Thomas Serowa and Others v Paulus M Dowa Trading as Paulus M Dowa Lawyers and Others

• Jurisdiction: Papua New Guinea
• Judge: Cannings J,Collier J,Berrigan J
• Judgment Date: 21 April 2023,16 March 2023,05 September 2025
• Neutral Citation: SC2381
• Citation: SC2381, 2023-04-21,2023-03-16,2025-09-05,2023-03-16
• Counsel: T Serowa, the first appellant in person, for the Appellants,L David, for the First Respondent,J Brooks, for the Second Respondent
• Docket Number: SCA NO 11 OF 2022
• Hearing Date: 28 March 2023,21 April 2023
• Court: Supreme Court

SC2381

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 11 OF 2022

Thomas Serowa

First Appellant

T Serowa Limited Trading as T Serowa & Co

Second Appellant

v.

Paulus M Dowa Trading as Paulus M Dowa Lawyers

First Respondent

Bank of South Pacific Limited

Second Respondent

Waigani: Cannings J, Collier J, Berrigan J

2023: 28^th March, 21^st April

SUPREME COURT — practice and procedure — application to full court for variation of interlocutory orders of single Judge of Supreme Court — Supreme Court Rules, Division 11.13.

SUPREME COURT — practice and procedure — objection to competency of appeal — whether grounds of appeal raised questions of fact for which leave of Court was required — whether grounds of appeal met requirements of Supreme Court Rules, Order 7 rule 9(c) and 10 — whether new grounds in a supplementary notice of appeal required leave of Court.

The appellants filed a notice of appeal against an order of the National Court that entirely dismissed proceedings the appellants had commenced, as plaintiffs, against the respondents, as defendants. The appellants then filed a supplementary notice of appeal on 25 August 2022 (and two subsequent further supplementary notices of appeal). The second respondent responded to each notice of appeal with a notice of objection to competency. During directions hearings in the Supreme Court, a single Judge on 5 October 2022 made an order against the appellants, ordering that they pay the second respondent's costs of the objections to competency on a full indemnity basis and preventing the appellants from taking any further steps in the appeal until the costs were paid. The appellants then filed an application to vary the costs order of the single Judge. Set down for hearing before the full court of the Supreme Court were the appellants' application for variation of the costs order and the second respondents' objection to competency of the appeal. It was clarified at the hearing that the objection was to the supplementary notice of appeal filed on 25 August 2022, the other iterations of the notice of appeal having been superseded or withdrawn with leave of the Court.

Held:

As to the application for variation of the orders of 5 October 2022:

(1) Per Collier J & Berrigan J; Cannings J dissenting: The application was filed late and lacked merit and was refused.

As to the objection to competency of the appeal:

(2) Per Cannings J & Berrigan J; Collier J dissenting: There was at least one ground of appeal that was competent and engaged the jurisdiction of the Court. Therefore, the appeal was competent and the objection to competency was refused (Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205 applied).

Cases Cited:

Papua New Guinean Cases

The following cases are cited in the judgment:

Able Construction Ltd v W R Carpenter (PNG) Ltd (2014) N5636

Akiko v Ekepa (2022) SC2203

Birch v The State [1979] PNGLR 75

Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205

Covec (PNG) Ltd v Kama (2020) SC1961

Coyle v Henao [2000] PNGLR 17

Curtain Bros (PNG) Ltd v UPNG (2005) SC788

Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262

Guli v The State (2022) SC2272

Haiveta v Wingti (No 2) [1994] PNGLR 189

Hariki v The State (2007) SC1320

Hegele v Kila (2011) SC1124

Ipili Porgera Investments Ltd v Bank South Pacific Ltd (2007) SC1322

James Kruse v Beatrice Geita and George Nicholas Constantinou and NC Resource Limited (2015) SC1849

Konda'lane Properties Ltd v Parkop (2022) SC2289

Kou v Kaupa (2010) SC1021

Lama v NDB Investments Ltd (2015) SC1423

Luma v Kali (2014) SC1608

Mann v Kumbu (2019) SC1799

National Executive Council v Toropo (2022) SC2193

NCD Water and Sewerage Ltd v Tasion (2002) SC696

Ombusu v The State [1996] PNGLR 335

Opi v Telikom (2020) N8290

Pacific Equities & Investments Ltd v Teup Goledu (2009) SC962

Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1) (2019) SC1821

Rex Paki v MVIL (2010) SC1015

Rolf Schubert v The State [1979] PNGLR 66

Schubert v The State [1979] PNGLR 66

Timothy v Timothy (2022) SC2282

Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201

Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

Turia v Nelson (2008) SC949

Wahgi Savings & Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Overseas Cases

AON Risk Services Australia Limited v Australian National University [2009] HCA 27

Counsel

T Serowa, the first appellant in person, for the Appellants

L David, for the First Respondent

J Brooks, for the Second Respondent

Pacific Legal Group: Lawyers for the First Respondent

Ashurst PNG: Lawyers for the Second Respondent

21^st April, 2023

1. Cannings J: There are two matters before the court:

• an amended application filed by the appellants on 16 March 2023 to vary the interlocutory orders of Batari J of 5 October 2022;

• the objection by the second respondents, filed by notice of objection on 5 September 2022, to competency of the appeal, constituted by the supplementary notice of appeal filed 25 August 2022.

