Yakham and The National Newspaper v Dr Stuart Hamilton Merriam and Carol Merriam; The Independent State of PNG and Michael Nali v Dr Stuart Hamilton Merriam and Carol Merriam [1997] PGSC 15; SC533 (27 November 1997)

Unreported Supreme Court Decisions

SC533

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 94 OF 1996
BETWEEN
HENZY YAKHAM - FIRST APPELLANT
AND
THE NATIONAL NEWSPAPER - SECOND APPELLANT
AND
DR STUART HAMILTON MERRIAM - FIRST RESPONDENT
AND
CAROL MERRIAM - SECOND RESPONDENT

SCA 95 OF 1996
BETWEEN
THE INDEPENDENT STATE OF PNG - FIRST APPELLANT
AND
MICHAEL NALI - SECOND APPELLANT
AND
DR STUART HAMILTON MERRIAM - FIRST RESPONDENT
AND
CAROL MERRIAM - SECOND RESPONDENT

Waigani

Amet CJ Kapi DCJ Los J
8 April 1997
27 November 1997

PRACTICE AND PROCEDURE - Appeal against questions of law and mixed questions of mixed law and fact - notice of appeal to be filed in accordance with form 8 of Supreme Court Rules.

PRACTICE AND PROCEDURE - Appeal against questions of fact alone - Application for leave to appeal to be filed in accordance with form 7 of Supreme Court Rules.

PRACTICE AND PROCEDURE - Where a person desires to appeal against questions of law as well as questions of fact above in the same matter - Separate documents will be filed - Notice of Appeal shall be filed in accordance with form 8 of the Supreme Court Rules in respect of questions of law and questions of mixed law and fact - Notice of application for leave shall be filed in accordance with form 7 of the Supreme Court Rules in respect of questions of fact alone.

Counsel

R Nonggorr for the Appellants in SCA 94 of 1996

P Mogish for the Appellants in SCA 95 of 1996

G Shepherd for the Respondents

27 November 1997

AMET CJ: These are two objections to the competency of two appeals. The two appeals, though by different appellants, arise out of the same judgment of the National Court given on 14 November 1996.

The objections were heard together by consent, as they raised the same issues pertaining to the form of the Notice of Appeal and the pleadings. Objections were taken to paragraph two of the respective Notices of Appeal, which are in the following similar terms:

SCA 94 OF 1996

“The appeal lies without leave insofar as it refers to questions of Law and leave to appeal is sought at the hearing in so far as it refers to matters of fact, as the matters to be raised in that application are in part all the substantive matters constituting the grounds of appeal as set out in the grounds numbered (a) to (ak).”

SCA 95 OF 1996

“The appeal lies without leave insofar as it relates to questions of Law and leave to appeal is sought at the hearing in so far as it relates to questions of fact.”

The ground of objection is in the same following terms, in respect of each appeal:

The appeal herein has been made in respect of questions of fact without:

(a) First making application for leave to appeal to do so; and

(b) Specifying concisely the grounds upon which such application for leave is sought;

which are mandatory requirements in respect of appeals from interlocutory judgments in the National Court under Section 4 (2) (c) and 14 (1) (c) of the Supreme Court Act.

Section 4 (2) provides for a Right of Appeal from the National Court in the following terms:

“(2) An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal:

(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.”

Section 14 (1) which falls under Division 2 - Additional Provisions Relating to Appeals in Civil Cases - provides that:

“Subject to this section, an appeal lies to the Supreme Court from the National Court:

(a) on a question of law;

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

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

Section 17 of the Act provides for the time for appealing under Division 2 in the following terms:

“17. Time for appealing under Division 2

Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.”

The appropriate rules prescribed for the purposes of Sections 14 and 17 are to be found in the Supreme Court Rules:

Part 3 - Jurisdiction Under Supreme Court Act

Order 7 - Appeals

Division 1 - Application for Leave to Appeal

1. Where an appeal from a judgment lies to the court only with leave, an application shall be determined after an oral hearing.

