Elizabeth Michelle Cox v David Hunter Cox (2012) SC1197

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Gabi & Sawong, JJ
• Judgment Date: 28 September 2012
• Citation: (2012) SC1197
• Docket Number: SCA NO. 2 OF 2012
• Court: Supreme Court
• Year: 2012
• Judgement Number: SC1197

Full Title: SCA NO. 2 OF 2012; Elizabeth Michelle Cox v David Hunter Cox (2012) SC1197

Supreme Court: Salika DCJ, Gabi & Sawong, JJ

Judgment Delivered: 28 September 2012

SC1197

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 2 OF 2012

BETWEEN:

ELIZABETH MICHELLE COX

Appellant

AND

DAVID HUNTER COX

Respondent

Waigani: Salika DCJ, Gabi & Sawong, JJ

2012: 13 August

28 September

SUPREME COURT – Practice and procedure – application for objection to competency – grounds for objection to competency mainly on the basis that notice of appeal states matters of fact only and should be preceded by leave application -none of the grounds of appeal are errors of law or mixed law and facts - appellant required leave to appeal - as leave is not obtained, objection to competency of the appeal is upheld

Cases Cited:

Papua New Guinea Cases

Dillingham Corporation of New Guinea Pty Ltd vs. Constantino Alfredo Diaz [1975] PNGLR 262 at 270

Haiveta vs. Wingti (No. 2) [1994] PNGLR 189

Counsel:

G. Poole, for the Applicant

M. N. Wilson, for the Respondent

DECISION

28th September, 2012

1. BY THE COURT: Introduction: This is an objection to the competency of an appeal filed on 23rd January 2012 and served on the respondent on 14th May 2012. The grounds for the objection are:

(i) That the appellant filed the Notice of Appeal on 23rd January 2012 but did not serve it on the respondent until 14th May 2012 and in the intervening period the respondent complied with the Orders of the National Court regarding payment of maintenance and delivery of chattels to the appellant. The delay of four (4) months in serving the Notice of Appeal constitutes a gross abuse of the process of the court;

(ii) The Notice of Appeal states matters of fact only, and not matters of law or mixed fact and law, and cannot be advanced without prior leave of the Court pursuant to s. 4 of the Supreme Court Act;

(iii) The Order sought in paragraph 4(a) of the Notice of Appeal, which is quash the whole of the judgment in MC No. 17 of 2011 handed down on 28th December 2011, would amount to miscarriage of justice arising out of a gross abuse of process because the appellant has received all payments ordered by the National Court prior to service of the Notice of Appeal;

(iv) The appellant seeks to quash the whole of the judgment or Order of the National Court which includes seeking an order to quash the dissolution of marriage when s.64 of the Matrimonial Causes Act States that an appeal does not lie from a Decree of Dissolution of Marriage which has become Absolute. The Decree in this cause has become Absolute.

Background

2. The brief facts are that the appellant and the respondent were married in 1994. In 2012, the respondent petitioned the court for dissolution of marriage on the basis of desertion for a period of not less than two (2) years. The appellant failed to file an answer to the petition. In her affidavits, the appellant failed to refute the respondent’s claim that she left the matrimonial home after unhappy differences arose and that she deserted him. In other words, the appellant failed to explain and refute the claim that she deserted him. On 28th December 2011, the court made a decision in the matter.

First, third and fourth grounds of objection

3. The first and third grounds can be dealt with together as they relate to delay in the service of Notice of Appeal and payment of maintenance. The delay is not substantial and does not in any way prejudice the respondent, who was ordered to make certain payments within a specific time frame. He was duty bound to comply with the orders of the court. With respect to the fourth ground of objection, we note that the Notice of Appeal was filed on 23rd January 2012 and the Decree Nisi became Absolute on 27th January 2012. The appeal was filed before the Decree Nisi became Absolute. Accordingly, we dismiss the first, third and fourth grounds of objection.

Second ground of objection

4. The second ground arises from the grounds of appeal in the Notice of Appeal. Accordingly, we set out the grounds of appeal below:

“3. A. The learned trial Judge erred in law and in fact in finding that the Appellant had willfully deserted the Respondent for a period of not less than two (2) years.

Particulars: The Appellant lived apart from the Respondent at the request of the Respondent to look after the children who were in school in Australia.

B The learned trial Judge erred in law and in fact in finding that the Respondent had not condoned or connived the ground of desertion and had not colluded with another with intent to cause a perversion of justice;

C The learned trial Judge erred in law and in fact in dissolving the marriage solemnized on 6 February 1994 between the parties;

D The learned trial Judge erred in law and in fact in ordering property, settlement, maintenance and custody of the children based on his findings above.

E The Appellant’s materials evidence and facts in defence to the Respondent’s petition which were relevant to these proceedings was, through no fault of the Appellant, not made known to the Court before the proceedings were finalized.

5. The question is whether the grounds of appeal raise questions of fact where leave to appeal is required under section 4(2)(c) and 14(1)(c) of the Supreme Court Act. What is a question of fact? What are questions of fact and law has been settled in this jurisdiction. Kearney DCJ said in Waghi Savings and Loan Society Ltd v Bank of South Pacific (1980) SC 185 (Kearney DCJ, Andrew, J, and Kapi J.):

“What are questions of fact and law are difficult to determine. On this question Lord Denning said:

‘On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from the, if and in so far as those conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts,’

See British Launderers’ Research Association vs. Central Middlesex Assessment Committee and Hendon Rating Authority (1949) I All E.R. 2111 at pp. 25 and 26. This same passage was referred to by the then Deputy Chief Justice, Prentice, in the case of Dillingham Corporation of New Guinea Pty . Ltd, vs. Constantino Alfredo Diaz (1975) PNGLR 262 at p.270.

Where primary facts are found (which cannot be challenged on appeal except by leave of the court) the question of law is what is the proper conclusion to be drawn from those facts. It has been shown in decided cases that where inferences or conclusions are drawn from these primary facts which cannot reasonably be drawn, then this si an error of law. See Edwards (Inspector of Taxes) vs. Bairstow and Another (1956) A.C. 1413; Instrumatic Ltd, vs Suprabrase LT, (1969) 1 WLR 51914. I cannot see anything in the circumstances of this country that would render these principles inapplicable. I adopt them as part of the underlying law (Schedule 2:2 of the Constitution).”

6. The passage from Lord Denning’s judgment was also cited by the Supreme Court in Sidi Adevu vs. MVIT [1994] PNGLR 57; Oio Aba vs MVIL (2005) SC 799 (Injia DCJ, Sawong J, and Lay J,); Unasi Martin and Serah Martin vs. MVIT (2007) SC 896 (Batari J., Lay. And Hartshorn J.) and The City Administrator vs. Yambuaran Pausa Saka Ben Ltd (2009) SC 965 (Gavara-Nanu J., Batari J. and Gabi J.).

Ground 3A

7. The Court was petitioned to dissolve the marriage on the grounds of desertion. The appellant failed to file an Answer to the Petition. Secondly, the appellant failed to provide evidence to refute the respondent’s claim that she deserted him. Finally, counsel for the appellant stated thus; “she has not effectively defended her position and has conceded on desertion.” (Objection Book, page 55 lines 37 and 38).

8. The learned trial Judge found that the appellant gave no clear evidence and stated:

“In her three Affidavits, sworn 10 November, 2010, 11 February, 2011 and 15 April, 2011, Elizabeth has failed to state clearly the evidence she presents to refute David’s claim that she left the matrimonial home after unhappy differences arose, and that she deserted him in 2004. Much of what she said goes to her arguments that the matter should be dealt with in the Family Court, she view that David has...