Bruce Tsang v Credit Corporation (PNG) Ltd

• Jurisdiction: Papua New Guinea
• Citation: [1993] PNGLR 112
• Date: 30 April 1993
• Court: Supreme Court
• Year: 1993

Supreme Court: Kapi DCJ, Sheehan J, Brown J

Judgment Delivered: 30 April 1993

1 Appeals—appeal against interlocutory judgment—application for leave to appeal filed outside 40–day limit—competency of appeal

___________________________

By the Court: Sakai Management Services Pty Ltd obtained financial advances from the Respondent and the Appellant guaranteed these advances. As at 22 October 1990 about K1.1 million was owing to the Respondent. The Respondent sued the Appellant as guarantor of Sakai Management Services Pty Ltd for the sum owing.

On 14 December 1990, the Respondent filed a motion for summary judgment pursuant to O12 r38 of the National Court Rules.

On the 14th February, 1991, the Appellant filed a motion pursuant to O5 r2 of the National Court Rules seeking to join Sakai Management Pty Ltd as a Second Defendant in the action.

These two motions came on for hearing before Hinchliffe J on 22 February 1991. He handed down his decision on 11 April, 1991 in which he allowed the application for summary judgment and refused leave to join Sakai Management Services Pty Ltd as Second Defendant.

The Appellant filed a Notice of Appeal against the decision of the National Court on the 21 May, 1991. A Supplementary Notice of Appeal was filed on the 4th November, 1991. A Further Supplementary Notice of Appeal was filed on 15 May, 1992.

At the hearing of the appeal, counsel for the Respondent raised a preliminary issue. In essence, it relates to the competency of the appeal now before the Court in relation to the ruling by the trial judge refusing the application to add Sakai Management Services Pty Ltd as a Second Defendant. The issue has arisen in this way. When the original Notice of Appeal was filed, it sought to appeal against the whole of the decision. The Notice of Appeal is expressed to be without leave of the Court. Counsel for the Respondent argued that part of the decision that relate to joinder of parties is an interlocutory order and no appeal can lie to the Supreme Court except with the leave of the Court under s14(3) of the Supreme Court Act (Ch37).

The Appellant sought to overcome this by filing a Supplementary Notice of Appeal on the 4th November, 1991 with the following amendment:

"1A. Leave to Appeal is sought to the extent that the whole or any part of the judgment appealed from is an interlocutory judgment of the National Court."

We note from the record that the Respondent filed a Notice of Objection to Competency of the Notice Appeal on the 22nd October, 1991. This matter came on for hearing on the 31st October, 1991 but the Supreme Court dismissed the notice on the basis that it was filed outside the 14 days required by O7 r14 of the Supreme Court Rules.

However, this does not prevent the Respondent from raising the same issue at this stage. The issue of the competence of an appeal remains open and the Court may address it at any time before judgment. See Patterson Lowa, Minister for Minerals and Energy; Israel Israel, Mining Registrar; The State; Mt Kare Holdings Pty Ltd; Gaudi Dadi, Acting Government Printer; Dibusa Mining Pty Ltd v Wapula Akipe, Simon Kambe, and Anton Pakena [1991] PNGLR 265; [1991] PNGLR 399. The Respondent filed another Notice of Objection to Competency of the Supplementary Notices on 16 June, 1992. It is this objection which has been raised by the Respondent for determination by this Court.

S14(3)(b) of the Supreme Court Act provides:

"No appeal lies to the Supreme Court without the leave of the Court—

. . .

(b) from an interlocutory judgment made

or given by the National Court . . . "

There are exceptions but they are not relevant to this case.

There is no dispute that the ruling by the trial judge in relation to the joinder of parties is an interlocutory judgment and therefore requires leave of the Court.

The Supreme Court Act deals with two separate issues in civil cases, an appeal to the Supreme Court as of right (see s14(1) and 14(1)(b) and an appeal to the Supreme Court by leave only (see s14(1)(c), s14(3), s14(4)). The Supreme Court Rules also deal with these two issues separately (see O7 Div 1 & 2 which deal with applications for leave and O7 Div 3 and 4 which deal with appeals to the Supreme Court). They are not one and the same.

The Notice of Appeal in ground (3)(g) appeals against the decision not to join Sakai Management Services Pty Ltd...