2. An application for leave to appeal shall be made by filing a notice in writing and shall:

(a) be entitled ‘In the Supreme Court of Justice’ and shall also be entitled as between the party as appellant and the party as respondent;

(b) show that an appeal lies with leave;

(c) state the nature of the case, the questions involved and the reason why leave should be given;

(d) show an address for service of the party giving the notice; and

(e) be in accordance with form 7.

3. Notwithstanding anything contained in sub-rule (1), application may be made before the court that application for leave to appeal be heard concurrently with or immediately before the hearing of the appeal, and for such consequential orders as may be necessary.

Division 2 - Filing and serving Notice of Application for Leave to Appeal

4. The provisions of Rule 10, with the necessary modifications shall apply to an application for leave to appeal and notice of such application.

5. When leave to appeal has been granted, the Supreme Court may treat the notice of application for leave as notice of appeal, but otherwise, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such time as the Court or Judge may allow.

Division 3 - Notice of Appeal

6. An appeal shall be instituted by a notice of appeal.

7. The notice of appeal and all subsequent proceedings shall be entitled ‘In the Supreme Court of Justice’ and shall be entitled as between the party as appellant and the party as respondent.

8. The notice of appeal shall:

(a) state that an appeal lies without leave or that leave has been granted and/or annex the appropriate order to the notice of appeal;

(b) state whether the whole or part only and what part of the judgment is appealed from;

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

(d) state what judgment the appellant seeks in lieu of that appealed from;

(e) be in accordance with form 8;

(f) be signed by the appellant or his lawyer; and

(g) be filed in the registry.

Section 4 (2) and 14 (1) enable civil appeals to the Supreme Court in two ways:

(a) on questions of law; or

(b) on question of mixed fact and law;

as of right; and

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

Section 17 of the Act then stipulates that:

“where a person desires to appeal to,” (as of right ), “or to obtain leave to appeal from, the Supreme Court, he shall give notice of appeal or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court...”

The appropriate rules are to be found in Part 3, Order 7, Divisions 1, 2,and 3.

Division 1, Rules 1, 2 and 3 provide specifically for the Application for Leave to Appeal, whilst Division 3 provides for the requirements of a Notice of Appeal.

Order 7, Rule 2 stipulates that:

2. An application for leave to appeal shall be made by filing a notice in writing and shall, inter alia:

(b) show that the appeal lies with leave;

(c) state the nature of the case, the questions involved and the reason why leave should be given;

(e) be in accordance with form 7.

In contra distinction Division 3 which provides for the Notice of Appeal, stipulates inter alia:

8. The notice of appeal shall:

(a) state that an appeal lies without leave or that leave has been granted;

(b) state whether the whole or part only and what part of the judgment is appealed from;

(c) state briefly but specifically the grounds relied upon in support of the appeal from;

(d) state what judgment the appellant seeks in lieu of that appealed from;

(e) be in accordance with form 8.

Section 17 prescribes two distinct processes. Firstly, the notice of appeal and secondly, the notice of application for leave to appeal. The manner in which these two processes are to be invoked are prescribed in the rules by Order 7 Division 1 Rules 1, 2 and 3, Division 2 Rules 4 and 5 and Division 3 Rules 6 to 9. The rules prescribe the manner and the form in which the two different processes are to be invoked.

Both the notice of appeal and the notice of application for leave to appeal, are to be given within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.

There is no uncertainty at all that an application for leave to appeal is intended to be a different process in content and form, which is to be in accordance with form 7, whereas the notice of appeal is similarly different in content and form and which is to be in accordance with form 8.

It seems to me that some inconsistent application of these Rules have occurred over the years principally as a result of the content of paragraph 2 of Form 8. Before I turn to the examination of paragraph 2 of form 8, it is perhaps useful to deal firstly with several other aspects of the regime of the appeals.

In any given decision of a National Court, appeals may lie to the Supreme Court in one or any number of the principal basis, that is as of right on questions of law or mixed fact and law or with the leave of the Court on questions of fact only, or on questions that are as of right as well as questions of fact for which leave of the court is necessary. Appeals involving questions of law or mixed fact and law are as of right and so only a notice of appeal pursuant to Section 17 and Order 7 Rules 6 to 9 in Form 8 will be necessary.

