PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 22 August 2003
• Citation: (2003) SC717
• Court: Supreme Court
• Year: 2003
• Judgement Number: SC717

Full Title: PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717

Supreme Court: Sakora J

Judgment Delivered: 22 August 2003

SC717

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 42 of 2003

BETWEEN:

PNG FOREST AUTHORITY

Appellant

AND:

SECURIMAX SECURITY PTY LTD

Respondent

Waigani : Sakora J

2003 : 7th & 22nd August

APPEALS – Supreme Court – As of right – Leave to appeal – Objection to competency of – Supreme Court Act, ss 3 (1) and (2), and 5 (1) – Supreme Court Rules, O. 7, r. 14.

APPEALS – Supreme Court – As of right – Leave to appeal – Distinction between final and interlocutory orders – Test of

CASES CITED

The following are cases cited in the judgment:

Straits Contracting (PNG) Pty Ltd v. Branfil Investments Ltd [1988] PNGLR 339.

Steven Charles Pickthall v. Lae Plumbing Pty Ltd [1994] PNGLR 363.

Hall v. Nominal Defendant (1966) 117 CLR 423.

Carr v. Financial Corporation of Australia Ltd (1981) 147 CLR 246

Australian Dairy Corporation v. Murray Goulburn Co-operative Co Ltd [1990] VR. 355.

TEXTS

Halsbury’s Laws of Australia, Vol. 20. Part VIII.

Civil Procedure, by S Colbran, G Reinhardt, S Jackson & R Douglas, 2nd ed., Butterworths (2002)

S Kassman for the Appellant.

L Igo for the Respondent.

SAKORA J: Before me are two applications, one by the respondent objecting to the competency of an appeal by the appellant, and the other an application for leave to appeal by the appellant. I heard counsel on the respondent’s objection and then on the application for leave to appeal sitting as a Supreme Court pursuant to s 5 (1) Supreme Court Act (the Act).

The intended appeal, if leave is granted, arises from the decision of the National Court of 7 April 2003 presided over by Justice Sevua in respect of the matter WS No. 1095 of 1997. His Honour’s decision is said to have the following effects on the case between the parties:

1. Refusal to grant an application by the appellant (plaintiff) for adjournment of the respondent’s Notice of Motion seeking the Statement of Claim to be struck out and the proceedings to be dismissed, to enable the appellant to file affidavit material.

2. Appellant’s Statement of Claim ordered to be struck out and the proceedings dismissed with costs.

The respondent objects to the appeal pursuant to a Notice of Objection to Competency filed 22 May 2003. The objection is made on the ground that:

The Grounds contained in paragraph 2.1. (b) and paragraph 2.2. (a), are not findings which were made by the judge.

The objection is said to be made pursuant to O. 7, r. 14 of the Rules of the Supreme Court (the Rules). This rule is in the following terms:

14. A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal –

(a) file an objection in accordance with form 9; and

(b) serve a copy of the objection on the appellant.

In support of the objection Ms Igo of counsel for the respondent referred me to and relied on the affidavit of Royale Thompson sworn 21 and filed 22 May 2003. Counsel also cited and relied on the following two previous Supreme Court decisions:

· Straits Contracting (PNG) Pty Ltd v. Branfill Investments Ltd [1988] PNGLR 339; and

· Steven Charles Pickthall v. Lae Plumbing Pty Ltd [1994] PNGLR 363.

The affidavit of Royale Thompson deals with each of the grounds of appeal relied on by the appellant, thereby deposing to the respondent’s version of the facts leading to the institution of the application for leave. In the end, the matters deposed to in this affidavit are intended to lend support to the contention that the respondent’s Notice of Motion (the interlocutory application heard by his Honour on 7 April 2003 and granted) was justified and well-grounded, and that the appellant’s lawyers had ample opportunity to seek adjournment before the application to strike out was heard. The justification relied on is the assertion that copies of the documents in the appellant’s (plaintiff’s) List of Documents had not been provided or produced pursuant to the service of a Notice to Produce.

The above cited cases are relied on to support the contentions, firstly, that the intended appeal is incompetent and that, secondly, “no serious questions of law” are demonstrated in the grounds of appeal.

Mr Kassman of counsel had spoken to (and handed up) his written submissions on both the objection to competency and the appellant’s application for leave to appeal. Learned counsel referred to and relied on his own affidavit sworn and filed 6 August 2003, in which affidavit he deposes to the history of the proceedings leading up to and during the hearing of the respondent’s (defendant’s) Notice of Motion to strike out the Statement of Claim and dismiss the Writ of Summons.

It is the appellant’s submission that, firstly, the objection to competency of the appeal ventures into challenges to the merits of the appeal rather than any preliminary issue(s) of law on “competency” or otherwise of the appeal process. Thus, it is argued, the objection should be dismissed as no issue(s) of competency is or are demonstrated. Secondly, in relation to the application for leave to appeal learned counsel for the appellant contends that, contrary to the submissions on behalf of the respondent, his Honour did make a decision affecting the rights of the parties, thereby entitling the plaintiff (appellant) to seek leave of the court to appeal that decision. Leave is required as the decision sought to be challenged on appeal was an interlocutory decision. Refusing to grant application to adjourn was interlocutory; striking out the Statement of Claim and dismissing the proceedings was interlocutory though the effect was a final determination of the rights of the parties. And, it is argued further, the grounds of appeal do demonstrate serious issues of law for the Supreme Court’s consideration and determination.

In support of the submissions on the two issues before the Court now, Mr Kassman makes references to and relies upon case law (including the two Supreme Court decisions cited by Ms Igo, supra) and the Halsbury’s Laws of Australia, Volume 20 Part VIII paras. 325 – 12050. I am greatly assisted in my determination of these applications by those cases and the learned text.

CONCLUSION

I accept the appellant’s submissions that the objection delves into matters relating to the merits of the appeal itself rather than any preliminary issue(s) of competency. An objection to competency must raise serious threshold issues concerning legality or viability, or otherwise, of a particular process. In relation to appeals, objection(s) can legitimately be taken to non-compliance with statutory time limits because...