the ground must be fully particularized to show the grounds he is relying on, as required by O. 7 R. 9 of the NCR.

This court finds that leave must be obtained and the grounds fully particularized as these are legal procedural requirements that must be complied with.

In relation to ground 3(iii) (a) (b) (c) (d) of the Notice of the Appeal, the court notes that these are issues of fact which will require that the Appellant obtain leave in accordance with O. 14 R. (1) (c) of the SCA. This is because the grounds pleaded relate to the contract and its contents.

Ground 3 (iv) of the Notice of Appeal raises errors in law, which again must be particularized to comply with O. 7 R. 9 of the SCR. The Appellant has not particularized what he claims to be “penal in nature” and also not particularized why the “contract is void and...