Appeals involving questions of fact alone require leave of the Court and so pursuant to Section 17 and Order 7 Rules 1 and 2 a Notice of Application for Leave to Appeal will be required to be filed in accordance with form 7. Order 7 Rule 1 requires that an application for leave to appeal shall be determined after an oral hearing. Order 7 Rule 5 provides that “when leave to appeal has been granted, the Supreme Court may treat the Notice of Application for Leave as notice of appeal, but otherwise, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such time as the Court or Judge may allow”. This provision, to my mind, is clearly intended to safeguard the interests of a successful applicant for leave to appeal pursuant to Section 17. It envisages and allows for the notice of application for leave to appeal being made within 40 days after the date of the judgment in question, but the hearing of which and the grant of leave not being given until after the 40 days had expired. This rule therefore permits the Court, either to treat the notice of application for leave as notice of appeal, if it sufficiently incorporates the grounds of appeal for the purposes of Orders 7 Rule 8, or otherwise to allow the successful applicant for leave, to file a Notice of Appeal within 21 days immediately after the date on which leave is granted or such other time as the Court may allow. Again, this is quite practically beneficial to a successful applicant for leave to appeal, who might otherwise be penalised for not having filed a Notice of Appeal within 40 days of the date of the judgment in question.

From this construction it is no appropriate for an applicant for leave to appeal to file a prospective notice of appeal for which leave is required, simultaneously with the notice of application for leave to appeal within 40 days of the date of the judgment in question. In an appeal which raises questions of fact only and for which leave of the court is necessary, only an application for leave need be filed within the 40 days from the date of the judgment, until that application has been heard and determined, following which if leave be granted then Order 7 Rule 5 will be invoked.

In an appeal, the grounds of which will involve question of law and questions of mixed fact and law, and grounds which involved questions of fact alone for which leave of the Court is required, the procedures pursuant to Section 17 and the relevant rules under Order 7, in my opinion should be as follows.

Firstly, in respect of grounds of appeal involving questions of law and/or mixed fact and law, which are as of right and not requiring leave of the court, a notice of appeal should be filed pursuant to Section 17 and Order 7 Rules 6 to 9 in accordance with form 8. Secondly, in relation to grounds which raise questions of fact, for which leave of the Court is required, an application for leave to appeal pursuant to Section 17 and Order 7, Rules 1 and 2 should be filed in accordance with Form 7.

In the foregoing scenario it is my opinion that the application for leave to appeal should first be heard separately and determined, as envisaged by Order 7, Rules 1, 3 and 5 prior to the hearing of the substantive appeal. It also makes sense in that if such an application for leave to appeal is successful, then Rule 5 would apply to incorporate those additional grounds of appeal into the notice of appeal.

Order 7, Rule 3 also applies to the foregoing circumstances where there are grounds of appeal which have not required leave, and which have been filed in a notice of appeal and grounds which require leave of the court, the application for which may be heard concurrently with or immediately before the hearing of the appeal, upon application being made to the court by the applicant for leave to appeal.

I believe that it is this Order 7 Rule 3 that has been unwittingly incorporated into paragraph 2 of the Notice of Appeal Form 8, which has led to the misinterpretation and application of these provisions of the Act and Rules over the years. In my view, notwithstanding Rule 3, an applicant is not exempt from filing the appropriate application for leave to appeal in accordance with Form 7. Essentially, it is my view that, none of these provisions of the Rules intended that any grounds of appeal involving questions of fact that require leave should be incorporated into the single notice of appeal Form 8 without a separate application for leave being filed in Form 7. It is quite clear, in my view, that the rules intended that separate application for leave in Form 7 should be filed in respect of proposed grounds involving issues of fact for which leave of the court was required and separate notice of appeal in Form 8 in respect of grounds of appeal which did not require leave of the court. Order 7 Rules 3 and 5 provided adequately for the incorporation of the grounds of appeal that required leave after leave was granted.

Turning now to the terms of paragraph 2 of Form 8, which in my view, has given rise to these inconsistencies in interpretation and application, it is in the following terms:

2. “(Where applicable) THE appeal lies without leave OR (where applicable) THE appeal is brought pursuant to leave granted on (specify order) OR Leave to appeal is sought at the hearing as the matters to be raised in that application are in whole and/or in part (whichever is applicable) the substantive matters constituting the grounds of appeal as set out in the grounds numbered (here state).”