2. I rely on and adopt the summary of the procedural history set out in the judgment of Collier J.

AMENDED APPLICATION FILED 16 MARCH 2023 TO VARY INTERLOCUTORY ORDERS OF 5 OCTOBER 2022

3. This application is not properly before the Court as it was filed late. It had to be filed and served within 21 days of the making of the order of 5 October 2022, to be a proper application under Order 11 rule 25 of the Supreme Court Rules. It was not filed until 10 March 2023, then amended on 16 March 2023. The appellants argue that the order of 5 October 2022 was not served until 2023. But it is not the date of service of the order that is the trigger for running of the 21 days. It is the date of making of the order. The appellants were represented in court on 5 October 2022, so there is no excuse for not filing the application in time.

4. I consider, however, that the full court of the Supreme Court has an inherent power to on its own initiative review an interlocutory costs order of a single judge. It can exercise that power if it is satisfied that an error has occurred in the exercise of discretion as to the making of the order. The costs order had two parts to it:

• the appellants are to pay the second respondent's costs of the previous objections to competency on a full indemnity basis; and

• costs are to be paid prior to the appellants taking any further steps in the appeal.

5. I agree with Collier J that no good reason has been provided by the appellants for setting aside or reviewing the first part. However, I consider that the second part is problematic. It is inherently harsh in its operation, unnecessary, operates in the nature of a penalty or a security for costs and tends to put a brake on efficient progression of the appeal. I would set aside that part of the order. I decline to vary any other part of the order of 5 October 2022.

THE OBJECTION TO COMPETENCY OF THE APPEAL

6. It was clarified at the hearing of these matters that the relevant objection to competency was the one filed by notice on 5 September 2022. It is an objection to competency of the appeal, constituted by the supplementary notice of appeal filed on 25 August 2022, the other iterations of the notice of appeal having been superseded or withdrawn with leave of the Court.

7. There are 20 grounds of appeal against the decision of the National Court of 4 January 2022 to dismiss the proceedings WS 994 of 2008, which had been commenced by the appellants against the respondents.

Grounds of objection

8. The second respondent argues that the appeal is incompetent as each ground of appeal:

• raises questions of fact for which leave to appeal has not been granted, contrary to the Supreme Court Act;

• fails to comply with Order 7 rules 9(c) and 10 of the Supreme Court Rules as it is unclear, fails to say why the primary judge was wrong and what the judge ought to have found, makes statements without identifying the alleged error of the primary judge, makes general statements that are submissions, not grounds of appeal, is vague, ambiguous, confusing and/or unintelligible, fails to provide particulars to demonstrate that the primary judge's decision was against the weight of the evidence or wrong in law and/or fails to demonstrate reasons as to how the primary judge erred in law;

• is an amendment to the original notice of appeal, or a new ground of appeal, which has been made or included outside the time limit set by Order 7 rule 26 of the Supreme Court Rules;

• is misconceived, disingenuous and/or otiose;

• is a ground of appeal against the order of Frank J of 11 September 2020, which referred the WS proceedings to mediation, but which is not the subject of the appeal in SCA 11 of 2022;

• is a ground of appeal against the order of the primary judge of 16 July 2021, which is not the subject of the appeal in SCA 11 of 2022;

• is a ground of appeal against the order of the primary judge to refuse the appellants' application for adjournment, which is an interlocutory ruling requiring leave of the court to pursue, and which is not the subject of the appeal in SCA 11 of 2022; and/or

• is raised for the first time in the Supreme Court.

9. It is thus argued that all 20 grounds of appeal are defective and this means the appeal is incompetent. It is further argued that the supplementary notice of appeal filed 25 August 2022 is defective, rendering the appeal incompetent, as it:

• fails to state whether the whole or part only of the judgment of the primary judge is appealed from, contrary to Order 7 rule 9(b) of the Supreme Court Rules; and/or

• includes, in paragraph 3, a new matter, a purported application to introduce fresh evidence, which is not in a proper form and fails to comply with s 6 of the Supreme Court Act and Order 7 rules 54 and 55 of the Supreme Court Rules.

General principles

10. I adopt the general principles for determining an objection to...