The terms of this paragraph suggests three distinct alternatives or a combination of any number of them in the following way.

1. the appeal lies without leave.

2. the appeal is brought pursuant to leave granted on (the date of grant of order).

3. leave to appeal is sought at the hearing.

The first two alternatives are perfectly permissible and correct, either separately or in combination. For instance in an appeal there may be grounds which lie without leave as well as grounds which require leave, which as the rules intend will have been applied for prior to the hearing, and which may be possible in terms of timing to have been incorporated into a notice of appeal Form 8. If that were not possible because of the need to have filed the notice of appeal within 40 days, prior to the grant of leave in respect of ground which required leave, then a notice of appeal in terms of Order 7 Rule 5 could be filed.

Alternative 3, is obviously anomalous, and I believe it refers to what is intended by the Order 7, Rule 3 application that may be made before the Court for that application for leave to appeal to be heard concurrently with or immediately before the hearing of the appeal. However, as I have concluded, this option does not exempt the applicant for leave from filing the appropriate application for leave in accordance with Form 7 first and then to make application to the court that that application for leave to appeal be heard concurrently with or immediately before the hearing of the appeal, in respect of other grounds that have not required leave. If the appeal is in respect of facts alone for which leave is required and that there were no other grounds which did not require leave, then of course the application for leave must in my view be heard separately before any presumption as to the hearing of any grounds of appeal may be considered.

It is quite clear to me that this third alternative has led to inconsistencies in pleading and thus several decisions of courts in the past. I consider therefore that this third alternative as obtained in Form 8 is not a requirement of the Rules and should therefore be struck down as being inconsistent with the specific requirements of Order 7, Divisions 1 and 3.

Paragraph 2 of Form 8 should hereafter only have two alternatives or a combination of both of one and two. The third alternative is not a requirement of the rules and should no longer be pleaded. Applications for leave should be in accordance with Form 7, and any application under Order 7 Rule 3 are then to be made separately in respect of the application for leave filed in accordance with Form 7.

The Court in Opai Kunangel v The State 1985 PNGLR 144 appeared to approve a notice of appeal in Form 8 containing grounds of appeal on mixed fact and law which lay without leave and grounds of appeal which required leave. It held that the Notice of Appeal should indicate specifically that leave is being sought in respect of the grounds involving issues of facts. In the subsequent decision of Nerau v Solomon Taiyo Ltd PNGLR 395, the leave Court referred to Kunangel v The State and appeared to approve the practise. I consider, with respect, that in both cases the issues that have been raised in this case were not fully raised and addressed as have been done in this case. In Nerau v Solomon Taiyo the issue was a little different in that the paragraph in issue pleaded that appeal was without leave or in the alternative leave to appeal was sought at the hearing of the matter.

In Tsang v Credit Corporation 1993 PNGLR 112 a Notice of Appeal was filed against an interlocutory decision, for which leave was required pursuant to Section 14(3)(b) of the Act. That was clearly incompetent. The appellant sought to overcome this by filing a supplementary notice of appeal purporting to seek leave but well outside the 40 day time limit. That decision affirms the view that, in respect of grounds of appeal requiring leave, be it from a substantive judgment, or a an interlocutory judgment the appropriate application is in Form 7 for leave to appeal.

Following this judgment, which now clarifies and in effect over-rules Opai Kunangel v The State and clarifies Nerau v Solomon Taiyo and affirms Chang v Credit Corporation, all grounds of appeal that require leave shall be in accordance with Form 7 and only grounds of appeal that do not require leave or where leave has been previously obtained, can be filed in the terms of Form 8. It will be necessary also to render greater consistency and efficacy in the practice of the Supreme Court that the provisions of Order 7 Rules 1 to 5 be strictly adhered to. In particular I would expect the requirement of Rule 2 (c) to be given greater adherence by applicants. I will expect that appropriate Practice Direction will issue to implement this correct procedure.

I should add that, though this is obviously obiter to the ruling in these applications, the ratio decidendi of this decision, applicable to civil appeals, in my judgment apply equally to Division 3 of the Act, in particular Sections 22 and 29 which are the corresponding provisions relating to criminal appeals. Forms 7 and 8 are applicable for use in both Civil and Criminal Appeals, and so the statements of principle that are here enunciated in respect of Civil Appeals apply equally to criminal appeals.

Returning now to the notices of appeal paragraphs 2 in these two application, I consider that given the varied opinions of the courts in Opai Kunangel v The State and Nerau v Solomon Taiyo, and the fact that unlike the pleading in Nerau v Solomon Taiyo in these applications leave to appeal is being sought specifically but at the hearing of the notice of appeal. I would therefore, in these circumstances, be prepared to permit the notice of appeal documents to be treated both as a notice of appeal as so far as they contain grounds of appeal which do not require leave and also as application for leave to appeal in respect of grounds which require leave of the court which have been specifically sufficiently indicated will be sought at the hearing. On these basis therefore both notices of appeal documents should be allowed to be argued and the grounds of appeal requiring leave also are to remain competent, and only on this occasion the applications for leave to appeal shall be permitted to be heard at the hearing pursuant to Order 7 Rule 3 and be heard concurrently with the grounds of appeal that do not require leave. I should add quite clearly, that in the future applications for leave to appeal are to be filed separately in Form 7 and that there should be no presumption that such application will automatically be heard concurrently with or immediately before the hearing of the appeal in respect of grounds of appeal that do not require leave or if the only grounds of appeal are requiring leave that they can be heard in the terms of Order 7 Rule 3. I repeat that applications for leave to appeal are expected to be heard and determined prior to the hearing of the actual appeal if leave should be granted. If the grounds for the application for leave to appeal are in whole and or in part substantially the grounds to constitute the grounds of appeal then appropriate applications are expected to be made pursuant to Order 7 Rule 3.

In these circumstance therefore the objections to competency of the two appeal are dismissed and I consider that the costs should be borne by each of the parties themselves.

KAPI DCJ: By consent these two matters were heard together. They raise the same issues. They raise objections to the competency of various grounds of appeal in the two separate appeals. These two appeals arise out of the same decision handed down by Salika J on 14 November 1996. The nature of the objection in both matters is that the appellants have appealed against certain findings of fact and that they have failed to apply for leave to appeal in respect of those findings in accordance with the provisions of the Supreme Court Act (hereinafter referred to as the ‘Act’) and the Supreme Court Rules (hereinafter referred to as the ‘Rules’).

Counsel for the respondents has indicated the grounds which are said to be findings of fact in the two notices of appeal. In respect of SCA 94 of 1996 objection is raised with respect to grounds 3 (a), (b),(c), (k), (m), (o), (q), (s), (u), (v), (y), (aa), (ab), and (ac). In SCA 95 of 1996 objection is raised with respect to grounds 3 (a), (i) and (k).

Paragraph 2 of both notices of appeal are drafted in similar terms. In respect of SCA 94 of 1996 the paragraph 2 is as follows:

“The Appeal lies without leave insofar as it refers to questions of law and leave to appeal is sought at the hearing insofar as it refers to matters of fact, as the matters to be raised in that application are in part all the substantive matters constituting the grounds of appeal as set out in the grounds numbered (a) to (ak).”

In respect of SCA No 95 of 1996 paragraph 2 is as follows:

“The appeal lies without leave in so far as it relates to questions of law and leave to appeal is sought at the hearing in so far as it relates to questions of fact.”

Counsel for the respondents submitted that the appellants have not sought a separate application for leave to appeal in accordance with the provisions of the Act and the form for such an application is provided for in form 7 of the Rules. He further submitted that the notices which have been filed are in form 8 of the Rules and they cannot serve the purpose for applying for leave in form 7.

Counsel for the appellants submitted that paragraph 2 of the notices are sufficient and they indicate that they applied for leave to appeal in respect of findings of fact.

The law is clear that where a person desires to appeal against a ground which involve a question of law or mixed questions of law and fact, a person may appeal as of right (see s. 4 (2) (a) and (b), s. 14 (1) (a) and (b) of the Act). If however, a person desires to appeal against a question of fact alone (s. 4 (2) (c), s. 14 (1) (c) of the Act) or against an order for extension of time (s. 14 (3) (a) of the Act) or against an interlocutory injunction (see s. 14 (3) (b) Act) or against an order for costs only (s. 14 (3) (c) of the Act) it is necessary first to seek leave to appeal.

The issue which has arisen in these appeals relate to the proper manner or form in which these appeals should have been instituted. In so far as grounds which relate to questions of law and mixed questions of law and fact are concerned, they have been validly raised and the appeals will proceed in respect of those grounds. The issue raised by these objections relate to the question of facts only.

It is necessary to determine the nature of grounds which require leave to appeal. Under s. 4 (2) (c) of the Act a person may appeal with the leave of the Supreme Court, on a question of fact. In civil matters s. 14 (1) (c) also provides that a person may appeal with the leave of the Supreme Court, on a question of fact.

There are other grounds of appeal which require leave of the Supreme Court but they are not relevant in this case.

When dealing with the time in which any of these category of appeals may be filed, s. 17 deals separately with the two categories; (a) an appeal and (b) application for leave to appeal. This provision also provides that the manner in which these appeals may be given shall be prescribed by the Rules of Court.

Order 7 Div. 1 deals with the manner in which an application for leave may be instituted. Apart from other requirements, these provisions require that the application shall be in form 7 of the Rules. O 7 r 3 makes reference to a hearing of an application for leave as distinct from the hearing of an appeal. Under O 7 r 5 the Rules provide that where leave is granted, the Court may treat the notice of application for leave as the notice of appeal, in which case there would be no need to file a separate notice of appeal. If this order is not made, the appellant would be required to file a notice of appeal within 21 days after the date on which the leave was granted.

Order 7 Div. 3 deals with a notice of appeal. O 7 r 8 sets out the requirements and I draw attention to O 7 r 8 (a) which makes reference to leave being granted in respect of an application for leave to appeal. That can only be a reference to an application for leave to appeal under O 7 Div. 1 of the Rules. Where the Supreme Court treats the notice of application for leave as the notice of appeal in accordance with O 7 r 5, the provisions of O 7 r 8 is not applicable. However, where leave is granted and no order is made to treat the notice of application for leave as notice of appeal in accordance with O 7 r 5, an appellant is required to file a notice of appeal in accordance with O 7 r 8. One of the requirements is that the notice of appeal shall be in accordance with form 8. I will come back to this form later in my judgment.

The practical effect of all these provisions may be summarised in the following way. Where a person seeks to appeal only against grounds which require leave to appeal, leave must be sought by using form 7. If no leave is sought the appeal will be dismissed for incompetence (see Tsang v Credit Corporation [1993] PNGLR 112.

If an appeal involves a question of law or mixed fact and law only, an appeal must be filed in accordance with form 8. The two procedures are different in nature and must be kept separate (see Tsang v Credit Corporation (supra) at page 115).

The question that arises in this case is; what is required to be filed when an appeal involves grounds that do not require leave together with grounds that require leave. In my opinion a person is required to file the application for leave in accordance with form 7 in respect of grounds that require leave and a notice of appeal involving grounds that do not require leave in accordance with form 8. These documents must be filed separately. I have come to this conclusion because the provisions relating to notice of appeal acknowledges and makes reference to grounds in which leave may be granted (O 7 r 8 (a)). The implication is clear that an application for leave must be filed separately and must be heard first in time unless the Court directs that it should be heard concurrently with the appeal in accordance with O 7 r 3 of the Rules. This conclusion is consistent with the decision of the Supreme Court in Tsang v Credit Corporation (supra).

Now I turn to consider form 8 of the Rules. This form is required to be filed where a person is required to file a notice of appeal. Paragraph 2 of the form states:

“2. (Where applicable) THE appeal lies without leave OR (where applicable) THE appeal is brought pursuant to leave granted on (specify order) OR Leave to appeal is sought at the hearing as the matters to be raised in that application are in whole and/or in part (whichever is applicable) the substantive matters constituting the grounds of appeal as set out in the grounds numbered (here state).”

This paragraph appears to provide for three situations. First, where the appeal lies without leave, paragraph 2 of this form will simply read “THE appeal lies without leave”.

Second, where application for leave is granted by the Court, paragraph 2 will read “THE appeal is brought pursuant to leave granted on (and then date and the specifics of the order will be set out)”.

Third, where leave to appeal is sought in the notice of appeal, paragraph 2 will read “Leave to appeal is sought at the hearing as the matters to be raised in that application are in whole and/or in part (whichever is applicable) the substantive matters constituting the grounds of appeal as set out in the grounds numbered (here set out)”.

The third situation seems to suggest that it would be permissible to apply for leave to appeal in the notice of appeal as distinct from application for leave in form 7. Reading the form as a whole seems to suggest that grounds of appeal that do not require leave and grounds which leave is required may be included in the one document (form 8). These are not alternative grounds but combination of two categories of grounds in the one document (see Nerau v Solomon Taiyor Ltd [1993] PNGLR 395).

I find that the combination of grounds of appeal together with application for leave in the one form is not provided for in the Act or the Rules. In fact all the provisions I have referred to treat the two procedures distinct and separate. In my view form 8 goes beyond the provisions in the Act and the Rules. The practical result of this view is that all applications for leave to appeal must be filed in accordance with form 7 separate from grounds of appeal filed in accordance with form 8. I would modify this form so that the provision of the third option in paragraph 2 is invalid and be struck off.

We were advised by counsel that most practitioners follow paragraph 2 of form 8 and the objection has been made before us has not been raised before. In Opai Kunangel v The State [1985] PNGLR 144 this point was not raised. The Court approved of a notice of appeal filed in accordance with paragraph 2 of form 8 where grounds of appeal as of right were combined together with an application for leave to appeal in the one document. The Court in that case approved the practice but simply required that the notice should indicate specifically that leave is being sought in respect of questions of fact.

In Nerau v Solomon Taiyo Ltd (supra) the Court dealt with a slightly different pleading. Paragraph 2 of form 8 was pleaded in the alternative. It purported that the appeal lies without leave and alternatively sought leave at the hearing. The Court rightly held that there was a misunderstanding of the meaning of paragraph 2 of form 8. The Court dismissed the appeal as incompetent. The Court in its opinion made reference to Opai Kunangel v The State (supra) and approved the decision.

It follows from what I have stated so far that two Supreme Court decisions have approved the practice that an appeal in accordance with form 8 may contain grounds of appeal as of right together with application for leave to appeal. The only requirement is that the notice of appeal should indicate specifically that leave is being sought in respect of the questions of fact. It is clear to me that paragraph 2 in each of the matters before us clearly indicates that leave is sought in respect of findings of fact. If we apply Kunangel’s case (supra) and Nerau’s case (supra), the appellants have in fact sought leave and therefore the appeals in respect of findings of facts are competent.

I am of the opinion that the proper view to be taken of the practice and procedure with regard to the proper form to be filed in respect of each of the different grounds is as I have decided in this opinion. That is to say, all grounds of appeal which require the leave of the Supreme Court must be filed separately in accordance with form 7 and grounds of appeal which may filed as of right shall be filed in accordance with form 8 as modified.

The question is; should I find that the grounds of appeal with respect to findings of fact are incompetent in that the appellants have not filed separate applications in accordance with form 7? I find that as this is only a matter of practice and procedure and that the practice has been approved by this Court on several occasions, it would be unfair and unjust to apply this new ruling to the two matters now before us. In fact any appeal which may have been filed up to the date of this decision in accordance with the practice approved in Kunangel’s case, should be allowed to proceed to hearing. It should, however, be emphasised that after this decision is handed down, the proper practice and procedure set out in this opinion should be followed. If this is not done then parties run the risk of their appeals being rendered incompetent.

I would dismiss the objection. In the circumstances parties should bear their own costs of this application.

LOS J: I have had the advantage of reading the draft judgments of the Chief Justice and the Deputy Chief Justice and I agree with the reasons for decision. I have nothing further to add.

Lawyer for the Appellants in SCA 94 of 1996: Warner Shand

Lawyer for the Appellants in SCA 95 of 1996: Solicitor-General

Lawyer for the Respondents: Maladinas